Document KGo3OnxYG59aXMayy34z3rOo2

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ORAL ARGUMENT SCHEDULED FOR JANUARY 31, 1989 Nos. 88-1531 gi al. LEACHATE-RELATED ISSUES CHEMICAL WASTE MANAGEMENT, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,*- Respondent. And Consolidated Cases ON PETITION FOR REVIEW OF FINAL AGENCY ACTION BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY . BRIEF OF CONSOLIDATED PETITIONERS ON LEACHATE-RELATED ISSUES (Names of Counsel appear inside cover) Dated: October 27, 1988 CMA 053483 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Nos. 88-1581 fit fil. CHEMICAL WASTE MANAGEMENT, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. And Consolidated Cases ON PETITION FOR REVIEW OF FINAL AGENCY ACTION BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES A. PARTIES AND AMICI Pursuant to Rule 11(a) o the General Rules of the United States Court of Appeals for the District of Columbia Circuit, petitioners are not required to provide a list of parties and amici who have appeared below because this case concerns informal rulemaking proceedings, which are being reviewed by this Court in the first instance. This brief is filed on behalf of the following petitioners: the American Iron and Steel Institute (Nos. 88-1604 & 88-1605), the American Mining Congress (No. 88-1736), Browning-Ferris Industries, Inc. (No. 88-1592), the CMA 053484 Chemical Manufacturers Association (Nos. 88-1591 & 88-1607), Chemical Waste Management, Inc. (No. 88-1581), The Dow Chemical Company (No. 88-1735), E.I. du Pont De Nemours & Co. (No. 88-1643), the Monsanto Company (No. 88-1721), the National Solid Wastes Management Association (No. 88-1600), and Waste Management of North America, Inc. (No. 88-1600). Additional parties to this proceeding are the United States Environmental Protection Agency, and Lee M. Thomas, the Administrator of the Environmental Protection Agency, who is sued in his official capacity. The undersigned do not know of any amici that intend to participate in this proceeding. Pursuant to Rule 11(a)(1)(A) of the General Rules of this Court, the following is a list of the petitioning nonprofit trade associations: American_Iron_ and Steel Institute ("AISI") The undersigned counsel of record for Petitioner AISI certifies that AISI is a nonprofit trade association whose 52 domestic member companies account for approximately 80 percent of the raw steel production of the United States. AISI has no parent company, subsidiaries or affiliates. AISI has the following corporate members, some of which are publicly owned: Acme Steel Company The Algoma Steel Corporation, Limited Armco Inc. Atlantic Steel Company Atlas Stainless Steels Division, Rio Algom Limited Avesta Stainless Inc. 2 CMA 053485 The Babcock and Wilcox Company Berg Steel Pipe Corporation Bethlehem Steel Corporation California Steel Industries, Inc. Carpenter Technology Corporation Cleveland-Cliffs, Inc. Compania Siderurgica Huachipato S.A. Copperweld Steel Company Dofasco, Inc. A. Finkl & Sons, Co. Geneva Steel Georgetown Industries, Inc. Gulf States Steel, Inc. M.A. Hanna Company Harsco Corporation Hi Specialty America Hylsa, S.A. Inland Steel Industries, Inc. Ipsco Inc. Earle M. Jorgensen Company Laclede Steel Company LTV Steel Company Lone Star Steel Company Lukens Inc. McLouth Steel Products Corporation National Steel Corporation North Star Steel Company Oglebay Norton Company Qit-Fer Et Titane Inc. Raritan River Steel Company Rhode Island Forging Steel, Inc. Rome Strip Steel Company, Inc. Rouge Steel Company Sandvik Steel Company Sharon Steel Corporation Sharon Tube Company Shenango Incorporated Sidbec-Dosco Inc. Stelco Inc. Sydney Steel Corporation The Timken Company USS, Division of USX Corporation Valley-Vulcan Mold Company Warren Consolidated Industries, Inc. Weirton Steel Corporation Wheatland Tube Company Wheeling-Pittsburgh Steel Corporation 3 CMA 053486 American Mining Congress ("AMC") The undersigned counsel of record for Petitioner AMC certifies that the American Mining Congress is an industry- association whose member companies produce most of the nation's metal, coal, and industrial and agricultural minerals; manufacture mining and mineral processing machinery, equipment, and supplies; and provide other services to the mining and mineral processing industry. The following AMC member companies are publicly-owned, or are affiliates of publicly-owned companies that are traded on domestic exchanges or over-the-counter: MINERAL-PRODUCING MEMBERS Alabama Power Company AMAX, Inc. Amselco Minerals, Inc. ASARCO Incorporated Atlantic Richfield Company Atlas Minerals Division, Atlas Corporation BP Minerals America Brush Wellman Inc. Callahan Mining Corporation Central/Ohio Coal Company Chevron Resources Company Cleveland-Cliffs Inc. Coastal States Energy Company Colowyo Coal Company Cominco American Inc. Consolidation Coal Company Cotter Corporation Cyprus Minerals Company Doe Run Company Dow Chemical Company, U.S.A. Dravo Lime Company Duquesne Light Company Eagle-Picher Industries, Inc. Engelhard Corporation, Minerals and Chemical Division -4 - CMA 053487 Exxon Coal & Minerals Company FMC Corporation Freeport-McMoRan Inc. General Portland Inc. W.R. Grace & Co., Mining Division GTE Products Corporation M.A. Hanna Company Harshaw/Filtrol Partnership Hecla Mining Company Homestake Mining Company IMC Fertilizer, Inc. Inspiration Consolidated Copper Company Island Creek Coal Company Jim Walter Resources Kerr-McGee Corporation Lone Star Industries, Inc. Magma Copper Company Medusa Corporation Mid-Continent Resources, Inc. Mobil Alternative Energy, Inc. Monsanto Company National Gypsum Company NERCO, Inc. Newmont Mining Corporation Oglebay Norton Company Peabody Holding Company, Inc. Pfizer Inc. Phelps Dodge Corporation Pittsburg St Midway Coal Mining Company Pocahontas Land Corporation Rochester St Pittsburgh Coal Company SF Minerals Corporation Southwestern Portland Cement Company Standard Oil/BP America Sun Company, Inc. Sunbelt Mining Company, Inc. Tenneco, Inc. Texaco Inc., Alternate Energy St Resource Department Texas Utilities Mining Company Texasgulf Inc. Union Pacific Resources Company United Nuclear Corporation United States Borax St Chemical Corporation United States Fuel Company United States Gypsum Company Unocal Corporation Utah Power & Light, Mining Division Wyodak Resources Development Corporation -5- CMA 053488 MANUFACTURING AND ENGINEERING MEMBERS Adalet-PLM Division, Scott & Fetzer Company Allis-Chalmers Corporation Anderson Power Products, Division of High Voltage Engineering Anixter Brothers, Inc. Atlas Powder Company Baker Hughes Mining Equipment Company Bethlehem wire Rope, Division of Bethlehem Steel Corp. Bird Machine Company, Inc. Brown & Root U.S.A., Inc. Bucyrus-Erie Company, Division of Becor-Western, Inc. Caterpillar Inc. Centrifugal & Mechanical Industries, Inc. Certainteed Corporation Cliffs Engineering, Inc. Coors Ceramics Company Cummins Engine Company, Inc. Donaldson Company, Inc. Dresser Construction and Mining Equipment, Dresser Industries, Inc. Drilco Industrial E.I. du Pont de Nemours & Co., Inc. ENI Engineering Company Fairchild International Fansteel, VR/Wesson Mining and Construction Tool Group Firestone Tire & Rubber Company Fluor Daniel Frazer & Jones Company GH-Hensley Gardner-Denver Mining & Construction Inc. General Electric Company Goodyear Tire & Rubber Company Harnischfeger Corporation Ingersoll-Rand Company Jacobs Engineering Group, Inc. Joy Technologies Inc. Kennametal Inc., Mining Tool Group MacLean-Hunter Publishing Corp. Marathon LeTourneau Company Mine Safety Appliances Company Mobil Oil Corporation Moog, Inc. Motorola C&E, Inc. National Mine Service Company Peabody ABC Corporation Roberts & Schaefer Company 6 CMA 053489 Simplicity Engineering Division, Lukens General Industries, Inc. Southern Company Services, Inc. Stearns-Roger Division, United Engineering & Constructors, Inc. Teledyne Monarch Rubber TRW Inc., Mission Drilling Products Division VME Americas, Inc. Wagner Mining Equipment Company Waldon, Inc. Walter Kidde, Division of Kidde Inc. Westinghouse Electric Corporation FINANCIAL MEMBERS The Arizona Bank Bank of New York Barclays Bank PLC Chase Manhattan Bank Chemical Bank Citibank Continental Illinois National Bank and Trust Company of Chicago First Interstate Bank of Arizona First National Bank of Chicago Manufacturers Hanover Trust Company, Metals & Mining Group Morgan Guaranty Trust Company Republicbank, Energy Banking Group Chemical Manufacturers Association ("CMA") The undersigned counsel of record for Petitioner CMA certifies that CMA is a nonprofit trade association whose member companies represent more than 90 percent of the production capacity of basic industrial chemicals within this country. CMA has no outstanding securities in the hands of the public. 7 CMA 053490 National Solid Wastes Management Association ("NSWMA") The undersigned counsel of record for Petitioner NSWMA certifies that NSWMA is a nonprofit trade association with no parent company/ subsidiaries or affiliates. Pursuant to Rule 11(a)(1)(A) of the General Rules of this Court, the following is a list of the individual corporate petitioners and the parents, subsidiaries, and affiliates, if any, of these parties which have outstanding securities in the hands of the public: Brownina-Ferris Industries, Inc. ("BFI") The undersigned counsel'of record for Petitioner BFI certifies that BFI has outstanding securities in the hands of the public. BFI has no parents, affiliates or subsidiaries with publicly held securities. BFI is engaged in the business of waste disposal and landfill management. ChemlcaL_Waste Management. Inc. ("CWM") The undersigned counsel of record for Petitioner CWM certifies that CWM and CWM's parent. Waste Management, Inc., both have outstanding securities in the hands of the public. Both corporations are engaged in the business of waste treatment, storage, disposal and transportation. CWM owns 49 percent of the stock of The Brand Companies, Inc., a publicly 8 CMA 053491 traded company doing asbestos abatement and specialty contracting. The Dow Chemical Company ("Dow") The undersigned counsel of record for Petitioner Dow certifies that Dow has outstanding securities in the hands of the public. Counsel further certifies that the following are subsidiaries or affiliates of Dow, some of which have securities in the hands of the public: Admiral Equipment Co. Alamo Land Company Inc. Boride Products, Inc. Cayuse Pipeline Company CD Medical, Inc. CD Home Dialyservice, Inc. DCOMCO, Inc. DCU/LB TRUST Dofinco Inc. Dow Chemical (China) Ltd. Dow Chemical Delaware Corporation Dow Chemical Inter-American Limited Dow Chemical International Inc. of Delaware Dow Chemical International Ltd. Dow Chemical Investment Inc. Dow Consumer Products Inc. Dow Corning Corporation Dow Credit Corporation Dow Energy Resources Germany, Inc. Dow Engineering Company Dow Engineering Inc. Dow Intrastate Gas Company Dow Pipeline Company Dowell Schlumberger Incorporated El Dorado Terminals Incorporated FilmTec Corporation Great Western Pipeline Company, Inc. Insul/Crete Company, Inc. Joliet Marine Terminal Trust Estate Lamaur, Inc. Liana Limited Dorinco Reinsurance Company 9 CMA 053492 Louisiana Gasification Technology, Merrell Dow Pharmaceuticals Inc. NKY Distribution Center Inc. Metal Mark, Inc. Midland Pipeline Corp. Oyster Creek Refining Corporation Rofan Energy Inc. The Cynara Company United AgriSeeds, Inc. DeWine Seed Company, Inc. Hofler Seed Company, Inc. Keltgen Seed Company, Inc. Lynks Seed Company, Inc. Zip Pak Incorporated me. E.I. du Pont de Nemours & Co. ("DuPont") The undersigned counsel of record for Petitioner DuPont certifies that DuPont does have outstanding securities in the hands of the public. Counsel further certifies that the following are subsidiaries or affiliates of DuPont that have securities in the hands of the public: DuPont Canada, Inc., Conoco Exploration Limited. Moreover, although it is not a subsidiary or affiliate of DuPont, the Seagram Company, Limited (through wholly-owned subsidiary companies) owns approximately 22 percent of DuPont's common stock. The Monsanto Company ("Monsanto") The undersigned counsel of record for Petitioner Monsanto certifies that Monsanto does have outstanding securities in the hands of the public. Counsel further certifies that the following are subsidiaries or affiliates of Monsanto that have securities in the hands of the public: 10 CMA 053493 Xylogics Corp., Invitron Corp., Micro General Corp., Telesis (Valid Logics), Weiteck, Novellus Systems Co., Inc., G.D. Searle, Inc., Monsanto Capitals PLC. Waste Management of North America. Inc. ("WMNA") The undersigned counsel of record for Petitioner WMNA certifies that WMNA has no outstanding securities in the hands of the public. WMNA's parent. Waste Management, Inc., has outstanding securities in the hands of the public, as does WMNA's affiliate. Chemical Waste Management, Inc. WMNA owns 22 percent of the stock of Wheelabrator Technologies, Inc., which has outstanding securities in the hands of the public. All four corporations are engaged in the business of waste treatment, storage, disposal or transportation. B. RULINGS UNDER REVIEW The final agency action to be reviewed in this proceeding is "Land Disposal Restrictions for First Third Scheduled Wastes," signed August 8, 1988 and published on August 17, 1988 (53 Fed. Reg. 31138). C. RELATED CASES This case has not previously been before this Court or any other court. The undersigned counsel of record state to the best of their belief, pursuant to Rule 11(a)(1)(C) of the 11 CMA 053494 General Rules of this Court, that the case captioned Hazardous Waste Treatment Council v. United States Environmental Protection Aaencv. Lee M. Thomas, Administrator. Nos. 86-1657 et al., pending in this Court, involves certain issues similar to those raised by the instant Petition. Parties to this action that are parties to that case are: the Environmental Protection Agency, Chemical Waste Management, Inc., and the Hazardous Waste Treatment Council. In Shell Oil Co. v. EPA. No. 80-1532, Petitioner AMC has asked that a briefing schedule be established with regard to whether the derived-from rule, 40 C.F.R. 261.3(c)(2)(i), and the mixture rule, 40 C.F.R. 261.3(a)(2)(iv), are arbitrary and capricious. Particular applications of these rules are at issue in this litigation. Respectfully submitted. Kevin A. Gaynor Counsel for Browning-Ferris Industries, Inc. Angus Macbeth Counsel for Waste Management of North America, Inc. and National Solid Wastes Management Association John N. Hanson Counsel for American Mining Congress J. Brian Molioy Counsel for Chemical Waste Management, Inc. Gary H. Baise Counsel for American Iron and Steel Institute John T. Smith II Counsel for Chemical Manufacturers Association, E.I. du Pont de Nemours & Company, and Monsanto Company Karl S. Bourdeau Counsel for The Dow Chemical Company - 12 - CMA 053495 TABLE OF CONTENTS Eag.e TABLE OF AUTHORITIES.......................................................................................... iv STATEMENT OF THE ISSUES............................................................................. 1 STATUTES AND REGULATIONS ......................................................................... 2 JURISDICTION ....................................................................................................... 2 STATEMENT OF THE CASE.................................................................................... 3 A. The RCRA "Land Ban"Program.......................................... 4 B. The August 8 Rule and Its Regulatory Principles.................................................... 6 1. The Waste Code Carry-Through Principle .................................................................. 6 2. The RetroactivityPrinciple .......................... 13 3. The Contained-InPrinciple.....................................15 C. The Stay PendingReview....................................................... 16 SUMMARY OF THE ARGUMENT..................................................................................... 16 ARGUMENT...................................................................................................................... 18 I. THE BDAT TREATMENT STANDARDS ESTABLISHED IN THE AUGUST 8 RULE ARE ARBITRARY AND CAPRICIOUS AS APPLIED TO LEACHATES, LEACHATE TREATMENT RESIDUES, AND SUBSTANCES CONTAMINATED BY LEACHATES.............................................................................................. 18 II. THE AUGUST 8 RULE'S WASTE CODE CARRY-THROUGH PRINCIPLE IS ARBITRARY AND CAPRICIOUS................................................... 26 A. Derived-From Wastes Are a Separate Category of Wastes and Are Not Listed Hazardous Wastes..........................................................................................26 B. EPA's Waste Code Carry-Through Principle Is Unworkable and. Therefore, the August 8 Rule Is Arbitrary and Capricious...........................................................................29 CM* 053496 III. IV. V. gage THE AUGUST 8 RULE GIVES IMPERMISSIBLE RETROACTIVE EFFECT TO RCRA AND ITS REGULATIONS ........................................................ 29 A. Statutes Must Be Applied Prospectively Unless There Is Unequivocal Legislative Intent To The Contrary; There Is No Such Intent In RCRA......................................................................................... 29 B. RCRA Cannot Be Given Retroactive Effect Through Reliance On CERCLA.................................................................................... 34 C. Retroactive Application of RCRA and Its Regulations Creates the Very Type of Hardship and Unfairness That the Presumption Against Retroactivity Was Developed to Prevent ....................................................35 EPA'S DERIVED-FROM AND MIXTURE RULES CANNOT LAWFULLY TRANSFORM CONTAMINATED GROUNDWATER, SOIL OR OTHER ENVIRONMENTAL MEDIA INTO HAZARDOUS WASTE. . .'......................................37 A. EPA's Extension of the Derived-From and Mixture Rules to Contaminated Environmental Media Exceeds Its Statutory Authority...............................................37 B. EPA's Application of Its Derived-From and Mixture Rules to Contaminated Environmental Media Is Arbitrary and Capricious .......................................... 38 THE PRINCIPLES ENUNCIATED IN EPA'S AUGUST 8 RULE HAVE ALREADY COMBINED TO. OBSTRUCT ENVIRONMENTALLY DESIRABLE ACTIVITY................................................... 