Wednesday, November 8, 2000

Part III

Environmental Protection Agency 40 CFR Part 148, et al. Hazardous Management System; Identification and Listing of ; Chlorinated Aliphatics Production ; Land Disposal Restrictions for Newly Identified Wastes; CERCLA Hazardous Substance Designation and Reportable Quantities; Final Rule

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ENVIRONMENTAL PROTECTION Information section for information on C. Leachate Derived From AGENCY accessing them. Previously Disposed VCM–A Wastewater Treatment Sludges FOR FURTHER INFORMATION CONTACT: For VI. What Is the Rationale for Today’s Final 40 CFR Parts 148, 261, 268, 271, and general information, contact the RCRA 302 Rule, and What are EPA’s Responses to Hotline at (800) 424–9346 or TDD (800) Comments? [SWH±FRL±6882±6] 553–7672 (hearing impaired). In the A. Chlorinated Aliphatic Wastewaters Washington, DC, metropolitan area, call (other than wastewaters from the RIN 2050±AD85 (703) 412–9810 or TDD (703) 412–3323. production of VC–A using mercuric For information on specific aspects of chloride catalyst in an acetylene-based Hazardous the rule, contact Ross Elliott of the process) System; Identification and Listing of Office of Solid Waste (5304W), U.S. B. Wastewater Treatment Sludges from the Hazardous Waste; Chlorinated Environmental Protection Agency, 1200 Production of EDC/VCM Aliphatics Production Wastes; Land C. Wastewater Treatment Sludges and Pennsylvania Avenue, NW, Washington, Disposal Restrictions for Newly Wastewaters from the Production of DC 20460. [E-mail address and Identified Wastes; and CERCLA VCM–A telephone number: Hazardous Substance Designation and D. Wastewater Treatment Sludges from the [email protected], (703) 308– Production of Methyl Chloride Reportable Quantities 8748.] E. Wastewater Treatment Sludges from the AGENCY: Environmental Protection SUPPLEMENTARY INFORMATION: Wherever Production of Allyl Chloride Agency (EPA). ‘‘we’’ is used throughout this document, F. What is the Status of Landfill Leachate Derived from Newly-listed K175? ACTION: Final rule. it refers to the Environmental Protection G. Population Risks Agency (EPA). H. Which Constituents are Being Added to SUMMARY: The Environmental Protection The index and some supporting Appendix VIII of 40 CFR part 261? Agency (EPA) is listing as hazardous materials for this rulemaking are I. What are the Land Disposal Restrictions two wastes generated by the chlorinated available on the Internet. Follow these Standards for the Newly-Listed Wastes? aliphatics industry. EPA is finalizing instructions to access these documents. J. Is There Treatment Capacity for the these regulations under the Resource WWW: http://www.epa.gov/epaoswer/ Newly-Listed Wastes? Conservation and Recovery Act (RCRA), hazwaste/id VII. What is the Economic Analysis of which directs EPA to determine FTP: ftp.epa/gov Today’s Final Rule? whether certain wastes from the Login: anonymous A. What is the Purpose of the Economic chlorinated aliphatics industry may Password: your Internet address Analysis? Files are located in /pub/gopher/ B. How Did the Public Participate in the present a substantial hazard to human Economic Analysis? health or the environment. The effect of OSWRCRA C. What are the Expected Economic listing these two wastes is to subject EPA will keep the official record for Impacts of this Final Rule? them to stringent management and this action in paper form. The official VIII. When Must Regulated Entities Comply treatment standards under RCRA and to record is the paper record maintained at With Today’s Final Rule? subject them to emergency notification the address in ADDRESSES at the A. Effective Date requirements for releases of hazardous beginning of this document. B. Section 3010 Notification substances to the environment. EPA is The contents of the preamble to this C. Generators and Transporters finalizing a contingent-management final rule are listed in the following D. Facilities Subject to Permitting outline: IX. How Will This Rule be Implemented at listing approach for one of these wastes. the State Level? Under the contingent management I. Who Potentially Will Be Affected By A. Applicability of Rule in Authorized listing determination, the waste will not Today’s Final Rule? States be a listed hazardous waste, if it is sent II. What Is The Legal Authority and B. Effect on State Authorizations to a specific type of management Background of Today’s Final Rule? X. What Are the Reportable Quantity A. What Are the Statutory Authorities for Requirements For Newly-Listed Wastes facility. EPA also is finalizing This Rule? determinations not to list as hazardous (K174 and K175) under the B. Schedule Suit Comprehensive Environmental four wastes generated by the chlorinated III. Summary of Today’s Action Response, Compensation, and Liability aliphatics industry. IV. What Proposed Listing Determinations Act (CERCLA)? Led to Today’s Final Rule? EFFECTIVE DATE: This final rule is A. What is the Relationship Between RCRA A. What was the Proposed Listing effective May 7, 2001. and CERCLA? Determination for Chlorinated Aliphatic ADDRESSES: Supporting materials are Wastewaters? B. Is EPA Adding Chlorinated Aliphatic available for viewing in the RCRA B. What Were the Proposed Listing Wastes to the table of CERCLA Information Center (RIC), located at Determinations for Wastewater hazardous substances? Crystal Gateway I, First Floor, 1235 Treatment Sludges? C. How Does EPA Determine Reportable Quantities? Jefferson Davis Highway, Arlington, VA. C. Which Constituents did EPA Propose to Add to Appendix VIII of 40 CFR part 261 D. When Do I Need to Report a Release of The Docket Identification Number is F– K174 or K175 Under CERCLA? 2000–CALF–FFFFF. The RIC is open D. What Were the Proposed Treatment Standards Under RCRA’s Land Disposal E. What if I Know the Concentration of the from 9 a.m. to 4 p.m., Monday through Restrictions Standards? Constituents in My Waste? Friday, excluding federal holidays. To E. What Risk Assessment Approach was F. How Did EPA Determine the RQs for review docket materials, it is used for Proposed Rule? K174 and K175 and Their Hazardous recommended that the public make an V. What Changes Were Made to the Proposed Constituents? appointment by calling (703) 603–9230. Rule? G. How Do I Report a Release? The public may copy a maximum of 100 A. Listing Determination for Chlorinated H. Is CERCLA Reporting Required for Spills of EDC/VCM Wastewater pages from any regulatory docket at no Aliphatic Wastewaters B. Modification of Wastewater Treatment Treatment Sludge That (Prior to the charge. Additional copies cost $0.15/ Unit Exemption and Application of Spill) Does Not Meet the Listing page. The index and some supporting Subpart CC Requirements for Tanks Description for K174? materials are available electronically. Managing Chlorinated Aliphatic I. What is the Statutory Authority for This See the beginning of the Supplementary Wastewaters Program?

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XI. What Are the Administrative current (baseline) waste management As defined in the Economics Assessments? practices in this industry, EPA Background Document prepared for A. Executive Order 12866 anticipates that three of the 18 chemical today’s final rule, ‘‘targeted effects’’ are B. Regulatory Flexibility Act the anticipated costs of the final rule C. Paperwork Reduction Act manufacturing facilities subject to the D. Unfunded Mandates Reform Act final rule as generators of K174 and incurred by the unique class of E. Executive Order 13132: Federalism K175 hazardous wastes, will incur costs industrial facilities that generate the F. Executive Order 13084: Consultation to modify their current waste newly listed hazardous wastes K174 and and Coordination with Indian Tribal management practices, while the K175. ‘‘Induced effects’’ are anticipated Governments remaining 15 facilities will incur only costs of direct, indirect or secondary G. Executive Order 13045: Protection of minimal regulatory costs, primarily impacts the final rule may have on Children from Environmental Risks and associated with documentation of entities linked economically to the Safety Risks current waste management practices. In targeted facilities such as offsite waste H. National Technology Transfer and management facilities, and on entities Advancement Act of 1995 addition, EPA anticipates that four I. Executive Order 12898: Environmental management facilities which are likely affected by other Justice also will be affected by the final rule generic provisions of the final rule, such J. Congressional Review Act due to potential changes in the annual as states with RCRA authorized quantities of hazardous wastes handled programs which will implement and I. Who Potentially Will Be Affected by enforce the rule. ‘‘Incidental effects’’ are Today’s Final Rule? and associated changes to business revenues that will be the result of anticipated consequential impacts on Today’s final rule could directly affect modifications to current waste other types of entities, such as on other those who generate and handle the management practices to comply with chemical manufacturers (to read the rule), other Federal agencies (to read the types of chlorinated aliphatic the provisions of today’s final rule. hydrocarbon production wastes that rule), and other non-governmental EPA is adding to the Agency’s list of In addition to waste generators organizations (such as industry trade hazardous industrial wastes under targeted by the rule, because of RCRA’s associations to read and propagate the RCRA. Although there are an estimated ‘‘cradle-to-grave’’ statutory design, EPA rule to its member companies). 39 chlorinated aliphatic hydrocarbon anticipates that four waste handlers EPA’s estimate of expected regulatory chemical manufacturing facilities in the (three for the K174 listing and one for costs for these 116 potentially affected United States as of 1999, the K174 and the K175 listing) are likely to experience entities, is described in EPA’s K175 listing final rule only applies to 18 ‘‘induced effects’’ from this final rule. In ‘‘Economics Background of these facilities (17 for the K174 listing addition, EPA’s regional offices and Document’(USEPA 2000a) 1 for this final and one for the K175 listing), which states with RCRA-authorized programs rule, which is available for public manufacture two such chemicals; potentially will incur some costs review from the RCRA Docket. A ethylene dichloride (EDC) and vinyl because they must administer new summary of the potentially affected chloride monomer (VCM). Furthermore, RCRA listings. Several additional industry sectors (by respective SIC and because of the final rule’s ‘‘conditional stakeholders also will have to read the NAICS codes) is displayed in the table listing’’ approach, in comparison to final rule. below.

SUMMARY OF ENTITIES POTENTIALLY AFFECTED BY THE RCRA K174/K175 FINAL RULE

Economic sector classification Number entities potentially affected Item SIC NAICS Description Targeted Induced Incidental Total

1 ...... 2869 32511 Industrial organic chemical manufacturers* (waste 18 0 21 39 generators). 2 ...... 4953 562211 Hazardous & disposal (waste han- 0404 dlers). 3 ...... 9511 92411 State government environmental departments (public 049049 administration). 4 ...... 9511 92411 Federal government offices (environmental, economic 011112 9611 92611 & transportation public administration). 9621 92612 5 ...... 8742 54161 Management consulting services (non-governmental 0 0 12 12 organizations).

Total ...... 18 64 34 116 Explanatory Notes: (a) *Parent company codes may differ from the codes associated with the facility units targeted by the rule. (b) This list of sector classification codes for ``induced effect'' entities may not be exhaustive for at least two reasons: ∑ Non-hazardous and hazardous industrial transporters (SIC 4212, 4953, NAICS 562111, 562112) may be affected, depend- ing upon whether waste collected from K174/K175 generators is transported by waste treatment/disposal facilities, or by separate, unaffiliated transporter companies. ∑ If waste remediation is required, such entities may be affected (SIC 4959, NAICS 56291).

1 USEPA. 2000a. Economics Background Chlorinated Aliphatic Chemical Manufacturing K175: Industry Profile and Estimation of Regulatory Document, USEPA Final Rule Listing Industrial Facilities, as RCRA Hazardous Wastecodes K174 & Costs. Office of Solid Waste. 31 July. Wastewater Treatment Sludges Generated by

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The list of potentially affected entities wastewater and wastewater treatment itself a RCRA hazardous waste (40 CFR in the above table may not be sludges subject to the consent decree are 261.3(a)(2)(iv), ‘‘the mixture rule’’). exhaustive. Our aim is to provide a those from the production of In today’s notice, the Agency is guide for readers regarding those chlorinated aliphatics for which other promulgating an alternative approach to entities that EPA is aware potentially process wastes already have been listing wastewater treatment sludges could be affected by this action. designated as hazardous waste F024 in from the production of ethylene However, this action may affect other 40 CFR 261.31. According to the dichloride or vinyl chloride monomer entities not listed in the table. To consent decree, EPA was required to (EDC/VCM), rather than listing this determine whether your facility is propose listing determinations by July waste in accordance with the Agency’s regulated by this action, you should 30, 1999 and promulgate final listing traditional listing approach. The Agency examine 40 CFR part 260 and 261 determinations on or before September is promulgating a conditional listing carefully in concert with the rules 30, 2000. Today EPA is promulgating approach because the Agency evaluated amending RCRA that are found at the listing determinations for these wastes the ways in which the wastes are likely end of this Federal Register notice. If in accordance with the consent decree. to be managed and determined that the you have questions regarding the waste may present significant risks to III. Summary of Today’s Action applicability of this action to a human health and the environment, particular entity, consult the person In today’s notice, EPA is promulgating although it concluded that a particular listed in the preceding section entitled regulations that add two wastes waste management practice is protective FOR FURTHER INFORMATION CONTACT. generated by the chlorinated aliphatics of human health and the environment. industry to the list of hazardous wastes Under the conditional listing approach, II. What Is the Legal Authority and in 40 CFR 261.32. Below are the EPA is listing the waste as hazardous Background of Today’s Final Rule? wastestreams EPA is listing as only if the waste is managed in a way A. What Are the Statutory Authorities hazardous with their corresponding other than the manner in which the for This Rule? EPA Hazardous Waste Numbers. Agency has determined is protective of human health and the environment. In These regulations are being K174 Wastewater treatment sludges from developing this conditional-listing promulgated under the authority of the production of ethylene dichloride or vinyl chloride monomer (EDC/VCM) approach, the Agency has determined sections 2002(a), 3001(b), 3001(e)(2) and that wastes that fall outside the scope of 3007(a) of the Solid Waste Disposal Act, K175 Wastewater treatment sludges from the production of vinyl chloride monomer the listing description (e.g., are destined 42 U.S.C. 6912(a), 6921(b) and (e)(2), using mercuric chloride catalyst in an for the appropriate type of disposal) are and 6927(a) as amended several times, acetylene-based process non-hazardous when generated. most importantly by the Hazardous and However, if it turns out that the waste EPA is listing these wastes as Solid Waste Amendments of 1984 actually is not handled in accordance hazardous based on the criteria set out (HSWA). These statutes commonly are with the conditions of the listing at any in 40 CFR 261.11(a)(3) for listing a waste referred to as the Resource Conservation point in its management, the generators as hazardous. EPA assessed and and Recovery Act (RCRA), and are or other handlers of the waste will be considered these criteria for each of six codified at Volume 42 of the United subject to enforcement actions. The wastestreams generated by the States Code (U.S.C.), sections 6901 to conditional-listing approach being chlorinated aliphatics industry through 6992(k) (42 U.S.C. 6901–6992(k)). promulgated today for certain wastes the use of risk assessments and risk Section 102(a) of the Comprehensive generated from chlorinated aliphatics modeling, as well as a consideration of Environmental Response, processes is further discussed in section other pertinent factors. Today’s final Compensation, and Liability Act of 1980 VI.B. of today’s rule. listing determination follows the (CERCLA), 42 U.S.C. 9602(a) is the Today’s action also promulgates no elements of the Agency’s listing authority under which the CERCLA list decisions for the following four decision policy that was presented in aspects of this rule are being wastes: promulgated. the proposed listing determination for • Process wastewaters from the wastes generated by the dye and B. Schedule Suit production of chlorinated aliphatics pigment industries published in the (other than wastewaters from the In 1989, the Environmental Defense Federal Register on December 22, 1994 production of vinyl chloride monomer Fund (EDF) 2 sued the Environmental (see 59 FR at 66073). This policy uses using mercuric chloride catalyst in an Protection Agency (EPA), in part for a ‘‘weight-of-evidence’’ approach in acetylene-based process), failing to meet the statutory deadlines of which calculated risk information is a • Process wastewaters from the Section 3001(e)(2) of RCRA (EDF vs. key factor considered in making a listing production of vinyl chloride monomer Browner; Civ. No. 89–0598 D.D.C.). To determination. using mercuric chloride catalyst in an resolve most of the issues in the case, Upon the effective date of the acetylene-based process, EDF and EPA entered into a consent hazardous waste listings promulgated • Wastewater treatment sludges from decree, which has been amended today, wastes meeting the listing the production of methyl chloride, and several times to revise dates. The descriptions will become hazardous • Wastewater treatment sludges from consent decree sets out deadlines for wastes and need to be managed in the production of allyl chloride. promulgating certain RCRA rules and accordance with RCRA subtitle C EPA considers the listing criteria set for completing certain studies and requirements. Residuals from the out in 40 CFR 261.11, in light of reports. The consent decree obliges EPA treatment, storage, or disposal of the information relevant to the criteria, in to propose a hazardous waste listing wastewater treatment sludges proposed making listing determinations. The determination for wastewaters and to be listed as hazardous also will be criteria provided in 40 CFR 261.11 wastewater treatment sludges generated classified as hazardous wastes pursuant include eleven factors for determining from the production of specified to the ‘‘derived-from’’ rule (40 CFR whether a waste is capable of posing a chlorinated aliphatic chemicals. The 261.3(c)(2)(i)). Also, with certain limited ‘‘substantial present or potential hazard exceptions, any mixture of a listed to human health and the environment.’’ 2 Now known as Environmental Defense. hazardous waste and a solid waste is Nine of these factors, as described

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This document is wastewaters generated from the benchmarks used in the risk assessment located in the docket for today’s final production of vinyl chloride monomer modeling. rule. using mercuric chloride catalyst in an • Constituent concentrations and acetylene-based process, into a single IV. What Proposed Listing waste quantities (§§ 261.11(a)(3)(ii) and waste category for the listing Determinations Led to Today’s Final 261.11(a)(3)(viii)) are used to define the determination investigation. We Rule? initial conditions for the risk evaluation. decided to study these wastewaters • Potential to migrate, persistence, In the August 25, 1999 proposed rule collectively because most chlorinated degradation, and bioaccumulation of the (64 FR 46476), EPA proposed to list aliphatic manufacturers commingle hazardous constituents and any three wastes generated by the wastewaters generated by individual degradation products chlorinated aliphatics production processes prior to treating the (§§ 261.11(a)(3)(iii), 261.11(a)(3)(iv), industry as hazardous wastes under wastewaters in a common wastewater 261.11(a)(3)(v), and 261.11(a)(3)(vi)) are RCRA. The wastes the Agency proposed treatment system. In addition, many all considered in the design of the fate to list as hazardous included process wastewaters generated from the and transport models used to determine chlorinated aliphatics manufacturing production of chlorinated aliphatic the concentrations of the contaminants process wastewaters, wastewater hydrocarbons contain similar to which individuals are exposed. treatment sludges generated from the constituents of concern. We consider two of the remaining treatment of wastewaters from the EPA proposed to list as hazardous factors, plausible mismanagement and production of ethylene dichloride and/ process wastewaters generated from the other regulatory actions or vinyl chloride monomer (EDC/VCM), production of chlorinated aliphatic (§§ 261.11(a)(3)(vii) and 261.11(a)(3)(x)) and wastewater treatment sludges from hydrocarbons (other than those in establishing the waste management the treatment of wastewaters from the wastewaters generated from the scenario(s) modeled in the risk production of vinyl chloride monomer production of vinyl chloride monomer assessment. using mercuric chloride catalyst in an using mercuric chloride catalyst in an EPA conducted analyses of the risks acetylene-based process (VCM–A). EPA acetylene-based process). Results of the posed by wastewaters and wastewater proposed a conditional listing approach risk assessment conducted in support of treatment sludges from the production for EDC/VCM wastewater treatment the proposed rule, indicated that the of chlorinated aliphatic chemicals to sludges, based upon available wastewaters met the criteria set out at assist in the determination of whether information regarding the management 40 CFR 261.11(a)(3) for listing a waste the wastes meet the criteria for listing of these sludges and the results of the as hazardous. Risk assessment results set forth in 40 CFR 261.11(a)(3). In the Agency’s risk assessment. identified risks of concern associated preamble to the proposed rule (64 FR In connection with the proposed with air releases of dioxins from 46476), we discussed the human health listings, EPA proposed to amend wastewater treatment systems using risk analyses and ecological risk Appendix VIII of 40 CFR Part 261 to add aerated biological treatment in open screening analyses EPA conducted to two constituents, octachlorodibenzo-p- tanks. support our proposed listing dioxin (OCDD) and EPA proposed not to list as hazardous determinations for chlorinated octachlorodibenzofuran (OCDF). These process wastewaters generated from the aliphatics wastewaters, EDC/VCM constituents are found in chlorinated production of vinyl chloride monomer wastewater treatment sludges, and aliphatic wastewaters and in EDC/VCM using mercuric chloride catalyst in an methyl chloride wastewater treatment wastewater treatment sludges. acetylene-based process (VCM–A sludges. These analyses, as well as In the proposed rule, the Agency also wastewaters). EPA proposed not to list comments EPA received on the proposed not to list as hazardous this waste as hazardous due to the fact analyses, are further discussed in this wastewater treatment sludges generated that the wastewater exhibits the toxicity notice in section VI below. We from the treatment of wastewaters from characteristic for both mercury and considered the results of the risk the production of methyl chloride and vinyl chloride. Therefore, the analyses, as well as comments received, the production of allyl chloride. In wastewater already is defined as and the results of analyses conducted in addition, the Agency proposed not to hazardous waste. In addition, any risks response to information provided by list process wastewaters from the associated with the management and public commenters in finalizing our production of vinyl chloride monomer disposal not addressed by RCRA (i.e., listing decisions for each wastestream. using mercuric chloride catalyst in an direct discharge) of the wastewaters are The risk analyses conducted in support acetylene-based process. addressed by other environmental of our proposed listing determination The Agency proposed to add to the regulations. With respect to the are presented in detail in the Risk list of CERCLA hazardous substances discharge of this wastewater, the facility Assessment Technical Background those wastes that were proposed to be treats and discharges the wastewater in Document for the Chlorinated listed as hazardous. EPA also proposed compliance with the conditions of a Aliphatics Listing Determination and in adjusted Reportable Quantities (RQs) for NPDES permit. Regarding any air the 1999 Addendum to Risk Assessment each waste. emissions of vinyl chloride from these Technical Background Document for the wastewaters, vinyl chloride is a Chlorinated Aliphatics Listing A. What Was the Proposed Listing hazardous air pollutant, therefore the Determination which are located in the Determination for Chlorinated Aliphatic facility is subject to the National docket for the proposed rule. Additional Wastewaters? Emissions Standards for Hazardous Air information and analyses conducted As explained in Section III.A.1. of the Pollutants (NESHAP) requirements with regard to our original risk proposed rule (64 FR 46479), the specific to vinyl chloride emissions (40 assessment in response to comments Agency segregated wastewaters from the CFR 61.65), as well as the Hazardous

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Organic NESHAP for the synthetic and significant risks are posed from management of methyl chloride sludges organic chemical manufacturing managing EDC/VCM wastewater in an on-site landfill. industry sector (40 CFR Part 63, subpart treatment sludges in a landfill, the 4. Allyl Chloride Wastewater Treatment G)(59 FR 19468, April 22, 1994). For Agency sees no reason to include Sludges these reasons, the Agency proposed not sludges managed in this manner in the to list VCM–A wastewaters as hazardous scope of the hazardous waste listing. EPA proposed not to list as hazardous waste. Additionally (and after consideration of sludges generated from treating the predicted risk differential between wastewaters associated with the B. What Were the Proposed Listing land treatment and landfilling), because manufacture of allyl chloride. The Determinations for Wastewater only one facility identified in the RCRA Agency identified no risks of concern Treatment Sludges? 3007 Survey employs land treatment for associated with the current management 1. EDC/VCM Wastewater Treatment these wastes, this practice is somewhat of the waste. Sludges anomalous compared with land Only one facility generates disposal. The Agency proposed that it wastewater treatment sludge from the EPA proposed to list as hazardous does not make sense to apply a production of allyl chloride, and this sludges generated from treating traditional listing approach (i.e., list all facility does not currently manage the wastewaters from the production of wastes regardless of management sludge as hazardous waste. The sludge ethylene dichloride (EDC) and/or vinyl practice) based upon a practice is generated from the treatment of chloride monomer (VCM). The Agency occurring at one facility, especially if a commingled wastewaters managed at proposed to list this waste due to the more tailored listing can prevent this the facility’s centralized wastewater fact that the Agency identified risks of risk. treatment system. This wastewater concern associated with the treatment system is a non-dedicated management of this waste in a land 2. VCM–A Wastewater Treatment system in that wastewaters from the treatment unit. Our risk assessment Sludges facility’s multiple production processes identified dioxin and arsenic as EPA proposed to list as hazardous are discharged to the single system for contaminants of concern, and found that wastewater treatment sludges from the combined treatment. Wastewaters from high-end cancer risk to the farmer production of vinyl chloride monomer the production of allyl chloride receptor from dioxin was 2E–04. The using mercuric chloride catalyst in an contribute less than two percent to the dioxin risks are associated with airborne acetylene-based process (VCM–A). EPA system’s total sludge loading. The releases and subsequent deposition and proposed to list this waste as hazardous sludge generated from the facility’s food chain contamination from dioxin. based upon the fact that it exhibited the wastewater treatment system is Surface erosion due to runoff also toxicity characteristic for mercury when incinerated on site in a non-hazardous contributes to risk from dioxin. The risk sampled by the Agency and based upon waste incinerator. assessment results for the land the Agency’s assessment of potential TCLP analyses of the sludge treatment unit scenario indicated a risk risks from this waste, given its high conducted by EPA indicated the level above EPA’s levels of concern for mercury content and given the presence of no TCLP constituents above dioxin. uncertainties associated with the regulatory levels. As explained in the The risk assessment for EDC/VCM disposal of untreated wastes of potential proposal, the Agency does not wastewater treatment sludges also high toxicity in lined . anticipate any significant risk from the included modeling a landfill of allyl chloride wastewater 3. Methyl Chloride Wastewater management scenario. Our risk treatment sludge in a non-hazardous Treatment Sludges assessment showed no significant risk waste incinerator, since both the total from dioxin, and only marginal risk EPA proposed not to list as hazardous arsenic level and the dioxin level from arsenic associated with the sludges from the treatment of detected in the sludge are well within groundwater pathway. Based upon the wastewaters generated from methyl typical soil background levels for these Agency’s findings that EDC/VCM chloride production processes. The constituents. wastewater treatment sludges pose results of our risk assessment indicated significant risks when managed in land that this waste does not pose a C. Which Constituents Did EPA Propose treatment units but do not pose substantial present or potential hazard To Add to Appendix VIII of 40 CFR Part significant risks when managed in to human health or the environment. As 261? landfills, the Agency proposed a explained in the proposal, EPA EPA proposed to add two ‘‘contingent management listing’’ for identified only one facility that constituents, octachlorodibenzo-p- this waste. EPA proposed to list EDC/ generates sludges from the treatment of dioxin (OCDD) and VCM wastewater treatment sludges as wastewaters from the production of octachlorodibenzofuran (OCDF) to the hazardous, unless the sludges are methyl chloride and does not currently list of hazardous constituents at 40 CFR managed in landfills. manage the waste as hazardous. This part 261, Appendix VIII. These two As explained in the proposal, the facility generates less than 800 metric constituents of concern are present in Agency believes that allowing the waste tons of this sludge each year and the EDC/VCM wastewater treatment to continue to be managed under a low disposes of the sludge in an on-site sludges and the chlorinated aliphatic risk management scenario (i.e., non- landfill along with other wastes from wastewaters that the Agency proposed hazardous waste landfilling) outside of the facility. The landfill is lined and has to list as hazardous. OCDD and OCDF the subtitle C system achieves a leachate collection system. The are members of the large family of protection of human health and the Agency analyzed potential risks from polychlorinated dioxins and furans. The environment, and that little additional methyl chloride wastewater treatment Agency proposed to add these two benefit will be gained by requiring that sludge by modeling non-groundwater dioxin congeners to Appendix VIII of 40 all EDC/VCM wastewater treatment pathways and conducting a screening CFR part 261 because they are sludges be managed in accordance with analysis for groundwater pathway risk. constituents of concern in the wastes RCRA subtitle C management standards. The Agency concluded that no proposed to be listed as hazardous, Given the Agency’s finding that no significant risks are posed by the studies showed that OCDD and OCDF

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations 67073 have toxic effects and are therefore TCLP mercury is achieved using any updated to include the constituents of hazardous, and EPA also noted that technology other than impermissible newly listed wastes. OCDD and OCDF are the only congeners dilution. E. What Risk Assessment Approach Was that make up 2,3,7,8-tetrachlorodibenzo- In the proposal, the Agency explained Used for the Proposed Rule? p-dioxin (2,3,7,8-TCDD or ‘‘TCDD’’) that the solubility of the mercury in toxic equivalence (TEQ) that are not K175 (in the form of mercuric sulfide) EPA conducted human health risk currently listed in Appendix VIII. varies as a function of pH. In fact, above analyses for chlorinated aliphatics pH 6.0 the presence of sulfide wastewaters, EDC/VCM wastewater D. What Were the Proposed Treatment complexes results in significantly treatment sludges and methyl chloride Standards Under RCRA’s Land Disposal increased solubility. Therefore, wastewater treatment sludges that Restrictions Standards? controlled treatment and disposal pH provided estimates of the incremental In the proposal, EPA proposed to conditions were proposed to avoid human health risks resulting from apply existing universal treatment mobilization of the mercury in the exposure to contaminants detected in standards (UTS) to the regulated waste. To insure operational stability of these wastes. The incremental human hazardous constituents of concern in the the treatment process and proper long- health risks were expressed as estimates wastes that were proposed to be listed term disposal, EPA proposed two of excess lifetime cancer risk for as K173 (chlorinated aliphatic conditions as part of the LDR treatment carcinogenic (cancer-causing) wastewaters) and K174 (EDC/VCM standards. First, the waste would have contaminants and hazard quotients wastewater treatment sludges). For K175 to be treated to (or otherwise be (HQs) for those contaminants that (VCM–A wastewater treatment sludges), generated to meet) a pH of 6.0 or below. produce noncancer health effects. EPA proposed a metals recovery Second, EPA proposed that if K175 were EPA used two different methods of requirement, roasting and retorting, as to be co-disposed in a landfill with analysis to estimate risks. These the treatment standard. Since treatment other wastes, co-disposal would be methods are called ‘‘deterministic risk residuals would exist after mercury restricted to wastes with similar pH (i.e., analysis’’ and ‘‘probabilistic risk recovery, EPA proposed the residuals pH not greater than 6.0). EPA proposed analysis.’’ A deterministic risk analysis meet existing UTS prior to land that disposal facilities be required to produces a point estimate of risk or disposal. Information available to the certify and maintain operating records hazard for each receptor based on using Agency at the time of the proposal demonstrating compliance with this a single value for each parameter in the indicated that each of the wastes disposal condition. analysis. A probabilistic analysis proposed to be listed as hazardous, as EPA also proposed to add the calculates risk or hazard by allowing well as the treatment residuals, could be numerical standards derived for the some of the parameters to have more managed in existing treatment and 1,2,3,4,6,7,8-heptachlorodibenzo-p- than one value, consequently producing reclamation units that routinely manage dioxin; 1,2,3,4,6,7,8- a distribution of risk or hazard for each similar or as-difficult-to-treat hazardous heptachlorodibenzofuran;, 1,2,3,4,7,8,9- receptor. wastes that currently are prohibited heptachlorodibenzofuran; EPA conducted both ‘‘central from land disposal. The BDAT 1,2,3,4,6,7,8,9-octachlorodibenzo-p- tendency’’ and ‘‘high end’’ deterministic background document provided dioxin (OCDD); and 1,2,3,4,6,7,8,9- risk assessments to attempt to quantify detailed information on EPA’s rationale octachlorodibenzofuran (OCDF) to the the cancer risk or non-cancer hazard for for proposing to apply UTS to the Table of Universal Treatment Standards the typical receptor in the population wastes and for proposing a treatment (UTS) at 40 CFR 268.48. As explained (the central tendency risk) and the risk standard of metals recovery to K175. in the proposal, these constituents have or hazard for individuals in small, but In the case of hazardous debris been shown to have the potential to definable ‘‘high end’’ segments of the contaminated with proposed K173, cause significant risks to human health population (the high end risk). In the K174 and K175, EPA proposed that the or the environment and their presence case of the central tendency provisions in 40 CFR 268.45 apply to in wastes should be mitigated to avoid deterministic risk analyses, we set all the treatment and disposal of hazardous such potential risks. EPA proposed that parameters at their central tendency debris. Hazardous debris treated in all characteristic wastes which have values. For the chlorinated aliphatics accordance with the provisions of 40 these constituents as underlying risk assessments, the central tendency CFR 268.45 may be allowed for land hazardous constituents above the UTS values generally were either mean disposal in a hazardous waste disposal be required to be treated to UTS levels (average) or 50th percentile (median) facility. As a result, debris contaminated for those constituents before land values. with proposed K173, K174, and K175 disposal. We used high end deterministic risk would be required to be treated prior to Furthermore, EPA proposed that the analysis to predict the risks and hazards land disposal, using specific debris constituents 1,2,3,4,6,7,8- for those individuals exposed at the treatment technologies such as heptachlorodibenzo-p-dioxin; upper range of the distribution of extraction, destruction, or 1,2,3,4,6,7,8-heptachlorodibenzofuran; exposures. EPA’s Guidance For Risk immobilization. Residuals generated 1,2,3,4,7,8,9-heptachlorodibenzofuran; Characterization (EPA 1995) 3 advises from the treatment of contaminated OCDD; and OCDF be added to the list that ‘‘conceptually, high end exposure debris would have to meet the of regulated constituents in hazardous means exposure above about the 90th waste F039 multisource leachate. F039 applicable UTS limits proposed for percentile of the population applies to multiple listed hazardous K173, K174, and K175. distribution, but not higher than the In the case of proposed K175, EPA waste landfill leachates in lieu of the individual in the population who has proposed an alternative treatment original waste codes, and F039 wastes the highest exposure,’’ and recommends standard. The alternative standard are subject to all numerical treatment that ‘‘* * * the assessor should proposed was to subject K175 to a standards applicable to all listed wastes. approach estimating high end by numerical concentration limit of 0.025 To maintain the regulatory mg/L TCLP mercury. Under the implementation benefits of having one 3 EPA. 1995. Guidance for Risk Characterization. alternative proposal, K175 could be land waste code for multisource leachate, the U.S. Environmental Protection Agency Science disposed if a standard of 0.025 mg/L treatment standards for F039 must be Policy Council. February.

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 67074 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations identifying the most sensitive variables V. What Changes Were Made to the also adjusted our analysis to reflect the and using high end values for a subset Proposed Rule? variability of dioxin concentrations in of these variables, leaving others at their As a result of comments and air over an area that would be more central values.’’ For the chlorinated additional information provided to the consistent with the area of a pasture aliphatics high end deterministic risk Agency in response to the proposed where cattle graze. In addition we were analyses, EPA set two parameters at rule, we made certain modifications to convinced by commenters that our their high end values (generally 90th the risk modeling assumptions used in modeling assumptions should have percentile values), and set all other the risk assessment for the proposed accounted for the removal of wastewater parameters at their central tendency rule. Changes made to the risk analysis solids prior to wastewaters entering values. We used a ‘‘sensitivity analysis’’ resulted in changes in our risk aerated biological treatment tanks. After we accounted for these to identify the two parameters that we assessment results. These changes modifications, our adjusted risk set at high end. subsequently caused us to re-evaluate, assessment results indicated that the EPA used probabilistic risk and in some instances change, our management of chlorinated aliphatic assessment to support the results of the proposed listing determinations. These wastewaters in aerated biological deterministic risk analyses and to allow changes and the consequent scope of treatment tanks do not pose substantial us to quantify individual risk at selected today’s final action are described below. risks to human health and the percentiles of the risk distribution (for Detailed reasoning behind these changes environment. The Agency has and a summary of each of our final example, 50th percentile, 90th concluded that available information listing determinations is provided in percentile, 95th percentile). EPA provides sufficient basis to determine Section VI. conducted probabilistic risk analyses for that chlorinated aliphatic wastewaters those combinations of receptor, A. Listing Determination for Chlorinated should not be listed as hazardous waste. contaminant, and pathway for which Aliphatic Wastewaters A more detailed discussion of the issues raised by public commenters and the risk or hazard estimated using a high In response to comments and modifications made to our risk end deterministic analysis exceeded the information provided by commenters in assessment results to account for some following criteria: a cancer risk of response to the proposed rule, the ¥ of these issues is provided in Section VI 1×10 6 or a hazard quotient of 1. The Agency examined the record and Risk Assessment Technical Background below. reconsidered the risk assessment and The final listing determination for Document for the Chlorinated proposed listing determination for chlorinated aliphatic wastewaters is Aliphatics Listing Determination chlorinated aliphatic wastewaters. based upon EPA’s consideration and describes the input parameters used in Commenters to the proposed rule review of public comments submitted in the probabilistic analysis. In the provided detailed comments on the risk response to the proposed listing probabilistic analysis, risk was assessment approach used to evaluate determination, and other relevant approximated through repetitive the potential risks from the management information available to the Agency and calculation of the fate and transport and of chlorinated aliphatic wastewaters in in the rulemaking record. The final exposure equations and models using aerated biological treatment tanks. determination is based on the Agency’s input parameters randomly selected These comments generally fell into one evaluation as to whether the waste from the Probability Density Functions of six topic areas: concern about the meets the criteria in 40 CFR 261.11(a)(3) (PDFs). The result of the probabilistic waste management scenarios EPA for listing wastes as hazardous. We have analysis is a distribution of the risks or evaluated; concern about the exposure assessed and considered the factors hazards for each of the receptors. scenarios EPA evaluated; EPA’s contained in these criteria primarily by methods for calculating exposure point The human health risk assessments incorporating them as elements in the concentrations; the way that EPA that EPA conducted to support the revised risk assessment, which is based estimated exposure; EPA’s assessment chlorinated aliphatics listing on the methodology described in the of contaminant toxicity; and EPA’s determination included five primary preamble to the proposed rule and characterization of estimated risks. To subsequent modifications described in tasks: (1) Establishing that there are fully respond to critical issues raised by constituents in the wastes that are of this preamble and the support commenters, EPA decided to make documents in the rulemaking record. concern to the Agency and that warrant modifications to some modeling analysis to determine their risk to EPA bases its final listing assumptions and data inputs used in the determinations on the entire rulemaking human health; (2) establishing a risk assessment for the proposed rule. record, including applicable sections of scenario under which contaminants are Modifications were made to fully the preamble to the proposed rule, released from a waste management unit consider the potential impacts of those analyses and background documents and subsequently are transported in the issues raised by commenters that the developed for the proposed rule, the environment to a human receptor; (3) Agency found to have merit. In Agency’s responses to the comments on estimating the concentrations of addition, we evaluated the merits of significant issues raised in the preamble contaminants to which the receptor other suggestions provided by to the proposal, and all other relevant might be exposed; (4) quantifying the commenters, and found these to be of no information available to the Agency. receptor’s exposure to contaminants and importance to the listing determination, the contaminants’ toxicity to the or we disagreed with the suggested B. Modification of Wastewater receptor; and (5) describing the changes. Specifically, we agreed with Treatment Unit Exemption and receptor’s predicted risk. The preamble commenters who pointed out that the Application of Subpart CC to proposed rule provided a detailed intake rates that we used to calculate Requirements for Tanks Managing discussion of how EPA completed each exposure to beef should have accounted Chlorinated Aliphatic Wastewaters of these tasks for the risk assessments for the mass of beef that is lost during Because we are not finalizing the conducted to support the chlorinated cooking and post-cooking activities (for listing for chlorinated aliphatic aliphatics listing determination (see 64 example, dripping and volatile losses, wastewaters as proposed, the proposed FR 46483). bones, excess fat, , and juices). We amendments to regulations for tanks

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations 67075 managing chlorinated aliphatic VI. What is the Rationale for Today’s Given the Agency’s finding, we are wastewaters are not necessary and are Final Rule, and What Are EPA’s not finalizing the proposed amendment not being finalized in today’s rule. This Responses to the Comments? to the existing wastewater treatment unit exemption (40 CFR 264.1(g)(6) and includes the proposed amendments to A. Chlorinated Aliphatic Wastewaters the wastewater treatment unit 265.1(c)(10)). In addition, the Agency is (Other Than Wastewaters From the not finalizing the proposed requirement exemption in 40 CFR 264.1 and 265.1, Production of VCM–A Using Mercuric as well as the proposed amendments to that wastewater treatment units used to Chloride Catalyst in an Acetylene-Based treat chlorinated aliphatic wastewaters the 40 CFR parts 264 and 265 subpart Process) CC requirements for implementing the comply with specific RCRA air tank cover requirements and the waste The sections that follow provide a emissions standards. Today’s decision not to list sampling and analysis requirements. discussion of the comments received by the Agency in response to the EPA’s chlorinated aliphatic wastewaters C. Landfill Leachate Derived From proposal to list chlorinated aliphatic applies to all chlorinated aliphatic Previously Disposed VCM–A Wastewater wastewaters as hazardous waste, the wastewaters, including wastewaters Treatment Sludges Agency’s response to these comments, managed in underground injection and the impact of the comments on the control units. As explained further In the proposal, EPA proposed Agency’s evaluation of risk and the final below, in the case of chlorinated amending the existing exemption from listing determination. aliphatic wastewaters managed in the definition of hazardous waste (40 surface impoundments, although the CFR 261.4(b)(15)) to include leachate 1. Summary of the Agency’s Listing wastewaters are not listed hazardous derived from non-hazardous waste Decision for Chlorinated Aliphatic wastes, sludges derived from EDC/VCM landfills that previously accepted Wastewaters process wastewaters and generated in newly-listed VCM–A wastewater EPA is issuing a final decision not to impoundments will meet the scope of treatment sludges (K175). The Agency list wastewaters from chlorinated the hazardous waste listing for EDC/ would have temporarily deferred the aliphatic production processes. The VCM wastewater treatment sludges after the effective date of today’s rule. application of the new waste code to Agency has determined that these such leachate to avoid disruption of wastewaters do not pose substantial 2. Response to Major Comments ongoing leachate management activities risks when managed in aerated Received on Proposed Rule for during a time period in which the biological treatment tanks. Chlorinated Aliphatic Wastewaters Agency would decide how to integrate The Agency proposed to list EPA received comments on a number RCRA and CWA regulations governing chlorinated aliphatic wastewaters based of issues concerning the data and the management of landfill leachate. upon an estimated high-end analyses EPA used to arrive at our deterministic risk from dioxin for an The Agency proposed the deferral listing decision for chlorinated aliphatic adult farmer of 2E–05. As explained in because information available to EPA at wastewaters. The most significant more detail below, as a result of our comments that we received may be the time of the proposal indicated that analysis of information provided by VCM–A wastewater treatment sludges divided generally into six categories: (1) commenters, we determined that it was Comments on EPA’s waste management may have been managed previously in appropriate to adjust our risk assumptions; (2) comments on the non-hazardous waste landfills. assessment results to account for certain exposure scenarios we evaluated in our However, information provided by the factors not addressed in the risk risk assessment; (3) comments on how one generator of this waste in response assessment for the proposed rule. These we calculated exposure point to the proposed rule, indicates that factors include accounting for cooking concentrations in the risk assessment; since 1985 these sludges have not been and post-cooking losses for beef, (4) comments on EPA’s exposure disposed in a non-hazardous waste assuming a more realistic size of the assessment; (5) comments on EPA’s landfill. The generator has assured EPA pasture (or field) supporting cattle that toxicity assessment for dioxin and that the VCM–A sludges always have are indirectly exposed to dioxin chloroform; and (6) comments on how been disposed in subtitle C landfills. emissions, and accounting for the we characterized risks associated with Based upon this information, the potential for solids removal prior to dioxin and chloroform. These Agency sees no need to finalize the wastewater treatment in aerated comments, and the Agency’s responses proposed deferral for landfill leachate at biological treatment tanks. After to these comments, are summarized this time. calculating these adjustments to our below. We have developed responses to proposed risk assessment results, EPA The Agency is not finalizing (but is all of the public comments received in found that they would reduce our high deferring a final decision on) the response to the proposed rule. The end deterministic risk estimate for the verbatim comments and our responses proposed temporary deferral for adult farmer. Specifically, accounting applying the new K175 waste code to to all comments are provided in for cooking and post-cooking losses for Response to Public Comments; Final leachate from non-hazardous waste beef would modify the risk estimate by Listing Determination for Chlorinated landfills that previously accepted waste a factor of 0.78, and accounting for a Aliphatics Industry Wastes in the that meets the K175 listing description. more reasonable pasture size would docket for today’s rule. Should the Agency receive information modify the risk estimate by a factor of at a later date indicating that one or approximately 0.50, resulting in an a. Waste Management Assumptions more non-hazardous waste landfills did overall risk estimate of 7E–06. The majority of chlorinated aliphatic accept this waste prior to the effective Accounting for solids removal from the wastewaters is managed in on-site, tank- date of today’s rulemaking, we may re- wastewater prior to biological treatment based wastewater treatment systems consider our decision not to finalize the could modify the overall risk estimate prior to direct discharge of the proposed deferral. by an additional factor of 0.67 to 0.94, wastewaters in accordance with facility- that is, could result in a risk estimate as specific NPDES permits or discharge to low as 4E–06. an off-site POTW. As explained in the

