[Federal Register Volume 70, Number 191 (Tuesday, October 4, 2005)]
[Rules and Regulations]
[Pages 57769-57785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19841]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[RCRA-2002-0028; FRL-7980-1]
RIN 2050-AE84
Revision of Wastewater Treatment Exemptions for Hazardous Waste
Mixtures (``Headworks Exemptions'')
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In today's action, the Environmental Protection Agency is
finalizing the addition of benzene and 2-ethoxyethanol to the list of
solvents whose mixtures with wastewaters are exempted from the
definition of hazardous waste under the Resource Conservation and
Recovery Act. The scrubber waters derived-from the combustion of any of
the exempted solvents also are included in the exemption. In addition,
the Agency is revising the rule by adding an option to allow generators
to directly measure solvent chemical levels at the headworks of the
wastewater treatment system to determine whether the wastewater mixture
is exempt from the definition of hazardous waste. Finally, the Agency
is extending the eligibility for the de minimis exemption to other
listed hazardous wastes (beyond discarded commercial chemical products)
and to non-manufacturing facilities.
DATES: This final rule is effective on November 3, 2005
ADDRESSES: EPA has established a docket for this action under Docket ID
No. RCRA-2002-0028. All documents in the docket are listed in the
EDOCKET index at http://www.epa.gov/edocket. Although listed in the
index, some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically in
EDOCKET or in hard copy at the RCRA Docket, EPA/DC, EPA West, Room
B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading
Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone number for the Public Reading
Room is (202) 566-1744, and the telephone number for the RCRA Docket is
(202) 566-0270.
FOR FURTHER INFORMATION CONTACT: Lisa Lauer, Hazardous Waste
Identification Division, Office of Solid Waste (5304W), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
telephone number: 703-308-7418; fax number: 703-308-0514; e-mail
address: [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. The table below is not intended to be
exhaustive, but rather provides a guide for readers regarding the types
of entities likely to be affected by this action.
List of Economic Subsectors Potentially Affected by the Expansion in Scope of the RCRA Hazardous Waste ``Headworks Exemption'' for Industrial Wastewater
Treatment Systems
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Economic subsector or industry identity
Item -------------------------------------------- Description
SIC code NAICS code
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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.
[[Page 57770]]
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, 541, 561 Business services.
27............................... 80 621, 622, 623 Health services.
28............................... 87 712 Engineering & management services.
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) SIC=1987 Standard Industrial Classification system (U.S. Department of Commerce's traditional code system last updated in 1987).
(b) NAICS=1997 North American Industrial Classification System (U.S. Department of Commerce's new code system as of 1997).
(c) 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).
(d) 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. Refer to the Internet
Web site http://www.census.gov/epcd/www/naicstab.htm for additional
information and a cross-walk 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
``Economics Background Document'' in support of this rule. A total of
about 3,266 to 10,446 entities are expected to benefit from the
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 final rules found at the end of this Federal Register
announcement. If you have questions regarding the applicability of the
action to a particular entity, consult the person listed in the FOR
FURTHER INFORMATION CONTACT section.
List of Acronyms
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Acronym Meaning
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ACC....................................... American Chemistry Council.
CAA....................................... Clean Air Act.
CERCLA.................................... Comprehensive Environmental
Response, Compensation, and
Liability Act.
CFR....................................... Code of Federal Regulations.
CWA....................................... Clean Water Act
EPA....................................... Environmental Protection
Agency.
FR........................................ Federal Register.
HSWA...................................... Hazardous and Solid Waste
Amendments.
HWIR...................................... Hazardous Waste
Identification Rule.
LDR....................................... Land Disposal Restrictions.
MACT...................................... Maximum Achievable Control
Technology.
NAICS..................................... North American Industrial
Classification System.
NPDES..................................... National Pollutant Discharge
Elimination System.
NSPS...................................... New Source Performance
Standard.
NTTAA..................................... National Technology Transfer
and Advancement Act.
OMB....................................... Office of Management and
Budget.
POTW...................................... Publicly Owned Treatment
Works.
ppm....................................... parts per million.
RCRA...................................... Resource Conservation and
Recovery Act.
RFA....................................... Regulatory Flexibility Act.
SBREFA.................................... Small Business Regulatory
Enforcement Fairness Act.
SIC....................................... Standard Industrial
Classification.
[[Page 57771]]
UMRA...................................... Unfunded Mandates Reform
Act.
WAP....................................... Waste Analysis Plan.
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Outline
The information in this preamble is organized as follows:
I. Background
A. What Law Authorizes These Rules?
B. What Is the History of the Headworks Rule?
C. When Will the Final Rule Become Effective?
II. Summary of the Proposed Rule
A. Which Solvents Were Proposed To Be Added to the Headworks
Exemption?
B. What Revisions Were Proposed for the Headworks Compliance
Monitoring Method?
C. What Scrubber Waters Were Proposed To Be Exempted?
D. Exempting Leachate Derived-From Solvent Wastes
E. Exempting Other Types of Leachate
F. What Expansions to the De Minimis Exemption Were Proposed?
III. Changes From the Proposed Rule
A. Exemption for Scrubber Waters Derived-From Spent Solvent
Combustion
B. Facilities Using the De Minimis Exemption Will Not Be
Required To List Limits for Appendix VII and LDR Constituents in
Their Clean Water Act Permits
C. ``Unscheduled,'' ``Uncontrollable,'' and ``Insignificant,''
Will Not Remain in the Regulatory Text of the De Minimis Exemption
IV. Summary of Responses to Major Comments
A. Addition of Benzene and 2-Ethoxyethanol to the Headworks
Exemption
B. Addition of Direct Monitoring as a Headworks Compliance
Monitoring Method
1. General Issues
2. The Informal Headworks Definition
3. Sampling and Analysis Plan Issues
4. Allowing Performance-Based Reduction in Sampling Frequency
and Changing the Current Compliance Standard
C. The Exemption of Scrubber Waters Derived-From the
Incineration of Listed Wastes
D. Expansion of the De Minimis Exemption
1. General Issues
2. Clean Water Act Permit Requirement
3. Inclusion of ``Unscheduled,'' ``Uncontrollable,''
``Insignificant,'' and ``Inadvertent'' in the Regulatory Definition
of De Minimis
4. Removal of ``Rinsates From Empty Containers'' From the
Regulatory Definition of De Minimis
E. The Potential Exemptions of Leachates Derived-From Solvent
Wastes and Leachates Derived-From Other Types of Hazardous Wastes
V. State Authorization
A. How Will Today's Regulatory Changes Be Administered and
Enforced in the States?
VI. 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
J. Congressional Review Act
I. Background
A. What Law Authorizes These Rules?
These rules are promulgated under the authority of Sections
2002(a), 3001, 3002, 3004 and 3006 of the Solid Waste Disposal Act of
1970, as amended by the Resource Conservation and Recovery Act of 1976
(RCRA), 42 U.S.C. 6912(a), 6921, 6922, 6924, 6938.
B. What Is the History of the Headworks Rule?
The current wastewater treatment exemptions (``headworks rule'')
under 40 CFR 261.3(a)(2)(iv)(A)-(G) exempt from the mixture rule spent
solvents, commercial chemical products, lab wastes, and certain
additional listed wastes which are a minuscule and treatable part of
the mix in wastewaters. The ``mixture rule'' dictates that a solid
waste becomes regulated as a hazardous waste if it is mixed with one or
more listed hazardous waste (40 CFR 261.3(a)(2)(iv)). The rationale for
these exemptions is the risk to the environment would be negligible
because wastewater treatment systems are capable of easily and
effectively handling small volumes of these organic constituents. After
the promulgation of the original headworks rule (46 FR 56582, November
17, 1981), the Agency listed four additional solvents (1,1,2-
trichloroethane, benzene, 2-nitropropane, and 2-ethoxyethanol) in the
F002 and F005 categories (51 FR 6537, February 25, 1986). However, at
the time, the Agency did not determine whether or not to add these
solvents to the headworks rule exemptions.
In August 1999, EPA received a request from the American Chemistry
Council (ACC, formerly the Chemical Manufacturers Association) to add
1,1,2-trichloroethane, benzene, 2-nitropropane, and 2-ethoxyethanol to
the headworks exemption. ACC also asked the Agency to allow direct
monitoring as an alternative method for determining compliance with the
headworks rule. Other ACC-requested headworks rule changes included
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 included a request for comment in the
November 19, 1999, proposed Hazardous Waste Identification Rule (HWIR)
(64 FR 63382) on these and other ACC-suggested exemptions to the
mixture and derived-from rules. Many of the changes in the April 8,
2003, proposed rule (68 FR 17234) 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.
C. When Will the Final Rule Become Effective?
These final regulations will become effective November 3, 2005.