43 ii CMA 053497 gaae VI. THE AUGUST 8 RULE, WHICH ESTABLISHES NEW REGULATORY PRINCIPLES, VIOLATES THE NOTICE AND COMMENT REQUIREMENTS OF THE, ADMINISTRATIVE PROCEDURE ACT....................................................................................................... 45 A. The Regulatory Principles Announced In the August 8 Rule Are Substantive Rules for Which EPA Must Provide Adequate Notice and Opportunity for Comment.................................................................................45 B. EPA Failed to Provide Adequate Notice of and Opportunity to Comment on These Regulatory Principles.................................................................................47 CONCLUSION................................................................................................................. 49 \ - iii - ^ 053498 TABLE OF AUTHORITIES CASES: Page American Bancorporation, Inc, v. Board of Governors. 509 F.2d 29 (8th Cir. 1974)............................ 46 American Bus Association v. United States/ 627 F.2d 525 (D.C. Cir. 1981).............................................................................. 46 * Community Nutrition Institute v. Young. 818 F.2d 943 (D.C. Cir. 1987)................................. 46 Council of Southern Mountains. Inc, v. Donovan. 653 F.2d 573 (D.C.Cir. 1981)................................. 48 Guardian Federal Savings. & Loan Institution v. FSLIC, 589 F.2d 658 (D.C. Cir. 1978).............................................................................. 46 * In re District of Columbia Workmen*s Compensation Act. 554 F.2d 1075 (D.C. Cir.)/ cert, denied. 429 U.S. 820 (1976) . . ............................ 30 Kennecott v. EPA. 780 F.2d 445 (4th Cir. 1985), cert, denied. 479U.S. 814 (1986)....................................... 21 * McLouth Steel Products Corn, v. Thomas. 838 F. 2d 1317 (D.C. Cir. 1988)................... ........................... 46, 47 48, 49 Motor Vehicle Manufacturers Association v. State Farm Mutual Auto Insurance Co.. 463 U.S. 29 (1983)........................................................................... 38 * National Lime Association v. EPA, 627 F. 2d 416 (D.C. Cir. 1980)............................................... 24, 25 National Tour Brokers Association v. United States. 591 F.2d 896 (D.C. Cir.- 1978)................................................................................ 48 One LO-t_Emerald Cut Stones & One Ring v. United States. 409 U.S. 232 (1972) 45 * Authorities principally relied upon are marked with an asterisk. - iv - CMA 053499 Paoe Reynolds Metals Co. v. EPA, 760 F.2d 549 (4th Cir. 1985) ................................................................................ 21 Sierra Club v. Costle. 627 F.2d 298 (D.C. Cir. 1981)................................................................................ 24, 25 Small Refiner Lead Phasedown Task Force v. EPA, '705 F. 2d 506 (D.C. Cir. 1983)...................................... '25 United States v. Affleck, 765 F.2d 944 (10th Cir. 1985)................................................................................ 45 United States v. Northeastern Pharmaceutical & Chemical Co.. 810 F.2d 726 (8th cir. 1986), cert, denied. 108 S. Ct. 146 (1987)................................. 34 United States v. Ottati & Goss. Inc.. 630 F. Supp. 1361 (D.N.H. 1985).......................................... 35 United Steelworkers v. Marshall. 647 F.2d 1189 (D.C. Cir. 1980), cert. denied. 453 U.S. 913 (1981) ................................................................................ 26 CONSTITUTIONS! U.S. Const, art. I, 9, cl. 3.................................................... Colo. Const, art. II, 11............................................................. Mo. Const, art. I, 13.................................................................. N.H. Const, pt. I, art. 23............................................................. Tenn. Const, art. I, 20............................................................. Tex. Const, art. I, 16................................................................. 45 13 13 13 13 13 STATUTES: Administrative Procedure Act, Pub. L. No. 89-554, 80 Stat. 381 (1966) codified, as amended, at 5 U.S.C. 551 seo. 5 U.S.C. 553 ............................................................................... 46 -v- CMA 053500 Page Resource Conservation and Recovery Act, Pub. L. No. 94-580, 90 Stat. 2796 (1976) codified, as amended, at 42 U.S.C. 6901 si sea........................ 1 1004(5), 42 U.S.C. 6903(5) .......................................... 37 1004(27), 42 U.S.C. 6903(27) ...................................... 40 3001, 42 U.S.C. 6921 ........................................................ 37 3004(d), 42 U.S.C. 6924(d) .......................................... 5 3004(e), 42 U.S.C. 6924(e).......................................... 5, 42 3004(g), 42 U.S.C. 6924(g).......................................... 5, 6, 28 3004(j), 42 U.S.C. 6924(j) .......................................... 12 3004(m), 42 U.S.C. 6924(m).......................................... 5, 27 3006(b), 42 U.S.C. 6926(b) .......................................... 13 3010, 42 U.S.C. 6930 ........................................................ 30 7006(a), 42 U.S.C. 6976(a) .......................................... 2 REGULATIONS: 40 C.F.R. 260.20 ............................................................................... 42 40 C.F.R. 260.22 ............................................................................... 27, 28, 42 40 C.F.R. 261.3(a) (2) (iv)......................................................... 4, 5, 39 40 C.F.R. 261.3(c)(2)(i)) ........................................................ passim 40 C.F.R. 261.3(d)(2) ................................................................. 28, 42 40 C.F.R. Part 261, Subpart C..................................................... 4 40 C.F.R. Part 261, Subpart D......................................................... 5 40 C.F.R. 261.31............................................................................... 43 40 C.F.R. 261.33 ............................................................................... 43 40 C.F.R. 261.33(d))...................................................................... 41, 42 - vi - CMA 053501 Page 40 C.F.R. 262.11 . . . ............................................................. 27 40 C.F.R. 264.100 40 40 C.F.R. 264.301(a)(2) 8 40 C.F.R. 265.113 45 40 C.F.R. 268.10-268.12 ............................................................. ' 6 40 C.F.R. 270.10(e) 31 40 C.F.R. 270.70(a) 31 43 Fed. Reg. 58946(1978)............................................................... 32 45 Fed. Reg. 33066(1980)............................................................... 49 45 Fed. Reg. 33084(1980)............................................................... 31 45 Fed. Reg. 33154(1980)............................................................... 32 45 Fed. Reg. 86968(1980)............................................................... 27 46 Fed. Reg. 4614 (1981).................................................................. 31 47 Fed. Reg. 32274 (1982) ............................................................. 32, 40 48 Fed. Reg. 14514 (1983)............................................................. 43 49 Fed. Reg. 19921 (1984)................................................... . . 31 50 Fed. Reg. 614 (1985) 7 50 Fed. Reg. 1978 (1985)........................................................ 43 50 Fed. Reg. 37338 (1985) 7 50 Fed. Reg. 53315 (1985) 31 51 Fed. Reg. 37723 (1986) 31 51 Fed. Reg. 40572 (1986) ............................................................. 5, 6, 19, 32 52 Fed. Reg. 22356 (1987) 7 52 Fed. Reg. 25760 (1987) 7 53 Fed. Reg. 37912 (1988) 11 - vii - CMA 053502 Page LEGISLATIVE MATERIALS: S. Rep. No. 284, 98th Cong., 1st Sess. 5 (1983)....................................................................................................... 33, 36 H.R. Rep. No. 1133, 98th Cong., 2d Sess. 117, reprinted in 1984 U.S. Code Cong. & Admin. News 5576, 5688 (Conference Report) ................................. 33 126 Cong, Rec. S14962 (daily ed. Nov. 24, 1980) (remarks of Sen. Randolph)...................................................... 31 129 Cong. Rec. H9162 (daily ed. Nov. 3, 1983) (remarks of Rep. Florio)........................................................... 36 130 Cong. Rec. S9150 (daily ed. July 25, 1984) (remarks of Sen. Randolph)...................................................... 36 130 Cong. Rec. S9178 (daily ed. July 25, 1984) (remarks of Sen. Moynihan) ........................................................ 5 - viii - CMA 053503 ORAL ARGUMENT SCHEDULED FOR JANUARY 31, 1989 STATEMENT OF THE ISSUES On August 8, 1988, the Environmental Protection Agency ("EPA" or "the Agency") promulgated regulations under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6901 sea., restricting the land disposal of certain hazardous wastes (the "August 8 rule"). See 53 Fed. Reg. 31138 (Aug. 17, 1988). This consolidated brief^ addresses five "leachate-related" issues raised by EPA's August 8 rule: 1. Whether EPA has unlawfully set treatment standards for leachates, 2/ leachate treatment residues, and anything contaminated by leachate (collectively referred to as "leachates and leachate materials") without any study of the chemical and physical character or treatability of these materials and without any record evidence that these materials can be treated to meet those standards through demonstrated and available technology; 2. Whether EPA*s position that leachates and leachate materials are regulated under the August 8 rule not as newly generated hazardous wastes, but as each of the "listed" 1/ Petitioners Browning-Ferris Industries, Inc. and Chemical Waste Management, Inc. do not join in Section IV of the Argument in this brief. U Leachate is liquid, including suspended components in the liquid, that has percolated through or drained from waste. CMA 053504 hazardous wastes from which they derive, is arbitrary and capr.ici.ous; 1/ 3. Whether EPA's newly announced position that hazardous waste listings are retroactive and EPA's decision to regulate as hazardous waste certain leachates derived from wastes that were not listed until after disposal exceed EPA's statutory authority and are arbitrary and capricious; 4. Whether EPA's newly announced position that contaminated environmental media must be managed as hazardous waste exceeds EPA's statutory authority and is arbitrary and capricious; and 5. Whether, in violation of the Administrative Procedure Act, EPA deprived the regulated community of adequate notice and opportunity for comment regarding three regulatory principles announced in this rulemaking's preambles. STATUTES AND REGULATIONS Pertinent statutes and regulations are set forth in an appendix attached to this brief. JURISDICTION This Court has subject matter jurisdiction over this proceeding under section 7006(a) of the Resource Conservation \ and Recovery Act, 42 U.S.C. 6976(a). 3/ Petitioners do not contest in this proceeding that leachate from a regulated hazardous waste management unit containing listed hazardous wastes is a hazardous waste. -2- CMA 053505 STATEMENT OF THE CASE The August 8 rule is part of the RCRA "land ban" program established by the Hazardous and Solid Waste Amendments of 1984 ("HSWA") to restrict the land disposal of untreated hazardous wastes. This rule establishes treatment standards for 37 listed hazardous wastes among the "first-third" of the universe of regulated hazardous wastes. In this rule, EPA promulgates three regulatory principles of vast importance to the RCRA program. First/ EPA asserts that hazardous waste listings encompass not only the wastes expressly described in the Agency's regulations but also all residues from managing those wastes. Despite chemical and physical changes that occur when such residues are produced/ EPA announced that leachate and leachate materials must bear the waste codes of all the listed wastes from which they might have derived. Based on this decision, EPA then subjected vast quantities of these "derived-from" materials and mixtures to multiple technology-based treatment standards developed for the individual "underlying" wastes, without evaluating whether such materials and mixtures can be treated to meet those standards using proven and practically available technology. Second, EPA asserts for the first time in a rulemaking that its hazardous waste listings are retroactive, thus ignoring the prospective nature of RCRA and vitiating the programmatic distinction that Congress established between -3- CMA 053506 hazardous waste and solid waste facilities. Finally, EPA contends, without statutory or record support, that all environmental media contaminated by any concentration of a hazardous constituent derived from a listed hazardous waste must be managed as listed hazardous wastes.-^ These far-reaching regulatory principles, announced without adequate notice and opportunity for comment, will mak compliance with EPA's land ban treatment standards impossible in many cases. They will also result in classifying some materials as hazardous despite their non-hazardous character, thereby needlessly disrupting environmental cleanup efforts. A. Th.e_RC.RA__"Land_Ban" Program. Under the RCRA "land ban," EPA must issue regulations prohibiting the land disposal of certain hazardous wastes^ 4/ Petitioners do not challenge the validity of the underlying derived-from or mixture rules, 40 C.F.R. 261.3(a)(2)(iv), 261.3(c)(2)(i), in this case. Petitioner American Mining Congress has asked in the Shell Oil litigation. No. 80-1532, that a briefing schedule be established with regard to whether the derived-from and mixture rules are arbitrary and capricious. 5/ in regulations that became effective in 1980, EPA established four categories of hazardous waste: \ (1) "Characteristic" wastes -- wastes that exhibit any of four characteristics of hazardousness: corrosivity, ignitability, reactivity, and toxicity. 40 C.F.R. Part 261, Subpart C. (2) "Listed" wastes -- wastes EPA has specifically [Footnote continued on following page] -4- CMA 053507 pursuant to statutory deadlines. 42 U.S.C. 6924(d), (e), (g). When EPA subjects a waste to the land ban, the Agency also must set a treatment standard for that waste assuring a substantial reduction in the toxicity or mobility of its hazardous constituents. I&. 6924(m). With certain limited exceptions and variances, any waste subject to the land ban cannot be placed in land disposal units (including landfills and surface impoundments) until it has been treated to meet th prescribed treatment standard. The land ban treatment standards must be achievable through existing, proven technology. See 130 Cong. Rec. S9178 (daily ed. July 25, 1984) (remarks of Sen. Moynihan). In the first phase of the land ban, which established a "regulatory framework" for the entire program, EPA specified that the land ban would employ technology-based. rather than risk-based, treatment standards, using "Best Demonstrated Available Technology" ("BDAT"). 51 Fed. Reg. 40572, 40578 (Nov. 7, 5/ [Footnote continued] designated as hazardous based on an evaluation of the environmental and human health risks posed by their potential mismanagement. 40 C.F.R. Part 261, Subpart D. (3) "Mixed" wastes -- mixtures of solid waste and listed hazardous waste. 40 C.F.R. 261.3(a)(2)(iv). (4) "Derived-from" wastes -- wastes "derived from" the "treatment, storage or disposal of a [listed] hazardous waste" including sludges, spill residues, ash, emission control dusts, and leachates. 40 C.F.R. 261.3(c)(2)(i). -5- CMA 053508 1986). That rule also specified how EPA would determine whether a treatment technology is "demonstrated" and "available" for each waste. 14. at 40588-89. B. The August 8 Rule and Its Regulatory Principles. In the August 8 rule/ which was proposed on April 8 and May 17, 1988, EPA considered whether to restrict land disposal of the first-third of the RCRA hazardous wastes^ and established BDAT treatment standards for 37 of those wastes. In the preambles to the rule, EPA announced three principles governing application of the August 8 rule, and other aspects of the land ban program and the broader RCRA system, to leachate and leachate materials. Each of these principles has far-reaching consequences, which EPA failed to recognize in part because of its failure to solicit and give adequate consideration to the regulated community's views. 1. Th.e_waste Code Carry-Through Principle. The preambles in this rulemaking announced that listed waste codes carry through to residues under the derived-from / HSWA required EPA to prepare a schedule for restricting land disposal of all hazardous wastes in one-third increments by August 8, 1988 (first-third), by June 8, 1989 (second-third), and by May 8, 1990 (third-third). 42 U.S.C. 6924(g); 40 C.F.R. 268.10-268.12. -6- CMA. 053509 rule.- Consequently, this rule declares that leachates and other residues of hazardous waste management will be subject to the land ban prohibitions and treatment standards, as well as other RCRA requirements, not as newly generated wastes, but as though they somehow are each of the listed wastes from which they derive. This rulemaking contained the first clear indication that EPA would employ such a waste code carry-through principle in the land ban program.^ Industry did not have the opportunity, therefore, to develop comprehensive data on the appropriateness of applying land ban 2/ The "derived-from" rule provides that a waste, such as leachate, that is derived from treatment, storage or disposal of a listed hazardous waste is & hazardous waste. See 40 C.F.R. 261.3(c)(2)(i). Yet, by virtue of the waste'code carry-through principle, EPA views leachates and other residues not as merely hazardous wastes, but rather as being all of the listed hazardous wastes that were ever placed in the units from which these materials derive. 53 Fed. Reg. at 31148-49. &S Petitioners believe they have located the earliest public notice of EPA's alleged "long-standing interpretation" fsee 53 Fed. Reg. at 17586) of the derived-from rule to transform derived-from wastes into the listed wastes from which they derive. This reference is in an obscure footnote buried in a 54-page preamble to the revised definition of "solid waste" published January 4, 1985. 