[Federal Register Volume 68, Number 67 (Tuesday, April 8, 2003)]
[Proposed Rules]
[Pages 17234-17250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8154]
[[Page 17233]]
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Part III
Environmental Protection Agency
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40 CFR Part 261
Revision of Wastewater Treatment Exemptions for Hazardous Waste
Mixtures (``Headworks Exemptions''); Proposed Rule
Federal Register / Vol. 68, No. 67 / Tuesday, April 8, 2003 /
Proposed Rules
[[Page 17234]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-7475-5]
RIN 2050-AE84
Revision of Wastewater Treatment Exemptions for Hazardous Waste
Mixtures (``Headworks Exemptions'')
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency is proposing in today's
action to add benzene and 2-ethoxyethanol to the list of solvents whose
mixtures with wastewater are exempted from the definition of hazardous
waste under the Resource Conservation and Recovery Act (RCRA). The
Agency studied two other solvents, 1,1,2-trichloroethane and 2-
nitropropane, and is not proposing at this time to add them to the
current exemption.
Besides adding the two solvents to the exemption, the Agency is
proposing to provide flexibility in the way compliance with the rule is
determined by adding the option of directly measuring solvent chemical
levels at the headworks of the wastewater treatment system to the
current requirements. Finally, the Agency also is proposing to make
additional listed hazardous wastes (beyond discarded commercial
chemical products) eligible for the de minimis exemption, as well as
adding non-manufacturing facilities to those that qualify for this
exemption if certain conditions are met.
The Agency is requesting comments on these and other potential
exemptions involving wastes managed in a wastewater system regulated
under the Clean Water Act (CWA).
The Agency is not proposing any changes or seeking comment on any
other provisions of the so-called ``headworks rule,'' not specifically
identified in this notice as subject to possible amendment. Nor will
the Agency respond to any comments addressing any provisions of the
headworks rule not specifically identified in this notice as subject to
possible amendment.
DATES: To make sure we consider your comments on revisions to the
wastewater treatment exemptions to hazardous waste mixtures, they must
be postmarked by June 9, 2003.
ADDRESSES: Comments may be submitted electronically, or through hand
delivery/courier or by mail. Send an original and two copies of your
comments to: RCRA Docket Information Center, Office of Solid Waste,
Environmental Protection Agency, Mailcode: 5305W, 1200 Pennsylvania
Ave., NW., Washington, DC 20460, Attention Docket ID No. RCRA-2002-
0028. Follow the detailed instructions as provided in the SUPPLEMENTARY
INFORMATION section.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Call Center at 800-424-9346 or TDD 800-553-7672 (hearing
impaired). In the Washington, DC, metropolitan area, call 703-412-9810
or TDD 703-412-3323. For more detailed information on specific aspects
of this rulemaking, contact Ron Josephson, phone 703-308-0442; e-mail:
[email protected], or Laura Burrell, phone 703-308-0005, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
General Information
Entities potentially affected by this action are generators of
industrial hazardous waste, and entities that treat, store, transport
and/or dispose of these wastes. This table is not intended to be
exhaustive, but rather provides a guide for readers regarding entities
likely to be affected by this action.
List of Potentially Affected U.S. Industrial Entities
------------------------------------------------------------------------
Economic Subsector or
Industry Identity
Item ---------------------------- Description
SIC code NAICS code
------------------------------------------------------------------------
1................... 02 112 Agricultural
production--livestock
2................... 20 311 Food & kindred
products
3................... 22 313 Textile mill products
4................... 24 321 Lumber & wood products
5................... 25 337 Furniture & fixtures
6................... 26 322 Paper & allied
products
7................... 28 325 Chemicals & allied
products
8................... 29 324 Petroleum & coal
products
9................... 30 326 Rubber & miscellaneous
plastics products
10.................. 31 316 Leather & leather
products
11.................. 32 327 Stove, clay, glass &
concrete products
12.................. 33 331 Primary metal
industries
13.................. 34 332 Fabricated metal
products
14.................. 35 333 Industrial machinery &
equipment
15.................. 36 334, 335 Electrical &
electronic equipment
16.................. 37 336 Transportation
equipment
17.................. 38 3333, 3345 Instruments & related
products
18.................. 42 493 Motor freight
transportation &
warehousing
19.................. 4581 48819, 56172 Airports, flying
fields, & airport
terminal services
20.................. 4789 488999 Transportation
services nec
21.................. 49 221 Electric, gas, &
sanitary services
22.................. 50 421 Wholesale trade--
durable goods
23.................. 51 422 Wholesale trade--
nondurable goods
24.................. 5999 453998 Miscellaneous retail
25.................. 721 8123 Dry-cleaning &
industrial laundry
services
26.................. 73 514, 532, Business services
541, 561
27.................. 80 621, 622, Health services
623
28.................. 87 712 Engineering &
management services
[[Page 17235]]
29.................. 8999 54162 Miscellaneous services
30.................. 91 921 Executive, legislative
& general government
31.................. 95 924, 925 Environmental quality
& housing
32.................. 97 928 National security &
international affairs
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Notes:
(a) This list is based upon industry codes reported to the USEPA RCRA
hazardous waste 1997 ``Biennial Reporting System'' database by F002/
F005 aqueous spent solvent generators which manage such wastes in
wastewater treatment systems, supplemented by industry codes which
have USEPA Clean Water Act ``Categorical Pretreatment Standards'' for
indirect discharge of industrial wastewaters to POTWs (as of July
2002).
(b) The USEPA Office of Solid Waste matched 1987 2-digit level SIC codes
to 1997 NAICS codes using the U.S. Census Bureau website: http://www.census.gov/epcd/naics/nsic2ndx.htm#S0.
(c) SIC = 1987 Standard Industrial Classification system (U.S.
Department of Commerce's traditional code system last updated in
1987).
(d) NAICS = 1997 North American Industrial Classification System (U.S.
Department of Commerce's new code system as of 1997).
(e) Refer to the Internet website http://www.census.gov/epcd/www/naicstab.htm for additional information and a crosswalk table for the
SIC and NAICS codes systems.
This table lists the types of entities that EPA believes could be
affected by this action, based on industrial sectors identified in the
economic analysis in support of this proposal. A total of about 3,300
to 10,400 entities are expected to benefit from the proposed revisions
to 40 CFR 261.3 in the 32 industrial sectors listed above, but
primarily in the chemicals and allied products sector (i.e., SIC code
28, or NAICS code 325). Other entities not listed in the table also
could be affected. To determine whether your facility is covered by
this action, you should examine 40 CFR part 261 carefully in concert
with the proposed rules found at the end of this Federal Register
document. If you have questions regarding the applicability of this
action to a particular entity, consult the persons listed in the FOR
FURTHER INFORMATION CONTACT section.
How Can I Get Copies of This Document and Other Related Information?
Docket
EPA has established an official docket for this action under Docket
ID No. RCRA-2002-0028. The official docket consists of the documents
specifically referenced in this action, any public comments received,
and other information related to this action. Although a part of the
official docket, the public docket does not include Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. The public docket is the collection of materials
that is available for public viewing at 1301 Constitution Avenue, NW.,
Washington, DC. This Docket Facility is open from 9 a.m. to 4 p.m.,
Monday through Friday, excluding legal holidays. The Docket telephone
number is (202) 566-0270. You may copy up to 100 pages from any
regulatory document at no cost. Additional copies are $0.15 per page.
Electronic Access
You may access this Federal Register document electronically
through the EPA Internet under the Federal Register listings at http://www.epa.gov/fedrgstr.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the public
docket, and access those documents in the public docket that are
available electronically. Once in the system, select ``search,'' then
key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. Although not all
docket materials may be available electronically, you may still access
any of the publicly available docket materials through the docket
facility. EPA intends to work toward providing electronic access to all
of the publicly available docket materials through EPA's electronic
public docket.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
For additional information about EPA's electronic public docket
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
How and To Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' EPA is not
required to consider these late comments.
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Electronically
If you submit an electronic comment as prescribed below, EPA
recommends that you include your name, mailing address, and an e-mail
address or other contact information in the body of your comment. Also
include this contact information on the outside of any disk or CD ROM
you submit, and in any cover letter accompanying the disk or CD ROM.
This ensures that you can be identified as the submitter of the comment
and allows EPA to contact you in case EPA cannot read your comment due
to technical difficulties or needs further information on the substance
of your comment. EPA's policy is that EPA will not edit your comment,
and any identifying or contact information provided in the body of a
comment will be included as part of the comment that is placed in the
official public docket, and made available in EPA's electronic public
docket. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment.
Your use of EPA's electronic public docket to submit comments to
EPA electronically is EPA's preferred method for receiving comments. Go
directly to EPA Dockets at http://www.epa.gov/edocket, and follow the
online instructions for submitting comments. To access EPA's electronic
public docket from the EPA Internet Home Page, select ``Information
Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the system, select
``search,'' and then key in Docket ID No. RCRA-2002-0028. The system is
an ``anonymous access'' system, which means EPA will not know your
identity, e-mail address, or other contact information unless you
provide it in the body of your comment.
Comments may be sent by electronic mail (e-mail) to [email protected], Attention Docket ID No. RCRA-2002-0028. In
contrast to EPA's electronic public docket, EPA's e-mail system is not
an ``anonymous access'' system. If you send an e-mail comment directly
to the Docket without going through EPA's electronic public docket,
EPA's e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket, and made available in EPA's electronic public docket.
You may submit comments on a disk or CD ROM that you mail to the
mailing address identified in the following paragraph. These electronic
submissions will be accepted in WordPerfect or ASCII file format. Avoid
the use of special characters and any form of encryption.
By Mail
Send an original and two copies of your comments to: RCRA Docket
Information Center, Office of Solid Waste, Environmental Protection
Agency, Mailcode: 5305W, 1200 Pennsylvania Ave., NW., Washington, DC
20460, Attention Docket ID No. RCRA-2002-0028.
By Hand Delivery or Courier
Deliver your comments to: RCRA Docket Information Center, 1301
Constitution Avenue, NW., Washington, DC 20460, Attention Docket ID No.
RCRA-2002-0028. Such deliveries are only accepted during the Docket's
normal hours of operation as identified in the ``How Can I Get Copies
of This Document and Other Related Information?'' section.
How Should I Submit CBI To the Agency?
Do not submit information that you consider to be confidential
business information (CBI) electronically through EPA's electronic
public docket or by e-mail. Send or deliver information identified as
CBI only to the following address: RCRA CBI Document Control Officer,
Office of Solid Waste (5305W), U.S. EPA, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460, Attention Docket ID No. RCRA-2002-0028. You may
claim information that you submit to EPA as CBI by marking any part or
all of that information as CBI (if you submit CBI on disk or CD ROM,
mark the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is CBI). Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD ROM, mark the outside
of the disk or CD ROM clearly that it does not contain CBI. Information
not marked as CBI will be included in the public docket and EPA's
electronic public docket without prior notice. If you have any
questions about CBI or the procedures for claiming CBI, please consult
the person identified in the FOR FURTHER INFORMATION CONTACT section.