II. Summary of the Proposed Rule
A. Which Solvents Were Proposed To Be Added to the Headworks Exemption?
On April 8, 2003, we proposed to add to the headworks exemption two
of the four solvents that were listed in 1986 (68 FR 17234). Benzene
was proposed to be added at the level of 1 part per million (ppm) with
these conditions: wastewaters containing benzene are managed in aerated
biological waste management units; and, surface impoundments used prior
to secondary clarification are lined (40 CFR 261.3(a)(2)(iv)(A)). The
addition of these contingent management practices was supported by data
from the groundwater pathway human health risk analysis which
demonstrated that non-aerated treatment scenarios resulted in exposures
above the level of concern for all components of the treatment scenario
and that aerated biological treatment scenarios resulted in exposures
above the level of concern only when primary clarifier wastewaters were
managed in an unlined surface impoundment. (See Risk Assessment to
Support the Wastewater Treatment Exemptions (Headworks Exemptions)
Proposed Rule, U.S. EPA 2003).
In addition, we proposed to add 2-ethoxyethanol to the headworks
exemption at the level of 25 ppm (40 CFR 261.3(a)(2)(iv)(B)). Data from
the groundwater pathway human health risk analysis supported this
proposed addition of 2-ethoxyethanol at 25 ppm
[[Page 57772]]
in the headworks as it posed no significant human health risk at this
level. (See Risk Assessment to Support the Wastewater Treatment
Exemptions (Headworks Exemptions) Proposed Rule, U.S. EPA 2003).
The Agency did not take any action to add 2-nitropropane and 1,1,2-
trichloroethane to the exemption due to the lack of available risk
information and the failures in the groundwater pathway human health
risk analysis, respectively.
B. What Revisions Were Proposed for the Headworks Compliance Monitoring
Method?
The Agency proposed to add an additional approach for facilities to
demonstrate compliance with 40 CFR 261.3(a)(2)(iv)(A), (B), (F) and (G)
of the wastewater treatment exemptions. The additional method is an
option to directly measure solvent chemical levels at the headworks of
the wastewater treatment system in lieu of performing mass balance
calculations. Direct monitoring will be an option for those facilities
subject to Clean Air Act (CAA) 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). Facilities taking
advantage of the proposed direct monitoring approach will be required
to report the entire concentration of the chemical in question if any
of it was used as a solvent.
The proposed addition of direct monitoring as a headworks
compliance monitoring method required the Agency to address a number of
implementation issues not associated with the mass balance approach. To
ensure facilities utilizing the direct monitoring method will
understand where in the wastewater treatment train sampling is to
occur, the Agency provided guidance describing the headworks location
in the proposal (67 FR 17242, April 8, 2003). This guidance mirrors the
language in the 1981 preamble and provides maximum flexibility by
accommodating the numerous facility configurations present in the
regulated community.
The Agency also proposed that facilities taking advantage of the
direct monitoring approach are to 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, the sampling frequency
and methodology, and a list of appropriate constituents to be
monitored. The Agency proposed that facilities file a copy of the
sampling and analysis plan with the overseeing agency. However, no
approval of the plan is required prior to the commencement of the
direct monitoring method; nevertheless, the facility must have
confirmation of the plan's receipt (e.g., a certified mail return
receipt or written confirmation of delivery from a commercial delivery
service) by the overseeing agency prior to implementation of the direct
monitoring scheme.
C. What Scrubber Waters Were Proposed To Be Exempted?
The Agency proposed to add those scrubber waters derived-from the
combustion of spent solvents that are then subsequently sent to a
facility's wastewater treatment system to the headworks exemption. The
Agency believes that the scrubber waters derived-from combustion of
spent solvent wastes will be comparable in expected constituents and
concentration levels with spent solvent wastewaters.
D. Exempting Leachate Derived-From Solvent Wastes
The Agency discussed the ACC request to consider adding leachate
from landfills that accept only F001-F005 spent solvent wastes to the
headworks exemption. Because we lacked sufficient data concerning the
variability, the Agency did not propose an exemption but considered the
discussion of the issue as an Advanced Notice of Proposed Rulemaking.
E. Exempting Other Types of Leachate
The Agency also discussed and sought comment regarding a possible
future addition of leachate from captive, on-site hazardous waste
landfills to the headworks exemption. Again, because EPA lacked
adequate information to determine if the levels of constituents present
in the leachate pose an unacceptable risk, it did not propose an
exemption for non-solvent leachate.
F. What Expansions to the De Minimis Exemption Were Proposed?
The Agency proposed to broaden the scope of the de minimis
exemption (40 CFR 261.3(a)(2)(iv)(D)) in two ways: (1) By expanding the
eligibility for the exemption beyond manufacturing facilities to
include non-manufacturing sites such as raw material storage terminals
and hazardous waste facilities; and, (2) by expanding the types of
waste eligible for the exemption to include the F- and K-listed wastes
(Sec. Sec. 261.31 and 261.32). To qualify for the newly expanded
portions of the de minimis exemption, we also proposed that either the
manufacturing facilities claiming a de minimis loss of F- or K-listed
wastes or non-manufacturing facilities claiming a de minimis loss of
waste listed in Sec. Sec. 261.31 through 261.33 would need to have
limits for the Appendix VII and Land Disposal Restrictions (LDR)
constituents associated with their wastes included in their Clean Water
Act (CWA) permits or that the facilities had to have eliminated the
discharge of wastewater altogether.
In addition, the Agency proposed that the words ``unscheduled,''
``uncontrollable,'' ``inadvertent,'' and ``insignificant'' be added to
the regulatory definition. The reasoning behind the addition of these
words was to provide a clearer understanding of what a de minimis
release is for all the listed wastes.
III. Changes From the Proposed Rule
A. Exemption for Scrubber Waters Derived-From Spent Solvent Combustion
In the April 8, 2003, notice, EPA proposed to include in the
exemption under Sec. 261.3(a)(2)(iv)(A) and (B) those scrubber waters
derived-from the combustion of spent solvents that then are sent to a
facility's wastewater treatment system. However, specific regulatory
language for the inclusion of these scrubber waters in the headworks
exemption was not included in the proposal. Based on the comments
received, the final rule includes such language.
As discussed in the preamble of the proposed rule, scrubber waters
derived-from the combustion of spent solvents previously were not
considered eligible for the headworks exemption because they are
derived-from residuals of spent solvents and their release into the
wastewater treatment system is not incidental (68 FR 17243, April 8,
2003). However, in the carbamates rule (60 FR 7824-7859, February 9,
1995), the Agency allowed scrubber waters derived-from the incineration
of carbamate production wastes to be eligible for the headworks
exemption because the scrubber waters would be comparable in the
expected constituents and concentration levels with the already-
exempted wastewaters. Following the rationale in the carbamates rule,
the Agency decided to propose in the April 8, 2003 notice that scrubber
waters derived-from spent solvent combustion which are then sent to a
facility's wastewater treatment system will be eligible for the
headworks exemption under Sec. 261.3(a)(2)(iv)(A) and (B). Similar to
the carbamate scrubber waters, the
[[Page 57773]]
Agency believes that the scrubber waters derived-from such combustion
will be comparable in expected constituents and concentration levels
with spent solvent wastewaters.
Regulatory language has been included under Sec.
261.3(a)(2)(iv)(A) and (B). The Agency notes the requirement that the
scrubber waters must be solely derived-from the combustion of the
listed spent solvents remains unchanged from the proposal.
B. Facilities Using the De Minimis Exemption Will Not Be Required To
List Limits for Appendix VII and LDR Constituents in Their Clean Water
Act Permits
The proposed rule contained a new requirement for those facilities
taking advantage of the expanded de minimis exemption. Under this
proposed requirement, a manufacturing facility claiming a de minimis
loss of F- or K-listed wastes or a non-manufacturing facility claiming
any de minimis loss of waste listed in Sec. Sec. 261.31 through 261.33
would have needed limits for the Appendix VII and LDR constituents
associated with its wastes included in its CWA permit.
However, commenters noted that permit writers usually do not set
specific permit limits for every constituent that may be present in the
effluent. In response to this comment, the Agency instead is requiring
any facility that would like to claim any part of the expanded
exemption to list all expected Appendix VII and LDR constituents in the
CWA permit application. Alerting the permit writers of all expected
Appendix VII and LDR constituents by listing them in the CWA permit
application will allow the permit writers to ensure that the permit is
sufficiently protective of human health and the environment. Similarly,
facilities that discharge to publicly owned treatment works (POTW) must
disclose every Appendix VII and LDR constituent that may be released to
the POTW, as this will alert the POTW of any potential chemicals that
may pass through or interfere with its operation or cause a permit
violation. This notification to the permit writer or control authority
must occur before the facility claims the newly expanded portions of
the de minimis exemption. EPA has promulgated updated regulatory
language under Sec. 261.3(a)(2)(iv)(D) in response to these comments.
C. ``Unscheduled,'' ``Uncontrollable,'' and ``Insignificant,'' Will Not
Remain in the Regulatory Text of the De Minimis Exemption
In the proposed rule, the words ``unscheduled,''
``uncontrollable,'' ``insignificant'' and ``inadvertent'' were added to
the regulatory definition of de minimis (Sec. 261.3(a)(2)(iv)(D)).