50 Fed. Reg. 614, 619 n.7. The implications of this statement for leachate under the land ban are not apparent. An even more obscure statement appeared in a preamble to a September 12, 1985 modification of the RCRA rules. 50 Fed. Reg. at 37338. Absent these two preamble statements and two 1987 statements that seemingly confirm that derived-from wastes are newly generated wastes, 52 Fed. Reg. 22356, 22357 (June 11, 1987) and 52 Fed. Reg. 25760, 125767 (July 8, 1987), the public was not formally notified of EPA's current view of leachate until this rule was proposed on April 8, 1988 (53 Fed. Reg. at 11751) and May 17, 1988 (53 Fed. Reg. at 17586). -7- CMA 053510 treatment standards for the underlying wastes to leachate and other "derived-from" residues, and EPA did not undertake to do so. The Agency simply assumed that leachate is a more dilute form of each of the listed wastes from which it derives. It further assumed that if a treatment standard is achievable for the most concentrated form of a waste, it will also be achievable for less concentrated forms of the waste. See 53 Fed. Reg. at 31149-50. Despite record evidence of the chemical and physical dissimilarities between leachate and the individual listed wastes from which it derives (see infra notes 19 & 21), EPA maintains that leachate is subject to all of the land ban treatment standards for every one of those listed wastes. Id. at 31147. Application of treatment standards developed for individual wastes to leachates and other residues threatens massive disruption within the regulated community. Leachate generators face technological, legal and capacity restraints that preclude compliance with the August 8 treatment standards. Leachate generation is a natural process that can be controlled but not stopped. At most active hazardous waste units, federal and state regulatory requirements compel collection and management of leachate. See, e.q.. 40 C.F.R. 264.301(a)(2). Leachate management often involves treatment prior to disposal and, in virtually every instance, that -8- 0535H treatment yields a residue. Yet EPA's decision to subject leachates and leachate materials to all of the treatment standards developed for the wastes from which they derive renders most hazardous waste leachates and residues virtually unmanageable. 9 / Until EPA proposed the August 8 rule, the regulated community had always regarded and managed leachates from their RCRA-regulated hazardous waste units as hazardous wastes. They understood/ however, based on the language of the derived-from rule, EPA's eight years of administering that rule, and the chemical and physical character of leachates, that leachates are distinct and separate wastes generated in the hazardous waste management process. Accordingly, 2/ The problems encountered in managing leachate under the August 8 rule also complicate treatment and management of other residues of hazardous waste management, most notably incinerator ash. See infra note 11. !/ Prior to August 8, a panoply of restrictions governed treatment and disposal of leachate, assuring its handling in an environmentally acceptable manner. (Johnson Affidavit, 1f3, Emergency Motion of Petitioner Browning-Ferris Industries, Inc. for Partial Stay Pending Review, filed August 10, 1988, No. 88-1592 ("BFI's Motion for Stay")). Several Petitioners are presently handling their leachate in precisely the manner that Respondent suggests is proper for handling these wastes to comport with the land ban restrictions -- deep well injection and discharge to wastewater treatment plants. See Affidavit of G. Douglas Clark ("Clark Affidavit"), Ihf 7-17, 28-35, Attachment B to Emergency Motion of Petitioner Chemical Waste Management, Inc. for Stay Pending Review, filed August 9, 1988, Dkt. No. 88-1581 ("CWM's Motion for Stay"); Respondent's Memorandum of Law in Opposition to Motion for Stay, Dkt. 88-1581, at 13, filed August 12, 1988 ("Respondent's Opposition to Stay, Dkt. 88-1581"). -9- CMA 053512 Petitioners expected EPA to bring leachates and other residues directly into the land ban by promulgating specific BOAT treatment standards for these materials based on a study of their characteristics and their susceptibility to treatment through various available proven technologies. EPA's regulatory short-cut of transferring treatment standards developed for individual listed hazardous wastes to leachates, which may derive from hundreds of hazardous wastes, creates insurmountable problems. Before land disposal, leachates must be treated to meet the most stringent BDAT standards established for every constituent in each underlying waste. Moreover, any residues from treating leachates must also meet the most stringent of those standards. Yet the record contains no evidence that EPA evaluated whether demonstrated and available technology exists through which leachates and leachate materials or other complex mixtures and residues cah be treated to meet the August 8 standards. In fact, such technology does not exist. Of particular import are the problems posed by EPA's decision to set a "treatment standard" of "no land disposal" for a number of wastes. 53 Fed. Reg. at 31221. No matter what degree of treatment is achieved, these wastes can never be land disposed. Many of Petitioners' land disposal facilities received such wastes in the past. Under EPA's newly enunciated principles, residues from treating leachate from any landfill -10- CMA 053513 that holds even one bucket of certain "no land disposal" wastes also can never be land disposed EPA also failed to address substantial permitting and capacity problems that were raised by Petitioners during the comment period. See, e.g., CWM Comments at 1-17 (J.A. ______ ). Most RCRA facilities are authorized to accept only specified waste codes. Very few, if any, have authorization to handle the scores of wastes now deemed by EPA to be present in commercial landfill leachates and other residues.In fact, some wastes formerly managed at Petitioners' facilities -- in full compliance with all regulations then in effect -- can no longer be lawfully handled at any facility. See Clark 11/ Incineration, which is not a land disposal method, does not offer any way out of this dilemma. Even if all other applicable treatment standards can be achieved through incineration, the ash created in burning leachates derived from certain "no land disposal" wastes would carry the "no land disposal" waste code and would be undisposable. Moreover, as a practical matter, the estimated existing liquid hazardous waste incineration capacity is pitifully insufficient to handle the billion gallons a year of leachate from RCRA Subtitle C facilities. See 53 Fed. Reg. at 31193; Affidavit of Johan E. Bayer Iflf 8-15, Attachment C to CWM's Motion for Stay; Comments of Chemical Waste Management, Inc. on May 17 proposal ("CWM Comments"), Docket No. LDR8-0051, at 1 (J.A. ). 12/ Johnson Affidavit, Iflf 8, 9, 12, BFI's Motion for Stay. EPA may suggest that Petitioners can modify their permits to include the necessary codes. This suggestion ignores the practical realities that EPA and state permitting agencies have discretion to deny such requests and that, in any case, their processing will require at least 6 months (53 Fed. Reg. 37912, 37913 (Sep. 28, 1988)) -- during which period Petitioners could not lawfully manage leachates and other treatment residues. See also Johnson Affidavit, Iflf 14, 20. -11- CMA 053514 Affidavit If 12, CWM's Motion for Stay; Johnson Affidavit If 12, BFl's Motion for Stay. Petitioners' leachates and other residues will bear the codes applicable to those wastes and consequently will have no lawful resting place. EPA nevertheless failed to consider this problem in setting the August 8 treatment standards and in assessing the availability of treatment capacity. EPA apparently believes that Petitioners can turn to commercial wastewater treatment facilities and publicly owned treatment works ("POTWs") to treat their leachates. See 53 Fed. Peg. at 31150. A simple telephone survey of EPA's own Regional Offices and of such facilities revealed, however, that these facilities are generally either unwilling or legally unable to handle hazardous waste leachates. See Attachment F, CWM's Motion for Stay. EPA failed to consider whether Petitioners could stor leachates and other residues while they search for a way to comply with the August 8 rule. 13/ As a practical matter, sufficient storage capacity does not exist, and cannot be constructed in a timely fashion, to hold all the leachate's and 12/ storage of land ban wastes is prohibited "unless such storage is solely for the purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment or disposal." 42 U.S.C. 6924(j). This provision may preclude storage in the absence of viable treatment and disposal options. If so, those who cannot cease leachate generation, yet have no other management option for these wastes, would be legally barred from storing them. -12- CMA 053515 leachate materials from RCRA Subtitle C facilities. Thus, if the August 8 rule takes effect as to leachate, the regulated community must inevitably violate legal obligations to collect leachate, or legal restrictions on the types of wastes that facilities can manage, or the August 8 rule. 2. The Retroactivity Principle. EPA also announced in this rulemaking the principle that the RCRA hazardous waste listings have retroactive effect. 53 Fed. Reg. at 17586, 31147. Through this principle, which EPA had never previously advanced in a rulemaking, EPA classifies as listed hazardous waste the leachate from any solid waste disposal facility containing waste listed as hazardous after its disposal. This assertion of retroactivity is contrary to the long-settled and legitimate expectations of the regulated commun14it/y.It is likely that, prior to the effective date of EPA's hazardous waste regulations, issued under RCRA Subtitle C, thousands of non-hazardous waste facilities. -14/ This retroactive effect is also contrary to the expectations of state regulators, many of whom have been authorized by EPA to administer their own hazardous waste programs in lieu of the federal program. 42 U.S.C. 6926(b). For example, a number of state constitutions expressly prohibit retroactive laws. E.g.. Colo. Const, art. II 11; Mo. Const, art. 1, 13; N.H. Const, pt. I, art. 23; Tenn. Const, art. I, 20; Tex. Const, art. I, 16. EPA could not have determined (as it is legally required to do) that such state programs were "equivalent" to the federal program if EPA believed that RCRA has retroactive effect. -13- CMA 053516 regulated under RCRA Subtitle D, accepted solid wastes that EPA later listed as hazardou1s5./Under the Subtitle D regulatory scheme, these facilities have managed leachate as hazardous waste if it exhibited a hazardous characteristic. See id. at 20-26 (J.A. _____). If EPA prevails in applying RCRA retroactively, these facilities generally would be compelled to handle as listed hazardous waste any actively managed leachate derived from the disposal of any waste subsequently listed as hazardous. The Agency's position may deter voluntary and environmentally beneficial collection and management of leachate from Subtitle D units. The record does not support treating leachate from solid waste facilities as listed hazardous waste. The Agency asserted this position without investigating whether leachate from solid waste facilities is in fact hazardous. Nor did EPA determine the volume of Subtitle D leachate generated or the industry's capacity to implement the August 8 rule.-^^ -!/ See, e.a.. Comments of Waste Management of North America, Inc. on May 17 proposal ("WMNA Comments"), Docket No. LDR8-0052, at 4, 16-17 (J.A. ______ ). 15/ EPA based its assessment of leachate on an incomplete survey of Subtitle C hazardous waste facilities, which included no data on Subtitle D facilities. See Docket No. LDR9-S0127 (J.A. at __ ). The roughly 9,000 publicly-owned solid waste landfills in this country alone generate over one billion gallons of leachate. See GRCDA Comments Docket No. LDR8-L038, at 1 (J.A. at ). In response to comments that EPA had [Footnote continued on following page] -14- CMA 053517 Moreover, as discussed below, s,ee infra at 43-44, the Agency's retroactivity principle will cause severe compliance problems for persons managing historical residues in non-hazardous waste facilities as part of remedial actions. Indeed, persons managing such residues under state administrative orders will be forced to violate either those orders or RCRA. 3. The Contained-in Principle. In this rule, EPA has also significantly extended the sweep of the derived-from and mixture rules to require hazardous waste management of any environmental medium, such as soil and groundwater, containing any amount of any constituent from a listed hazardous waste. EPA has made no finding that such contaminated environmental media actually present any significant hazard. Nonetheless, many industrial facilities treating contaminated soil and groundwater would now be subject to RCRA requirements originally designed to ensure the environmentally sound management of truly hazardous waste. lii/ [Footnote continued] underestimated the capacity necessary to treat leachate affected by the retroactivity principle, EPA acknowledged that it did not have adequate information regarding leachate generation from Subtitle D facilities, and that it "would need more data to further evaluate these volumes." Response to WMNA Comments, Docket No. LDR9-S0126,B, at XIV, p. 8 (J.A. ____). Despite this admission, EPA concluded, with no empirical support, that sweeping Subtitle D leachate into Subtitle C would not pose a capacity problem. See iii. (J.A. at __ ). -15- CMA 053518 This principle, in combination with the waste code carry-through and retroactivity principles, vastly expands the universe of material that must be managed as hazardous wastes and poses a significant deterrent to environmentally desirable remedial activities. C. The.. Stay Pending .Review. On August 9 and 10, 1988, Petitioners CVJM and BFI were faced with the prospect of immediate forced noncompliance with the August 8 rule's leachate requirements at their commercial hazardous waste management facilities. Accordingly, they separately filed motions to stay the August 8 rule's application to leachates and leachate treatment residues pending review. This Court granted an administrative stay of the rule on August 9. The Court then, on August 18, 1988, stayed the rule's application to "leachate and anything contaminated by leachate" pending expedited review. On EPA's motion, that order was clarified on September 23, to stay the rule as it applies to "leachate, residues from treating such leachate, and groundwater contaminated with leachate." Thereafter, the Court ordered expedited briefing of the "leachate-related issues." SUMMARY OE THE ARGUMENT EPA's application of BDAT treatment standards intended for underlying listed hazardous wastes to leachates and leachate materials is arbitrary and capricious. EPA lacks a -16- CMA 053519 rational basis in the administrative record to support its assumption that leachate can be treated to meet these standards through use of existing, proven technology. The August 8 rule also incorporates three regulatory principles that lack legal or factual basis. First, EPA states that wastes, such as leachates, that are derived from disposal of hazardous wastes, are each of the listed hazardous wastes from which they derive. This use of the RCRA derived-from rul to carry waste codes through to residues is nothing more than a legal fiction with no basis in either the rule itself or chemistry. Second, in the August 8 rule, EPA applies hazardous waste listings retroactively, thereby violating the tenet of statutory construction against retroactive application absent a clear and unequivocal congressional mandate. RCRA contains no such imperative, a fact EPA has consistently recognized in the past. EPA's reliance on the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") to support its conclusion that RCRA should be given retroactive effect is specious, and underscores the difference between the statutes. Further, retroactive application of RCRA and its regulations v would cause the very hardship and inequity that the presumption against retroactivity was developed to prevent. Third, the Agency's imposition of listed hazardous waste status on contaminated groundwater, soil and other -17- CMA 053520 environmental media exceeds EPA's authority under RCRA to delineate hazardous wastes. Moreover, it is arbitrary and capricious because EPA failed rationally to explain this abrupt change in the regulatory treatment of these materials and the factual basis for its determination that these materials are hazardous under RCRA. Finally, EPA has failed to provide adequate notice and opportunity for comment on these three "regulatory principles," which are substantive rules. The Agency's statements in the preambles to this rulemaking demonstrate that EPA did not have a flexible and open mind on these issues and, therefore, did not fairly consider the regulated community's views. Accordingly, the August 8 rule is arbitrary and capricious as it applies to leachates and leachate materials, and it was promulgated without adherence to procedures required by law. ARGUMENT I. THE BDAT TREATMENT STANDARDS ESTABLISHED IN THE AUGUST 8 RULE ARE ARBITRARY AND CAPRICIOUS AS APPLIED TO LEACHATES, LEACHATE TREATMENT RESIDUES, AND SUBSTANCES CONTAMINATED BY LEACHATES. Through the mere application of the waste code carry-through principle, and without any supporting scientific or technical data, EPA imposes treatment standards designed for the underlying listed hazardous wastes to leachates and leachate materials. The August 8 treatment standards, as -18- CMA 053521 applicable to these materials, lack adequate record support and are, therefore, arbitrary and capricious. When EPA announced its framework for developing the BDAT treatment standards, the Agency declared that "the type of treatment technology used and the level of treatment achieved depend upon the physical and chemical characteristics of the waste." 