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The provided information indicating that exposure pathway and that risks commenters raised general concerns one facility pipes its chlorinated resulting from this pathway are regarding EPA’s approach, and also aliphatic wastewaters off-site for significantly greater than any risk that challenged specific aspects of EPA’s treatment in a wastewater treatment may periodically arise from spills or analysis. These two issues are discussed system that includes biological leaks. separately below. treatment in surface impoundments. ii. Why Did EPA Not Evaluate Storage i. Evaluating Site-Specific Exposure i. Why Did EPA Only Evaluate Air of Wastewater? Scenarios—General Comments Releases From Tanks? One commenter stated that EPA did Commenters on the proposed rule One commenter asserted that EPA did not consider other air emissions from stated that EPA should have used a site- not consider releases from tanks other the storage of chlorinated aliphatic specific approach to assessing risks from than air emissions from treatment tanks wastewaters prior to placing these management of chlorinated aliphatic managing chlorinated aliphatics materials in tanks. The commenter said wastewaters, and presented general wastewaters. As the commenter pointed that such analysis is not needed if EPA arguments why EPA should adopt a site- out, EPA assumed that the wastewater finalizes a ‘‘standard’’ listing specific approach. Specifically, the treatment system tanks are of sufficient mechanism for K173, but that EPA must commenters believed that EPA should integrity to prevent releases and that the undertake such an analysis if a have conducted the chlorinated tanks are equipped with overflow and concentration-based listing is adopted. aliphatics risk assessments using an spill controls that will prevent non-air EPA assumes that the commenter is approach similar to that used in the releases of wastewaters, even though (as describing wastewaters managed in final combustion Maximum Achievable the commenter also points out) no tanks between the point the wastewater Control Technology (MACT) rulemaking overflow and spill controls are required is first generated until it reaches the under the Clean Air Act. For that for nonhazardous storage waste tanks, headworks of the wastewater treatment rulemaking, EPA used facility-specific including tanks that manage facility. (This is because under the data in determining risks (64 FR 52828, wastewaters subsequently discharged proposed listing options, wastewater September 30, 1999). The commenters either to Publicly Owned Treatment would not be tested to determine contended that as a result of the public Works (POTWs) or surface waters. The whether it exceeds the 1 ng/L dioxin and peer review comments received on commenter states that EPA’s failure to trigger until it enters the first tank in the the risk assessment in the proposed consider non-air releases from wastewater treatment system.) Although combustion MACT, EPA modified its wastewater treatment system tanks, EPA is not finalizing the proposed risk analysis to focus on the entire which in the commenter’s opinion are chlorinated aliphatic wastewater listing population of persons that are exposed plausible mismanagement scenarios, in today’s rule, we note that the RCRA to facility emissions rather than persons violates EPA’s criteria for listing Section 3007 questionnaire results living on a few individual farms and determinations, which requires an indicate that only a few facilities residences. Some commenters assessment of ‘‘plausible types of manage wastewaters in tanks that are recommended that EPA adopt a improper management.’’ not a part of the wastewater treatment regulatory approach allowing generators When EPA set out to assess risks from train. In all cases where a facility themselves to determine the site- managing wastewaters in tank-based indicated having wastewater storage specific risk (using site-specific systems, we chose to model only air tanks that are not part of the wastewater distances to the nearest receptor, emissions because we determined that treatment system the facility indicated wastewater concentrations, etc.) and this was the greatest potential pathway that the tanks are covered. The fact that subsequently the regulatory status of the of exposure for constituents from the such tanks are covered would limit the wastes addressed under EPA’s proposed tank systems (therefore causing the potential for air releases. In our risk rule. greatest potential risk), particularly assessment, we chose to analyze air Similarly, some commenters since we knew from the RCRA Section emissions from wastewater treatment expressed general concern over EPA’s 3007 Survey responses that the industry tanks because, based upon information use of ‘‘assumptions,’’ rather than site- uses aerated biological treatment tanks, provided to the Agency in facility specific data, in the risk assessment. many of which are uncovered, or open responses to the RCRA Section 3007 The commenters believe that if EPA to the atmosphere. In addition, survey questionnaire, such tanks may be used were challenged with evaluating responses indicated that the tanks are to manage relatively large quantities of hundreds of scenarios across the entire positioned aboveground and a majority chlorinated aliphatic wastewaters, and nation, then the use of assumptions of them are equipped with secondary often are not covered and are aerated. In from statistical sampling of databases or containment. Therefore, EPA view of our revised risk estimate for best judgment could be better determined that any leaks or potential releases from these tanks, any understood. However, with the limited catastrophic releases from such tanks potential risks from the covered, number of facilities and waste would be detected relatively quickly upstream tanks would not be management units involved in this and corrective measures likely would be substantial. proposed rule making (23), the implemented prior to a release of commenters believe that EPA could significant quantity. In addition, these b. Exposure Scenarios Evaluated in have spent more time gathering real, types of releases, if they were to occur, EPA’s Risk Assessment site-specific data to reduce the are not predictable or routine but rather EPA received comments from a uncertainty in risk modeling. The would be the result of inordinate events number of parties that challenged EPA’s commenters pointed to the limited set of or accidents such as upset conditions or basic methodology for establishing the waste sample data, the lack of site- catastrophic failures, which the Agency exposure scenarios evaluated in the specific information regarding waste

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The following conduct site-specific risk assessments to industry in the future. Additionally, we discussion describes those comments support the chlorinated aliphatics identified the location of chlorinated and EPA’s response. wastewater listing determination, but aliphatics facilities, and assumed that in rather evaluated plausible exposure the future, facilities might locate in the A number of commenters noted that scenarios that are based on a same general geographic regions (for EPA’s high end human health risk combination of national data, regional example, regions with the same analyses are based on dioxin exposures data, and data collected from the meteorological conditions), and in areas to farmers who live at the same location facilities themselves. In some cases we with the same general land use patterns within 300 meters (0.18 miles) of a believe that only one specific (for example, agricultural areas). chlorinated aliphatics facility for 48.3 management practice is plausible, and Similarly, we assumed that, although years or more, who raise fruits, exposed existing locations for that practice are the exact numbers and locations of vegetables, root vegetables, beef cattle, not likely to change. For example, facilities may change, the quantities of and dairy cattle within this 0.18 mile certain economic or natural resource the wastes, as well as the types and range, and whose diet consists of factors may restrict the nature of wastes concentrations of contaminants in the approximately 42 percent home-grown in terms of their constituent wastes, will be generally the same over exposed vegetables, 17 percent home- concentrations, their quantities, or the the near to long term. Again, the specific grown root vegetables, 33 percent home- ways in which the wastes are managed. mix of site-specific and more general grown fruits, 49 percent home-produced This generally is not the case for the information will vary from one listing beef, and 25 percent home-produced 5 chlorinated aliphatic chemicals rule to another and potentially from one dairy. Some commenters questioned production industry. EPA described the waste to another within a given why their operations would be regulated continued and projected growth of the rulemaking, depending on how dynamic under EPA’s proposed rule, contending chlorinated aliphatic chemicals industry EPA expects future waste management that it does not make sense to regulate in the Economics Background practices to be. a waste stream or to require controls and Document for the proposed rule, and By evaluating the data using the expenditures to protect a type of documented evidence of the industry’s probabilistic and two-high end individual that will not be present. historically dynamic nature (USEPA, Many of the commenters claimed that 4 deterministic approaches discussed in 1999b). Nevertheless, there is the preamble to the proposed rule (64 they were not aware of any farmers considerable uncertainty in predicting a FR 46483), EPA endeavors to avoid living within 0.18 miles of a chlorinated relationship between industry growth regulating wastes based on exposure aliphatics facility that met all these and waste generation and management. scenarios that are unrealistic (that is, criteria, and found it difficult to believe We cannot foresee the effects that based on too many protective [high end] that such a farmer would grow fruit potential (and possibly simultaneous) assumptions). However, in the case of trees and vegetables, and raise beef and changes in technology, facility the chlorinated aliphatics industry, we dairy cattle, all on the same plot of land. expansion practices (that is, increasing did not feel our information justified an Moreover, the commenters maintained production capacity at existing facilities assumption that there would always that in the south Texas area where versus building new facilities), and exist exactly 23 chlorinated aliphatics several EDC/VCM manufacturing waste minimization activities may have facilities at 23 specific locations that facilities are located, dairy cattle on waste generation and management. continue to generate the same quantities production is non-existent due to the We also cannot predict whether there of wastewaters, with the same types and climate. One commenter that represents will be an increase in global concentrations of contaminants, that are facilities in Louisiana stated that of the marketshare of off-shore (non-U.S.) managed in aerated biological nine companies that they represent, chlorinated aliphatic chemical wastewater treatment tanks under a only at two facilities is there farmland production. Consequently, we based our static set of operating conditions. within 300 meters of the facility evaluation on general information Historically, EPA’s policy under the boundary (not 300 meters from the describing current chlorinated aliphatic listing program has been to conduct wastewater treatment tanks). The waste management and exposure national-scale evaluations that consider commenters stated that beef cattle are scenarios. This is not to say we based the general characteristics of the wastes raised on one of the two farms, and that the modeling entirely on assumptions or under review, and allow facilities to beef cattle and sugar cane are raised on hypothetical values. Rather, we used the petition the Agency to have their wastes the other farm. combination of site-specific ‘‘delisted’’ if they believe that the wastes information, and other types of do not meet the criteria for hazardous 5 The public comments suggest that the commenters believe that EPA assumed that the information that we thought would waste listing. effectively capture what we expected farmer consumes 42 percent of the exposed EPA also notes that, in view of the vegetables, 17 percent of the root vegetables, 33 would remain relatively consistent for Congressional mandate to make final percent of the fruits, 49 percent of the beef, and 25 percent of the dairy products that the farmer grows. 4 USEPA. 1999b. Economics Background listing determinations on seventeen EPA assumes that the commenters meant to take Document, Proposal by the USEPA To List waste categories in fifteen months, issue with the EPA’s assumption that 42 percent of Wastewaters and Wastewater Sludges from Congress does not appear to have the exposed vegetables, 17 percent of the root Chlorinated Aliphatic Chemical Manufacturing anticipated that each of these listings vegetables, 33 percent of the fruits, 49 percent of Plants, as RCRA Hazardous Wastecodes K173, the beef, and 25 percent of the dairy products that K174, K175: Industry Profile and Estimation of efforts would involve a detailed, the farmer consumes are home-produced (i.e., the Industry Regulatory Compliance Costs. Office of facility-by-facility analysis (RCRA rest of the farmer’s diet would be obtained from Solid Waste. 30 July. 3001(e)). other sources, such as a grocery store).

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In response, EPA notes that exposure who raises cattle to support a expect, the data in the Exposure Factors duration was one of the two high end subsistence lifestyle might reasonably Handbook indicate that farm parameters in our proposed high end consume both dairy and beef products households consume more home- dioxin risk estimate for the farmer, and from his/her cattle. produced foods than do households in that the value of 48.3 years is the 90th Some commenters also challenged the general population. The percentages percentile exposure duration for EPA’s assumptions regarding the that correspond to the general households in the ‘‘farm’’ housing percentages of beef and dairy products population would be applied more category as presented in Table 15–164 of consumed by the farmer that are home appropriately to an evaluation of the Exposure Factors Handbook produced (that is, assumed to be from a residential receptors. (USEPA, 1997 6). Moreover, the contaminated source). Specifically, EPA One commenter claimed that in EPA’s information provided in the public assumed that 25.4 percent of the dairy Combustion MACT rulemaking, EPA comments confirms that an exposure products a farmer consumes are home indicated that according to USDA scenario in which a farmer raises beef produced, and that 48.5 percent of the information, only 40% of farmers who cattle on a farm located within 300 beef products a farmer consumes are raise beef eat their own beef (64 FR meters of a chlorinated aliphatics home-produced. The commenters 52998), and that the percentage of dairy facility (and presumably a wastewater asserted that the percentages EPA used farmers who consume home grown treatment tank located near the facility apply to a relatively small fraction of the dairy products is only 40% in the boundary) is plausible. Although the surveyed population who farm, and as Northeast, 20% in the Midwest, lower commenters clearly disagree that a such are overly conservative by a factor elsewhere in the country, and averages farmer also might produce fruits and of 21.2 for dairy,8 and a factor of 12.7 only 13% nationally (64 FR 52998). The vegetables on this farm, these concerns for beef,9 if applied to the general commenter also noted that in the are unwarranted. Table 5–3 of the Risk population (USEPA, 1997). The Combustion MACT rulemaking, EPA Assessment Technical Background commenters held the opinion that the acknowledged that information on the Document (USEPA, 1999a) 7 shows that percentages used by EPA overstate the number of farms that produce more than for the adult farmer, 99.3 percent of the upper end homegrown beef and dairy one food commodity (for example, beef high end risk from chlorinated aliphatic consumption markedly. However, one and milk) is not available from the U.S. wastewaters was due to ingestion of beef of the same commenters acknowledged Census of Agriculture (64 FR 52828, see and dairy products and only 0.7 percent that the commenter was unable to 53005–53006), and that in determining was due to ingestion of home grown confirm alternate values that EPA the risk to commercial farmers under fruits and vegetables. As a result, even should have used for percentage of beef the Combustion MACT rule, EPA stated: though EPA believes it is plausible that and dairy consumed by the farmer that ‘‘only the primary food commodity a subsistence or hobby farmer would is home grown. One peer reviewer asked produced on the farm was assumed to raise fruits and vegetables for home where EPA obtained the values for the be consumed by farm households (64 FR consumption, the validity of EPA’s risk percentages of food eaten by the farmer 52998). estimate depends almost entirely on the (EPA provided the source of the values It appears that the commenter validity of our assumption that a farmer in the preamble to the proposed rule), somewhat misrepresented the data from might consume both beef and dairy but did not indicate whether he the final MACT rule. Specifically, the products from cattle raised on a farm believed the percentages were right or Federal Register notice to which the located in the vicinity of a chlorinated wrong. commenter refers is very clear that aliphatics production facility. To EPA’s estimates of the portion while ‘‘[o]nly the primary food evaluate the commenters’ concerns (percentage or fraction) of a farmer’s diet commodity produced on the farm was regarding dairy cattle production in the that is home-produced are presented in assumed to be consumed by farm vicinity of chlorinated aliphatics EPA’s Exposure Factors Handbook households,’’ ‘‘[a] wide variety of foods facilities, EPA referred to public data on (USEPA, 1997), and are based on the was assumed to be produced and agricultural production in the regions U.S. Department of Agriculture’s 1987– consumed by households engaged in surrounding chlorinated aliphatics 1988 Nationwide Food Consumption subsistence farming’’ (64 FR 52999). In production facilities that are available Survey (NFCS).10 We did not use the fact, under the subsistence farmer from the Agricultural Census of the percentages that reflect the consumption scenario evaluated for the MACT United States (see reference for http:// of home-produced foods by the general rulemaking, EPA assumed that 100 govinfo.library.orst.edu that is included population in our risk assessment, as percent of the food that the farmer in the docket for the proposed rule). The suggested by the commenters, because consumes is home-produced. This census data demonstrate that, in fact, of EPA’s objective was to evaluate risks to assumption clearly results in greater the 23 chlorinated aliphatic facilities farmers, not members of the general exposure than the assumptions used in that manage wastewaters, 21 facilities, population, who consume home- EPA’s analysis of the farmer scenario in including all of the facilities in the produced food items. As one would the chlorinated aliphatics analysis. south Texas area, are located in counties Moreover, the commenter where dairy cattle were reported to have 8 The proportion of home-produced dairy misinterpreted data presented in the consumed by ‘‘households who farm’’ (0.254) been raised in 1997 (all of the facilities divided by the proportion of home-produced dairy MACT rulemaking that describe the are located in counties where beef cattle consumed by persons in the general population percentages of households that consume were reported to have been raised in (0.012). beef and dairy products in various parts 1997). EPA believes that an individual 9 The proportion of home-produced beef of the country. The Federal Register consumed by ‘‘households who farm’’ (0.485) divided by the proportion of home-produced beef notice to which the commenters refers 6 U.S. EPA. 1997. Exposure Factors Handbook, consumed by persons in the general population states: Volumes I, II, and III. EPA/600/P–95/002Fa, b, c. (0.038). In particular, we re-analyzed data collected Office of Research and Development, Washington, 10 The 1987–1988 NFCS data on intake of home- D.C., August. produced foods are included for use in the recent by USDA to estimate consumption of home- 7 U.S. EPA. 1999a. Risk Assessment Technical (1997) Exposure Factors Handbook (U.S.EPA, 1997), produced foods, such as meat, milk, poultry, Background Document for the Chlorinated which has been reviewed by EPA’s Science fish, and eggs. Over half of farm households Aliphatics Listing Determination. Office of Solid Advisory Board (SAB) as well as numerous other report consuming home-produced meats, Waste. July. external reviewers. including nearly 40 percent that report

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations 67079 consumption of home-produced beef. In the preferentially in the wastewater , sorption and hydrolysis Northeast, nearly 40 percent of farm influent, thus are unlikely to exist in the based on the total contaminant load households report consuming home- dissolved phase in excess of their influent to the system (whether produced dairy products, and in the solubility limits. associated with the dissolved or solid Midwest, nearly 20 percent do. The Commenters on the proposed rule percentage is lower elsewhere, averaging phase). The contaminant loss rate due to about 13 percent nationally. expressed a number of concerns sorption is based on the equilibrium regarding the way that EPA evaluated solids partitioning coefficient and the The data cited by EPA pertains to the the solids fraction of chlorinated rate at which solids enter or are number of all farm households that aliphatics wastewaters. The generated within the system. Thus, in consume home-produced beef and dairy commenters’ primary concern was that estimating the amount of solids products. The commenters incorrectly EPA did not appropriately consider that available to sorb dioxins, CHEMDAT8 assumed that the data applied most dioxins in chlorinated aliphatics considers total suspended solids (TSS) specifically to households engaged in facility wastewaters will be sorbed onto in the influent stream as well as new raising beef cattle and households solids in the wastewaters even when the biomass growth. It does not matter how engaged in raising dairy cows, dioxin congener concentrations in dioxin is partitioned onto solids when respectively. EPA expects that the wastewaters are less than their the wastewater enters the tank, because consumption of home-produced beef solubility limits. Certain commenters the model repartitions the dioxins and dairy products would be much contended that in EDC/VCM production inside the tank according to the model’s greater for households engaged in facilities that use fluidized bed equilibrium partitioning relationship production of these commodities oxychlorination processes, attrited and the relative rates of the competing compared to the consumption for all catalyst fines (small particles that are 1 removal mechanisms. Consequently, in farm households. to 20 micrometers in size) that exit the our analyses we evaluated the total c. Calculation of Contaminant facility process via the wastewater contaminant load in the tank influent, Concentrations at the Point of Human treatment system have very high surface regardless of whether the contaminants Exposure (Contaminant Fate and area (approximately > 50 m2/g) and thus were associated with the dissolved or Transport Modeling) strongly sorb dioxins that are present in solid phase. In cases where solids are the wastewaters. The commenters present in the influent, limiting a EPA received comments questioning asserted that EPA failed to account for the way that we estimated emissions CHEMDAT8 analysis to dissolved phase the fact that almost all of the dioxins in wastewater influent concentrations from aerated biological wastewater wastewaters are sorbed to solids and are treatment tanks, and the way that we might seriously under-represent the removed in primary clarifiers prior to total contaminant load to the tank and estimated the concentrations of dioxins aeration. Moreover, the commenters in beef and dairy products. These result in greatly underestimating believed that EPA’s model for emissions, especially for sorptive comments included concerns about how estimating emissions from wastewater CHEMDAT8 evaluates dioxins that are chemicals like dioxins. Because treatment tanks (CHEMDAT8) does not CHEMDAT8 considers partitioning and sorbed onto solids in wastewaters, and correctly model sorption. One about how EPA estimated the amount of removal by sorption within the tank, commenter stated that CHEMDAT8 limiting the mass of dioxin influent to solids influent to aerated biological takes into account adsorption onto wastewater treatment tanks. the system (by limiting the influent biomass solids, but claimed that concentration to the dissolved phase Commenters also took issue with the CHEMDAT8 does not adequately concentration) may result in greatly Agency’s assumptions about the diet of address the fact that most dioxin is underestimating emissions because only dairy and beef cattle and the already sorbed onto solids (and not the contaminant mass in the dissolved productivity of the modeled farm. Each available for volatilization) when it phase would be partitioned in the tank, of these assumptions significantly enters an aerated tank. Commenters rather than the total contaminant mass affects our calculation of contaminant submitted various analyses and data to associated with the influent’s dissolved concentrations to which human substantiate their claims, and contended plus solid wastewater phases. receptors are exposed. that EPA had overestimated the In contrast, EPA agrees with the i. EPA Did Not Correctly Consider concentration of dioxins available for volatilization by at least an order of commenters concerns that we failed to Sorption of Dioxin Onto Solids and accurately account for the fact that in Solids Removal From Wastewater magnitude. Although EPA agrees that the primary aerated biological wastewater treatment To evaluate the human health risks removal mechanism of dioxins in systems, at least some solids removal posed by dioxins in chlorinated wastewater treatment tanks will be generally will occur between the aliphatic wastewaters, EPA modeled air through the sorption of dioxins onto headworks of the wastewater treatment emissions from aerated biological solids (see p. 3–2 of EPA’s 1999 Risk system and the influent to an aerated wastewater treatment tanks. We Assessment Technical Background biological treatment tank (we addressed conducted the emissions modeling Document, USEPA 1999a), EPA does risks from the management of solids assuming that the concentrations of not agree with the commenters’ separately in this listing determination). dioxins in wastewaters flowing to concerns that CHEMDAT8 fails to In the preamble to the proposed rule, aerated biological treatment tanks were correctly account for sorption. EPA specifically stated that we selected equivalent to the concentrations of CHEMDAT8 does in fact model sorption wastewater data for evaluation that we dioxins in certain wastewater samples as a reversible, linear, equilibrium believed represented the concentrations we collected. For the proposal, we partitioning process, the same process of contaminants in wastewaters at the constrained (‘‘capped’’) the influent that the commenters believed should be influent (headworks) of treatment concentrations of four congeners in the considered to account for the sorption of systems that are used to manage only wastewaters at their aqueous solubility dioxins onto solids in wastewater. wastewaters from the production of concentrations to account for the fact CHEMDAT8 is designed to evaluate the chlorinated aliphatic chemicals that dioxins are strongly hydrophobic contaminant loss rates for the competing (‘‘dedicated’’ chlorinated aliphatics and are expected to be sorbed to solids removal mechanisms of volatilization, wastewater samples; 64 FR 46483). In

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 67080 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations retrospect, our assumption that the same high end deterministic risk estimate for Rice (1994)13. In contrast, the data that represent contaminant the adult farmer reported in the commenters presented data from concentrations at the headworks of proposal would be reduced by a factor Stevens and Gerbec (1988) 14 who wastewater treatment systems could ranging from approximately 0.67 (70 reported dairy cattle consumption rates represent contaminant concentrations at percent removal of solids) to 0.94 (50 of 6.8 kg/day of forage, 16.3 kg/day of the influent to aerated biological percent removal of solids) (USEPA, silage, 4.5 kg/day of grain, and 0.14 kg/ wastewater treatment tanks was 2000b).12 A complete description of our day of soil. Second, EPA assumed that somewhat flawed. The Agency reviewed analysis is provided in the Addendum beef cattle consume 8.8 kg/day of forage, information previously provided to us to the 1999 Risk Assessment Technical 2.5 kg/day of silage, 0.47 kg/day of in industry survey responses and Background Document (USEPA, 2000). grain, and 0.5 kg/day of soil (Rice, determined that of the eleven facilities 1994). The commenters contended that that employ aerated biological processes ii. EPA Incorrectly Evaluated the during the nursing phase the beef cow to treat their wastewaters, nine employ Contribution of Feed to Dioxin Levels in receives practically all of its daily primary clarification or other processes Dairy and Beef dioxin dose through the mother’s milk that have the effect of removing solids and this dose has been (and could be) To support the chlorinated aliphatics from wastewaters prior to their calculated for nursing cattle (Stevens wastewater listing determination we discharge to aerated biological treatment and Gerbec, 1988). The commenters estimated risks to a farmer who ingests tanks. (One of these nine facilities is the continued that EPA should assume that beef and dairy products derived from facility from which we collected the during the pasture phase of its life the cattle raised on a farmer’s pastureland. ‘‘high end’’ wastewater sample used in beef cow consumes 13.6 kg/day of feed: EPA assumed that the beef and dairy the risk analysis that served as the basis 10.2 kg/day of forage, 3.4 kg of silage, cattle consume home-grown forage, for our proposed listing decision.) The and 0.05 kg/day of soil. The commenters grain, and silage, and incidentally ingest remaining two facilities perform argued that during the cow’s fattening pasture soil. We assumed that beef cattle wastewater equalization in tanks prior stage of growth prior to its slaughter, consume different quantities of the to aerated biological treatment. One of during which the beef cow gains as various food items (and pasture soil) these two facilities also employs much as 60 to 70% of its body weight, than do dairy cattle. We also assumed wastewater pH adjustment with the cow’s diet consists entirely of grain. that 100% of the cattle’s feed is resultant precipitation of metal The commenters suggested that EPA contaminated by releases from the hydroxides prior to aerated biological needs to take into account the impact of wastes we evaluated, that is, that cattle treatment. Both of these processes are this body weight gain and consider how are not provided feed from other expected to result in at least some solids dioxin half-life influences the (uncontaminated) sources. removal from the wastestream. concentration of dioxin residuals in the Moreover, EPA does not anticipate that The commenters believed that EPA meat. treatment of the wastewaters in units should have considered that a cow’s The commenters also asserted that such as primary clarifiers and consumption of various food sources EPA’s assumption that all of a cow’s equalization basins would result in varies according to the animal’s life feed is contaminated seemed dioxin air emissions greater than those stage and intended use. The unrealistic. The commenters believed that we originally predicted from commenters contended that these that such an assumption implies that a aerated biological treatment tanks, considerations influence both a cow’s farm not only has both a dairy and beef because primary clarifiers are, by exposure and the potential translocation cattle operation, but raises grain and design, quiescent units (Metcalf and of dioxin to meat or milk. As an silage (in addition to crops for human Eddy, 1991,11 p. 472), and we have no example, the commenters pointed out consumption) while still maintaining information that leads us to believe that that beef cattle may be raised for part of enough pasture to graze the animals. the equalization tanks in use by the their lives on pasture, but typically are They noted that the same issue was facilities are agitated. raised on grain prior to slaughter. The raised by the peer reviewers who found To model the aerated biological commenters noted that, for instance, the some of the assumptions on treatment tanks correctly, that is, to beef cow nurses and pastures for productivity of the theoretical farmer determine what the appropriate influent approximately 180 days, pastures unrealistically high and suggested that concentration to the biological treatment exclusively for 55 days, and subsists on productivity necessary to maintain such tank should be, would have required a grain only diet for the final 130 days a farm be researched and used to adjust that EPA model the wastewater of its life (Stevens and Gerbec, 1988). EPA’s assumptions accordingly. The treatment train from the point where The commenters asserted that EPA’s commenters reasoned that since grain wastewater enters the headworks of the risk assessment should have considered and silage often are purchased treatment system to the point where the contaminant losses from a beef cow’s elsewhere, it would be more appropriate to assume that less than 100% of the wastewater enters the aerated biological tissue in the time period between the cattle’s feed is contaminated. They tank. Metcalf and Eddy (1991, p. 473) cow’s consumption of contaminated believed that fixing the percentage of state that ‘‘efficiently designed and feed and the cow’s slaughter. The contaminated feed consumed by the operated primary sedimentation tanks commenters also presented alternate cattle at 100% is not a central tendency should remove from 50 to 70 percent of information that they said could be assumption, and fails to reflect the lack the suspended solids * * * ’’ from considered in EPA’s evaluation of risk. of certainty in this parameter. Therefore, wastewater. Assuming this level of First, EPA assumed that dairy cattle they recommended that EPA assume solids removal from chlorinated consume 13.2 kg/day of forage, 4.1 kg/ aliphatics wastewaters prior to day of silage, 3 kg/day of grain, and 0.4 13 Rice, G. 1994. Quantity of Plants and Soil biological treatment we estimate that the kg/day of soil, based on data cited by Consumed by Animal. Draft Working Papers. Office of Research and Development. U.S. Environmental 11 Metcalf & Eddy, Inc. 1991. Wastewater 12 12 U.S. EPA. 2000b. Risk Assessment Protection Agency, Washington D.C. Engineering: Treatment, Disposal, and Reuse. Technical Background Document for the 14 Stevens, J.B. and Gerbec, E.N. 1988. Dioxin in Revised by G. Tchobanoglous and F. Burton. Irwin Chlorinated Aliphatics Listing Determination, the agricultural food chain. Risk Analysis. 8(3):329– McGraw-Hill, Boston. 1334 pp. Addendum. Office of Solid Waste. September. 335.

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations 67081 that only 50% of the feed is our assumptions regarding cattle commenters’ concerns, we reviewed our contaminated in the deterministic ingestion of forage under a subsistence/ methodology for estimating the assessment, and that a uniform hobby farming scenario are reasonable. concentrations of dioxins in forage to distribution of values be adopted for the We used the assumptions presented by ensure that we were adequately Monte Carlo assessment, with Rice (1994) in other rulemakings 15 and considering the size of the contaminated percentages ranging from 0 to 100 have recommended that these source versus its expected productivity. percent. assumptions be used in estimating risks In the proposed rule we explained that To understand EPA’s response to under other hazardous waste programs in evaluating the air pathway we always these comments, it is important to recall 16 (USEPA, 1998 ). Furthermore, the feed assume that the cattle are located along two pieces of information presented in ingestion rate for dairy cows presented the centerline of the area most greatly EPA’s Risk Assessment Technical by the commenters is an average impacted by air releases from the waste Background Document for the proposed ingestion rate for a dairy cow in rule. First, as discussed previously in Minnesota (Stevens and Gerbec, 1988). management units (64 FR 46486). We Section VI.A.2.b.ii, the risks that EPA In contrast, EPA’s data for the intake said that the air concentrations within estimated for the farmer are due almost rates of forage, grain, and silage for dairy about a 100-meter lateral distance from exclusively to the farmer’s ingestion of cows are based either on data from the this point do not vary appreciably, and beef and dairy products (Table 5–3; South Carolina-Georgia region (see stated specifically in our Risk USEPA, 1999a). Second, the dioxins in Boone et al., 1981 17) or on more general Assessment Technical Background the beef and dairy products result data (Shor and Fields, 1980; 18 NAS, Document (Addendum; USEPA, 1999a) almost entirely from the cattle’s 1987; 19 and Boone et al., 1981). that the concentrations vary about 20% consumption of forage that is Chlorinated aliphatics facilities are within 200 meters of the point of contaminated by air emissions from the located primarily in Texas and maximum concentration. In the course modeled wastewater treatment tank— Louisiana, which we believe are of our reevaluation of these data in negligible levels of dioxins are probably more similar to South response to public comments, we contributed to cattle as a result of the Carolina-Georgia than Minnesota in concluded that we should have cattle’s ingestion of grain, silage, or soil terms of cattle feeding practices. considered how the concentrations of (Appendix H.1, Table H.1–1a; USEPA, With regard to EPA’s assumptions for dioxins in air, therefore in forage, vary 1999a). Consequently, all that is the percent of the cattle’s feed derived over a wider aerial extent that would be required for the adult farmer to realize from a contaminated source, EPA more consistent with the area of a the risk that EPA presented in the believes that it is appropriate to assume pasture. We concluded that a more proposed rule is that the farmer that a hobby or subsistence farmer is not reasonable approach would be to consume beef and dairy products supplying forage to his/her cattle from consider that the size of the pasture that derived from cattle that consume forage an outside source, such that 100 percent is used to support the cattle is from the farmer’s pastureland/field. of the forage that the cattle consumes That is, it is not necessary that the will be from the farmer’s pasture or field approximately 275 meters by 275 meters 2 farmer consume home-grown fruits and (in our risk assessment, a contaminated (75,625m , approximately 19 acres). We vegetables, or that the farmer produce source). This assumption is consistent believe a field of this size would be grain or silage for use as cattle feed. with the assumptions made for both the large enough to support sufficient cattle Therefore, in responding to the concerns subsistence and commercial farmers in to sustain the family of a subsistence of the commenters, EPA focused the combustion MACT final rulemaking, farmer (USEPA, 2000b). We used the primarily on the technical validity and as well as other EPA rulemakings and results of the air modeling we plausibility of our assumptions guidance.20 However, in response to the conducted for the proposed rulemaking regarding the (1) consumption rates of to determine the approximate difference forage by beef and dairy cattle and (2) 15 We used the assumptions of Rice (1994) in the between the air concentration that we the percentage of the forage that cattle risk assessment to support the final combustion used to calculate the proposed risk MACT Rulemaking (64 FR 52828, September 30, consume that is contaminated. estimate (the air concentration EPA disagrees with the commenters’ 1999). In addition, we used some of the same assumptions in the Proposed HWIR Rule corresponding to a point located 300m alternate recommendations regarding (November 19, 1999 Federal Register; 64 FR 63382) from the modeled wastewater treatment animal feeding practices. Although the and the Petroleum Refining Residuals Final Listing (August 6, 1998 Federal Register; 63 FR 42210). tank) and the average air concentration feeding practices that the commenters 2 16 at a 75,625m field located 300m from describe, particularly those for beef USEPA. 1998. Human Health Risk Assessment cattle, may be applicable to commercial Protocol for Hazardous Waste Combustion the modeled wastewater treatment tank. Facilities. Peer Review Draft. Office of Solid Waste In fact, EPA determined that more farming operations, EPA does not and Emergency Response. EPA530–D–98–001A. believe that such practices apply to July. reasonably considering the area that is hobby or subsistence farming. As noted 17 Boone, F.W., Y.C. Ng, and J.M. Palms. 1981. affected by the emissions from the by Rice (1994), a subsistence farmer will Terrestrial Pathways of Radionuclide Particulates. modeled wastewater treatment tank Health Physics, vol 41, no. 5, pp. 735–747. would reduce the risk estimate on tend to feed his/her cattle an November. ‘‘unsupplemented’’ diet, meaning that 18 which our proposed rule was based, Shor, R.W. and D.E. Fields. 1980. ‘‘Agricultural ¥ the cattle will primarily feed on forage Factors Affecting the Radionuclide Foodchain modifying the risk estimate (2×10 5) by (because the cattle are permitted to Pathway: Green Forage Consumption of Dairy a factor of 0.50 (USEPA, 2000b). graze more in the pasture), and will not Cows.’’ Health Physics. vol. 39, pp. 325–332. 19 NAS. 1987. Predicting Feed Intake of Food- be fattened at a feedlot prior to Producing Animals. National Research Council, slaughter. Rice (1994) explains that in USEPA. 1998. Methodology for Assessing Health Committee on Animal Nutrition. National Academy Risks Associated with Multiple Pathways of Press, Washington, D.C. the southern part of the country (where Exposure to Combustor Emissions. National Center 20 For example: most of the chlorinated aliphatics for Environmental Assessment. EPA600/R–98/137. facilities are located), cattle will USEPA. 1998. Human Health Risk Assessment Protocol for Hazardous Waste Combustion Proposed HWIR Rule (November 19, 1999 consume pasture as their major source Facilities. Peer Review Draft. Office of Solid Waste Federal Register; 64 FR 63382) of roughage the entire year (except in and Emergency Response. EPA530–D–98–001A. Final Petroleum Listing Rule (August 6, 1998 drought). Consequently, we believe that July. Federal Register; 63 FR 42210)

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 67082 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations d. Exposure Assessment—Cooking and actually consume. However, these appropriate for extrapolating response data in Post-cooking Food Losses factors do not include losses to spoilage, the low-dose range than the LMS approach feeding to pets, food thrown away, etc.’’ used by EPA. Commenters contended that the • To calculate human equivalent doses equations in the risk assessment used to EPA acknowledges that considering the from animal doses used in toxicity studies, characterize exposure to chemicals from mean cooking and post-cooking losses scientists typically scale animal doses based the consumption of beef do not appear for beef (45%) as presented by the on the ratio of animal and human body to account for loss of chemicals due to commenters would result in reducing weights. The 1996 Guidelines recommend food preparation, cooking, and the risk estimate, modifying the total that the default approach is to scale daily consumption practices. The commenters (beef plus dairy, see section VI.A.3) high applied doses experienced for a lifetime in proportion to body weight raised to the 3⁄4 pointed out that The Exposure Factors end deterministic dioxin risk estimate for the adult farmer (2E–05) by a factor power. This recommendation is a change Handbook (‘‘the Handbook;’’ USEPA, from EPA’s previous recommendation to 1997; referenced in the preamble to the of 0.78. scale doses in proportion to body weight proposed rule) recommends that these e. Toxicity Assessment raised to the 2⁄3 power. losses be considered, and provides The proposed rule presented an Commenters on the proposed rule estimates for percent weight losses from believed that EPA should account for preparation of various meats from assessment of the toxicity of dioxins and chloroform, the constituents of concern this revised guidance in our risk cooking and post cooking actions. Beef- assessments for dioxin and chloroform. specific loss estimates range from 11%– in chlorinated aliphatics wastewaters. 42% (mean = 27%) due to cooking and Commenters on the proposed rule i. Assessment of the Toxicity of Dioxins 10%–46% (mean = 24%) due to post challenged data and analyses EPA relied and Furans cooking actions. Therefore, the cancer upon to characterize the toxicity of the dioxins and chloroform. First, the EPA used a cancer slope factor of risk estimates associated with the beef ¥1 commenters believed that EPA’s use of 156,000 (mg/kg-day) for TCDD to ingestion pathway should be adjusted calculate cancer risk from exposure to by a factor of 0.55 (0.73×0.76).21 draft documents under review was inappropriate for obtaining toxicity dioxins and furans in chlorinated EPA agrees that the intake rates that aliphatics wastes. The cancer slope we used for the adult farmer (and information for dioxins. Second, the commenters contended that EPA should factor is a measure of the relative certain child of farmer age cohorts) potency of carcinogens. That is, the should have incorporated loss of beef have used a different cancer slope factor to calculate risks for two of the higher the cancer slope factor, the more due to cooking and post-cooking potent the carcinogen. The toxicity of activities. The Handbook explains that hexachlorodibenzo-p-dioxin (HXCDD) congeners. Third, the commenters each of the 17 dioxin and furan the intake rates it provides for home- congeners with TCDD-like toxicity is produced food items do not reflect believed that EPA overestimated certain toxicity equivalency factors (TEFs, expressed in terms of TEFs. TEFs are actual food consumption (intake), but estimates of the toxicity of specific instead were derived from the amount described below) that we used in our risk analysis. Lastly, commenters on the dioxin and furan congeners relative to of household food consumption in an the toxicity of TCDD, which is assigned economic sense, that is, they are the proposed rule challenged two of the assumptions inherent in the a TEF of 1. The sections that follow measure of the weight of food brought present public comments on the slope into the household that has been development of the toxicity benchmarks that we used to evaluate dioxins and factor and TEFs that EPA used to consumed (used up) in some manner. evaluate dioxins and furans, and The Handbook explains that in addition chloroform. These two assumptions are as follows: provide the Agency’s response to those to food being consumed by individuals, comments. food may be used up by spoiling, by • To develop cancer benchmarks using being discarded (for example, inedible animal studies, scientists often extrapolate TCDD Cancer Slope Factor and Health parts), through cooking processes, etc. dose-response data derived from the animal Effects The Handbook provides estimated studies to lower levels that are within the The existing cancer slope factor for preparation losses for beef that include range of human exposure. EPA historically has extrapolated response data in the low- TCDD is based on human equivalent cooking losses (which include dripping dose range using a linear approach called the doses calculated from laboratory animal and volatile losses) and post-cooking linearized multistage (LMS) model. However, data by scaling doses to body weight losses (which include cutting, bones, in 1996, EPA published the Proposed raised to the 2⁄3 power. Commenters excess fat, scraps, and juices.) The Guidelines for Carcinogen Risk Assessment maintained that this practice is obsolete, authors of the Handbook averaged these (hereafter referred to as the ‘‘1996 and does not reflect a change in EPA losses across all cuts and cooking Guidelines;’’ USEPA, 1996 22) that provided policy recommending that doses be new recommendations for evaluating methods to obtain a mean net cooking scaled to body weight raised to the 3⁄4 loss and a mean net post-cooking loss responses in the low-dose range when power. The commenters calculated that for beef. The Handbook explains that biologically-based or case-specific models are not available. While still recommending a compared to a cancer slope factor that the preparation loss factors presented linear extrapolation (a straight line is based on scaling doses to body weight ‘‘are intended to convert intake rates extrapolation) as a default procedure for raised to the 3⁄4 power, the existing based on ‘household consumption’ to evaluating low-dose response, the 1996 cancer slope factor overestimates cancer rates reflective of what individuals Guidelines also suggest that extrapolation in risk from dioxin-like compounds by at the low-dose range can be performed using least 35% (assuming a linear dose- 21 The value 0.55 is calculated as follows: If 27 a nonlinear approach, when the data on the response), and as a result, all of EPA’s percent of the mass of meat is lost during cooking, mode of action for the contaminant are then 73 percent of the meat remains. Of the cancer risk estimates for dioxin-like sufficient to support such an approach. compounds should be adjusted by at remaining 73 percent, 24 percent more is lost after Commenters on the proposed rule contended cooking (76 percent is retained). As a result, the that, for 2,3,7,8-TCDD (‘‘TCDD’’) and least a factor of 0.65. Commenters also mass of meat remaining after cooking and post- claimed that the existing slope factor for cooking activities is 76 percent of 73 percent, or 55 chloroform, a nonlinear approach is more percent of the original mass. Therefore, the amount TCDD does not take into account of meat lost through cooking and post-cooking 22 USEPA. 1996. Proposed Guidelines for mechanistic information suggesting activities is 45 percent. Carcinogen Risk Assessment. 61 FR 17960. there is a threshold for TCDD