Numerous commenters were opposed to the addition of these four words
and requested that they be removed from the regulatory text because the
words would cause confusion to the regulated community and narrow the
scope of the exemption. The Agency agrees that these descriptors are
not necessary and is removing the words ``unscheduled,''
``uncontrollable,'' and ``insignificant'' from the regulatory text of
de minimis. However, the word ``inadvertent'' will remain in the
regulatory language. The purpose for the addition of ``inadvertent'' in
the regulatory definition of de minimis is to reinforce the concept
that the losses must not be a result of neglectful or careless facility
management. Rather, de minimis refers to small losses that occur during
normal operating procedures at well-maintained facilities. The Agency
believes that it is imperative that this concept be conveyed due to the
exemption being expanded to include the F- and K-listed wastes (Sec.
231.31 and Sec. 231.32), as well as to non-manufacturing facilities.
Please see Section IV.D.3. for further discussion regarding the
addition of the word ``inadvertent'' to the regulatory definition.
IV. Summary of Responses to Major Comments
The Agency summarizes below the responses to the most significant
comments received in response to the proposal. All comments received by
the Agency are addressed in the Response to Comments Background
Document that is available in the docket associated with this
rulemaking.
A. Addition of Benzene and 2-Ethoxyethanol to the Headworks Exemption
Many commenters supported the addition of benzene and 2-
ethoxyethanol as proposed stating that their inclusion in the exemption
will add consistency to the current regulatory scheme. Several
commenters emphasized that the spent solvents will remain a very small
and treatable part of the wastewater mixture. In addition, one
commenter stated that the contingent management practices placed on the
addition of benzene to the exemption were very reasonable.
While there was strong support for the inclusion of the two
solvents, one commenter disagreed with the addition of benzene and 2-
ethoxyethanol to the exemption at the current concentration levels of 1
ppm and 25 ppm, respectively. The commenter stated that these levels
are not protective of human health and the environment and that the
calculated and direct measurement concentrations need to be reduced. In
addition, the commenter suggested that the current weekly averaging
period be decreased to daily or to some other shorter-term averaging
period; however, the commenter did not submit data to support the
reduction of the calculated and direct measurement concentrations, nor
was data submitted to support a reduction in the averaging period.
The Agency disagrees that the concentration limits of 1 ppm and 25
ppm for benzene and 2-ethoxyethanol, respectively, are not protective.
The environmentally conservative risk assessment performed on benzene
demonstrated that the 1 ppm standard is protective when groundwater is
indirectly exposed to the wastewater treatment sludge and when
groundwater is directly exposed to wastewaters and sludge from aerated
treatment trains (after secondary clarification). Scenarios from non-
aerated systems and primary clarifier sludge from the aerated treatment
scenario did result in some risks of concern. As a result, we are
requiring that wastewaters containing benzene be managed in an aerated
biological treatment unit and that surface impoundments used prior to
secondary clarification be lined to be eligible for the exemption. The
risk assessment performed on 2-ethoxyethanol demonstrated it does not
pose a risk of concern for direct air exposure or for indirect and
direct groundwater exposures at the concentration limit of 25 ppm. (See
Risk Assessment to Support the Wastewater Treatment Exemptions
(Headworks Exemptions) Proposed Rule, U.S. EPA 2003). In regards to the
commenter's statement that the weekly average be reduced (i.e., that
the compliance standard be changed), decreasing the averaging period
from weekly to daily or to some other shorter averaging time addresses
a provision in the current rule not identified specifically in the
proposal as subject to possible amendment. EPA stated in the proposed
rule that it would not respond to comments addressing such provisions
(68 FR 17241, April 8, 2003).
One commenter supported the addition of benzene but not the
conditional management practices. The commenter requested that we
reconsider
[[Page 57774]]
our proposed conditions and allow benzene to be discharged into
wastewater treatment systems in the same manner that the other solvents
listed in Sec. 261.3(a)(2)(iv)(A) are allowed. In the commenter's
opinion, the conditional management practices are too restrictive and
inflexible for the addition of benzene to the exemption to be of any
use to facilities.
EPA disagrees that the exemption for benzene be unrestricted. Due
to the exemption being based on the concentration level of benzene
entering the wastewater treatment system and not wastewater and/or
sludge waste leaving a facility, evaluation of the risks associated
with benzene at this level required assuming various treatment methods
and determining the risks from managing effluents from each interim
point in a given treatment method (for further discussion, please see
Risk Assessment to Support the Wastewater Treatment Exemptions
(Headworks Exemptions) Proposed Rule, U.S. EPA 2003). Aerated and non-
aerated biological treatment, the two methods evaluated during the risk
assessment, are understood by EPA to be the treatment methods used by
the vast majority of facilities potentially affected by this rule. The
conditional requirements on benzene are based directly on the results
of the risk assessment for benzene (see above). If a facility using a
method other than aerated biological treatment wishes to exempt their
wastewater, they can apply for a site-specific delisting for their
wastewater under Sec. 260.22.
One commenter requested that we include benzene still bottoms in
the headworks exemption. This commenter argued that there is no
regulatory relief for facilities recycling benzene in a still since the
still bottoms must be managed as a hazardous waste (F005). The
commenter stated that if the facility's wastewater treatment system has
the capability of treating the impurities that can be found in still
bottoms, then the facility should be able to benefit from the exemption
as well.
EPA did not consider benzene still bottoms or still bottoms
resulting from the distillation of other F-listed solvents within the
scope of the proposed headworks rule. Therefore, still bottoms were not
included in the risk assessment we performed in support of the addition
of the spent solvents to Sec. 261.3(a)(2)(iv)(A) and (B). Due to
concerns regarding constituents, such as metals, which can be found in
still bottoms, EPA does not believe that it is appropriate to include
benzene still bottoms in the wastewater treatment exemption without
having performed a risk assessment. EPA notes that if a facility
recycling benzene wishes to exempt their benzene still bottoms, they
can apply for a site-specific delisting for their still bottoms under
Sec. 260.22.
B. Addition of Direct Monitoring as a Headworks Compliance Monitoring
Method
1. General Issues
Most commenters supported the addition of direct monitoring as a
compliance option. Several cited the complexity for some sites to
perform the mass balance calculations and commended the Agency for
proposing to allow direct monitoring at the headworks location as an
alternative compliance option. No commenters opposed the addition of
direct monitoring, although several commenters did raise a number of
issues related to direct monitoring. Separate sections discuss
commenters' issues and the Agency's responses regarding the informal
definition of headworks, eliminating the requirement to submit the
sampling and analysis plan, and allowing performance-based reductions
in sampling frequency.
In addition to the issues listed above, many commenters expressed
support for the requirement that a facility wanting to use direct
monitoring be subject to CAA rules that minimize fugitive emissions.
One commenter, however, questioned the eligibility status of those
facilities that have adopted voluntary limits or controls as part of a
federally enforceable permit. The Agency agrees that those facilities
having federally enforceable permits that limit fugitive emissions in
the facility prior to the headworks are eligible for the exemption as
these federally enforceable permits are equivalent to a facility being
subjected to CAA regulations that minimize fugitive emissions.
Therefore, regulatory language explicitly allowing those facilities
that have adopted limits or controls for fugitive emissions as part of
a federally enforceable permit has been added in Sec.
261.3(a)(2)(iv)(A), (B), (F), and (G).
Another commenter expressed confusion about whether the CAA rule
had to apply to the entire facility or just to the wastewater treatment
unit specifically. The purpose of the requirement is to ensure that
volatilization of solvents are minimized, and thereby preventing
fugitive emissions from lowering spent solvent concentration levels,
prior to the monitoring point at the headworks. EPA considered
volatilization from the wastewater treatment unit after the headworks
point (such as from the activated sludge unit or primary clarifier) in
the Agency's risk assessment and did not find volatilization to be an
unacceptable source of risk as long as the solvent concentrations at
the headworks did not exceed the specified levels. Because the
intention of the requirement is to minimize volatilization prior to the
headworks point and the risk assessment found that volatilization from
the wastewater treatment unit did not present an unacceptable risk, it
is not necessary for the receiving wastewater treatment unit itself to
be subject to CAA regulations. However, EPA stresses that the process
streams and wastewater streams that lead up to the headworks point must
be subject to CAA regulations, or an enforceable limit federal
operating permit, that minimizes fugitive emissions.
One commenter objected to the requirement that, under the direct
monitoring alternative, the generator must count the total amount of
the chemical in the waste stream, even if some portion of it was from a
non-solvent source. In addition, another commenter stated that only
allowing the sampling to occur at the headworks location is
unnecessarily limiting because the chemical not being used for its
solvent purposes will be included in the measured level. They asserted
that these requirements are overly conservative and should be modified,
suggesting that facilities be allowed to reduce the measured
concentration by the fraction known to be from non-solvent sources and
that facilities be allowed to sample wastewaters closer to the point of
generation. The Agency disagrees. The risk assessment performed by the
Agency demonstrated that the 1 ppm and 25 ppm standards were protective
for the total amount of the chemicals (benzene and 2-ethoxyethanol,
respectively) introduced at the headworks. The source of these
chemicals is irrelevant for the purposes of determining risk. If the
solvent fraction of the chemical in the waste stream contributed to the
total chemical concentration in the wastestream which exceeds the 1 ppm
or 25 ppm threshold, then that constituent is posing an unacceptable
risk to human health. Therefore, facilities cannot use a hybrid of the
results from the mass balance and direct monitoring methods to discount
the non-solvent source from the total measured concentration, nor can
facilities sample at alternate locations in lieu of sampling at the
headworks point. The Agency notes that facilities continue to have the
option of using mass balance.
