42190 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 261

[FRL–6127–9]

RIN 2050–AD88

Hazardous Waste Management

System; Identification and Listing of

Hazardous Waste; Petroleum Refining

Process Wastes; Land Disposal

Restrictions for Newly Identified

Wastes; and CERCLA Hazardous

Substance Designation and Reportable

Quantities; Notice of Data Availability

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule; notice of data

availability and request for comment.

SUMMARY: The Environmental Protection

Agency (EPA) is making available for

public comment information relating to

its Notice of Proposed Rulemaking

(NPRM) published in the Federal

Register on November 20, 1995 (60 FR

57747). That NPRM proposed to amend

EPA regulations under the Resource

Conservation and Recovery Act (RCRA)

by listing as hazardous wastes certain

petroleum refining waste streams, and

to apply universal treatment standards

under the Land Disposal Restrictions

program to the wastes proposed for

listing. That NPRM also proposed to

broaden existing RCRA exclusions for

the recycling of oil-bearing residuals in

petroleum refineries.

Several weeks before the date of

signature of the final rule published

elsewhere in this issue of the Federal

Register, EPA received specific

information from one company that

owns and operates non-hazardous waste

landfills, some of which received one or

more of the petroleum wastes which the

Agency was proposing to list. This

company realized belatedly that, after

the effective date of the new listings for

these petroleum wastes, the leachate

generated from these landfills would

carry the waste code for one or more of

the newly-listed hazardous wastes, and

could be subject to Subtitle C regulation

if collected and actively managed.

EPA is not reopening its settled

position that when a waste is listed as

hazardous, all wastes meeting the listing

description, including those disposed

before the listing effective date, are now

classified as the listed hazardous waste.

The same applies to wastes derived

from the treatment, storage, or disposal

of those wastes (again, a settled position

not being reopened). Subtitle C

regulation can apply to such wastes, and

to residues derived from such wastes, if

active management occurs after the date

the listings become effective (likewise a

settled position not being reopened).

However, the late information does

present a legitimate issue as to whether,

under limited circumstances, the

listings should apply to leachate derived

from management of these particular

wastes. This is because to the extent

these leachates are being adequately

managed under the Clean Water Act

(CWA) program, the EPA would prefer

to minimize any possible disruptions to

the management of this leachate, and try

to integrate the RCRA and CWA

regulatory schemes if possible. There is

also an ongoing rulemaking activity

under the Clean Water Act that directly

addresses pretreatment standards and

effluent limitations for indirect and

direct discharges of such leachates.

Because this issue was brought to EPA’s

attention so late, and for other reasons

discussed in this document, EPA

believes it needs more time to determine

how best to coordinate these programs

with respect to this leachate. Therefore,

EPA is presenting the pertinent

information it has received on this

question and soliciting comment on the

general issue of whether the Agency

should temporarily defer application of

these four new petroleum waste codes

(published elsewhere in today’s Federal

Register) to leachate from previously

disposed wastes that now meet the

listing description, provided the

leachate is treated at Publicly Owned

Treatment Works (POTW) or treated to

meet effluent limitations for direct

discharge, pending further study of this

issue.

DATES: The Agency is reopening the

comment period only for the limited

purpose of obtaining information and

views on the new data and information

described in this document. Comments

on the additional data will be accepted

through September 8, 1998. This

document does not reopen the comment

period for the recently proposed

rulemaking on effluent guidelines and

pretreatment standards for landfills (63

FR 6426; February 6, 1998).

ADDRESSES: Commenters must send an

original and two copies of their

comments referencing docket number

F–98–PR3A–FFFFF to: RCRA Docket

Information Center, Office of Solid

Waste (5305G), U.S. Environmental

Protection Agency Headquarters (EPA,

HQ), 401 M Street, SW, Washington, DC

20460. Hand deliveries of comments

should be made to the Arlington, VA,

address listed below. Comments may

also be submitted electronically by

sending electronic mail through the

Internet to: rcradocket@epamail.epa.gov.

Comments in electronic format should

also be identified by the docket number

F–98–PR3A–FFFFF.

Commenters should not submit

electronically any confidential business

information (CBI). An original and two

copies of CBI must be submitted under

separate cover to: RCRA CBI Document

Control Officer, Office of Solid Waste

(5305W), U.S. EPA, 401 M Street, SW,

Washington, DC 20460.

Public comments and supporting

materials are available for viewing in

the RCRA Information Center (RIC),

located at Crystal Gateway I, First Floor,

1235 Jefferson Davis Highway,

Arlington, VA. The RIC is open from 9

a.m. to 4 p.m., Monday through Friday,

excluding federal holidays. To review

docket materials, it is recommended

that the public make an appointment by

calling (703) 603–9230. The public may

copy a maximum of 100 pages from any

regulatory docket at no charge.