What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. To ensure proper receipt by EPA, identify the appropriate docket
identification number in the subject line on the first page of your
response. It would also be helpful if you provided the name, date, and
Federal Register citation related to your comments.
SUPPLEMENTARY INFORMATION: The index and many of the supporting
materials are available on the Internet. You can find these materials
at http://www.epa.gov/epaoswer/hazwaste/id/headworks/index.htm.
List of Acronyms
------------------------------------------------------------------------
Acronym Meaning
------------------------------------------------------------------------
1,1-DCE................................... 1,1-dichloroethylene
1,1,2-TCA................................. 1,1,2-trichloroethane
2-EE...................................... 2-ethoxyethanol
2-NP...................................... 2-nitropropane
ACC....................................... American Chemistry Council
ANPRM..................................... Advanced Notice for Proposed
Rule Making
BRS....................................... Biennial Reporting System
CBI....................................... Confidential Business
Information
CERCLA.................................... Comprehensive Environmental
Response, Compensation, and
Liability Act
CFR....................................... Code of Federal Regulations
CWA....................................... Clean Water Act
DAF....................................... Dilution and Attenuation
Factor
EPA....................................... Environmental Protection
Agency
EPACMTP................................... EPA Composite Model for
Leachate Migration with
Transformation Products
FR........................................ Federal Register
HSWA...................................... Hazardous and Solid Waste
Amendments
HWIR...................................... Hazardous Waste
Identification Rule
[[Page 17237]]
IWEM...................................... Industrial Waste Management
Evaluation Model
LDR....................................... Land Disposal Restrictions
MACT...................................... Maximum Achievable Control
Technology
MCL....................................... Maximum Contamination Limit
NAICS..................................... North American Industrial
Classification System
NPDES..................................... National Pollutant Discharge
Elimination System
NRMRL..................................... National Risk Management
Research Laboratory
NSPS...................................... New Source Performance
Standard
NTTAA..................................... National Technology Transfer
and Advancement Act
OMB....................................... Office of Management and
Budget
OSWER..................................... Office of Solid Waste and
Emergency Response
POTW...................................... Publicly Owned Treatment
Works
ppm....................................... parts per million
RCRA...................................... Resource Conservation and
Recovery Act
RFA....................................... Regulatory Flexibility Act
RQ........................................ Reportable Quantity
SIC....................................... Standard Industrial
Classification
TC........................................ Toxicity Characteristic
TRI....................................... Toxics Release Inventory
UMRA...................................... Unfunded Mandates Reform Act
WWT....................................... Wastewater treatment
------------------------------------------------------------------------
Outline
I. Background
A. History of Headworks Rule
B. History of Solvents Listings
II. Potential Changes to the Headworks Rule
A. Adding Solvents to the Headworks Exemption
1. General Approach to Risk Analysis
2. Issues presented by each solvent
a. Benzene
b. 2-ethoxyethanol
c. 2-nitropropane
d. 1,1,2-trichloroethane
B. Revising Headworks Compliance Monitoring Method
C. Exempting Scrubber Water Derived from Solvent Combustion
D. Exempting Leachate Derived from Solvent Wastes
E. Exempting Other Types of Leachate
F. Expanding the De minimis Exemption
G. State Authority
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act of 1995
I. Background
A. History of Headworks Rule
On May 19, 1980, the Agency listed several wastes as hazardous
under RCRA. The current list as amended is found in 40 CFR part 261,
subpart D. Among the listings are the F001-F005 listings under 40 CFR
261.31, which cover spent solvents as well as residuals from the
recovery of spent solvents and spent solvent mixtures. In the same
notice, EPA promulgated the ``mixture rule'' whereby a solid waste
becomes regulated as a hazardous waste if it is mixed with one or more
listed hazardous wastes.
After these provisions were promulgated, several industry groups
became concerned that large volumes of wastewaters (and their resulting
treatment sludges) would become listed hazardous wastes. After
investigating the submitted data, the Agency, on November 17, 1981, (46
FR 56582-56589) promulgated a rule giving several exemptions to the
mixture rule under 40 CFR 261.3(a)(2)(iv)(A)-(E). These exemptions are
commonly called the ``headworks rule.''
The original headworks rule exemptions are divided into four
categories: paragraphs (A) and (B) are concerned with solvents that may
be contained in wastewaters when going to treatment, paragraph (C) is
concerned with certain petroleum wastes, paragraph (D) with de minimis
quantities of commercial chemical products that are lost to the
wastewater treatment system during normal handling operations, and
paragraph (E) with laboratory wastes and/or wastewaters discharged to
wastewater treatment. The reasoning behind each of these exemptions is
that the wastewater treatment system receives many different kinds of
wastes, and the solvents, commercial chemical products, lab wastes,
etc. are a minuscule and treatable part of the mix of wastewaters. The
relatively small volumes of these organic constituents should be easily
and effectively handled by the wastewater treatment system, so the risk
to the environment would be negligible.
Under the solvents portion of the headworks rule, if the maximum
total weekly usage of listed solvents divided by the average weekly
flow of wastewater through the headworks of the facility's wastewater
treatment system does not exceed the levels specified in paragraphs (A)
and/or (B) of 40 CFR 261.3(a)(2)(iv), and the discharge of the
wastewaters is subject to regulation under sections 402 or 307(b) of
the Clean Water Act, the wastewater is exempt from the mixture rule,
(and therefore any subsequent treatment sludge generation also would be
exempt). Facilities which have eliminated the discharge of wastewaters
also are eligible for this exemption. Those facilities that discharge
or transport their wastewaters to privately-owned treatment works are
not eligible for this exemption; however, the receiving facilities are
eligible to receive the exemption if they comply with the provisions of
the headworks rule.
The specified level in paragraph (A) is 1 ppm; the level in
paragraph (B) is 25 ppm. See 46 FR 56582 (November 17, 1981) for more
details. Carbon tetrachloride, tetrachloroethylene, and
trichloroethylene were specified in paragraph (A). The remaining
solvents listed under EPA Hazardous Waste Numbers F001, F002, F004, and
F005 were put into paragraph (B). Since the solvents listed under EPA
Hazardous Waste Number F003 are listed only for ignitability, and
wastewater mixtures containing F003 solvents are not likely to be
ignitable hazardous wastes, the headworks rule is not relevant for
these wastes.
On February 9, 1995, the Agency listed wastes from the production
of carbamate pesticides (60 FR 7824-7859). Included in the listing are
further amendments to the headworks rule for wastes from this industry,
40 CFR 261.3(a)(2)(iv)(F) and (G). In addition, on August 6, 1998, the
Agency revised Sec. 261.3(a)(2)(iv)(C) as a part of the petroleum
listing determination to include headworks provisions for these newly
listed wastes (63 FR 42184).
In August 1999, EPA received a request from the American Chemistry
Council (ACC, formerly the Chemical Manufacturers Association) to add
the four solvents (1,1,2-trichloroethane, benzene, 2-nitropropane, and
2-ethoxyethanol) listed as hazardous wastes in 1986 to the headworks
exemption. ACC also asked the Agency to allow direct monitoring as an
alternative method by which compliance with the headworks rule may be
determined. Other ACC-requested headworks rule changes include allowing
those wastes listed in 40 CFR 261.31 and 261.32 to be added to the de
minimis exemption, and expanding the headworks rule to include certain
landfill leachates. EPA
[[Page 17238]]
included a request for comment on these and other ACC-suggested
exemptions to the mixture and derived-from rules in the November 19,
1999 proposed Hazardous Waste Identification Rule (HWIR) (64 FR 63382).
Many of today's proposed changes are an outgrowth of ACC's suggested
revisions and the public comments that EPA received in response to the
discussion of these suggested revisions in the 1999 HWIR proposal.
B. History of Solvent Listings
On May 19, 1980, the Agency listed 23 chemicals or classes of
chemicals as hazardous wastes when used as solvents and subsequently
spent. The listings can be found at 40 CFR 261.31, EPA Hazardous Waste
Numbers F001-F005. As previously stated, in 1981 the Agency determined
that small volumes of these spent solvents could be lost to wastewater
treatment systems with negligible risk and therefore these spent
solvents were exempted under the headworks rule (46 FR 56582-56589,
November 17, 1981).
The Agency's spent solvent listings cover only those solvents that
are used for their ``solvent'' properties--that is, to solubilize
(dissolve) or mobilize other constituents. For example, solvents used
in degreasing, cleaning, fabric scouring, as diluents, extractants,
reaction and synthesis media, and similar uses are covered under the
listing (when spent). A solvent is considered ``spent'' when it has
been used and is no longer fit for use without being regenerated,
reclaimed, or otherwise reprocessed.
On the other hand, process wastes in which solvents were used as
reactants or ingredients in the formulation of commercial chemical
products are not covered by the listing. The products themselves also
are not covered. (See 50 FR 53316, December 31, 1985.)
On February 25, 1986 (51 FR 6537-6542), the Agency listed four
other solvents in the F002 and F005 categories. These solvents are
1,1,2-trichloroethane, benzene, 2-nitropropane, and 2-ethoxyethanol (or
ethylene glycol monoethyl ether). These listings were in response to a
Congressional mandate in the Hazardous and Solid Waste Amendments of
1984 (HSWA). At the time, the Agency did not determine whether or not
to add these solvents to the headworks rule exemptions.
The Agency followed up the 1986 solvent listings with another
listing determination concerning solvents as part of a court-ordered
mandate. On November 19, 1998 (63 FR 64372-64402), the Agency finalized
a decision not to list any of 14 selected chemicals as spent solvents
under the current listings. The Agency concluded that many of these
chemicals had little to no solvent use or very specialized solvent
uses, and those that were used as solvents were managed in such a way
that additional regulation was not warranted. As a part of the same
court-ordered mandate, the Agency also published a ``Solvents Study''
(August 22, 1996) on seven additional chemicals. Most of these
chemicals were found to have no solvent use at all.
II. Potential Changes to the Headworks Rule
The Agency intends to make a technical correction to Sec.
261.3(a)(2)(iv)(A). The term ``spent'' was inadvertently omitted from
this paragraph when promulgated. The term ``spent'' should have
appeared immediately before the word ``solvent'' in the first clause of
the sub-paragraph as it does in sub-paragraph (B) of Sec.
261.3(a)(2)(iv). The Agency proposes to correct this inadvertent
oversight by inserting the word ``spent'' in the appropriate place in
sub-paragraph (A).
