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Citation: 58 Fed. Reg. 48111 1993

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-- The search text of this PDF is generated from uncorrected OCR text.Federal Register / Vol. 58, No. 176 / Tuesday, September 14, 1993 / Proposed Rules

TABLE 1.-- RECORD-KEEPING, NOTIFICATION, AND/OR CERTIFICATION REQUIREMENTS-Continued

Entity Scenario Frequency Recipient of notification Record-keeping, notification, andor cetification requirements

C.Where wastes are Each shipment

........... Regional Administrator No notification to receiving facility required purrecyclable matedals (or his delegated rep- suantto §268.7(b)(4). used Ina manner resentative). Certification as described In_§ 268.7(bHS) and constituting disposal notice with information listed In §268.7(b)(4), subjectto§26620(b) except manifest number. [§268.7(b)(7)l. Recycling facility must keep records of the
name and location of each entity receiving hazardouswaste-derived products. III. Land Disposal A. Wastestaken to

................... . ..... Maintain copies of notice and certifications Facility, land disposalfacility specified in §268.7(a) and (b) and §268.8, if

_ 1§268.7(c)]. applicable.

4. Demonstrating Acceptable Knowledge of One'sWaste

Under the LDR program, generators may characterize theirwaste based either on knowledge ofthewaste or on analytical data. On the other hand, treatment, storage, and disposal facilities (TSDFs)must periodically test their wastes,according to the frequency specified in theWaste Analysis plan (WAP); at othertimes, they may use knowledge to characterize their waste. Several participants at the LDR Roundtable expressed the need for guidance asto what constitutes acceptable knowledge when characterizing waste.

a.Background. The general and specific waste characterization requirements can bemet using several methods or combinations ofmethods. Wherever feasible, the preferred method
to meet the waste characterization requirement istoconduct sampling and laboratory analysis because thisdata in
most cases provides themost definitive information on constituent concentration levels in waste compared to LDR treatment standards. However, generators and TSDFsalso can meet waste characterization requirements by applying "acceptable knowledge." Acceptable knowledge can be used to meet all or part ofthe waste characterization requirements.

b. WhatConstitutes Acceptable Knowledge?Acceptable knowledge is broadly defined to include "process knowledge" and the facility's records of analysis performed before theeffective date ofRCRA regulations, ora combination ofthese with actual chemical analysis ofthewaste.

"Process knowledge" could constitute acceptable knowledge when detailed information onthewastes is obtained from existing published or documented
waste analysis data orstudies conducted on hazardous wastes generated byprocesses similar to that which generated the waste. EPA also solicits comment on othertypes of information that would come under the definition ofprocess knowledge.

EPA lists certain hazardous wastes in 40 CFRpart 261. For example, the Klisted wastes (e.g., K001 wastes, defined

as bottom sediment sludge from the treatment ofwastewaters'from wood preserving processes that use creosote and/or pentachlorophenol) arelisted by the specific process that generated the waste (ratherthan by the characteristic ofthe waste that is generated.) Therefore, withmany listed wastes ("K", "P", and "U")the application of acceptable knowledge is appropriate because the waste characteristics are generally consistent andwell known from facility to facility. In the case where a generator sends waste off-site for treatment, storage, or disposal, the TSDF may rely on processknowledge supplied by the generator asa basis for the TSDF's waste characterization. (See § 264.13.)

Some facilitieshave records of analysis performed before the effective date ofRCRA regulations. While seemingly attractive because ofthe potential savings associated with using existing information (suchas published data), the facility mustensure that this information accurately characterizes applicable wastes.

c.When MightAcceptableKnowledge Be Used?Generators and TSDFsmay

use acceptable knowledge alone or In conjunction with sampling and laboratory analysis. There are situations where it isappropriate to apply acceptable knowledge, for example, when:

e The hazardous constituents in
wastes from specific processes are well documented, such as with the K-listed wastes mentioned previously.