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We understand that the (Byrd et al., 1998 23) which states: ‘‘A that dioxins are a probable human 1996 Proposed Guidelines for dose-response assessment for dioxin carcinogen and that, in animal testing, Carcinogen Risk Assessment based on receptor binding would TCDD is one of the most potent recommends the body weight scaling predict a nonlinear dose-response carcinogens ever evaluated. The factor approach noted by the relationship with a threshold for tumor commenter noted that noncarcinogenic commenters, and provides guidance for induction. A nonlinear relationship is effects resulting from TCDD exposure considering nonlinear contaminant more consistent with the available also have been reported. Specifically, dose-response relationships in chronic animal bioassays and human some studies suggest evidence of developing cancer slope factors. EPA epidemiology studies.’’ The commenters immunotoxicity, such as alteration in anticipates that we will consider these contended that, given this information, lymphocyte populations, cell surface the cancer risk posed by all of the markers or lymphocyte proliferative recommendations of the 1996 dioxin-like dioxin and furans may well response. There also is evidence of Guidelines, as well as other relevant be zero for all pathways considered in reproductive and developmental effects recommendations of the 1996 EPA’s risk assessment. from exposure to dioxins. The Guidelines, in the course of future Commenters also took issue with commenter pointed out that studies development or reevaluation of EPA’s use of the Health Assessment discussed in EPA’s draft Dioxin contaminant cancer slope factors. Document for 2,3,7,8- Reassessment provide evidence of However, given that the Agency has not Tetrachlorodibenzo-p-Dioxin (TCDD) further health impacts. completed its comprehensive and Related Compounds issued by EPA EPA acknowledges the commenters’ reassessment of TCDD carcinogenicity in 1994. These documents have been concerns regarding the use of a draft and toxicity, the Agency has decided to reviewed by the EPA Science Advisory document to support our toxicity use the 1985 cancer slope factor for Board (SAB), but have not been assessment for dioxin-like compounds. TCDD (USEPA, 1985) for this finalized. Some commenters noted that In the preamble to the proposed rule, rulemaking. Moreover, decreasing the the SAB made substantial comments on and in the Risk Assessment Technical slope factor for TCDD as recommended the 1994 draft documents that are Background Document for the by commenters would not have any directly relevant to the risk assessment Chlorinated Aliphatics Listing impact on our ultimate listing decisions for the Chlorinated Aliphatics Listing Determination (USEPA, 1999a), we for chlorinated aliphatics wastewaters, Determination, and, because the SAB presented a summary of the health EDC/VCM wastewater treatment comments have not yet been effects believed to be associated with sludges, or methyl chloride wastewater incorporated in a final document, it is exposure to dioxins. Although the treatment sludges. Our decision not to premature and incorrect to use the draft source of our information concerning list chlorinated aliphatic wastewaters is in this current rulemaking. The dioxin health effects was the 1994 draft supported by other factors that decrease commenters noted that the front cover health assessment document challenged our proposed risk estimate (section of the draft chapters state: ‘‘Review Draft by commenters, the health effects we VI.A.3), and reducing the slope factor as (Do not Cite or Quote)’’ and presented at the time of proposal recommended by the commenters Notice: This document is a preliminary continue to reflect our understanding of would not reduce our risk estimates draft. It has not been formally released by the health affects associated with enough to alter our listing decisions for EPA and should not at this stage be exposure to dioxins. A December 1998 the EDC/VCM wastewater treatment construed to represent Agency Policy. It is toxicological profile for chlorinated sludges (section VI.B.2.b.iv). being circulated for comment on its technical dibenzo-p-dioxins published by the Nevertheless, EPA may choose to accuracy and policy implications. Agency for Toxic Substances and reevaluate today’s listing decisions in Disease Registry (ATSDR, 1998 24) In addition, the commenters pointed the future, pending the final outcome of supports our appraisal of the adverse out that page 5–33 of EPA’s Risk the Agency’s ongoing reevaluation of Assessment Technical Background health effects associated with dioxin TCDD toxicity. Document for the Chlorinated exposure. Our reassessment of dioxin Aliphatics Listing Determination, July risks is still ongoing and we are not relying on draft findings for this final 26 The cancer slope factor for TCDD that we used 30, 1999, states: ‘‘Most of the to calculate the cancer risk resulting from exposure information in this summary is from listing determination. to dioxins in chlorinated aliphatics wastewaters, as this draft document and is subject to As discussed above, the Agency also well as EDC/VCM wastewater treatment sludges received comments on the value of the (see section VI.B) was 156,000 (mg/kg- change, pending release of the final ¥ TCDD cancer slope factor that we used day) 1(USEPA, 1985). We incorrectly cited HEAST document.’’ Thus, the commenters as the source of our slope factor in Appendix C of believe that conclusions made to evaluate cancer risk due to dioxins. the Risk Assessment Technical Background concerning dioxin in the risk The cancer slope factor that we used in Document (USEPA, 1999a). A risk estimate assessment for chlorinated aliphatics our proposed chlorinated aliphatics risk calculated using the slope factor presented in analyses, 156,000 (mg/kg-day)¥1, is HEAST would be only a factor of 0.96 (150,000/ wastes are based on a document that is 156,000) times a risk estimate calculated based on preliminary and possibly incorrect. cited in a final Agency report published the slope factor presented in the 1985 document. In contrast to the comments above, This difference would have no discernable impact one commenter strongly supported the 24 ATSDR. 1998. Toxicological Profile for on our risk estimates (use of either would have proposal to list chlorinated aliphatics Chlorinated Dibenzo-p-Dioxins (Update). U.S. resulted in the high end risk estimate for the adult Department of Health and Human Services. farmer, 2E–05, that we presented in the proposed wastewaters because of significant risks December. rule). 25 USEPA. 1985. Health Assessment Document USEPA. 1997. Health Effects Assessment 23 Byrd III, D.M., Allen, D.O., Beamer, R.L., et al. for Polychlorinated Dibenzo-p-Dioxins. Office of Summary Tables: Annual Update (HEAST). Office 1998. Letter to the Editor: The dose-response model Health and Environmental Assessment. EPA/600/8– of Emergency and Remedial Response. Washington, for dioxin. Risk Analysis. 18(1):1–2. 84/014F. September. D.C. July.

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Use of the Cancer Slope Factor for risk analyses. Although the commenters term and acute, and examining a broad HxCDD suggested that use of the IRIS slope spectrum of endpoints including EPA’s Integrated Risk Information factor would have an impact on the biochemical, developmental, System (IRIS) database includes a results of the risk analysis, particularly immunotoxicological, neurological, cancer slope factor of 6,200 (mg/kg- if the slope factor is adjusted using a carcinogenic and teratogenic. Whereas day)¥1 for HxCDD mixtures. revised scaling factor, EPA strongly the resulting range of in vitro/in vivo Commenters believed it was curious disagrees. Upon review of the congener- REP values for a particular congener that EPA did not choose to use this specific risk estimates provided in the may span 3–4 orders of magnitude, final slope factor for any of the HxCDDs or Risk Assessment Technical Background selection of a TEF value gave greater hexachlorinated dibenzofurans Document for the proposed rule weight to REPs from repeat dose in vivo (HxCDFs) evaluated in the chlorinated (USEPA, 1999a) it is clear that experiments (chronic > subchronic > aliphatics risk assessment. Instead, EPA eliminating the 1,2,3,6,7,8- and subacute > acute). Furthermore, studies used the TCDD cancer slope factor of 1,2,3,7,8,9- congeners of HxCDD from examining toxic effects were given 156,000 (mg/kg-day)¥1 and a TEF value the risk analysis completely would have greater weight than studies examining of 0.1, yielding an effective cancer slope the impact of modifying the high end biochemical effects. This weighting factor of 15,600 (mg/kg-day)¥1, to risk estimate for the adult farmer only scheme and the use of professional evaluate all dioxin-like HxCDDs and by a factor of 0.96. judgment are designed to give more weight to studies that provide exposure HxCDFs. Commenters argued that the Use of the WHO TEFs scenarios similar to humans and for risk assessment for HxCDDs and Commenters contended that a hidden studies examining effects of concern. HxCDFs would be greatly improved if it area of conservatism in EPA’s risk As pointed out by the commenter, the were based on the value of 6,200 (mg/ assessment lay in the fact that the TEF ¥1 range of the REPs for a particular kg-day) because (1) The cancer slope values for many congeners, including chemical can vary across studies. factor for HxCDD mixtures is verified on 2,3,4,7,8-PeCDF and 1,2,3,4,7,8-HxCDF However, the commenters’ proposed use USEPA’s IRIS database, whereas the (the congeners that are the primary of the geometric mean or Monte Carlo value for TCDD is not, and (2) the slope contributors to EPA’s risk estimates), do simulations is cause for concern. The factor for HxCDD mixtures is based on not reflect central tendency values, but variability in the REPs for a particular exposure to a mixture of congeners, are instead upper bound values. Using chemical can be due to several factors. whereas the value for TCDD is based on the World Health Organization’s As with any other determination, there exposure to a single congener. The (WHO’s) database of Relative Potency is variability in the measurement which commenters believe that the slope factor (REP) estimates for these two congeners, can be due to either inter-laboratory for HxCDD mixtures replaces the TEF the commenters determined that the variability and variability in the actual approach, which was created as an TEF value of 0.5 for 2,3,4,7,8-PeCDF is measurement (that is, experimental interim approach in the absence of equivalent to the 81st percentile of REP variability in determining chemical-specific data, with one that is estimates obtained from 59 in vivo ethoxyresorufin O-deethylase [EROD] based on chemical-specific dose- studies, and that the geometric mean activity). Another source of variability response data for this family of from these 59 studies corresponds to a could be due to species or endpoint congeners. The commenters assert that value of 0.19. Similarly, the commenters differences in the REP of a chemical. in using the cancer slope factor for determined that the TEF value of 0.1 for Finally, the REP of a chemical can be HxCDD mixtures, the inherent 1,2,3,4,7,8-HxCDF is equivalent to the due to differences in study design, for uncertainties associated with the 93rd percentile of REP estimates example, in vitro studies vs. in vivo application of the TEF approach would obtained from 10 in vivo studies for this studies, or short-term vs. long term in be eliminated. For these reasons, the congener, and that the geometric mean vivo studies. The use of expert judgment commenters recommended that all from these 10 studies corresponds to a and the weighting scheme described cancer risk estimates for HxCDDs and value of 0.041. The commenters asserted above allows for consideration of the HxCDFs be adjusted by a factor of 0.40 that EPA’s risk estimates for dioxin important biological factors regulating (6,200/15,600). Additionally, since the should be adjusted downward to correct the relative potency of a chemical. Use ¥ slope factor of 6,200 (mg/kg-day) 1 is for EPA’s use of upper-bound TEF of the geometric mean ignores this based on scaling doses using body values. Curiously, one of the same biological information. weight raised to the 2⁄3 power, the commenters who opposed the manner More importantly, the information commenters believed that the slope in which the WHO–TEFs were presented by the commenters is not factor should be reduced further to developed, also applauded the use of representative of the actual data account for the Agency’s more recent the WHO–TEFs: ‘‘Thus, [the available on TEFs and how this recommendation that doses be scaled to commenter] fully supports EPA’s shift information is used. Of all the chemicals body weight raised to the 3⁄4 power, from I–TEF to WHO–TEF. This included in the TEF methodology, only resulting in a net adjustment factor of replacement by WHO–TEF needs to be 5 of these chemicals account for over 0.26 for HxCDD and HxCDF risk adopted promptly by all EPA programs 80% of the TCDD equivalents in human estimates. to avoid unnecessary confusion among tissues, 2,3,7,8-TCDD, 1,2,3,7,8-PeCDD, EPA disagrees with the commenters’ the general public’’ and ‘‘[the 1,2,3,6,7,8-HxCDD, 2,3,4,7,8-PeCDF and suggestion that the slope factor for commenter] commends EPA for several PCB 126. The TEF values for, PCB 126, HxCDD mixtures that is presented in good policy decisions in this proposal. 1,2,3,7,8-pentachlorodibenzo-p-dioxin, IRIS is applicable to all dioxin-like Specifically [the commenter] supports and 2,3,4,7,8-pentachlorodibenzofuran, HxCDDs and HxCDFs. The slope factor EPA’s adoption of the WHO–TEF are similar to the mean of the relative presented in IRIS clearly is based on * * *.’’ potencies of these chemicals from in studies of only the 1,2,3,6,7,8- and In response, EPA points out that the vivo studies and in some cases they are 1,2,3,7,8,9- congeners of HxCDD, thus TEF values are based on all available lower than the mean of the relative these are the congeners to which the studies. These studies were conducted potencies. Chemicals for which there is slope factor would apply if EPA chose under a variety of exposure scenarios, limited data tend to have TEFs assigned to use it in the chlorinated aliphatics including chronic, subchronic, short- that are conservative estimates of the

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations 67085 relative potencies specifically because than to the 3⁄4 power, as recommended OW, challenged our assessment of of the limited data. in the 1996 Guidelines (USEPA, 1996). chloroform carcinogenicity at low doses. Another short-coming of the proposed The commenter believed that, as a Based on mode of action considerations, statistical method for determining the result, the cancer risks attributable to EPA’s Science Advisory Board (SAB), TEF is the lack of a weighting scheme. chloroform should be adjusted by a WHO, the Society of Toxicology, and In assigning a TEF value for a particular factor of 0.52 (calculated in the same EPA all strongly endorse the nonlinear congener, all available data comparing manner as discussed for TCDD in approach for assessing risks from the relative potency of a chemical to section VI.A.2.e.i). Another commenter chloroform. Although OW conducted its TCDD or PCB 126 are considered. The asserted that, in evaluating cancer risks evaluation of chloroform expert panel examines these data sets due to chloroform exposure, EPA failed carcinogenicity for oral exposure, the and places more emphasis on studies to consider the EPA Office of Water’s nonlinear approach for low-dose which examine toxic responses (OW) reanalysis of chloroform extrapolation cited by the commenter following chronic or subchronic carcinogenicity. The commenter noted would apply to inhalation exposure to exposures. The proposed alternative that EPA’s December 16, 1998 chloroform as well, since chloroform’s approach, in which the TEF is assigned rulemaking on disinfection byproducts mode of action is understood to be the based in the mean of the relative firmly rejected the LMS approach for same for both ingestion and inhalation potency values, ignores the weighting assessing cancer risks from chloroform exposures. Specifically, tumorgenesis scheme and places a relative potency for exposure. The commenter contended for both ingestion and inhalation biochemical alterations in vitro equal to that in the preamble for OW’s exposures is induced through that for relative potencies based on toxic rulemaking, EPA concluded specifically cytotoxicity (cell death) produced by the responses following subchronic that ‘‘the nonlinear cancer extrapolation oxidative generation of highly reactive exposures in vivo. While the statistical approach is the most appropriate metabolites (phosgene and hydrochloric approach recommended by the means’’ to assess cancer risks from acid), followed by regenerative cell commenters provides an estimate of the chloroform (63 FR 69400). The proliferation (63 FR 15685). As variability, it ignores biological commenter contended that using the explained in EPA OW’s March 31, 1998, phenomena that influence the relative nonlinear approach, exposures to and December 16, 1998, Federal potencies of these chemicals. In chloroform of 0.3 mg/L are considered Register notices pertaining to contrast, the use of expert opinion to pose no cancer risk. The commenter chloroform (63 FR 15673 and 63 FR provides a TEF that is based on believed that, therefore, the 0.2 mg/L 69389, respectively), EPA now believes endpoints of concern and considers central tendency concentration for that ‘‘based on the current evidence for biological factors that influence the chloroform in chlorinated aliphatics the mode of action by which chloroform relative potency of these chemicals. In wastewater poses no cancer risk. may cause tumorgenesis, * * * a the development of the TEF In contrast, a third commenter nonlinear approach is more appropriate methodology, the use of expert opinion strongly supported the proposal to list for extrapolating low dose cancer risk to provide an estimate of the variability chlorinated aliphatics wastewaters rather than the low dose linear approach of the TEF has not been applied. because of the significant risks posed by * * *’’ (63 FR 15685). In fact, OW However, the data base that the expert the hazardous constituents in the waste, determined that given chloroform’s panel uses to derive the TEF is available including chloroform. The commenter mode of carcinogenic action, liver from the WHO and does present the pointed out that health risks from toxicity (a noncancer health effect) range of relative potencies. chloroform are well documented, and actually ‘‘is a more sensitive effect of Finally, the commenter describes the noted that chloroform is a recognized chloroform than the induction of present TEFs as overly conservative human carcinogen, as well as ‘‘a tumors’’ and that protecting against liver based on comparison to the geometric suspected toxicant of the following toxicity ‘‘should be protective against mean of the REPs. It is unclear what the human health systems: cardiovascular carcinogenicity given that the putative commenter means by ‘‘overly or blood toxicant; developmental mode of action understanding for conservative.’’ The true relative potency toxicant; endocrine toxicant; chloroform involves cytotoxicity as a of these chemicals in humans is gastrointestinal or liver toxicant; kidney key event preceding tumor uncertain. Because the true value is toxicant; neurotoxicant; reproductive development’’ (63 FR 15686). uncertain, it is difficult to determine if toxicant; and respiratory toxicant.’’ The the TEF values are over estimates of the commenter noted that chloroform is Given the recent evaluations potency or if they underestimate the ‘‘more hazardous than most chemicals conducted by OW that conclude that true potency of these chemicals. For the in 11 out of 14 ranking systems and is protecting against chloroform’s chemicals described, 2,3,4,7,8-PeCDF ranked as one of the most hazardous noncancer health effects protects against and 1,2,3,4,7,8-HxCDF, the TEF is based compounds (worst 10%) to ecosystems excess cancer risk, EPA now believes on giving greater consideration to and human health.’’ (The commenter that the noncancer health effects studies using the most relevant dosing referenced ‘‘EDF’s Scorecard, www. resulting from inhalation of chloroform regimen and examining toxic endpoints. scorecard.org, on chloroform. Scorecard would precede the development of Use of the geometric mean down plays incorporates governmental and other cancer and would occur at lower doses the importance of the more relevant authoritative information on chemicals, than tumor (cancer) development. studies and provides greater weight to including their known and suspected Although EPA has not finalized a acute and in vitro studies. health effects.’’) The commenter noncancer health benchmark for believed that EPA is clearly justified in inhalation exposure (a reference ii. Chloroform listing chlorinated aliphatics concentration, RfC), the Agency for One commenter claimed that, as was wastewaters. Toxic Substances and Disease Registry the case for TCDD, EPA’s unit risk of While EPA acknowledges the (ATSDR) has developed a Minimal Risk 2.3×10¥5 (ug/m3)¥1 for chloroform was concerns of the commenter who Level (MRL) for inhalation exposure to calculated using the outdated practice of highlighted chloroform’s adverse health chloroform. An MRL is ‘‘an estimate of scaling dose in proportion to body effects, EPA agrees with the commenter the daily human exposure to a weight raised to the 2⁄3 power, rather who, based on evaluations conducted by hazardous substance that is likely to be

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 67086 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations without appreciable risk of adverse section VI.A.3 of today’s preamble we to any particular health endpoint, it noncancer health effects over a specified have made a decision not to list does allow direct comparison of duration of exposure [acute, chlorinated aliphatics wastewaters exposures related to chlorinated intermediate, or chronic]’’ (http:// based on revised estimates of cancer aliphatics wastewaters to background www.atsdr.cdc.gov/mrls.html). To risk. EPA also does not believe there is dioxin exposure experienced by the evaluate the noncancer hazard reason for listing chlorinated aliphatics general population. Using the high end associated with exposure to chloroform wastewaters based on dioxin noncancer exposure estimates developed for the in air, we compared the concentration of effects, as discussed further below. proposed rule, the high end margin of chloroform that we predicted to occur at Although the proposed wastewater incremental exposure due to chlorinated a high end receptor’s point of exposure trigger level to implement tank cover aliphatic wastewaters would be 0.17 for to the ATSDR MRLs for inhalation requirements is moot because we are not an adult farmer and 0.19 for the breast- exposure to chloroform. The high end finalizing the listing as proposed, we do feeding infant of an adult farmer. chloroform exposure point not believe any increased risk of adverse However, we estimate that exposures concentration in air for chlorinated noncancer effects due to dioxin in attributable to chlorinated aliphatics aliphatics wastewaters, approximately chlorinated aliphatic wastewaters is of wastewaters are actually lower than we 0.0001 ppm (0.74 ug/m3), is more than concern in any event. originally presented in the proposed two orders of magnitude below the Typically, EPA calculates a hazard rule, due to our reevaluation of our air chronic inhalation MRL for chloroform, quotient (HQ) to assess the noncancer dispersion modeling results, beef intake 0.02 ppm (the chronic MRL is more health effects resulting from rates, and air emissions modeling protective than either the acute or contaminant exposure. For oral assumptions (see section VI.A.3). intermediate MRLs), indicating that exposures, the HQ is the ratio of an Therefore, we project that the actual there is no concern for adverse individual’s average daily contaminant high end margin of incremental noncancer health effects, or, therefore, dose to the reference dose (RfD 27) for exposure for both the adult farmer and significant increased risk of cancer, the contaminant. EPA has not breast-feeding infant of the adult farmer resulting from inhalation exposure to established RfDs for any of the dioxin or is less than 0.1, that is, an order of chloroform derived from chlorinated furan congeners (USEPA, 1994 28). EPA magnitude or more lower than any risk aliphatics wastewaters. is awaiting the finalization of the Draft that may be attributable to background In response to the commenter who Reassessment before formalizing an exposures (USEPA, 2000b). disagreed with EPA’s use of a slope approach to evaluating noncancer risks factor based on animal data that had from dioxin. In recent years EPA’s 3. Rationale for the Final Listing been adjusted to human equivalent Office of Solid Waste and Emergency Determination: Summary of the Impact of Public Comments on the Proposed doses using body weight raised to the 2⁄3 Response (OSWER) has calculated a power, EPA notes that in OW’s modified margin of incremental Listing Determination for Chlorinated comprehensive reevaluation of exposure (MOIE) to dioxin on a case-by- Aliphatic Wastewaters chloroform carcinogenicity, EPA case basis (for example, see 64 FR As discussed above, public adjusted the animal data to equivalent 52828, September 30, 1999). The MOIE commenters presented arguments that human doses using body weight raised is a tool for evaluating the potential for EPA’s high end deterministic risk to the 3⁄4 power (63 FR 15686), as the occurrence of noncancer health estimate for the adult farmer was in recommended in EPA’s 1996 Guidelines effects due to dioxin. The margin of error and overestimated potential risks (USEPA, 1996). incremental exposure is an expression to human health and the environment. of the additional (increment of) After reviewing and carefully f. Noncancer Dioxin Risks for Adults exposure to dioxin that an individual considering all information provided by and Nursing Infants receives in excess of background commenters, we re-evaluated our risk One commenter asserted that EPA exposure to dioxin. Using this approach, assessment results for air releases of should have considered dioxin we compare the estimated average daily dioxins and chloroform from noncancer endpoints for adults and for dose attributable to chlorinated chlorinated aliphatics wastewaters nursing infants in developing a dioxin aliphatic wastewaters to background managed in aerated biological treatment concentration limit that triggers air exposures in the general population. As tanks. Based on information provided emission control requirements for a measure of risk, the MOIE by commenters, we decided it was wastewater tanks. The commenter presupposes that if exposures are small appropriate to adjust our risk explained that a trigger level based on relative to background, then risks from assessment results to account for noncancer endpoints may be higher these exposures are likely to have cooking and post-cooking losses for than the cancer-based trigger level, but limited significance for human health. beef, a more realistic size of the pasture that EPA should not assume that is the While the MOIE analysis is not specific supporting cattle indirectly exposed to case. The commenter said that EPA dioxin emissions, and the potential for should approximate and consider a 27 In the preamble to the proposed rule, in an solids removal prior to wastewater trigger level for noncancer endpoints. effort to present the concept of RfDs and RfCs in treatment in aerated biological treatment First, we note that the lead option plain language, we incorrectly characterized RfDs tanks. After calculating these and RfCs as levels that EPA considers ‘‘acceptable.’’ proposed by EPA was a ‘standard’ RfDs and RfCs are not by themselves action levels; adjustments to our proposed risk listing for chlorinated aliphatic they do not establish acceptable exposures, nor do assessment results, EPA found that wastewaters, (i.e., listed regardless of they establish danger levels. RfCs and RfDs are used accounting for cooking and post-cooking dioxin concentration) with the dioxin as tools in establishing concern for non-cancer losses for beef would modify the high effects resulting from exposure to contaminants, trigger level proposed as an attempt to and they serve as a common reference point from end risk estimate for the adult farmer by provide a means to implement tank which risk managers can make decisions regarding a factor of 0.78, and accounting for a cover requirements more appropriate to estimates of exposure. more reasonable pasture size would the potential risk, particularly because 28 United States Environmental Protection modify the risk estimate by a factor of Agency (USEPA). 1994. Health Assessment for our data indicated that dioxin levels 2,3,7,8-TCDD and Related Compounds. Public 0.50, resulting in an overall risk varied among generators (64 FR at Review Draft. Office of Research and Development. estimate of 7E–06. This risk estimate 46503). However, as discussed in EPA/600/EP–92/001a–c. September. does not consider the impact of

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Moreover, our proposed aliphatic wastewaters as hazardous aliphatic production facility that estimate of risk due to emissions of waste. manages its wastewaters by disposing of chloroform, which we previously them in UIC wells, some of the facility’s believed would be additive to our 4. Waste Management Practices / Scope wastewaters were, until recently, dioxin risk estimate, is no longer valid of Listing Determination for Chlorinated defined as hazardous waste (i.e., derived given recent Agency information Aliphatic Wastewaters from previously listed hazardous waste) regarding chloroform’s mode of action. EPA believes that the rulemaking and disposed in a Class I hazardous UIC Specifically, there is no concern for record for this rule supports a decision well and in compliance with a no- adverse noncancer health effects not to list chlorinated aliphatic migration petition. Recently, the facility resulting from inhalation exposure to wastewaters based on the typical was granted a delisting for these chloroform derived from chlorinated management scenario of biological wastewaters by the Region VI EPA aliphatics wastewaters, therefore, there treatment in tanks. As mentioned above, Regional Administrator. Given that the is no concern for increased risk of and explained in more detail in Listing Regional Administrator has evaluated cancer. Furthermore, the noncancer Background Document for the these wastewaters and determined that health effects due to dioxin that we Chlorinated Aliphatics Listing the wastewaters, as generated, do not characterized in response to comments Determination (USEPA, 1999c),29 the pose significant risks to human health presented above also would be affected majority of chlorinated aliphatic and the environment and warrant the by the adjustments to our analysis, and manufacturing facilities manage their award of a delisting, we believe that our would be even less than projected. wastewaters in tank-based wastewater decision not to list chlorinated aliphatic Thus, EPA believes that the risk from wastewaters as hazardous waste is ¥ treatment systems and either directly this waste is well below 1 × 10 5. We discharge treated wastewaters under appropriate for this wastestream and acknowledge that there is some NPDES permits, or discharge the this decision will result in no adverse uncertainty associated with the analyses wastewaters to POTWs. However, the impact to human health and the we have conducted in response to the Agency is aware that two facilities treat environment. three comments we found persuasive— their chlorinated aliphatic wastewaters This facility also manages some of its for example, we do not have data to on-site and dispose of the wastewaters chlorinated aliphatic wastewaters as support specific conclusions with in on-site UIC wells. In addition, the non-hazardous waste and injects the respect to the percentage of solids Agency learned from public comments, wastewaters into a Class I non- removed from wastewater by prior to that one facility pipes its wastewaters hazardous UIC well. Although we did biological treatment. Nonetheless, we off-site to a nearby chemical not model this management practice in have been conservative in accounting manufacturing facility that commingles our evaluation of potential risks from for the factors raised by the comments the chlorinated aliphatic wastewaters the management of chlorinated aliphatic and believe the risk is unlikely to be with other wastewaters, and treats the wastewaters, we did examine the higher than our revised estimates. In combined wastewaters in a wastewater specific waste management addition, we note that the risk level treatment system that includes surface requirements governing these presented for these wastewaters in the impoundments. wastewaters. Our evaluation of the proposal (2 × 10¥5 as marginal. As we specific management requirements have explained, we make listing a. Wastewaters Managed in applicable to these wastewaters determinations based on a weight-of- Underground Injection Control (UIC) included a comparison of the state the-evidence approach, and the result of Wells requirements governing Class I non- a decision is not dictated by whether the With respect to the two facilities that hazardous UIC wells and those risk calculated for a waste is slightly manage their chlorinated aliphatic governing Class I hazardous UIC wells. × ¥5 more or less than 1 10 . So, even wastewaters in on-site UIC wells, one of We found that the requirements in aside from the specific revised risk the facilities already manages its Louisiana, where this facility is located, numbers we have calculated, we would wastewaters as hazardous due to the fact for Class I non-hazardous UIC wells are decide not to list this waste based on the that the wastewaters exhibit the toxicity virtually identical to those governing Class I hazardous waste UIC wells. EPA determination that the already marginal characteristic. This facility manages its staff confirmed this conclusion after risk level presented in the proposal hazardous wastewaters in covered consulting numerous sources, including clearly overstates the actual risk tanks, pipes the wastewater directly to a direct examination of the state associated with the waste, and that the a Class I hazardous UIC well and regulations and discussions with state actual risk is almost certainly complies with RCRA and CAA (HON) × ¥5 authorities and EPA Regional personnel. considerably below the 1 10 level. air emissions requirements. Due the fact Therefore, the Agency concludes that We also note that in our evaluation of that this wastewater is being managed as potential air releases from wastewaters these wastewaters, we determined that a hazardous waste and in full managed in biological treatment tanks the levels of constituents in the compliance with RCRA subtitle C and do not present significant risk to human wastewaters are equivalent to the levels applicable CAA requirements, we health and the environment and do not for which the facility’s other support listing chlorinated aliphatic conclude that this wastestream does not wastewaters were recently delisted. This wastewaters as hazardous wastes. After present significant risk and we believe indicates that these wastewaters will not carefully reviewing our analyses and that our decision not to list these pose risk when managed in Class I UIC making necessary adjustments to our wells at this specific facility. Given 29 U.S. EPA. 1999c. Listing Background risk estimates based upon arguments Document for the Chlorinated Aliphatic Listing these conclusions, we think this and information presented in public Determination (Proposed Rule). Office of Solid practice is protective and believe that comments, we estimate that air releases Waste. July. our decision not to list chlorinated

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 67088 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations aliphatic wastewaters will have no unrealistic) assumptions used in the in its listing decisions and generally has adverse impact on human health and screening analysis (that is, it may not be tried to account for all the waste the environment due to the management safe to drink the wastewaters as management practices and units of of this facility’s wastewaters in non- generated in the impoundment). which it is aware. However, in this hazardous UIC wells. However, given the overly protective rulemaking, EPA was faced with the nature of that screening assessment, the b. Wastewaters Managed in Surface choice of continuing this practice— ‘‘screening analysis’’ does not provide Impoundments which would have meant diverting time meaningful information about any risks from completing the rulemaking to At the time EPA published the actually associated with this waste attempt to negotiate a further extension proposed listing determination for management practice and, therefore, it of the consent decree—or completing chlorinated aliphatic production wastes, does not provide a basis for listing the the rulemaking on schedule. Although the Agency was not aware that any wastewaters as hazardous. EPA could always perform more chlorinated aliphatic wastewaters were EPA has to make the best decision it complete and rigorous analysis given managed in surface impoundments. can with the information and analysis it more time on any rule, at some point it EPA noted in the preamble to the has at the time of its evaluation. EPA is appropriate to move toward finalizing proposed rule that although information has decided at this time not to list as a decision and cut off further analysis. available to the Agency, at the time of hazardous chlorinated aliphatic In view of the length of time already the proposed rule, indicated that surface wastewaters, regardless of how the devoted to this rulemaking and the impoundments had been used in the wastewaters are managed. We are number of extensions previously past, available information indicated finalizing this no list determination, negotiated to the consent decree, and that chlorinated aliphatic wastewaters given that the data and analysis before the fact that only one waste are not managed in surface us, while indicating some potential for management unit was unaccounted for impoundments today. However, as a risks from the management of in our analysis, EPA decided to issue a result of public comments to the wastewaters in surface impoundments, final determination not to list aliphatics proposed rule, the Agency obtained does not warrant a decision to list these wastewaters without accounting for this information indicating that a single wastewaters as hazardous. Simply put, unit. facility, which is not a chlorinated EPA was unable, in the time afforded EPA is not deferring a decision for aliphatics manufacturing facility, under the consent decree, to perform a chlorinated aliphatics wastewaters; it is accepts wastewaters from a chlorinated full risk assessment for this waste making a final decision not to list the aliphatic manufacturer and treats the management practice and to subject that wastewaters. Of course, EPA can always chlorinated aliphatic wastewater stream decision to public comment, and the consider additional information and after commingling it with other screening assessment that EPA was able analyses in the future and make further wastewaters generated at the chemical to do was indeterminate. Although EPA regulatory decisions based on that. In manufacturing facility. The commingled cannot rule out the possibility that this addition, should EPA learn that the wastewaters are treated in a wastewater practice may present some risk to management of waste at this treatment system that includes human health and the environment, impoundment presents a threat to biological treatment in surface EPA has fully assessed the risk human health and the environment, impoundments. presented by the predominant mode of After receiving information indicating EPA could consider taking site-specific waste management and made the action to abate the threat without listing that one facility was managing determination that it does not present a chlorinated aliphatic wastewaters in the waste, e.g., an action under RCRA substantial hazard. In fact, of the 23 Section 7003. surface impoundments, the Agency chlorinated aliphatic manufacturing conducted additional research to facilities that generate wastes effected B. Wastewater Treatment Sludges From determine if other chlorinated aliphatic by this rulemaking, only 3 facilities the Production of EDC/VCM wastewaters were being managed in manage wastewaters in non-tank based EPA is listing as hazardous sludges impoundments. The results of this systems. Under these circumstances, generated from treating wastewaters research are that the Agency could EPA has concluded that it is appropriate associated with the manufacture of identify no other facilities managing to make a final decision based on the ethylene dichloride and vinyl chloride chlorinated aliphatic wastewaters in information and analyses with respect monomer. This wastestream meets the surface impoundments. to all the units and practices other than criteria set out at 40 CFR 261.11 (a)(3) As a result of comments received in this impoundment. response to the proposed rule indicating for listing a waste as hazardous and is This conclusion is based in part on capable of posing a substantial present that one facility treats chlorinated our interpretation of our obligation or potential hazard to human health or aliphatic wastewaters in surface under RCRA section 3001(e)(2). Under the environment when managed in land impoundments, EPA did a screening that provision, Congress required that treatment units. EPA is finalizing a analysis of potential risks from these EPA make final listing determinations conditional listing for this waste, based wastewaters when managed in an for 17 different waste categories in 15 upon the Agency’s determination that impoundment. That risk screening months. In view of the scope of the task the waste does not pose a substantial analysis was based on very conservative and the tightness of the timeframe risk when disposed of in a landfill. assumptions that result in an established, Congress could not have overestimate of risk, given that the intended that EPA conduct an in-depth K174 * * * Wastewater treatment Agency assumed there would be no review of every unit managing any sludges from the production of ethylene dilution of the wastewater in the amount of waste within the categories. dichloride or vinyl chloride monomer environment and that an individual Rather, Congress must have intended (including sludges that result from commingled ethylene dichloride or vinyl would drink the wastewater directly that EPA make the best reasoned chloride monomer wastewater and other from the impoundment. The screening judgment it can based on analyses and wastewater), unless the sludges meet the analysis suggested that wastewaters information that are reasonably following conditions: (i) they are disposed of might pose risks in impoundments representative of the waste categories. In in a subtitle C or non-hazardous landfill under the very conservative (and practice, EPA has gone well beyond this licensed or permitted by the state or federal

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Additionally, placed on the land prior to final disposal; 46476; 64 FR 49052 (September 9, 1999 there was evidence that the land and (iii) the generator maintains Federal Register). application unit where these wastes are documentation demonstrating that the waste Issues raised by commenters, and data currently managed had releases of other was either disposed of in an on-site landfill provided in comments received in or consigned to a transporter or disposal constituents to the environment, which facility that provided a written commitment response to the proposed rule, caused indicates that there may not be adequate to dispose of the waste in an off-site landfill. the Agency to reevaluate the risk coverage by other regulatory Respondents in any action brought to enforce analyses that were the basis of our programs.31 Because industrial solid the requirements of subtitle C must, upon a proposed risk estimates. After careful waste land treatment is a plausible showing by the government that the consideration of information provided management scenario for these wastes, respondent managed wastewater treatment by commenters, we lowered the EPA is concerned about EDC/VCM sludges from the production of vinyl chloride estimated risk associated with the sludges managed in this manner where monomer or ethylene dichloride, management of EDC/VCM sludges in a dioxin (a chemical that is persistent demonstrate that they meet the terms of the land treatment unit. While the Agency’s over the long term) is the constituent of exclusion set forth above. In doing so, they proposed high-end deterministic risk must provide appropriate documentation concern. (e.g., contracts between the generator and the estimate for the land treatment unit (2E– Finally, the EPA’s concern is that not landfill owner/operator, invoices 4) was at a level at which the Agency only is the application of dioxin- documenting delivery of waste to landfill, presumes a waste poses sufficient risk to containing wastes in a land treatment etc.) that the terms of the exclusion were met. be listed (i.e., 1E–4 or greater), the unit plausible, it is in fact occurring. No revised risk estimate (7E–5) falls within commenter provided evidence that 1. Summary of the Agency’s Listing the range of risks where the Agency may absent a decision to list the waste, there Decision for EDC/VCM Wastewater decide to list the waste as hazardous is other regulatory authority that would Treatment Sludges (i.e., between 1E–4 and 1E–6), upon assure that the risks the Agency consideration of additional factors. 59 EPA evaluated potential risks from estimates for this practice would not FR at 66077. More specifically, EPA has the management of wastewater continue, either at the facility currently previously stated that where risk treatment sludges generated by utilizing this practice, or at a different estimates are within the 1E–4 to 1E–6 producers of ethylene dichloride (EDC) facility. range, there is a ‘‘presumption of and vinyl chloride monomer (VCM). The Agency concludes, based upon candidacy for either listing (risk >1E–5) This waste grouping consists of all the estimated risk for dioxin of 7E–5, or no listing (risk < 1E–5).’’ 59 FR at sludges generated from the treatment of and after considering other relevant 66077. Applying that approach in this EDC/VCM wastewaters, excluding factors described above, that EDC/VCM instance, the risk estimate for the land sludge generated from the treatment of wastewater treatment sludges pose a treatment unit of 7E–5 is not only VCM-A wastewaters (discussed substantial hazard when managed in greater than 1E–5, it is in the upper end elsewhere in today’s rule). EPA land treatment units. In addition, the of the range between 1E–5 and 1E–4. estimates, based upon 1996 data, that Agency concludes that this waste does Comments received on the Agency’s approximately 104,600 metric tons of not pose a substantial hazard when proposed risk analysis for the landfill wastewater treatment sludges are managed in landfills. Based on these waste management scenario did not generated annually by facilities that conclusions the Agency is promulgating result in the Agency modifying the risk produce EDC and/or VCM. a conditional listing for this waste. EPA estimate for the landfill. High-end EDC/VCM wastewater treatment is listing EDC/VCM wastewater deterministic risk estimates for the sludges are generated by 12 facilities. treatment sludges as hazardous waste, landfill scenario were all well within Most facilities manage these sludges by unless the sludges are managed in the presumptive no-list range (i.e., less disposing of them either in a hazardous landfills. The conditional listing than 1E–6) with the exception of waste landfill or a non-hazardous waste promulgated today also requires that arsenic, the groundwater risk for which landfill. However, one facility manages EDC/VCM wastewater treatment sludges was estimated at 3E–5. (The Agency’s its EDC/VCM sludges in an on-site land not be placed on the land prior to discussion of additional factors that led treatment unit. To assess the potential disposal. In addition, generators must be EPA to decide that the arsenic risk human health risks associated with able to demonstrate that the sludges are estimate alone did not support listing EDC/VCM sludges, EPA evaluated managed in accordance with the EDC/VCM wastewater treatment sludges potential risks from managing this waste conditions for being excluded from the managed in landfills is presented below in an off-site non-hazardous waste hazardous waste listing. in Section VI.B.2.b.v. of this preamble.) (unlined) landfill and an on-site land The Agency is therefore listing as 2. Response to Major Comments treatment unit. The highest risk hazardous EDC/VCM wastewater Received on Proposed Rule for EDC/ estimates were calculated for an adult treatment sludges (using a conditional VCM Wastewater Treatment Sludges farmer who ingests beef and dairy listing approach as proposed) based products containing dioxin derived EPA received comments on a number upon EPA’s consideration of the risk of issues concerning the data and from airborne releases and erosion/ estimates and additional factors. The runoff from the land treatment unit. The analyses EPA used to arrive at our Agency’s decision was influenced by listing decisions for EDC/VCM proposed high end and central tendency the fact that dioxin has been heavily risk results for the farmer exposed to wastewater treatment sludges. In studied, and the dioxin concentrations addition, one commenter asserted that dioxin from the land treatment unit and volumes of EDC/VCM sludge have were 2E–4 and 4E–6, respectively. The many of the comments on EPA’s been well characterized in EPA’s study analysis of dioxin risks from the Agency also concluded in the proposal of this industry (and, along with the that the management of EDC/VCM management of chlorinated aliphatics toxicity 30 of dioxin, were incorporated wastewater treatment sludges in 31 See Appendix A.—Environmental Release landfills does not present risks of 30 Dioxin has the highest slope factor (an Descriptions, in Hazardous Waste Characteristics sufficient concern to support a decision indicator of carcinogenic potency) of any chemical Scoping Study U.S. EPA, November 15, 1996, pp. to list the sludges as hazardous waste in the EPA IRIS database. A–28 and A–29.