51 Fed. Reg. 40572, 40588 <Nov. 7, 1986). EPA expressly acknowledged as "fundamental" the proposition that establishing levels to which wastes can successfully be treated, and identifying technologies by which those levels can be achieved, requires knowledge of the physical and chemical characteristics of the wastes in question. Id. Unfortunately, EPA ignored this "fundamental" concept in setting land ban treatment standards for leachates and related materials. The Agency instead brought this major category of hazardous waste into the land ban indirectly, by glibly citing the derived-from rule and assuming that leachate derived from a particular listed waste can be treated to meet the standards for that waste even though the leachate may derive from hundreds of other wastes. The Agency did not examine the characteristics or treatability of representative leachates and treatment residues in developing this rule. Instead, it took the regulatory short-cut of applying the standards for underlying wastes to -19- CMA 053522 leachates.--17/ EPA did no sampling or chemical analysis of leachate wastes, as it did for underlying wastes. 53 Fed. Reg. at 17583-84; jji. at 11749. It established no "treatability groups" for leachates or leachate treatment residues Nor, prior to the April proposal, did EPA provide sufficient notice of its view of the status of derived-from wastes under the land ban to alert industry to the need to develop data on such wastes. See supra note 8. Moreover, although leachates are potentially subject to scores of treatment standards, EPA also failed to indicate which technologies it believes are BDAT for leachate or its treatment residues or in what sequence such technologies should be employed. Instead of analyzing the treatability of derived-from wastes, EPA relied upon an unsupportable reading of the derived-from rule, see infra at 26-29, and a "belief" that such wastes can be treated to meet the standards for underlying wastes "because [leachate] contains lower IZ/ Another EPA office has expressed disapproved this type of scientific short-cut. EPA's January 16, 1987 "Policy for Managing Leachate at PCB Landfills" ("PCB Policy") states that PCB landfill leachate is "a category of material distinct from . . . 'PCB wastes,'" and therefore "subjecting such materials to disposal requirements which are based only on PCB concentration could produce results that are neither feasible nor environmentally sound." Docket No. LDR8-0051, Attachment, at 4, 5 (J.A. at ___ ). 13/ EPA has conceded that it has authority to establish separate treatment standards for leachate but it has chosen not to exercise this authority to conserve "time and resources." Respondent's Opposition to Stay, Dkt. 88-1581, at 27. -20- CMA 053523 concentrations of the constituents of concern than the [underlying] wastes on which the treatment standards are based." 53 Fed. Reg. at 31150; see also id. at 31149. In fact/ leachates and leachate treatment residues bear little, if any, physical or chemical resemblance to the wastes from which they derive. Many physical and chemical processes and reactions take place within a hazardous waste landfill that significantly alter the character, composition and concentrations of the constituents involved. Characteristic hazardous wastes, wastes not yet subject to the land ban, nonhazardous wastes and even the surrounding geology can contribute constituents to a leachate mixture that will affect its treatability. In fact, in cases involving wastewater treatment, EPA itself has argued that factors other than the concentration of waste constituents determine the treatability of those constituentsEPA overlooked these facts in the August 8 rule. 12/ The chemical and physical character of leachate is highly variable, influenced by factors such as location, season and amount of precipitation. See Docket No. LDR8-L007, at 2-1 through 2-5 (J.A. ___ ). Thus, leachates vary not only from site to site but also from time to time at the same site. Id. at Table 3-1 (J.A. ___ ); see also PCB Policy at 3 (J.A. ____); CWM Comments at 10-13 (J.A. _____). 22/ , e.CT.. Kennecott v. EPA. 780 F.2d 445, 451 (4th Cir. 1985), cert, denied. 479 U.S. 814 (1986) (solubility); Reynolds Metals Co._..V. EPA, 760 F.2d 549, 561 (4th Cir. 1985) (solubility in oil and concentration of oil). -21- CMA 053524 The administrative record contradicts both EPA's assertion that leachate is more dilute than the underlying wastes and its assumption that leachate can therefore be treated to meet the August 8 standards. The record instead contains evidence that: (1) certain constituents in some leachates are more, not less, concentrated than in the wastes for which BDAT wastewater treatment standards were set; (2) wastes more dilute than those for which EPA set treatment standards are not necessarily treatable to those standards; and (3) some treated leachates do not meet the standard2s1./ The August 8 rule discusses none of these contradictory data. It is irrational to assume, as EPA does, that "derived-from" wastes such as leachate can be treated to meet the lowest standard applicable to any underlying waste when the standards themselves vary widely even when based on the same technology. Application of the identical BDAT technology to 1/ See Exhibit A to Respondent's Memorandum of Law in Opposition to Motion for Stay, Dkt. No. 88-1592. Record data show that some leachates have constituent concentrations higher than the highest concentrations cited by EPA in wastes for which treatment standards were established under the August 8 rule. See id.: SAIC, "Composition of Leachates From Actual Hazardous Waste Sites," Tables 21, 23, 25 (J.A. at _____ ). Moreover, many residues from treating leachate and other hazardous wastes result from processes that remove, and thereby concentrate, contaminants from waste streams. Treatment residues accordingly often contain much higher levels of hazardous constituents than do the underlying wastes. See generally Rulemaking Petition, submitted by Chemical Waste Management, Inc. on July 27, 1988, Docket No. LDR9-S0156 (J.A. ). -22- CMA 053525 three different wastestreams produced treatment standards for the same constituent that differ by a factor of from four to more than twent2y2E/ PA nevertheless assumes that some unspecified form or sequence of treatment will meet the lowest of all the standards for all constituents in leachates derived from hundreds of underlying wastes. 53 Fed. Reg. at 31146-47. The Agency's assumption has no basis in chemistry or reality and cannot be sustained. The August 8 rule's application to leachates and leachate materials is perhaps most irrational with respect to wastes for which EPA has established a treatment standard of "no land disposal." X&. at 31151. EPA's rationale for these standards is, in part/ that these wastes are no longer being generated or land disposed. Although leachates themselves are not subject to the "no land disposal" standards, id.. non-wastewater derivatives of leachate (i.e.. treatment residues) or other solids contaminated by leachates in many cases are. Consequently, filter cake or other residues from a wastewater treatment plant used to treat leachate from a landfill containing certain "no land disposal" wastes can never 2Z/ EPA based its treatment standards for waste codes K001, K019, and K087 on the same technology -- rotary kiln incineration. Yet the treatment standard for phenanthrene in K019 is 0.007 mg/1, in K087 is 0.028 mg/1, and in K001 is 0.15 mg/1. 53 Fed. Reg. at 31218, 31220. Even if a landfill contained 1,000 times as much K001 as K019, leachate from that landfill would have to meet the lower phenanthrene level established for K019. -23- CMA 053526 be land disposed regardless of the treatment technology used or the level of treatment achieved. Nor could those residues be incinerated without subjecting the resulting ash to the "no land disposal" standard. These wastes have no lawful resting place. Further examination of the August 8 treatment standards reveals that many of the wastewater standards are based on data for "scrubber waters." See, e.o.. 53 Fed. Reg. at 31154 (K015), 31157 (K024). Scrubber waters are residues of incineration, during which organic waste constituents are destroyed. These standards can rationally apply to leachates and other residues only if the Agency assumes that all of the billions of gallons of leachate and contaminated groundwater produced in this country will be incinerated. This assumption is patently absurd. There is nowhere near the incinerator capacity necessary to accommodate these volumes. See surra note 11. EPA has the burden to show that its standards are achievable for the range of conditions to which they apply.Moreover, as this Court has stated, "EPA retains a 11/ National Lime Ass'n v. EPA. 627 F.2d 416, 433 (D.C. Cir. 1980); accord. Sierra. Club v. Costle, 657 F.2d 298, 377 (D.C. Cir. 1981) (EPA must establish that it relied on test data representative of potential industry-wide performance, given the range of identified relevant variable conditions). [Footnote continued on following page] -24- CMA 053527 duty to examine key assumptions as part of its affirmative 'burden of promulgating and explaining a nonarbitrary, noncapricious rule."'*-- Among other things, this means that "the agency must make a reasonable effort to develop the facts, where it has not made that effort, EPA cannot regulate on the basis of a guess about what the facts might be."^^ The Court is to make a "searching and careful" review of the record to ensure that the agency has considered "all of the relevant factors" and has demonstrated "a reasonable connection between the facts on the record and the resulting policy choice."^7 These cases indicate that EPA cannot require industry to disprove its key assumptions. Rather, EPA has an affirmative duty to ascertain the relevant facts and document 23/ [Footnote continued] national Lime Association and Sierra Club addressed technology-forcing standards under Section 111 of the Clean Air Act. Because EPA's BDAT standards are not technology-forcing, but are to be based on proven technology (see 51 Fed. Reg. 40572, 40578 (Nov. 7, 1986)), the burden on EPA to ensure that its land ban treatment standards are achievable is even heavier than the burden recognized in these Clean Air Act cases. The Agency has plainly failed to meet that burden. 21/ SmallRefiner Lead Phasedown Task Force v. EPA. 705 F.2d 506, 534 (D.C. Cir. 1983) (quoting National Lime Ass'n v. EPA. 627 F.2d 416, 433 (D.C. Cir. 1980)). 25/ id. at 531. 25/ Id. at 520 (quoting Citizens to Preserve Overton Park v. Volpe. 401 U.S. 402, 416 (1971) and Sierra.Club v. Costle. 657 F.2d 298, 323 (D.C. Cir. 1981)). -25- CMA 053528 them in the record. here.2^77/ EPA has utterly failed to meet that burden II. THE AUGUST 8 RULE'S WASTE CODE CARRY-THROUGH PRINCIPLE IS ARBITRARY AND CAPRICIOUS._________________________________________ Through its application of the derived-from rule/ EPA imposes the land ban standards designed for particular listed hazardous wastes on separate and distinct wastes that are the product of the waste management process. This position is not supported by the plain language of the derived-from rule and causes the August 8 rule to be arbitrary and capricious. A. Derived-From Wastes Are a Separate Category of Wastes and Are Not Listed Hazardous Wastes. Under the derived-from rule: "[A]ny solid waste generated from the treatment, storage, or disposal of a US EPA's suggestion that the potential availability of treatment variances, 40 C.F.R. 268.44, provides a "safety valve" for leachates must be rejected. 53 Fed. Reg. at 31147. While a variance may be appropriate for "unusual waste matrices," EPA cannot use a variance to evade its obligation to establish achievable standards for a substantial and common class of hazardous wastes such as leachates. See United Steelworkers v. Marshall. 647 F.2d 1189, 1299 (D.C. Cir. 1980), cert. denied. 453 U.S. 913 (1981) ("variance procedures should come into play only after the agency has justified a presumption of feasibility, at least for most of the operations within the industry"). Moreover, the Agency cannot possibly act promptly on variance petitions from all facilities that generate leachates or handle treatment residues. These facilities might also be forced to file variance requests to correspond to variabilities in leachates. While their variance requests are pending. Petitioners would be unable to comply with the August 8 rule and would risk prosecution. -26- CMA 053529 hazardous waste, including any . . . spill residue ... or leachate . . . is a. hazardous waste." 40 C.F.R. 261.3(c)(2)(i) (emphasis added). Contrary to EPA's contention, this rule does not state that a waste derived from a listed waste is that listed waste. Rather, the rule explicitly recognizes that derived-from wastes are newly generated wastes, chemically and physically distinct from the underlying wastes.--28/ EPA's regulations make clear that derived-from wastes are separate from the listed wastes from which they may derive. Section 260.22, which governs petitions to exclude particular wastes from RCRA regulation, contains separate provisions for excluding listed hazardous wastes, 40 C.F.R. 260.22(a), and derived-from wastes, i. 260.22(b). If derived-from wastes were the listed wastes from which they derive, the second provision for excluding derived-from wastes 2S/ other portions of EPA's regulations confirm that hazardous waste management facilities become generators of new hazardous wastes pursuant to the derived-from rule. The regulations require that a facility determine if the leachate it collects is hazardous, thus indicating that a facility that produces leachate is a generator of new waste. 40 C.F.R. 262.11; 45 Fed. Reg. 86968, 86969 (December 31, 1980). The same is true of a facility that produces a treatment residue from treating a listed waste. Indeed, the August 8 rule recognizes that a waste and a residue from that waste's prescribed treatment are different wastes, and the treatment facility must comply with the requirements applicable to generators. See 268.7(b)(6), 53 Fed. Reg. at 31214. This result is compelled by RCRA Section 3004(ra), 42 U.S.C. 6924(m), which allows land disposal of the treatment residue. -27- CMA 053530 would be superfluous. Finally, both sections 260.22(b) and 261.3(d)(2) refer to listed wastes and derived-frora wastes in the disjunctive, cataloging the requirements applicable to "a waste which is . . . either a waste listed in Subpart D, contains a waste listed in Subpart D, qji is derived from a waste listed in Subpart D." (Emphasis added) 29/ In the August 8 rule itself, EPA has once again recognized the fundamental distinction between leachates and listed wastes. The listed "first-third" hazardous wastes for which EPA has not promulgated treatment standards are subject to a "soft hammer," meaning they may be land disposed but only in facilities meeting certain strict specifications. See 42 U.S.C. 6924(g). EPA exempted leachates derived from the disposal of "soft hammer" first-third wastes, as well as groundwater contaminated with those first-third wastes, from the "soft hammer" provisions by rescheduling these wastes to the third-third. See 53 Fed. Reg. at 31184. In so doing, EPA recognized that these materials are not the listed wastes from which they were derived. This conclusion is reinforced by 23/ EPA tacitly recognized that the derived-from rule does not identify leachate as any particular listed hazardous waste when it conducted a survey of the available treatment capacity for listed land ban wastes. The survey's instructions directed use of a special waste code ("XLEA") for leachates from hazardous waste landfills. Sfifi National Survey of Hazardous waste Treatment,Storage. Disposal andRecycling Facilities Docket No. LDR8-S0374, at C-2 n.l (June 1988) (J.A. at ___ ). -28- CMA 053531 EPA's suggestion that it may establish separate treatment standards for "soft hammer" leachates. Xd. 30/ B. EPA's Waste Code Carry-Through Principle Is Unworkable and, Therefore, the August 8 Rule Is Arbitrary and Capricious. The Statement of the Case, see supra at 6-13, and the motions for stay filed by CWM and BFI, recite in detail the permitting and other compliance problems engendered by the waste code carry-through principle. A rulemaking that cannot be complied with and that renders substantial volumes of waste unmanageable is arbitrary and capricious. III. THE AUGUST 8 RULE GIVES IMPERMISSIBLE RETROACTIVE EFFECT TO RCRA AND ITS REGULATIONS.____________________________ . A. Statutes Must Be Applied Prospectively Unless There Is Unequivocal Legislative Intent To The Contrary; There Is No Such Intent In RCRA. On August 8, EPA declared for the first time in a rulemaking that its hazardous waste listings and the derived-from rule apply retroactively to material disposed of before the effective date of RCRA regulations. EPA states: "Hazardous waste listings are retroactive, so that once a particular waste is listed, all wastes meeting that description Nothing in the legislative history of HSWA suggests that Congress intended to expand the scope of EPA's rules beyond their commonly accepted meaning in 1984. Despite repeated opportunities during Congressional consideration of the HSWA land ban, EPA conspicuously failed to suggest to Congress either that derived-from wastes are in fact the listed wastes from which they derive or the substantial consequences that flow from this position. . -29- CMA 053532 are hazardous waste no matter when disposed." 53 Fed. Reg. at 31147; see also 53 Fed. Reg. at 17586. In deciding that hazardous waste listings and the derived-from rule are retroactive/ EPA has violated a fundamental canon of statutory construction: A judicial preference for prospective as opposed to retroactive legislative endeavor is well entrenched. . . . Consequently/ "statutes are not to be applied retroactively 'unless the words used are so clear, strong and imperative that.no other meaning.can be annexed to them or unless the intention of the legislature cannot otherwise be satisfied.'"21/ There is no "clear, strong and imperative" language in Subtitle C of RCRA commanding retroactive application of the statute and its implementing regulations. In fact, the statute affirmatively provides for prospective application of the Subtitle C regulations. Following identification or listing of a waste as hazardous, a person handling or managing that waste has ninety days to so notify the Agency. 42 U.S.C. 6930(a). Moreover, EPA's hazardous waste management regulations do not become effective for six months after their promulgation. Id. 6930(b). EPA's regulations confirm this prospective application. Those regulations do not require facilities that 2V In re District of Columbia Workmen'S-Comp., Act, 554 F.2d 1075, 1079 (D.C. Cir.), cert, denied. 