A. Adding Solvents to the Headworks Exemption
The American Chemistry Council requested that the Agency consider
adding the four solvents listed in 1986 to the headworks exemption
under 40 CFR 261.3(a)(2)(iv)(A) and (B). After evaluating these
chemicals, the Agency is proposing to add two of the solvents (benzene
and 2-ethoxyethanol) to the exemption. That is, the Agency is proposing
to add benzene to the solvents with a total 1 ppm headworks limit under
Sec. 261.3(a)(2)(iv)(A) and is proposing to add 2-ethoxyethanol (2-EE)
to the 25 ppm total limit under Sec. 261.3(a)(2)(iv)(B). The exemption
for benzene is conditioned on the use of aerated biological treatment
units and the requirement that any surface impoundments used prior to
secondary clarification be lined. The Agency is not proposing any
action regarding 1,1,2-trichloroethane (1,1,2-TCA) and 2-nitropropane
(2-NP) at this time. The Agency considered each solvent's risks
individually and solicits comments on the appropriateness of the
exemptions and the levels set.
Under today's proposed changes, if the total headworks
concentration of methylene chloride, 1,1,1-trichloroethane,
chlorobenzene, o-dichlorobenzene, cresols, cresylic acid, nitrobenzene,
toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine,
spent chlorofluorocarbon solvents, and 2-ethoxyethanol (added by
today's proposal) do not exceed 25 parts per million (ppm), and the
other conditions are met relating to Clean Water Act discharge and
monitoring or measurement of constituents in the headworks of the
wastewater treatment system (see below), the wastewater mixtures would
no longer be considered hazardous waste. For mixtures of carbon
tetrachloride, tetrachloroethylene, trichloroethylene, and benzene
(added by today's proposal under certain conditions), the total
headworks concentration cannot exceed 1 ppm, and also must meet the
other conditions for it to no longer be considered a hazardous waste;
in addition, mixtures containing benzene must be managed in an aerated
biological wastewater treatment system without the use of unlined
surface impoundments prior to secondary clarification.
The Agency is taking comment only on the evaluation and decisions
made concerning benzene, 2-ethoxyethanol, 1,1,2-trichloroethane, or 2-
nitropropane to the mixture rule exemption at 40 CFR 261.3(a)(2)(iv)(A)
and (B). The Agency is not soliciting comments on solvents currently
exempted. The Agency also is not taking comment on any spent solvent
listing or any other hazardous waste listing. Nor will the Agency
respond to any comments submitted addressing any currently exempted
solvent, any spent solvent listing or any other hazardous waste
listing.
1. General Approach to Risk Analysis
The Agency took a phased approach to the risk analysis for the four
solvents under consideration. In the first phase, EPA conducted a
protective screening analysis by comparing the regulatory levels in the
current solvents headworks exemption (i.e., 1 ppm and 25 ppm) with
protective waste concentration limits (based on ingestion of ground
water contaminated by surface impoundment leachate and inhalation of
chemicals volatilized from an aerated tank) that EPA already had
generated under previous efforts. These efforts calculated protective
levels based on a more stringent 10-6 risk threshold. In
addition, EPA evaluated data from EPA's National Risk Management
Research Laboratory (NRMRL, part of the Agency's Office of Research and
Development) treatability database to determine the probable effect of
treatment in reducing chemical concentrations using existing treatment
technologies. In the second phase, EPA performed a more detailed
analysis for the chemicals (where possible). This more detailed human
health risk assessment evaluated both the direct groundwater pathway
and indirect
[[Page 17239]]
exposure pathways for chemicals released from either the wastewater or
the resulting treatment sludge. This Phase II analysis used a
10-5 risk threshold that the Agency considers sufficiently
protective of human health and the environment, and therefore uses for
a variety of regulatory determinations.
Comparison to Existing Waste Concentration Limits
The screening analysis compared waste concentration estimates taken
from previous modeling efforts for each of the four chemicals with
applicable headworks exemption levels.
Table 1.--Preliminary Comparative Solvent Risk Data
------------------------------------------------------------------------
Groundwater Direct
Chemical name ingestion (mg/ inhalation \2\
L)\1\ (mg/L)
------------------------------------------------------------------------
benzene (c)........................... 0.0027 3
2-ethoxyethanol (nc).................. 13 100,000
2-nitropropane (c).................... N/A 0.04
1,1,2-trichloroethane (c)............. 0.0028 2
------------------------------------------------------------------------
Footnotes:
(c) is a carcinogen, (nc) is a non-carcinogen
\1\ Adult risk, surface impoundment, 10-6 risk, HQ = 1 (ground water
modeling screening levels from IWEM)
\2\ Adult risk, Aerated tanks, 90% sites, 90% receptors protected, 150
m, 10-6 risk, HQ = 0.25 (1999 Air Characteristic Study)
The Agency identified waste concentration screening estimates that
would be protective of groundwater ingestion for three of the solvents
(benzene, 2-ethoxyethanol, and 1,1,2-trichloroethane) from previous
groundwater modeling efforts.\1\ This comparison was conservative
because it did not take into account any reductions in concentration
due to treatment. For all three chemicals, the protective screening
levels are lower than the existing standards for wastewaters entering
treatment (i.e., 1 ppm for benzene and 1,1,2-trichloroethane; and 25
ppm for 2-ethoxyethanol), indicating a need for further analysis. The
Agency currently does not have sufficient information to generate an
estimate of the toxicity of 2-nitropropane through ingestion, so no
comparison could be made.
---------------------------------------------------------------------------
\1\ U.S. EPA. 2002. Industrial Waste Management Evaluation Model
(IWEM) Technical Background Document. Office of Solid Waste,
Washington, DC. EPA530-R-02-012.
---------------------------------------------------------------------------
The Agency also has identified waste concentration estimates that
would be protective of inhalation exposures to each of the four
chemicals during volatilization from aerated tanks, also based on
previous modeling efforts.\2\ The numbers shown in Table 1 represent
the maximum constituent concentration meeting the noted adult risk
thresholds at specified receptor distances. The table shows that for
three of the solvents (benzene, 2-ethoxyethanol, and 1,1,2-
trichloroethane), the maximum modeled constituent level is above the
exemption level proposed for these chemicals (i.e., the existing
standard of 1 ppm or 25 ppm was protective of this risk scenario) and
thus, is considered protective. One of the constituents, 2-NP, is still
of concern for the inhalation pathway (i.e., the potential standard of
1 ppm would not meet the Agency inhalation risk thresholds). Additional
discussion of 2-nitropropane follows below.
---------------------------------------------------------------------------
\2\ Volume III: Revised Risk Analysis for the Air Characteristic
Study: Results, EPA 530-R-99-019c, U.S. EPA, November 1999. (on CD-
ROM)
---------------------------------------------------------------------------
Analysis of Treatability Data
The NRMRL treatability database provides valuable information on
effluent concentrations for specific chemicals at set input levels. For
the purposes of today's proposal, Agency staff searched the database
for aqueous treatment technology data on full-scale industrial
facilities in the chemical or petroleum refining industries that have
measured levels of any one of the four solvents entering the wastewater
treatment system. Data generally are summarized from government
references, such as effluent guidelines development documents. Aqueous
treatment technology data are available for benzene and 1,1,2-
trichloroethane. Only one non-industrial aqueous treatment technology
data point exists for 2-ethoxyethanol, and no data are available for 2-
nitropropane. The data show that for two of the solvents (benzene and
2-ethoxyethanol), wastewater treatment generally is effective in
reducing concentrations below the levels of concern. Information on how
to obtain the NRMRL data can be found at http://www.epa.gov/ORD/NRMRL/treat.htm. Further analysis of NRMRL data as applied to industrial
users of the chemicals under consideration is available in Proposed
Rule to Expand the RCRA Wastewater Treatment Exemptions for Hazardous
Waste Mixtures (Headworks Exemption) in 40 CFR 261.3(a)(2)(iv)
Technical Background Document located in the public docket to today's
rule.
Additional Human Health Risk Assessment
In the second phase, the Agency used the Chem 9/Water 9 model as an
emissions source model (i.e., to estimate the wastewater and sludge
concentrations after each step in the wastewater treatment system) and
the Industrial Waste Management Evaluation Model (IWEM) to perform a
groundwater pathway risk assessment, using data from the 1997 Biennial
Reporting System as input parameters.\3\ EPA modeled wastewaters
managed in both a non-aerated tank and unlined surface impoundment, and
an aerated biological treatment system (which included both primary and
secondary clarifier wastewater units). EPA also modeled sludges
generated by wastewater treatment as managed in monofills and land
farms. EPA modeled direct and indirect pathways, using chemical
specific dilution and attenuation factors (DAFs) from EPA's Composite
Model for Leachate Migration with Transformation Products (EPACMTP), to
predict the constituent concentration at the point of human contact.
Direct routes included exposure via ingestion of contaminated ground
water and inhalation of vapors from showering with contaminated ground
water. Indirect routes of exposure
[[Page 17240]]
included the consumption of contaminated vegetables and meats.
---------------------------------------------------------------------------
\3\ The 1997 BRS data were used because that was the last year
to include wastewater data. EPA queried the BRS for data on F002
(for 1, 1,2-trichloroethane) and F005 (for benzene, 2-ethoxyethanol,
and 2-nitropropane) at facilities which generated wastewaters or
managed treatment sludges. The data from the BRS do not state which
solvent is linked to a specific waste code. To screen for a ``high
end'' exposure analysis, EPA based the input parameters on the
facility that is the 90th percentile in size for the given waste
code (i.e., that only ten percent of the facilities are larger).
---------------------------------------------------------------------------
For each scenario, multiple iterations were conducted to determine
both central tendency risk and ``high-end'' risk. In all cases,
however, the influent concentrations for benzene and 1,1,2-TCA at the
headworks were assumed to be the maximum exemption level allowable
assigned to carcinogens (1 ppm), and for 2-ethoxyethanol the influent
concentration was assumed to be the maximum allowable limit for non-
carcinogens (25 ppm). The risk level was set at 10-5 (one
chance in 100,000) for carcinogens and at a hazard quotient of 1 for
non-carcinogens. Finally, for the indirect pathways, the medium used to
grow plants was assumed to consist of 100% sludge (at the concentration
generated by Chem 9/Water 9). Because none of the chemicals assessed
were found to be of concern for the indirect pathways, EPA did not
further refine this assumption. A full description of the data
screening methodology can be found in the modeling background document
to today's proposal.
2. Issues presented by each solvent
a. Benzene. Benzene is the most ubiquitous of the four solvents
under consideration. It has uses in many industries, particularly in
organic synthesis and catalyst formation. Benzene is used as a reactant
as well as a medium for reactions to take place. Due to increased
restrictions on benzene emissions (such as MACT standards, etc.),
chemical industries have been encouraged to find alternatives to
benzene. It is also one of the more toxic, being classified by EPA as a
Class A carcinogen.