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The comments had accounted for the likelihood that we received may be generally divided EDC/VCM wastewater treatment sludges A commenter questioned the into nine categories: (1) Comments on generated by different facilities may be Agency’s use of analytical results from EPA’s waste management assumptions; co-disposed in the same landfill. ‘‘dedicated’’ sludge samples in its risk (2) comments on the exposure scenarios In response to the commenter’s analysis and the commenter indicated we evaluated in our risk assessment; (3) concerns regarding co-disposal of that some of the ‘‘non-dedicated’’ sludge comments on how we calculated sludges, the Agency wishes to clarify samples appear to have higher dioxin exposure point concentrations in the that we did, in fact, account for co- concentrations than the dedicated risk assessment; (4) comments on EPA’s disposal of EDC/VCM sludges where samples. As explained in the preamble exposure assessment; (5) comments on information provided in the RCRA 3007 to the proposed rule (see 64 FR 46483), EPA’s toxicity assessment for dioxin; (6) questionnaire responses showed that ‘‘dedicated’’ wastes are those wastes comments on how we characterized multiple generators dispose of the attributable only to the production of risks associated with arsenic; (7) sludges in the same off-site landfill. As EDC/VCM and do not include wastes comments on demonstrating compliance documented in the Listing Background derived from the production of other with the listing description; (8) Document (USEPA, 1999c, USEPA, chlorinated aliphatic wastes and comments on the status of EDC/VCM 2000e), the Agency accounted for two commingled with EDC/VCM sludges. In sludges that are managed in ways other instances where sludges generated by our risk analysis, EPA used analytical than land treatment or landfilling; and two generators are disposed in the same information from samples of dedicated (9) comments on whether or not a landfill.32 In both cases, the Agency sludges only to isolate the risks from contingent management approach to the used the combined sludge volume in constituents attributed to those wastes listing is appropriate. The comments, assessing the quantities of sludges generated from the production of the and the Agency’s responses to these managed in off-site landfills. chlorinated aliphatic chemicals of comments, are described below. In response to other concerns raised concern to this listing determination. by the commenter, the Agency reviewed Given the commenter’s concerns, the a. Waste Management Assumptions the sensitivity analyses for the landfill Agency did review the dioxin Eleven facilities manage EDC/VCM analyses that were presented in the July concentrations in the sludge samples wastewater treatment sludges by 1999 Risk Assessment Technical not included in the risk analysis. The disposing of them either in a hazardous Background Document. Our conclusion Agency found that on the basis of dioxin waste landfill or a non-hazardous waste is that predicted risk levels are not very TEQs, the highest dioxin concentration landfill. One facility manages this waste sensitive to changes in waste volume. in the ‘‘non-dedicated’’ samples (those in an on-site land treatment unit. As a As shown in Table H.3.3 in Appendix not included in our analysis) was less result of public comment, the Agency H of the Risk Assessment Technical than one fourth of the highest has learned that one facility generates Background Document (USEPA 1999a), concentration of dioxins (on a TEQ and manages EDC/VCM wastewater we found that increasing waste volume basis) found in the samples used in the treatment sludges in surface from the central tendency value of analysis. Therefore, had the Agency impoundments. approximately 15,000 m3 to the high used the analytical results from the non- In 1996, approximately 104,561 end value of approximately 51,000 m3 dedicated samples in its analysis, the metric tons of wastewater treatment increases the maximum 9-year average use of the dioxin concentrations would sludges were generated in wastewater receptor well concentration, thus risk, not have caused an increase in the risk treatment systems used to treat process by only a factor of 1.6 in the 10,000 year estimate. wastewaters from the manufacture of time period that we modeled. This A commenter also questioned EPA’s EDC/VCM. Of this volume, means that if waste volumes more than use of TCLP analytical results to predict approximately 6,574 metric tons is tripled, the risk estimate would be leachate concentrations of contaminants attributable to the production of EDC/ expected to increase by only a factor of from landfill disposal of EDC/VCM VCM. The remaining sludge volumes 1.6 (that is, to 5E–05). Such an increase wastewater treatment sludges. The are associated with the treatment of in production and waste generation, commenter questioned why EPA’s data other process wastewaters that are which results in a relatively small showed that lead and chromium are not commingled with EDC/VCM process change in potential risk, would not detected using the TCLP, given that wastewaters and treated in the same cause the Agency to change its listing these constituents were found in the wastewater treatment system. decision. The Agency also points out total constituent analysis of the sludges. that there may be significant The commenter suggested that high iron i. Waste Volumes content in the sludges may affect the uncertainties in projecting changes in One commenter questioned whether concentration of lead predicted by the the volume of waste generated, based EPA used the correct assumption with TCLP analysis, citing data in a previous upon increased production capacity, regard to waste volume in the risk EPA rulemaking (Phase IV Land due to uncertainties in the relationship assessment, given that the production of Disposal Restrictions, or LDR, proposed between production rates and waste EDC/VCM may be increasing in the rule) that suggests high iron content generation rates and the effects that United States. The commenter cited effects lead. EPA believes that the technology changes, types of facility information provided in the Agency’s commenter is referring to an issue first expansions (i.e., increased production Economics Background Document for raised in the Phase III LDR proposed capacity at existing facilities versus the proposed rule. The commenter rule and subsequently finalized in the asserted that had EPA assumed a larger 32 See page 56 of ‘‘Listing Background Document Phase IV LDR final rule on May 26, 1998 waste volume, based upon increased for the Chlorinated Aliphatics Listing (63 FR 28556). In the Phase IV LDR final future production capacity, the result Determination’’ (USEPA, 1999c). rule, EPA determined that the addition

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In addition, EPA called the assessment for EDC/VCM sludges 268.3(d)). The commenter stated that owner/operators of each of the landfills managed in a land treatment unit. EPA should determine whether the non- identified in the RCRA 3007 i. Particulate Emissions From Landfills detects for lead in the sludge samples questionnaires as accepting EDC/VCM are an artifact of the TCLP, and if so, wastewater treatment sludges for Based upon information provided in that EPA should instead use partitioning disposal. In every case, the owner/ responses to the RCRA § 3007 equations rather than TCLP data in the operators indicated that daily cover is questionnaires, EPA evaluated the risks landfill modeling. applied and that the facility is equipped associated with the management of In response, the Agency notes it has with runon/runoff controls. In addition, EDC/VCM wastewater treatment sludges consistently relied on the results of all but one of the landfills contacted in unlined municipal landfills and in a TCLP leach tests in estimating the accepts . land treatment unit. We determined that leaching potential of wastes for making Therefore, Federal and state regulations releases from landfills could occur listing determinations, although more require these landfills to apply daily through the release of vapor emissions recently this use in listing cover and be equipped with runon and to the air and through leaching of the determinations has narrowed to runoff controls. In addition, we expect waste into the subsurface. One evaluation of leaching potential of that state agencies will continue to commenter was concerned that EPA had wastes actually or plausibly being require these technical standards in not considered the risks due to exposure managed in Municipal Solid Waste future. Given that all landfills currently to particulate emissions from landfills (MSW) landfills (see for example, 65 FR accepting EDC/VCM wastewater in which EDC/VCM wastewater 55684, September 14, 2000 Federal treatment sludges currently are applying treatment sludges are disposed. The Register). As presented elsewhere in daily cover and are equipped with commenter acknowledged that the today’s preamble, the Agency modeled runon/runoff controls and given that Agency did not evaluate particulate an unlined, MSW landfill for EDC/VCM state agencies in states where EDC/VCM emissions because the Agency assumed sludges, which is not only plausible but sludges currently are generated and that the moisture content of the waste is actually occurring as well (see section managed require these controls, the would prevent the release of below on landfill controls). Agency concludes that the commenters’ particulates. The commenter indicated In addition, after reviewing the concerns are unfounded. that the assumption that sludges would information related to the LDR have sufficient moisture content to rulemakings referenced by the b. Risk Assessment Exposure Scenarios, prevent particulate emissions was ‘‘not commenter, and the analytical data for Contaminant Fate and Transport well founded, given possible climate the EDC/VCM sludge samples EPA used Modeling, Exposure Assessment, and and wind conditions (for example, in the landfill analysis, EPA does not Toxicity Assessment location of a landfill in an arid climate believe there would be potential risks EPA received comments on several with high wind).’’ from groundwater even if all of the lead aspects of the landfill and land The Agency disagrees with the leached out of the samples EPA used in treatment unit risk assessments that we commenter. As explained in the the landfill modeling, therefore the conducted to support the EDC/VCM proposed rule (64 FR 46484), data screening analysis performed was quite wastewater treatment sludge listing collected by the Agency in support of adequate to conclude that no significant determination. EPA received two the listing determination indicate that risks would be posed by the lead in the specific comments concerning the the EDC/VCM sludges have a high EDC/VCM sludges. For further exposure scenarios that we evaluated in moisture content. Samples analyzed by information the reader is referred to the the landfill risk assessment: 1) that we the Agency had moisture contents of Response to Comments Document for did not evaluate particulate emissions between 41 and 74 percent, which today’s rule. from landfills, and 2) that we failed to should prevent generation and release of consider ‘‘non-routine’’ exposures. EPA particulates to the air during the time iii. Landfill Controls also received a comment on the between placement of the waste in the Two commenters questioned why contaminant fate and transport landfill and the application of daily EPA assumed, in its risk assessment for modeling that was conducted for the cover (or the application of new waste). EDC/VCM sludges managed in landfills, groundwater pathway analysis under Moreover, based on the results of our that non-hazardous waste landfills are the landfill scenario. EPA uses risk analyses for the land treatment unit, covered daily and have runoff and contaminant fate and transport we do not think that particulate runon controls. The commenters stated modeling to estimate the contaminant emissions from landfills, even if they that some states do not require concentrations at the receptor’s point of did occur, would present significant industrial, non-hazardous waste, exposure. Commenters contended that risk. Under the land treatment unit landfills to apply daily cover and/or we had not correctly evaluated scenario, dioxins were the only install runon and runoff control groundwater pathway risk for the contaminants for which we identified systems. The Agency contacted state landfill because we assumed that significant risks due to air releases, and agency officials in states where leaching of the landfill did not begin only 8 percent of the dioxin risk was generators of EDC/VCM wastewater until after landfill closure. Lastly, we due to particle phase air releases, while treatment sludges are located and where received a general comment that we 92 percent of the risk was due to vapor landfills identified in the RCRA 3007 believe applies to several aspects of our phase air releases (Table 5–8; USEPA, questionnaires as accepting EDC/VCM land treatment unit risk assessment: the 1999a). Under the landfill scenario, the wastewater treatment sludges are exposure scenarios evaluated, the vapor pathway dioxin risk was located. Officials in each state indicated contaminant fate and transport estimated to be 4E–10 (Appendix H.3.1,

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Table H.3–1c; USEPA, 1999a). Even iii. Delay of Landfill Leaching Until in the risk assessment for EDC/VCM though we did not calculate risks from After Closure sludges managed in a land treatment particle emissions, we expect they In evaluating releases to groundwater unit. The commenter contended that would be even less than 4E–10, based from the landfill used to manage EDC/ ‘‘[f]or the same reasons articulated’’ for on the relative risks from land treatment VCM sludge, EPA made a simplifying wastewaters, ‘‘EPA should reevaluate units. assumption that contaminant leaching and adjust risk assessment parameters as necessary before proposing to list ii. ‘‘Non-Routine’’ Exposures from the landfill does not occur until such wastes, even under a land One commenter claimed that virtually after the landfill closes (that is, after 30 years). As we explained in the proposed treatment scenario.’’ the entire risk modeling effort was Although the commenter was not rule, we made this assumption because confined to long-term chronic risk specific regarding which aspects of their of the complexities associated with exposures, that is, primarily indirect comments on the wastewater risk exposures offsite of a management linking the output of our landfill analysis they felt applied to the facility. The commenter believed that partitioning equations and our Agency’s evaluation of EDC/VCM EPA ignored activities at the waste groundwater model, EPACMTP (EPA’s sludges managed under a land treatment management unit itself, and therefore Composite Model for Leachate unit scenario, we reviewed the risk ignored risks to workers and others at Migration with Transformation assessment comments for wastewaters the waste management facilities. The Products). Two of the public to determine which could be relevant to commenter believes EPA also should commenters and all three of the peer the land treatment unit analysis. The consider acute exposure risks through reviewers questioned the comments that we focused on are accidents and other ‘‘non-routine’’ appropriateness of our assumption, discussed below. Section VI.B.3 waste management conditions. suggesting that it would lead to an summarizes how the comments Examples of such conditions provided underestimate of risk. One commenter influence the proposed risk estimate for by the commenter include high winds noted that during the period when the EDC/VCM sludges managed in a land (40—60 mph) on dry days, drought or landfill is open and the waste is treatment unit. arid conditions, heavy rainfall, and exposed directly to storm water, hurricanes. The commenter stated that ‘‘leachate migration of contaminants is Cooking and Post-Cooking Losses for heavy rainfall and hurricane conditions at its highest level.’’ Beef could cause substantial amounts of In retrospect, we realize that we were The commenter claimed that the dioxin-laden solids to be moved over not completely clear concerning how intake rates that EPA used for beef land and into streams if the wastes were our landfill modeling approach should have been adjusted downward to disposed in an unbermed area. The considers the production of leachate account for cooking and post-cooking commenter expressed concern that over the life of the landfill. Because of weight loss, as recommended in the during windy and arid conditions, the way our landfill model is Exposure Factors Handbook (USEPA, dioxin-laden particulates may be constructed, the application of daily 1997). As was the case for wastewaters dispersed from the landfill and beyond cover and a final cap only limits the (see section VI.A.2.d.), EPA agrees that the unit boundaries. The commenter release of air emissions from the we should have accounted for cooking argued that the analysis of non-routine landfill, daily cover and final cap do not and post-cooking losses of beef in our exposures is appropriate because of the limit the production of landfill leachate. exposure analysis for the land treatment toxicity and persistence of dioxin This is because the infiltration rate that unit. relative to other contaminants. we use for the landfill during its active The commenter was concerned that life is the same as the infiltration rate Assessment of the Toxicity of Dioxins EPA did not evaluate acute exposure to that we use for the landfill once it is and Furans dioxins under scenarios involving closed—we assume that the infiltration In our evaluation of the comments on workers, extreme climatological events, through the daily cover and final cap is wastewaters, we disagreed with the or accidents. EPA agrees that it can be the same as the infiltration through the commenter’s claim that we should appropriate to assess acute exposure exposed waste. Our basis for assuming modify the cancer slope factor that we scenarios or accidents in certain cases. that the cap will not reduce infiltration used for TCDD and that our TEFs However, in the case of chlorinated is that we predict that over the long represent upper-bound values. Our aliphatic sludges, we did not believe term a cap will fail, and will cease to responses to these comments are that such scenarios merited explicit function effectively. Consequently, the provided in section VI.A.2.e.i. Although analysis because the sludges, which effect of delaying leaching of the landfill we also disagree with the commenter’s result from the treatment of until after closure is only to ‘‘offset’’ the assertions that we should use the IRIS wastewaters, do not contain the very arrival of the peak contaminant slope factor for HxCDD mixtures in our high concentrations of dioxins that we concentration at the groundwater risk assessment (see section VI.A.2.e.i.), believe would be necessary to result in receptor well by 30 years. For the sole eliminating the 1,2,3,6,7,8- and estimates of significant acute risk or contaminant of concern for the landfill, 1,2,3,7,8,9-congeners of HxCDD from hazard. For example, the highest TCDD arsenic, the peak arrival time was the land treatment unit risk analysis TEQ concentration reported for estimated to be 8800 years. Reducing completely would have the impact of dedicated EDC/VCM wastewater this time estimate by 30 years is clearly modifying the high end risk estimate for treatment sludges, 0.907 ug TCDD TEQ/ insignificant. the adult farmer only by a factor of 0.97, kg, is below EPA’s Superfund soil action iv. Overly Conservative Land Treatment which would not significantly change level of 1 ug TCDD TEQ/kg which was the results of the risk analysis. developed to be protective of direct long Unit Risk Analysis term exposure to dioxins in residential One commenter maintained that EPA Should Have Evaluated Site- soils and therefore clearly would be ‘‘much of the same type of over Specific Exposure Scenarios protective of shorter term exposure conservatism’’ that was present in the The commenter maintained that EPA (OSWER Directive 9200.4–26, April 13, risk assessment for the chlorinated should have used a site-specific 1998). aliphatic wastewaters also was present approach to assessing risks from

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations 67093 management of chlorinated aliphatics cattle farming operations to chlorinated in feed, thus the concentrations in dairy wastewaters (see section VI.A.2.b). The aliphatics facilities was confirmed by and beef. In subsequently evaluating the commenter suggested that such an commenters on the wastewater risk land treatment unit dioxin mass approach would recognize that EPA’s analysis, EPA notes that, in addition, a balance, we determined that, due to assumption that a farmer lives at the land use map depicts the location of the limitations of the available model, we same location within 300 meters of a facility that operates the land treatment overestimated the amount of dioxin- chlorinated aliphatics facility for 48.3 unit as adjacent to land described as contaminated soil lost from the land years, and raises fruits, exposed cropland and pasture (USEPA, 2000b). treatment unit due to erosion over long vegetables, root vegetables, beef cattle, In addition, in a 1994 aerial photograph durations (USEPA, 2000b). The revised and dairy cattle within this distance, is of the facility (located in the docket for risk estimate that considers these unrealistic. In addition, the commenter the final rule), areas adjacent to the modifications is presented in section challenged the amounts of home- facility are depicted as being used for VI.B.3. produced beef, dairy products, agriculture. Third, a 1986 RCRA Facility vegetables, and fruits that EPA assumed Assessment (RFA) conducted at the v. Characterization of Arsenic Risk were consumed by the farmer. facility at which the land treatment unit Results Although the Agency’s response to is located noted the following for a Several commenters were concerned these comments is presented in our landfarm/land treatment area at the that although EPA found risks from discussion of chlorinated aliphatics facility: ‘‘* * * the State issued a arsenic that are within its discretionary wastewaters in section VI.A.2.b, there violation to the facility for allowing range for listing EDC/VCM wastewater are a few additional points that we can cows to graze in this area.’’ treatment sludges, EPA did not include make with regard to the exposure EPA Incorrectly Evaluated the arsenic as a basis for the listing scenario we considered in our determination and the contingent evaluation of the risk associated with Contribution of Feed to Dioxin Levels in Dairy and Beef management listing for EDC/VCM management of EDC/VCM wastewater wastewater treatment sludges allows treatment sludges in a land treatment The commenter raised several issues this waste to be managed in landfills unit. Although our land treatment unit related to how EPA evaluated the despite our risk assessment results for analysis was inherently more site- contribution of feed to dioxin levels in arsenic. specific than our analysis of dairy and beef. The Agency’s responses EPA evaluated potential risks from wastewaters (since only one facility uses to most of these concerns are addressed arsenic resulting from both landfill a land treatment unit to manage EDC/ in section VI.A.2.c.ii. As was the case management of EDC/VCM wastewater VCM sludges), we do not believe, for the for wastewaters, we reviewed our treatment sludges and management of reasons presented in section VI.A.2.b.i, methodology for estimating the the waste in a land treatment unit. In that it would have been appropriate to concentrations of dioxins in beef and the case of the landfill scenario, risk conduct facility-specific risk analyses dairy products. The dioxins in the beef assessment results showed a high-end for chlorinated aliphatics wastes. and dairy products result primarily from risk from arsenic from a groundwater In response to concerns regarding the the cattle’s intake of forage and soil that ingestion exposure pathway, to be 3E– likelihood that a farmer would raise are contaminated by air emissions and 05. However, this potential risk level is fruits and vegetables for home runoff/erosion from the modeled land predicted to occur only after a very consumption, in addition to producing treatment unit—minor levels of dioxins significant period of time. Our modeling are contributed to cattle as a result of beef and dairy products, EPA refers to results indicate that, after a period of the cattle’s ingestion of grain or silage Table 5–8 of the Risk Assessment 8,800 years, the disposal of EDC/VCM (USEPA, 2000b). Consequently, all that Technical Background Document sludge in an unlined landfill would (USEPA, 1999a) that shows that only 4 is required for the adult farmer to realize result in an increase in the percent of the high end risk for the adult the risk that EPA presented in the concentration of arsenic in groundwater farmer was due to ingestion of home proposed rule is that the farmer in a down gradient well (102 meters grown fruits and vegetables. As was the consume beef and dairy products from the landfill) by only 1.4 ug/L and case for wastewaters, even though EPA derived from cattle that consume forage would add approximately 2 ug/day of believes it is plausible that a subsistence and incidentally ingest soil from the arsenic to the average daily exposure or hobby farmer would raise fruits and farmer’s pastureland/field. That is, it is level (about 20 ug/day) for the highly vegetables for home consumption, the not necessary that the farmer consume exposed individual. validity of EPA’s risk estimate depends home-grown fruits and vegetables, or Given these predicted circumstances, almost entirely on the validity of our that the farmer produce grain or silage assumption that a farmer might for use as cattle feed. As was the case we conclude that the risks from arsenic consume both beef and dairy products for wastewaters, we felt that we likely for the landfill scenario are not from cattle raised on a farm located near should have considered how the significant for several reasons. The a chlorinated aliphatics production concentrations of dioxins in air vary predicted risks levels are associated facility. While we responded to this over a wider areal extent that would be with a peak arsenic concentration in a comment in our previous discussion of more consistent with the area of a receptor well that is estimated to occur wastewaters, EPA notes that even in the pasture where cattle graze. Similar to only after a very long period of time. In specific case of the facility where the wastewaters, we calculated what the addition, the predicted high-end arsenic existing land treatment unit is located, impact would be to the risk estimate if concentration at a receptor well (1.4 there is evidence of the potential close we accounted for a more reasonable ppb) is very close to the median arsenic proximity of grazing cattle. First, the pasture/field size (USEPA, 2000b). In background concentration of 1.0 ppb most recently available agricultural addition, in response to comments from found in groundwater in Texas and 33 census data (1997) indicate that both peer reviewers, we also reviewed the Louisiana. The predicted high-end beef and dairy cattle were reported as method by which we evaluated risk 33 Focazio, M.J., Welch, A.H., Watkins, S.A., being raised in the parish in which the attributable to the runoff/erosion Helsel, D.R., and Horn, M.A., 1999, A Retrospective land treatment unit is located. Second, pathway to ensure that we appropriately Analysis on the Occurrence of Arsenic in Ground- although the potential proximity of characterized the dioxin concentrations Continued

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 67094 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations arsenic concentration also is well below only after a long period of time). The documentation of past and on-going the current maximum contaminant level Agency concludes that the risk posed disposal practices such as signed non- (MCL) allowed for arsenic in drinking from potential releases of arsenic in this hazardous waste manifests, shipping water and below the revised MCL for wastestream does not warrant listing the papers, and/or invoices may provide an arsenic recently-proposed by EPA’s waste as hazardous. However, in the appropriate demonstration of proper Office of Ground Water and Drinking case of the land treatment unit scenario, management. The Agency points out Water. The current MCL for arsenic is the Agency determined that the waste that a generator’s or handler’s ability to 50 ppb, the revised MCL proposed by should be listed as a hazardous waste demonstrate recent and/or on-going EPA is 5 ppb (65 FR 38888). based upon the potential risks shipments of EDC/VCM wastewater Given that the estimate of potential associated with dioxin concentrations treatment sludges to appropriate risk for arsenic is within the range of found in the waste. The Agency disposal facilities will serve as sufficient risk levels in which the Agency therefore is listing EDC/VCM demonstration of their intent to exercises discretion with regard to a wastewater treatment sludges based continue such management practices for listing decision (i.e., predicted risk solely on the presence of dioxin and the wastes being appropriately stored on- levels are less that 1E–04), the Agency’s potential risk associated with dioxin site (i.e., stored in a manner that does established policy provides that it may when this waste is managed in a land not involve direct placement of the take into account other factors affecting treatment unit. waste on the land) prior to off-site the potential risk associated with the vi. Regulatory Compliance disposal and not yet offered for off-site waste in making its listing Demonstration shipment. determination. The risk estimate for arsenic in EDC/VCM wastewater Two commenters were concerned that vii. Status of EDC/VCM Sludges treatment sludges managed in landfills the proposed conditional listing Managed by Methods Other Than Land is the result of predicted concentrations approach for EDC/VCM wastewater Treatment and Landfilling of arsenic that are close to background treatment sludges would be burdensome Incineration to generators due to commenters’ view levels, do not exceed the MCL in the Several commenters requested that modeled receptor well, and the result of that the proposal required generators to document their ‘‘intent’’ to properly EPA include incineration of EDC/VCM a peak arsenic concentration in a wastewater treatment sludges as a receptor well that is predicted to occur manage and dispose of the waste. In response, the Agency notes that we are contingent management option for this only after a period of 8,800 years. Given waste. Commenters argued that that there are uncertainties associated not imposing any new paperwork requirements as part of the conditional incineration should be allowed to occur with our risk estimates we do not think without the sludge falling within the it makes sense to impose requirements listing. In the final listing determination, the Agency is requiring scope of the listing description (i.e., now to address a marginal risk that may commenters requested that EPA allow be realized so far in the future. In that generators and other handlers of EDC/VCM wastewater treatment sludges the incineration of EDC/VCM addition, even if the arsenic wastewater treatment sludges as non- concentrations predicted to occur very merely be able to demonstrate that past and on-going waste management hazardous wastes). far in the future were to occur now, practices are in compliance with the The Agency disagrees with the these concentrations are not at levels of conditions of the contingent commenters. First, the Agency notes concern, given that the peak management listing approach. Our that commenters provided no concentration of arsenic in groundwater intent in describing potential types of information indicating that incineration is predicted to be below the current (and records or contracts that could fulfill the of presently non-hazardous EDC/VCM all recently proposed) MCL(s). demonstration requirement was merely sludges is occurring and indicated only Therefore, EPA concludes that EDC/ to provide examples of appropriate that they were considering the practice. VCM wastewater treatment sludges do demonstrations, and not to impose Some commenters stated specifically not pose a significant risk due to the stringent or specific paperwork that they currently do not incinerate presence of arsenic when managed in requirements. As explained above, the presently non-hazardous EDC/VCM landfills. Agency is finalizing, as part of the wastewater treatment sludges. In the case of the potential risks listing description, a flexible Information available to the Agency associated with arsenic in EDC/VCM performance standard similar to the during development of the proposed wastewater treatment sludges managed documentation requirement provided in rule indicated that there were no in a land treatment unit, we found that 40 CFR 261.2(f) for documenting claims facilities presently incinerating non- arsenic may present some risk from that materials are not solid wastes, hazardous forms of the waste, and EPA potential releases to groundwater from when managed in certain ways. did not evaluate potential risks from on- the land treatment unit. However, we Generators and other handlers of EDC/ site or off-site incineration of EDC/VCM conclude that the estimated level of VCM wastewater treatment sludge that wastewater treatment sludges in non- potential risk is not significant for the claim the waste is not a hazardous waste hazardous waste incinerators. EPA bases very same reasons we concluded that must merely demonstrate that the listing determinations on an assessment the risk from arsenic in a landfill generator or handler has handled the of plausible (and worst-case) scenario is not significant (i.e., waste or intends to handle the waste in management scenarios. It is not predicted concentrations of arsenic in compliance with the conditions of the practicable for EPA to evaluate every groundwater wells is close to conditional listing. One manner in possible management scenario, and background levels, and is the result of which this demonstration may be made particularly not those management a peak arsenic concentration in a is by presenting a copy of a signed practices that are found not to be receptor well that is predicted to occur contract between the generator and a plausible (or are hypothetical). This is state-licensed landfill under which the consistent with the Agency’s mandate to water Resources of the United States and Limitations in Drinking-Water-Supply landfill agrees to accept the EDC/VCM evaluate determine whether or not to Characterizations: U.S. Geological Survey Water- waste. Again, in cases where such a list wastes, and not management Resources Investigation Report 99–4279, 21 p. contract does not exist, other practices. EPA does carve out particular

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In the November 2, fully), but we cannot possibly evaluate 1990 rulemaking finalizing the EDC/VCM Wastewater Treatment every practice, particularly hypothetical hazardous waste listings for F037 and Sludges Derived From the Management practices, that any commenter says they F038, EPA provided that in cases where of Chlorinated Aliphatic Wastewaters in might employ. wastes become defined as hazardous as Surface Impoundments Our policy with regard to hazardous a result of new listing determinations, if waste listings is that in cases where we As mentioned above, at the time of the wastes are removed from the have identified one plausible the proposed rule EPA was not aware impoundment prior to the effective date management practice that presents a that any chlorinated aliphatic of the rule defining them as hazardous, significant risk to human health and the production facility was managing then the impoundment does not become environment (in this case, land chlorinated aliphatic wastewaters in subject to Subtitle C. treatment), the waste warrants being surface impoundments, or potentially In the Federal Register notice listed as a hazardous waste. However, generating EDC/VCM wastewater published on September 27, 1990, EPA since the Agency identified another treatment sludges in surface clarified the regulatory status of surface plausible management approach impoundments. However, the Agency impoundments containing sludges (landfill), evaluated the risk from this received information from public newly defined as hazardous that were management approach, and determined comments indicating that one deposited in an impoundment prior to that the second management approach chlorinated aliphatic manufacturing the effective date of the rule defining the does not present a significant risk to facility produces VCM and sends its waste as hazardous, and where the human health and the environment, the process wastewaters to an adjacent impoundment ceased to receive Agency determined that it is appropriate facility, where the VCM wastewater is hazardous wastes on or before the to exclude the waste from the hazardous combined with other non-chlorinated effective date of the rule. In that notice, waste listing, when managed in this aliphatic wastewaters for treatment in EPA stated: If (1) the newly identified particular manner. Without evaluating surface impoundments. The commenter hazardous waste remains in the surface potential risks from additional described the type of treatment impoundment after the effective date of management approaches, the Agency occurring in these impoundments to the rule, and (2) the impoundment does cannot determine whether or not the include biological treatment followed by not receive or generate any other waste, when managed in a different clarification; therefore, we presume hazardous wastes after the effective manner, warrants being excluded from wastewater treatment sludges are date, and (3) the impoundment is the the hazardous waste listing. Given that generated in these impoundments. final disposal site for the waste, then the EDC/VCM wastewater treatment sludges Because these wastewater treatment impoundment is not subject to RCRA currently are not managed in non- sludges are the result of treating subtitle C. Additionally, the Agency hazardous waste incinerators, we have wastewaters from the production of clarified that if newly-listed wastes are not used the limited time and resources VCM, they will meet the definition of removed from an impoundment as part we have for the rulemaking to conduct today’s K174 hazardous waste listing on of a one-time removal, including a one- an analysis of potential risks associated the effective date of today’s rule. time removal after the date on which the with this potential management The listing description for EDC/VCM waste becomes defined as hazardous, practice. Therefore, we do not have a wastewater treatment sludges finalized the impoundment will not be subject to basis to exclude sludges managed in this in today’s rulemaking includes sludges RCRA subtitle C. The Agency also manner from the listing description. that are placed on the land prior to final clarified in the September 27, 1990 Should the Agency receive information disposal in a landfill. EPA’s long- rulemaking that EPA will not view the in the future indicating that non- standing policy under RCRA subtitle C one-time removal of waste as part of a hazardous waste incineration is is that wastes generated in surface closure as changing the status of the occurring, the Agency may re-visit the impoundments are subject to regulation surface impoundment (i.e., subjecting decision to preclude the management of while actively managed in the the impoundment to RCRA subtitle C), these sludges in non-hazardous waste impoundment (not just when the as long as there is no ongoing incinerators. However, given that these sludges are removed from the unit) (see management of the waste in the sludges contain dioxin, EPA would 45 FR at 72024; 55 FR 39409; 55 FR impoundment after the effective date of want to carefully consider the potential 46380). Therefore, sludges resulting the hazardous waste listing. risks of managing these wastes in non- from treating wastewaters from the Therefore, if a facility ceases to hazardous waste incinerators, before production of EDC/VCM after the manage EDC/VCM process wastewater concluding that this practice does not effective date of today’s rule, when sludge in surface impoundments prior pose a risk. actively managed in surface to the effective date of today’s listing The final rule, as promulgated in impoundments in which they are determination, and the facility today’s notice, provides that EDC/VCM generated, fall within the scope of undertakes a one-time removal of the wastewater treatment sludges are listed today’s listing determination for EDC/ newly-listed waste, the surface hazardous wastes, unless the sludges are VCM wastewater treatment sludges impoundment will not be subject to disposed in a subtitle C landfill or a (K174). RCRA subtitle C. The sludges removed non-hazardous waste, state-licensed With regard to the regulatory status of from an impoundment as part of a one- landfill and are not placed on the land surface impoundments used to treat time removal after the effective date of prior to final disposal in a landfill. EDC/VCM wastewaters prior to the today’s listing (that were derived from Under the conditional listing, the effective date of the today’s rule, EPA the previously managed chlorinated incineration of EDC/VCM wastewater has articulated in prior rulemakings aliphatic wastewaters), will be defined treatment sludges in a non-hazardous certain circumstances where a surface as K174, unless the waste meets the waste incinerator and the disposal of the impoundment, in which newly- conditions for exclusion from the ash in a landfill does not meet the regulated wastes were generated prior to hazardous waste listing. If the sludge conditions of the listing. EDC/VCM the effective date of the listing, would does meet these conditions (i.e., it is

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 67096 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations disposed in a subtitle C landfill or a impoundments may be granted a delay substantial hazard to human health and non-hazardous waste landfill permitted of closure (see 40 CFR 265.113 and 40 the environment. or licensed by a state, and it is not CFR 264.113) and thus will be allowed Because the Agency has made a placed on the land other than in such to remain in operation, providing that finding that the waste does not pose a a landfill after it is removed from the hazardous waste is removed and the substantial hazard to human health and impoundment), it will be exempt from impoundment is used for non- the environment if disposed in a the listing. After the one-time removal hazardous wastes (see section VIII.B for landfill, without being treated prior to of sludge generated from the chlorinated a discussion of permitting requirements disposal, we do not agree with aliphatic wastewaters, and as long as no and compliance dates applicable to the commenters’ regarding the necessity of additional chlorinated aliphatic management of newly-listed wastes). imposing treatment requirements under wastewaters are managed in the Facilities that currently manage EDC/ RCRA subtitle C. Our finding that impoundment, sludges generated in the VCM wastewater treatment sludges in treatment is not necessary to insure impoundment will not meet the listing surface impoundments must meet the protection of human health and the description for K174. In other words, terms of these regulations or environment is a major factor the impoundment would not become discontinue their use for the supporting the contingent management regulated. In addition, sludges removed management of these sludges prior to approach. In addition, the land disposal in subsequent removals (e.g., as part of the effective date of the listing and land restrictions apply to hazardous wastes routine maintenance activities) will not disposal restrictions. only. Since the Agency has determined be considered EDC/VCM wastewater that EDC/VCM wastewater treatment viii. Contingent Management Approach treatment sludge (K174), as long as sludges, when managed in a landfill, are chlorinated aliphatic wastewaters were A few commenters asserted that a not hazardous wastes, the treatment not managed in the impoundment after contingent management approach to standards are not necessary to ensure the effective date of the rule. listing EDC/VCM wastewater treatment protection of human health and the The above discussion pertains to sludges is not appropriate. Commenters environment. facilities that choose to continue pointed out that such an approach A contingent management listing operating their surface impoundments would allow the waste to be land approach is within EPA’s statutory as non-hazardous waste units after the disposed without treatment in authority. Section 3001(a) requires the effective date of today’s rule. However, compliance with the land disposal Administrator to promulgate criteria for a facility could choose to continue to restrictions requirements. One identifying and listing wastes that manage chlorinated aliphatic commenter stated that RCRA does not ‘‘should’’ be subject to the requirements wastewaters in surface impoundments provide EPA with the statutory of RCRA. The word ‘‘should’’ in section after the effective date of today’s rule. In authority to list a waste as hazardous on 3001(a) calls for an exercise of judgment this case, the sludge generated in the the basis of how the waste is or is not and, therefore, confers discretion upon impoundments will meet the K174 managed. Another commenter stated EPA to determine whether listing is listing description and the surface that the management process should not warranted. RCRA sections 3002, 3003 impoundments will become subject to decide whether a waste is hazardous or and 3004 direct the Agency to issue RCRA subtitle C. Any newly listed EDC/ not. The commenter further stated that regulations ‘‘necessary to protect human VCM wastewater treatment sludges that waste management practices only health and the environment.’’ are managed in a newly regulated should ensure that the waste is properly Accordingly, the decision whether a surface impoundment (i.e., an treated. waste should be regulated under RCRA impoundment that becomes subject to Given the Agency’s finding (discussed turns upon EPA’s assessment of whether RCRA regulation as a result of the new in Section VI.B.1. of this preamble) that such regulation is necessary to protect waste listing) may continue to be the predominant approach for managing human health and the environment. managed in the impoundment for up to EDC/VCM wastewater treatment sludges Because a hazardous waste is by four years, provided that the does not pose a substantial hazard to definition a solid waste that poses ‘‘a impoundment is in compliance with the human health and the environment, we substantial threat to human health and groundwater monitoring requirements see no reason to include sludges the environment when improperly of 40 CFR part 265, Subpart F within 12 managed in this manner in the scope of treated, stored, transported, or disposed months after promulgation of the new the hazardous waste listing. In fact, the of, or otherwise managed,’’ (RCRA waste listing (40 CFR part 268.14).34 Agency knows of only two facilities that section 1004(5)) EPA concludes that Surface impoundments also may manage these sludges in a manner other where a waste might pose a hazard only continue to treat wastes that do not meet than landfilling. It does not make sense under limited management scenarios, LDR treatment standards if the surface to list the bulk of EDC/VCM wastewater and other regulatory programs already impoundments are in compliance with treatment sludges managed safely in address such scenarios, the Agency is 40 CFR 268.4 (the surface impoundment landfills based upon the management not required to list a waste as exemption), or if facilities obtain no- approaches used by two facilities. On hazardous. migration variances for the units (40 the other hand, we do not believe that The Agency’s decision with regard to CFR 268.6, 264.221(b), 265.221(c)). it is appropriate to promulgate a no-list whether a waste should be regulated Under the surface impoundment determination, given the Agency’s under subtitle C turns upon EPA’s exemption, owners or operators must finding (discussed in Section VI.B.1. of assessment of whether RCRA regulation follow specific sampling and testing, this preamble) that EDC/VCM sludges is necessary to protect human health removal, subsequent management, and pose a substantial hazard to human and the environment. In particular, in recordkeeping requirements. Some health and the environment when Military Toxics Project v. EPA, 146 F.3d managed in a land treatment unit. 948 (D.C. Cir. 1998) the court found 34 RCRA § 3005(j)(6) provides that facilities Therefore, the Agency is promulgating a that, if EPA concludes that a waste managing wastes in surface impoundments that are contingent management listing to ensure might pose a hazard only under limited newly brought into the subtitle C system by a new that EDC/VCM wastewater treatment management scenarios, EPA can listing or characteristic have four years to retrofit or close impoundments receiving newly identified or sludges are managed only in a manner reasonably and permissibly determine listed wastes (and no other hazardous wastes). that EPA has shown does not pose a that the waste should be regulated as

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations 67097 hazardous only under those scenarios. consume dioxin-contaminated forage apply a traditional listing approach (i.e., In the Military Toxics Project case, EPA and pasture soil. That is, the risk list all wastes regardless of management reasonably determined that waste estimate is 2E–04 even when the portion practice) based upon a practice munitions would not pose a hazard if of risk associated with cattle occurring at one facility, especially if a managed in accordance with existing consumption of grain and silage are more tailored listing can prevent military munitions handling eliminated. Correcting the risk estimate potential risks from the practice. regulations. Similarly, with regard to to account for both cooking and post- Under the contingent management EDC/VCM wastewater treatment sludges cooking loss of beef and an overestimate listing approach finalized today for in today’s rulemaking we have of risk attributable to the erosion EDC/VCM wastewater treatment reasonably determined that the waste pathway analysis would reduce the risk sludges, EDC/VCM sludges will be will not pose a hazard if managed in estimate to 1E–04. Accounting for a hazardous wastes unless they are hazardous waste landfills or non- more reasonable pasture size would disposed in a landfill. EDC/VCM hazardous waste landfills licensed or reduce this risk estimate (1E–04) to wastewater treatment sludges that are permitted by a state. We base this approximately 7E–05. Moreover, handled in compliance with the conclusion on the results of the adjusting the TCDD slope factor contingent management approach will Agency’s risk assessment and in view of downward as recommended by the be considered nonhazardous from the existing state and federal controls for commenter, and removing 1,2,3,6,7,9- point of generation. Such sludges will non-hazardous waste landfills. We note and 1,2,3,7,8,9-HxCDD from the risk not be subject to RCRA subtitle C that the finding by the court in Military assessment completely, would reduce management requirements for Toxics Project did not hinge upon EPA this risk estimate only to 5E–05. generation, transport, or disposal deferring to a comprehensive regulatory Although EPA does not support making (including the land disposal program, but only to programs that these adjustments to the toxicity values, restrictions), if the waste is destined for address the appropriate waste doing so demonstrates that accepting disposal in a landfill and is not placed management scenarios in a manner that the commenter’s recommendation directly on the land prior to disposal in EPA determined is necessary to protect would not reduce the risk estimate to a a landfill. If the waste is not disposed health and the environment. Given the value that, after consideration of other of in a subtitle C landfill or a state- results of the Agency’s risk assessment, factors as described in Section VI.B.1. of licensed non-hazardous waste landfill, we find that the management of these this preamble, would change the then the waste meets the listing wastes in non-hazardous waste landfills Agency’s finding that these wastes pose description and must be managed in licensed or permitted by a state is a substantial hazard to human health compliance with subtitle C management protective of human health and the and the environment. Our analysis of standards from the point of generation. In addition to requiring that EDC/ environment. On the basis of this the comments did not reveal any VCM wastewater treatment sludges be conclusion and in light of the Military justification for modifying our proposed disposed in a subtitle C landfill or a Toxics Project decision, we conclude risk estimate for the landfill scenario. that EPA has the authority to state-licensed landfill to meet the Therefore, the Agency is listing EDC/ promulgate a conditional listing for this contingent management listing, the waste. VCM wastewater treatment sludges as Agency also is restricting the placement EPA Hazardous Waste Number K174, of EDC/VCM wastewater treatment 3. Rationale for Final Listing unless the sludges are managed in a sludges directly on the land prior to Determination: Summary of the Impact subtitle C landfill, or a non-hazardous disposal in a landfill (e.g., storage in of Public Comments on the Proposed waste landfill permitted or licensed by surface impoundments, storage in waste Listing Determination for EDC/VCM a state. The Agency believes that piles, spills). EPA wants to ensure that Wastewater Treatment Sludges allowing the waste to continue to be these wastes are managed in the manner The Agency decided to finalize a managed under a low risk management found to be protective of human health contingent management listing for EDC/ scenario (i.e., non-hazardous waste and the environment. Under the terms VCM wastewater treatment sludges landfilling) outside of the subtitle C of the listing, storage of EDC/VCM based on the EPA’s finding that these system achieves protection of human wastewater treatment sludge in tanks or wastes posed a substantial hazard to health and the environment, and that containers, or in any manner other than human health and the environment little additional benefit would be gained direct placement on the land, prior to when managed in a land treatment unit, by requiring that all EDC/VCM disposal will not constitute a violation but did not pose this hazard when wastewater treatment sludges be of the conditions for exclusion from the managed in a landfill. As discussed managed in accordance with RCRA hazardous waste listing. above, commenters argued that EPA’s subtitle C management standards. Given Generators, and other parties involved risk estimates for the landfill and land the Agency’s finding that the level of in the management of EDC/VCM treatment unit were in error. After risk posed from managing EDC/VCM wastewater treatment sludges, claiming reviewing and carefully considering all wastewater treatment sludges in a that their wastes fall outside the scope information provided by commenters, landfill is not at a sufficient level to of the hazardous waste listing must be we re-evaluated our risk assessment support a hazardous waste listing able to document or demonstrate that results. Based on information provided determination, the Agency sees no sludges excluded from the listing by commenters, we decided it was reason to include sludges managed in description are being managed in appropriate to adjust our proposed risk this manner in the scope of the accordance with the conditions for estimate, 2E–04, for the land treatment hazardous waste listing. Additionally being excluded from the listing. This unit. As mentioned above in response to (and after consideration of the predicted means that parties claiming the waste a commenter’s concerns regarding the risk differential between land treatment falls outside the scope of subtitle C must expected productivity of EPA’s modeled and landfilling), because only one be able to demonstrate that (1) agricultural field, EPA’s risk estimate for facility employs land treatment for these previously generated and managed the land treatment unit almost entirely wastes, this practice is somewhat waste (which is being claimed as not was due to a farmer’s ingestion of beef anomalous compared with land meeting the K174 listing) was disposed and dairy products from cattle that disposal. It does not make sense to of in a landfill; and (2) waste currently