Additional copies cost $0.15/page. For

information on accessing paper and/or

electronic copies of the document, see

the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline at (800) 424–9346 or TDD (800)

553–7672 (hearing impaired). In the

Washington, DC, metropolitan area, call

(703) 412–9810 or TDD (703) 412–3323.

For information on specific aspects of

this document, contact Ross Elliott or

Robert Kayser, Office of Solid Waste

(5304W), U.S. Environmental Protection

Agency, 401 M Street comment, SW,

Washington, DC 20460. (E-mail

addresses and telephone numbers:

elliott.ross@epamail.epa.gov, (703) 308–

8748; kayser.robert@epamail.epa.gov,

(703) 308–7304).

SUPPLEMENTARY INFORMATION: All

electronic comments must be submitted

as an ASCII file avoiding the use of

special characters and any form of

encryption. If comments are not

submitted electronically, EPA is asking

prospective commenters to voluntarily

submit one additional copy of their

comments on labeled personal computer

diskettes in ASCII (TEXT) format or a

word processing format that can be

converted to ASCII (TEXT). It is

essential to specify on the disk label the

word processing software and version/

edition as well as the commenter’s

name. This will allow EPA to convert

the comments into one of the word

processing formats utilized by the

Agency. Please use mailing envelopes

designed to physically protect the

submitted diskettes. EPA emphasizes

that submission of comments on

diskettes is not mandatory, nor will it
Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 / Proposed Rules 42191

result in any advantage or disadvantage

to any commenter.

The official record for this action will

be kept in paper form, and will be

maintained at the address in ADDRESSES

at the beginning of this document. The

index to the docket is available on the

Internet. Follow these instructions to

access the information electronically:

www: http://www.epa.gov/epaoswer/

osw/hazwaste.htm#id

FTP: ftp.epa.gov

Login: anonymous

Password: your Internet address

Files are located in /pub/epaoswer

In addition, the document entitled

Development Document for Proposed

Effluent Limitations Guidelines and

Standards for the Landfills Point Source

Category, EPA–821–R–97–022, January

1998, placed in the docket for this

document, can be obtained through the

internet at www.epa.gov/OST/Rules/

2lndfls/techdev.html. EPA will transfer

all comments received electronically

into paper form and place them in the

official record, which will also include

all comments submitted directly in

writing. The official record is the paper

record.

EPA responses to comments, whether

the comments are written or electronic,

will be in a document published in the

Federal Register or in a response to

comments document placed in the

official record for this rulemaking at the

same time this document is published

in the Federal Register. EPA will not

immediately reply to commenters

electronically other than to seek

clarification of electronic comments that

may be garbled in transmission or

during conversion to paper form, as

discussed above.

Background

Very late in the rulemaking process,

the Agency was alerted to the concern

(not raised by any commenter during

the comment period) that any new

hazardous waste listings for petroleum

wastes may have potentially significant

(but as yet undetermined) impacts on

the management of leachate collected

from certain non-hazardous waste

landfills. Specifically, one company that

owns and operates non-hazardous waste

landfills expressed concern that because

some of their facilities have historically

received and disposed of some or all of

the waste streams listed in the final

rulemaking (i.e., K169, K170, K171, and

K172) (published elsewhere in today’s

Federal Register), the leachate that is

collected and managed from these

landfills would be classified by these

same waste codes after the effective date

of the new petroleum waste listings.

However, if Subtitle C regulation were

to apply to leachate generated from such

landfills, leachate now trucked to

POTWs (a practice of particular concern

with this company) would, as a

practical matter, no longer be managed

by POTWs, since POTWs would not

wish to become facilities subject to

RCRA Subtitle C regulation. This

company argued that this could lead to

vastly increased treatment and disposal

costs without necessarily any

environmental benefit. EPA is

considering whether it would be

appropriate to defer temporarily the

application of the new petroleum waste

codes to such leachate in order to avoid

disruption of ongoing leachate

management activities while the Agency

decides how to integrate the two

regulatory schemes, consistent with

RCRA section 1006(b)(1) (which

requires EPA to integrate regulations

under RCRA with those of the other

statutes implemented by EPA in a

manner that avoids duplication to the

maximum extent possible, consistent

with the goals and policies of RCRA and

the other statutes).