As presented in Table 1 of this notice, existing modeled waste
concentration limits show that the 1 ppm standard would be protective
for the direct air inhalation pathway, even with the more stringent
10-6 risk threshold. Moreover, data from the NRMRL
treatability database demonstrate that, after the specified treatment,
effluent concentrations for benzene generally are below the groundwater
modeled level of 0.0177 mg/L (17.7[mu]g/L), even when the influent
benzene level approaches 1 mg/L (1,000[mu]g/L). Note that treatability
numbers are measured at the effluent of a wastewater treatment system,
not in the treatment unit itself. However, we believe this comparison
is helpful because it illustrates that levels of benzene below concern
are achievable in industrial wastewater treatment systems, even when
the input level approaches 1 ppm.
Data from the groundwater pathway human health risk analysis also
support the addition of benzene to the headworks exemption, with
certain conditions. For wastewaters, non-aerated treatment scenarios
resulted in exposures above the level of concern for all components,
but aerated biological treatment scenarios resulted in unacceptable
risk levels only when the primary clarifier wastewaters were managed in
an unlined surface impoundment. For sludges, non-aerated treatment
sludges and aerated biological treatment primary sludges managed in
landfills resulted in risk levels above the level of concern, but
aerated biological treatment secondary sludges managed in landfills
were below the levels of concern. Indirect exposures to benzene from
management of sludges in land farms were not of concern, regardless of
treatment type. Benzene exceeded the risk of 10-5 for each
of the non-aerated scenarios and two components from the aerated
biological treatment system (primary clarifier wastewaters being
managed in an unlined surface impoundment and primary clarifier sludge
being managed in a monofill).
Based on the above results, the Agency is proposing to add benzene
to the headworks exemption at the level of 1 ppm with the condition of
certain management practices. Specifically, the proposed conditions are
that wastewaters containing benzene be managed in aerated biological
waste management units and that any surface impoundments used prior to
secondary clarification be lined. Aerated biological treatment
facilitates biodegradation, reducing the concentration of benzene in
the sludge. (See Risk Assessment to Support the Wastewater Treatment
Exemptions (Headworks Exemptions) Proposed Rule, U.S. EPA 2002, for
further information on assumptions used for biodegradation in aerated
biological treatment systems). Although the modeled risk for managing
primary clarifier sludge (that is generated prior to aerated biological
treatment) in a monofill exceeded 10-5, EPA does not believe
that additional conditions are needed to be protective of this
scenario, primarily because these sludges still would be considered
hazardous wastes if they exhibit the Toxicity Characteristic for
benzene of 0.5 mg/L.
The Agency seeks comment on the proposal to add benzene to the
headworks exemption at the level of 1 ppm with the conditional
management requirements, on the necessity of the contingent management
requirements, the level of biodegradation achieved through aerated
biological treatment systems, industrial solvent use levels of benzene,
and current industrial treatment systems and management practices.
b. 2-ethoxyethanol. 2-ethoxyethanol is the least toxic of the four
chemicals under consideration, and is the only non-carcinogen. Due to
concerns about workplace exposure and the availability of substitute
chemicals, use of 2-ethoxyethanol has been declining in the United
States.
As presented in Table 1 of this document, existing modeled waste
concentration limits show that the 25 ppm standard would be protective
for the direct air inhalation pathway, even without additional
treatment. In addition, the limited treatment information on 2-
ethoxyethanol available in the treatability database show that
treatment can be effective in further reducing the concentration of 2-
ethoxyethanol in wastewaters. However, groundwater screening pathway
data for 2-ethoxyethanol, also in Table 1, show protective screening
levels slightly below the 25 ppm standard (i.e., 13 ppm), indicating a
need for further analysis.
The more detailed groundwater pathway human health analysis does
support, however, the addition of 2-ethoxyethanol at 25 ppm to the
headworks exemption. Both direct and indirect analyses showed 2-
ethoxyethanol at 25 ppm in the headworks poses no significant human
health risk. (See Risk Assessment to Support the Wastewater Treatment
Exemptions (Headworks Exemptions) Proposed Rule, U.S. EPA 2002).
The Agency seeks comment on the proposal to add 2-ethoxyethanol to
the headworks exemption at 25 ppm.
c. 2-nitropropane. The Agency has very little production, release
and toxicity data on 2-nitropropane. The 1999 Toxics Release Inventory
(TRI) only listed three facilities nationwide reporting the chemical
present in wastewaters. The treatability database from NRMRL has no
aqueous technology data on 2-nitropropane. The Agency has only
inhalation toxicity information to use for risk modeling purposes. We
believe that the available risk information is not adequate to develop
an oral benchmark for 2-nitropropane. 2-Nitropropane failed to pass the
Phase I air risk screen by a factor of 25 (in contrast to the other
three solvents passing, as indicated in Table 1). Because of the large
margin of failure for 2-nitropropane, we considered it unlikely that 2-
nitropropane would pass a more robust Phase II type of analysis. Based
on the large margin of failure in the Phase I screen and the extremely
low reported
[[Page 17241]]
usage that the Agency found for 2-nitropropane, we determined that
continued analysis of 2-nitropropane was not likely to affect the
regulatory status of these wastes significantly.
Accordingly, the Agency is not proposing any action at this time on
2-nitropropane under 40 CFR 261.3(a)(2)(iv)(A) or (B). The Agency seeks
comment on the availability of toxicity information on 2-nitropropane
and the current level of use as a solvent.
d. 1,1,2-trichloroethane. According to the Agency's listing
background document of 1985 \4\, most 1,1,2-trichloroethane (1,1,2-TCA)
was used as a vinylidene chloride feedstock. The rest had some solvent
use, such as a solvent for waxes, resins, fats, rubbers, and coating
cleaner.
---------------------------------------------------------------------------
\4\ `Listing Background document for Four Spent Solvents and
Still Bottoms From Recovery of These Solvents, USEPA, January 22,
1985, Docekt No. F-85-LSSP-FFFFF, document no. F005.''
---------------------------------------------------------------------------
As presented in Table 1 of this notice, existing modeled waste
concentration limits show that the 1 ppm standard would be protective
for the direct air inhalation pathway. However, the groundwater modeled
level of 0.0028 mg/L indicates potential risk at the 1 ppm standard
from the groundwater pathway, and data from the NRMRL treatability
database do not appear to demonstrate a significant reduction in
chemical concentration of 1,1,2-TCA during treatment, especially when
the input level approaches 1 ppm.
Data from the more detailed groundwater pathway human health
analysis also do not support the addition of 1,1,2-TCA at 1 ppm to the
headworks exemption. While 1,1,2-TCA was found to be below the level of
concern for indirect exposures, wastewater concentrations resulted in
risks greater than 10-5 for sludges and wastewaters from both aerated
biological treatment and non-aerated treatment units (both for
groundwater ingestion and inhalation of shower vapors). In addition,
1,1,2-TCA undergoes transformation to 1,1-dichloroethylene (1,1-DCE)
due to hydrolysis while being transported in the subsurface
environments. The parent compound, 1,1,2-TCA, and the transformation
product, 1,1-DCE, have similar fate characteristics. The transformation
product is more toxic than the parent compound by approximately an
order of magnitude. However, the modeling results are based on the
parent compound only. Therefore, risk from 1,1,2-TCA will likely be
even greater than shown in the headworks exemption risk background
document (US EPA, 2002).
Due to the indication that significant risks occurred in the
majority of waste management scenarios as modeled, the Agency is not
proposing any action on 1,1,2-TCA at this time under Sec.
261.3(a)(2)(iv)(A). The Agency seeks comment on the results of this
risk analysis and current solvent use.
B. Revising Headworks Compliance Monitoring Method
The Agency is proposing to expand the ways in which compliance with
the headworks rule may be determined by adding the option of directly
measuring solvent chemical levels at the headworks of the wastewater
treatment system. This change would affect 40 CFR 261.3(a)(2)(iv)(A),
(B), (F), and (G). Under the current solvent exemptions, a facility
must use a ``mass balance'' approach to calculate the theoretical
headworks concentration (via solvent usage) to be in compliance with
the rule. That is, a facility must look at inventory records of the
amount of solvent purchased weekly and divide that amount by the
average weekly flow of wastewater through the headworks of the
wastewater treatment system. The amount known not to go into the
wastewater treatment system (e.g., lost to product, removed as still
bottoms) may be subtracted from the calculation. However, the amount
volatilized may not be subtracted to ensure that the solvent wastes
were properly treated and to minimize losses of these chemicals through
volatilization.
The Agency received a request from ACC to allow another compliance
methodology. Under this method, facilities would be allowed to perform
a direct measurement of the concentration of solvent chemicals in the
wastewater treatment system. According to ACC, use of direct
measurement is more accurate than calculating a mass balance over the
system. In addition, they point out that with the advent of MACT
standards and NSPS requirements under the Clean Air Act and its
amendments over the 21 years since the headworks rule was first
promulgated, these standards should prevent the intentional
volatilization about which the Agency was initially concerned.
When the original headworks rule was promulgated, the Agency was
concerned that the exemption might encourage facilities to volatilize
solvents before a defined measurement point, thus allowing facilities
to claim compliance with the exemption, but in reality transferring the
waste management problem to another medium. As a result, the Agency
structured the exemption to require facilities to use the ``mass
balance'' approach to calculate whether or not they met the
concentration thresholds set forth in the rule. As noted earlier,
facilities are allowed to subtract the amount of solvents known not to
go into the wastewater treatment system (e.g., from losses to product,
still bottoms, etc.), but not losses due to volatilization (See 46 FR
56585, footnote 24, November 17, 1981). Use of the mass balance
approach did not require facilities to define a specific point to
measure levels of solvents entering the wastewater treatment system.
Since the 1981 rule was published, the Agency has promulgated
numerous air emissions regulations for new and existing sources under
the Clean Air Act (e.g., MACT and NSPS programs). The background
document to today's proposal Proposed Rule to Expand the RCRA
Wastewater Treatment Exemptions for Hazardous Waste Mixtures (Headworks
Exemption) in 40 CFR 261.3(a)(2)(iv) Technical Background Document)
lists the industries affected by these Clean Air Act programs. Because
of the coverage of these regulations, the Agency believes that concerns
about volatilization have been addressed, and that allowing facilities
a greater choice of compliance methodologies is appropriate.
Use of this method also means that the measured level(s) of the
chemical(s) at the headworks may not exceed the total regulatory level,
regardless of its (or their) origin in the process, as long as some of
it (or them) has been used as a ``solvent.'' Therefore, direct
measurement could overstate the amount of solvent(s) if the chemical(s)
were used at the facility in other applications (e.g., impurity in
other feedstocks, product component, reaction byproduct, etc.)