* Wastes are discarded unused commercial chemical products, reagents

or chemicals ofknown physical and, chemical constituents. Several ofthese fall into the "P" and "U" categories. 9 Other site-specific/process-specific factors.

The Agency requests comment on other appropriate situations in which acceptable knowledge is appropriate.

d.Why ProvideEvidencetoSupport AcceptableKnowledge?For enforcement purposes, EPA seeks evidence that demonstrates that the information reliedupon is sufficient to identify the waste accurately and completely. Such evidence (e.g., knowledge ofthe process thatgenerated the waste) is essential foridentifying constituents that must meet LDR standards.

e.How CanA TSDF VerifyData Suppliedby a Generator? There are considerations that a TSDF shouldbe

aware ofwhen relying upon acceptable knowledge to manage wastes.First, if the TSDF relies in part on information supplied by a generator, the TSDF must become thoroughly familiar with the generator's processes to verify the integrity ofthe data. This can be accomplished by: (1)Conducting facility visits ofgenerators, (2) obtaining split sampling for confirmatory analysis, and/or (3)gathering otherinformation.

Second, ifthe TSDF uses process descriptions anddocumented studies as acceptable knowledge, the data should be scrutinized carefully as to whether..

e There are any differences between the process in the study and theprocess used by the generator.

* The studies used are applicable. These issues are ofconcern, for example,because EPA revised the criteria that qualify awaste as a hazardous waste duetomeeting the toxicity characteristic. Not only were the numberand type ofconstituents that could deem awaste hazardous modified but also the test foridentifying these constituents was amended (i.e., the Toxicity Characteristic Leaching Procedure (TCLP) replaced the Extraction Procedure Toxicity Test (EP TOX Test).) 48111

HeinOnline -- 58 Fed. Reg. 48111 199348112 Federal Register / Vol. 58, No. 176 / Tuesday, September 14, 1993 / Proposed Rules

Therefore, ifa TSDF has been using acceptable knowledge, it needs to review the waste analysis or waste characterization data to determine ifit is managing any solid wastes that are

now hazardous wastes. The TSDF needs
to determine whether its existing data is sufficient to identify any new constituent concentrations limitation (i.e., demonstrate compliance with LDR requirements).

In addition, where documented studies are used as acceptable knowledge, the TSDF should determine whether the information is based on valid sampling and analytical techniques. Also, the ability of analytical equipment to detect low concentrations of contaminants has improved over the years, and constituents that once were determined
to be "nondetectable" may, in fact, be detectable using the sophisticated equipment available today.

Although EPA recognizes that sampling and analysis is not as economical orconvenient as using acceptable knowledge, it does have a number of advantages. Because accurate waste identification is such a critical factor for demonstrating compliance with RCRA, misidentification can render a facility liable for enforcement actions with respect to permit conditions, LDRrequirements, annual reporting, and other RCRA requirements. In addition, accurate waste analysis is critical for meeting

some ofthe requirements ofother regulatory programs such as effluent discharges under theClean Water Act, and transportation requirements regulated by theDepartment of Transportation.

5. Advance Notice ofPossible Changes
to the LDR Program Resulting From the LDR Roundtable

As was elaborated above in the section presenting background on the LDR Roundtable, EPA intends further review comments and recommendations made during theRoundtable and
propose to incorporate them-where appropriate-into future LDR regulations. Below, some ofthe main problems and recommendations identified by Roundtable participants

are briefly discussed. The recommendations are being presented in this proposed rule to solicit further
comments that will be considered when developing possible revisions to existing LDR provisions in future rulemakings. Comment is solicited on each ofthe recommendations discussed above. More detailed information on theLDR Roundtable can be obtained by calling

or writing the RCRA Docket and requesting the document "Summary of the Land Disposal Restrictions Evaluation Roundtable" found in the docket numbered F-92-CD2F-S0144.