[[Page 57775]]
Another issue of concern by a commenter is the possibility of the
overseeing agency finding a facility to have exceeded the exemption
levels on the basis of a compliance method different than the one the
facility chose to use (e.g., the facility using mass balance and the
agency using sampling). The overseeing agency will not be bound to use
the same compliance method chosen by the facility; however, the
procedures utilized by the overseeing agency when investigating a
potential violation will be comprehensive enough to determine if the
facility has exceeded the exemption levels before being found in
violation.
Lastly, a commenter requested that we clarify our intent with
regards to allowing facilities to alternate between the two compliance
methods or to use a combination of the two methods to demonstrate
compliance. Facilities will have the option to alternate between the
two methods or to concurrently use both methods and report the result
of either method. However, as discussed above, facilities cannot use a
hybrid of the two methods to demonstrate compliance (e.g., apply the
solvent percentage to measured concentrations to discount the non-
solvent use). EPA encourages facilities to notify the overseeing agency
via the sampling and analysis plan that alternating between the
compliance methods may occur. EPA also encourages facilities to provide
examples of when a facility may switch from one method to the other.
EPA notes that facilities may switch monitoring methods even if their
submitted sampling and analysis plan did not discuss examples of when
such an occurrence would happen.
2. The Informal Headworks Description
Several commenters supported the Agency's approach of not proposing
a formal regulatory definition for the term ``headworks,'' but rather
providing guidance on what it considers to be the ``headworks''
location. In the preamble to the proposed rule, EPA stated that for
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'' (68 FR 17242). The Agency did solicit comments on
this non-regulatory description. Supporters for the informal
description stated that the description of the term ``headworks'' in
the preamble to the proposal is flexible enough to accommodate a myriad
of different facilities within the regulated community. In addition,
commenters agreed that creating a regulatory definition for
``headworks'' would result in the loss of this flexibility.
However, one commenter believed that confusion might result from
EPA's headworks description because it assumes that no pretreatment is
occurring prior to the wastewaters' arrival at the headworks. The
commenter explained that pretreatment frequently occurs upstream to the
headworks location, and typically there is no one central location
where all wastewaters come together prior to pretreatment. Therefore,
the headworks location should be the point where the exemption is
claimed regardless of whether or not pretreatment has occurred. The
commenter also stated that the definition of headworks should be
codified; however, as an alternative to incorporating the definition
into the regulatory code, the commenter suggested that clarification of
the location be provided in the preamble of the final rule.
First, EPA disagrees with the commenter's statement that a
definition of headworks should be codified. The Agency believes that it
would be difficult to develop a regulatory definition of the term
``headworks'' that could apply at all or even most facilities given the
varied nature of facility configurations. The guidance approach to
identifying the headworks location accommodates a range of facility
configurations, thereby providing maximum flexibility. However, EPA
does agree that the in-process pre-treatment of wastewaters prior to
their arrival at the headworks location occurs and is allowable under
this provision. Therefore, EPA is modifying its guidance regarding the
informal description of the term ``headworks'' so that the headworks
location can now be described as the point at which final combination
of raw or pre-treated process wastewater streams typically takes place.
3. Sampling and Analysis Plan Issues
Many supporters of the direct monitoring option commented that it
was too burdensome to submit the sampling and analysis plan and to
obtain confirmation of its receipt before direct monitoring can begin.
One commenter, who misunderstood the proposed requirement, objected to
explicit approval having to be obtained by the overseeing agency prior
to starting direct monitoring. However, the Agency is not requiring
that the facility obtain explicit approval from their overseeing agency
prior to the start of direct monitoring. The facility simply is
required to obtain confirmation of receipt (e.g., a certified mail
return receipt or written confirmation of delivery from a commercial
delivery service) prior to starting direct monitoring.
The Agency disagrees that submittal of the sampling and analysis
plan is overly burdensome. Submittal of the sampling and analysis plan
will provide notification to the overseeing agency that a change in
compliance methodology is planned. This notification is a one-time
event, unless there is a change in the facility's operations that
causes a change in monitoring that renders the SAP obsolete. The
majority of the burden in this requirement is the preparation of the
sampling and analysis plan, and no commenter objected to developing the
sampling and analysis plan, correctly recognizing that it is the
foundation for any rigorous monitoring program.
Several commenters asserted that requiring the facility to submit
their sampling and analysis plan ran counter to EPA's recently proposed
RCRA Burden Reduction Initiative (67 FR 2518, Jan. 17, 2002). In
addition, commenters noted that in 1997, the Agency specifically
eliminated the requirement that generators managing and treating
prohibited waste in tanks, containers and containment buildings under
40 CFR 262.34 submit sampling and analysis plans to its overseeing
Agency under 268.7(a)(5). These commenters also pointed out that
neither the chlorinated aliphatics final rule (65 FR 67068) nor the
paint production proposed rule (66 FR 10060) required facilities to
submit their sampling and analysis plans to the overseeing agency,
instead allowing the facilities to keep their plans on-site.
EPA believes that it is inappropriate to compare the proposed
chlorinated aliphatics rule \1\ (64 FR 46476; August 25, 1999) and the
proposed paints rule \2\ to the headworks rule. While it is true that
the proposed chlorinated aliphatics rule and the proposed paint
production rule required sampling and analysis plans to be developed
but not submitted, there are two significant differences between these
listing rules and the headworks exemption. First, the testing required
under the two listing rules is on currently non-hazardous waste to
document that the waste
[[Page 57776]]
should continue to be out of the hazardous waste regulatory system. In
contrast, the testing required under the headworks rule is on currently
hazardous waste to determine whether or not it can safely exit the
hazardous waste regulatory system. The Agency has generally taken a
different approach for determining whether a waste is hazardous, as
opposed to demonstrating that hazardous waste in fact is not hazardous.
Second, direct monitoring is not a requirement to qualify for the
headworks exemption; it is an option. If the facility determines that
submitting the sampling and analysis plan is too burdensome, then the
facility can opt not to use the direct monitoring method to demonstrate
compliance but can continue to use the mass balance approach.
---------------------------------------------------------------------------
\1\ The provision in the proposed chlorinated aliphatics rule
which stated that facilities must develop but do not need to submit
their sampling and analysis plan was never finalized.
\2\ The Agency notes that while the paints rule has been
finalized, no wastestreams were listed. Therefore, any provisions
involving sampling and analysis plans were not finalized.
---------------------------------------------------------------------------
EPA also disagrees that submitting the sampling and analysis plan
is contradictory to the proposed RCRA Burden Reduction Initiative (67
FR 2518, Jan. 17, 2002) and the removal in 1997 of the LDR requirement
to submit the facility's sampling and analysis plan. The purpose of the
proposed burden reduction rule is to eliminate reports that are found
to be duplicative or not used by state or regional agencies to protect
human health and the environment. In today's rule, submitting the
sampling and analysis plan serves as a notification to the overseeing
agency that the facility will be using direct monitoring to demonstrate
compliance with the headworks exemption. The sampling and analysis plan
also will provide important information on key sampling parameters that
the facility intends to use. EPA notes that the facility has a wide
latitude to design the sampling and analysis plan, and the facility
initially will set the conditions with which they intend to comply. As
the sampling and analysis plan is not duplicative of any other
requirement and serves as notification to the overseeing agency, EPA
believes retaining the requirement to submit the sampling and analysis
plan is reasonable and consistent with the proposed burden reduction
rule.
In addition, while it is true that in 1997 EPA removed the
requirement of submitting waste analysis plans for generators managing
and treating prohibited waste in tanks, containers and containment
buildings, the purpose of removing this requirement was to streamline
the LDR process (60 FR 43678, August 22, 1995). This streamlining was
in response to the Burden Reduction Initiative set forth in the
President's report on ``Reinventing Environmental Regulations,'' March
16, 1995. EPA stated that due to the growth of the LDR program and the
regulated community's better understanding of the program, it was
unnecessary to maintain all of the reporting and recordkeeping
requirements. Thus, certain LDR paperwork requirements were eliminated
to reduce the regulatory burden (61 FR 2363, January 25, 1996). EPA
notes several key differences between the headworks rule and the LDR
Phase IV rule. First, while the headworks exemption is not a new
exemption, the addition of direct monitoring as a compliance method is
a new option. Second, submitting the sampling and analysis plan is not
a requirement to qualify for the exemption; it is a requirement for the
use of the direct monitoring option. Therefore, EPA is requiring
submittal of sampling and analysis plans to provide the overseeing
agency the opportunity to ensure that facilities are utilizing the
newly instituted compliance method properly.