429 U.S. 820 (1976) (emphasis added) (quoting International Bhd. of Boilermakers v. NLRB. 316 F.2d 373, 375 (D.C. Cir. 1963), which quotes United StatesFidelity & Guar. Co. v. United States ex rel. Struthers Wells Co.. 209 U.S. 306, 314 (1908)). -30- CMA 053533 have historically managed hazardous waste to comply with the statutory notification requirement or any other Subtitle C regulations if the facility is no longer actively"managing that waste on the effective date of an otherwise applicable RCRA statutory or regulatory amendment. See 40 C.F.R. 270.10(e), 270.70(a). Thus, Congress and EPA have directed that any decision by EPA to list a particular waste as hazardous has only prospective effect.-31^2/ Similarly, retroactive application of RCRA and the Subtitle C regulations is not necessary to effectuate the intent of the legislature. In 1976, Congress in RCRA directed EPA to establish a new cradle-to-grave management system under Subtitle C to address the current and future disposal of hazardous waste. It was precisely because RCRA (1) did not address prior disposal and (2) was not intended to be retroactive that, in 1980, Congress passed CERCLA, which created a system to clean up the problems caused by previous disposal of hazardous wastes. See 126 Cong. Rec. S14962-63 (daily ed. Nov. 24, 1980) (remarks of Sen. Randolph). 22/ As EPA stated in promulgating the regulations first listing wastes under section 3001 of RCRA: "These regulations . . . become effective on November 19, 1980, which is six months from the date of promulgation as section 3010 requires. Today's promulgation begins the various schedules provided by RCRA for filing notifications . . . 45 Fed. Reg. 33084 (May 19, 1980). EPA has repeated essentially the same statement as each additional waste has been added to the list. See, e.o.. 51 Fed. Reg. 37723, 37725 (Oct. 24, 1986); 50 Fed. Reg. 53315, 53317 (Dec. 31, 1985); 49 Fed. Reg. 19921, 19923 (May 10, 1984); 46 Fed. Reg. 4614 (Jan. 16, 1981). -31- CMA 053534 In 1978, when EPA first proposed regulations to implement RCRA, it recognized that "[ejnormous technical, legal and economic problems would arise if standards were to be applied directly to inactive facilities ..." and that such application was unwarranted because RCRA was written in the present tense. 43 Fed. Reg. 58946, 58984 (Dec. 18, 1978). In promulgating the first comprehensive RCRA regulations in 1980, EPA expressly noted RCRA's prospective nature: RCRA is written in the present tense and its regulatory scheme is prospective. Therefore, the Agency believes Congressional intent to be that the hazardous waste regulatory program under Subtitle C of RCRA is to control primarily hazardous waste management activities which take place after the effective date of these regulations. 45 Fed. Reg. 33154, 33170 (May 19, 1980). Until now, EPA has consistently applied RCRA only prospectively. For example, in 1982, groundwater protection standards were promulgated that applied only to "regulated units," defined as those receiving hazardous waste after the effective date of the regulations. 47 Fed. Reg. 32274, 32291 (July 26, 1982). In the initial land ban regulations, EPA stated that the restrictions had only prospective effect and did not apply to previously buried waste left in the ground. See, e.a.. 51 Fed. Reg. 40572, 40577 (Nov. 7, 1986). 23/ EPA suggested only one practical exception to this broad principle: that immediate physical proximity of closed and open waste management units might require special regulatory treatment. Id. -32- CMA 053535 When Congress amended RCRA in 1984 to add the land ban, it was concerned about the number of solid waste landfills requiring remedial attention under CERCLA due to the pre-1980 disposal of hazardous materials and the subsequent escape of leachate. S. Rep. No. 284, 98th Cong., 1st Sess. 5, 49 (1983); H.R. Rep. No. 1133, 98th Cong., 2d Sess. 117, reprinted in 1984 U.S. Code Cong. & Admin. News 5576, 5688 (Conference Report). If Congress wanted waste codes and the derived-from rule to apply retroactively, this was the obvious time to make that intent clear. Although Congress grilled EPA regarding the cleanup of hazardous materials at solid waste facilities, the Agency never suggested that leachate from these facilities was or could be regulated by retroactive application of the Subtitle C regulations.^ Consequently, Congress enacted a prospective program for upgrading regulation of solid waste management facilities under Subtitle D of RCRA and did not suggest that leachate from these facilities would be subject to regulati.on as li.sted hazardous waste3."5/ 34/ See WMNA Comments, at 26 n.4 (J.A. at ___ ). 25/ EPA had a similar opportunity during the 1986 amendments to CERCLA to persuade Congress that waste codes and the derived-from rule should retroactively apply to contaminated soil and groundwater. The legislative history of CERCLA and of the Superfund Amendments and Reauthorization Act of 1986 ("SARA") does not support the view that Congress intended that wastes disposed of prior to 1980 were or could be Subtitle C listed hazardous waste subject to RCRA. See WMNA Comments, at 35 (J.A. at ____). -33- CMA 053536 B. RCRA Cannot Ee Given Retroactive Effect Through Reliance On CERCLA. EPA reaches to a second statute, CERCLA, in an attempt to support its new claim of retroactivity. 53 Fed. Reg. at 31148.. CERCLA uses RCRA hazardous waste classifications as a basis for identifying past disposal sites possibly deserving of attention. The fundamental flaw in EPA's position is that RCRA can be given retroactive effect only if the statutory language of RCRA is so plain as to leave no doubt that Congress intended such effect. Evidence of Congressional intent that CERCLA have retroactive effect is wholly irrelevant. Courts have found that Congress intended CERCLA to have significant retroactive effect.^^ In fact, CERCLA was expressly designed to address the consequences of past activities not addressed by RCRA, and establishes liability for present cleanup on the basis of what was then -- and might still be -- fully legal disposal. CERCLA provides no basis for imputing a retroactive intent to RCRA itself, however. In fact, the logic runs the other way. RCRA's prospective nature was a significant reason why Congress found it necessary to address the consequences of past disposal under CERCLA. , e.o., United States v. Northeastern Pharmaceutical & Chemical Co.. 810 F.2d 726 (8th Cir. 1986), cert, denied. 108 S. Ct. 146 (1987). -34- CMA 053537 C. Retroactive Application of RCRA and Its Regulations Creates the Very Type of Hardship and Unfairness That the Presumption Against Retroactivity was Developed to Prevent. "It is a fundamental principle of jurisprudence that retroactive application of new laws involves a high risk of being unfair." United States v. Ottati & Goss. Inc.. 630 F. Supp. 1361, 1413 (D.N.H. 1985) (quoting 2 Sutherland, Statutory Construction 41.02, at 247 (4th ed. 1973)). If the August 8 rule stands, its retroactive application of RCRA will create just such unfairness and unjustified hardship. The retroactive application of waste listings and the derived-from rule upsets the regulatory scheme Congress devised to separate RCRA Subtitle C hazardous waste facilities from Subtitle D solid waste facilities. For example, leachate from a facility that manages only nonhazardous waste is not hazardous under the derived-from rule. Under EPA's position, however, if EPA reclassifies as a hazardous waste any solid waste that the facility has taken in the past, the facility's leachate generally would immediately become a listed hazardous waste. This change would radically alter the options available for management and disposal of the leachate without regard to whether the chemical or physical character of the leachate meets the statutory definition of hazardous waste. See infra at 37-38 and note 38. Congress enacted in 1976 and revised in 1980 and 1984, and EPA has implemented since 1979, a prospective program for the management of solid waste -35- CMA 053538 facilities under Subtitle D that does not even suggest that leachate from these facilities could be subject to regulation as listed hazardous waste3.^7/ Moreover, EPA's retroactive application of hazardous waste listings immediately places facilities treating leachate in nonhazardous waste management units pursuant to state cleanup orders in an untenable position of forced non-compliance. These facilities cannot immediately comply with all RCRA requirements. In fact, as demonstrated in Section I and II supra. leachate cannot be treated in compliance with the August 8 rule and, due to the waste code carry-through principle, cannot be managed in compliance with RCRA. Yet these facilities can avoid noncompliance with RCRA only by allowing leachate to flow unabated in violation of the cleanup orders. This environmentally undesirable result demonstrates clearly the fundamental unfairness of EPA's regulatory decision. 22/ Congress rejected the notion that Subtitle C standards ought to be applied to establish criteria for Subtitle D facilities. e, e.g.. S. Rep. No. 284, 98th Cong., 1st Sess. 49-50 (1983); 130 Cong. Rec. S9150 (daily ed. July 25, 1984) (remarks of Sen. Randolph); 129 Cong. Rec. H9162 (daily ed. Nov. 3, 1983) (remarks of Rep. Florio). -36- CMA 053539 IV. EPA'S DERIVED-FROM AND MIXTURE RULES CANNOT LAWFULLY TRANSFORM CONTAMINATED GROUNDWATER, SOIL, OR OTHER ENVIRONMENTAL MEDIA INTO HAZARDOUS WASTE. The preamble to the August 8 rule asserts a third new regulatory principle: that the derived-from and mixture rules command hazardous waste status for any environmental media, such as groundwater, contaminated by any concentration of listed hazardous waste or residues such as leachate. 53 Fed. Reg. at 31142, 31146-47, 31150. Thus, for example, groundwater contaminated by leachate from listed hazardous waste at a concentration level below health-based standards is subject to all RCRA hazardous waste management requirements, including those pertaining to the land ban. This "principle" exceeds the Agency's authority under RCRA and lacks any regulatory basis. In combination with the waste code carry-through and retroactivity principles, this principle will vastly expand the volume of "hazardous waste" subject to all RCRA Subtitle C requirements, force widespread non-compliance with these requirements, and delay and deter remedial activities. A. EPA's Extension of the Derived-From and Mixture Rules to Contaminated Environmental Media Exceeds Its Statutory Authority.: Congress directed EPA to list "particular hazardous waste (within the meaning of section 1004(5)), which shall be subject to the provisions of [Subtitle C]." 42 U.S.C. 6921. Section 1004(5), 42 U.S.C. 6903(5), defines "hazardous waste" as a solid waste that may: -37- CMA 053540 (A) Cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. EPA has never shown, or even attempted to show, that dilute, contaminated environmental media will cause increased mortality, illness or otherwise pose substantial hazards and has never demonstrated that these materials are "hazardous wastes."^ Thus, EPA exceeds its statutory authority when it extends the reach of regulatory presumptions such as the derived-from and mixture rules to embrace any environmental medium containing any detectable amount of a hazardous constituent deriving from a listed hazardous waste. B. EPA's Application of Its Derived-From and Mixture Rules to Contaminated Environmental Media Is Arbitrary and Capricious. When, as here, agency action changes the obligations of the regulated community, it must be accompanied by a reasoned explanation for the change. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co.. 463 U.S. 29, 43 (1983). EPA This failure renders EPA's regulatory determination illegal. See supra at 25. EPA has similarly failed to make this requisite showing for leachate derived from wastes disposed of prior to their listing. Such wastes may have been disposed of decades ago and, thus, may have been rendered nonhazardous by virtue of natural degradation or attenuative processes. -38- CMA 053541 has offered no such explanation for its assertion that contaminated environmental media must be managed as hazardous wastes. When EPA originally promulgated its regulatory definition of hazardous waste in 1980, it did not address management of contaminated environmental media such as soil and groundwater except in the very limited cases discussed below. EPA decided to regulate "derivative" wastes as hazardous wastes, stating "it is reasonable to assume that these wastes, which are derived from hazardous wastes, are themselves hazardous." 45 Fed. Reg. 33066, 33096 (May 19, 1980). EPA indicated that this rule would apply to leachate, wastewater treatment sludges that typically would contain concentrated amounts of toxic substances, and incinerator ash that would often contain concentrated, heavy metals. Id. The Agency never signalled, however, that its derived-from rule would also attach hazardous waste status to soil and groundwater that had come into contact with a residue resulting from management of a hazardous waste. 39/ 22/ The derived-from and mixture rules, by their very terms, do not extend to contaminated environmental media. The mixture rule states that mixtures of solid wastes and listed hazardous wastes are hazardous. 40 C.F.R. 261.3(a)(2)(iv). Similarly, the derived-from rule states that solid wastes derived from the treatment, storage, or disposal of listed hazardous wastes are hazardous. 40 C.F.R. 261.3(c)(2)(i). Soil and groundwater [Footnote continued on following page] -39- CMA 053542 EPA first addressed contaminated groundwater in July 1982 when it issued regulations to govern permitting of land disposal units such as landfills and surface impoundments. 47 Fed. Reg. 33274 (July 26, 1982). These regulations imposed obligations to monitor groundwater and to take corrective action if groundwater became contaminated by leachate. See 40 C.F.R. 264.100. Nowhere, however, did the Agency state or imply that groundwater undergoing corrective action would have to be managed as a hazardous waste pursuant to the derived-from or mixture rule. When EPA has intended contaminated soil or groundwat r to be hazardous waste, it has made this intent explicit. The Agency has specifically listed certain discarded commercial chemical products and manufacturing intermediates as hazardous waste, and has applied these listings to "[a]ny [discarded] residue or contaminated soil, water or other debris resulting from the cleanup of a spill into or on any land or water of any ^2/ [Footnote continued] are part of the environment, not "solid wastes," which are defined under RCRA as "any garbage, refuse, sludge . . . and other diseased material . . . 42 U.S.C. 6903(27) (emphasis added). In fact, EPA does not contest this point. In a recent letter to several Senators who inquired regarding the Agency's policy with respect to remedial residues, the Agency stated that soil or groundwater contaminated with hazardous waste "must be managed as if it were a hazardous waste . . .," but made clear that the soil or groundwater would not normally be considered a "solid waste." (Attachment A hereto.) -40- CMA 053543 commercial chemical products or manufacturing chemical intermediate [listed in section 261.33]." Iti. 261.33(d). Significantly, however, the regulations make clear that the phrase "commercial chemical product or manufacturing chemical intermediate" refers exclusively to "the commercially pure grade of the chemical, any technical grades of chemical that are produced and marketed, and all formulations in which the chemical is the sole active ingredient." Accordingly, the residues identified by EPA as hazardous wastes under section 261.33(d) involve soil and groundwater contaminated by highly concentrated forms of hazardous chemicals. Prior to this rulemaking, EPA has never contended that soil or groundwater contaminated by other hazardous wastes or by leachate must be considered listed hazardous wastes. EPA has not offered any reasoned justification for its new approach, and the rulemaking record is devoid of any technical support. In its May 17 proposal, the Agency asserted that contaminated soil or groundwater could be deemed to be the listed waste from which the contaminants derive "either because of the derived-from. rule, the mixture rule . . . or because the listed waste is contained__in_the_matrix_...[.see,, e.q., 40 C.F.R. \ 261.33(d)]53 Fed. Reg. at 17586 (emphasis added). In the August 8 preamble, the Agency reiterated this statement but added two new citations in support of the proposition that residues are hazardous wastes because the waste itself is found -41- CMA 053544 in a maxtrix -- 40 C.F.R. 261.3(d)(2) and section 3004(e)(3) of RCRA, 42 U.S.C. 6924(e)(3). 53 Fed. Reg. at 31142. None of these provisions offers legal or logical support for the Agency's position. As discussed above, section 261.33(d) explicitly lists certain soils and groundwater, when discarded, as hazardous waste when contaminated by spills of commercial chemical products in relatively pure form. Section 261.3(d)(2) is designed simply to narrow, not expand the universe of hazardous wastes, by specifying that any waste independently designated as hazardous under 40 C.F.R. 261.3(c) (i.e., any listed waste, mixture rule waste or derived-from waste) is not a hazardous waste if it has been excluded pursuant to 40 C.F.R. 260.20 and 260.22. Section 3004(e)(3) extends for two years the land disposal restrictions that would otherwise apply to "soil and debris" contaminated by certain enumerated, listed wastes. Of course, soil and debris that is not a hazardous waste is not subject to any land ban and needs no extension. However, some such soil and debris is listed hazardous waste. For instance, one of the listings enumerated in this section, proposed waste No. F023, covers discarded unused pesticide formulations containing certain chemical compounds previously listed as -42- CMA 053545 commercial chemical products under 40 C.F.R. 261.33.