Applicability of New Listings to

Landfill Leachate

Leachate that is derived from the

treatment, storage, or disposal of listed

hazardous wastes is classified as a

hazardous waste by virtue of the

‘‘derived-from’’ rule in 40 CFR

261.3(c)(2). The Agency has been very

clear in the past on the applicability of

hazardous waste listings to wastes

disposed of prior to the effective date of

a listing, even if the landfill ceases

disposal of the waste when the waste

becomes hazardous. 53 FR at 31147

(August 17, 1988). EPA also has a wellestablished interpretation that listings

likewise apply to leachate derived from

the disposal of listed hazardous wastes,

including leachate derived from wastes

disposed before a listing effective date

which meet the listing description. Id.

EPA’s interpretations were emphatically

upheld by the Court of Appeals for the

District of Columbia Circuit in Chemical

Waste Management, Inc. v. EPA, 869

F.2d 1526, 1536–37 (D.C. Cir. 1989).

None of these issues is reopened by the

present Notice.

Of course, as set out in detail in the

August 1988 notice, this does not mean

that landfills holding wastes which are

now listed as hazardous become subject

to Subtitle C regulation. However,

previously disposed wastes now

meeting the listing description,

including residues such as leachate

which are derived from such wastes,

which are actively managed do become

subject to Subtitle C regulation. 53 FR

at 31149. In many, indeed most

circumstances, active management of

leachate would be exempt from Subtitle

C regulation because the usual pattern

of management is discharge either to

POTWs via the sewer system, where

leachate mixes with domestic sewage

and is excluded from RCRA jurisdiction

(see RCRA Section 1004(27) and 40 CFR

261.4(a)(1)), or to navigable waters, also

excluded from RCRA jurisdiction (see

RCRA Section 1004(27) and 40 CFR

261.4(a)(2)). In addition, management of

leachate in wastewater treatment tanks

prior to discharge under the CWA is

also exempt from RCRA regulation (40

CFR 264.1(g)(6)).

The company indicated, however,

that these exemptions do not apply to

its current prevalent means of managing

its leachate: collection followed by

transport by truck to a POTW (rather

than discharge to a POTW by a sewer

system, where leachate would mix with

domestic sewage, which would not

trigger Subtitle C, as just explained).

The company also alleged that it would

incur large costs because POTWs would

no longer accept the leachate in order to

remain outside the Subtitle C regulatory

system. (The company is probably

correct as to POTWs’ reaction, although

the potential costs the company could

incur have not yet been verified.)

Proposed Clean Water Act

Requirements for Leachate from NonHazardous Waste Landfills

EPA’s Office of Water recently

proposed national effluent limitations

guidelines and pretreatment standards

for wastewater discharges (e.g., leachate)

from certain types of landfills. 63 FR

6426 (February 6, 1998). In support of

this proposal, EPA conducted a study of

the volume and chemical composition

of wastewaters generated by both

Subtitle C (hazardous waste) and

Subtitle D (non-hazardous waste)

landfills, including treatment

technologies and management practices

currently in use. EPA did not propose

pretreatment standards for Subtitle D

landfill wastewaters sent to POTWs

because the Agency’s information

indicated that such standards were not

required due to several factors,

including: (1) Raw leachate data was

below published biological inhibition

levels, and (2) lack of pass-through of

toxics (including lack of showing of

adverse impact on POTW sludge

quality). 63 FR at 6444. For example, the

EPA determined, among other things,

that ‘‘the majority of pollutants typically

found in raw [non-hazardous landfill]

leachate were at levels comparable to

wastewater typically found at the

headworks of a POTW.’’ Id. EPA also
42192 Federal Register / Vol. 63, No. 151 /Thursday, August 6, 1998 / Proposed Rules

proposed effluent limitations for direct

discharges of leachate from

nonhazardous waste landfills. After

examining various pollutants of concern

(including conventional,

nonconventional, metal, and organic

pollutants), EPA proposed limitations

for nine pollutants. 63 FR at 6463. EPA

believes that the proposed rules, if

promulgated, will help ensure that

leachate is managed effectively while

any temporary exemption is in effect.

Consideration of Temporary Deferral of

Applying New Petroleum Waste Codes

to Leachate

Because EPA received this

information very late in the rulemaking

process (indeed, the information is not

even part of the administrative record

for the final rule), EPA needs more time

to evaluate the potential impacts of the

newly-listed waste codes (published in

a final rule elsewhere in today’s Federal

Register) on the classification of landfill

leachate, and to carefully consider

whether or not it is appropriate to apply

the waste codes from one or more of the

four newly-listed petroleum wastes to

landfill leachate which is either sent for

treatment at POTWs under

circumstances not excluded by Section

261.4(a)(1)(ii), or is directly discharged

under Section 402 of the CWA. As

mentioned above, EPA believes it would

be appropriate to defer temporarily the

application of the new petroleum waste

codes to such leachate in order to avoid

disruption of ongoing leachate

management activities while the Agency

decides how to integrate the two

regulatory schemes, consistent with

RCRA section 1006(b)(1) (regarding

integrating RCRA regulations with other

EPA statutes). See Edison Electric Inst.

v. EPA, 2 F. 3d 438, 451–53 (D.C. Cir.