Two commenters requested further clarification regarding the
rejection of the sampling and analysis plan. One commenter stated that
if a sampling and analysis plan is submitted in good faith, but only
exhibits minor flaws, then that facility should be able to continue to
use the direct monitoring method while the minor inadequacies are being
addressed. The other commenter requested more explanation regarding the
actions that need to be taken in order for a facility to restart direct
monitoring if the sampling and analysis plan is rejected.
The Agency notes that the parameters of the sampling and analysis
plan must enable the facility to accurately calculate the weekly
average concentration, and the plan must include the monitoring point
location, the sampling frequency and methodology, and a list of the
constituents to be monitored. Therefore, the Agency maintains that if
the sampling and analysis plan is rejected for major deficiencies
(e.g., fails to include the above information or does not enable the
facility to accurately calculate the weekly average) or if the facility
is found not to be following the plan, then the facility can no longer
use the direct monitoring option until the bases for rejection are
corrected. Even if the overseeing agency does reject the sampling and
analysis plan, the facility continues to have the option to demonstrate
compliance using the mass balance method, while the facility is
addressing the sampling and analysis plan issues. The Agency does
support the continued use of direct monitoring while deficiencies are
being corrected if the sampling and analysis plan is submitted in good
faith and the deficiencies are minor. However, it is left to the
discretion of the overseeing agency to determine the severity of the
deficiencies and whether or not direct monitoring may continue while
the facility addresses such minor deficiencies.
It is the facility's responsibility to determine from the
overseeing agency the reason for the rejection and the steps that need
to be taken to rectify the insufficiencies. The overseeing agency will
determine whether the facility is to resubmit the entire sampling and
analysis plan or just the amended sections once the facility corrects
the bases for the rejection. Once the facility has received
confirmation that the overseeing agency no longer has concerns with the
amended sections of the plan, the facility may begin using the direct
monitoring option.
4. Allowing Performance-Based Reduction in Sampling Frequency and
Changing the Current Compliance Standard
Several commenters offered detailed suggestions of how the proposed
site-specific sampling and analysis plan could establish a sampling
schedule that would allow a reduced sampling frequency once compliance
with the 1 ppm and 25 ppm thresholds was established. The commenters
stated that this approach would be analogous to those taken
historically in RCRA Waste Analysis Plans (WAP) and in CWA NPDES
permits.
The Agency is interested in the possibility of allowing a
facility's sampling and analysis plan to include a provision to reduce
sampling frequency based on performance as long as the current
compliance standards under 261.3(a)(2)(iv)(A) and (B) are maintained
and the facility's provisions for reduced sampling frequency are
thoroughly discussed in the plan. However, EPA would first need to
propose the specific requirements of such a provision in order to allow
for adequate notice and comment.
In addition, a number of commenters suggested that EPA increase the
length of the current compliance period in order to reduce the costs
associated with direct monitoring. The commenters' suggestion to
increase the averaging period from weekly to monthly (i.e., the
compliance period) addresses a provision in the current rule not
specifically identified in the proposal as subject to possible
amendment. EPA stated in the proposed rule that it would not respond to
comments addressing such provisions (68 FR 17241, April 8, 2003).
[[Page 57777]]
C. The Exemption of Scrubber Waters Derived-From the Incineration of
Listed Wastes
Numerous commenters supported the proposed addition of scrubber
waters derived-from the incineration of F-listed solvents to the
headworks exemption. Several supporters stated that the rationales used
by EPA to advocate the addition of these scrubber waters are both
accurate and justifiable. However, many commenters were concerned over
the Agency reinterpreting the current regulatory language and requested
that the exemption be incorporated into the regulatory text. Even
though specific regulatory text for this provision was not proposed, we
expressly stated in the preamble that 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)'' (68 FR 17243; April 8, 2003).
Nevertheless, based on the rational set forth in the preamble to the
proposal, EPA is promulgating regulatory text to implement the proposed
addition to the headworks exemption.
Many commenters stated that limiting the exemption to only scrubber
waters derived-from the incineration of F-listed solvents was too
narrow in scope and that the exemption as proposed would not be of much
benefit to the regulated community. For the exemption to be useful,
commenters requested that the exemption also apply to scrubber waters
derived-from the incineration of other F-, K-, P-, and U-listed wastes.
The commenters claimed that the rationales used to exempt the scrubber
waters derived-from the F-listed solvents and to exempt the de minimis
quantities of P- and U-listed wastes could be used to support the
exemption of the scrubber waters derived-from the incineration of other
listed wastes in the headworks exemption. As an alternative, some
commenters stated that the other F-, K-, P-, and U-listed wastes in the
scrubber waters are analogous to the de minimis quantities of the same
chemicals. Therefore, the rationale used to exempt the release of de
minimis quantities of these listed wastes can be applied to justify the
addition of these scrubber waters into the de minimis exemption (Sec.
261.3(a)(2)(iv)(D)).
The Agency disagrees that scrubber waters derived-from the
incineration of other listed wastes should be included in the headworks
exemption. Scrubber waters derived-from the incineration of F-listed
solvents are eligible for the exemption because these scrubber waters
would be comparable in expected constituents and concentration levels
with the already exempted F-listed solvents (Sec. 261.3(a)(2)(iv)(A) &
(B)). This rationale cannot be applied universally to the scrubber
waters derived-from the incineration of the other listed wastes because
not all of these listed wastes are currently exempted in Sec.
261.3(a)(2)(iv)(A) & (B). Therefore, if the listed wastes themselves
are not exempt, then the scrubber waters derived-from their
incineration cannot be exempt using this rationale.
The Agency also will not be including scrubber waters derived-from
the incineration of U-, P-, K- and other F-listed wastes in the de
minimis exemption (Sec. 261.3(a)(2)(iv)(D)). EPA's proposal discussed
expanding the de minimis exemption to facilities other than
manufacturing facilities and discussed expanding the type of wastes
that could qualify for the exemption. The proposal did not discuss
expanding the de minimis exemption to systematic discharges of small
amounts of waste to a wastewater treatment system. Since originally
adopted in 1981, the de minimis exemption has removed from regulation
small amounts of listed wastes that are inadvertently and often
unavoidably lost under normal material handling operations at well-
maintained facilities. The systematic release of scrubber waters into
the wastewater treatment system advocated by some of the commenters
would neither be inadvertent or unavoidable as the scrubber water is a
segregated wastewater stream at its point of generation. Allowing
systematic releases to come within the de minimis exemption would be a
fundamental change in how the de minimis exemption operates and
arguably would require additional notice and comment to adopt.
D. Expansion of the De Minimis Exemption
1. General Issues
All who commented on the proposed de minimis expansion generally
supported it, but many commenters raised specific issues. Separate
sections discuss commenters' issues and the Agency's responses
regarding the CWA permit requirement, the inclusion of ``unscheduled,''
``uncontrollable,'' ``insignificant'' and ``inadvertent'' in the
regulatory language and the removal of ``rinsates from empty
container'' from the regulatory language.
In addition to the issues listed above, one commenter stated that
they were interpreting the de minimis exemption expansions to include
facilities that have eliminated the discharge of wastewaters using
permitted Class I injection wells. The Agency agrees with this
interpretation. As explained in the preamble of the original headworks
rule, the exemptions not only apply to wastewaters that are managed in
wastewater treatment systems whose discharges are subject to regulation
under Section 402 or 307(b) of the CWA, but also apply to ``those
facilities (known as ``zero dischargers'') that have eliminated the
discharge of wastewater as a result of, or by exceeding, NPDES or
pretreatment program requirements'' (46 FR 56584, November 17, 1981).
These wastewater management requirements remain unchanged by the
amendments to the final headworks rule.
In addition, EPA continues to believe that underground injection
wells can meet the headworks' definition of zero discharge if the
injection well is being used for the purposes of complying with a NPDES
permit, other applicable effluent guideline, or pretreatment program
requirements. See discussion in Third Third Rule (55 FR 22672, June 1,
1990). Wastewaters disposed of via injection well usually are not
considered discharges under the CWA. However, if underground injection
of wastewaters occurs for reasons other than to comply with a NPDES
permit, other applicable effluent guideline or pretreatment program
requirements, then those wastewaters are not eligible for the
wastewater treatment (headworks) exemptions (in 40 CFR
261.3(a)(2)(iv)).
2. Clean Water Act Permit Requirement
The Agency proposed that for manufacturing facilities claiming a de
minimis loss of F- or K-listed wastes or non-manufacturing facilities
claiming a de minimis loss of wastes listed in Sec. Sec. 261.31
through 261.33, the CWA permit must include limits for the Appendix VII
hazardous constituents and the LDR constituents associated with the
listed wastes. Many commenters objected to this proposed requirement.