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 67098 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations being managed is not being stored, or substantial or potential hazard to human higher pH environments, and the degree otherwise managed, on the land (e.g., health or the environment. The Agency to which subtitle C landfill controls waste piles, surface impoundments) as identified significant potential risks to (e.g., liner systems) would have to well as demonstrate that the waste is consumers of groundwater due to the perform to prevent releases that exceed disposed of in a landfill. We note that release of mercury from this waste when the MCL in groundwater at a modeled the Agency is not imposing any specific managed in a landfill. We are not receptor well (64 FR at 46511). We recordkeeping requirements as part of promulgating the proposed alternative documented that the pH measured in today’s final rule. Instead the Agency is option of conditionally listing this waste leachate from the subtitle C disposal cell finalizing, as part of the listing (i.e., listing the waste only if it is not where this waste is currently managed description, a more flexible performance managed in a subtitle C landfill) because is greater than 9, which is in all standard similar to the documentation after reviewing comments we remain likelihood due to the presence in the requirement provided in 40 CFR 261.2(f) convinced that the current management landfill of alkaline materials commonly practice of disposing of untreated forms for documenting claims that materials used to stabilize many types of of this waste in a subtitle C landfill, are not solid wastes. Generators and hazardous wastes. We also cited even after taking into account landfill other handlers of EDC/VCM that claim analytical results from a draft the waste is not a hazardous waste must controls, can pose significant risk as treatability study on the VCM–A waste, merely demonstrate that the generator or explained in more detail below. indicating that mercuric sulfide is less handler has, and continues to handle K175—Wastewater treatment sludges from stable in a higher pH environment, and the waste in compliance with the the production of vinyl chloride monomer that the leachate resulting from a contingent management conditions. One using mercuric chloride catalyst in an of the simplest ways to make such a acetylene-based process. constant pH leach test at pH=10 contained 1.63 mg/L of mercury. We demonstration may be to provide a In the August 25, 1999 Federal compliance or enforcement official, Register we proposed to list VCM–A concluded that mercury in the VCM–A upon request, with a copy of a signed wastewater treatment sludge due to the waste would be significantly mobilized contract with a state-licensed landfill. In potential risk from consuming under the conditions found in the cases where such a contract does not groundwater containing concentrations subtitle C landfill scenario, and at exist, other documentation of past and of mercury, arising from the landfill proposal we said that ‘‘* * * even on-going disposal practices such as disposal of the VCM–A sludge, that assuming a low probability of [liner] signed non-hazardous waste manifests, exceed the Maximum Contaminant failure * * * there may still be a release shipping papers, and/or invoices should Limit (MCL).35 At proposal, we of mercury that results in an accedence provide an appropriate demonstration of considered risks arising from both an of the MCL. While there are proper management. The Agency points unlined landfill disposal and a subtitle uncertainties in this assessment, it still out that a generator’s or handler’s ability C landfill disposal management illustrates that the mercury to demonstrate recent and/or on-going scenario, because at that time we concentrations in the receptor well may shipments of EDC/VCM wastewater believed both scenarios were plausible be close to, and could even be higher treatment sludges to appropriate forms of managing this waste. Under the than the MCL’’ (64 FR 46511). In other disposal facilities will serve as sufficient unlined landfill scenario, we used the words, with a leachate concentration of demonstration of intent to continue mercury TCLP analytical results for the 1.63 mg/L at pH=10 and a DAF of 40, such management practices for wastes VCM–A sludge (0.26 mg/L; facility split the modeled receptor well mercury being stored on-site in tanks or sample was 0.654 mg/L) and calculated concentration is 0.041 mg/L when no containers (or in any other manner other a predicted groundwater concentration credit is given to the liner system (i.e., than direct placement on the land) and at a receptor well using a dilution and assuming an unlined landfill). 36 not yet offered for off-site shipment. attenuation factor (DAF) of 40. The Assuming that no mercury is released to The Agency points out that should predicted receptor well groundwater groundwater if a liner system is 100% EDC/VCM wastewater treatment sludges concentration exceeded the mercury effective, one only has to reduce the MCL by a factor of three based on a meet a listing description for another ‘‘effectiveness’’ of the subtitle C liner mercury leachate concentration of 0.26 listed hazardous waste, or if the system by a small margin, to 95%, to wastewater treatment sludges exhibit mg/L (obtained from a sample of the predict a mercury concentration in a one or more of the characteristics of waste analyzed by EPA), and by a factor modeled receptor well equal to the MCL hazardous waste, the sludges must be of eight using the mercury leachate for mercury.37 The issue of the managed as hazardous wastes and are concentration from the facility’s split not exempt from regulation, due to the sample of 0.654 mg/L (64 FR at 46510). uncertainty with engineered liner fact that they may be characterized as Under the subtitle C landfill scenario, systems is discussed in more detail EDC/VCM wastewater treatment sludge. we took into account additional further below. information regarding the increased Therefore, we presented at proposal C. Wastewater Treatment Sludges and mobility of mercuric sulfide (the form of two plausible management scenarios Wastewaters From the Production of mercury in the VCM–A sludge) under upon which we based our proposed VCM–A listing, an unlined landfill and a subtitle 1. Wastewater Treatment Sludges From 35 The Maximum Contaminant Level Goal C landfill. As discussed below in (MCLG) for mercury is 0.002 mg/L because EPA has VCM–A Production determined that drinking water below this level of section VI.C.1.a, because we received The EPA is listing as hazardous protection would not cause any adverse health information after proposal indicating effects. The MCL for mercury is also 0.002 mg/L, that the unlined landfill scenario was wastewater treatment sludge from the and is an enforceable standard set as close to the production of vinyl chloride monomer MCLG as possible, considering the ability of public not plausible, our final decision today to using mercuric chloride catalyst in an water systems to detect and remove contaminants list the VCM–A sludge as hazardous is acetylene-based process (VCM–A). This using suitable treatment technologies. based only upon the subtitle C landfill 36 wastestream meets the criteria set out at As noted at proposal, the DAF of 40 for scenario described above. mercury was developed for the 1995 proposed 40 CFR 261.11(a)(3) for listing a waste Hazardous Waste Identification Rule (60 FR 66344, as hazardous because it may pose a December 21, 1995) for landfill leachate. 37 (0.05)(0.041 mg/L) = 0.002 mg/L

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations 67099 a. Response to Major Comments greatest risk is often to future generations. dilution effect will be most pronounced at Received on Proposed Rule for VCM–A This is because wastes initially are the periphery of the plume. BCP’s Wastewater Treatment Sludges accumulated in landfills for many years prior methodology for estimating dispersivity was to landfill closure, then, subsequent to based on designating where the VCM–A sludge is generated by only landfill closure, leachate generation and concentration value for the plume will be one facility in the United States, Borden migration in groundwater can occur for measured (that is, the location of the receptor Chemical and Plastics (BCP) in Geismar, additional tens, hundreds, or thousands of well) and calculating an appropriate Louisiana; therefore, the industry years. dispersivity value for that location, since • comments relating directly to this waste EPA disagrees with the way that BCP dispersivity increases with distance from the stream were from BCP. Environmental considered the area of the landfill in its source. Accordingly, BCP calculated modeling efforts. Although the area of the dispersivity values corresponding to the groups and waste treatment industry waste management unit is not input directly location of a receptor well 152 meters from representatives also commented on the into the AT123D model employed by BCP, the landfill source. EPA acknowledges that EPA’s proposal to list this wastestream the model does require an equivalent source this approach is consistent with generally as hazardous. length and width. In its analysis, BCP accepted practices, and does not disagree modeled an areal source with an area of one with the approach in principle; that is, the i. Risk Assessment Submitted by BCP meter by one meter, and a depth (thickness) dispersivity values used in BCP’s modeling In response to the Agency’s proposed of 6 meters. The analysis submitted by BCP would have been appropriate to characterize decision to list wastewater treatment does not provide the area of the actual the effect of hydrodynamic dispersion on sludges from the production of VCM–A, landfill in which the VCM–A sludge is plume concentrations at the location of the 2 BCP provided the Agency with a disposed, but a source area equal to 1 m designated receptor well (152m from the does not represent a realistic landfill size, source). BCP’s error occurred when they groundwater pathway exposure and risk since industrial landfills are typically on the elected to use the modeled concentration at analysis for mercury in VCM–A order of 50,000 to 100,000 m2. Moreover, a a distance of 37m (the predicted leading edge wastewater treatment sludges managed landfill of the size modeled by BCP (6m3) of the contaminant plume) as the basis for in landfills, conducted by a contractor would not be large enough to contain the their calculation of mercury hazard. BCP did on their behalf. BCP concludes, based quantity of sludge that we estimate BCP not modify their estimate of plume upon their risk assessment, that there generates in 1 year, 109m3), let alone the dispersion to correspond to a closer distance would be no human health risks to quantity we estimate BCP might generate to the source. By not correctly accounting for 3) consumers of groundwater resulting over a 30 year period (3,273m . distance from the source, BCP’s groundwater • In its AT123D modeling efforts, BCP modeling analysis significantly from releases of mercury from VCM–A assumed an aquifer hydraulic conductivity of overestimated the effect of dispersion at the waste managed in a landfill. 1E–04 centimeters per second (cm/s). The edge of the plume, and the resulting dilution BCP’s analysis was designed to median hydraulic conductivity value that we of the plume due to dispersive mixing. parallel the manner in which EPA would have selected to correspond to the Consequently, the mercury concentration conducts contaminant fate and transport location of the landfill where BCP disposes (and associated hazard) that BCP predicted to modeling when evaluating landfills. of their waste is 8E–03 cm/s.38 In the context correspond to the edge of the plume was Specifically, BCP stated that its of BCP’s analysis, it does not appear that the much lower than it would have been had ‘‘methods and assumptions followed to hydraulic conductivity value used was they accurately estimated dispersion. More the extent possible those presented in protective. On the contrary, BCP’s conclusion appropriately, BCP should have extended that: ‘‘* * * in the 70-year time span their modeling timeframe, as discussed [EPA’s] Chlorinated Aliphatics Risk evaluated, mercury would move no further above, such that they could have more Assessment document when feasible.’’ than between approximately 37–46 meters accurately predicted contaminant However, rather than using EPA’s * * *.’’ was supported in part through use of concentrations at their designated receptor groundwater fate and transport model, a hydraulic conductivity value that was 80 well distance. EPACMTP, BCP’s analysis used a times less than the median hydraulic BCP concluded from their analysis simpler analytical groundwater conductivity value that EPA would have selected, potentially resulting in an that essentially no migration of mercury transport model, AT123D. This model is would occur in groundwater, and that not specifically designed to simulate underestimate of the predicted groundwater flow rate. This could result in a significant mercury concentrations in groundwater leachate migration from land disposal underestimation of predicted contaminant are below levels of concern. Because units; although, when used migration. BCP limited their analysis to the appropriately, AT123D should be able • The value BCP used for the parameter evaluation of current receptors, to produce results that are protective that defines the dispersion of the potentially underestimated the and comparable to those obtained with contaminant plume (the dispersivity) was hydraulic conductivity of the aquifer, EPACMTP. However, after carefully unrealistically large for the transport distances that BCP evaluated. Dispersion overestimated aquifer dispersivity, and reviewing the risk assessment submitted grossly underestimated the area of the by BCP, EPA found that there are causes a contaminant plume to spread both ahead of the bulk flow of groundwater landfill, EPA does not believe BCP’s risk significant deficiencies associated with (longitudinally) and perpendicular to the analysis can be used to support a listing certain aspects of the modeling and risk bulk flow of groundwater (transversely and decision for VCM–A sludge. assessment and therefore is not vertically). The effect of dispersion is to persuaded by the conclusions drawn cause the leading edge of the plume to travel ii. Plausibility of Unlined Landfill from BCP’s analysis. These deficiencies more rapidly and spread more widely than Management Scenario are described below: the bulk (average) groundwater flow. In the proposed rule, EPA stated that Dispersion also will cause the plume to • EPA’s most significant concern regarding disposal of Borden’s VCM–A sludge in become more diluted due to mixing with the way in which BCP conducted its a non-hazardous, unlined landfill was ambient (uncontaminated) groundwater. This groundwater modeling is that BCP limited plausible, based upon gaps in the the period of time that the contaminant 38 The source of our hydraulic conductivity data record, particularly prior to 1990. BCP plume is allowed to migrate to 70 years from commented that in all of the time it had the time mercury was introduced into the is a database prepared by the American Petroleum Institute (Newell, Charles J., Loren P. Hopkins, and responsibility for the operation of the groundwater. BCP’s assumption has the effect Philip B. Bedient, 1989. Hydrogeologic Database for VCM–A plant (which records indicate is of considering only exposure and hazard to Ground Water Modeling. API Publication No. 4476, current receptors and ignores potential American Petroleum Institute, Washington, D.C.). since the early 1980’s) Borden always hazard to future generations. In fact, in the The range of values from which the median is managed its VCM–A sludge at a facility case of release of leachate from a landfill, the derived is 1E–05 to 4E–01 cm/s. that was ‘‘constructed and operated in

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 67100 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations accordance with the hazardous waste method to single out this particular disposed. In doing so, the Agency is not regulations that existed at the time of waste stream’’ and was therefore singling this waste out for more disposal.’’ Upon consideration of BCP’s arbitrary and capricious. BCP is arguing stringent assessment. Rather, the claim that the specific inventory of that it is inappropriate for EPA to assess Agency is attempting to more fully VCM–A waste, cited by EPA as having the hazard of mercury in a waste when consider all the scientific data on the been stored on site in 1985, was in fact there is already an existing toxicity waste, its constituents, and its actual disposed of as hazardous waste between characteristic for mercury, and that by management conditions, and applying March and May of 1985, there is no doing so for one specific waste EPA is these data in an assessment of the likely evidence the waste has ever been selectively ‘‘changing the rules’’ for that risks from the waste as it is actually disposed of in an unlined, non- waste. managed. The whole point of a listing hazardous landfill. Moreover, given EPA disagrees with BCP’s comment determination is to decide, on a BCP’s record of disposal of this waste in that EPA should rely on the existing wastestream-specific basis, whether the a hazardous waste landfill during the TCLP, and that doing otherwise unfairly existing characteristics adequately 1990’s, and its comments that this is or inappropriately singles out its waste. address risks from the waste. where BCP will continue to send the First, because EPA has undertaken a Regarding BCP’s comment waste in the future, we see no listing determination for a certain questioning the results from the EPA/ compelling information to suggest the category of wastes (chlorinated aliphatic ORD study on mercury mobility, while company would do otherwise. wastewater treatment sludges), and has BCP claims to not necessarily dispute Accordingly, we agree that disposal in further identified VCM–A sludge as a the results, it pointed out that the an unlined landfill is not plausible. reasonable subcategory due to the results were from a preliminary study markedly different manufacturing that had not yet been peer reviewed, iii. Constant pH Leach Results Versus process from which the waste is TCLP and that any decision EPA makes generated, it is entirely reasonable for us should be based upon peer-reviewed, BCP took issue with our overall to assess the hazards of this specific final analytical reports with all QA/QC approach to determining that the VCM– waste in the context of this listing data available. BCP also commented that A waste poses significant risk when determination. The fact that only one it attempted to duplicate the extraction mismanaged. Specifically, BCP facility in the United States currently is of the VCM–A waste at varying pH (6, disagreed with EPA’s assertion that the generating the waste in this subcategory 8, and 10) but found very little VCM–A waste, which is in the form of is irrelevant to the sound technical difference in the resultant mercury mercuric sulfide, leaches mercury more conclusion that it merits separate leachate concentration, and all results readily at higher pH conditions. In consideration. Second, in making a were below the TCLP limit of 0.2 mg/ particular, BCP criticized our reliance specific listing determination EPA is not L. BCP points out that contradicting on the results of a preliminary EPA- limited to looking only at whether the results cast doubt on EPA’s conclusions sponsored study 39 indicating (using waste is hazardous under the existing that mercury is more mobile at elevated only one sample) a leachate characteristics approach to defining pH when in the mercuric sulfide state. concentration for mercury at 1.63 mg/L hazardous waste. While the listing EPA continues to believe that at pH=10, and that the pH conditions of criteria in 40 CFR 261.11(a)(3)(i) do available evidence supports the the landfill cell where this waste is require EPA to consider whether a waste conclusion that the solubility of presently disposed indicate an elevated is characteristically hazardous, there are mercuric sulfide increases with pH as well (pH=9.48 to 9.7 as reportedly other criteria in § 261.11(a)(3) that the increasing pH, and that this conclusion measured in the leachate collected from EPA also addresses in making listing is supported by scientific literature cited this landfill cell). Furthermore, BCP determinations, which include a in the proposed rule 40 as well as questioned our application of these determination as to whether the waste additional scientific literature and EPA analytical results to the circumstances poses significant risk based on a waste- calculations presented below. A surrounding the disposal of the VCM–A specific evaluation. waste. BCP also argued that it appears Additionally, the toxicity recently published study on mercury that because we stated in the proposed characteristic regulation is a regulation speciation in the presence of rule that the TCLP may not be a reliable of general applicability; that is, it polysulfides agrees with our finding that indicator of mercury mobility under potentially applies to all non-exempt there is an increase in the solubility of these conditions, that EPA has solid waste generated. The TCLP cinnabar (mercury sulfide) in the ‘‘invalidated its own regulatory leaching test was designed to represent presence of elemental sulfur, 41 procedures for this particular [waste] likely leaching potential of waste in an particularly at high pH. This same stream’’ by relying on the waste-specific MSW landfill, which was considered study also indicated that at a pH of 10, pH results discussed above, instead of plausible worst-case management mercury can solubilize from mercuric relying on the existing TCLP method for conditions for industrial solid waste sulfide at concentrations very similar to defining whether or not the VCM–A generally. BCP’s comments expressed what was reported in the draft EPA/ sludge is hazardous. BCP was concerned concern that the Agency is singling this ORD study. EPA performed additional that EPA’s reliance on a waste-specific waste out for assessment under an calculations using the geochemical approach to determining the hazard of approach different (and more stringent) assessment model MINTEQA2. We the VCM–A waste, rather than relying than that applied to other wastes or to calculated the solubility of mercuric instead on the existing toxicity evaluation of solid waste under the TC characteristic to determine regulation. The Agency is considering 40 H. Lawrence Clever, Susan A. Johnson, and M. Elizabeth Derrick, The Solubility of Mercury and hazardousness, was an ‘‘unconventional the pH dependency of mercury sulfide Some Sparingly Soluble Mercury Salts in Water and solubility, and considering other data on Aqueous Electrolyte Solutions, J. Phys. Chem. Ref. 39 Paul Bishop, Renee A. Rauche, Linda A. Rieser, this key waste constituent, including Data, Vol. 14, No. 3, 1985, page 652. Markram T. Suidan, and Jain Zhang; ‘‘Stabilization both the changes in likely leachability 41 Jenny Ayla Jay, Francois M. M. Morel, and and Testing of Mercury Containing Wastes,’’ Draft, Harold F. Hemond, Mercury Speciation in the Department of Civil and Environmental under conditions different from the Presence of Polysulfides, Environmental Science Engineering, University of Cincinnati, March 31, TCLP test but matching those of the and Technology, 2000, Vol. 34, No. 11, pages 2196– 1999. landfill where the waste is actually 2200.

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VCM–A waste (e.g., pH reported for liner failure as part of predicting the What we are saying is that given the subtitle C landfill leachate where waste release of mercury to groundwater from specific evaluation we have made of the is disposed, sulfide concentration of a subtitle C landfill amounts to a VCM–A waste, a liner system can be VCM–A waste) and found the calculated ‘‘repudiation of existing standards for 95% effective and we still would mercury solubility agreed well with the * * * landfill management of predict a release to groundwater that mercury concentration data for the hazardous waste.’’ BCP argues that potentially poses risk (exceedance of the landfill leachate (originally included in EPA’s statement that there is ‘‘inherent mercury MCL at a modeled receptor the docket to the proposed rule). This uncertainty’’ associated with liner well). We think that over the long term further supports our assertion that integrity in a subtitle C landfill is no such a change in effectiveness is sulfide and pH are controlling factors in greater with respect to its VCM–A waste sufficiently plausible to merit the solubility of mercuric sulfide, and than it is for any other waste currently consideration in this listing decision. that this conclusion reasonably can be disposed in C landfills. BCP continues We emphasize that this assessment is applied to the VCM–A waste as well.42 by making numerous arguments that specific to a waste containing a highly Therefore, while we did indicate at subtitle C liner systems are designed to toxic, very persistent constituent proposal that the EPA/ORD study was be compatible with the wastes being coupled with the possibility of a small preliminary, we believed it was disposed, and that the regulatory degree of liner degradation, and does important to present these results as requirements applicable to these not mean that EPA would choose to list evidence because they represented systems (e.g., groundwater monitoring, any wastes voluntarily put into a direct studies on the instant waste being leak detection, leachate collection, post- subtitle C landfill. evaluated for listing. EPA has received closure care and maintenance, etc.) are Despite the uncertainty noted above no specific information in comment that all designed to ensure system integrity on predicting how well liners will effectively contradicts this evidence, in both the short- and long-term. perform over periods of say, 100, 1000, and has identified specific information EPA has acknowledged the or 10,000 years, and the fact that the in the scientific literature that supports uncertainty associated with liner oldest subtitle C units are less than 30 it. systems in the past. Taking this years old, EPA is nevertheless obligated Regarding the results from BCP’s own uncertainty into account when in this listing determination to make a leach testing experiment, which BCP evaluating the potential risk from this judgment whether waste disposed of in claims did not show a strong correlation specific waste stream is in no way a these units ‘‘is capable of posing a between pH and mercury solubility, repudiation of EPA’s reliance on liner substantial present or potential hazard BCP stated that it had attempted to systems overall. Indeed, the premise of to human health and the environment.’’ replicate EPA’s study ‘‘in the absence of the statutory land disposal restrictions Given that landfill controls would have any information regarding how the EPA requirements—one of the core features to be 95% effective forever to prevent contractor samples were extracted.’’ 43 of RCRA—is precisely that liners and substantial risks from this highly While EPA does not have any other containment systems, no matter concentrated, toxic, and persistent information on BCP’s experiment (other how well designed, are inherently waste, EPA concludes that the waste is than a summary of the findings) to uncertain and cannot be relied upon capable of posing a substantial hazard. explain why there might be differences alone to fully mitigate threats posed by While EPA cannot say how effective between Borden’s results and those from hazardous wastes. In general, we believe these units will be over the long term, the EPA study, EPA’s results are releases from landfills are significantly we believe it is plausible that at least consistent with literature sources reduced by well-constructed, some will not be 95% effective forever. regarding the relationship between pH monitored, and maintained liner and The alternative course would be for EPA and mercury solubility from the cap systems. However, we recognize to conclude the waste is not capable of mercuric sulfide form; therefore EPA that there is still uncertainty associated posing a substantial hazard, by does not agree that BCP’s results with liner performance, both in the near concluding that a Subtitle C landfill will indicate that EPA’s conclusions are term as well as in the long term. While most likely be 95% effective forever. invalid.44 Again, even absent the draft some studies indicate that engineering But, we conclude that that is an EPA/ORD study, the effect of pH on the properties of liners may last for many unreasonable and unsupportable solubility of mercury in mercuric (perhaps several hundred) years, there conclusion and are acting upon what sulfide is established independently in are a variety of factors that may seems like the more reasonable the scientific literature, as discussed influence longevity and performance, conclusion under the circumstances. above. such as poor construction, installation, EPA also points out that under RCRA, or geologic movement below the liner the subtitle C management standards iv. Liner Effectiveness that can cause holes, tears, or larger provide that hazardous wastes that are EPA requested comment on the basis failures. Some defects are likely to have land disposed must be treated to reduce for listing as hazardous the VCM–A little to moderate effect on the leakage the risk of hazardous constituents being waste that is presently being disposed in rate. Other defects may have a released to the environment as well as a lined subtitle C landfill. BCP stated significant effect and may necessitate be disposed in landfills equipped with corrective action (64 FR at 31582). liners and leak detection. The existing 42 Memorandum from John Austin to Ross Elliott, We are only considering this standards for the safe management of May 12, 2000. uncertainty to the extent that, as hazardous wastes rest on more than the 43 EPA notes that there was a summary discussed previously in section VI.C.1, landfill management requirements, or description of the constant pH leaching procedure in Section 4.4 of the draft EPA report, which was even if a liner system is capable of liner integrity. The legislative history to part of the proposed regulatory docket. preventing 95% of releases over the RCRA 3004(m) states that this section of 44 EPA also points to data in the proposed rule long-term, the waste likely will present the statute ‘‘makes Congressional intent record from BCP’s analysis of their mercuric sulfide substantial risk to consumers of clear that land disposal without prior sludge at three different pH values, which were all above the current TCLP limit and did vary with pH. groundwater due to a release of mercury treatment of these wastes with See Appendix 1, Reclassification Petition from the landfill unit (i.e., exceedance significant concentrations of highly Submitted to LDEQ, September 1987. of the MCL). We are not saying we persistent, bioaccumulative constituents

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Sludge from such a Congress was directing this statutory conditions that result in higher mercury process might pose a greater risk, mandate. mobility when in the sulfide form. because the mercury would be more soluble than the current sulfide. We vi. Other Comments v. pH Conditions of Disposal believe that the current listing Environment BCP commented that should EPA description is appropriate, because it BCP questioned EPA’s conclusions decide to list the VCM–A waste as appropriately describes the waste that the disposal conditions at the hazardous, we should select the subject to our evaluation. subtitle C landfill cell where the VCM– alternative option proposed which b. Summary A waste is presently disposed are at would result in the VCM–A waste only elevated pH levels, based upon the being listed if sent anywhere other than In conclusion, EPA is listing as recorded pH measurements EPA to a subtitle C landfill (and provided the hazardous the VCM–A wastewater obtained for the leachate collected from waste does not exhibit the toxicity treatment sludge described above this same cell. BCP also cited several characteristic for mercury). EPA because this wastestream meets the factors that it stated led to the proposed this alternative option in the criteria set out at 40 CFR 261.11(a)(3) for conclusion that the VCM–A waste will event that we received comment listing a waste as hazardous. Our not be subjected to elevated pH persuading us that our assumptions analysis that showed potential risk to conditions when disposed in the were incorrect regarding mercury being consumers of groundwater due to a subtitle C cell where it currently is sent. more mobile in the presence of sulfides predicted exceedance of the MCL takes BCP described several factors that in a higher pH environment, or that our into account the toxicity and would limit the influence of other co- assessment of liner uncertainty is concentration of mercury in the waste disposed wastes on the VCM–A waste insufficient to predict a risk to (criteria at 40 CFR 261.11(a)(3)(i) and (and thus, BCP appears to be saying, consumers of groundwater. As (ii)). This is because the mercury MCL reduce the likelihood of the VCM–A discussed above, EPA remains is based upon toxic human health waste being subject to elevated pH convinced that mercuric sulfide is less effects from ingestion of mercury, and conditions). BCP points out that the stable under the elevated pH conditions because the high mercury concentration volume of the VCM–A waste disposed of disposal in a subtitle C landfill, and in the waste results in the predicted in the cell since 1985, which is that a liner system can be 95% effective MCL at the modeled receptor well. We relatively minor, compared with the and we still would predict a release to also determined that the potential of large volume of other hazardous wastes groundwater that potentially poses risk. mercury to migrate from the waste into BCP also requested that should EPA in the disposal cell, the supposed the environment under a plausible proceed with a decision to list the absence of free liquids in a subtitle C disposal scenario (criteria at 40 CFR VCM–A waste as hazardous, that we re- landfill, the lower pH and resultant 261.11(a)(3)(iii) and (vii)) and mercury’s phrase the K175 listing description so it buffering capacity of the VCM–A waste, persistence and lack of degradation into only applies to mercuric sulfide forms and the fairly solid nature of the VCM– non-harmful constituents (criteria at 40 of sludge. The commenter said that this CFR 261.11(a)(3)(iv) and (v)) also A waste, all reduce the influence that was so future technologies could be supported a decision to list this waste. other co-disposed wastes may have on developed that are ‘‘better’’ and the This is because there is increased the potential for mercury to leach from sludge would no longer meet the listing solubility of mercury in this waste at the the disposed VCM–A sludge. if these changes are employed. Aside elevated pH conditions in the landfill EPA disagrees that these factors from suggesting that the reference to cell where the waste is disposed, and would change the conclusion that is mercuric sulfide be removed, the only a relatively small degradation of drawn from the measured elevated pH commenter did not provide any specific liner performance results in of the leachate removed from this potential changes that might occur, or unacceptable risk to potential landfill cell. In addition to the leachate how these changes would make the groundwater consumers. In addition, pH measurements cited in the proposed wastewater treatment sludge mercury is a persistent contaminant and rule for the same cell where BCP’s significantly different or less risky. The therefore will not degrade before any VCM–A sludge is disposed, additional listing description proposed refers to the predicted impact to groundwater occurs. information from the landfill facility manufacturing process that uses Listing criteria that the EPA confirms these leachate pH mercuric chloride catalyst, and the considered but which did not form the measurements are consistent with the commenter did not suggest changing basis for listing this waste include the nature of the landfill leachate for this that part of the listing; therefore EPA ability of mercury to bioaccumulate in 45 facility. In fact, to the extent that these concludes that the commenter would ecosystems, the nature and severity of factors affect the pH of the landfill still be faced with a wastewater human health or environmental damage environment, we believe it is reasonable treatment sludge containing very high from improper management of these to conclude that the measured leachate levels of total mercury (to comply with wastes, and actions taken by other pH provided by the landfill operator regulatory limits on the amount of governmental agencies or regulatory reflects the sum total of these various mercury in the discharged wastewater). programs. (40 CFR 261.11(a)(3)(vi), (ix), factors. Borden’s comments give us no Absent any specific examples, EPA can and (x)). Bioaccumulation of mercury is reason to believe that the leachate think of one possible change that could not relevant to the exposure pathway collected from this cell is not indicative result in a sludge that could pose a EPA assessed (ingestion of greater potential risk. It is possible that groundwater). Although no documented 45 See Memorandum from Ross Elliott, U.S. EPA Office of Solid Waste, to RCRA Docket, ‘‘Summary the facility could continue to use the damage incidents were found for this of Phone Call Between EPA and Carl Carlsson, mercuric chloride catalysts (as is particular waste, EPA believes that on Management Inc.,’’ July 12, 2000. currently the case for the acetylene- balance this fact alone does not

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The requirements specific to vinyl chloride decide to list this waste or conclude that management of spent mercuric chloride emissions (40 CFR 61.65), as well as the waste was already sufficiently catalyst used in the VCM–A production Hazardous Organic NESHAP for the controlled to render further regulation process results in the generation of a synthetic and organic chemical moot. wastewater containing mercuric manufacturing industry sector (40 CFR Finally, EPA did consider certain chloride, as well as vinyl chloride. EPA Part 63, subpart G)(59 FR 19468, April ‘‘other factors as may be appropriate’’ proposed not to list this wastewater due 22, 1994). together with the quantities of this to the fact that the wastewater already Given that this waste currently is waste generated (criteria at 40 CFR is identified as hazardous waste. As regulated as hazardous because it 261.11(a)(3)(xi) and (viii)) in a ‘‘weight- explained in the preamble to the exhibits the TC and given the fact that of-evidence’’ approach to reach a proposed rule, the wastewater exhibits management of the wastestream is decision to list this waste as hazardous. the toxicity characteristic for mercury adequately regulated under a number of As discussed in the Land Disposal and vinyl chloride. EPA received only environmental regulatory programs, the Restrictions section of today’s preamble one comment addressing the Agency’s Agency is promulgating a decision not (section VI.I.3), EPA believes that this proposed decision not to list VCM–A to list VCM–A wastewaters as hazardous waste can be disposed in a manner that wastewaters. This comment favored waste. helps ensure the mercury is more stable EPA’s proposed decision. D. Wastewater Treatment Sludges from and less likely to leach. Because this The Agency bases its decision not to the Production of Methyl Chloride waste is already being sent to a list VCM–A wastewaters as hazardous hazardous waste landfill, one important on the fact that the wastewaters already 1. Summary of Agency’s Listing effect of today’s listing is the assurance are identified as hazardous wastes Determination for Methyl Chloride that the waste is properly treated (or under the toxicity characteristic. In fact, Wastewater Treatment Sludges otherwise meets specific standards as the concentration of mercury in a EPA is not listing as hazardous generated) and is disposed in a manner sample of this wastestream analyzed by sludges from the treatment of to reduce the likelihood of mercury EPA was over 40 times above the TC wastewaters generated from methyl releases to groundwater, releases that regulatory limit for mercury. Therefore, chloride production processes. The may result in unacceptable risk to it is highly probable that the wastewater Agency has determined that this consumers of groundwater. Given the routinely contains levels of mercury wastestream does not meet the criteria reported amount of this waste generated which cause this wastestream to be set out at 40 CFR 261.11(a)(3) for listing per year (120 metric tons), and the high defined consistently as a waste as hazardous. total concentration of mercury in the characteristically hazardous waste. waste (approximately one percent Therefore, EPA concludes that the TC 2. Discussion of Agency’s Listing mercury by weight), the total loading to adequately defines this wastestream as Determination the landfill is approximately one metric hazardous. Only one facility generates a non- ton of mercury per year. Ensuring that Additionally, the facility’s dedicated hazardous wastewater treatment sludge this amount of mercury is disposed of wastewater treatment system is from the production of methyl chloride. in a form that minimizes releases of designed and optimized expressly for The facility generates less than 800 mercury was considered by EPA when the removal of mercury, the source of metric tons of the sludge annually and making its final listing decision. which is the mercuric chloride catalysts, disposes of the sludge in an on-site to comply with regulations promulgated landfill. As discussed in the preamble to 2. Wastewaters From VCM–A under the Clean Water Act. The criteria proposed rule (64 FR 46516), EPA Production in 40 CFR 261.11(a)(3) for evaluating conducted a risk assessment of this a. Summary of Agency’s Listing whether or not a solid waste is a waste, modeling one management Determination for VCM–A Wastewaters hazardous waste provide that EPA scenario (the on-site landfill). The should consider how the waste (and Agency’s analysis of potential risks due The EPA is not listing as hazardous potential risk) is affected by other to volatile emissions from the landfill wastewaters generated from the regulatory programs (i.e., found negligible risks (i.e., estimated production of vinyl chloride monomer 261.11(a)(3)(x)). In the case of the VCM– risks less than 1E–6) to individuals in using mercuric chloride catalyst in an A wastewaters, EPA notes that the the surrounding area. The Agency also acetylene-based process (VCM–A). This Agency’s decision not to list this conducted a bounding (i.e., worst case) wastestream does not meet the criteria wastewater as hazardous is based on the risk analysis to estimate potential risks set out at 40 CFR 261.11(a)(3) for listing fact that the waste already is defined as to groundwater consumers. This a waste as hazardous, for the reasons a hazardous waste because it exhibits analysis used the leachate concentration described below. the toxicity characteristic and the measured from a sample of the facility’s potential risks posed by the wastestream methyl chloride wastewater treatment 46 Although we noted at proposal that the facility had obtained a ‘‘reclassification’’ of the waste as are regulated both under RCRA and sludge, and assumed the direct non-hazardous from the State of Louisiana, this other programs. With respect to the ingestion of this leachate by an adult for determination did not appear to be a blanket discharge of the wastewater, the facility a period of 58 years. This bounding exemption from hazardous waste requirements, for treats and discharges the wastewater in analysis resulted in a risk of 5E–5 for example, should a process change result in a waste that fails the toxicity characteristic for mercury, the compliance with the conditions of a one constituent, arsenic. This estimate waste would have to be handled as hazardous NPDES permit issued under the of individual risk, together with waste). authority of the Clean Water Act. additional factors described below in

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EPA’s response to specific comments, Agency with regard to the constituent of E. Wastewater Treatment Sludges From led the Agency to conclude that this concern (i.e., arsenic). the Production of Allyl Chloride waste did not pose a substantial risk to If the Agency assumes a less direct human health and the environment. 1. Summary of Agency’s Listing pathway of ingestion (i.e., taking into Determination for Allyl Chloride 3. Response to Major Comments account some dilution and attenuation Wastewater Treatment Sludges Received on the Proposed Listing expected with a landfill scenario, so that Determination for Methyl Chloride a person drinks groundwater EPA is not listing as hazardous waste Wastewater Treatment Sludges contaminated with leachate, rather than sludges from the treatment of wastewaters generated from allyl Two commenters questioned why the the leachate directly), and applying a chloride production processes. The Agency proposed not to list the DAF of 5 (which would be a reasonable wastewater treatment sludges from assumption for an unlined landfill), the Agency has determined that this methyl chloride production as predicted risk becomes 1E–5. However, wastestream does not meet the criteria hazardous, given that the individual the Agency also notes that assuming a set out at 40 CFR 261.11(a)(3) for listing cancer risk level from arsenic, via the DAF of 5 (as was described in the a waste as hazardous. The Agency groundwater pathway, is within the proposed rule) is likely too identified no risks of concern associated range of risk values that EPA generally conservative, given that the landfill in with the current management of this associates with potential candidacy for which the methyl chloride sludge is waste. listing the waste as hazardous. The disposed has a 24-inch clay liner and a 2. Discussion of Agency’s Listing commenters argued that EPA should not leachate collection system. Therefore, Determination ignore the potential risks from the the actual risk from arsenic in this waste arsenic in the wastewater treatment will be much lower than the risk level As discussed in the proposal, sludges and should list the waste as predicted by the bounding analysis, currently non-hazardous wastewater hazardous. given that the landfill currently used by treatment sludges from allyl chloride EPA did not ignore the potential risk the single facility generating this waste production are generated at a single from arsenic. The estimated risk is lined and has a leachate collection facility. The sludges are generated from described by the commenter was the system. the facility’s centralized wastewater result of the Agency conducting a To further illustrate why assuming a treatment system in which the facility bounding analysis using worst case DAF of 5 would be a very conservative manages wastewaters from multiple assumptions. Given that the Agency’s assumption, in our assessment of risk production processes and facilities. assumptions were very conservative Wastewaters from the production of (i.e., an adult receptor would drink from the EDC/VCM wastewater allyl chloride contribute less than two leachate generated from the disposal of treatment sludge presented elsewhere in percent to the system’s total sludge the methyl chloride wastewater today’s rule, arsenic was an initial loading. According to the RCRA Section treatment sludges for 58 years), and constituent of potential concern. To taking into account additional factors support our analysis of potential 3007 survey response from the one described below, the Agency groundwater risks from the landfilling facility generating a non-hazardous allyl determined that there is no substantial of EDC/VCM wastewater treatment chloride sludge, the sludge generated hazard to human health and the sludges, we modeled arsenic releases from the facility’s wastewater treatment environment on which to base a and obtained estimates of DAFs for system is incinerated on site in a non- decision to list the waste as hazardous. arsenic (assuming an unlined landfill) of hazardous waste incinerator. As described in more detail in Section 13 for the high-end risk estimate, and a As described in the proposed rule, VI.B.1. of this preamble, EPA’s policy DAF of 93 for the central tendency during the investigations undertaken in for listing wastes as hazardous estimate. Thus, even if the Agency does support of the listing determinations (originally outlined in the in 1994 Dyes not take into account the liner and EPA collected one sample of sludge and Pigments proposal, 59 FR 66077) is leachate collection system in the one from the facility’s combined wastewater that wastestreams with risks in the landfill where currently non-hazardous treatment system. Two duplicate TCLP range of 1E–6 to 1E–4 may be either methyl chloride sludge is managed, analyses were performed using the listed or not listed after taking into applying reasonable estimates of DAFs sample collected. The TCLP analyses account additional factors. Generally, lowers the estimated risk to the lower indicated the presence of no TCLP our benchmark level for listing is the end of the range of risks where the constituents above regulatory levels. middle of the range (1E–05), but, as Agency may or may not list a waste; and The sample also was analyzed for total described in the preamble to the Dyes upon consideration of the very constituent concentrations including and Pigments proposal, we use a conservative approach used in arsenic and dioxins and furans. The ‘‘weight of evidence’’ approach that generating the arsenic risk estimate, the total arsenic concentration in the waste considers other factors. In the case of Agency concludes that the potential risk our listing determination for methyl was 11.7 mg/kg, and the total dioxin associated with arsenic in the waste is chloride wastewater treatment sludges, (TEQ/TCDD) concentration was 11.79 these additional factors include the well below the range in which the ng/kg. conservative assumptions that resulted Agency would deem the waste to pose The Agency did not assess risks by in the groundwater risk estimate for a substantial hazard to human health modeling management practices and arsenic, along with additional and the environment. Therefore, EPA is exposure pathways, since both the total information available to the Agency finalizing a no list determination for arsenic level and the total dioxin level regarding the manner in which the wastewater treatment sludges from the detected in the sludge are below levels waste is currently managed (i.e., in a production of methyl chloride. of concern and well within the range of landfill). We also evaluated our risk background levels of those constituents assessment results in conjunction with additional information available to the

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The total arsenic and hazardous waste landfills receiving generated by a single facility and total dioxin concentrations in the waste newly-listing hazardous wastes prior to currently is not managed in a manner are below levels of concern. the effective date of the listing decision, other than non-hazardous waste A commenter suggested that the the leachate that is collected and incineration. analytical work performed on the managed from the landfills would be Given that wastewater treatment wastewater treatment sludge generated classified as hazardous, due to the sludges from allyl chloride production from allyl chloride production was application of the waste code for the are generated by a single facility, that inadequate, given that only one sample newly-listed K175 to the leachate. As the sludge generated is the product of a of the sludge was collected and noted by a commenter in response to facility-wide non-dedicated (i.e., not analyzed by EPA. proposed petroleum listing process-specific) wastewater treatment The commenter did not provide any determination, this could lead to vastly system, and that the waste contains no specific information as to why the allyl increased treatment and disposal costs constituents of concern at chloride sample collected by EPA was without necessarily any environmental concentrations of concern, the Agency inadequate, other than it was one benefit. concludes that no significant risks are sample. As noted in Table 2–10 of the In the chlorinated aliphatics proposed posed by the waste. The Agency is Listing Background Document (USEPA, listing determination, EPA requested finalizing a determination not to list this 1999c), the Agency sampled 100% of comment on whether or not VCM–A waste as hazardous. the facilities producing allyl chloride, wastewater treatment sludges were that is, EPA visited and sampled the one 3. Response to Major Comments previously disposed in non-hazardous facility that produces this chlorinated waste landfills. Information provided to Received on the Proposed Listing aliphatic chemical. As discussed above Determination for Allyl Chloride the Agency by the one generator of this and in the proposed rule, EPA is not waste indicates that this waste was not Wastewater Treatment Sludges listing this facility’s allyl chloride previously managed in non-hazardous One commenter questioned whether wastewater treatment sludge because waste landfills. The generator stated that EPA had considered the fact that the the chlorinated aliphatic production they have always disposed of the VCM– one facility generating wastewater process at this facility contributes less A sludge in a subtitle C landfill. Since treatment sludges from the production than two percent of the total wastewater EPA has no evidence that this waste has of allyl chloride may manage this waste volume to the wastewater treatment been disposed of in non-hazardous in a manner other than on-site process from which the sludges are waste landfills, the Agency sees no combustion in the future. The generated. Given that there is only one reason at this time to finalize the commenter suggested that EPA should generator of this waste and that the proposed temporary deferral for landfill have conducted a risk analysis of wastewaters from the allyl chloride managing the waste both in a non- production process contribute a leachate and gas condensate derived hazardous waste incinerator and in an relatively small portion to the facility’s from newly-listed VCM–A wastes. unlined landfill. wastewater treatment system, EPA Therefore, today EPA is not finalizing Given that the one facility generating believes that our data, though perceived the proposed temporary deferral for this waste is managing the waste in an as limited by the commenter, is landfill leachate as was proposed. on-site incinerator and that the Agency adequate to support the listing Although the Agency is not finalizing has no information indicating that the determination. the proposed temporary deferral for facility has or intends to manage the applying the new K175 waste code to waste in a manner other than on-site F. What is the Status of Landfill leachate from non-hazardous waste incineration, we believe that landfill Leachate Derived-From Newly-Listed landfills that previously accepted K175, management is not plausible for this K175? should the Agency, in the future, wastestream. In the case of a waste that At the time of the proposed rule, receive information indicating that one is generated by a single facility, we information available to EPA indicated or more non-hazardous waste landfills would not project a change in that wastewater treatment sludges from did accept this waste prior to the management practices without the production of VCM–A may have effective date of today’s rulemaking, we information or cause. EPA evaluated been managed previously in non- may re-consider our decision not to information provided by the facility hazardous waste landfills. If these finalize the proposed deferral. The regarding current management practices sludges had been managed in non- Agency notes that the proposed to project plausible scenarios. The hazardous waste landfills, and if the regulatory language for the temporary Agency concluded that the facility has leachate and gas condensate generated deferral, as published in the August 25, sufficient on-site capacity to continue to at such landfills is actively managed 1999 Federal Register, inadvertently treat the waste in its non-hazardous after the effective date of today’s rule, included both the K174 and K175 waste the landfill leachate and gas condensate codes. The regulatory language in the 47 Alkhatib, Eid, and O’Connor, Timothy, derived from the newly-listed VCM–A proposal only should have included the ‘‘Background Levels of Priority Pollutant Metals in waste in such landfills could be K175 waste code. Given that the Agency Soil, American Environmental Laboratory, Vol. 10, No. 3, April, 1998. classified as K175. As explained in the is finalizing the conditional listing Hunter, Philip M., ‘‘Air-Force Wide Background preamble to the proposed rule and in approach for K174 (and thus EDC/VCM Concentrations of Inorganics Occurring in Ground the final rule for leachate derived from sludge disposed in a licensed landfill Water and Soil,’’ Proceedings from the Fourteenth newly-listed petroleum wastes (64 FR will not be listed hazardous waste) there Annual Waste Testing and Quality Assurance Symposium, Pp. 73–77, 1998. 6806), in such circumstances, we would is no reason to include (nor did EPA Welch, Alan H., Lico, Michael S., and Hughes, be concerned about the potential intend to include at proposal) the K174 Jennifer L., ‘‘Arsenic in Ground Water of the disruption in current leachate waste code in the temporary deferral for Western United States,’’ Ground Water, Vol. 26, No. management that could occur, and the the application of waste codes to 3, May/June, 1988. possibility of redundant regulation leachate from non-hazardous waste 48 See Table 4–4 of ‘‘Risk Assessment Technical Background Document for the Chlorinated (under RCRA and CWA) due to the landfills that previously accepted Aliphatics Listing Determination,’’ EPA, June 25, application of the ‘‘derived-from’’ rule newly-listed wastes (40 CFR 1999a. to the leachate. In the case of non- 261.4(b)(15)).

