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Citation: 58 Fed. Reg. 48111 1993 

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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- suant to §268.7(b)(4). used In a manner resentative). Certification as described In _§ 268.7(bHS) and

constituting disposal notice with information listed In §268.7(b)(4), subject to §26620(b) except manifest number.

[§268.7(b)(7)l. Recycling facility must keep records of the

name and location of each entity receiving hazardous waste-derived products.

III. Land Disposal A. Wastes taken to ................... . ..... Maintain copies of notice and certifications

Facility, land disposal facility specified in §268.7(a) and (b) and §268.8, if _ 1§268.7(c)]. applicable.

4. Demonstrating Acceptable Knowledge

of One's Waste

Under the LDR program, generators

may characterize their waste based

either on knowledge of the waste 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 the Waste Analysis plan

(WAP); at other times, they may use

knowledge to characterize their waste.

Several participants at the LDR

Roundtable expressed the need for

guidance as to what constitutes

acceptable knowledge when

characterizing waste.

a. Background. The general and

specific waste characterization

requirements can be met using several

methods or combinations of methods.

Wherever feasible, the preferred method

to meet the waste characterization

requirement is to conduct sampling and

laboratory analysis because this data in

most cases provides the most definitive

information on constituent

concentration levels in waste compared

to LDR treatment standards. However,

generators and TSDFs also can meet

waste characterization requirements by

applying "acceptable knowledge."

Acceptable knowledge can be used to

meet all or part of the waste

characterization requirements.

b. What Constitutes Acceptable

Knowledge? Acceptable knowledge is

broadly defined to include "process

knowledge" and the facility's records of

analysis performed before the effective

date of RCRA regulations, or a

combination of these with actual

chemical analysis of the waste.

"Process knowledge" could constitute

acceptable knowledge when detailed

information on the wastes is obtained

from existing published or documented

waste analysis data or studies

conducted on hazardous wastes

generated by processes similar to that

which generated the waste. EPA also

solicits comment on other types of

information that would come under the

definition of process knowledge.

EPA lists certain hazardous wastes in

40 CFR part 261. For example, the Klisted wastes (e.g., K001 wastes, defined

as bottom sediment sludge from the

treatment of wastewaters'from wood

preserving processes that use creosote

and/or pentachlorophenol) are listed by

the specific process that generated the

waste (rather than by the characteristic

of the waste that is generated.)

Therefore, with many listed wastes

("K", "P", and "U") the application of

acceptable knowledge is appropriate

because the waste characteristics are

generally consistent and well 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 process knowledge

supplied by the generator as a basis for

the TSDF's waste characterization. (See

§ 264.13.)

Some facilities have records of

analysis performed before the effective

date of RCRA regulations. While

seemingly attractive because of the

potential savings associated with using

existing information (such as published

data), the facility must ensure that this

information accurately characterizes

applicable wastes.

c. When Might Acceptable Knowledge

Be Used? Generators and TSDFs may

use acceptable knowledge alone or In

conjunction with sampling and

laboratory analysis. There are situations

where it is appropriate 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 of known physical and,

chemical constituents. Several of these

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 Provide Evidence to Support

Acceptable Knowledge? For

enforcement purposes, EPA seeks

evidence that demonstrates that the

information relied upon is sufficient to

identify the waste accurately and

completely. Such evidence (e.g.,

knowledge of the process that generated

the waste) is essential for identifying

constituents that must meet LDR

standards.

e. How Can A TSDF Verify Data

Supplied by a Generator? There are

considerations that a TSDF should be

aware of when 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 of the data. This can be

accomplished by: (1) Conducting facility

visits of generators, (2) obtaining split

sampling for confirmatory analysis,

and/or (3) gathering other information.

Second, if the TSDF uses process

descriptions and documented 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 the process

used by the generator.

* The studies used are applicable.

These issues are of concern, for

example, because EPA revised the

criteria that qualify a waste as a

hazardous waste due to meeting the

toxicity characteristic. Not only were

the number and type of constituents that

could deem a waste hazardous modified

but also the test for identifying 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 1993
48112 Federal Register / Vol. 58, No. 176 / Tuesday, September 14, 1993 / Proposed Rules

Therefore, if a TSDF has been using

acceptable knowledge, it needs to

review the waste analysis or waste

characterization data to determine if it

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 or convenient 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, LDR requirements, annual

reporting, and other RCRA

requirements. In addition, accurate

waste analysis is critical for meeting

some of the requirements of other

regulatory programs such as effluent

discharges under the Clean Water Act,

and transportation requirements

regulated by the Department of

Transportation.

5. Advance Notice of Possible 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 the Roundtable and

propose to incorporate them-where

appropriate-into future LDR

regulations. Below, some of the 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 of the

recommendations discussed above.

More detailed information on the LDR

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 the treatment residual, even

when the physical or chemical state of

the waste has been 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 a waste, the waste code should be

dropped from the residual so that

legitimate mixing and other treatment

could occur without retesting; (2)

allowing the use of process knowledge

to identify a short list of constituents in

residuals for which analysis should be

conducted; and (3) developing residual

waste codes (as the Agency has done for

multi-source leachate.)

b. Use of health-based levels versus

technology-based levels in establishing

treatment standards. A number of the

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 of small volume

wastes from the LDR requirements.

(This last alternative would, of course,

likely require a statutory change.)

c. Inconsistency of standards. Some

participants stated that requiring

characteristic wastes to be 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 of waste codes,

and establish technology-based

treatment standards so that each

compound would have a specific

standard regardless of the waste in

which it was found (such "universal

standards" are proposed in section III.A

of this preamble.) d. Capacity-related issues.

Participants cited a-number of capacityrelated 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 of deactivation.

Furthermore, it was stated that the

storage for greater than 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, of course, a misnomer.

Persons storing for over one year merely

have the burden of showing they are

storing waste in order to 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

of disposal 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 of industry on

what constitutes a good-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 for non-permitted facilities.)

e. Generator knowledge. It was stated

by a number of the participants that

generator knowledge with respect to

identifying constituents of concern in

their hazardous waste was often rejected

by TSDs, requiring testing by generators

prior to acceptance of wastes 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 of the

waste. (The Agency is providing some

guidance on this issue in section 4

above.)

f. Constituents. Conversely, a number

of the participants stated that the

Agency requires testing for too many

constituents, presenting a cost burden to

industry. Because generators are said to

know the constituent content of their

waste, it is unnecessary to test. Potential

solutions to this problem included: (1)

HeinOnline -- 58 Fed. Reg. 48112 1993