Several of these commenters argued that it usually is not the permit
writer's practice to set specific permit limits for every constituent
that may be present in the facility's effluent. Rather, they argued
that listing the waste streams or constituents of concern in the CWA
permit application will provide the permit writer or control authority
with the necessary information to decide whether or not a specified
level or method of treatment is necessary in the permit for the various
constituents.
[[Page 57778]]
The rationale for requiring a facility's CWA permit to contain
limits for Appendix VII and LDR constituents associated with the
specific wastes was due to the de minimis eligibility being expanded to
include F- and K-listed wastes. At the time of the proposal, the Agency
wanted to ensure that the releases of F- and K-listed wastes would be
minimized so that these wastes would not have a significant effect upon
wastewater treatment systems, the quality of effluent discharges, solid
wastes generated, occupational safety and health, and human health and
the environment (67 FR 17244, April 8, 2003). However, the Agency
recognizes that it usually is not the permit writer's practice to set
specific permit limits for every constituent that may be present in a
facility's effluent. For instance, some constituents are controlled
through the use of limits on conventional pollutants (such as
biochemical oxygen demand, total suspended solids, or pH), or through
limits on other bulk parameters (such as chemical oxygen demand or
total organic carbon), while other constituents may require limitations
on whole effluent toxicity or special monitoring procedures to be
performed, or may be present at such low levels that no permit limit is
necessary. Therefore, we agree with the commenters that it is
sufficiently protective for direct discharging facilities to list all
expected Appendix VII and LDR constituents in their CWA permit
application (or for indirect dischargers to POTWs, in their submission
to their control authority) and to rely on the permit writer's (or
control authority's) judgment to determine if specific permit limits
are needed. Further, as discussed in the preamble of the proposed rule,
the toxicity characteristics and CERCLA's reportable quantities will
remain as additional protective mechanisms (68 FR 17244). Therefore, in
the final rule, facilities only will be required to list all Appendix
VII and LDR constituents in the CWA permit application or POTW
submission which will allow the permit writer or control authority to
determine if specific permit limits are needed. In addition, facilities
will be required to keep a copy of the CWA permit application or POTW
submission on-site as an alert to inspectors that the permit writer or
control authority was notified of the possible de minimis releases of
constituents of concern. Finally, the Agency notes that alerting the
permit writer or control authority must occur before the facility
claims the newly expanded portions of the de minimis exemption.
In addition, several commenters stated that facilities that
discharge to POTWs should be allowed to take advantage of the
exemption, and if allowed, they should not be required to have
pretreatment limits for each constituent that may be released. Further,
the POTW's CWA permit should not be required to have specific limits
for each of the constituents managed at the indirect discharger's
facility.
Indirect dischargers are eligible for the de minimis exemption if
the POTWs they discharge to have valid CWA permits that include an
approved pretreatment program as a condition of the POTW's permit. As
discussed above, the rationale for requiring all constituents to have
pretreatment limits was to ensure the protection of human health and
the environment and to minimize the incentive to ``dispose of'' F- and
K-listed wastes into the wastewater treatment system. However, EPA
believes indirect dischargers can qualify for the de minimis exemption
using mechanisms other than requiring pretreatment limits for each
constituent potentially released and still be protective of human
health and the environment. The disclosure of each Appendix VII and LDR
constituent that may be released to the POTW by the indirect discharger
will sufficiently protect human health and the environment by alerting
the POTW of any potential chemicals that may pass through or interfere
with its operation or cause a permit violation of the POTW's discharge
permit. The control authority (i.e., POTW, state, or EPA Region) can
determine if specific pretreatment limits are necessary once all
potential Appendix VII and LDR constituents are disclosed. In addition,
as with the direct dischargers, POTWs do not need to have specific
limits listed for each constituent in the indirect discharger's permit
(or control mechanism) but must have received a list of all Appendix
VII and LDR constituents from the indirect discharger in order for the
discharger to use the exemption.
3. Inclusion of ``Unscheduled,'' ``Uncontrollable,'' ``Insignificant,''
and ``Inadvertent'' in the Regulatory Definition of De Minimis
Commenters also objected to the proposed addition of the words
``unscheduled,'' ``uncontrollable,'' ``insignificant,'' and
``inadvertent'' which were used to describe de minimis releases to a
wastewater treatment system (Sec. 261.3(a)(2)(iv)(D)). Commenters
expressed concern that EPA did not adequately announce or explain these
qualifiers and that the qualifiers would cause confusion to the
regulated community as well as narrow the scope of the exemption.
Because the expansion of the de minimis exemption includes the F-
and K-listed wastes for which there is no economic incentive to prevent
their loss into the wastestream, the Agency believed that it was
necessary to reaffirm its understanding of what is meant by a de
minimis release. However, EPA has been persuaded by commenters that the
intended meanings of ``unscheduled'' and ``uncontrollable'' can be
misinterpreted and that they should not be included in this final rule.
EPA also recognizes the redundancy of including ``insignificant'' in
the regulatory definition of de minimis. Therefore, in today's final
rule, ``insignificant'' also will not be included in the regulatory
language. However, EPA disagrees that facilities will be confused over
the meaning of ``inadvertent.'' The inclusion of ``inadvertent'' in the
regulatory definition of de minimis reinforces that these losses, no
matter if a F-, K-, P- or U-listed waste, must be minor and must result
from normal operating procedures at well-maintained facilities.
The commenters also state that EPA failed to explain how these
words would effect the current interpretation of the de minimis
exemption. Regarding the remaining additional term ``inadvertent,'' it
is not the Agency's intent to alter the interpretation of the
exemption. It is clearly illustrated in the preamble of the original
rule that the de minimis exemption was intended for minor losses
resulting from normal operating procedures, such as when small amounts
of raw material are lost in various unloading or material transfer
operations, or when small losses occur as a result from purgings and
relief valve discharges. In addition, the original preamble states that
it was not the Agency's intention for the exemption to include losses
from normal operating procedures occurring at facilities that use
neglectful or careless management practices. In fact, the preamble
states that the Agency will use its listing authority to list the
wastewaters from those facilities whose neglectful or careless
management practices cause such high losses of Sec. 261.33 hazardous
wastes (46 FR 56586, November 17, 1981). Therefore, ``inadvertent'' is
not altering the interpretation of de minimis but is reinforcing the
Agency's original intent that the exemption apply only to those minor
losses resulting from normal operating procedures at well-maintained
facilities. The Agency believes that it is imperative to reinforce that
the minor
[[Page 57779]]
losses of waste must be inadvertent because the expanded exemption
includes listed wastes that are not commercial chemical products. As is
discussed in the 1981 preamble, facilities have an economical incentive
to minimize the loss of commercial chemical products during normal
operating procedures. Id. This economic incentive does not exist for
the F- and K-listed wastes being added to the de minimis exemption.
Therefore, it is imperative that there is an understanding that any
large intentional losses of these wastes will not be considered as de
minimis and accordingly, will not be exempted under Sec.
261.3(a)(2)(iv)(D).
Commenters stated that the inclusion of the four new terms in the
regulatory language would narrow the scope of the exemption. However,
the Agency disagrees that the inclusion of the remaining term
``inadvertent'' in the regulatory language will narrow the scope of the
exemption. Our use of the term ``inadvertent'' implies that the de
minimis loss must not be a result of neglect or carelessness. As stated
in the 1981 preamble, small losses of listed wastes do occur during
normal operating procedures at well-maintained facilities because it is
exceedingly expensive to prevent such losses. In addition, EPA
recognized that the segregation and separate management of these losses
would also be exceedingly expensive as well as unnecessary because
wastewater treatment systems would be capable of efficiently treating
these small quantities of listed wastes. Id. Our inclusion of the word
``inadvertent'' in the regulatory language is not intended to alter the
original scope of the exemption, as these small losses that are
occurring during normal operating procedures at well-maintained
facilities will remain in the exemption. Inclusion of the term
``inadvertent'' only reinforces that losses, which result from
mismanagement, neglectfulness or carelessness during normal operating
procedures, are not (and have never been) included in the exemption.
The commenters also suggest that ``inadvertent'' is not consistent
with the examples provided in the existing regulatory language, as the
examples describe losses that are ``predictable,'' not ``inadvertent.''
As acknowledged in the 1981 preamble, well-maintained facilities will
have predictable losses that can be prevented but only at a
considerable cost. Id. The Agency recognizes these ``predictable''
losses as ``inadvertent'' as long as they are occurring during normal
operating procedures at a facility that is not managed in a neglectful
or careless manner.
Finally, some commenters suggested applying the qualifying terms
``unscheduled,'' ``uncontrollable,'' ``insignificant,'' and
``inadvertent'' to only F- and K-listed wastes. As we have decided not
to include the first three of those terms in the final rule, we will
address the comment with respect to the remaining term ``inadvertent.''
We disagree with the comments requesting the qualifiers apply to only
F- and K-listed wastes. The universe of the de minimis exemption is
being expanded to include both the listed wastes in Sec. 261.31 and
Sec. 261.32 and non-manufacturing facilities. Therefore, it is
imperative that those facilities that do not have a history with the
exemption have a clear understanding of what a de minimis release is
for all the listed wastes.