1993) (temporary deferral of regulation

to determine how best to integrate

RCRA rules with another EPA

regulatory system is permissible); see

also Military Toxics Project v. EPA (No.

97–1342 (D.C. Cir. June 30, 1998) (slip

op. pp. 18–20) (permanent deferral to

another regulatory system also may be

appropriate). As stated above, it appears

that leachate derived from these newlylisted wastes will be adequately

regulated under the CWA. The Agency

is publishing this document in order to

make this information available, and to

receive comment on EPA temporarily

deferring, while EPA assesses the

permanent integration of the two

regulatory schemes, the application of

the new waste codes (K169, K170, K171,

and K172) to landfill leachate that is

generated and actively managed after

the effective date of the four new

petroleum listings, as long as all of the

following conditions apply.

First, the Agency is considering only

whether to temporarily defer from

RCRA regulation leachate from landfills

that received and disposed one or more

of the newly-listed petroleum wastes

prior to the effective date of the listing

(i.e., landfills that have historically

disposed of these petroleum wastes,

which if generated today would meet

the new listing descriptions, but no

longer accept these wastes). Second, this

temporary deferral would apply to

leachate that is defined as hazardous

waste only by application of one or

more of the new petroleum waste codes,

i.e., leachate that is only defined as

hazardous waste because it is derived

from K169, K170, K171, or K172, and is

not derived from any other listed waste,

and does not exhibit any characteristic

of hazardous waste. Third, the Agency

would only temporarily defer from

RCRA regulation leachate that is

managed such that discharge is subject

to regulation under 307(b) or 402 of the

Clean Water Act (i.e., for indirect or

direct discharges). This temporary

deferral would apply to leachate from

point of generation (i.e., when the

leachate is first collected or ‘‘actively

managed’’) to when it is discharged in

compliance with 307(b) or 402 of the

Clean Water Act.

EPA is also considering whether to

add a condition that would prohibit the

placement of leachate on the land prior

to discharge to a POTW or to other

wastewater treatment systems. EPA is

concerned that the storage of untreated

leachate in land-based units, such as

surface impoundments, may be of

concern. On the other hand, the Agency

does not wish to discourage effective

treatment of the leachate in wastewater

treatment systems that employ secure

impoundments prior to discharge to

surface water. To resolve this question,

the Agency is seeking comment on the

potential impact of such a condition on

the treatment of leachate at landfills and

other treatment facilities.

Should the Agency proceed with a

temporary deferral, such a deferral

would most likely be implemented as a

new exemption from the definition of

hazardous waste under 40 CFR 261.4(b).

The duration of a temporary deferral

would probably be at least until the

Agency completes the pending

rulemaking under the Clean Water Act

described in this document. After

completion of the Clean Water Act

rulemaking, EPA will consider whether

to initiate a rulemaking for a permanent

deferral (i.e., exemption), or

alternatively, to remove the exemption

and subject the leachate to Subtitle C

regulation.

Information in the Docket and Request

for Comment

The EPA has placed in the docket

summary information on leachate

characterization submitted by one

company that owns and/or operates

over sixty non-hazardous waste

landfills, and estimated costs reflecting

Subtitle C management of the leachate

(i.e., centralized waste treatment of

leachate diverted from current

management at POTWs). The EPA has

also put into the docket a copy of the

Office of Water background document

entitled Development Document for

Proposed Effluent Limitations

Guidelines and Standards for the

Landfills Point Source Category, EPA–

821–R–97–022, January 1998.

The Agency is interested in any

comments on the narrow issue of the

classification and management of

leachate generated from landfills that

disposed of one or more of the newlylisted petroleum wastes (K169–K172)

prior to the effective date of those

listings, where the leachate is not

defined as hazardous under RCRA for

any other reason, and is (in particular)

being managed pursuant to Clean Water

Act requirements. The Agency also

seeks comment on the possibility of the

temporary deferral described in this

document. EPA will not respond to

comment regarding the general

proposition that hazardous listings

apply to previously disposed wastes

that meet the listing description, nor

will EPA reopen comments on the

listings of these wastes, which are

issued in a final rule elsewhere in

today’s Federal Register.

Dated: July 17, 1998.

Elizabeth A. Cotsworth,

Acting Director, Office of Solid Waste.

[FR Doc. 98–19930 Filed 8–5–98; 8:45 am]

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