Facilities that wish to take advantage of the direct monitoring
approach must report the entire concentration of the chemical in
question if any of it was used as a solvent.
The Agency is proposing to give facilities a choice of using direct
measurement or mass balance to determine compliance with the headworks
rule. Facilities that choose to use direct monitoring must be subject
to Clean Air Act regulations that minimize fugitive process or
wastewater emissions (e.g., MACT standards under 40 CFR part 61 or 63
or NSPS requirements under 40 CFR part 60). We are not proposing any
changes to, nor are we seeking comment on the regulatory standard set
in the 1981 rule, that a facility may not exceed the total solvent
level set forth in Sec. 261.3(a)(2)(iv)(A) or (B) in order to comply
with the rule. The Agency will
[[Page 17242]]
not respond to comments addressing this standard.
One of the main implementation issues in utilizing the direct
monitoring method of compliance is understanding the point in the
process at which a facility determines whether it meets the limits in
Sec. 261.3(a)(2)(iv)(A) or (B). In response to this issue, the Agency
is setting an informal definition of ``headworks'' so facilities and
implementing agencies can understand how the monitoring point is
described. The guidance the Agency is providing is intended to mirror
the language in the 1981 preamble; namely, that the headworks is the
location at which final combination of raw process wastewater streams
typically takes place (46 FR 56582, November 17, 1981).
The Agency is not proposing to set a regulatory definition of the
term headworks. Instead, the Agency prefers to describe the term for
both maximum flexibility and understanding. For the purposes of this
rule, headworks can include a central catch basin for industrial
wastewaters, a pump station outfall, equalization tank, or some other
main wastewater collection area that exists in which transport of
process wastewaters stops and chemical or biological treatment begins.
The Agency seeks comment as to whether the description for
headworks given above is adequate, or if a more detailed description is
needed. Commenters may wish to provide examples to illustrate working
definitions of headworks or where confusion about a headworks
definition might exist.
The Agency proposes that facilities that want to take advantage of
using direct monitoring develop a site-specific sampling and analysis
plan that demonstrates compliance with the weekly average standards set
for the appropriate solvent(s). The sampling and analysis plan must
include the monitoring point location (headworks), the sampling
frequency and methodology, and a list of appropriate constituents to be
monitored. In addition, facilities would be required to file a copy of
the sampling and analysis plan with the Regional Administrator or State
Director, as the context requires, or an authorized representative
(i.e., the ``Director,'' as defined in 40 CFR 270.2), and would need to
confirm that such sampling and analysis plan had been received prior to
the commencement of direct monitoring at the facility. Examples of
confirmation include certified mail return receipt, or written
confirmation of delivery from a commercial delivery service. Upon
confirmation that the sampling and analysis plan has been delivered
successfully to the overseeing agency, the facility would be allowed to
commence direct monitoring to demonstrate compliance. The filing of the
sampling plan would suffice for initial notification. EPA does not
propose to require any other formal notification to the regulator,
unless a change in the facility's operations mandates a change in
monitoring. Confirmation that the overseeing agency has received the
sampling and analysis plan would not imply, however, that the package
has been reviewed or approved. EPA does not propose to require that the
overseeing agency issue a formal approval of the sampling and analysis
plan. However, the Director may reject the sampling and analysis plan
if he/she finds that (1) the sampling and analysis plan fails to
include the above information, or (2) the plan parameters would not
enable the facility to calculate the weekly average concentration of
these chemicals accurately. If the sampling and analysis plan is
rejected or if the Director finds that the facility is not following
the sampling and analysis plan, the facility must no longer use the
direct monitoring option until such time as the bases for rejection are
corrected.
The Agency seeks comments from the public as to the benefits of the
changes and if they are sufficiently protective of the environment. The
Agency would like comments as to whether the best approach is (1) to
leave the current system ``as is,'' or (2) to give facilities a choice
of mass balance or direct monitoring techniques. The Agency also seeks
comment as to whether the overseeing agency should either approve a
sampling and analysis plan, or require facilities to wait a certain
period of time (if the state or EPA has not responded) before embarking
on a direct monitoring program, and how a facility suspected of
violating the exemption limits may be made to demonstrate compliance
with the weekly standard.
Under the existing headworks exemption rule (46 FR 56585, November
17, 1981), facilities must be prepared to demonstrate (for the purposes
of an inspection or audit) that they meet the mass balance criteria of
the rule. Facilities opting to use direct monitoring could comply with
this requirement by keeping monitoring records on site to show an
inspector that the new criteria are being met. Under 40 CFR
268.7(a)(7), a facility is required to place a one-time notice
concerning waste generation, subsequent exclusion from the definition
of hazardous waste or solid waste or exemption from RCRA Subtitle C
regulation, and the disposition of the waste, in the facility's on-site
files. Generally, such notification, as well as certifications, waste
analysis data, and other documentation must be kept for a period of
three years unless an enforcement action by the Agency extends the
record retention period (Sec. 268.7(a)(8)). EPA has estimated the
burden associated with the proposed reporting requirements when a
facility chooses the direct monitoring option. Those estimates are
presented in section IV.D of today's proposal.
The Agency is soliciting comment on how to minimize overlapping
reporting requirements. Under EPA's Water program, (e.g, 40 CFR 122.48
and 403.12), facilities may be required under their permits to monitor
these same constituents at the point of discharge (i.e., effluent
monitoring). The Agency recognizes that current requirements under the
Clean Water Act do not require monitoring of the wastewater treatment
system influent (or headworks). However, EPA notes some facilities may
collect and may report such information. EPA seeks comment on whether
or not facilities are currently performing influent monitoring for
other media programs. If so, the Agency solicits comments on the
frequency of the influent monitoring and reporting and if this
information can be used to determine compliance with the headworks
rule.
The Agency also seeks comment on the proposed use of other
environmental regulatory program requirements to integrate the
information needed for this exemption. Specifically, the Agency is
interested in how much of the information is contained in air or water
permit monitoring/reporting requirements, how easy modifying another
regulatory program's requirements to contain these data would be, and
what steps facilities are taking to conduct this kind of monitoring
already.
C. Exempting Scrubber Water Derived From Solvent Combustion
The issue of whether to exempt incinerator scrubber water first was
raised by commenters to the 1999 HWIR proposal. Under the current
headworks rule, the exemptions under 40 CFR 261.3(a)(2)(iv)(A) and (B)
are from ``normal losses'' from manufacturing operations and not from
wastes that are already separated from the wastewaters or that had been
removed from the process previously. Many spent solvents are sent to
hazardous waste combustors. The combustors have scrubbers, used for air
pollution control, and these
[[Page 17243]]
scrubbers usually generate an aqueous stream that is easily treatable
in the wastewater treatment system. The scrubber waters, however, are
considered ``derived from'' residuals of the spent solvents, and since
they are not incidental losses to the wastewater treatment system, they
are not currently eligible for the headworks exemptions.
In the carbamates final rule (60 FR 7824-7859, February 9, 1995),
the Agency decided that scrubber waters from the incineration of
carbamate production wastes are eligible for the headworks exemptions
that were promulgated under that listing determination. The
justification for this decision was that these scrubber waters would be
comparable in expected constituents and concentration levels with the
already-exempted carbamate wastewaters.
Based on the rationale in the carbamates rule, the Agency is
proposing that scrubber waters derived from the combustion of spent
solvents and sent to a facility's wastewater treatment system qualify
for the exemption under 40 CFR 261.3(a)(2)(iv)(A) and (B). Similar to
the carbamates decision, we believe that the scrubber waters derived
from combustion of spent solvent wastes will be comparable in expected
constituents with spent solvent wastewaters. In addition, the solvent
constituents receive at least 99.99% destruction and removal during
incineration, the incinerator scrubber water is typically a small
percentage of the flow into a wastewater treatment system, and the
wastewater treatment system further reduces remaining constituent
concentrations. The Agency requests comment on this proposed revision.
D. Exempting Leachate Derived From Solvent Wastes
Another suggested revision to the headworks rule is to exempt
leachate from landfills that accepted only F001-F005 spent solvent
wastes. Under current rules, leachate resulting from the disposal of
more than one listed waste under 40 CFR part 261, subpart D is
classified as EPA Hazardous Waste Number F039. Since no exemption
currently exists under the headworks rule for F039 liquids, these
leachates (even if derived solely from spent solvents) cannot be
inserted into a facility's wastewater treatment system and receive an
exemption from the mixture rule.
BRS data from 1997 show the presence of 12 hazardous waste
landfills that accept only F001-F005 spent solvent hazardous wastes and
no other listed wastes. These landfills are both on-site at
manufacturing facilities and commercial hazardous waste landfills. In
addition, three other landfills list characteristic waste codes,
commercial chemical products, and lab packs with the spent solvent
wastes. The waste codes in question may be associated with the solvents
themselves. For example, D001 wastes are ignitable, and may be from the
same solvents. The U226 waste code corresponds to 1,1,1-trichloroethane
as a commercial chemical product. The chemical, when used as a solvent
and subsequently spent, would carry an F001 or F002 waste code.
The Agency does not have sufficient data concerning the variability
of these leachates to propose adding them to the exemption at this
time. The Agency seeks comment as to whether such an exemption would be
advisable, the relative volumes of leachate to other wastewaters going
for treatment, and the relative concentrations of other contaminants in
leachate versus those present in the other wastewaters at these
facilities. The Agency also seeks comment as to whether landfills that
accept characteristic wastes, lab packs, or commercial chemical
products that correspond to the chemicals that are also listed spent
solvents should be eligible to have leachate sent to a facility
wastewater treatment system and be exempted.
At this point, the Agency is not proposing an exemption for
solvent-only leachate. Therefore, in the final rule to today's
proposal, the Agency does not expect to include any regulatory language
exempting any of these leachates. Rather, the Agency is considering the
leachate exemption discussion being advanced in today's proposal as an
Advanced Notice of Proposed Rulemaking (ANPRM).
E. Exempting Other Types of Leachate
The ACC also has requested that the Agency consider establishing an
exemption to allow facilities with unlined surface impoundments
attached to wastewater treatment systems to accept hazardous waste
landfill leachate into the wastewater treatment system without the need
for the unlined surface impoundment to obtain a hazardous waste
treatment, storage, and disposal permit.
At this time, EPA still is considering the suggested regulatory
exemption for leachate derived-from landfilled hazardous waste as well
as other specific exemption options, but we first need to evaluate
several important issues. Most hazardous waste leachate is regulated
under a separate waste code, F039. To date, we have received no
information that would cause us to reconsider that listing, although we
would welcome any data that might be helpful in such a re-evaluation.