4. Removal of ``Rinsates From Empty Containers'' From the Regulatory
Definition of De Minimis
Two commenters raise what they believe is an inconsistency between
two existing regulatory provisions. The commenters believe that the
phrase ``rinsates from empty containers'' in 40 CFR 261.3(a)(2)(iv)(D)
conflicts with language found in 40 CFR 261.7, which excludes
``residues of hazardous waste in empty containers'' from regulation
under part 261. As argued by the commenters, ``rinsates from empty
containers'' are ``residues of hazardous waste in empty containers,''
and since ``residues of hazardous waste in empty containers'' are not
considered hazardous wastes, it is inconsistent for EPA to retain the
``rinsates from empty containers'' phrase in the de minimis regulatory
language. Because the de minimis regulatory language is being amended
to include the new expansions to the exemption, the commenters claim
that the Agency now has the opportunity to fix the apparently
inconsistent language.
EPA notes that this comment raises an issue that is outside the
scope of the proposed rulemaking. As stated in the preamble, the Agency
made clear that it would not respond to any comments addressing any
provisions of the headworks rule not specifically identified as subject
to possible amendment (68 FR 17233, April 8, 2003).
However, EPA would like to take this opportunity to clarify how the
existing ``empty container'' exemption operates. Under 40 CFR 261.7, a
container can contain a small amount of non-acute hazardous waste and
still be considered ``empty'' for the purpose of hazardous waste
regulation. (40 CFR 261.7 includes very specific definitions on how
much waste can remain in an ``empty container.'') The waste remaining
in this ``empty'' container is not subject to hazardous waste
regulation (including the mixture rule).
However, even though rinse water from an ``empty'' container may
often times be non-hazardous, 40 CFR 261.7 does not directly exempt
rinse water from Subtitle C regulation. Specifically, rinse water is
not a waste ``remaining in'' an ``empty'' container. Indeed, while 40
CFR 261.7 clearly exempts residue remaining in an ``empty'' container
from Subtitle C regulation, the Agency has made it clear that when the
residue is removed from an ``empty'' container, the residue is subject
to full regulation under Subtitle C if the removal or subsequent
management of the residue generates a new hazardous waste that exhibits
any of the characteristics identified in Part 261, Subpart C (see 45 FR
78529, November 25, 1980, where it states ``[C]ontainer cleaning
facilities which handle only ``empty'' containers are not currently
subject to regulation unless they generate a waste that meets one of
the characteristics in Subpart D.''). (See also April 12, 2004 letter
from Robert Springer, Director, Office of Solid Waste to Casey Coles,
Hogan and Hartson, LLP).
Finally, it also should be noted that if the rinsing agent includes
a solvent (or other chemical) that would be a listed hazardous waste
when discarded, then the rinsate from an ``empty'' container would be
considered a listed hazardous waste. This is not due to the nature of
the waste being rinsed from the ``empty'' container, but rather,
because of the nature of the rinsing agent. In this scenario, the
rinsate still may be eligible for the exemptions from the mixture rule
found in 40 CFR 261.3(a)(2)(iv) (i.e., headworks exemptions) if it
meets the conditions of those exemptions (e.g., solvent levels at the
headworks below those in 40 CFR 261.3(a)(2)(iv)(A) and (B)).
E. The Potential Exemptions of Leachates Derived-From Solvent Wastes
and Leachates Derived-From Other Types of Hazardous Wastes
Commenters generally supported potential exemptions of solvent
waste and non-solvent waste leachates and urged EPA to continue
developing a future proposal addressing such exemptions. One commenter
stated that exempting such leachates would provide facilities
flexibility in waste management that currently is not available to
them. The commenter also added that if exempted, leachates could
[[Page 57780]]
be treated in a biological wastewater treatment unit without the
facility having to manage the resulting treatment residue as a listed
hazardous waste.
While very supportive of a potential rulemaking addressing
leachates, several commenters objected to our use of the most recent
EPA study of landfill leachate characteristics (65 FR 3007, January 19,
2000) as a factor in our decision to not exempt non-solvent leachates
during this rulemaking. This study, which was conducted as part of data
collected to establish technology-based effluent limitations guidelines
and standards for landfills, determined that leachates from hazardous
waste landfills had a greater number of constituents than leachates
from non-hazardous landfills. In addition, the study concluded that the
constituents present in the leachates from hazardous waste landfills
were an order of magnitude greater than their counterparts in non-
hazardous waste landfills.\3\ The commenters argued that the results of
the study might be biased for two reasons. First, the commenters stated
that leachates from hazardous waste landfills are analyzed for more
constituents as well as analyzed more frequently than leachates from
non-hazardous landfills. Therefore, the lack of data resulting from
non-hazardous waste landfill leachates not being routinely analyzed
cannot be an indicator for the absence of constituents in those
leachates. Second, commenters were concerned that the contents of the
non-hazardous landfill database may have been skewed towards landfills
that do not accept hazardous wastes from households, conditionally
exempt small quantity generators, or other wastes that do not require
pretreatment, such as construction/demolition types of landfills.
Therefore, the commenters question whether or not the comparison made
between leachates from hazardous waste and non-hazardous waste
landfills is based upon equivalent data. Finally, due to the concern
that our decision was based upon an insufficient analysis, one
commenter submitted analytical data from their facilities on leachate
composition.
---------------------------------------------------------------------------
\3\ 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.
---------------------------------------------------------------------------
The Agency disagrees that it is inappropriate to base the decision
not to include leachates in the exemption, in part, on the study of
landfill leachate characteristics. The results of the study are based
on data gathered to support the final effluent guidelines for the
landfill point source category (65 FR 3007, January 19, 2000) and was
therefore designed to be comparable. The Agency analyzed all wastewater
samples that it collected for the study for the same list of
constituents regardless of whether the landfill was considered a
hazardous or non-hazardous waste landfill. While the Agency disagrees
with the commenters regarding the appropriateness of utilizing the
landfill leachate characteristics study as a decision factor to not
include leachates in the exemption at this time, we do believe, as
stated in the preamble to the proposed rule, that the results of the
study indicate that further analysis is needed before an exemption is
considered.
V. State Authorization
A. How Will Today's Regulatory Changes Be Administered and Enforced in
the States?
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.
Today's rule is finalized pursuant to non-HSWA authority. The
finalized 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 finalized 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 rulemaking has considerable merit, and we thus strongly encourage
states to amend their programs and become federally-authorized to
implement these rules.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, [58 Federal Register 51,735 (October
4, 1993)] the Agency must determine whether the regulatory action is
``significant'' and therefore subject to OMB review and the
requirements of the Executive Order. 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
[[Page 57781]]
President's priorities, or the principles set forth in the Executive
Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''
because this rule contains novel policy issues. As such, this action
was submitted to OMB for review. Changes made in response to OMB
suggestions or recommendations will be documented in the public record.
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 $48.6
million in average annual potential cost savings for RCRA regulatory
compliance. The following table presents an itemization of EPA's
estimated count of affected facilities, affected annual RCRA waste
quantities, and estimated annual cost savings for each of the five main
features of this final rule.
Summary of Estimated Potential National Economic Impact From the Final revisions to the ``Headworks Exemption''
of the RCRA Hazardous Waste Mixture Rule (40 CFR 261.3(a)(2)(iv)(A) to (E))
----------------------------------------------------------------------------------------------------------------
Annual quantity of
Final regulatory Count of potentially potentially affected Estimate of average
Item revision to affected entities (eligible) RCRA annual economic
``headworks (eligible industrial hazardous waste (tons/ impact* ($/year)
exemption'' facilities) year)
----------------------------------------------------------------------------------------------------------------
1................ Add two F005 spent 115 to 1,800 0.036 to 0.594 million $0.32 to $5.65
solvents (benzene & 2- facilities. tons/year; spent million/year in
ethoxyethanol) to the solvent wastes spent solvent waste
``headworks (aqueous & non- management cost
exemption; for the aqueous forms). savings (netting-out
RCRA hazardous waste implementation
mixture rule**. paperwork costs).
2................ Provide ``headworks 3 to 9 facilities..... 0.20 to 0.61 million $0.53 to $1.58
exemption'' for F001 tons/year scrubber million/year in
to F005 spent solvent wastewater. scrubber wastewater
hazardous waste management cost
combustion ``scrubber savings.
waters''.
3................ Allow ``direct 1,811 to 7,300 1.13 to 4.58 million $10.09 to $40.88
monitoring'' of F001 facilities. tons/year; spent million/year in
to F005 spent solvent solvent wastes; spent solvent waste
waste concentrations (aqueous & non- management cost
in headworks influent aqueous forms). savings.
wastewaters, in lieu
of ``mass balance''
computations.
4................ Revise RCRA hazardous 71 facilities......... 30 tons/year; spill $0.03 million/year in
waste ``de minimis'' incidents. spill response cost
exemption to include savings.
RCRA F- & K-listed
wastes..