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G. Population Risks Several commenters stated that the whether a waste is hazardous—that is, As discussed previously, our population risks estimated by EPA do that the waste poses a ‘‘substantial proposed and final listing not justify a decision to list as present or potential hazard to human determinations were based upon hazardous the wastes proposed for health or the environment’’—cannot be estimates of individual risk. For the listing (chlorinated aliphatic met unless EPA establishes that a large EDC/VCM wastewater treatment wastewaters, EDC/VCM wastewater number of people are likely to have sludges, the projected population risks treatment sludges, VCM–A wastewater increased cancer risk due to exposure to are low. We relied on individual risk treatment sludges). Commenters argued the hazardous constituents in the waste, estimates (excess lifetime cancer risk), that consideration of the risks posed by i.e., the so-called ‘‘population risk’’ is and not population risk estimates, the management of these wastes to the high. We disagree with these because we are concerned about risks to entire population potentially exposed commenters. EPA concludes in this individuals who are exposed to releases would lead to the conclusion that these listing (and has concluded in previous residuals do not pose substantial of hazardous constituents. EPA listings) that even if relatively few hazards to human health. Therefore, the concludes that, under certain waste people may be subject to substantial wastes should not be listed as management practices, these wastes are hazards, those individuals still deserve hazardous. Commenters argued that capable of posing a substantial present protection. Accordingly, consistent with EPA’s failure to give serious or potential hazard to human health or our past practice, we have based the consideration to the low levels of the environment. We have determined EDC/VCM hazardous waste listing population risk is at odds with the that using individual risk as a basis for determination on the substantial hazard RCRA statute, the listing criteria, and this listing determination, which is to currently or potentially exposed regulatory precedent within the federal consistent with past practices, also is individuals, rather than on the government. Some commenters claimed appropriate because the Agency must increased number of cancer cases in the that, due to the low population risk population at-large. The D.C. Circuit protect against potential, as well as estimates, EPA cannot conclude that present hazards that may arise due to Court in American Petroleum Institute, any of the residuals ‘‘is capable of et al., v. EPA upheld EPA’s practice in the generation and management of posing a substantial present or potential particular wastestreams. EPA a previous listing decision to base the hazard to human health or the decision on its concern for substantial acknowledges that in cases where small environment,’’ as required in 40 CFR populations are exposed to particular risks to individuals. 261.11, and therefore EPA should not EPA points out that the use of the wastes and waste management list any of the residuals. word ‘‘substantial’’ in the RCRA statute practices, population risk estimates may In response, EPA notes that the use of (i.e., ‘‘* * * substantial present or be very small. EPA finds it is important ‘‘population risk’’ is not explicitly potential hazard * * *’’) need not be to address the current or potential required nor prohibited in either the restricted to a quantitative meaning or substantial hazards to individuals living RCRA statute or the hazardous waste applied exclusively to population risk. in small communities. Where listing criteria in 40 CFR 261.11. EPA In the case of the wastes being listed as individuals may be subject to does not believe it is appropriate to hazardous wastes today, we have substantial risks, EPA finds that such allow contamination from waste determined that risks to individuals are individuals deserve protection. In management units to potentially cause ‘‘substantial.’’ The estimated increased promulgating the final listing substantial hazards to nearby residents risk of cancer for the exposed individual determinations for EDC/VCM and VCM– simply because there are few is greater than 1 in 100,000. Consistent A wastewater treatment sludges, it is the individuals or wells in the immediate with EPA policy (see 59 FR 66072, at increased risk for currently or area. As stated above, our decision to 66077), wastestreams for which the potentially exposed individuals, list EDC/VCM and VCM–A wastewater calculated high-end individual cancer regardless of how few individuals are treatment sludges is based on our risk level is 1 in 100,000 or higher exposed, against which EPA is concern about the present and potential generally are considered initial reasonably protecting. hazards to those individuals who may candidates for a listing decision. In the proposed rule, in addition to be significantly exposed, even if there presenting the results of our risk Wastestreams for which these risks are are few of them. In addition, the calculated to be 1 in 10,000 or higher assessments estimating individual risks, regulations clearly state that wastes are we also discussed the potential risk will generally be listed as hazardous to be listed as hazardous, if they are waste, although even for some of these posed to populations from the ‘‘capable of posing a substantial present management of chlorinated aliphatic wastestreams, there can be in some or potential hazard’’ (emphasis added). cases factors which could mitigate the wastewaters managed in tanks, and Therefore, it is the Agency’s past and EDC/VCM sludges managed in land high hazard presumption. Listing current view that as a policy matter, the determinations for wastestreams with treatment units and landfills. We Agency considers the threats to calculated high-end individual lifetime requested comment on whether or not it individuals, whether they exist today or cancer risks falling into the range of 1 is appropriate to give weight to in the future. EPA’s discretion to base in 10,000 and 1 in 1,000,000 are also population risk in making our final its hazardous waste listing decisions potentially listable but always involve listing determinations. We also invited upon substantial risks to individuals, an assessment of additional factors.49 comment on the effect of such an even if risk to the overall population is For specific discussion of how EPA approach with respect to the Agency’s low or near zero, recently was upheld environmental justice goals, including by the U.S. Court of Appeals for the 49 ‘‘The Superfund program has always designed our goal of protecting human health in District of Columbia Circuit in its remedies to be protective of all individuals rural areas. American Petroleum Institute, et al. v. * * * that may be exposed at a site.’’ 55 F.R. 8666, In response to the proposal, we EPA (No. 94–1683). 8710 (Mar. 8, 1990). EPA’s Superfund regulations received comments both supporting the Specific comments received in at 40 C.F.R. § 300.430(e)(2)(i)(A)(2) establish remediation goals at levels that represent an excess use of population risk estimates in response to the proposed rule included upper bound lifetime cancer risk to an individual making listing determinations, and several commenters who argued that the cancer risk to an individual at between 10¥4 and comments against this approach. legal standard in the RCRA statute for 10¥6.

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations 67107 addressed these factors for EDC/VCM comparison to the individual risk levels because only a few individuals sludge see Section VI.B.1. of today’s in these other regulatory decisions. potentially will be exposed. In addition, preamble. EPA does not find this study leads it risk estimates alone do not dictate any In addition to comments arguing the to change today’s listing decisions. As particular listing decision. Even if EPA already noted, the Agency has the × ¥5 legality of basing hazardous waste finds an individual risk of 1 10 or discretion to base its listing decisions on listing decisions on estimated risks to greater, for example, the Agency the substantial hazard to highly exposed individuals, rather than population considers other factors and may decide individuals, even if there is only a small risks, we received comments claiming to list or not list a waste as hazardous, number of them, as upheld by the U.S. based upon the consideration of all that the individual risk approach used Court of Appeals for the D.C. Circuit in relevant factors. In finalizing today’s by EPA was ‘‘overly conservative and American Petroleum Institute v. EPA. listing determinations, the Agency is unrealistic.’’ These commenters stated The study itself, however, has a number basing its decisions on the listing policy that EPA needs to use population risk of flaws which lead EPA to reject its described in the December, 1994 estimates as a ‘‘reality check’’ on use. It deals with no RCRA decisions, proposed listing determination for dyes individual risk estimates. Two but instead deals with a number of other and pigment industry wastes (59 FR commenters also said that we should statutes that have different mandates. 66072). Furthermore, the Agency does use individual central tendency risk This study also is outdated in that it was not think that it is adequate to base a estimates as a more meaningful or conducted a number of years ago when hazardous waste listing determination realistic estimate of potential risk. Agency risk assessment was less upon a comparison of potential risks EPA disagrees with commenters’ sophisticated than it is now. In posed by wastes covered by one assertions that the highly-exposed particular, the study notes that at the rulemaking relative to risks posed by individual risk approach used in the time federal agencies overestimated risk other wastes and potentially unrelated risk assessment supporting today’s assuming maximum exposures. Since rulemakings. The Agency considers listing determinations was overly issuance of EPA’s 1992 ‘‘Guidance on relevant factors particular to a waste and conservative and unrealistic. In today’s Risk Characterization for Risk Managers the plausible management practices notice, as well as in the Response to and Risk Assessors,51 EPA has modified affected when making each regulatory Comment Document accompanying its risk assessment approach to decision. As we have discussed today’s rule, we address specific determine a plausible high-end thoroughly in this preamble and in the comments regarding the risk exposure analysis, which is intended accompanied background documents, in assessment. Even though our listing not to overestimate risks to highly this case we think the individual risk decisions in today’s rule are based upon exposed individuals. Moreover, EPA’s estimates and our consideration of other predicted risks to highly-exposed current guidance acknowledges that in factors provide an adequate justification individuals, we believe that these risks situations where small populations are for listing both EDC/VCM and VCM–A are within the distribution of risks that exposed ‘‘individual risk estimates will wastewater treatment sludges as could reasonably be expected to exist in usually be a more meaningful parameter hazardous wastes. 52 the population. In support of this for decision-makers.’’ Other comments received by the The study merely presents a listing of conclusion, we note that as part of the Agency include comments that stated decisions made by various federal analyses to support the notice of that society does not have unlimited agencies under different statutory proposed rulemaking, we also resources to address risks unless they requirements. It does not suggest any conducted probabilistic modeling to are ‘‘clearly substantial,’’ as indicated by rationale for the regulatory decisions more directly evaluate the anticipated population risk. We point out however other than the fact that they occurred. It that the regulations state that EPA may distribution of risk levels. The high end seems to suggest that, because we list a waste if it is ‘‘capable’’ of posing deterministic risk estimate for the adult decided against specific regulations in a hazard and the underlying RCRA farmer under the EDC/VCM land the past that coincided with a particular statutory language states that hazardous treatment unit scenario fell at the 95th ¥ ) individual risk level (e.g., 1 × 10 4 and wastes are those that ‘‘may * * * pose’’ percentile of the probabilistic low numbers of cancer cases avoided, a hazard. Thus, the Agency disagrees distribution. EPA’s Guidance For Risk we are somehow obligated to make that that risks must be ‘‘clearly’’ substantial Characterization (USEPA, 1995) states: same decision now. The commenter to be subject to RCRA regulation. ‘‘Conceptually, high end exposure does not offer any other rationale for Further, EPA disagrees that ‘‘clearly means exposure above about the 90th determining at what point the number substantial’’ risk (or even a risk that percentile of the population of cancer cases avoided would support ‘‘may’’ occur) must be indicated by a distribution, but not higher than the an Agency decision to list a waste as high population risk estimate. The individual in the population who has hazardous. statutory standard for listing a waste is the highest exposure.’’ For several additional reasons, EPA ‘‘substantial hazard.’’ Where EPA finds One commenter cited a 1987 study of disagrees with the suggestion that the that a waste poses a substantial hazard 13 regulatory determinations where low Agency base today’s listing decisions on to highly exposed individuals, EPA will population risk was cited as a reason total population risk or total number of list the waste to protect those not to regulate, and noted that the study cancer cases. In the first place and as individuals potentially exposed. suggests that EPA should not establish previously noted, we believe we should Other commenters supported the regulatory controls on the management not ignore substantial risks to Agency’s use of individual risk of wastes, if the population burden is individuals, if that might consign estimates as the appropriate criteria for less than one cancer in 100 years.50 The individuals to substantial risks, simply making hazardous waste listing commenter described where the determinations. For example, one individual risk levels in the proposed 51 1992 Memorandum from the then Deputy commenter said that EPA should weigh Administrator F. Henry Habicht, ‘‘Guidance on Risk individual risk more than population chlorinated aliphatics listings fell in Characterization for Risk Managers and Risk Assessors.’’ risk because the commenter believes 50 Travis, Curtis C., 1987. Environment Science 52 1995 Guidance for Risk Characterization there is greater uncertainty in and Technology, Vol. 21, No. 5. (section III.C.2), page 17. population risk estimates than in

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Two of the constituents of concern Another commenter who supports the concerns and does consider risks to that are present in the EDC/VCM use of individual risk over population minority and disadvantaged populations wastewater treatment sludges (K174) risk, argued that EPA is not compelled in its decision making. Our goal is to that will be designated as listed by governing regulation or statue to ensure that no segment of the hazardous wastes as a result of today’s define ‘‘substantial hazard’’ in terms of population bears a disproportionally rule do not currently appear on the list population risk. The commenter also high risk as a result of our decision of hazardous constituents at 40 CFR part stated that EPA should take into account making. The hazardous waste listing 261, Appendix VIII. Therefore, EPA is risks to populations from more than just determinations promulgated today are adding these two constituents, the industry under study, since based upon analyses conducted with a octachlorodibenzo-p-dioxin (OCDD) and populations are potentially impacted by goal of protecting all potentially octachlorodibenzofuran (OCDF), to risks from many different facilities. For exposed individuals. No segment of the Appendix VIII. example, in parts of the country overall population will be placed at a 2. Discussion of Agency’s Decision To concerns have been raised previously disadvantage as a result of today’s Add Constituents to Appendix VIII about certain minority and poor rulemaking. populations bearing a disproportionate OCDD and OCDF are members of the Finally, the Agency is also concerned amount of risk for a variety of industries large family of polychlorinated dioxins that land use patterns can change over and wastes. and furans. Certain of these compounds, We agree that we are not compelled time. For example, when evaluating a most notably, 2,3,7,8 -TCDD, have been by governing regulation or statue to waste that adversely impacts shown to be toxic. The Agency found define ‘‘hazard’’ in terms of population groundwater, the Agency also is substantial hazard associated with the risk. We may define ‘‘hazard’’ on the concerned about the potential presence of dioxins in EDC/VCM basis of substantial risk to individuals contamination of future drinking water wastewater treatment sludges, when even when population risk estimates are supplies, and of groundwater which these sludges are managed in land low. Although population risk is one of may have other uses (e.g., livestock treatment units. In our risk assessment, many factors that has been considered watering, irrigation, aquaculture). If dioxin/furan risk was reported on a in some Agency decisions, there are regulatory decisions were based solely TCDD TEQ basis. As previously numerous precedents where the Agency on population risks at a particular point discussed in today’s final rule, as well has taken action, for example at in time, beneficial uses could be as in the proposal, TCDD TEQ Superfund sites and in previous listing precluded or, if the future users were concentrations are calculated by determinations, when there are unaware of the contamination, multiplying each 2,3,7,8 substituted relatively few people potentially unacceptable risks could occur. This congener by the appropriate TEF, and affected. Superfund is a particularly apt same objective, the protection of then summing the resultant example since it, like RCRA, deals with reasonably anticipated land use is an concentrations to come up with a TCDD protecting human health and the integral part of the Agency’s Superfund TEQ value. OCDD and OCDF are environment from harm arising from the remedy selection process.53 Under included in this calculation. mismanagement of waste. The D.C. Superfund, it is not sufficient only to Several studies, as noted in the Circuit Court particularly noted the consider potential risks to populations response to comments below, show that consistency with Superfund in surrounding a particular site at the time OCDD and OCDF have toxic effects on American Petroleum Institute et al., v. life forms. Therefore, we have of contamination or remediation; EPA described above. While a different concluded, based upon the results reasonably anticipated future land use statute, the Agency has stated that the presented in these scientific studies, patterns and future populations (i.e., key objective of the CERCLA National that OCDD and OCDF should be added Contingency Plan (NCP) is to protect future receptors) are considered in risk to Appendix VIII of 40 CFR part 261. individuals at contaminated sites (see assessments supporting remedy 3. Response to Major Comments 55 FR at 8710), and rejected using decision making and in selecting the 54 Addressing Agency’s Decision To Add population risk as the point of departure final remedy. In fact, the extensive Constituents to Appendix VIII for setting clean-up levels (see 55 FR at experience with the Superfund program 8718). In addition, the CERCLA bears out these concerns. There are One commenter opposed the addition regulations (see 300.430(e)(2)(I)(A)(2), Superfund sites, for example, where of OCDD and OCDF to Appendix VIII of and 55 FR at 8848) direct EPA to residential developments were placed 40 CFR part 261 on the basis that OCDD establish preliminary remediation goals over former landfills that have turned and OCDF contribute very little to the for carcinogens based on ‘‘cancer risks out to be dangerous to the new actual risk attributable to dioxin to an individual.’’ populations, leading not only to risks to compounds. The commenter also The Agency disagrees with the the population but expensive and time- contended that the assignment of non- commenter’s claim that potential risks consuming cleanups. zero TEFs to OCDD and OCDF cannot from other industries should be form the basis for a regulatory decision estimated or accounted for in estimating 53 Memorandum EPA Regional Waste to list the compounds as hazardous potential risks from a particular Management Division Directors from Elliott P. constituents, since TEFs are intended wastestream generated by one specific Laws, ‘‘Land Use in the CERCLA Remedy Selection only to be used as a tool to aid risk Process,’’ OSWER Directive No. 9355.7–04. industry. The benefits of this listing are 54 See ‘‘Risk Assessment Guidance for Superfund managers in thinking about potential the risks avoided from management of (RAGs), Volume I—Human Health Evaluation health risks associated with the the newly-listed wastes. The Agency has Manual, Part A,’’ (Chapter 6), 1989. compounds. The commenter argued that

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TEFs are not intended to provide a demonstrate that the absorption of The commenter neglects to mention scientific basis for drawing the OCDD is dependent upon both dosing that not only was enzyme activity conclusion that OCDD or OCDF are volume and concentration of the induced by OCDD in the rats, but toxic, carcinogenic, mutagenic, or solution. The higher the concentration CYP1A1 and CYP1A2 protein were also tetratogenic. The commenter also argued the lower the absorption and the larger increased as demonstrated by western that OCDD and OCDF do not meet the the volume (up to 5 ml/kg) the greater blot analysis (Couture et al., 1988). criteria in 40 CFR 261.11(a) for listing a the absorption. Hence, high dose single These proteins have been implicated in substance on the Appendix VIII exposures are unlikely to induce playing important roles in oxidative hazardous constituent list. significant effects due to the limited damage and porphyria (Sinclair et al., The commenter contends that the absorption of OCDD. In contrast, low 2000). According to Nebert and 1988 study by Couture, Elwell, and dose repeated exposures will allow for colleagues ‘‘metabolism of endogenous Birnbaum, although it led to a raising of the bioaccumulation of OCDD, which and exogenous substrates by perhaps the TEF for OCDD/OCDF to 0.001 by eventually leads to biological effects. every P450 enzyme, but certainly NATO/CCMS, does not support a non- This is clearly demonstrated in the CYP1A1 and CYP1A2 (which are zero TEF for OCDD/OCDF. A Couture et al. study (1988). The located, in part, in the mitochondrion), reevaluation of the study resulted in a repeated exposure to 1 ug/kg of OCDD have been shown to cause reactive downgrading of the TEF to 0.0001 by in a dose volume of 5 ml/kg produces oxygenated metabolite (ROM)-mediated the World Health Organization. The time dependent effects that also are oxidative stress’’ (Nebert et al., 2000). commenter further contends that few associated with increasing tissue Ames and colleagues have clearly statistically significant physiological accumulation of OCDD. OCDD induces demonstrated the role of CYP1A1 in effects have been observed in the study hepatic CYP1A1 activity and increases oxidative stress (Park et al., 1996). and that they are transitory in nature CYP1A1 and CYP1A2 protein. The commenter cites a number of and are of uncertain toxicological Induction of CYP1A1 occurred as early studies which suggest that OCDD is not significance. The commenter also points as two weeks after treatment, and this toxic, in contrast to the studies of out that a longer-term subchronic study response increased with time and with Couture et al. The studies cited are has been reported which dramatically hepatic OCDD accumulation. Induction generally inadequately designed to demonstrates that dioxin-like effects are of CYP1A1 is a dioxin-like effect and is address the toxicity of OCDD. Several not produced by OCDD in animals even indicative of activation of the Ah studies have demonstrated that, while at high dose levels. receptor. Hepatic cytoplasmic OCDD is poorly absorbed in biological The commenter concludes that an vacuolization in the livers was also systems (Norback et al. Birnbaum and extensive body of data exists that does induced in a time dependent manner, Couture, 1988; Couture et al., 1988) it not support the conclusion that OCDD first occurring after 40 doses and can bioaccumulate through repeated is a toxicant, carcinogen, mutagen, or increasing in incidence and severity exposures to low concentrations. In teratogen. In addition, the commenter after 65 does of OCDD. addition, in the Couture et al., study, it states that essentially no toxicological took at least 40 doses over data has been published for OCDF The Agency disagrees with the approximately nine weeks before supporting the listing of the compound commenter’s argument that these effects enough of the chemical could in Appendix VIII. are transitory or of uncertain accumulate to produce alterations in EPA disagrees with the commenter’s toxicological significance. First, the liver histology. Acute, single exposures arguments for several reasons. First, the cytoplasmic vacuolization (lesions) in to high concentrations of OCDD are Agency notes, in response to issues the liver increased in incidence and unlikely to result in significant raised by the commenter, that as a severity in a time dependent manner. accumulation to induce a toxic response preliminary matter, dioxin TEFs are The increased incidence and severity of since very little of the dose shall be irrelevant to EPA’s decision to list these lesions were associated with absorbed. In fact, this is one of the OCDD and OCDF in Appendix VIII. The increasing hepatic concentrations of conclusions in the McConnell et al. criteria in 40 CFR 261.11(a) for listing a OCDD. Animals at the last time point study (1978). Hence, the acute studies substance on the list of hazardous examined in the study of Couture et al. on the effects of OCDD demonstrated constituents in Appendix VIII are that (1988) demonstrated the highest none of the typical signs of dioxin-like the constituents be ‘‘shown in scientific incidence and severity of these lesions; toxicity due to the limited absorption of studies to have toxic, carcinogenic, it is difficult to describe them as the chemical. Other studies have to a mutagenic or teratogenic effects on ‘‘transitory’’ as the commenters suggest, lesser or greater degree attempted humans or other life forms.’’ The given that the effects worsened over the subchronic exposures. However, these Agency has determined that OCDD and last five weeks of the study. Indeed, studies either are too short (Holsapple et OCDF meet these criteria, independent hepatotoxicity can be considered as part al. (1986)) or use too concentrated a of any TEF calculation. of a continuum of events leading to dosing solution (Norback et al., 1975). There are data from subchronic necrosis or carcinogenicity. In either case, too little OCDD was studies for both OCDD and OCDF which Demonstration of events early in this absorbed to induce effects. demonstrate dioxin-like effects (Couture continuum, such as cytoplasmic The commenter cites a study by et al., 1988; DeVito et al., 1997). Couture vacuolization, are cause for concern. Wermelinger et al. (1990) as evidence et al. (1988) is one of the best studies The commenter also attributes the liver that OCDD does not induce dioxin-like of OCDD and describes not only the effects to ‘‘nutritional, metabolic or effects. The USEPA strongly disagrees effects but the importance of study hormonal imbalances.’’ Indeed, dioxins with this conclusion. This manuscript design in examining the effects of are endocrine disruptors and hormonal was published as an extended abstract OCDD. Couture et al. (1988) imbalances are expected to be induced from the dioxin meetings demonstrate toxic response of OCDD by OCDD and other dioxins. These (Organohalogen Compounds, 1:221– following subchronic exposures. In hormonal imbalances should be 224). These data clearly demonstrate addition, this study also provides tissue considered adverse responses based on that both OCDD and OCDF administered concentrations at which these effects are our understanding of the endocrine in the diet result in clear dioxin-like observed. Couture et al. (1988) disrupting actions of these chemicals. activity. Both OCDD and OCDF resulted

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The Wermelinger methods of treatment, if any, which today’s rule, form the basis for EPA’s et al. study clearly supports the finding substantially diminish the toxicity of decision to list this waste as hazardous. of Couture et al., that repeated low dose the waste or substantially reduce the Second, studies have attributed dioxin- administration of OCDD results in likelihood of migration of hazardous like toxicity to both the hepta and octa dioxin-like effects. In addition, both constituents from the waste so that isomers. Based on the TCDD cancer Wermelinger et al. and Couture et al. short-term and long-term threats to slope factor and TEFs used in the risk provide similar estimates of the relative human health and the environment are analysis for this rule, the slope factors potency of OCDD, further supporting minimized.’’ RCRA Section 3004(m)(1), for OCDD and OCDF are effectively 15.6 the inclusion of these chemicals in the 42 U.S.C. 6924(m)(1). Once a hazardous (mg/kg-day)¥1 and the slope factors for TEF methodology. waste is prohibited, the statute provides the 2,3,7,8-substituted hepta dioxin and The commenter cites a study by the only two options for legal land disposal: furan isomers are effectively 156 (mg/ National Toxicology Program in which meet the treatment standard for the kg-day)¥1. These are by comparison 10 a two year feeding study of OCDD waste prior to land disposal, or dispose and 100 times, respectively, the slope produced no effects. We could not of the waste in a land disposal unit that factor for arsenic, an Appendix VIII locate any reports of this study in the satisfies the statutory no migration test. constituent and known carcinogen. NTP databases. After contacting the A no migration unit is one from which The carcinogenicity and risk levels of NTP, it was determined that the study there will be no migration of hazardous the 5 hepta and octa isomers and their of OCDD was halted due to uncertain constituents for as long as the waste potential conversion to even more toxic technical difficulties and no reports remains hazardous. RCRA Sections 3004 isomers by dechlorination or photolytic were ever prepared on any study of (d), (e), (f), and (g)(5). mechanisms lead us to conclude that OCDD by the NTP. It is unclear where 5. What Are the LDR Standards for adopting specific treatment standards the commenter obtained its information, K174? (i.e., numerical or CMBST) for these since a citation for the report was not isomers is warranted for the K174 provided. In today’s rule, we are adopting treatment standards for several forms of wastes. Because we typically include The effects of OCDF are not as well the same standards for new listings into studied as those of OCDD. Recent dioxins and furans as well as a treatment standard for arsenic. With those for F039 (multisource leachate) to studies do document that subchronic maintain equivalence within the LDR exposure to OCDF demonstrates dioxin- respect to the dioxins and furans being regulated, our standard requires either regulatory structure, we are also adding like activities in mice (DeVito et al., the same treatment standards in the 1997). The subchronic exposure treatment by means of combustion (denoted as CMBST in the 40 CFR F039 section of the 268.40 table (see resulted in EROD induction in liver, section below on conforming changes). lung and skin (DeVito et al., 1997) and 268.40 Table) or that the specified types of dioxins and furans meet numerical In summary, today, we are hepatic porphyrin accumulation (van promulgating as final the numerical Birgelen et al., 1996) in these mice. standards prior to land disposal. For most of the specified types of standards that were proposed for the These studies demonstrate that OCDF dioxins and furans (e.g., the hexa, penta, constituents of concern in the K174 also possesses dioxin-like properties. and tetra classes of congeners) as well wastewater treatment sludges from the I. What Are the Land Disposal as arsenic, we are adopting the existing production of ethylene dichloride and Restrictions Standards for the Newly- universal treatment standards and no vinyl chloride monomer. We are Listed Wastes? significant issues have been finalizing the numerical standards based encountered. However, the setting of on the data received and analyzed at 1. What Are EPA’s Land Disposal congener-specific numerical standards proposal. No comments or additional Restrictions (LDRs)? for 3 hepta and 2 octa forms of dioxin/ data were received regarding the The RCRA statute requires EPA to furan warrants some additional achievability of the proposed standards establish treatment standards for all discussion. In previous rulemakings, we so, therefore, we are adopting the same wastes destined for land disposal. These have not adopted treatment standards numerical standards as final. In addition are the so called ‘‘land disposal for these isomers. Several reasons we also are promulgating the option of restrictions’’ or LDRs. For any convince us that we should do so in complying with the technology standard hazardous waste identified or listed today’s rule. of combustion (CMBST) for the organic after November 8, 1984, EPA must First, with the K174 waste, our risk constituents present in K174. The final promulgate LDR treatment standards analysis indicates that, should this treatment standards are presented in the within six months of the date of waste be mismanaged in a land following table.

TABLE I±1.ÐTREATMENT STANDARDS FOR K174

Regulated harzardous constituent Wastewaters Nonwastewaters

3 1 Concentration in mg/kg 2 Concentration in mg/L , or Common name CAS No. 2 unless noted as ``mg/L technology code TCLP'', or technology code

1,2,3,4,6,7,8-Heptachlorodibenzo-p-dioxin ...... 35822±39±4 0.000035 or CMBST 4 ...... 0.0025 or CMBST 4 1,2,3,4,6,7,8-Heptachlorodibenzofuran ...... 67562±39±4 0.000035 or CMBST 4 ...... 0.0025 or CMBST 4 1,2,3,4,7,8,9-Heptachlorodibenzofuran ...... 55673±89±7 0.000035 or CMBST 4 ...... 0.0025 or CMBST 4 HxCDDs (All Hexachlorodibenzo-p-dioxins) ...... 34465±46±8 0.000063 or CMBST 4 ...... 0.001 or CMBST 4 HxCDFs (All Hexachlorodibenzofurans) ...... 55684±94±1 0.000063 or CMBST 4 ...... 0.001 or CMBST 4

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TABLE I±1.ÐTREATMENT STANDARDS FOR K174ÐContinued

Regulated harzardous constituent Wastewaters Nonwastewaters

3 1 Concentration in mg/kg 2 Concentration in mg/L , or Common name CAS No. 2 unless noted as ``mg/L technology code TCLP'', or technology code

1,2,3,4,6,7,8,9-Octachlorodibenzo-p-dioxin (OCDD) ...... 3268±87±9 0.000063 or CMBST 4 ...... 0.005 or CMBST 4 1,2,3,4,6,7,8,9-Octachlorodibenzofuran (OCDF) ...... 39001±02±0 0.000063 or CMBST 4 ...... 0.005 or CMBST 4 PeCDDs (All Pentachlorodibenzo-p-dioxins) ...... 36088±22±9 0.000063 or CMBST 4 ...... 0.001 or CMBST 4 PeCDFs (All Pentachlorodibenzofurans) ...... 30402±15±4 0.000035 or CMBST 4 ...... 0.001 or CMBST 4 TCDDs (All tetrachlorodi-benzo-p-doxins) ...... 41903±57±5 0.000063 or CMBST 4 ...... 0.001 or CMBST 4 TCDFs (All tetrachlorodibenzofurans) ...... 55722±27±5 0.000063 or CMBST 4 ...... 0.001 or CMBST 4 Arsenic ...... 7440±36±0 1.4 ...... 5.0 mg/L TCLP 1 CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only. 2 Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples. 3 All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42 Table 1ÐTechnology Codes and Descriptions of Technology-Based Standards. 4 For these wastes, the definition of CMBST is limited to: (1) Combustion units operating under 40 CFR 266, (2) combustion units permitted under 40 CFR Part 264, Subpart O, or (3) combustion units operating under 40 CFR 265, Subpart O, which have obtained a determination of equivalent treatment under 268.42(b).

Regarding the use of combustion the environment. For K174, the emission standards of the MACT (CMBST) for the regulated organic regulated organic constituents of Hazardous Waste Combustion Rule as constituents, commenters requested that concern are dioxin/furan congeners, well as standards for other hazardous air we allow combustion as an alternative which, if combustion is used for pollutants, such as metals (64 FR 52828, to the proposed (and now final) treatment, will not be individually September 30, 1999). Given this level of numerical treatment standards. This is analyzed in the treatment residue (e.g., regulation and permitting oversight, we consistent with the approach taken for the ash). do not find the need to impose F024, a set of previously listed Several factors suggest that such additional and, with respect to other chlorinated aliphatic wastes (62 FR individual constituent analysis is not dioxin/furan congeners, unique 26000–3, May 12, 1997). We agree and necessary and that specifying CMBST is analytical burdens on the regulated are promulgating the requested change. appropriate. First, if combustion in well community regarding these 5 hepta and As a consequence, facilities treating designed and operated units is used to octa congeners. K174 wastes will have the option of treat K174, the structural features of Of course, K174 does have metal complying with either the numerical dioxin/furan congeners (e.g., the constituents of concern, which would standards promulgated or the presence of the oxygen in the ring not be treated by the combustion technology standard of CMBST for the formation) suggest that all dioxins and process and that would remain in the regulated organic constituents. furans in K174 should be substantially combustion treatment residuals (e.g., Adopting combustion as an destroyed by the high temperature ash and scrubber water). We therefore alternative to the numerical standards combustion process that would have to are retaining metal treatment standards serves a general LDR programmatic be used. for all circumstances, i.e., whether or interest as well. We typically Second, we ensure that combustion not the treatment used by a facility promulgate numerical performance will occur in well designed, operated, involves combustion. When combustion standards to allow facilities maximum and highly regulated units. Part of the is used to treat the organics to achieve flexibility in determining for themselves CMBST standard itself (as modified in LDR compliance, facilities still will how best to achieve compliance with today’s rule for K174 waste) is that need to conduct compliance testing and the LDR treatment standards. If we combustion of K174 must occur either analysis for all regulated metal promulgate a technology-specific in units subject to the standards in 40 constituents in the combustion treatment standard (such as combustion) CFR part 264 subpart O or 40 CFR part treatment residuals prior to disposal. instead, this flexibility is lost. In today’s 266, subpart H, or in interim status This approach is patterned after EPA’s rule, by promulgating combustion as an incinerators where the owner/operator promulgation of a similar alternative alternative compliance option, we are has made a specific demonstration that treatment standard for F024 (wastes not disturbing the degree of flexibility the unit can operate in a manner from production of chlorinated afforded to facilities; rather, we are equivalent to a part 264 or part 266 aliphatics) and also for F032 (wastes maintaining or enhancing it. combustion unit. The type of facilities from wood preserving processes). See 55 However, when we specify a that can combust K174 is thereby FR 22580–22581, June 1, 1990. See also treatment technology like CMBST as the restricted to highly-regulated RCRA 62 FR 26000–26003, May 12, 1997. LDR standard, the analytical elements of units (or, after the current transition Another issue warranting brief compliance change. Typically, when we period, Clean Air Act permitted units discussion concerns a related, but in specify a method of treatment (like subject to MACT standards). This will reality quite different, issue. CMBST), no testing and analysis of ensure that combustion is done only in Commenters, in general, oppose the treatment residuals is required because a closely-regulated facility and in a regulation of the additional congeners we are confident that use of the manner that provides protection for individually, and state that the existing specified technology will reduce the human health and the environment. dioxin and furan congeners covered level of target constituents (organics in More specifically, combustion will under UTS standards are sufficient to the case of CMBST) to levels that occur only in units subject to the serve as surrogates for the effective minimize threats to human health and recently upgraded dioxin/furan treatment of the 5 hepta and octa

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 67112 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations congeners. These commenters would We also proposed that wastes and level of mercury removal desired. In omit the 5 hepta and octa congeners residues in this last category be treated addition, we have no firm basis for entirely from list of regulated hazardous so that a pH of 6.0 or less is achieved determining whether the RMERC constituents for which LDR treatment prior to land disposal, and that disposal residues from treating K175 could meet standards are set. of these wastes and residuals be the existing 0.2 mg/L TCLP total We do not agree with this approach. restricted to landfill cells where only mercury standard so that the RMERC Absent a specific requirement that hepta wastes with similar pH properties are residues could be land disposed. We are and octa congeners be treated (i.e., by co-disposed. therefore disinclined to adopt a K175 including them as regulated hazardous Because of the potential difficulty in treatment standard that involves constituents for K174 in the table in roasting and retorting K175 waste, the mandatory roasting and retorting. 268.40), generators would not be obliged Agency requested performance data, Conversely, with respect to the to determine the presence of these and solicited comment on a second second option proposed for K175 congeners. Without such a treatment standard option. This option treatment standards, several factors determination, it is certainly possible would require that K175 waste exhibit suggest that this is a better approach to that generators would not engage in any no more than 0.025 mg/L TCLP mercury adopt. First, as discussed above, the organic-oriented treatment at all. For for disposal without any requirement commercial roasting and retorting example, if the other dioxin/furans are that the waste be roasted or retorted. alternatives may not exist. Second, the The K175 wastes are typically much below treatment levels, generators physical properties of the waste indicate greater than 260 mg/kg mercury, ranging would not have to combust the K174 that the waste can readily achieve 0.025 from approximately 3,000 to 17,700 mg/ waste. Given our concern about the mg/L TCLP mercury. Testing conducted kg mercury, and are greater than one potential threats posed to human health for EPA shows the waste sample tested percent in total organic constituents.55 and the environment by dioxins and readily achieved 0.025 mg/L TCLP As noted in the proposal (64 FR at mercury, as the sample tested leached furans, we are choosing to require 46521), when these wastes (high only 0.0027 and 0.0058 mg/L total treatment wherever harmful congeners mercury and 1% or more organics) mercury at pH 4 and 6 respectively.57 are present above the treatment exhibit the toxicity characteristic, they Third, at this point in time, the standard. Also, the formation pathways would already be subject to Agency is reviewing the appropriateness for dioxins and furans are highly waste requirements of either RMERC (roasting of thermal treatment and recovery of specific, such that we have no way of and retorting) or IMERC (incineration in mercury in all forms of hazardous knowing the concentration of one units operated in accordance with waste, not solely K175. See 64 FR isomer based on the presence or absence RCRA incinerator standards). 28949, May 28, 1999. Therefore, of another. Commenters questioned the ability requiring RMERC for K175 at this We conclude that a surrogate and willingness of commercial retorting juncture may prove to be somewhat approach without compliance testing for and roasting treatment facilities to premature even if adequate data and the 5 hepta and octa isomers, such as accept K175 wastes, citing two factors. assurance of commercial treatment that which would be the consequence of First, with a K175 mercury content of capacity were to exist. Because we have the commenters’ views, would not be approximately one percent, commercial an acceptable and effective treatment adequate. Therefore, with today’s rule, retorters may not recover enough alternative, we are able to postpone we are promulgating treatment mercury to be cost-effective, and having to make a policy judgment about standards for each of the 5 hepta and second, most commercial retort facilities promoting or requiring mercury octa dioxin and furan isomers identified may not be able to accept wastes in recovery and in today’s rule in the proposal. excess of 500 ppm Appendix VIII (which would just apply to K175) until organics and still comply with their 3. What Are the LDR Treatment we are better prepared to resolve the RCRA permitting limits (USEPA, Standards for K175? longer term issues of mercury recovery 1999c).56 This information suggests that in a comprehensive and more We proposed two options for adopting an RMERC standard for K175 environmentally effective manner. establishing treatment standards under may present significant practical Based on all these factors, the Agency the LDRs for the mercury-bearing waste difficulties that could not be overcome has selected stabilization as the to be listed as K175 (64 FR 46521). The in the near term. appropriate technology upon which to first option would have included three In addition to the practical points base our K175 treatment standard, and treatment standards that would made by commenters, no roasting and is setting 0.025 mg/L TCLP mercury essentially be the same as those for retorting performance information for together with control of the pH of co- other mercury-bearing wastes. These the subject waste or even a similar waste disposed wastes (as discussed below) as standards are: was submitted in comment. Since the the land disposal restrictions for K175. Agency itself lacks data on the This standard may be achieved by any (1) for K175 wastes containing greater than properties of the subject waste following 260 mg/kg total mercury, the treatment technology (other than impermissible would be recovery of the waste’s mercury roasting and retorting, we are not able dilution), and does not prohibit content via roasting and retorting to persuasively conclude that this type roasting/retorting should it be shown to (RMERC); of treatment technology can achieve the achieve the performance standard. (2) for K175 RMERC residues containing less While no data were provided in than 260 mg/kg total mercury, the residues 55 See 64 FR at 46510; see also Table 4–14 from response comment on this proposal, would have to meet a numerical standard Listing Background Document for Chlorinated subsequently a vendor has indicated a Aliphatics Listing Determination (Proposed Rule) of 0.2 mg/L TCLP mercury prior to land willingness to demonstrate that the disposal; and (USEPA, 1999c). 56 In accordance with 40 CFR 266.100, a ‘‘metals (3) for K175 wastes and non-RMERC 57 treatment residues containing less than 260 recovery’’ unit such as a commercial mercury Paul Bishop, Renee A. Rauche, Linda A. Rieser, retorter is conditionally excluded from most RCRA Markram T. Suidan, and Jain Zhang; ‘‘Stabilization mg/kg total mercury, these wastes and permit requirements provided that the facility and Testing of Mercury Containing Wastes,’’ treatment residues would have to meet a complies with certain operating restrictions, one Department of Civil and Environmental numerical standard of 0.025 mg/L TCLP being a prohibition against accepting wastes in Engineering, University of Cincinnati, March 31, mercury prior to land disposal excess of 500 ppm Appendix VIII organics. 1999.