However, in the most recent EPA study of landfill leachate
characteristics (65 FR 3007, January 19, 2000), we found considerable
differences between the leachate samples from hazardous and non-
hazardous landfills in both numbers of constituents of concern and
their concentrations. Specifically, hazardous waste landfill leachate
contained a greater number of constituents than non-hazardous waste
landfill leachate, and the constituents found in both hazardous and
non-hazardous waste landfill leachate generally were present in
hazardous waste landfill leachate at concentrations an order of
magnitude higher than those found in non-hazardous waste landfill
leachate \5\. These pollutants can include many organic hazardous
constituents not covered by the Toxicity Characteristic. Absent a risk
assessment, it is not possible to determine whether the levels of these
constituents pose unacceptable risk. However, the presence of these
constituents is a strong indication that more study would be needed
before developing an exemption for hazardous waste leachate.
---------------------------------------------------------------------------
\5\ Development Document for Final Effluent Limitations
Guidelines and Standards for the Landfills Point Source Category,
EPA-821-R-99-019, U.S. EPA, January 2000.
---------------------------------------------------------------------------
One option would be to limit a possible future exemption to
leachates from captive, on-site hazardous waste landfills. The Agency
would be inclined to propose this limitation because landfills that
accept off-site wastes will likely have a different constituent mix
from those constituents in the facility wastewater treatment system.
The Agency again seeks comment as to whether such an exemption would be
advisable, the relative volumes of leachate to other wastewaters going
for treatment, and the relative concentrations of other contaminants in
leachate versus those present in the other wastewaters at these
facilities.
At this point, the Agency is not proposing an exemption for non-
solvent leachate. Therefore, the Agency does not expect to include any
regulatory language in the final rule to this proposal without first
seeking comment on a more fully-developed proposal.
F. Expanding the De Minimis Exemption
The current mixture rule exemption under 40 CFR 261.3(a)(2)(iv)(D)
is a provision to remove from regulation small amounts of commercial
chemical products (P- and U-listed wastes under
[[Page 17244]]
40 CFR 261.33) lost to a wastewater treatment system from manufacturing
operations. Small amounts of Sec. 261.33 materials which are being
produced by, or used as raw product in, a manufacturing process are
often unavoidably lost in normal material handling operations. For
example, small amounts of raw material are lost in various unloading or
material transfer operations (e.g., small drippage when transfer hose
lines are disconnected, and fugitive dust when certain materials are
emptied from bags or transferred from bins). Additionally, small
amounts of manufactured products or intermediates are lost in material
handling, or storage activities (e.g., losses from packing of pumps
used to transfer product, unanticipated spills, relief valve
discharges, rinsates from drained or otherwise emptied containers, and
purgings associated with pressure relief or sample collection). 46 FR
56582 at 56586 (November 17, 1981).
Thus, the de minimis exemption is intended to apply to minor,
inadvertent releases of waste to a wastewater treatment system as a
result of normal operations at a well-maintained facility. The de
minimis exemption currently does not apply to the discarding of these
materials during abnormal manufacturing operations (e.g., operation
malfunctions resulting in substantial spills), or the discarding of
these materials where they are not being used as raw materials or are
not being manufactured as intermediates or final products. Id.
The Agency is proposing to broaden the scope of the de minimis
exemption in two ways. First, we propose to expand the eligibility for
the exemption beyond manufacturing operations. Second, we propose to
expand the types of waste that are eligible for the exemption. This
revised de minimis exemption only applies to those wastes not
specifically addressed under some other provision of the headworks
rule.
The original headworks exemption applies only to manufacturing
operations; such facilities are likely to have wastewater treatment
systems with Clean Water Act (CWA) permits that provide a means to
assess and limit discharges of the specific chemicals manufactured
there. However, the Agency realizes that many raw material storage
terminals, hazardous waste facilities, etc. also may have effective
wastewater treatment systems that prevent the release of small amounts
of spilled wastes from posing a threat to human health or the
environment. The Agency also realizes that under the CWA, many of these
facilities have NPDES permits or permits under local CWA pretreatment
programs that limit discharges and require monitoring for specific
constituents (40 CFR part 122, 40 CFR part 403). Limitations on
discharges of specific constituents implement CWA requirements to
ensure that direct dischargers achieve effluent limitations based on
best available technology and that indirect dischargers to POTWs comply
with pretreatment standards. These limitations and standards act as
another protective mechanism to prevent releases of toxic constituents
from a facility's wastewater discharges and are an important
consideration in the decision to propose this expansion of the de
minimis exemption.
The Agency is therefore proposing that the de minimis eligibility
be expanded to non-manufacturing sites that either (1) have a permit
subject to the CWA that contains limits for (a) the constituents for
which each waste was listed (in 40 CFR part 261, appendix VII) and (b)
the constituents in the table ``Treatment Standards for Hazardous
Wastes'' in 40 CFR 268.40 for which each waste has a treatment standard
(i.e., Land Disposal Restriction constituents), or (2) have eliminated
the discharge of wastewaters altogether. By conditioning the expanded
exemption on having a CWA permit that addresses the specific chemicals
associated with the listed waste, EPA will help ensure that the
wastewater treatment systems at non-manufacturing facilities will
effectively treat such chemicals. However, this proposed condition
would also mean that some raw material storage terminals or other non-
manufacturing facilities that do not meet this condition would not be
eligible to claim the de minimis exemption. This is because, while some
non-manufacturing facilities' discharges are covered by general permits
(e.g., storm water discharge permits), they do not specifically address
hazardous constituents likely to be present in the listed waste. (In
contrast, the manufacturing facilities that are eligible for the
current exemption are likely to have wastewater treatment systems with
CWA permits that provide a means to assess and limit discharges of the
specific chemicals.)
The Agency also is proposing to expand the de minimis exemption to
wastes other than listed commercial chemical products for sites that
either (1) have a permit subject to the CWA that contains limits for
(a) the constituents for which each waste was listed (in 40 CFR part
261, appendix VII) and (b) the constituents in the table ``Treatment
Standards for Hazardous Wastes'' in 40 CFR 268.40 for which each waste
has a treatment standard (i.e., Land Disposal Restriction
constituents), or (2) have eliminated the discharge of wastewaters
altogether.
The original headworks exemption only applies to commercial
chemical products; CWA permitting requirements at manufacturing
facilities generally provide a means to assess and limit discharges of
these products, which because of their intrinsic value are not likely
to be discharged in large volumes. In its correspondence with the
Agency, ACC requested that this portion of the headworks rule be
expanded to include de minimis amounts of industrial wastes listed in
40 CFR 261.31 and 261.32 (F- and K-listed wastes). De minimis releases
of these F- and K-listed wastes, similar to those from P- and U-listed
wastes, arise from losses during materials handling operations in which
these wastes are being generated or being segregated for treatment and
disposal. ACC's position is that facility wastewater treatment systems
are capable of handling small amounts of F-or K-wastes spilled to the
system.
The Agency agrees that very small releases of industrial waste to a
facility's wastewater treatment system are not likely to have a
significant effect upon that system, the quality of facility effluent
discharges, solid wastes generated, occupational safety and health, and
human health and the environment. Moreover, the Agency believes that
the constituent-specific CWA permitting requirements under section 402
or under section 307(b) local pretreatment program for eligible
facilities provides assurance that releases of these wastes to a
facility's wastewater treatment system will be kept to a minimum. CWA
permitting requirements at manufacturing facilities generally provide a
means to assess and limit discharges of commercial chemical products,
but may not specifically address constituents in F- and K-listed
wastes. Therefore, to ensure that release of de minimis levels of these
constituents will not put human health and the environment at risk, and
to provide facilities an incentive to minimize the loss of F- and K-
listed wastes, the Agency is proposing that facilities which discharge
wastewaters have CWA permits that limit appendix VII and Land Disposal
Restriction constituents associated with the specific wastes.
The Agency further notes that the headworks exemption does not
negate the applicability of the Toxicity Characteristic (TC) (40 CFR
261.24) to the wastewater treatment sludge. Therefore, facilities have
an additional
[[Page 17245]]
incentive to reduce loadings of certain toxic constituents into the
wastewater treatment system to prevent the sludge from exhibiting the
TC.
The Agency considers hazardous substance release reporting under
section 103(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA), 42 U.S.C. 9603 as an
additional regulatory backstop to both of the proposed expansions to
the headworks exemption. A release of a hazardous substance in a
quantity equal to or greater than the Reportable Quantity (RQs)
established for that hazardous substance triggers a requirement to
notify the National Response Center of that release. See CERCLA section
103 (42 U.S.C. 9603(a)). Congress established an initial RQ for all
hazardous substances of one pound (unless a higher RQ already had been
established under CWA section 311(b)(4)) until EPA establishes an RQ
for the substance by regulation. CERCLA section 102(b) (42 U.S.C.
9602(b)).
In setting RQ's, EPA takes into account the potential hazards posed
by the chemicals of concern. The methodology for setting RQs is
discussed in the May 25, 1983, Federal Register (48 FR 23552). RQs for
hazardous substances are found in 40 CFR 302.4.
Similar to the CWA permits, the RQ acts as a protective mechanism
discouraging releases of hazardous wastes to the environment by
requiring facilities to report chemical releases above a certain
threshold. In general, facilities must report releases of hazardous
substances immediately to the National Response Center and State or
Local Emergency Planning Center, depending on the type of release.
While this reporting does not prevent releases, it requires facilities
to be accountable for excess releases of hazardous substances when they
occur. Because all hazardous wastes also are listed as hazardous
substances, discharge of hazardous wastes in a facility's wastewater
treatment system that cause a release to the environment above
reporting thresholds must be reported to the appropriate authorities.
While excess releases of hazardous wastes, such as in an upset or pass-
through situation, do not qualify for the de minimis exemption, the RQ
program, by its reporting requirements, provides an additional tool for
minimizing hazardous waste discharges through a wastewater treatment
system.
It is important to note that the Agency is not increasing the
amount of waste that can be described as a de minimis release in this
proposal. Moreover, these proposed expansions to the types of waste and
facilities eligible for the de minimis exemption should not be
construed as reducing the scope or application of any hazardous waste
listing under 40 CFR 261.31 and 261.32. For example, the F006 listing
covers wastewater treatment sludges from electroplating operations. For
facilities that normally generate F006 wastes, a release of
electroplating wastewaters to the treatment system would still result
in the generation of F006 wastes. A facility could not use the de
minimis exemption to claim that it is not generating F006 listed
hazardous wastes. Finally, as stated previously, this revised de
minimis exemption only applies to those wastes not specifically
addressed under some other provision of the headworks rule.