^-^ As discussed supra, discarded soil and debris contaminated by such listed commercial chemical products are explicitly encompassed by EPA's hazardous waste listings. Demonstrably, the derived-from and mixture rules do not encompass contaminated media, and EPA's "contained-in" principle lacks any legal support. V. THE PRINCIPLES ENUNCIATED IN EPA'S AUGUST 8 RULE HAVE ALREADY COMBINED TO OBSTRUCT ENVIRONMENTALLY DESIRABLE ACTIVITY. One Petitioner who was pumping contaminated groundwater pursuant to a state cleanup order has already been forced to cease this environmentally desirable activity. The Petitioner had been treating groundwater in a special pretreatment system and then in its plant's process wastewater secondary biological treatment system, which discharges to surface waters in full compliance with the Clean Water Act. The low-level groundwater contamination at this site resulted in part from pre-RCRA landfilling of a waste subsequently listed as hazardous waste K015. EPA's position under the August 8 rule is that this groundwater is. K015. This waste may lawfully be treated in the plant's process wastewater Sss 48 Fed. Reg. 14514, 14524 (Apr. 4, 1983). The proposed F023 listing was finalized as hazardous waste listing F027. Sea 40 C.F.R. 261.31; 50 Fed. Reg. 1978, 2000 (Jan. 14, 1985). -43- CMA 053546 treatment system, but that system generates a sludge, which under EPA's logic would also be K015. The sludge does not exhibit any of the characteristics of hazardous waste, as determined by empirical tests, and the Petitioner had not previously understood it to be a hazardous waste. The August 8 rule sets a treatment standard of "no land disposal" for nonwastewater K015 and, thus, makes management of this sludge impossible. Commercial waste management facilities will not accept the sludge even knowing of this Court's stay."41/ Even if the groundwater or its resultant sludge were incinerated (assuming adequate capacity existed), any ash or other residue would also carry the K015 waste code and would be prohibited from land disposal. To ensure that it will have a lawful option for treating and disposing of sludge from its process wastewater and to continu its manufacturing operations, this Petitioner has had to cease its effort to clean up contaminated groundwater.^^ 12/ If the Court lifts its stay, any leachate (or leachate treatment residue) from landfilling this sludge during pendency of the stay would be tainted by the derivative K015 listing code. 12/ in some cases, even discontinuing remedial efforts may not forestall the inequitable results of EPA's newly-announced regulatory principles. For example, before August 8 and pursuant to.an enforceable state agreement, one member of one of the Petitioners treated a small amount of groundwater affected by a pre-RCRA landfill in its nonhazardous wastewater [Footnote continued on following page] -44- CMA 053547 VI. THE AUGUST 8 RULE, WHICH ESTABLISHED NEW REGULATORY PRINCIPLES, VIOLATES THE NOTICE AND COMMENT REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURE ACT.__________________________ A. The Regulatory Principles Announced in the August 8 Rule Are Substantive Rules for Which EPA Must Provide Adequate Notice and Opportunity for Comment.__ The Administrative Procedure Act ("APA") requires notice and opportunity for comment on "substantive" or. [Footnote continued] treatment system. The surface impoundments within this treatment system no longer receive the groundwater in question. However, under the August 8 rule, the groundwater formerly treated in those impoundments could constitute a hazardous waste. EPA might seek civil or even criminal penalties against this company on the grounds that, prior to August 8, it treated hazardous groundwater in the surface impoundments without a permit. Moreover, the Agency could claim that the company is currently continuing to manage hazardous wastes in the impoundments, under the theory that (1) the units are "storing" sludges derived from the past treatment of hazardous groundwater, or (2) the units are treating wastewaters that are hazardous by virtue of being mixed with groundwater from operations before August 8. Finally, because the impoundments no longer receive the small quantities of "hazardous" groundwater (or any other hazardous waste), they might have to be closed immediately under 40 C.F.R. 265.113. Closure of the impoundments would jeopardize the continued operation of the entire facility, which uses the impoundments to treat nonhazardous wastewaters from manufacturing operations. Petitioners believe that such application of EPA's regulatory principles, particularly in the context of a criminal enforcement action, would violate the constitutional prohibition against ss post facto laws. U.S. Const, art. I, 9, cl. 3; s_ee generally United. States v, Affleek. 765 F.2d 944, 949 (10th Cir. 1985) (discussing criminal laws) and One Lot-Emerald Cut Stones & One Ring v. United States, 409 U.S. 232 (1972) (discussing civil laws). EPA may nonetheless disagree with this position, and seek to impose such fundamentally unfair results. -45- CMA 053548 "legislative" rules. 5 U.S.C. 553; Community Nutrition Inst, v. Young. 818 F.2d 943, 946 (D.C. Cir. 1987). In violation of this requirement, EPA failed to provide adequate notice of, and opportunity for comment on, the new regulatory principles asserted in the August 8 rule. "Substantive" or "legislative" rules have "a present-day binding effect;" these rules "impose . . . rights and obligations upon affected parties, and curtail agency discretion."^2/ Petitioners have demonstrated that EPA's three principles impose immediate and substantial new obligations.--44/ The plain language m EPA's rulemaking reveals that these principles were intended to have a binding effect and that the Agency did not intend to retain discretion to deviate from them.^/ S.S5 American Bus Ass'n v. United States. 627 F.2d 525, 529 (D.C. Cir. 1980). EPA's decisions at issue here are clearly substantive rules. 43/ at 946. This Court has variously characterized substantive or legislative rules as those that "narrowly limit administrative discretion" (Guardian Federal Savinas & Loan Institution v. FSLIC. 589 F.2d 658, 666-67 (D.C. Cir. 1978)); "conclusively dispos[e] of certain issues" (McLouth Steel Products Com, v. Thomas. 838 F.2d 1317, 1321 (D.C. Cir. 1988)); or contain "mandatory, definitive language* (Community Nutrition. 818 F.2d at 947). 44/ Petitioners do not suggest that the Court adopt the "substantial impact test* for determining whether a rule is "substantive." ss, e.q,, American Bancorp.. Inc, v. Board of Governors. 509 F.2d 29, 33 (8th Cir. 1974). Petitioners merely point out the nature of the binding obligations imposed by the rule in question. 4V See, e.n., infra note 48. 7 -46- CMA 053549 B. EPA Failed to Provide Adequate Notice and Opportunity to Comment on These Regulatory Principles, ________ In this rulemaking, EPA decided upon a final action that dramatically expands the obligations of the regulated community under Subtitle C of-RCRA without providing notice sufficent to allow an opportunity for meaningful public comment. These principles, which result in the classification of new materials as listed hazardous wastes, were enunciated in preambles to a narrow rulemaking establishing BDAT standards under the land ban program for 37 listed hazardous wastes. 4 6A/s t.his Court recently instructed m McLouth Steel Products Corp. v. Thomas. 838 F.2d 1317, 1322-23 (D.C. Cir. 1988), notice of generic regulatory principles of vast consequence provided in a preamble to a narrowly focused rulemaking is not adequate under the APA.-43--7/ !/ Persons who generate wastes not in the first-third might not carefully study the preamble of this rule. Such persons could nonetheless be greatly affected by the Agency's decisions of general applicability classifying certain materials as particular listed wastes. 42/ In McLouth Steel. EPA's decision to base action on a delisting petition on an analytical model was found to be a substantive rule. EPA's announcement, within the preamble of a rule delisting six specific wastes, of its intent to use this model in all delisting cases "would not have alerted a reader to the stakes" involved and thus was not adequate. I. at 1323. If anything, the notice in EPA's August 8 rule was even more deficient than that in McLouth. In the latter case, the Agency described the analytical model and specifically invited comments on it. In this rulemaking, EPA provided no indication that it would entertain comment on the three new regulatory principles and the significant issues they present. -47- CMA 053550 The notice and opportunity for comment required by the APA must also be provided "before that action is embedded in a final rule/" thereby allowing "the agency to benefit from the parties' suggestions." Council of Southern Mountains. Inc, v. Donovan. 653 F.2d 573, 580 (D.C. Cir. 1981). The purpose of this requirement is "to see to it that the agency maintains a flexible and open-minded attitude toward its own rules." National. Tour Brokers Ass'n v. United States. 591 F.2d 896/ 902 (D.C. Cir. 1978). In its April 8 and May 17 proposals/ EPA made clear that it was not interested in considering comment on these principles. EPA stated/ for example, that the retroactive application of hazardous waste listings represents a "long-standing interpretation" and that there could not be "any argument that a residue from managing a listed waste is not considered to be the listed waste." 53 Fed. Reg. at 17586.The Agency's mind obviously was made up. EPA did not solicit comments on its positions and, as in McLouth Steel. EPA also stated that if contaminated soil or leachate is derived from managing a listed waste, "the mixture is still deemed to be the listed waste. . . . The prohibition for the particular listed waste consequently applies to this type of waste." 53 Fed. Reg. at 17586 (emphasis supplied). In a like vein, EPA stated that "residues (leachate, for example) that derive from treatment, storage, or disposal of wastes that were disposed before the effective date of the listing are nevertheless subject to the derived-from rule . . . hazardous waste listings are retroactive--that is, once a particular material is. identified as a hazardous waste, all of that material, whenever disposed,, is a listed hazardous waste . . . residues derived-from treating, storing, or disposing ... of these wastes are also hazardous by virtue of the derived-from rule." I&. (emphasis added). -48- CMA 053551 was "simply unready to hear new argument" on these issues. 838 F.2d at 1321. Thus, EPA has approached these new principles as foregone conclusions/ thereby cutting off Petitioners' rights under the APA. Under these circumstances/ the proper remedy is remand to the Agency for proceedings consistent with the APA. CONCLUSION For the foregoing reasons, this Court should declare unlawful and set aside the August 8 rule to the extent that it: (1) applies the treatment standards developed therein to leachates, leachate treatment residues and anything contaminated by leachate; (2) establishes that derived-from hazardous wastes are the listed wastes from which they derive; (3) establishes that hazardous waste listings and the derived-from rule have retroactive effect; and (4) establishes that environmental media contaminated by any concentration of listed hazardous wastes are themselves listed hazardous wastes. JAMES P. RATHVON DOUGLAS H. GREEN PIPER & MARBURY 1200 Nineteenth Street, N.W. Washington, D.C. 20036 (202) 861-3900 Counsel for Chemical Waste Management, Inc. KEVIN A. GAYNOR THERESE M. SCHMITT VENABLE, BAETJER, HOWARD & CIVILETTI 1301 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 662-4300 Counsel for Browning-Ferris Industries, Inc. -49- CMA. 053552 October 27, 1988 GARY H. BAISE KARL S. BOURDEAU STEVEN F. HIRSCH BEVERIDGE & DIAMOND, P.C. 1333 New Hampshire Ave., N.w. Washington, D.C. 20036 (202) 828-0200 Counsel for American Iron and Steel Institute JOHN T. SMITH II COVINGTON & BURLING 1201 Pennsylvania Ave., N.W. Washington, D.C. 20044 (202) 662-6000 Counsel for Chemical Manufacturers Association, E.I. du Pont de Nemours & Company, and Monsanto Company ANGUS MACBETH CHRISTOPHER L. BELL SIDLEY & AUSTIN 1722 Eye Street, N.W. Washington, D.C. 20006 (202) 429-4000 Counsel for Waste Management of North America, Inc. and National Solid Waste Management Association JOHN N. HANSON DONALD J. PATTERSON, JR. BEVERIDGE & DIAMOND, P.C. 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 828-0200 Counsel for American Mining Congress KARL S. BOURDEAU AARON H. GOLDBERG BEVERIDGE & DIAMOND, P.C. 1333 New Hampshire Ave., N.w. Washington, D.C. 20036 (202) 828-0200 Counsel for The Dow Chemical Company -50- CMA 053553 f ti# UMTEO STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, O.C. 3G4A0 * K Hono rail 3an Nunn Committee on Armed Services United States Senate Washington, O.C. 20S10 o ai SOL:# win **o Mc>cdr* < Dear senator Nunnr Tnanx you ror your April IS, 10SS, letter expressing the concerns of the wood preserving Industry. Tour letter suggests that the Industry may nee understand the Environmental Protection Agency's (CPA) designation of groundwater or soil that is contaminated with hazardous waste. ?a does nat designate groundwater or soil as hazardous vasts. Rather, groundwater (or soil) that is contaminated with a hazardous waste must be managed as if it were a hazardous waste until it is decontaminated. The underlying principle is that, when soil or groundwater contains hazardous waste, it must he managed safely until the hazardous vasts is removed. In this situation, efa is regulating the hazardous vasts present in the soil or groundwater, as required by the Resource Conservation and Recovery Act (RCRA). In addition, ERA is required t regulate soil and groundwater directly if they become solid wastes and exhibit the characteristics of hazardous wastes (see 40 CTR Sections Z0.20-210.*4). we are currently considering and developing methods and techniques that would allow us to more accurately assess the threats from contaminsted soil and groundwater. Until these methods and techniques are fully developed and validated, and until we develop regulations for the separate treatment of contaminated soil and groundwater, we are required to subject these wastes to the existing regulations. The most important point 1s that the regulations apply nly wnen hazardous waste is actually contaminating soil or groundwater, or when soil and groundwater become wastes themselves and exhibit characteristics of hazardous wastes. Soil, groundwater, or other material contaminated by hazardous constituents from materials that are aat hazardous waste (1* ., solid wastes or products that are not listed and do not exhibit a characteristic) generated through a cleanup must be evaluated (40 cfr section 2S2.ll) against the rcra characteristics as would any other solid waste. . If ths removed materials d not -exhibit any of those charactoristics, they heed not be managed \ .under tn nra hazardous waste rules. ATTACHMENT A CMA 053554 Tiie second issue relates to constraints the wood preserving Indus cry btiivs EFA has placed on biodegradation as a viable technology for conducting voluntary cleanups. The Hazardous and Solid Waste Amendments of 1984 (H3WA) prohibit the land disposal of untreated hazardous wastes and require EPA to set pretreatment standards for all listed and characteristic wastes (Sections 3904(d)-(g)), whicn oust be set before the wastes can be disposed of in or on land. We have viewed that prohibition as prospective--that is, generators and disposers need not exhume and treat previously disposed of wastes. However, Hswx does specifically refer to wastes from RCRA and CSRCLX activities, requiring them to meet the treatment standards after certain dates. Thus, the prohibitions apply to previously disposed of wastes that are managed after the effective dates of the regulation. The legislative history indicates that the treatment standards must be based on the Best Demonstrated Available Technology (BOAT). We have been setting treatment standards for the most part as concentrations that are based on the performance of the boat. The net result Is that bioremediation is net prohibited, except in a few (albeit important) instances. It can be used on previously disposed of wastes, so long as. they are not removed from the disposal unit and subsequently managed and disposed of again* Thus, bioremediation of wastes disposed of before tne effective date of the land disposal ban that only involved tilling and aeration, plus addition of microorganisms and nutrients, would normally not trigger the land disposal prohibitions. Biological treatment can also be carried out in tanxs, and the residuals of such treatment can be disposed f in or on land, so long as the residuals meet the relevant treatment standards. However, the statute does prohibit disposing of wastes that do not meet the treatment standards on land for the purposes of bioremediation. This practice, long used by the wood preserving and petroleum refining Industries, is known as. land treatment or land farming, and Is specifically defined as land disposal by the statute (3004(b))* We do not believe that these requirements constitute unnecessary roadblocks to voluntary cleanup. Rather, they are required by existing law and regulations. As you may know, members of ny staff met with representatives of the wood presorvlng industry in April, In bwtn Portland and Atlanta, t discuss issues of general concern to the Industry, we will b glad to meet with the industry to clarify these Issues. T arrange a meeting, please contact Ed Abrams at (202) 475-8591. Sincerely, CMA 053555 J. Winston Porter Assistant-Administrat r J. BRIAN MOLLOY MARY F. EDGAR JAMES P. RATHVON DOUGLAS H. GREEN PIPER & MARBURY 1200 Nineteenth Street, N.w. Washington, D.C. 20036 (202) 861-3900 and JOAN 2. BERNSTEIN ROGER C. ZEHNTNER PHILIP L. COMELLA CHEMICAL WASTE MANAGEMENT, INC. 3003 Butterfield Road Oak Brook, Illinois 60521 (312) 218-1500 Counsel for Chemical Waste Management, Inc. KARL S. BOURDEAU AARON H. GOLDBERG BEVERIDGE & DIAMOND, P.C. 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 828-0200 and PAUL M. BORK THE DOW CHEMICAL COMPANY 2030 Willard H. Dow Center Midland, Michigan 48674 (517) 636-8854 Counsel for The Dow Chemical Company JOHN N. HANSON DONALD J. PATTERSON, JR. BEVERIDGE & DIAMOND, P.C. 