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Thus, practical better suited for stabilization and having the potential future threats from considerations also favor limitation of less potential for long-term mercury mercury mobilization, our treatment waste pH at the time of disposal as a release, the standards promulgated standard must ensure that pH is more viable option to control potential today could potentially be adjusted as maintained at 6.0 or less for K175 waste. mobilization of mercury once the wastes part of the ongoing re-evaluation of Because we agree with the commenter’s are disposed. mercury waste treatment technologies. suggestion about the practical In summary, for K175 waste, we are See 64 FR 28949, May 28, 1998. Any advantages of macroencapsulation in finalizing a treatment standard requiring modification of today’s promulgation some situations, we are finalizing that, prior to land disposal: (1) The would be the subject of a future treatment standards that require, prior waste must meet a TCLP leachate proposal. to land placement: (1) Wastes to be at concentration of 0.025 mg/L mercury or pH 6.0 or less, and placement is less, (2) the waste must be at or below Other comments focused upon the restricted to landfill cells in which a pH 6.0 when disposed, and (3) the proposed requirement that disposal of disposal of other wastes in excess of pH wastes must be macroencapsulated or, if K175 wastes and treatment residues 6.0 is prohibited; or (2) wastes to be at not, placement is restricted to landfill which are less than 260 mg/kg total pH 6.0 or less, and macroencapsulation cells in which disposal of other wastes mercury be restricted to landfill cells per the requirements of 40 CFR 268.45. in excess of pH 6.0 is prohibited. We are into which disposal of wastes in excess The pH restriction in the latter standard promulgating these land disposal of pH 6.0 is prohibited. Commenters is to ensure that mercury is not in a restriction requirements for K175 to noted that the waste could readily be mobile form should the ensure the long term protection of treated to a pH <6.0 but stated that, macroencapsulation vessel fail over human health and the environment. given the relative small quantity of time. This additional level of protection 4. What Are the Conforming Changes to waste generated, monofill disposal of is part of the best demonstrated and F039 and Universal Treatment K175 or co-disposal only with similar available treatment (BDAT) needed to Standards? wastes would not be feasible. One minimize the threats posed by potential commenter suggested mobilization of the mercury within a We proposed that the constituents macroencapsulation of the K175 waste landfill over the long-term. 1,2,3,4,6,7,8-heptachlorodibenzo-p- as is currently performed for debris Furthermore, macroencapsulation itself dioxin; 1,2,3,4,6,7,8- would provide a viable alternative to is not viewed as BDAT (except in heptachlorodibenzofuran; 1,2,3,4,7,8,9- achieve isolation of the waste from unusual cases such as debris) because it heptachlorodibenzofuran; surrounding, potentially adverse landfill merely isolates the waste from the 1,2,3,4,6,7,8,9-octachlorodibenzo-p- conditions. Subsequent discussions environment for a period of time and dioxin (OCDD); and 1,2,3,4,6,7,8,9- with Chemical Waste Management Inc. does not actually effect any treatment. octachlorodibenzofuran (OCDF) be confirm that acidic wastes make up only We have amended the regulations added to the list of regulated a small portion of hazardous wastes and promulgated today accordingly. constituents in hazardous waste F039 that it would not be feasible to manage Affected parties and other multisource leachate. The F039 waste a small cell for only K175 or for K175 stakeholders should note that we may code applies to hazardous waste landfill and only similar wastes of pH <6.0.59 revisit the requirement for leachates in lieu of the original waste macroencapsulation should we codes when multiple waste codes would Control of the disposal site conditions determine, at some future date, that the otherwise apply. F039 wastes are is essential to ensure that the mercury generation rate of materials requiring subject to numerical treatment present in this waste remains immobile disposal at low pH has increased to the standards equivalent to UTS. We so that long-term threats to human point where maintaining a separate cell proposed these additions to the health and the environment are for these wastes is an operationally constituents regulated by F039 to minimized. The solubility feasible option for a landfill. maintain the implementation benefits of measurements conducted on the waste We did not pursue to regulatory having one waste code for multisource for EPA are consistent both with results conclusion other potential avenues by leachate. found in the mercury literature 60 as which mercury mobilization could be Commenters correctly noted that the well as with calculations from a affected for a number of reasons. Two Agency did not add the constituents of geochemical stability model for mercury avenues would be to regulate the sulfide the carbamate waste listing to F039 (61 sulfide complexes.61 The testing and content of the waste itself or the sulfide FR 15566), an issue not directly within subsequent solubility calculations concentration in the disposal the purview of this rulemaking. As a confirm that above pH 6.0, increased environment, or both. These approaches result, multisource F039 leachates that mobility of mercury as mercuric sulfide/ are fraught with technical and also contain one of the listed carbamate hydrogen sulfide complexes occurs with implementation difficulties. For wastes must be treated to comply with example, chemical and biological carbamate hazardous waste codes to 58 Personal communication with SepraDyne processes within the disposal unit may meet the 40 CFR 268.48(c) requirement Corporation representatives. reduce sulfate to sulfide at varying rates for treatment to achieve the lowest 59 Memorandum from Ross Elliott, U.S. EPA depending on in situ conditions. Also, treatment standard for constituents of Office of Solid Waste, to RCRA Docket, ‘‘Summary of Phone Call Between EPA and Carl Carlsson, current test methods do not readily concern. Therefore, such wastes would Chemical Waste Management Inc.,’’ July 12, 2000. distinguish free sulfide from that bound be subject to multiple codes; the very 60 See 64 FR at 46522. See also Jenny Ayla Jay, as mercuric sulfide in the waste. Hence, situation F039 sought to eliminate. The Francois M. M. Morel, and Harold F. Hemond, adopting sulfide limits on incoming Agency’s intent upon promulgating Mercury Speciation in the Presence of Polysulfides, K175 wastes or mandating in situ F039 was that the single F039 waste Environmental Science and Technology, 2000, Vol. 34, No. 11, pages 2196–2200. sulfide levels would likely not be code would replace the multiple codes 61 Memorandum from John Austin to Ross Elliott, reliable or implementable means of to which such wastes were then subject May 12, 2000. ensuring mercury immobility. On the (52 FR 22619, June 1, 1990). To limit

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Document). apply, we are promulgating the Commenters also suggest that EPA’s decisions on whether to grant additional K174 dioxin and furan treatment and control of the existing a national capacity variance are based constituents of concern as proposed. regulated dioxin/furan congeners on the availability of alternative Resources permitting, conforming provides adequate protection against treatment or recovery technologies changes may be proposed for the potential risks associated with the hepta capable of achieving the prescribed carbamate waste constituents at some and octa congeners. Commenters appear treatment standards. Consequently, the future date. to recognize that the hepta- and octa- methodology focuses on deriving We also proposed that the numerical dioxin/furan congeners contribute estimates of the quantities of newly- standards derived for 1,2,3,4,6,7,8- significantly to the overall listed hazardous waste that will require heptachlorodibenzo-p-dioxin; carcinogenicity of K174 wastes and either commercial treatment or the 1,2,3,4,6,7,8-heptachlorodibenzofuran; waste treatment residues, and that they construction of new on-site treatment or 1,2,3,4,7,8,9-heptachlorodibenzofuran; also must be controlled if human health recovery as a result of the LDRs. The OCDD; and OCDF be added to the Table and the environment are to be protected. resulting estimates of required of Universal Treatment Standards (UTS) In essence, these commenters would commercial capacity are then compared at 40 CFR 268.48. These constituents have us make broad assumptions for all to estimates of available commercial contribute to the overall risks that situations about the ancillary impacts of capacity. If adequate commercial formed the basis for EPA’s decision the treating and controlling certain dioxin capacity exists, the waste is restricted EDC/VCM sludges pose a substantial and furan congeners, but not others that from further land disposal unless it risk to human health and the nevertheless present significant risks to meets the LDR treatment standards prior environment, as shown in the risk human health and the environment. to disposal. If adequate capacity does assessment accompanying this rule. We are not in a position to make such not exist, RCRA Section 3004(h)(2) Their presence in other hazardous broad assumptions regarding our degree authorizes EPA to grant a national wastes should be mitigated by effective of control over dioxin and furan capacity variance for the waste for up to treatment to avoid similar risks after congeners that present significant risks. two years or until adequate alternative land disposal. By adding these We have chosen to take a more treatment capacity becomes available, numerical standards for five dioxin and conservative tack, providing treatment whichever is sooner. furan congeners, we are ensuring that standards that, when met, ensure that 2. Capacity Analysis Results for treatment of hazardous waste addresses long-term threats to human health and Newly Identified Wastes these risks. the environment are minimized (RCRA In conducting the capacity analysis Following the adoption of today’s Section 3004(m)). For reasons noted for the wastes newly-listed by today’s rule, all characteristic wastes that have earlier (e.g., carcinogenicity of these rule, EPA examined data on waste these constituents as underlying congeners, dechlorination or photolytic characteristics and management hazardous constituents above the UTS changes to more toxic congeners, and practices gathered for the purpose of the levels will require treatment of these assuring treatment if these congeners are chlorinated aliphatics hazardous waste additional constituents before land present), we conclude that direct control listing determinations and on available disposal. This is in direct accord with of these 5 hepta and octa congeners is treatment or recovery capacity for these our mandate under the LDR treatment warranted. wastes. The data sources for the program to ‘‘substantially diminish the For these reasons, the Agency is analyses are primarily the 1992 RCRA toxicity of the waste or substantially promulgating the proposed additions to Section 3007 survey, the follow-up reduce the likelihood of migration of the Table of Universal Treatment survey specific to these wastes hazardous constituents from the waste Standards (UTS) at 40 CFR 268.48 and conducted in 1997 (see the docket for so that short-term and long-term threats to the list of regulated constituents for this rule for more information on these to human health and the environment 62 F039, multisource leachate from survey instruments), the available are minimized.’’ hazardous waste, in 40 CFR 268.40. Commenters in general objected to treatment capacity data submission that was collected in the mid-1990’s, and the changes to UTS because of their J. Is There Treatment Capacity for the 1997 Biennial Report (BR). EPA perceived cost of the analysis and Newly-Listed Wastes? concerns over available treatment analyzed the capacity-related capacity, which will be discussed in the 1. Introduction information from these data sources, following section. We were not Under the land disposal restrictions reviewed the public comments received persuaded by the commenters’ (LDR) determinations, the Agency must in response to the proposed rule, and arguments. Waste generators must demonstrate that adequate commercial corresponded or met with several already comply with treatment capacity exists to manage listed commenters to obtain more specific requirements for tetra-, penta-, and hazardous wastes in compliance with information. hexa- chlorinated dibenzo-p-dioxin and BDAT standards before the Agency can We identified the following annual dibenzofuran congeners. Much of the restrict the listed waste from further quantities of the newly-listed wastes labor and cost of analysis of the land disposal. The Agency performs that are generated and therefore the currently regulated congeners can not be capacity analyses to determine the quantities of waste that potentially separated from the costs associated effective date of the LDR treatment could require commercial treatment. solely with the hepta and octa standards for the proposed listed Information available to the Agency congeners because the analysis of these wastes. This section summarizes the indicates that up to 6,100 tons of K174 5 additional isomers is accomplished results of EPA’s capacity analysis for the per year could potentially require intrinsically as part of the overall wastes covered by today’s rule. For a 63 U.S. EPA. 2000f. Background Document for method and is not separable. Hence, detailed discussion of capacity analysis- Capacity Analysis for Land Disposal Restrictions: related data sources, methodology, and Newly Identified Chlorinated Aliphatics Production 62 RCRA Section 3004(m). detailed responses to comments for each Wastes (Final Rule), September.

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In addition, in a subtitle C or a non-hazardous waste removal) after the effective date of the one facility generating K175 uses a landfill, it is possible that little or no today’s rule are subject to the land sulfide precipitation technology and hazardous waste treatment capacity will disposal prohibitions.65 EPA expects therefore may be able to meet the be required for this waste. In addition, that the one facility currently managing numerical mercury concentration approximately 130 tons of K175 are chlorinated aliphatic wastewaters in standard upon generation of the waste. generated annually and potentially surface impoundments (and which Depending on their ability to control pH could require commercial treatment therefore may potential manage EDC/ and to perform on-site capacity. EPA has determined that there VCM sludges in impoundments after the macrocapsulation, no other commercial is adequate commercial treatment or effective date of today’s rule) will cease treatment might be necessary prior to recovery capacity available to treat both to do so before the effective date of this off-site hazardous waste landfilling. of these wastes. rule. EPA notes that generators can use any For wastewaters from chlorinated However, as described earlier in this treatment technology (except aliphatic production processes preamble (see section VI.B.2.b.vii) impermissible dilution) to meet the (proposed as K173), some commenters regarding the listing determination for numerical mercury concentration and requested a national capacity variance EDC/VCM wastewater treatment pH standards promulgated today. for this waste in response to the sludges, this facility (or others) could EPA proposed that the K175 waste proposed rule. Since EPA is finalizing a manage newly-listed K174 in surface (about 130 tons per year) be co-disposed decision not to list wastewaters from impoundments, provided they are in in a landfill with other wastes with chlorinated aliphatic production compliance with the appropriate similar pH (6.0 or less). Commenters did processes as hazardous (as discussed in standards for impoundments (40 CFR not indicate the existence of any section VI.A), there is no need for a parts 264 and 265 subpart K) and the technical difficulties in meeting the capacity variance determination for this special rules regarding surface additional pH requirement. waste stream. impoundments (40 CFR 268.14). EPA Furthermore, they did not provide any EPA proposed not to grant a capacity notes that those provisions require (by data or information on the issue of variance for K174 waste (EDC/VCM reference) basic groundwater monitoring available monofill disposal capacity for wastewater treatment sludge). No (40 CFR parts 264 and 265 subpart F), this waste or landfill co-disposal with comments were received regarding the management, and recordkeeping, but are similarly acidic (pH 6.0 or less) wastes. variance determination, available afforded up to 48 months to retrofit to Based on previous activities in the treatment or disposal capacity, or the meet minimum technological commercial sector as well as the lack of quantity of the waste potentially requirements (see RCRA Section adverse comment, we find no reason to requiring treatment, either in 3005(j)(6)(A)). doubt that owners of commercial nonwastewater or wastewater forms. As Based on the foregoing, EPA landfills can and at some point will described in section VI.I above, we are concludes that sufficient treatment or create a special cell based on customer’s finalizing the proposed numerical disposal capacity is available to manage needs, compliance conditions, and treatment standards as well as an K174 waste generated after the effective contract negotiation. alternative treatment standard of date of the LDR treatment standards However, as noted earlier, we hazardous waste combustion. We either on site or offsite, even if understand from one stakeholder that estimate that the commercially available generators seek offsite management for facilities with hazardous commercial sludge and hazardous waste combustion all K174 wastes in a permitted subtitle landfill capacity may not have sufficient capacity is at least 300,000 tons per year C disposal or treatment unit. Therefore, volumes of similarly acidic wastes to (see details in the Capacity Background EPA is finalizing its decision not to make it cost-effective to designate an Document) and therefore sufficient to grant a capacity variance for wastewater entire unit or cell for disposal of only treat any K174 hazardous wastes that and nonwastewater forms of K174. low pH wastes. We have therefore could require treatment. With respect to K175 waste, several adopted an alternative that allows land As discussed earlier in this preamble, commenters raised issues with regard to disposal in other types of landfill cells EPA has identified (as a result of public permitting requirements and constraints following macroencapsulation of the comments) that one facility may of commercial treatment facilities, waste (assuming the waste meets other generate K174 in a surface including the ability of commercial applicable standards, such as Hg impoundment as a result of today’s rule. facilities to accept nonwastewater forms concentration and pH 6.0 or less). Based The facility may remove K174 waste of K175 waste and comply with the on a discussion with a hazardous waste before the effective date of the new proposed land disposal restrictions of management facility,66 we find that listing and therefore may not be subject RMERC. As discussed earlier, EPA is macroencapsulation of K175 waste can to LDR requirements.64 The finalizing a numerical treatment be made readily available for K175 impoundment can also be retrofitted, standard for this waste (in conjunction waste. Based on available data and closed, or replaced with tank systems. If with other pH-related restrictions and analyses, EPA has therefore determined the impoundment continues to be used macroencapsulation), which has been that sufficient commercial treatment to actively manage K174 waste, the unit demonstrated to be achievable using and disposal capacity exists to manage K175 waste to meet the LDR standards, 64 If the waste is actively managed in unretrofitted 65 See RCRA § 3004(m)(1) ‘‘Simultaneously with and we are today finalizing our decision impoundments (i.e., impoundments not satisfying the promulgation of regulations under subsection the minimum technology requirements specified in (d), (e), (f), or (g) prohibiting one or more methods not to grant a capacity variance for RCRA sections 3004(o) and 3005(j)(11)) after the of land disposal of a particular hazardous waste effective date of today’s rule, it would be land * * * promulgate regulations specifying those 66 Personal communication with Carl Carlson, disposed in a prohibited manner. levels or methods of treatment * * * ’’ Chemical Waste Management Inc.

VerDate 112000 17:54 Nov 07, 2000 Jkt 194001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\08NOR2.SGM pfrm08 PsN: 08NOR2 67116 Federal Register / Vol. 65, No. 217 / Wednesday, November 8, 2000 / Rules and Regulations wastewater or nonwastewater forms of 40 CFR 268.5, which includes a Second, with respect to the other, and K175. demonstration that adequate alternative potentially much larger volumes of, In summary, we conclude that treatment, recovery, or disposal capacity wastes that would be affected, we sufficient capacity exists for the for the petitioner’s waste cannot evaluated the universe of wastes that management of both wastewater and reasonably be made available by the could be impacted by today’s revisions nonwastewater forms of K174 and K175. effective date due to circumstances to the lists of regulated constituents for For K174 and K175 wastes, the beyond the applicants’ control, and that F039 and UTS. Commenters themselves customary time period of six months is the petitioner has entered into a binding did not supply any information on these sufficient to allow facilities to determine contractual commitment to construct or volumes in support of their generalized whether their wastes are affected by this otherwise provide such capacity. claims of insufficient capacity or their rule, to identify onsite or commercial views that delaying the effective date of treatment and disposal options, and to 3. Available Treatment Capacity for these treatment standards is warranted. arrange for treatment or disposal Other Wastes Subject to Revised UTS However, based on 1997 Biennial capacity if necessary. LDR treatment and F039 Standards Report data and some assumptions of standards thus will become effective Several commenters expressed waste compositions and their potential when the listing determinations become concern that EPA did not adequately for land disposal, we were able to effective for the wastes covered under consider the need for alternative estimate the potential need for this rule—the earliest possible date. treatment capacity for other hazardous additional treatment. For example, EPA This conforms to RCRA section wastes subject to the proposed revisions estimated an upper bound of 68,000 3004(h)(1), which indicates that land to the UTS and F039 (multiple source tons per year of the nonwastewaters disposal prohibitions must take effect leachate) standards. Such additional mixed with other waste codes, the F039 immediately when there is sufficient treatment would be necessary to meet leachate from which would be treatment or disposal capacity available the treatment standards for the five potentially impacted by the revisions to for the waste. additional dioxin and furan congeners the F039 treatment standards. In a Further, for soil and debris being added to the UTS table (§ 268.48) similar fashion, we estimated that no contaminated with the newly-listed and the list of regulated constituents in more than 130,000 tons per year of wastes, EPA proposed not to grant a F039 (§ 268.40). Commenters noted that characteristic nonwastewaters national capacity variance. EPA EPA must consider the potential need potentially could be affected by the received no comments regarding this for national capacity variances by promulgated changes to the UTS. issue. We expect that the majority of determining what fraction of the Of course, these upper bound contaminated soil and debris will be hazardous wastes are required to meet estimates are most likely very overstated managed on-site and therefore would these new requirements, the appropriate since only a portion of each estimated not require substantial off-site means of treatment (if any), and the waste volume may contain one or more commercial treatment capacity. sufficiency of national treatment of the five congeners at concentrations Therefore, EPA is not granting a capacity for these wastes. above the numerical concentrations national capacity variance for hazardous specified in the UTS table and the F039 When changing the treatment soil and debris contaminated with the list. Available hazardous waste landfill requirements for wastes already subject newly listed wastes covered under this leachate characterization data from rule. LDR treatment standards for K174 to LDR (including F039 and EPA’s Office of Water indicate that only and K175 hazardous soil and debris will characteristic wastes), EPA no longer one of 15 samples analyzed shows therefore become effective when these has authority to use RCRA section leachate concentration of OCDD listing determinations become effective. 3004(h)(2) to grant a capacity variance exceeding the numerical UTS level Based on the 1992 RCRA section 3007 to these wastes. However, EPA is guided adopted today. Any concentrations questionnaire and the 1997 updated by the overall objective of section below these numerical standards would responses, there were no data showing 3004(h), namely that treatment not trigger any treatment obligation or underground injection of the newly- standards which best accomplish the the concomitant need for treatment listed wastes or indicating that the goal of RCRA section 3004(m) (to capacity. (See the Capacity Background newly-listed wastes are mixed with minimize threats posed by land Document for detailed analysis.) radioactive wastes or with both disposal) should take effect as soon as Furthermore, EPA does not anticipate radioactive wastes and soil or debris. possible, consistent with availability of that waste volumes subject to treatment EPA did not receive comments treatment capacity. Our task is therefore for F039 or characteristic wastes would indicating that these wastes are to balance the points raised by significantly increase because waste underground injected or that they are commenters against the clear statutory generators already are required to mixed with radioactive wastes or with direction that treatment standards, such comply with the treatment requirements both radioactive wastes and soil or as those at issue here, should be for tetra-, penta-, and hexa-chlorinated debris. Therefore, EPA is not granting a imposed in the shortest feasible time dioxin/furan congeners. The volumes of national capacity variance for K174 and provided capacity is available. wastes for which additional treatment is K175 wastes that might be underground With respect to the issue of capacity needed solely due to the addition of the injected, mixed with radioactive wastes, availability, we find first that only a five new congeners to the F039 and UTS or mixed with both radioactive wastes limited quantity of hazardous waste lists is therefore expected to be very and soil or debris. LDR treatment leachate is expected to be generated small. Both of these factors indicate the standards for K174 and K175 from the disposal of newly-listed K174 highly conservative nature of our underground injected and mixed wastes and K175 wastes and added to the volume estimates. (if any exists) will therefore become generation of leachates from other However, even though our volume effective when these listing multiple restricted hazardous wastes estimates are highly conservative and determinations become effective. already subject to LDR. Absent any data overstated, we find that there still Finally, EPA may consider a case-by- from commenters suggesting to the would be no shortage of treatment case extension to the effective date contrary, we have no reason to delay capacity. Based on data submittals in based on the requirements outlined in imposition of the LDRs on this ground. the mid-1990’s and the 1997 Biennial

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Report, EPA has estimated that final economic analysis are: (1) to six topics: (1) K173 compliance cost approximately 37 million tons per year present and respond to the public estimates, (2) K174 compliance cost of commercial wastewater treatment comments received about the economic estimates, (3) K175 compliance cost capacity are available, and well over one analysis for the 1999 proposed rule, and estimates, (4) economic analysis million tons per year of liquid, sludge, (2) to estimate the impacts of the final framework, (5) overall magnitude of rule and solid commercial combustion rule. The findings for each objective are cost, and (6) industry characterization. capacity are available. These are well summarized below. Many of the commenters made remarks above the quantities of wastewater and The Economics, Methods, and Risk about multiple economic analysis topics Assessment Division (EMRAD) of EPA’s nonwastewater forms of F039 or (as well as about other aspects of the Office of Solid Waste (OSW) conducted characteristic wastes potentially proposed rule, such as preamble requiring treatment for the 5 hepta and the economic analyses for both the 1999 proposed rule, and for this final rule. language and risk analysis). Forty-two of octa isomers even under the the 61 remarks were directed at the conservative screening assumptions The ‘‘Economics Background EPA’s K173 compliance cost estimate, described above. We find therefore that Document’’ (USEPA, 2000a) 67 in stating that EPA’s 1999 estimate was too there is sufficient treatment capacity for support of this final rule, is available to these wastes to ensure that the wastes the public from the EPA’s RCRA Docket low for a variety of reasons, including meet today’s revisions to the UTS and (refer to the introduction to this lack of complete descriptive information F039 treatment standards. For this preamble for instructions on how to about all possible wastewater tanks reason, EPA is finalizing its decision not obtain a copy). References to statements affected, as well as incomplete to delay the effective date for adding the below pertaining to facts, data, assessment of all potential costs five hepta-and octa-dioxin and furan assumptions and other types of involved in retrofitting wastewater tanks congeners to the lists of constituents for information, are identified in the final with covers and tank air emission F039 and UTS. As with the other rule background document. control devices. However, because the treatment standards being promulgated B. How Did the Public Participate in the K173 listing is dropped from the final today, these revised F039 and UTS Economic Analysis? rule, EPA has dropped the K173 cost standards will become effective six estimate from the economic analysis, In conjunction with the 1999 months after the date of promulgation, rather than revise it. Otherwise, EPA has proposed rule (64 FR 46517), EPA the same date on which the K174 and requested public comment on the incorporated into the final rule K175 listing will become effective. This following eleven specific information economic analysis, information will provide sufficient time to allow elements pertaining to the data, contained in other public comments facilities to determine whether their assumptions, design, accuracy, addressing the K174 listing, K175 wastes are affected by this rule, to representativeness and completeness of listing, economic analysis framework, identify onsite or commercial treatment the initial ‘‘Economic Background and industry characterization. Four of and disposal options, and to arrange for Document’’ (dated 30 July 1999, 127pp., the comments also contained remarks treatment or disposal capacity if which is available over the Internet at about the K174 listing, questioning the necessary. http://www.epa.gov/epaoswer/ magnitude of its associated VII. What Is the Economic Analysis of hazwaste/id/chlorali/economic.pdf): (1) recordkeeping burden, and claiming Today’s Final Rule? Economic study design, (2) industry that EPA did not consider other impacts facility universe, (3) affected waste arising from RCRA’s ‘‘mixture and A. What Is the Purpose of the Economic volumes/sources, (4) industry sector derived-from’’ clause. One commenter Analysis? profile, (5) baseline (current) waste challenged EPA’s assertion of the In 1999, the EPA presented an initial management practices, (6) regulatory current market availability of K175 economic analysis (in the form of both compliance waste management, (7) waste retorting treatment. The 14 a preamble discussion, and a compliance facility process commenters made nineteen remarks supplementary ‘‘Economics Background modifications, (8) waste management questioning the industrial scope of the Document’(USEPA, 1999b), for public costs, (9) regulatory impact financial listing, whether the rule would impact review in support of the RCRA K173/ benchmarks, (10) economic analysis other types of facilities/wastes, and the K174/K175 listing proposed rule (64 data sources, and (11) other impact appropriateness of EPA’s cost Federal Register, 46517–46519, August considerations. As described elsewhere annualization and future industry waste 25, 1999). The primary purpose of the in this preamble, EPA received a total of generation parameters. The 14 20 sets of public comments on the 1999 1999 economic analysis was to estimate commenters also offered thirty-three regulatory compliance costs associated proposed rule, of which 14 commenters remarks about the cost-effectiveness of with the proposed rule. Secondary offered a total of 61 remarks on the 1999 the rule, the total industry cost of the purposes were to provide (1) descriptive economic analysis. EPA presents and rule, and challenged EPA’s assertion information about the economic sectors addresses each comment in the (i.e. the chemical industry) and other ‘‘Response to Public Comments’’ that the proposed rule was not types of facilities potentially affected by background document (USEPA, economically ‘‘significant’’ according to the proposed rule, and (2) descriptive 2000g) 68, also available from the EPA the $100 million annual effect threshold information about the economic RCRA Docket. established in Executive Order 12866 activities involving chlorinated For purpose of summary here, the 61 (30 September 1993). Finally, aliphatic hydrocarbon chemicals remarks made by the 14 commenters commenters offered seven remarks (CAHCs). who targeted the 1999 economic raising questions about EPA’s count of As a result of both public comments analysis may be grouped according to the affected number of facilities, EPA’s and changes to the rule, EPA revised the characterization of the size of 1999 ‘‘Economics Background 67 U.S. EPA. 2000a. Economics Background wastewater tanks in the affected Document’’ (USEPA 1999b). In Document. Office of Solid Waste. September. industry, and EPA’s characterization of 68 U.S. EPA. 2000g. Response to Public Comments comparison to the 1999 economic on Proposed Listing Determination for Chlorinated the affected industry’s annual sales and analysis, the primary objectives of this Aliphatic Wastes. Office of Solid Waste. September. growth rate.

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C. What Are the Expected Economic treatment sludges are derived), then it rule already have notified the Agency Impacts of This Final Rule? could face relatively high monthly costs and received an EPA identification As of the late 1990s, 39 facilities in for temporarily transporting its number. However, any person who the US manufacture chlorinated wastewater offsite to a commercial generates, transports, treats, stores, or aliphatic hydrocarbon chemicals. hazardous waste management facility, disposes of these newly listed wastes Eighteen of these are potentially subject until it can complete an alternative (and and has not previously received an EPA to the rule, 17 as generators of K174 lower-cost) waste management identification number must obtain an waste, and one as a generator of K175 arrangement for its wastewaters. For the identification number pursuant to 40 waste. None of these 18 facilities are purpose of reflecting EPA’s uncertainty CFR 262.12 to generate, transport, treat, owned by small-sized companies. The about this facility’s actual cost impacts, store, or dispose of these hazardous 21 remainder facilities do not currently as well as other cost estimation wastes by February 6, 2001. parameters, EPA included other higher manufacture the types of chemicals and C. Generators and Transporters associated industrial wastes which are cost waste management options and listed as RCRA ‘‘hazardous’’ industrial industry compliance cost contingencies Persons who generate newly wastes by the rule. (such as possible surface impoundment identified hazardous wastes may be The anticipated economic impacts corrective action costs) in the economic required to obtain an EPA identification associated with the final rule primarily analysis for the final rule (Economics number if they do not already have one consist of industry compliance costs, Background Document USEPA 2000a). (as discussed in section VIII.B, above). likely to be incurred by three of the 18 Inclusion of all of these high-cost If generating or transporting these relevant waste generators (two K174 and assumptions results in an upper-end wastes after the effective date of this one K175), and by four commercial EPA cost estimate of $23.37 million in rule, generators of the wastes listed waste handlers. average annualized cost (which includes today will be subject to the generator Because of the facts that: (1) Many of up to 22 months of temporary offsite requirements set forth in 40 CFR Part the CAHC manufacturing facilities and transport for the generator of EDC/VCM 262. These requirements include commercial industrial waste handlers wastewater treatment sludge currently standards for hazardous waste are currently regulated under RCRA (via managing its wastewaters in a surface determination (40 CFR 262.11), the existing RCRA F024 and F025 impoundment). EPA notes that total compliance with the manifest (40 CFR wastecodes, among others), (2) some costs also include minor impacts on 262.20 through 262.23), pretransport CAHC manufacturing facilities currently EPA regional offices and states with procedures (40 CFR 262.30 through manage some wastewater sludges as authorized RCRA programs to 262.34), generator accumulation (40 hazardous waste, (3) the K174 listing is implement the new rule, as well as CFR 262.34), record keeping and targeted upon a subset of chlorinated other ‘‘incidental effects.’’ The reader is reporting (40 CFR 262.40 through aliphatic production processes, and/or referred to the ‘‘Economics Background 262.44), and import/export procedures (4) the K174 final rule is ‘‘conditional’’ Document’’ for additional details about (40 CFR 262.50 through 262.60). We upon only certain waste management all cost items included in EPA’s note that the generator accumulation practices, the incremental impact of this estimate of national cost. provisions of 40 CFR 262.34 allow listing is expected to be substantially VIII. When Must Regulated Entities generators to accumulate hazardous less than it otherwise would be if all Comply With Today’s Final Rule? wastes without obtaining interim status waste generators fitting the listing or a permit only in certain specified descriptions, or if all 39 chemical class A. Effective Date units; the regulations also place a limit manufacturers, were affected. The effective date of today’s rule is on the maximum amount of time that Consequently, the incremental impact of May 7, 2001. wastes can be accumulated in these the final rule is expected to be less than units. If these wastes are actively it otherwise could be (e.g., impacts B. Section 3010 Notification managed in surface impoundments or could be higher under a listing affecting Pursuant to RCRA section 3010, the other units that are not tank systems, all facilities across the industry sector, Administrator may require all persons containers, drip pads, or containment rather than the final targeted and who handle hazardous wastes to notify buildings as outlined in 40 CFR 262.34, ‘‘conditional’’ listing approach which EPA of their hazardous waste accumulation of these wastes is subject affects only a few facilities). management activities within 90 days to the permitting requirements of 40 EPA estimates that the average after the wastes are identified or listed CFR Parts 264 and 265, and the annualized national cost of this rule will as hazardous. This requirement may be generator is required to obtain interim be between $0.42 and $4.05 million per applied even to those generators, status and seek a permit (or modify year (consisting of $0.53 to $7.21 transporters, and treatment, storage, and interim status or a permit, as million in initial costs and $0.35 to disposal facilities (TSDFs) that have appropriate). Also, persons who $3.25 million in recurring annual costs), previously notified EPA with respect to transport newly identified hazardous if one generator of EDC/VCM the management of other hazardous wastes will be required to obtain an EPA wastewater treatment sludge (K174) is wastes. The Agency has decided to identification number (if they do able to make arrangements for the waive this notification requirement for already have one) as described above apparent lower-cost option for managing persons who handle wastes that are and will be subject to the transporter its affected industrial wastewaters. But covered by today’s hazardous waste requirements set forth in 40 CFR Part if that generator is not able to make the listings and already have (1) notified 263. [NOTE: Generators of EDC/VCM appropriate waste management EPA that they manage other hazardous wastewater treatment sludge who arrangements prior to the effective date wastes, and (2) received an EPA manage the waste in compliance with for the final rule, such that the one identification number. The Agency has the requirements of the conditional facility might find it cannot make waived the notification requirement in listing (i.e., dispose of the waste in a arrangements for a lower cost means of this case because it believes that most, landfill and do not store the waste managing its affected wastewater (from if not all, persons who manage the directly on the land prior to landfilling, which the EDC/VCM wastewater wastes listed as hazardous in today’s are not subject to the hazardous waste

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Units regulate the management of the newly Facilities that already have RCRA Units in which newly identified identified hazardous wastes until states permits must request permit hazardous wastes are generated or are authorized to regulate these wastes. modifications if they want to continue managed will be subject to all EPA will apply Federal regulations to managing newly listed wastes (see 40 applicable requirements of 40 CFR part these wastes and to their management in CFR 270.42(g)). This provision states 264 for permitted facilities or 40 CFR both authorized and unauthorized that a permittee may continue managing part 265 for interim status facilities, states. the newly listed wastes by following unless the unit is excluded from such certain requirements, including 1. Facilities Newly Subject to RCRA permitting by other provisions, such as submitting a Class 1 permit Permit Requirements the wastewater treatment tank modification request by the date on exclusions (40 CFR 264.1(g)(6) and Facilities that treat, store, or dispose which the waste or unit becomes subject 265.1(c)(10)) and the product storage of wastes that are subject to RCRA to the new regulatory requirements (i.e., tank exclusion (40 CFR 261.4(c)). regulation for the first time by this rule the effective date of today’s rule), Examples of units to which these (that is, facilities that have not complying with the applicable exclusions could never apply include previously received a permit pursuant standards of 40 CFR Parts 265 and 266 landfills, land treatment units, waste to Section 3005 of RCRA and are not and submitting a Class 2 or 3 permit piles, incinerators, and any other currently operating pursuant to interim modification request within 180 days of miscellaneous units in which these status), might be eligible for interim the effective date. wastes may be generated or managed. status (see Section 3005(e)(1)(A)(ii) of Generally, a Class 2 modification is RCRA). To obtain interim status based appropriate if the newly listed wastes 5. Closure on treatment, storage, or disposal of will be managed in existing permitted All units in which newly identified such newly identified wastes, eligible units or in newly regulated tank or hazardous wastes are treated, stored, or facilities are required to comply with 40 container units and will not require disposed after the effective date of this CFR 270.70(a) and 270.10(e) by additional or different management regulation that are not excluded from providing notice under Section 3010 practices than those authorized in the the requirements of 40 CFR parts 264 and submitting a Part A permit permit. A Class 2 modification requires and 265 are subject to both the general application no later than May 7, 2001. the facility owner to provide public closure and post-closure requirements Such facilities are subject to regulation notice of the modification request, a 60- of Subpart G of 40 CFR parts 264 and under 40 CFR Part 265 until a permit is day public comment period, and an 265 and the unit-specific closure issued. informal meeting between the owner requirements set forth in the applicable In addition, under Section 3005(e)(3) and the public within the 60-day period. unit technical standards Subpart of 40 and 40 CFR 270.73(d), not later than The Class 2 process includes a ‘‘default CFR part 264 or part 265 (e.g., Subpart November 8, 2001, land disposal provision,’’ which provides that if the N for landfill units). In addition, EPA facilities newly qualifying for interim Agency does not reach a decision within promulgated a final rule that allows, status under section 3005(e)(1)(A)(ii) 120 days, the modification is under limited circumstances, regulated also must submit a Part B permit automatically authorized for 180 days. If landfills, surface impoundments, or application and certify that the facility the Agency does not reach a decision by LTUs to cease managing hazardous is in compliance with all applicable the end of that period, the modification waste but to delay subtitle C closure to groundwater monitoring and financial is permanently authorized (see 40 CFR allow the unit to continue to manage responsibility requirements. If the 270.42(b)). non-hazardous waste for a period of A Class 3 modification is generally facility fails to submit these time prior to closure of the unit (see 54 appropriate if management of the newly certifications and a permit application, FR 33376, August 14, 1989). Units for listed wastes requires additional or interim status will terminate on that which closure is delayed continue to be different management practices than date. subject to all applicable 40 CFR 264 and those authorized in the permit or if 265 requirements. Dates and procedures 2. Existing Interim Status Facilities newly regulated land-based units are for submittal of necessary Pursuant to 40 CFR 270.72(a)(1), all involved. The initial public notification demonstrations, permit applications, existing hazardous waste management and public meeting requirements are the and revised applications are detailed in facilities (as defined in 40 CFR 270.2) same as for Class 2 modifications. 40 CFR 264.113(c) through (e) and that treat, store, or dispose of the newly However, after the end of the 60-day 265.113(c) through (e). identified hazardous wastes and are public comment period, the Agency will currently operating pursuant to interim grant or deny the permit modification IX. How Will This Rule Be status under section 3005(e) of RCRA, request according to the more extensive Implemented at the State Level? must file an amended Part A permit procedures of 40 CFR part 124. There is A. Applicability of Rule in Authorized application with EPA no later than the no default provision for Class 3 States effective date of today’s rule (i.e., May modifications (see 40 CFR 270.42(c)). 7, 2001). By doing this, the facility may Under 40 CFR 270.42(g)(1)(v), for Under section 3006 of RCRA, EPA continue managing the newly listed newly regulated land disposal units, may authorize qualified States to wastes. If the facility fails to file an permitted facilities must certify that the administer the RCRA hazardous waste amended Part A application by that facility is in compliance with all program within the State. See 40 CFR date, the facility will not receive interim applicable 40 CFR part 265 groundwater part 271 for the overall standards and status for management of the newly monitoring and financial responsibility requirements for authorization. listed hazardous wastes and may not requirements no later than May 7, 2001. Following authorization, the State

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EPA evaluates the data enforcement actions under State law. A program modification may apply to for a hazardous substance for each State may receive authorization by receive either interim or final RCRA primary criterion. To adjust the RQs, following the approval process authorization under RCRA 3006(g) or (b) EPA ranks each criterion on a scale that described under 40 CFR part 271. on the basis that State regulations are, corresponds to an RQ value of 1, 10, After a State receives initial respectively, substantially equivalent or 100, 1,000, or 5,000 pounds. For each authorization, new Federal fully equivalent to EPA’s regulations. criterion, EPA establishes a tentative requirements promulgated under RCRA The procedures and schedule for State RQ. A hazardous substance may receive authority existing prior to the 1984 programs modifications for either several tentative RQ values based on its Hazardous and Solid Waste interim or final authorization are particular intrinsic properties. The Amendments (HSWA) do not apply in described in 40 CFR 271.21 and 271.24. lowest of the tentative RQs becomes the that State until the State adopts and Note that all HSWA interim ‘‘primary criteria RQ’’ for that receives authorization for equivalent authorizations will expire on January 1, substance. State requirements. The State must 2003 (see 40 CFR 271.24(c)). After the primary criteria RQs are adopt such requirements to maintain assigned, EPA further evaluates authorization. X. What Are the Reportable Quantity substances for their susceptibility to In contrast, under RCRA section Requirements for Newly-Listed Wastes certain degradative processes. These are 3006(g) (42 U.S.C. 6926(g)), new Federal (K174 and K175) Under the secondary adjustment criteria. The requirements and prohibitions imposed Comprehensive Environmental natural degradative processes are pursuant to HSWA provisions take Response, Compensation, and Liability biodegradation, hydrolysis, and effect in authorized States at the same Act (CERCLA)? photolysis (BHP). If a hazardous time that they take effect in A. What Is the Relationship Between substance, when released into the unauthorized States. Although RCRA and CERCLA? environment, degrades rapidly to a less authorized States are still required to hazardous form by one or more of the update their hazardous waste programs CERCLA defines the term ‘‘hazardous BHP processes, EPA generally raises its to remain equivalent to the Federal substance’’ to include RCRA hazardous RQ (as determined by the primary RQ program, EPA carries out HSWA wastes. When EPA lists a hazardous adjustment criteria) by one level. requirements and prohibitions in waste under RCRA, the waste is also a Conversely, if a hazardous substance authorized States, including the hazardous substance pursuant to degrades to a more hazardous product issuance of new permits implementing CERCLA 101(14), and the Agency adds after its release, EPA assigns an RQ to those requirements, until EPA the waste to the table of CERCLA the original substance equal to the RQ authorizes the State to do so. hazardous substances in the CFR. EPA for the more hazardous substance. Authorized States are required to establishes a reportable quantity or RQ The standard methodology used to modify their programs only when EPA for each CERCLA hazardous substance. adjust the RQs for RCRA hazardous promulgates Federal requirements that EPA provides a list of the CERCLA waste streams differs from the are more stringent or broader in scope hazardous substances along with their methodology applied to individual than existing Federal requirements. RQs in Table 302.4 at 40 CFR 302.4. If hazardous substances. The procedure RCRA section 3009 allows the States to you are the person in charge of a vessel for assigning RQs to RCRA waste impose standards more stringent than or facility that releases a CERCLA streams is based on the results of an those in the Federal program. See also hazardous substance in an amount that analysis of the hazardous constituents of 40 CFR 271.1(i). Therefore, authorized equals or exceeds its RQ, then you must the waste streams. The constituents of States are not required to adopt Federal report that release to the National each RCRA hazardous waste stream are regulations, both HSWA and non- Response Center (NRC). You also may identified in 40 CFR part 261, Appendix HSWA, that are considered less have to notify State and local VII. EPA first determines an RQ for each stringent. authorities. hazardous constituent within the waste stream using the methodology described B. Effect on State Authorizations B. Is EPA Adding Chlorinated Aliphatic above. The lowest RQ value of these EPA is promulgating this rule (with Wastes to the Table of CERCLA constituents becomes the adjusted RQ the exception of the changes to Part 302) Hazardous Substances? for the waste stream. When there are pursuant to sections 2002(a), 3001(b), Yes. Today, EPA is adding the newly hazardous constituents of a RCRA waste 3001(e)(2), and 3007(a) of the Solid listed chlorinated aliphatic wastes stream that are not CERCLA hazardous Waste Disposal Act, which are HSWA (K174 and K175) to the list of CERCLA substances, the Agency develops an RQ, provisions. We will add the new hazardous substances. As discussed called a ‘‘reference RQ,’’ for these requirements to Table 1 at 40 CFR 271.1, below, EPA also is finalizing adjusted constituents in order to assign an which identifies Federal program RQs for these wastes. appropriate RQ to the waste stream (see requirements promulgated pursuant to 48 FR 23565, May 25, 1983). In other HSWA. Because this rule is C. How Does EPA Determine Reportable words, the Agency derives the RQ for promulgated pursuant to the HSWA, Quantities? waste streams based on the lowest RQ after its effective date EPA will Under CERCLA, all new hazardous of all of the hazardous constituents, implement it rule in all States, substances generally have a statutory regardless of whether they are CERCLA including authorized States. Once one-pound RQ. EPA adjusts the RQ of hazardous substances.