a. Waste code carry through. One of the issues concerns the management of residuals from treating listed wastes. The waste codes for these wastes "carry through" to thetreatment residual, even when the physical orchemical state of the waste hasbeen modified. The Roundtable participants' recommendations included: (1) Dropping the waste code when the LDR treatment standards are met-groups contended that once standards are met for awaste, the waste code should be dropped from the residual so that legitimate mixing and other treatment could occur without retesting; (2) allowing the useofprocess knowledge to identify a short list ofconstituents in residuals for which analysis should be conducted; and (3)developing residual waste codes (asthe Agency has done for multi-source leachate.)

b. Use ofhealth-basedlevels versus technology-basedlevels in establishing treatment standards. A number ofthe participants suggested.that the LDRs should be revised to allow materials to leave the hazardous waste (i.e., RCRA subtitle C) system-that is, the LDR treatment standards should be based on risk. Other participants recommended that EPA should consider socioeconomic factors and resource allocations during these risk evaluations. For further discussion, see Section II.H. Furthermore, it was also suggested that the Agency create a de minimis program to eliminate certain specific categories ofsmall volume wastes from the LDR requirements. (Thislast alternative would, ofcourse, likely require astatutory change.)

c. Inconsistencyofstandards. Some participants stated that requiring characteristic wastes tobe treated below the characteristic level is inconsistent with the regulatory standards used for hazardous waste identification. Remedies included: (1)Capping treatment with risk-based levels; (2) implementing universal standards based

on the least-stringent treatment standard; and (3) having EPA focus on hazardous compounds in wastes rather than on the existing set ofwaste codes, and establish technology-based treatment standards so that each compound would have a specific standard regardless ofthe waste in which it was found (such "universal standards" areproposed in section III.A ofthis preamble.)

d. Capacity-relatedissues. Participants cited a-number ofcapacityrelated concerns, including the lack of treatment capacity for highlyconcentrated mercury waste, and insufficient treatment technologies to address ignitable, corrosive and reactive (ICR)wastes. With regard to mercury wastes, participants suggested EPA allow the low-level mercury treatment standard to be applied to high-level mercury wastes. For ICR wastes, the recommendation was to allow maximum flexibility concerning continued use ofdeactivation.

Furthermore, it was stated that the storage for greaterthan one year will

occur for certain wastes because no treatment capacity exists (e.g., radioactive mixed wastes, mercurybearing wastes not amenable to the current standards, PCBs, and dioxincontaminated wastes.) (The'one-year limitation' is, ofcourse, a misnomer. Persons storing for over one year merely have the burden ofshowing they are storing waste in orderto accumulate sufficient quantities to facilitate proper treatment or disposal. §268.50(c).) Participants also indicated that the oneyear storage limitation is a disincentive for waste minimization because the cost ofdisposal decreases as the volume of waste increases, and pollution prevention/waste minimization programs have created problems associated with generating sufficient waste for disposal. There is also confusion on the part ofindustry on what constitutes agood-faith effort to find treatment capacity. Possible solutions voiced included: (1)Guidance

on what constitutes a good-faith effort to find treatment capacity; (2) streamlining capacity variance procedures; and (3) waste minimization storage allowances (e.g., EPA offering storage for greater than one year as a waste minimization incentive fornon-permitted facilities.)

e. Generatorknowledge. It was stated by a number ofthe participants that generator knowledge with respect to identifying constituents ofconcern in their hazardous waste was often rejected by TSDs, requiring testing by generators prior to acceptance ofwastes for treatment or disposal. The one recommendation was to institute guidance on what the Agency considers sufficient written documentation to support a generator's knowledge ofthe waste. (The Agency is providing some guidance on this issue in section 4 above.)



### f. Constituents. Conversely, a number ofthe participants stated that the Agency requires testing fortoo many constituents, presenting a cost burden to industry. Because generators are said to knowthe constituent content of their waste, it is unnecessary to test. Potential solutions to thisproblem included: (1)

HeinOnline -- 58 Fed. Reg. 48112 1993