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 828-0200 and EDWARD M. GREEN RODERICK T. DWYER AMERICAN MINING CONGRESS 1920 N Street, N.W. Suite 300 Washington, D.C. 20036 (202) 861-7530 Counsel for American Mining Congress KE\ A. GAYNOR THERESE M. SCHMITT VENABLE, BAETJER, HOWARD & CIVILETTI 1301 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 662-4300 Counsel for Browning-Ferris Industries, Inc. JOHN T. SMITH II COVINGTON & BURLING 1201 Pennsylvania Ave., N.W. Washington, D.C. 20044 (202) 662-6000 Counsel for Chemical Manufacturers Association, E.l. du Pont de Nemours & Company, and Monsanto Company DAVID F. ZOLL KATHY BAILEY CHEMICAL MANUFACTURERS ASSOCIATION 2501 M Street, N.W. Washington, D.C. 20037 (202) 886-1186 Counsel for Chemical Manufacturers Association VERNON R. RICE BERNARD J. REILLY E.l. DU PONT DE NEMOURS & COMPANY 1007 Market Street Wilmington, Delaware 19898 (302) 774-2117 Counsel for E.l. du Pont de Nemours & Company BRENT J. GILHOUSEN MONSANTO COMPANY 800 North Lindbergh Blvd. St. Louis, Missouri 63167 (314) 694-8504 Counsel for Monsanto Company CMA 053556 GARY H. BAISE KARL S. BOURDEAU STEVEN F. HIRSCH BEVERIDGE & DIAMOND, P.C. 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 (202) 828-0200 and BARTON C. GREEN AMERICAN IRON AND STEEL INSTITUTE 1133 15th Street, N.W. Suite 300 Washington, D.C. 20005 (202) 452-7100 Counsel for American Iron and Steel Institute ANGUS MACBETH CHRISTOPHER L. BELL SIDLEY & AUSTIN 1722 Eye Street, N.W. Washington, D.C. 20006 (202) 429-4000 Counsel for Waste Management of North America, Inc. and National Solid Wastes Management Association ADDENDUM STATUTES AND REGULATIONS CMA 053558 ADDENDUM CONSTITUTIONS, STATUTES AND REGULATIONS Table of Contents CONSTITUTIONS: U.S. Const, art. I, 9, cl. 3................................................. Colo. Const, art. II, 11.......................................................... Mo. Const, art. I, 13.............................................................. N.H. Const, pt. I, art. 23.......................................................... Tenn. Const, art. I, 20.......................................................... Tex. Const, art. I, 16.............................................................. STATUTES Administrative Procedure Act, Pub. L. No. 89-554, 80 Stat. 381 (1966) codified, as amended, at 5 U.S.C. 551 e sea. 5 U.S.C. 553 ........................................................................... 5 U.S.C. 706 ........................................................................... Resource Conservation and Recovery Act, Pub. L. No. 94-580, 90 Stat. 2796 (1976) codified, as amended, at 42 U.S.C. 6901 ei sea. 1004(5), 42 U.S.C. 6903(5) ........................................ 1004(27), 42 U.S.C. 6903(27) .................................... 3001, 42 U.S.C. 6921 ..................................................... 3004(d), 42 U.S.C. 6924(d) ......................................... 3004(e), 42 U.S.C. 6924(e) ......................................... 1 2 3 4 5 6 7 9 10 11 12 20 21 CMA 053559 -2- 3004(g), 42U.S.C. 6924(g) ......................................... 3004(j), 42U.S.C. 6924(j) ......................................... 3004(m), 42U.S.C. 6924(m) ......................................... 3006(b), 42U.S.C. 6926(b) ......................................... 3010, 42 U.S.C. 6930 ..................................................... 7006(a), 42 U.S.C. 6976(a) ........................................ REGULATIONS 40 C.F.R. 260.10 ........................................................................... 40 C.F.R. 260.20 ........................................................................... 40 C.F.R. 260.22 ........................................................................... 40 C.F.R. 261.3(a)(2)(iv) ..................................................... 40 C.F.R. 261.3(c) (2) (i) 40 C.F.R. 261.3(d)(2).............................................................. 40 C.F.R. Part 261, Subpart C................................................ 40 C.F.R. Part 261, Subpart D ( 261.31, 261.33, 261.33(d))............................... 40 C.F.R. 262.11 ........................................................................... 40 C.F.R. 264.100 40 C.F.R. 264.301(a)(2)......................................................... 40 C.F.R. 265.113 53 Fed. Reg. 31214 (1988) (to be codified at 40 C.F.R. 268.7(b)(6)................................................ 40 C.F.R. 268.10-268.12,..................................................... 53 Fed. Reg. 31215 (1988) (to be codified at 40 C.F.R. 268.12)......................................................... 40 C.F.R. 270.10(e).................................................................. 40 C.F.R. 270.70(a).................................................................. Page 22 23 24 25 26 28 29 38 39 42 44 45 46 49 72 73 75 76 78 79 85 86 87 CMA 053560 9 , i. 3 Section 9, Clause 3* BUI* of Attainder and Ex Post Facto Laws No Bill of Attainder or ex post facto Law shall be passed. CHA 053561 c. Const, art. II, 1 Section 11. Ex post facto laws. No ex post facto law. nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly. CMA 053562 onsi. am . X , S 13 .13 Ex post facto laws--impairment of contracts--irrevo cable privileges Section 13. That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or mak ing any irrevocable grant of special privileges or immunities, can be enacted. 3 CM* 053563 M . H. Cons; c. p:. 1 , ; . 2 3 CONSTITUTION OF NEW HAMPSHIRE Pt. 1, Art. 2.1 [Art.] 23d. [Retrospective Laws Prohibited.] Retrospective laws are highly injurious, oppressive, and unjust. No such laws, therefore, should be made, either for the decision of civil causes, or the punishment of offenses. 4 CMA 053564 Art. 1, 8 20 CONSTITUTION OF TENNESSEE Sec. 20. No retrospective laws. -- That no retrospective law, or law impairing the obligations of contracts, shall be made. 5 CMA. 053565 TcX. Const, art. I, 1 g ]6. Bills of attainder: ex post facto or retroactive laws; impairing obligation of contracts Sec. 16. No bill of attainder, ex post facto law, retroactive law, or 8nv law impairing the obligation of contracts, shall be made. 6 CMA. 053566 Aar.iiTiis~rative Procsdur Act 5 U.S.C. 553 553. Rule making (a) This section applies, according to the provisions thereof, ex cept to the extent that there is involved-- (1) a military or foreign affairs function of the United States; or (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persona subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include-- (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsec tion does not apply-- f t 7 CMA 053567 5 553 THE AGENCIES GENERALLY Ch. 5 (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice ; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are im practicable, unnecessary, or contrary to the public interest. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and pur pose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection. (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except-- (1) a substantive rule which grants or recognizes an exemp tion or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to peti tion for the issuance, amendment, or repeal of a rule. Pub.L. 89-554, Sept. 6.1966, 80 Stat. 383. f f 8 CMA 053568 a'iv Procecj- Act, 5 Ll.S.C. "06 .706 Scope of review To the extent necessary to decision and when presented, the re viewing court shall decide all relevant questions of law. interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall-- ill compel agency action unlawfully withheld or unreasona bly delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be-- (A) arbitrary, capricious, an abuse of discretion, or oth erwise not in accordance with law, (B> contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limi tations. or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case sub ject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute: or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error. pub.L. 39-554. Sept. 6. 1966, 80 Stat. 393- t f 9 CM^ 053569 N) (n irva'^on. c Keccjverv Act, U.S.C. ^ 503(5) (5) The term "hazardous waste" means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may-- (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or dis posed of, or otherwise managed. 1C CMA 053570 source ^ i^ecove 1 u G ** ( ^ 7 ) * 4t 2 U i . C . ^ ^03(27) -C ' (27) The term "solid waste" means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 1342 of Title 33, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923) [42 U.S.C.A. 2011 et seq.]. XX CM* 053571 escurce Co.icervat^ on < 3001, 42 U.S.C. Recovery Act, SUBCHAPTER III--HAZARDOUS WASTE MANAGEMENT { 6921. Identification and lifting of hazardous waste /See moin volume for text of (a)J (b) I4*ntlflcstlon and listing (1) Not later than eighteen month* after October 21. 1976, and after notice and opportunity for public bearing, the Administrator shall promulgate regulations identifying the characteristics of hazardous waste, and listing particular hazardous waste* (within the meaning of section 6903(5) of this title), which shall be subject to the provision* of this subchapter. Such regulations shall be based on the criteria promulgated under subsection (a) of this section and shall be revised from dm* to time thereafter a* may be appropriate. The Administrator, in cooperation with the Agency for Toxic Substances and Disease Registry and the National Toxicology Program, shall alao identify or list those hazardous wastes which shall be aubject to the provisions of this subchapter solely because of the presence in soeh waste* of certain constituents (such as identified carcinogens, mutagens, or teratogens) at levels in excess of levels which endanger human health. [Set main volume for text of (t) and (SX (c)] (d) Small quantity generator waste (1) By March 31, 1986, the Administrator shall promulgate standards under sections 6922, 6923, and 6924 of this title for hazardous waste generated by a generator in a total quantity of hazardous waste greater than one hundred kilo gram* but less than one thousand kilogram* during a calendar month. (I) The standards referred to in paragraph (1), including standard! applicable to the legitimate use, reuse, recycling, and reclamation of such wastes, may vary from the standard* applicable to hazardous watte generated by larger quantity genera tors, but such standards shall be. sufficient to protect human health and the environment. (3) Not later than two hundred and seventy days after November 8. 1984, any hazardous waste which is part of a total quantity generated by a generator generating greater than one hundred kilograms but less than on* thousand kilo- r 12 CMA 053572 42 6921 PUBLIC HEALTH AND WELFARE 26 grama during one calendar month and which is shipped nff the premises on which such waste is generated shall be accom|iamed by a copy of the Environmental Protection Agency Uniform Hazardous Waste Manifest form signed by the genera tor. This form shall contain the following information: (A) the name and address of the generator of the waste: (B) the United States Department of Transportation description of the waste, including the proper shipping name, hazard class, and identification number (UN/NA), if applicable: (C) the number and type of containers; (D) the quantity of waste being transported; and (E) the name and address of the facility designated to receive the waste. If subparagraph (B) is not applicable, in lieu of the description referred to in such subparagraph (B), the form shall contain the Environmental Protection Agency identification number, or a generic description of the waste, or a description of the waste by hazardous waste characteristic. Additional requirements related to the manifest form shall apply only if determined necessary by the Administrator to protect human health and the environment (4) 'Hie Administrator's responsibility under this subchapter to protect human health and the environment may require the promulgation of standards under this subehapter for hazardous wastes which are generated by any generator who does not generate more than one hundred kilograms of hazardous waste in a calendar month. ($) Until, the effective date of standards required to be promulgated under paragraph (1), any hazardous waste identified or listed under section 6921 of this title generated by any generator during any calendar month in a total quantity greater than one hundred kilograms but less than one thousand kilograms, which is not treated, stored, or disposed of at a hazardous waste treatment, storage or disposal facility with a permit under section 6923 of this title, shall tie disposed of only in a facility which is permitted, licensed, or registered by a State to manage municipal or industrial solid waste, (5) Standards promulgated as provided in paragraph (1) shall, at a minimum require that all treatment, storage, or disposal of hazardous wastes generated by generators referred to in paragraph (1) shall occur at a facility with interim status or a permit under this subehapter. except that onsite storage of hazardous waste generated by s generator generating a total quantity of hazardous waste greater than one hundred kilograms, but less than one thousand kilograms during a calendar month, may occur without the requirement of a permit for up to one hundred and eighty days. Such onsite storage may occur without the requirement of a permit for not more than six thousand kilograms for up to two hundred and seventy days if such generator must ship or haul such waste over two hundred miles. (7XA) Nothing in this subsection shall be construed to affect or impair the validity of regulations promulgated by the Secretary of Transportation pursuant to the Hazardous Materials Transportation Act (49 U.S.C.A. $ 1X01 et seq.J. (B) Nothing in this subsection shall be construed to affect, modify, or render invalid any requirement! in regulation! promulgated prior to January 1, 19K3 applicable to any acutely hazardoua waste identified or listed under section 6921 of this title which is generated by any generator during sny calendar month in a total quantity leas than one thousand kilograms. (8) Effective March 31, 1986, unless the Administrator promulgates standards as provided in paragraph (1) of this subsection prior to such date, hazardous waste generated by any generator in a total quantity greater than one hundred kilograms but less than one thousand kilograms during s calendar month shall lie subject to the following requirements until the standards referred to in paragraph ill of this subsection have become effective; (A) the notice requirements of paragraph (3) of this subsection shall apply and in addition, the information provided in the form shall include the name of the waste transporters and the name and address of the facility designated to receive the waste; 13 CMA 053573 27 PUBLIC HEALTH AND WELFARE 42 6921 (B) except in the ease of the onsite storage referred to in paragraph i) of this subsection, the treatment, storage, or disjiosai of such waste shall occur at a facility with interim status or a permit under this subchapter (C) generators of such waste shall file manifest exception reports as required of generators producing greater amount* of hazardous waste per month except that such reports shall be filed by January 31, for any waste shipment occurring in the last half of the preceding calendar year, and by July 31, for any waste shipment occurring in the first half of the calendar year; and (D) generators of such waste shall retain for three years a copy of the manifest signed by the designated facility that has received the waste. Nothing in this paragraph shall be construed as a determination of the standards appropriate under paragraph (1). (9) The laat sentence of section 6930(b) of this title shall not apply to regulations promulgated under this subsection. () Specified wutc* (1) Not later than 6 months after November 8, 1984, the Administrator shall, where appropriate, list under subsection (bRl) of this section, additional wastes containing chlorinated dioxins or chJorinated-dibensofuran*. Not later than one year after November 8, 1984, the Administrator shalL where appropriate, list under subsection (bXl) of this section wastes containing remaining halogenated dioxins and halogensted-dibenzofurani. (2) Not later than fifteen months after November 8. 1984, the Administrator shall make a determination of whether or not to list under sulisection (bXl) of this section the following wastes:' Chlorinated Aliphatic*, Dioxin. Dimethyl Hydrazine, TDI (toluene diisocyanate). Carbamates, Bromacil, Linuron, Orguno-bromines, solvents, refining wastes, chlorinated aromatics, dyes and pigments, inorganic chemical indus try wastes, lithium batteries, coke byproducts, paint production wastes, and coal slurry pipeline effluent <f) Misting procedure* (1) When evaluating a petition to exclude a waste generated at a [larticular facility from listing under this section, the Administrator shall consider factors (including additional constituents) other than those for which the waste was listed if the Administrator has a reasonable basis to believe that such additional factors could cause the waste to be s hazardous waste. The Administrator shat) provide notice and opportunity for comment on these additional factors before granting or denying such petition. (2XA) To the maximum extent practicable the Administrator shall publish in the Federal Register a proposal to grant or deny a petition referred to in paragraph (1) within twelve month* after receiving a complete application to exclude a waste generated at a particular facility from being regulated as a hazardous waste and shall grant or deny such a petition within twenty-four months after receiving a complete application. (B) The temporary granting of such a petition prior to November 8, 1984. without the opportunity for public comment and the full consideration of such comments shall not continue for more than twenty-four months after November 8. 1984. If a final decision to grant or deny such a petition has not been promulgated after notice and opportunity for public comment within the time limit prescribed by the preceding sentence, any such temporary granting of such petition shall cease to he m effect. (I> EP toxicity Not later than twenty-eight months after November 8, 1984. the Administrator shall examine the deficiencies of the extraction procedure toxicity characteristic as a predictor of the leaching potential of wastes and make changes in the extraction procedure toxicity characteristic, including changes in the leaching media, as are necesaary to insure that it accurately predicts the leaching (xiteniial of wastes which pose a threat to human health and the environment when mismanaged. 