5................ Revise RCRA hazardous 1,266 facilities...... 570 tons/year; spill 0.48 million/year in
waste ``de minimis'' incidents. spill response cost
exemption to include savings.
non-manufacturing
facilities.
Column totals = 3,266 to 10,446 1.37 to 5.78 million; $11.4 to 48.6 million/
facilities. tons/year. year cost savings.
----------------------------------------------------------------------------------------------------------------
*Economic impact based on year 2000 price levels for waste management systems. Also, for reasons explained in
the Economic Background Document, the upper-ends of the numerical ranges in this table probably represent over-
estimation of potential impacts; actual impacts are probably closer to the lower-ends of impact ranges.
**In comparison, expansion of the RCRA ``headworks exemption'' to include all four chemical solvents examined in
the 8 April 2003 proposed rule, would likely only result in addition of one wastestream, at an additional
annual cost savings of about $19,000 (consisting 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
final rule is provided in the ``Economic Background Document.''
B. Paperwork Reduction Act
The information collection requirements in this 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. The
information collection requirements are not enforceable until OMB
approves them.
The rule requires generators wanting to demonstrate compliance with
the RCRA headworks exemptions through direct monitoring (rather than by
the mass balance computation method as required before this rule), to
submit a one-time copy of their wastewater headworks sampling and
analysis plan (SAP), to the EPA Regional Administrator (or to the State
Director in an authorized State), and to maintain in on-site files, all
direct monitoring records for a minimum of three years. The SAP
requirements for direct monitoring shall be site-specific. As with all
other exemptions and exclusions from EPA's RCRA definition of hazardous
waste, a facility is required under 40 CFR 268.7(a)(7) to place a one-
time notice concerning RCRA hazardous waste generation, subsequent
exclusion from the RCRA definition of hazardous waste, or RCRA
definition of 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 in on-site files
for a period of three years, unless an enforcement action by the Agency
extends the record retention period (40 CFR 268.7(a)(8)).
EPA estimates that the incremental, three-year average annualized
respondent burden for the new paperwork requirements in the rule,
including initial burden to exemption claimants for reading the rule,
is 45,900 hours per year, and the three-year annualized respondent cost
for the new paperwork requirements in the rule is $8.56 million per
year. However, in
[[Page 57782]]
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 direct monitoring), EPA expects there
would be both a reduction in some RCRA paperwork requirements (i.e.,
preparation of RCRA hazardous waste manifests and RCRA Biennial
Reports), and an increase in other RCRA 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 revised
and existing RCRA requirements into account, EPA expects the rule's
revisions to the headworks exemption, would result in a net annualized
burden of about 46,200 hours per year at a cost of $8.53 million per
year. EPA expects this net additional paperwork cost to be offset by
annual costs savings to respondents from reduced waste management
costs, resulting in a net cost savings of $11.4 to $48.6 million per
year. In addition to respondent burden, EPA estimates the paperwork
burden cost to RCRA-authorized State agencies of administering the rule
at about 370 hours per year at a cost of $13,800 per year. Because of
the fact that some of the rule's paperwork requirements are one-time
only (e.g., sampling and analysis plan) rather than annually-recurring
burden, the actual annual burden hours and burden costs after the
first-year in which the rule takes effect, will be lower than the
three-year average annual values summarized above. 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 in 40 CFR are listed in 40 CFR part 9. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure 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 as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (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 final rule on
small entities, I certify that this action 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 all of the small entities subject to the rule.
Because this final rule expands the existing wastewater treatment
exemptions, the Agency believes that the hazardous waste management
costs for both small and large entities will be reduced. In addition,
these new exemptions are non-mandatory; therefore, the exemptions do
not need to be claimed unless it is cost-effective. The net cost
savings for affected entities has been estimated to be $11.4-48.6
million (please refer to the economic background document to this final
rule for more information). We have therefore concluded that today's
final rule will relieve regulatory burden for all small entities.
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
generally must prepare a written statement, 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 generally 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
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 of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
state, local, and
[[Page 57783]]
tribal governments, in the aggregate, or the private sector in any one
year. This is because this final 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. Thus, today's rule is not subject to the requirements of
sections 202 and 205 of the 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 final rule 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, Executive
Order 13132 does not apply to this rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and state and local
governments, EPA specifically solicited comment on the 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 final 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
Health Risks and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have 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 final rule 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 action present a
disproportionate risk to children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use
This 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 final rule
reduces regulatory burden. It thus should not adversely affect energy
supply, distribution or use.
I. National Technology Transfer and Advancement Act of 1995
As noted in the proposed rule, Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law
No. 104-113, 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 rulemaking involves
environmental monitoring or measurement. Consistent with the Agency's
Performance Based Measurement System (``PBMS''), EPA has decided not to
require the use of specific, prescribed analytic methods. Rather, the
rule will allow the use of any method that meets the prescribed
performance criteria. The PBMS approach is intended to be more flexible
and cost-effective for the regulated community; it is also intended to
encourage innovation in analytical technology and improved data
quality. EPA is not precluding the use of any method, whether it
constitutes a voluntary consensus standard or not, as long as it meets
the performance criteria specified.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective November 3, 2005.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Waste
treatment and disposal.
Dated: September 27, 2005.
Stephen L. Johnson,
Administrator.
0
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
[[Page 57784]]
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
0
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
6983.
0
2. Section 261.3 is amended by revising paragraphs (a)(2)(iv)(A),
(a)(2)(iv)(B), (a)(2)(iv)(D), (a)(2)(iv)(F) and (a)(2)(iv)(G) to read
as follows:
Sec. 261.3 Definition of hazardous waste.
(a) * * *
(2) * * *
(iv) * * *
(A) One or more of the following spent solvents listed in Sec.
261.31--benzene, carbon tetrachloride, tetrachloroethylene,
trichloroethylene or the scrubber waters derived-from the combustion of
these spent solvents--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 headworks of the
facility's wastewater treatment system (at facilities subject to
regulation under the Clean Air Act, as amended, at 40 CFR parts 60, 61,
or 63, or at facilities subject to an enforceable limit in a federal
operating permit that minimizes fugitive emissions), 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). A facility must file a copy of a revised sampling and
analysis plan only if the initial plan is rendered inaccurate by
changes in the facility's operations. 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 Director rejects the sampling and
analysis plan or if the Director finds that the facility is not
following the sampling and analysis plan, the Director shall notify the
facility to cease the use of 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, 2-ethoxyethanol, or the scrubber waters
derived-from the combustion of these spent solvents--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 headworks of the facility's wastewater treatment
system (at facilities subject to regulation under the Clean Air Act as
amended, at 40 CFR parts 60, 61, or 63, or at facilities subject to an
enforceable limit in a federal operating permit that minimizes fugitive
emissions), 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). A
facility must file a copy of a revised sampling and analysis plan only
if the initial plan is rendered inaccurate by changes in the facility's
operations. 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 Director rejects the sampling and analysis plan or
if the Director finds that the facility is not following the sampling
and analysis plan, the Director shall notify the facility to cease the
use of 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 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 nonmanufacturing 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 included in its Clean Water Act permit application
or submission to its pretreatment control authority 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). A
facility is eligible to claim the exemption once the permit writer or
control authority has been notified of possible de minimis releases via
the Clean Water Act permit application or the pretreatment control
authority submission. A copy of the Clean Water permit application or
the submission to the pretreatment control authority must be placed in
the facility's on-site files; or
* * * * *
(F) One or more of the following wastes listed in Sec. 261.32--
wastewaters
[[Page 57785]]
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 cannot 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 headworks of the facility's wastewater
treatment system (at facilities subject to regulation under the Clean
Air Act as amended, at 40 CFR parts 60, 61, or 63, or at facilities
subject to an enforceable limit in a federal operating permit that
minimizes fugitive emissions), does not exceed 5 parts per million on
an average weekly basis. Facilities that choose to measure
concentration levels must file 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). A facility must file a copy of a revised sampling and
analysis plan only if the initial plan is rendered inaccurate by
changes in the facility's operations. 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 Director rejects the sampling and
analysis plan or if the Director finds that the facility is not
following the sampling and analysis plan, the Director shall notify the
facility to cease the use of 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
headworks of the facility's wastewater treatment system (at facilities
subject to regulation under the Clean Air Act as amended, at 40 CFR
parts 60, 61, or 63, or at facilities subject to an enforceable limit
in a federal operating permit that minimizes fugitive emissions), does
not exceed 5 milligrams per liter on an average weekly basis.
Facilities that choose to measure concentration levels must file 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). A facility
must file a copy of a revised sampling and analysis plan only if the
initial plan is rendered inaccurate by changes in the facility's
operations. 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 Director rejects the sampling and analysis plan or
if the Director finds that the facility is not following the sampling
and analysis plan, the Director shall notify the facility to cease the
use of the direct monitoring option until such time as the bases for
rejection are corrected.
* * * * *
[FR Doc. 05-19841 Filed 10-3-05; 8:45 am]
BILLING CODE 6560-50-P