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D. When Do I Need To Report a Release using the maximum observed released. That is, if you are the person of K174 or K175 Under CERCLA? concentrations of the hazardous in charge, you must immediately report constituents within the respective waste the release as soon as you know that you Today, EPA is promulgating adjusted streams. have released K174 or K175 in an statutory RQs for newly-listed The mixture rule provides that when amount that will reach the RQ for any hazardous wastes K174 and K175 waste you know the quantities of all of the hazardous constituents. This streams of one pound based on their hazardous constituents of a mixture or approach is reasonable and conservative hazardous constituents. EPA also is solution, you must notify of releases of because the sampling data presented in adjusting the RQ at one pound for K174 an RQ or more of such constituents (40 the Listing Background Document based on its hazardous constituents, CFR 302.6). Therefore, if you know the (USEPA, 1999c) accurately identify the chlorinated dibenzo-p-dioxins (CDDs) concentration of the hazardous maximum observed concentrations of and chlorinated dibenzofurans (CDFs). constituents of a hazardous waste, you the hazardous constituents in the EPA is promulgating an adjusted RQ of can calculate the amount of waste chlorinated aliphatics waste streams. one pound for newly-listed waste K175 released needed to reach the RQ for the Table X–1 below identifies the based on its hazardous constituent, constituents. By using the maximum hazardous constituents for each waste mercury. However, in determining observed concentration that EPA is stream, their maximum observed when to report a release of K174 or promulgating today, you may apply the concentrations in parts per million K175, EPA will allow you to apply the mixture rule, even if you do not know (ppm), and their constituents’ RQs or mixture rule, codified in 40 CFR 302.6, the concentration of constituents reference RQs.

TABLE X±1.ÐMAXIMUM OBSERVED CONCENTRATION AND CORRESPONDING RQ FOR HAZARDOUS CONSTITUENTS THAT ARE BASIS FOR NEWLY-LISTED K174 AND K175

Max. Waste Constituent concentration RQ (lb) (ppm (mg/kg))

K174 ...... 2,3,7,8-TCDD ...... 0.000039 1 1,2,3,7,8-PeCDD ...... 0.0000108 1 1,2,3,4,7,8-HxCDD ...... 0.0000241 1 1,2,3,6,7,8-HxCDD ...... 0.000083 1 1,2,3,7,8,9-HxCDD ...... 0.000062 1 1,2,3,4,6,7,8-HpCDD ...... 0.00123 1 OCDD ...... 0.0129 1 2,3,7,8-TCDF ...... 0.000145 1 1,2,3,7,8-PeCDF ...... 0.0000777 1 2,3,4,7,8-PeCDF ...... 0.000127 1 1,2,3,4,7,8-HxCDF ...... 0.001425 1 1,2,3,6,7,8-HxCDF ...... 0.000281 1 1,2,3,7,8,9-HxCDF ...... 0.00014 1 2,3,4,6,7,8-HxCDF ...... 0.000648 1 1,2,3,4,6,7,8-HpCDF ...... 0.0207 1 1,2,3,4,7,8,9-HpCDF ...... 0.0135 1 OCDF ...... 0.212 1 K175 ...... Mercury ...... 9200 1

For example, if K174 is released from E. What if I Know the Concentration of established adjusted RQs for the other your facility and you do not know the the Constituents in My Waste? CDD and CDF congeners. However, EPA recognizes that a number of these actual concentrations of its constituents, If you know the concentration levels congeners exhibit dioxin-like toxicity you may assume that the concentrations of all the hazardous constituents in a and has established ‘‘reference RQs’’ of are those identified in Table X–1. Thus, particular chlorinated aliphatic waste, if K174 is released from your facility you may apply the mixture rule (see 40 one pound for these congeners to and you do not know the actual CFR 302.6(b)) to the actual support the development of the adjusted concentrations of its constituents, you concentrations. You would need to RQs for K174. may apply the mixture rule to the report a release of either waste when an The adjusted RQ for 2,3,7,8-TCDD assumed maximum concentrations RQ or more of any of their respective was established as one pound based on indicated in the table. You would have hazardous constituents is released. potential carcinogenicity, considering to release 4,716,981 pounds of K174 to the weight of evidence that this F. How Did EPA Determine the RQs for reach the RQ for this waste (based on substance is carcinogenic, and K174 and K175 and Their Hazardous the maximum observed concentration of considering its estimated carcinogenic Constituents? OCDF). If K175 is released from your potency. To establish reference RQs for facility and you do not know the actual The hazardous constituents identified the other CDD and CDF congeners in the concentration of mercury, you may as the basis for listing K174 as waste stream, EPA applied the toxicity assume that the concentration is 9200 hazardous waste include chlorinated equivalency factors (TEFs) established ppm. Applying the mixture rule, you dibenzo-p-dioxins (CDDs) and for dioxin-like compounds to the would have to release 108.7 pounds of chlorinated dibenzofurans (CDFs). potency factor used as the basis for the K0175 to reach the RQ. Previously, EPA had established an adjusted RQ for 2,3,7,8-TCDD. Of the adjusted RQ of one pound for 2,3,7,8- 210 CDD and CDF congeners, only those TCDD (see 54 FR 33426). EPA has not with chlorine substitutions in, at least,

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Under Executive Order 12866 established for 2,3,7,8-TCDD indicates (September 30, 1993), EPA must that all of the congeners fit into RQ Commenters to the proposed rule determine whether a regulatory action is asked whether spills of EDC/VCM ‘‘significant’’ and, therefore, subject to Potency Group 1 with a corresponding wastewater treatment sludge, where OMB review and the other provisions of reference RQ of one pound.69 Therefore, prior to being spilled the sludge does the Executive Order. A significant because each of the hazardous not meet the K174 listing because of the regulatory action is defined by constituents has an RQ or reference RQ manner in which it is being managed, Executive Order 12866 as one that may: of one pound, EPA is promulgating an would have to be reported in adjusted RQ of one pound for K174. (1) Have an annual effect on the economy compliance with the CERCLA RQ of $100 million or more or adversely affect The hazardous constituent identified reporting requirements. The Agency in a material way the economy, a sector of as the basis for listing as hazardous notes that we are finalizing a contingent the economy, productivity, competition, jobs, VCM–A wastewater treatment sludges management listing for EDC/VCM the environment, public health or safety, or (K175) is mercury. Previously, EPA had State, local, or tribal governments or wastewater treatment sludges under communities; established an adjusted RQ of one which these sludges would be regulated (2) Create a serious inconsistency or pound for mercury (see 50 FR 13456, as K174 wastes unless they are destined otherwise interfere with an action taken or April 4, 1985). Because the hazardous for management in a subtitle C landfill planned by another agency; constituent used as the basis for listing or a non-hazardous waste landfill (3) Materially alter the budgetary impact of K175 has an RQ of one pound, EPA is licensed or permitted by a state. As part entitlements, grants, user fees, or loan programs or rights and obligations or promulgating an adjusted RQ of one of the listing description, once the EDC/ recipients thereof; or pound for this waste. VCM wastewater treatment sludge is (4) Raise novel legal or policy issues placed on the land it meets the listing arising out of legal mandates, the President’s G. How Do I Report a Release? description. Therefore, contrary to the priorities, or the principles set forth in To report a release of K174 or K175 commenter’s suggestion, spills of EDC/ Executive Order 12866. (or any other CERCLA hazardous VCM sludges would not be excluded Pursuant to the terms of Executive substance) that equals or exceeds its RQ, from the K174 listing. A spill of EDC/ Order 12866, EPA has determined that you must immediately notify the VCM wastewater treatment sludges this rule is a ‘‘significant regulatory National Response Center (NRC) as soon would constitute the release of a action’’ because of point four (4) above: as you have knowledge of that release. CERCLA hazardous substance, and The rule includes a novel legal or policy The toll-free telephone number of the provided that an amount equal to or issue arising out of legal mandates, the NRC is 1–800–424–8802; in the exceeding the RQ had been released, President’s priorities, or the principles set forth in this Executive Order. Washington, DC, metropolitan area, the would be subject to CERCLA notification requirements. Today’s final rule, which includes an number is (202) 267–2675. alternative listing approach for one of You also may have to notify State and I. What Is the Statutory Authority for the newly-listed wastestreams, deviates local authorities. The Emergency This Program? from the Agency’s standard or historic Planning and Community Right-to- Section 101(14) of CERCLA defines listing approach in that the Agency is Know Act (EPCRA) requires that owners the term hazardous substance by listing as hazardous only those and operators of certain facilities report referring to substances listed under quantities of the waste that are managed releases of CERCLA hazardous several other environmental statutes, as in a manner that reflects unacceptable substances and EPCRA extremely well as those substances that EPA risks. This differs from the Agency’s traditional approach to listing a waste as hazardous substances (see list in 40 CFR designates as hazardous under CERCLA hazardous, in which the listing part 355, Appendix A) to State and local section 102(a). In particular, CERCLA determination captures the entire authorities. After the release of an RQ or section 101(14)(C) defines the term quantity of a targeted wastestream that more of any of those substances, you hazardous substance to include ‘‘any poses unacceptable risks to human must report immediately to the hazardous waste having the community emergency coordinator of health and the environment when characteristics identified under or listed managed in one or more particular the local emergency planning committee pursuant to section 3001 of the Solid for any area likely to be affected by the manners. Waste Disposal Act.’’ CERCLA section Due to the Agency’s decision to release, and to the State emergency 102(a) gives EPA authority to establish promulgate a listing approach that response commission of any State likely RQs for CERCLA hazardous substances. deviates from our historical hazardous to be affected by the release. CERCLA section 103(a) requires any waste listing approach, the Agency is person in charge of a vessel or facility deeming today’s action to be that releases a CERCLA hazardous ‘‘significant.’’ Prior to finalizing today’s substance in an amount equal to or rule, EPA submitted this proposed greater than its RQ to report the release policy change to OMB for review. 69 For an explanation of how potency factors are immediately to the federal government. Changes made to the Agency’s proposal calculated and potency groups and RQs are EPCRA section 304 requires owners or in response to OMB suggestions or established, see the Technical Background operators of certain facilities to report Document to Support Rulemaking Pursuant to recommendations are documented in CERCLA Section 102, Volume 3, July 27, 1989. This releases of CERCLA hazardous the public record. document can be viewed by calling the EPA substances and EPCRA extremely Although today’s final rule is not Superfund Docket Center, 703–603–8917, and hazardous substances to State and local ‘‘economically significant,’’ the Agency requesting document number 102 RQ 273C. authorities. prepared an Economics Background

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Document (USEPA 1999b) in support of and small governmental jurisdictions). provided for exclusion from the scope of today’s rule. The Agency’s economic However, a regulatory flexibility the conditional hazardous waste listing assessment addresses, among other analysis is not required if the head of an promulgated today. This requirement is factors, industry compliance costs, agency certifies that the rule will not necessary to ensure that EDC/VCM industry financial impacts, and have a ‘‘significant’’ economic impact wastewater treatment sludges are potential for small entity impacts. A on a substantial number of small managed in a manner that is safe for summary of findings from our economic entities. human health and the environment. In assessment is presented in Section VII. SBREFA amended the Regulatory addition, EPA is requiring disposal The complete Economics Background Flexibility Act to require Federal facilities that manage VCM–A Document (USEPA 1999b) is available agencies to provide a statement of the wastewater treatment sludges to for public review from the RCRA factual basis for certifying that a rule maintain records documenting that docket, according to instructions will not have a ‘‘significant’’ economic these sludges are co-disposed only with provided in the introduction to this impact on a substantial number of small other wastes that have a pH level of 6.0 preamble. entities. The following discussion or lower. This requirement is necessary EPA anticipates that the final rule will explains EPA’s determination. to ensure that the mercury contained in primarily affect three of the 18 known EPA has examined this rule’s the waste does not leach from the waste US generators of K174 and K175 potential effects on small entities as after disposal. hazardous wastes, causing these three required by the RFA/SBREFA, and has The Agency estimated the burden facilities to modify current waste determined that this action will not associated with complying with the management practices, according to the have a significant economic impact on requirements in this proposed rule. terms and conditions of the final rule. a substantial number of small entities. Included in the ICR are the burden None of these 18 facilities are owned by This is evidenced by the fact that only estimates for the following requirements small-sized companies. The 15 one of the potentially affected, parent for industry respondents: reading the remainder chemical plants will incur companies determined to be producers regulations; keeping records relatively minor annual costs for of chlorinated aliphatic products in the documenting compliance with documentation of current waste U.S., may be classified as a ‘‘small conditions for exclusion from hazardous management practices. In addition, EPA business,’’ according to the U.S. Small waste listings; and keeping records anticipates that four industrial waste Business Administration’s employee documenting compliance with landfill management operators will be affected size standards (i.e., less than or equal to waste disposal requirements for the by either increased or decreased annual 1,000 employees) and according to that disposal of VCM–A wastewater volumes and business revenues company’s primary Standard Industrial treatment sludges. Included also are the associated with the management of Classification (SIC) code (SIC 2869). burden estimates for State respondents wastes from the three affected chemical I hereby certify that this rule will not for applying for State authorization. The plants. EPA also anticipates that states have a significant economic impact on Agency determined that all of this with authorized RCRA programs will be a substantial number of small entities. information is necessary to ensure affected as they will be required to This rule, therefore, does not require a compliance with today’s final rule. implement and enforce the final rule. regulatory flexibility analysis. To the extent that this rule imposes any information collection requirements Finally, EPA anticipates that other C. Paperwork Reduction Act Federal agencies and non-governmental under existing RCRA regulations organizations may be incur relatively The information collection promulgated in previous rulemakings, minor costs associated with reading and requirements in this final rule have been those requirements have been approved propagating the final rule. submitted for approval to the Office of by the Office of Management and EPA estimates that the national Management and Budget (OMB) under Budget (OMB) under the Paperwork average annual cost of the final rule will the Paperwork Reduction Act, 44 U.S.C. Reduction Act, 44 U.S.C. 3501 et seq., be between $0.42 to $4.05 million. 3501 et seq. An Information Collection and have been assigned OMB control Under broader cost estimation Request (ICR) document was prepared numbers 2050–0009 (ICR No. 1573, Part uncertainty assumptions which allow by EPA (ICR No. 1924.01) and a copy B Permit Application, Permit for temporary offsite trucking of affected may be obtained from Sandy Farmer by Modifications, and Special Permits); wastes by one facility if it requires mail at OP Regulatory Information 2050–0120 (ICR No. 1571, General additional time beyond the final rule Division; U.S. Environmental Protection Facility Hazardous Waste Standards); six-month compliance deadline to Agency (2137); 1200 Pennsylvania 2050–0028 (ICR No. 261, Notification of modify its current waste management Avenue NW.; Washington, DC 20460, by Hazardous Waste Activity); 2050–0034 practices, the upper-bound of this cost E-mail at (ICR No. 262, RCRA Hazardous Waste estimate increases to $23.37 million in [email protected], or by Permit Application and Modification, average annual cost. calling (202) 260–2740. A copy also may Part A); 2050–0039 (ICR No. 801, be downloaded off the Internet at Requirements for Generators, B. Regulatory Flexibility Act http://www.epa.gov/icr. Transporters, and Waste Management Pursuant to the 1980 Regulatory This final rule includes new Facilities under the Hazardous Waste Flexibility Act (RFA)(5 U.S.C. 601 et information collection requirements Manifest System); 2050–0035 (ICR No. seq., as amended by the Small Business subject to OMB review under the 820, Hazardous Waste Generator Regulatory Enforcement Fairness Act Paperwork Reduction Act of 1995, 44 Standards); and 2050–0024 (ICR No. (SBREFA) of 1996), whenever an agency U.S.C. 3501 et seq. In addition to 976, 1997 Hazardous Waste Report). is required to publish a notice of complying with the existing subtitle C EPA estimates that the projected rulemaking for any proposed or final recordkeeping and reporting annual hour burden for industry rule, it must prepare and make available requirements for the newly listed waste respondents will be 93 hours, and the for public comment, a regulatory streams, EPA is requiring that facilities annual cost associated with the flexibility analysis that describes the generating EDC/VCM wastewater additional paperwork burden will be effect of the rule on small entities (i.e., treatment sludges be able to document $5,254. Total estimates over three years small businesses, small organizations, their compliance with the conditions are 279 hours and $15,762.

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Burden means the total time, effort, or officials of affected small governments inclusion in their authorized RCRA financial resources expended by persons to have meaningful and timely input in programs, but they have no legally to generate, maintain, retain, or disclose the development of EPA regulatory enforceable duty to do so. Thus, or provide information to or for a proposals with significant Federal Executive Order 13132 does not apply Federal agency. This includes the time intergovernmental mandates, and to this rule. needed to review instructions; develop, informing, educating, and advising F. Executive Order 13084: Consultation acquire, install, and use technology and small governments on compliance with and Coordination With Indian Tribal systems for the purposes of collecting, the regulatory requirements. Governments validating, and verifying information, Today’s rule contains no Federal processing and maintaining mandates (under the regulatory Under Executive Order 13084, EPA information, and disclosing and provisions of Title II of the UMRA) for may not issue a regulation that is not providing information; adjust the State, local, or tribal governments or the required by statute, that significantly or existing ways to comply with any private sector. The rule would not uniquely affects the communities of previously applicable instructions and impose any federal intergovernmental Indian tribal governments, and that requirements; train personnel to be able mandate because it imposes no imposes substantial direct compliance to respond to a collection of enforceable duty upon state, tribal or costs on those communities, unless the information; search data sources; local governments. States, tribes and Federal government provides the funds complete and review the collection of local governments would have no necessary to pay the direct compliance information; and transmit or otherwise compliance costs under this rule. It is costs incurred by the tribal disclose the information. expected that states will adopt similar governments, or EPA consults with An agency may not conduct or rules, and submit those rules for those governments. If EPA complies by sponsor, and a person is not required to inclusion in their authorized RCRA consulting, Executive Order 13084 respond to a collection of information programs, but they have no legally requires EPA to provide to the Office of unless it displays a currently valid OMB enforceable duty to do so. For the same Management and Budget, in a separately control number. The OMB control reasons, we determined that this rule identified section of the preamble to the numbers for EPA’s regulations are listed contains no regulatory requirements that rule, a description of the extent of EPA’s in 40 CFR part 9 and 48 CFR chapter 15. might significantly or uniquely affect prior consultation with representatives small governments, and thus, is not of affected tribal governments, a D. Unfunded Mandates Reform Act subject to the requirements of sections summary of the nature of their concerns, Title II of the Unfunded Mandates 202 and 205 of UMRA. In addition, EPA and a statement supporting the need to Reform Act of 1995 (UMRA), Pub. L. has determined that this rule does not issue the regulation. In addition, 104–4, establishes requirements for contain a Federal mandate that may Executive Order 13084 requires EPA to Federal agencies to assess the effects of result in expenditures of $100 million or develop an effective process permitting their regulatory actions on State, local, more for State, local, and tribal elected officials and other and tribal governments and the private governments, in the aggregate, or the representatives of Indian tribal sector. Under Section 202 of the UMRA, private sector in any one year. governments ‘‘to provide meaningful EPA generally must prepare a written and timely input in the development of statement, including a cost-benefit E. Executive Order 13132: Federalism regulatory policies on matters that analysis, for proposed and final rules Executive Order 13132, entitled significantly or uniquely affect their with ‘‘Federal mandates’’ that may ‘‘Federalism’’ (64 FR 43255, August 10, communities.’’ result in expenditures by State, local, 1999), requires EPA to develop an Today’s rule does not significantly or and tribal governments, in the aggregate, accountable process to ensure uniquely affect the communities of or by the private sector, of $100 million ‘‘meaningful and timely input by State Indian tribal governments. There is no or more in any one year. Before and local officials in the development of impact to tribal governments as the promulgating an EPA rule for which a regulatory policies that have federalism result of the proposed action. In written statement is needed, section 205 implications.’’ The Executive Order addition, this rule is required by statute of the UMRA generally requires EPA to defines ‘‘policies that have federalism (HSWA). Accordingly, the requirements identify and consider a reasonable implications’’ to include regulations of section 3(b) of Executive Order 13084 number of regulatory alternatives and that have ‘‘substantial direct effects on do not apply to this rule. adopt the least costly, most cost- the States, on the relationship between effective or least burdensome alternative the national government and the States, G. Executive Order 13045: Protection of that achieves the objectives of the rule. or on the distribution of power and Children From Environmental Health The provisions of Section 205 do not responsibilities among the various Risks and Safety Risks apply when they are inconsistent with levels of government.’’ Executive Order 13045, ‘‘Protection of applicable law. Moreover, Section 205 This final rule does not have Children from Environmental Health allows EPA to adopt an alternative other federalism implications. It will not have Risks and Safety Risks’’ (62 FR 19885, than the least costly, most cost-effective substantial direct effects on the States, April 23, 1997), applies to any rule that: or least burdensome alternative if the on the relationship between the national (1) is determined to be ‘‘economically Administrator publishes with the final government and the States, or on the significant’’ as defined under E.O. rule an explanation why that alternative distribution of power and 12866, and (2) concerns an was not adopted. Before EPA establishes responsibilities among the various environmental health or safety risk that any regulatory requirements that may levels of government, as specified in EPA has reason to believe may have a significantly or uniquely affect small Executive Order 13132. This proposed disproportionate effect on children. If governments, including tribal rule directly affects the chlorinated the regulatory action meets both criteria, governments, it must have developed aliphatics industry. States and local the Agency must evaluate the under section 203 of the UMRA a small governments will not incur direct environmental health or safety effects of government agency plan. The plan must compliance costs under this rule. It is the planned rule on children, and provide for notifying potentially expected that states will adopt similar explain why the planned regulation is affected small governments, enabling rules, and submit those rules for preferable to other potentially effective

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Therefore, EPA is be listed as hazardous will be hazardous reason to believe the environmental not considering the use of any voluntary regardless of where they are generated health or safety risks addressed by this consensus standards. and regardless of where they may be action present a disproportionate risk to I. Executive Order 12898: managed. Although the Agency children. Environmental Justice understands that the listing The topic of environmental threats to determinations may affect where these children’s health is growing in Under Executive Order 12898, ‘‘Federal Actions to Address wastes are managed in the future (in regulatory importance as scientists, that hazardous wastes must be managed policy makers, and village leaders Environmental Justice in Minority at subtitle C facilities), the Agency’s continue to recognize the extent to Populations and Low-Income decision to list these wastes as which children are particularly Populations,’’ as well as through EPA’s hazardous is independent of any vulnerable to environmental hazards. April 1995, ‘‘Environmental Justice decisions regarding the location of Recent EPA actions have been in the Strategy, OSWER Environmental Justice waste generators and the siting of waste forefront of addressing environmental Task Force Action Agenda Report,’’ and threats to the health and safety of National Environmental Justice management facilities. children. Today’s final rule further Advisory Council, EPA has undertaken Similarly, in cases where the Agency reflects our commitment to mitigating to incorporate environmental justice is not listing a solid waste as hazardous environmental threats to children. into its policies and programs. EPA is because the waste does not meet the A few significant physiological committed to addressing environmental criteria for being identified as a characteristics are largely responsible justice concerns, and is assuming a hazardous waste, these decisions are for children’s increased susceptibility to leadership role in environmental justice based upon an evaluation of potential environmental hazards. First, children initiatives to enhance environmental individual risks located in proximity to eat proportionately more food, drink quality for all residents of the United any facility handling the waste. In the proportionately more fluids, and breathe States. The Agency’s goals are to ensure case of wastewater treatment sludges more air per pound of body weight than that no segment of the population, from the production of allyl chloride do adults. As a result, children regardless of race, color, national origin, and methyl chloride and in the case of potentially experience greater levels of or income, bears disproportionately EDC/VCM wastewater treatment sludges exposure to environmental threats than high and adverse human health and managed in landfills, we believe the do adults. Second, because children’s environmental effects as a result of potential risk levels associated with the bodies are still in the process of EPA’s policies, programs, and activities. wastes are safe for all populations development, their immune systems, Today’s rule is intended to reduce potentially exposed to the wastes and neurological systems, and other risks from the generation and their constituents. immature organs can be more easily and management of hazardous wastes and to considerably affected by environmental benefit all populations. As such, this J. Congressional Review Act hazards. rule is not expected to cause any Today’s rule will reduce risks posed disproportionately high and adverse The Congressional Review Act, 5 by the hazardous constituents found in impacts to minority or low-income U.S.C. 801 et seq., as added by the Small the listed waste streams by requiring communities versus non-minority or Business Regulatory Enforcement more appropriate and safer management affluent communities. Fairness Act of 1996, generally provides practices. EPA considered risks to In making hazardous waste listing that before a rule may take effect, the children in its risk assessment. The determinations, we base our evaluations agency promulgating the rule must more appropriate and safer management of potential risk from the generation and submit a rule report, which includes a practices promulgated in this rule are management of solid wastes on an copy of the rule, to each House of the projected to reduce risks to children analysis of potential individual risk. In Congress and to the Comptroller General potentially exposed to the constituents conducting risk evaluations, our goal is of the United States. EPA will submit a of concern. to estimate potential risk to any report containing this rule and other population of potentially exposed required information to the U.S. Senate, H. National Technology Transfer and individuals (e.g., home gardeners, adult the U.S. House of Representatives, and Advancement Act of 1995 farmers, children of farmers, anglers) the Comptroller General of the United Section 12(d) of the National located in the vicinity of any generator States prior to publication of the rule in Technology Transfer and Advancement or facility handling a waste. Therefore, the Federal Register. A Major rule Act of 1995 (‘‘NTTAA’’), Pub L. No. we are not putting poor, rural, or cannot take effect until 60 days after it 104–113, section 12(d) (15 U.S.C. 272 minority populations at any is published in the Federal Register. note) directs EPA to use voluntary disadvantage with regard to our This action is not a ‘‘major rule’’ as consensus standards in its regulatory evaluation of risk or with regard to how defined by 5 U.S.C. 804(2). This rule activities, unless to do so would be the Agency makes its proposed will be effective May 7, 2001. inconsistent with applicable law or hazardous waste listing determinations. otherwise impractical. Voluntary In promulgating decisions to list two List of Subjects consensus standards are technical wastes as hazardous (i.e., EDC/VCM 40 CFR 148 standards (e.g., materials specifications, wastewater treatment sludges managed test methods, sampling procedures, and in land treatment units, and VCM–A Administrative practice and business practices) that are developed or wastewater treatment sludges), all procedure, Hazardous waste, Reporting adopted by voluntary consensus populations potentially exposed to these and recordkeeping requirements, Water standards bodies. The NTTAA directs wastes or potentially exposed to releases supply.

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40 CFR 261 Hazardous substances, Hazardous Hazardous Waste Numbers K174 and Environmental protection, Hazardous waste, Intergovernmental relations, K175 are prohibited from underground materials, Waste treatment and disposal, Natural resources, Reporting and injection. Recycling. recordkeeping requirements, Superfund, (k) The requirements of paragraphs (a) Waste treatment and disposal, Water through (j) of this section do not apply: 40 CFR Part 268 pollution control, Water supply. (1) If the wastes meet or are treated to Environmental protection, Hazardous Dated: September 29, 2000. meet the applicable standards specified materials, Waste management, Carol M. Browner, in subpart D of 40 CFR part 268; or Reporting and recordkeeping Administrator. (2) If an exemption from a prohibition has been granted in response to a requirements, Land disposal For the reasons setforth in the petition under subpart C of this part; or restrictions, Treatment standards. preamble, title 40, chapter I of the Code (3) During the period of extension of of Federal Regulations is amended as 40 CFR Part 271 the applicable effective date, if an follows: Environmental protection, extension has been granted under Administrative practice and procedure, PART 148ÐHAZARDOUS WASTE § 148.4 of this part. Confidential business information, INJECTION RESTRICTIONS Hazardous material transportation, PART 261ÐIDENTIFICATION AND Hazardous waste, Indians—lands, 1. The authority citation for part 148 LISTING OF HAZARDOUS WASTE Intergovernmental relations, Penalties, continues to read as follows: 3. The authority citation for part 261 Reporting and recordkeeping Authority: Sec. 3004, Resource requirements, Water pollution control, Conservation and Recovery Act, 42 U.S.C. continues to read as follows: Water supply. 6901 et seq. Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 6938. 40 CFR Part 302 2. Section 148.18 is amended by adding paragraphs (j) and (k) to read as 4. In § 261.32, the table is amended by Environmental protection, Air follows: adding in alphanumeric order (by the pollution control, Chemicals, first column) the following waste Emergency Planning and Community § 148.18 Waste-specific prohibitionsÐ streams to the subgroup ‘‘Organic Right-to-Know Act, Extremely newly listed and identified wastes. Chemicals’’ to read as follows: hazardous substances, Hazardous * * * * * chemicals, Hazardous materials, (j) Effective May 8, 2001, the wastes § 261.32 Hazardous waste from specific Hazardous materials transportation, specified in 40 CFR 261.32 as EPA sources.

Industry and EPA Hazardous hazardous waste No. Hazardous waste code

******* Organic chemicals:

******* K174 ...... Wastewater treatment sludges from the production of ethylene dichloride or vinyl chloride monomer T (including sludges that result from commingled ethylene dichloride or vinyl chloride monomer waste- water and other wastewater), unless the sludges meet the following conditions: (i) they are disposed of in a subtitle C or non-hazardous landfill licensed or permitted by the state or federal government; (ii) they are not otherwise placed on the land prior to final disposal; and (iii) the generator maintains documentation demonstrating that the waste was either disposed of in an on-site landfill or con- signed to a transporter or disposal facility that provided a written commitment to dispose of the waste in an off-site landfill. Respondents in any action brought to enforce the requirements of sub- title C must, upon a showing by the government that the respondent managed wastewater treatment sludges from the production of vinyl chloride monomer or ethylene dichloride, demonstrate that they meet the terms of the exclusion set forth above. In doing so, they must provide appropriate docu- mentation (e.g., contracts between the generator and the landfill owner/operator, invoices docu- menting delivery of waste to landfill, etc.) that the terms of the exclusion were met. K175 ...... Wastewater treatment sludges from the production of vinyl chloride monomer using mercuric chloride T catalyst in an acetylene-based process.

*******

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5. Appendix VII to Part 261 is wastestreams in alphanumeric order (by Appendix VII To Part 261—Basis for amended by adding the following the first column) to read as follows: Listing Hazardous Waste

EPA hazardous waste no. Hazardous constituents for which listed

******* K174 ...... 1,2,3,4,6,7,8-Heptachlorodibenzo-p-dioxin (1,2,3,4,6,7,8-HpCDD), 1,2,3,4,6,7,8-Heptachlorodibenzofuran (1,2,3,4,6,7,8- HpCDF), 1,2,3,4,7,8,9-Heptachlorodibenzofuran (1,2,3,6,7,8,9-HpCDF), HxCDDs (All Hexachlorodibenzo-p-dioxins), HxCDFs (All Hexachlorodibenzofurans), PeCDDs (All Pentachlorodibenzo-p-dioxins), OCDD (1,2,3,4,6,7,8,9- Octachlorodibenzo-p-dioxin, OCDF (1,2,3,4,6,7,8,9-Octachlorodibenzofuran), PeCDFs (All Pentachlorodibenzofurans), TCDDs (All tetrachlorodi-benzo-p-dioxins), TCDFs (All tetrachlorodibenzofurans). K175 ...... Mercury

Appendix VIII to Part 261—Hazardous order of common name the following Constituents entries: 6. Appendix VIII to Part 261 is amended by adding in alphabetical

Chemical Common name Chemical abstracts name abstracts Hazardous No. waste No.

******* Octachlorodibenzo-p-dioxin (OCDD) ...... 1,2,3,4,6,7,8,9-Octachlorodibenzo-p-dioxin ...... 3268±87±9 ...... Octachlorodibenzofuran (OCDF) ...... 1,2,3,4,6,7,8,9-Octachlorodibenofuran ...... 39001±02±0 ......

*******

PART 268ÐLAND DISPOSAL (2) Persons have been granted an excess of the applicable levels of RESTRICTIONS exemption from a prohibition pursuant subpart D of this part, the waste is to a petition under § 268.6, with respect prohibited from land disposal, and all 7. The authority citation for part 268 to those wastes and units covered by the requirements of part 268 are applicable, continues to read as follows: petition; except as otherwise specified. Authority: 42 U.S.C. 6905, 6912(a), 6921, (3) The wastes meet the applicable (d) Disposal of K175 wastes that have and 6924. treatment standards established complied with all applicable 40 CFR pursuant to a petition granted under 268.40 treatment standards must also be Subpart CÐProhibitions on Land § 268.44; macroencapsulated in accordance with Disposal (4) Hazardous debris has met the 40 CFR 268.45 Table 1 unless the waste treatment standards in § 268.40 or the is placed in: 8. Section 268.33 is revised to read as alternative treatment standards in (1) A Subtitle C monofill containing follows: § 268.45; or only K175 wastes that meet all § 268.33 Waste specific prohibitionsÐ (5) Persons have been granted an applicable 40 CFR 268.40 treatment chlorinated aliphatic wastes. extension to the effective date of a standards; or (a) Effective May 8, 2001, the wastes prohibition pursuant to § 268.5, with (2) A dedicated Subtitle C landfill cell respect to these wastes covered by the in which all other wastes being co- specified in 40 CFR part 261 as EPA ≤ Hazardous Wastes Numbers K174, and extension. disposed are at pH 6.0. K175, soil and debris contaminated with (c) To determine whether a hazardous 9. In § 268.40, the Table is amended these wastes, radioactive wastes mixed waste identified in this section exceeds by adding entries to F039 in with these wastes, and soil and debris the applicable treatment standards alphabetical order, by adding in contaminated with radioactive wastes specified in § 268.40, the initial alphanumeric order new entries for mixed with these wastes are prohibited generator must test a sample of the K174 and K175, and by adding footnote from land disposal. waste extract or the entire waste, 12 to read as follows: (b) The requirements of paragraph (a) depending on whether the treatment standards are expressed as § 268.40 Applicability of treatment of this section do not apply if: standards. (1) The wastes meet the applicable concentrations in the waste extract or * * * * * treatment standards specified in subpart the waste, or the generator may use D of this part; knowledge of the waste. If the waste BILLING CODE 6560±50±P contains regulated constituents in

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BILLING CODE 6560±50±C

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******* Footnotes to Treatment Standard Table 268.40 1 The waste descriptions provided in this table do not replace waste descriptions in 40 CFR Part 261. Descriptions of Treatment/ Regulatory Subcategories are provided, as needed, to distinguish between applicability of different standards. 2 CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only. 3 Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples. 4 All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42 Table 1–Technology Codes and Descriptions of Technology-Based Standards. 5 Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentra- tion were established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR part 264, subpart O or 40 CFR part 265, subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A facility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are based on analysis of grab samples. ******* 11 For these wastes, the definition of CMBST is limited to: (1) combustion units operating under 40 CFR 266, (2) combustion units permitted under 40 CFR part 264, subpart O, or (3) combustion units operating under 40 CFR 265, subpart O, which have obtained a determination of equivalent treatment under 268.42(b). 12 Disposal of K175 wastes that have complied with all applicable 40 CFR 268.40 treatment standards must also be macroencapsulated in accordance with 40 CFR 268.45 Table 1 unless the waste is placed in: (1) A Subtitle C monofill containing only K175 wastes that meet all applicable 40 CFR 268.40 treatment standards; or (2) A dedicated Subtitle C landfill cell in which all other wastes being co-disposed are at pH≤6.0.

* * * * * following entries under the heading § 268.48 Universal treatment standards. 10. In § 268.48 the Table is amended organic constituents: (The footnotes are (a) * * * by adding in alphabetical sequence the republished without change.)

UNIVERSAL TREATMENT STANDARDS [Note: NA means not applicable]

Wastewater Nonwastewater standard standard CAS1 Regulated constituent common name number Concentration in Concentration in mg/Kg3 unless mg/L2 noted as ``mg/L TCLP''

******* 1,2,3,4,6,7,8-Heptachlorodibenzo-p-dioxin (1,2,3,4,6,7,8±HpCDD) ...... 35822±46±9 0.000035 0.0025 1,2,3,4,6,7,8-Heptachlorodibenzofuran (1,2,3,4,6,7,8-HpCDF) ...... 67562±39±4 0.000035 0.0025 1,2,3,4,7,8,9-Heptachlorodibenzofuran (1,2,3,4,7,8,9-HpCDF) ...... 55673±89±7 0.000035 0.0025

******* 1,2,3,4,6,7,8,9-Octachlorodibenzo-p-dioxin (OCDD) ...... 3268±87±9 0.000063 0.005 1,2,3,4,6,7,8,9-Octachlorodibenzofuran (OCDF) ...... 39001±02±0 0.000063 0.005

******* ******* 1 CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only. 2 Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples. 3 Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR Part 264, Subpart O, or 40 CFR Part 265, Subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical require- ments. A facility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are based on analysis of grab samples.

* * * * * Authority: 42 U.S.C. 6905, 6912(a), and § 271.1 Purpose and scope. 6926. * * * * * PART 271ÐREQUIREMENTS FOR AUTHORIZATION OF STATE 12. In § 271.1(j) tables 1 and 2 are (j) * * * HAZARDOUS WASTE PROGRAMS amended by adding the following entries in chronological order by date of 11. The authority citation for Part 271 publication to read as follows. continues to read as follows:

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TABLE 1.ÐREGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Promulgation date Title of regulation Federal Register reference Effective date

******* September 29, 2000...... Listing of Hazardous Wastes 65 FR 67132 May 7, 2001. K174 and K175.

*******

TABLE 2.ÐSELF IMPLEMENTING PROVISIONS OF THE SOLID WASTE AMENDMENTS OF 1984

Effective date Self-implementing provision RCRA citation Federal Register reference

******* May 7, 2001...... Prohibition on land disposal of 3004(g)(4)(C) and 3004(m) ...... November 8, 2000. K174 and K175 wastes, and 65 FR 67132. prohibition on land disposal of mixed with K174 and K175 wastes, includ- ing soil and debris..

*******

* * * * * Authority: 42 U.S.C. 9602, 9603, and 9604; § 302.4 Designation of hazardous 33 U.S.C. 1321 and 1361. substances. PART 302ÐDESIGNATION, * * * * * REPORTABLE QUANTITIES, AND 14. In § 302.4, Table 302.4 is amended NOTIFICATION by adding the following new entries in alphanumeric order at the end of the 13. The authority citation for part 302 table to read as follows: continues to read as follows:

TABLE 302.4ÐLIST OF HAZARDOUS SUBSTANCES AND REPORTABLE QUANTITIES [Note: All Comments/Notes Are Located at the End of This Table]

Statutory Final RQ Hazardous substance CASRN Regulatory synonyms RCRA Pounds RQ Code ² waste No. Category (KG)

******* K174f ...... 1* 4 K174 X 1(0.454)

******* K175f ...... 1* 4 K175 X 1(0.454) ² Indicates the statutory sources as defined by 1, 2, 3, and 4 below. 1 *ÐIndicates that the 1-pound RQ is a CERCLA statutory RQ. 4ÐIndicates that the statutory source for designation of this hazardous substance under CERCLA is RCRA Section 3001. f See 40 CFR 302.6(b)(1) for application of the mixture rule to this hazardous waste.

15. Section 302.6 is amended by (b) * * * hazardous constituent(s) may be revising paragraph (b)(1)(iii) to read as (1) * * * assumed, based on the following follows: (iii) For waste streams K169, K170, maximum observed constituent K171, K172, K174, and K175, concentrations identified by EPA: § 302.6 Notification requirements. knowledge of the quantity of all of the * * * * *

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Waste Constituent max ppm

K174 ...... 2,3,7,8-TCDD ...... 0.000039 1,2,3,7,8-PeCDD ...... 0.0000108 1,2,3,4,7,8,-HxCDD ...... 0.0000241 1,2,3,6,7,8,-HxCDD ...... 0.000083 1,2,3,7,8,9,-HxCDD ...... 0.000062 1,2,3,4,6,7,8-HpCDD ...... 0.00123 OCDD ...... 0.0129 2,3,7,8-TCDF ...... 0.000145 1,2,3,7,8-PeCDF ...... 0.0000777 2,3,4,7,8-PeCDF ...... 0.000127 1,2,3,4,7,8-HxCDF ...... 0.001425 1,2,3,6,7,8-HxCDF ...... 0.000281 1,2,3,7,8,9-HxCDF ...... 0.00014 2,3,4,6,7,8-HxCDF ...... 0.000648 1,2,3,4,6,7,8-HpCDF ...... 0.0207 1,2,3,4,7,8,9-HpCDF ...... 0.0135 OCDF ...... 0.212 K175 ...... Mercury ...... 9200

* * * * * [FR Doc. 00–25928 Filed 11–7–00; 8:45 am] BILLING CODE 6560±50±P

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