As with any exemption from the definition of solid or hazardous
waste under Sec. Sec. 261.2-261.6 (including this de minimis
exemption), 40 CFR 268.7(a)(7) requires a facility to place a one-time
notice concerning waste generation, subsequent exclusion from the
definition of hazardous waste or solid waste or exemption from RCRA
Subtitle C regulation, and the disposition of the waste, in the
facility's on-site files. Generally, such notification, as well as
certifications, waste analysis data, and other documentation must be
kept for a period of three years unless an enforcement action by the
Agency extends the record retention period (Sec. 268.7(a)(8)).
In light of the limiting conditions and protective regulatory
mechanisms we have discussed above, the Agency is proposing to expand
the de minimis exemption (1) to non-manufacturing facilities, and (2)
to wastes listed in 40 CFR 261.31 and 261.32 (F- and K-listed wastes)
released in de minimis quantities when they meet certain conditions.
Specifically, facilities discharging wastewaters (whether manufacturing
or non-manufacturing) that are attempting to qualify for this expanded
eligibility must have CWA permits under sections 307(b) or 402 that
contain limits for the specific chemicals for which each waste was
listed (in 40 CFR part 261, appendix VII) as well as hazardous
constituents in 40 CFR 268.40 for which each listed waste has a
treatment standard under Land Disposal Restrictions or must have
eliminated the discharge of wastewaters altogether. The two proposed
expansions will be considered independently; the Agency seeks comment
as to the adequacy of the limiting conditions in ensuring protection of
human health and the environment, the prevalence of facilities meeting
the conditions (e.g., having CWA permits that limit the constituents
associated with the listed waste), and on the advisability of expanding
each part of the exemption.
G. State Authority
Under section 3006 of RCRA, EPA may authorize a qualified State to
administer and enforce a hazardous waste program within the State in
lieu of the federal program, and to issue and enforce permits in the
State. Following authorization, the state requirements authorized by
EPA apply in lieu of equivalent Federal requirements and become
Federally-enforceable as requirements of RCRA. EPA maintains
independent authority to bring enforcement actions under RCRA sections
3007, 3008, 3013, and 7003. Authorized states also have independent
authority to bring enforcement actions under state law.
A state may receive authorization by following the approval process
described in 40 CFR part 271. Part 271 of 40 CFR also describes the
overall standards and requirements for authorization. After a state
receives initial authorization, new Federal regulatory requirements
promulgated under the authority in the RCRA statute which existed prior
to the 1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in
that state until the state adopts and receives authorization for
equivalent state requirements. The state must adopt such requirements
to maintain authorization. In contrast, under RCRA section 3006(g), (42
U.S.C. 6926(g)), new Federal requirements and prohibitions imposed
pursuant to HSWA provisions take effect in authorized states at the
same time that they take effect in unauthorized States. Although
authorized states still are required to update their hazardous waste
programs to remain equivalent to the Federal program, EPA carries out
HSWA requirements and prohibitions in authorized states, including the
issuance of new permits implementing those requirements, until EPA
authorizes the state to do so. Authorized states are required to modify
their programs only when EPA promulgates Federal requirements that are
more stringent or broader in scope than existing Federal requirements.
RCRA section 3009 allows the states to impose standards more
stringent than those in the Federal program. See also 40 CFR 271.1(i).
Therefore, authorized states are not required to adopt Federal
regulations, either HSWA or non-HSWA, that are considered less
stringent.
[[Page 17246]]
Today's rule is proposed pursuant to non-HSWA authority. The
proposed changes in the conditional exemptions from the definition of
hazardous waste under the headworks rule are less stringent than the
current Federal requirements. Therefore, States will not be required to
adopt and seek authorization for the proposed changes. EPA will
implement the changes to the exemptions only in those States which are
not authorized for the RCRA program. Nevertheless, EPA believes that
this proposed rulemaking has considerable merit, and we thus strongly
encourage States to amend their programs and become Federally-
authorized to implement these rules once they become final.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735), the Agency must
determine whether this regulatory action is ``significant'' and
therefore subject to formal review by the Office of Management and
Budget (OMB) and to the requirements of the Executive Order, which
include assessing the costs and benefits anticipated as a result of the
proposed regulatory action. The Order defines ``significant regulatory
action'' as one that is likely to result in a rule that may: (1) Have
an annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or state, local, or tribal governments or communities; (2)
create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) raise novel legal
or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, the Agency has
determined that today's proposed rule is a significant regulatory
action because this proposed rule contains novel policy issues. As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations are documented in the
docket to today's proposal. EPA's economic analysis suggests that this
rule is not economically significant under Executive Order 12866,
because EPA estimates that the overall national economic effect of the
rule is $11.4 million to $48.6 million in average annual potential cost
savings for RCRA regulatory compliance. The following table presents an
itemization of EPA's estimated count of affected facilities, affected
annual RCRA waste quantities, and estimated annual cost savings for
each of the five main features of this proposed rule.
Summary of Estimated Potential National Economic Impact From the Proposed Revisions to the ``Headworks
Exemption'' of the RCRA Hazardous Waste Mixture Rule (40 CFR 261.3(a)(2)(iv) (A) to (E))
----------------------------------------------------------------------------------------------------------------
Count of
potentially Annual quantity
Proposed regulatory affected of potentially Estimate of average
Item revision to entities affected annual economic
``Headworks (eligible (eligible) RCRA impact * ($/year)
Exemption'' industrial hazardous waste
facilities) (tons/year)
----------------------------------------------------------------------------------------------------------------
1............................. Add two F005 spent 115 to 1,800.... 0.036 to 0.594 $0.32 to $5.65
solvents (benzene & million tons/ million/year in
2-ethoxyethanol) to year spent spent solvent waste
the ``headworks solvent management cost
exemption'' for the (aqueous & non- savings (netting-out
RCRA hazardous waste aqueous & non- implementation
mixture rule * *. aqueous forms). paperwork costs).
2............................. Provide ``headworks 3 to 9.......... 0.20 to 0.61 $0.53 to $1.58
exemption'' for F001 million tons/ million/year in
to F005 spent year scrubber scrubber wastewater
solvent hazardous wastewater. management cost
waste combustion savings.
``scrubber waters''.
3............................. Allow ``direct 1,800 to 7,300.. 1.13 to 4.58 $10.09 to $40.88
monitoring'' of F001 million tons/ million/year in
to F005 spent year spent spent solvent waste
solvent waste solvent wastes management cost
concentrations in (aqueous & non- savings.
headworks influent aqueous forms).
wastewaters, in lieu
of ``mass balance''
computations.
4............................. Revise RCRA hazardous 70.............. 30 tons/year $0.03 million/year in
waste ``de minimis'' spill incidents. spill response cost
exemption to include savings.
RCRA F- & K-listed
wastes.
5............................. Revise RCRA hazardous 1,270........... 570 tons/year 0.48 million/year in
waste ``de minimis'' spill incidents. spill response cost
exemption to include savings.
non-manufacting
facilities.
-------------------
Column totals........ 3,300 to 10,400. 1.37 to 5.78 $11.4 to 48.6 million/
million tons/ year cost savings.
year.
----------------------------------------------------------------------------------------------------------------
* Economic impact based on year 2000 price levels for waste management systems.
** Hypothetical expansion of the RCRA ``headworks exemption'' to include all four chemical solvents examined in
the proposed rule, would only result in addition of one wastestream, at an additional annual cost savings of
about $19,000 (consisting of 17,000 tons/year aqueous spent solvent).
A detailed presentation of EPA's methodology, data sources, and
computations applied for estimating the number of affected entities
(industrial facilities) and economic impacts attributable to today's
proposal is provided in the ``Economic Background Document'' to this
proposal.
B. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1189.12). A copy of this ICR may be obtained from Susan Auby
by mail at Collection Strategies Division;
[[Page 17247]]
U.S. Environmental Protection Agency (2822), 1200 Pennsylvania Avenue,
NW., Washington DC 20460, or by calling (202) 566-1672, and by e-mail
at [email protected]. A copy also may be downloaded off the
Internet at http://www.epa.gov/icr.
EPA proposes the following conditions for reporting and
recordkeeping by generators: The rule requires generators wanting to
demonstrate compliance with the headworks rule through direct
monitoring to submit a one-time copy of their sampling plan to the EPA
Regional Administrator (or the state Director in an authorized state)
and to maintain all records concerning such direct monitoring for a
minimum of three years. The sampling plan requirements for the direct
monitoring will be site specific. As with all other exemptions and
exclusions from the definition of hazardous waste, a facility is
required under 40 CFR 268.7(a)(7) to place a one-time notice concerning
waste generation, subsequent exclusion from the definition of hazardous
waste or solid waste or exemption from RCRA Subtitle C regulation, and
the disposition of the waste, in the facility's on-site files.
Generally, such notification, as well as certifications, waste analysis
data, and other documentation must be kept for a period of three years,
unless an enforcement action by the Agency extends the record retention
period (Sec. 268.7(a)(8)).
EPA estimates that the total annual respondent burden for the new
paperwork requirements in the rule is approximately 16,564 hours per
year and the annual respondent cost for the new paperwork requirements
in the rule is approximately $15 million. However, in addition to the
new paperwork requirements in the rule, EPA also estimated the burden
and cost that generators could expect as a result of complying with the
existing RCRA hazardous waste information collection requirements for
the excluded materials. Because the addition of benzene and 2-
ethoxyethanol would increase the number of facilities that participate
in the existing headworks exemptions (and the greater possibility of
using directly monitoring), EPA expects there would be both a reduction
in some paperwork requirements (i.e., preparation of hazardous waste
manifests and Biennial Reports) and an increase in other paperwork
requirements (i.e., demonstrating compliance by using mass balance and
submitting a one-time LDR notification under 40 CFR 268.7(a)(7)).
Taking both proposed and existing RCRA requirements into account, EPA
expects the proposed expansions would result in a bottom line total
annual aggregate burden of approximately 19,315 hours and $15.1
million. This cost is expected to be offset by costs savings from
reduced waste management costs (see section IV.B) with a net cost
savings of $11.4-48.6 million. The net cost to EPA of administering the
rule was estimated at approximately 942 hours and $39,250 per year.
Burden means the total time, effort, or financial resources expended by
persons to generate, maintain, retain, or disclose or provide
information to or for a Federal agency. This includes the time needed
to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedures Act or any
other statute, unless the agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small organizations,
and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business that has
fewer than 1000 or 100 employees per firm depending upon the SIC code
the firm primarily is classified; (2) a small governmental jurisdiction
that is a government of a city, county, town, school district or
special district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I hereby certify that this proposal will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities'' (5 U.S.C. 603
and 604). Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves regulatory burden, or otherwise has a positive
economic effect on small entities subject to the rule. For more
information regarding the economic impact of this proposed rule, please
refer to the economic background document to this proposal.
We have therefore concluded that today's proposed rule will relieve
regulatory burden for small entities. We continue to be interested in
the potential impacts of the proposed rule on small entities and
welcome comments on issues related to such impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal Agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
must prepare a written analysis, including a cost-benefit analysis, for
proposed and final rules with ``Federal mandates'' that may result in
expenditures to State, local, and tribal governments, in the aggregate,
or to the private sector, of $100 million or more in any one year.
Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA requires EPA to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
[[Page 17248]]
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials to have
meaningful and timely input in the development of regulatory proposals,
and informing, educating, and advising small governments on compliance
with the regulatory requirements.
EPA has determined that this rule does not include a Federal
mandate that may result in expenditures of $100 million or more for
State, local, or tribal governments, in the aggregate, or the private
sector in any one year. This is because this proposed rule imposes no
enforceable duty on any State, local, or tribal governments. EPA also
has determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments. In addition,
as discussed above, the private sector is not expected to incur costs
exceeding $100 million. Therefore, today's proposed rule is not subject
to the requirements of sections 202 and 205 of UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposal does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This rule directly affects
primarily generators of hazardous wastewaters containing spent
solvents, generators of scrubber waters derived from the incineration
of spent solvents, and generators releasing de minimis amounts of
listed wastes under certain conditions. There are no State and local
government bodies that incur direct compliance costs by this
rulemaking. State and local government implementation expenditures are
expected to be less than $500,000 in any one year. Thus, the
requirements of section 6 of the Executive Order do not apply to this
proposal.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175.
Today's rule does not significantly or uniquely affect the communities
of Indian tribal governments, nor would it impose substantial direct
compliance costs on them. Thus, Executive Order 13175 does not apply to
this rule.
G. Executive Order 13045: Protection of Children From Environmental
Risks and Safety Risks
The Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997) applies to any rule that EPA determines (1) is ``economically
significant'' as defined under Executive Order 12866, and (2) the
environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children; and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposal is not subject to the Executive Order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this proposed rule present a
disproportionate risk to children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. This proposed
rule reduces regulatory burden. It thus should not adversely affect
energy supply, distribution or use.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities, unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
proposed rule would allow facilities to demonstrate compliance using
available and applicable sampling methods sufficient to establish
compliance with the appropriate weekly standard.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Waste
treatment and disposal.
Dated: March 26, 2003.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
2. Section 261.3 is amended by revising paragraphs (a)(2)(iv)(A),
(B), (D), (F) and (G) to read as follows:
Sec. 261.3 Definition of hazardous waste.
(a) * * *
[[Page 17249]]
(2) * * *
(iv) * * *
(A) One or more of the following spent solvents listed in Sec.
261.31--benzene, carbon tetrachloride, tetrachloroethylene,
trichloroethylene--Provided, That the maximum total weekly usage of
these solvents (other than the amounts that can be demonstrated not to
be discharged to wastewater) divided by the average weekly flow of
wastewater into the headworks of the facility's wastewater treatment or
pretreatment system does not exceed 1 part per million, or the total
measured concentration of these solvents entering the wastewater
treatment system (at facilities subject to regulation under the Clean
Air Act, as amended, at 40 CFR parts 60, 61, or 63), does not exceed 1
part per million on an average weekly basis. Any facility that uses
benzene as a solvent and claims this exemption must use an aerated
biological wastewater treatment system and must use only lined surface
impoundments or tanks prior to secondary clarification in the
wastewater treatment system. Facilities that choose to measure
concentration levels must file a copy of their sampling and analysis
plan with the Regional Administrator, or State Director, as the context
requires, or an authorized representative (``Director'' as defined in
40 CFR 270.2). The sampling and analysis plan must include the
monitoring point location (headworks), the sampling frequency and
methodology, and a list of constituents to be monitored. A facility is
eligible for the direct monitoring option once they receive
confirmation that the sampling and analysis plan has been received by
the Director. The Director may reject the sampling and analysis plan if
he/she finds that, the sampling and analysis plan fails to include the
above information; or the plan parameters would not enable the facility
to calculate the weekly average concentration of these chemicals
accurately. If the sampling and analysis plan is rejected or if the
Director finds that the facility is not following the sampling and
analysis plan, the facility must no longer use the direct monitoring
option until such time as the bases for rejection are corrected; or
(B) One or more of the following spent solvents listed in Sec.
261.31--methylene chloride, 1,1,1-trichloroethane, chlorobenzene, o-
dichlorobenzene, cresols, cresylic acid, nitrobenzene, toluene, methyl
ethyl ketone, carbon disulfide, isobutanol, pyridine, spent
chlorofluorocarbon solvents, and 2-ethoxyethanol--Provided That the
maximum total weekly usage of these solvents (other than the amounts
that can be demonstrated not to be discharged to wastewater) divided by
the average weekly flow of wastewater into the headworks of the
facility's wastewater treatment or pretreatment system does not exceed
25 parts per million, OR the total measured concentration of these
solvents entering the wastewater treatment system (at facilities
subject to regulation under the Clean Air Act as amended, at 40 CFR
parts 60, 61, or 63), does not exceed 25 parts per million on an
average weekly basis. Facilities that choose to measure concentration
levels must file a copy of their sampling and analysis plan with the
Regional Administrator, or State Director, as the context requires, or
an authorized representative (``Director'' as defined in 40 CFR 270.2).
The sampling and analysis plan must include the monitoring point
location (headworks), the sampling frequency and methodology, and a
list of constituents to be monitored. A facility is eligible for the
direct monitoring option once they receive confirmation that the
sampling and analysis plan has been received by the Director. The
Director may reject the sampling and analysis plan if he/she finds
that, the sampling and analysis plan fails to include the above
information; or the plan parameters would not enable the facility to
calculate the weekly average concentration of these chemicals
accurately. If the sampling and analysis plan is rejected or if the
Director finds that the facility is not following the sampling and
analysis plan, the facility must no longer use the direct monitoring
option until such time as the bases for rejection are corrected; or
* * * * *
(D) A discarded hazardous waste, commercial chemical product, or
chemical intermediate listed in Sec. Sec. 261.31 through 261.33,
arising from de minimis losses of these materials. For purposes of this
paragraph (a)(2)(iv)(D), de minimis losses are unscheduled,
uncontrollable, insignificant, and inadvertent releases to a wastewater
treatment system, including those from normal material handling
operations (e.g., spills from the unloading or transfer of materials
from bins or other containers, leaks from pipes, valves or other
devices used to transfer materials); minor leaks of process equipment,
storage tanks or containers; leaks from well maintained pump packings
and seals; sample purgings; relief device discharges; discharges from
safety showers and rinsing and cleaning of personal safety equipment;
and rinsate from empty containers or from containers that are rendered
empty by that rinsing. Any manufacturing facility that claims an
exemption for de minimis quantities of wastes listed in Sec. Sec.
261.31 through 261.32, or any non-manufacturing facility that claims an
exemption for de minimis quantities of wastes listed in subpart D of
this part must either have eliminated the discharge of wastewaters or
have a permit subject to the Clean Water Act that contains limits for,
the constituents for which each waste was listed (in 40 CFR 261
appendix VII) of this part; and the constituents in the table
``Treatment Standards for Hazardous Wastes'' in 40 CFR 268.40 for which
each waste has a treatment standard (i.e., Land Disposal Restriction
constituents); or
* * * * *
(F) One or more of the following wastes listed in Sec. 261.32--
wastewaters from the production of carbamates and carbamoyl oximes (EPA
Hazardous Waste No. K157)--Provided that the maximum weekly usage of
formaldehyde, methyl chloride, methylene chloride, and triethylamine
(including all amounts that can not be demonstrated to be reacted in
the process, destroyed through treatment, or is recovered, i.e., what
is discharged or volatilized) divided by the average weekly flow of
process wastewater prior to any dilution into the headworks of the
facility's wastewater treatment system does not exceed a total of 5
parts per million by weight OR the total measured concentration of
these chemicals entering the wastewater treatment system (at facilities
subject to regulation under the Clean Air Act as amended, at 40 CFR
parts 60, 61, or 63), does not exceed 5 parts per million on an average
weekly basis. Facilities that choose to measure concentration levels
must file a copy of their sampling and analysis plan with the Regional
Administrator, or State Director, as the context requires, or an
authorized representative (``Director'' as defined in 40 CFR 270.2).
The sampling and analysis plan must include the monitoring point
location (headworks), the sampling frequency and methodology, and a
list of constituents to be monitored. A facility is eligible for the
direct monitoring option once they receive confirmation that the
sampling and analysis plan has been received by the Director. The
Director may reject the sampling and analysis plan if he/she finds
that, the sampling and analysis plan fails to include the above
information; or the plan parameters would not enable the facility to
calculate the weekly average concentration of these chemicals
[[Page 17250]]
accurately. If the sampling and analysis plan is rejected or if the
Director finds that the facility is not following the sampling and
analysis plan, the facility must no longer use the direct monitoring
option until such time as the bases for rejection are corrected; or
(G) Wastewaters derived from the treatment of one or more of the
following wastes listed in Sec. 261.32--organic waste (including heavy
ends, still bottoms, light ends, spent solvents, filtrates, and
decantates) from the production of carbamates and carbamoyl oximes (EPA
Hazardous Waste No. K156).--Provided, that the maximum concentration of
formaldehyde, methyl chloride, methylene chloride, and triethylamine
prior to any dilutions into the headworks of the facility's wastewater
treatment system does not exceed a total of 5 milligrams per liter OR
the total measured concentration of these chemicals entering the
wastewater treatment system (at facilities subject to regulation under
the Clean Air Act as amended, at 40 CFR parts 60, 61, or 63), does not
exceed 5 milligrams per liter on an average weekly basis. Facilities
that choose to measure concentration levels must file a copy of their
sampling and analysis plan with the Regional Administrator, or State
Director, as the context requires, or an authorized representative
(``Director'' as defined in 40 CFR 270.2). The sampling and analysis
plan must include the monitoring point location (headworks), the
sampling frequency and methodology, and a list of constituents to be
monitored. A facility is eligible for the direct monitoring option once
they receive confirmation that the sampling and analysis plan has been
received by the Director. The Director may reject the sampling and
analysis plan if he/she finds that, the sampling and analysis plan
fails to include the above information; or the plan parameters would
not enable the facility to calculate the weekly average concentration
of these chemicals accurately. If the sampling and analysis plan is
rejected or if the Director finds that the facility is not following
the sampling and analysis plan, the facility must no longer use the
direct monitoring option until such time as the bases for rejection are
corrected.
* * * * *
[FR Doc. 03-8154 Filed 4-7-03; 8:45 am]
BILLING CODE 6560-50-P