1S7US.CA--2 14 CMA 0S3574 42 6921 PUBLIC HEALTH AND WELFARE 28 (h) Additional ebnrscwriftks Not Inter thsn two yean after November 8, 1984 the Administrator shall promul gate regulations under this section identifying additional characteristics of hazard ous waste, including measures or indicator* of toxicity. (1) Clarification of Household vista exclusion A resource recovery facility recovering energy from the mass burning of munici pal solid waste shall not be deemed to be treating, storing, disposing of, or otherwise managing hazardous wastes for the purposes of regulation under this subchapter, if-- (1) auch facility-- (A) receives and burns only-- (i) household waste (from tingle and multiple dwellings, hotels, mo tels, and other residential sources), and (ii) solid waste from commercial or industrial sources that does not contain hazardous waste identified or listed under this section, and (B) does not accept hazardous wastes identified or listed under this section, and (2) the owner or operator of such facility has established contractual require ments or other appropriate notification or inspection procedures to assure that hazardous wastes are not received at or burned in such facility. (As amended PubX 98-618, Title II. f| 221(a), 222, 223(a), Nov. 8, 1984, 98 Stat 3248, 32S1, 3252.) UneonstltutlonaUty of Legislative Veto Provisions The provision* of section 1354(c)(3) of Title 8. Alien* and Nationality, which authorise a House of Congress, by resolution, to invalidate on action of the Executive Branch, were declared unconstitutional in Immi gration and Naturalisation Service v. Chadha, 1983, 103 S.CL 3784. See similar provision* in this section. BSH-- la Test Th* Heaideue Metarule Transportation Act referred to in subaec. (d)(7), is Pub.1. 91-633. title I, Jan. 3, 1973, SI StsL 2136. as amended, which is classified principally to ehapur 27 (f ISO) tt taq.) of the appindir to Title 49, Trcostumenon- For complete clnmiftcs tioa of this Act to the Coda we Short Title note xt ant under section 1101 of Title 49 eppsndix end TeMm. 19*4 (nen^nrt. Subeec. (bXIX Pub.1, 98616. | 222(b), added "The Administrator. in co operation with the Afeacy tat Toxic Substances and Dteenee Ktfuny and tbs National Toxieoiosy Piofrem, shall also identify or list those hazardoas wastes which shall ha subject to the provnmne of tine cnhrhapter eolefy bacnime of the pnscooe in such wastes of certain constituents (such cc idemiM carrinopsnci mmapna. or tcntcfos) it bcnlth."tsvek m if at Isvek which endenaer humca Subasc. (dX Pub-L. 98-616, | 22l(aX nddnd sohtne. (dX Subsare (c) to (bX Pub.L 91-616. i 222(1). added inhnnea (eX (ft. (f) and (hX Subeec. (IX Pub.L 91-616. | 223(nX nddnd tuba*. (iX rfiTtia Undm the Solid Wna Dtepeani Act Pttb.L 99-199, Title L | <24(bX Oct- 17. 19*6. 100 list. 1619. pnxwM: "Unless the Admimsmtor at the Eavnonmentnl Protection Agency promuJ(aw istulations under subtitle C of the Solid Wests Disposal Act (42 USCA f 6901 et eeq.) additnemg the extraction of wastes (tom landfills as pan of the process of neoverntf methane (rent such landfills, the one and opera tor of equipment used to recover methene from e landfill shill not be deemed to he mxnegmf. lenerenng. uensponmg, treating, storing or dinpoainf of heretdous or liquid wastm within the mennint of that subtitle. If the squsous or hydrocarbon phase of the oondoasie or any other rate material removal from the pa recovered from the landfill meets any of the ehinetensucs identified under section 3001 at subtitle C of the Solid Waste Disposal Act [42 USCA f 6921). the piteedint sentence shall not apply and such conden sate phase or ocher wests mttenal shell be deemed a hazardous waste under that subtitle, end shall he regulated noeordinity.* Small ouoadey rawvtor waamt administrator of Easlreammial Protection Aaancr, lafermodna and sdaeaHem name pnwrslrin. Section 221(h) of Pub.L. 91-616 prondad that: "The Adminis trator of the Environmental Protection A|tncy shall undertake acnvttis to inform and educate the waste genereloo of their rmpoonbilines under the amcadmenu made by this suction [enacting subeec. (d) of this seenon) during the period with in thirty months after th* enactment of the Haz ardous and Solid Waste Amendments of 1964 [Nov. I. 1914] to help sssurv compliance." AdnlolwieSlH bwdana; fall snandty penerators reteodes at cerrent syslnmi report; Con vex AdodoMrsMr of Envinamantat Prorecdou Adarinlmttow Setrelnry of Ttsaspnnatlsa. Section 221(e) of Pub.L 91-616 provided that: "The Administrator of the Environmental Protec tion Agency, in conjunction with the Secretary of 15 CMA. 053575  .6921 Identification and listing of hazardous waste (a) Criteria for Identification or listing Not later than eighteen months after October 21, 1976, the Administrator shall, after notice and opportunity for public hearing, and after consultation with appropriate Federal and State agencies, develop and promulgate crite ria for identifying the characteristics of hazardous waste, and for listing haz ardous waste, which should be subject to the provisions of this subchapter, taking into account toxicity, persistence, and degradability in nature, poten tial for accumulation in tissue, and other related factors such as flammabili ty, corrosiveness, and other hazardous characteristics. Such criteria shall be revised from time to time as may be appropriate. (b) Identification and listing (1) Not later than eighteen months after October 21, 1976, and after no tice and opportunity for public hearing, the Administrator shall promulgate regulations identifying the characteristics of hazardous waste, and listing particular hazardous wastes (within the meaning of section 6903(5) of this title), which shall be subject to the provisions of this subchapter. Such reg ulations shall be based on the criteria promulgated under subsection (a) of this section and shall be revised from time to time thereafter as may be appropriate. (2) (A) Notwithstanding the provisions of paragraph (1) of this subsection, drilling fluids, produced waters, and other wastes associated with the explo ration, development, or production of crude oil or natural gas or geothermal energy shall be subject only to existing State or Federal regulatory programs in lieu of this subchapter until at least 24 months after October 21, 1980, and after promulgation of the regulations in accordance with subparagraphs (B) and (C) of this paragraph. It is the sense of the Congress that such State or Federal programs should include, for waste disposal sites which are to be closed, provisions requiring at least the following: (i) The identification through surveying, platting, or other measures, together with recordation of such information on the public record, so as to assure that the location where such wastes are disposed of can be located in the future; except however, that no such surveying, platting, or other measure identifying the location of a disposal site for drilling fluids and associated wastes shall be required if the distance from the 16 CMA 053576 CH. 82 SOLID WASTE DISPOSAL 42 6921 disposal site to the surveyed or platted location to the associated well is less than two hundred lineal feet; and (ii) A chemical and physical analysis of a produced water and a composition of a drilling fluid suspected to contain a hazardous materi al, with such information to be acquired prior to closure and to be placed on the public record. (B) Not later than six months after completion and submission of the study required by section 69S2(m) of this title, the Administrator shall, after public hearings and opportunity for comment, determine either to promul gate regulations under this subchapter for drilling fluids, produced waters, and other wastes associated with the exploration, development, or produc tion of crude oil or natural gas or geothermal energy or that such regula tions are unwarranted. The Administrator shall publish his decision in the Federal Register accompanied by an explanation and justification of the rea sons for it. In making the decision under this paragraph, the Administrator shall utilize the information developed or accumulated pursuant to the study required under section 6982(m) of this title. (O The Administrator shall transmit his decision, along with any regula tions, if necessary, to both Houses of Congress. Such regulations shall take effect only when authorized by Act of Congress. OKA) Notwithstanding the provisions of paragraph (1) of this subsection, each waste listed below shall, except as provided in subparagraph (B) of this paragraph, be subject only to regulation under other applicable provisions of Federal or State law in lieu of this subchapter until at least six months after the date of submission of the applicable study required to be conducted un der subsection (f), (n), (o), or (p) of section 6982 of this title and after pro mulgation of regulations in accordance with subparagraph (C) of this para graph: (i) Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels, (ii) Solid waste from the extraction, bencficiation, and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore. (hi) Cement kiln dust waste. (BXi) Owners and operators of disposal sites for wastes listed in subpara graph (A) may be required by the Administrator, through regulations pre scribed under authority of section 6912 of this title-- (D as to disposal sites for such wastes which are to be closed, to identify the locations of such sites through surveying, platting, or other measures, together with recordation of such information on the public record, to assure that the locations where such wastes are disposed of are known and can be located in the future, and (II) to provide chemical and physical analysis and composition of such wastes, based on available information, to be placed on the public record. 17 42 6921 PUBLIC HEALTH AND WELFARE (iiXI) In conducting any study under subsection (0. (n), (o), or (p), of section 6982 of this title, any officer, employee, or authorized representative of the Environmental Protection Agency, duly designated by the Adminis trator, is authorized, at reasonable times and as reasonably necessary for the purposes of such study, to enter any establishment where any waste subject to such study is generated, stored, treated, disposed of, or transported from; to inspect, take samples, and conduct monitoring and testing; and to have access to and copy records relating to such waste. Each such inspection shall be commenced and completed with reasonable promptness. If the of ficer, employee, or authorized representative obtains any samples prior to leaving the premises, he shall give to the owner, operator, or agent in charge a receipt describing the sample obtained and if requested a portion of each such sample equal in volume or weight to the portion retained. If any anal ysis is made of such samples, or monitoring and testing performed, a copy of the results shall be furnished promptly to the owner, operator, or agent in charge. (II) Any records, reports, or information obtained from any person under subclause (I) shall be available to the public, except that upon a showing satisfactory to the Administrator by any person that records, reports, or information, or particular pan thereof, to which the Administrator has ac cess under this subparagraph if made public, would divulge information en titled to protection under section 1905 of Title 18, the Administrator shall consider such information or particular ponion thereof confidential in ac cordance with the purposes of that section, except that such record, repon, document, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this chapter. Any person not subject to the provisions of section 1905 of Title 18 who knowingly and willfully divulges or discloses any information entitled to protection under this subparagraph shall, upon conviction, be subject to a fine of not more than S5,000 or to imprisonment not to exceed one year, or both. (ill) The Administrator may prescribe regulations, under the authority of this chapter, to prevent radiation exposure which presents an unreasonable risk to human health from the use in construction or land reclamation (with or without revegetation) of (I) solid waste from the extraction, beneficiation, and processing of phosphate rock or (II) overburden from the mining of uranium ore. (iv) Whenever on the basis of any information the Administrator deter mines that any person is in violation of any requirement of this subpara graph, the Administrator shall give notice to the violator of his failure to comply with such requirement. If such violation extends beyond the thirti eth day after the Administrator's notification, the Administrator may issue an order requiring compliance within a specified time period or the Admin istrator may commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including a temporary or permanent injunction. (O Not later than six months after the date of submission of the applica ble study required to be conducted under subsection (0. (n), (<?), or (p), of 18 CMA. 053578 CH. 82 SOLID WASTE DISPOSAL 42 6921 Not* 1 section 6982 of this title, the Administrator shall, after public hearings and opportunity for comment, either determine to promulgate regulations under this subchapter for each waste listed in subparagraph (A) of this paragraph or determine that such regulations are unwarranted. The Administrator shall publish his determination, which shall be based on information devel oped or accumulated pursuant to such study, public hearings, and comment, in the Federal Register accompanied by an explanation and justification of the reasons for it. (c) Petition by State Governor At any time after the date eighteen months after October 21, 1976, the Governor of any State may petition the Administrator to identify or list a material as a hazardous waste. The Administrator shall act upon such peti tion within ninety days following his receipt thereof and shall notify the Governor of such action. If the Administrator denies such petition because of financial considerations, in providing such notice to the Governor he shall include a statement concerning such considerations. (Pub.L. 89-272, Title II. 3001. as added Pub.L. 94-580, 2, Oct. 21, 1976, 90 Stat. 2806 and amended Pub.L. 96-482, 7, Oct. 21. 1980, 94 Stat. 2336.) Historical Note 1980 Amendment Subset, (b). Pub.L. 96-482 designated existing provisions as par. (1) and added pen. (2) and (5). Alaska Natural Gas Transportation System, see Transfer of Functions note set out under section 6903 of this title. Transfer of Functions. For transfer of cer tain enforcement functions of Administrator or other official of the Environmental Protec tion Agency under this chapter to Federal in spector, Office of Federal inspector for the Legislative History. For legislative history and purpose of Pub.L. 94-580. see 1976 U.S. Code Cong, and Adm.News. p. 6238. See. also. Pub.L. 96-482, 1980 U.S.Code Cong, and Adm.News, p. 5019. Cross References Hazardous waste ss having the characteristics identified in this section subject to taxation, see section 4682 of Title 26, Internal Revenue Code. West's Federal Forms Actions by United States or officers thereof, see 1069 to 1072. Jurisdiction and venue in district courts, matters pertaining to, see $ 1000 et seq. Preliminary injunctions and temporary restraining orders, matters pertaining to, see $ 3271 et seq. Sentence and fine, see f 7531 et seq. Code of Federal Regulations Hazardous waste, identification and listing of. see 40 CFR 261.1 et seq. Hazardous waste management, generally, see 40 CFR 260.1 et seq. Standards, see 40 CFR 262.10 et seq. Notes of Decisions Leachate I Sewage sludge 21 1. Leachate A "hazardous waste" does not lose that description because it is mixed with some oth er waste or is found in leachate, but, rather, leachate from hazardous waste is important target of this section and thus regulatory defi nition of "discarded" waste, in turn including materials "disposed of." points directly to contaminated leachate. O'Leary v. Moyer's Landfill, Inc.. D.C.Pa.1981, 323 F.Supp. 642. 19 CMA. 053579 vs::;:. 2-. d Recovery Ac 1, 2 . 5. C . 5 (aJ (4) PraMMtiera lend J *f NdM warnm (1) Effsetivs 32 month* after November 8. 1984 (except u provide in subsection if) of the section with respect to underground inaction into d**P !*nd disposal of th hazardous miih mfsrmd to in P*rP> |?Jf. ?roh,'t?lt*^ unless th* Admini*tutor determine* th prohibition on [" or. jl*"d dlfpoui of uch wuu 1* not required in ordor to protect human health and tho environment for 1* long u tho Mt* r*m*in hmnrdou*. taking into iccount-- (A) tho long-term uncertainties associated with Innd diapoeal. (B) the goal of managing hazardous waste in an appropriate manner in the first instance, and (C) tho persistence. toxicity, mobility, and propensity to bioaccumulatc of such hazardous *ulo and their hazardous constituents. for the purpose* of this paragraph, a method of land disposal may not bo determined to bo protective of human health and the environment for a hazardous wuu referred to in paragraph (2) (other than a hazardous wuu whieh hu complied with the pretreatment regulation* promulgated under subaection (m) of thie section), unless, upon application by an inurested person, it hu been demonstrated to the Administrator, to s reasonable degree of certainty, that there will be no migration of hazardous constituenu from th* dispoeal unit or injection zone for u long u the wuu* remain hazardous. (Z) Paragraph (1) applies to the following hazardous wuUs listed or identified under section 6921 of this title: (A) Liquid hazardous wastes, including free liquids sasociated with any solid or sludge, containing free cyanide* at concentrations gresur than or equal to 1.000 mg/I. (B) Liquid hazardous wuu*. including free liquids associated with any solid or sludge, containing the following metals (or elcmenu) or compounds of these metals (or tlemenU) st concentrations gresur than or equal to thou specified below: (i) arsenic and/or compounds (u As) 500 mg/1: (it) cadmium and/or compounds (u Cd) 100 mg/l: (ill) chromium (VI and/or compounds <u Cr VI)) 500 mg/l; (It) lead tnd/or compounds (ss Pb) 500 mg/l; (v> mercury and/or compounds (as Hg) 20 mg/l; (vl) nickel and/or compound* (as Nt) 134 mg/l; (II) selenium and/or compounds (ss Se) 100 mg/l; and (viU) thallium and/or compounds (as Th) 130 mg/L (C) Liquid hazardous waste having a pH leas than or equal to two (2.0). (0) Liquid hazardous wastes containing polychlorinated biphenyls at concern trationa greater than or equal to 50 ppm. <E) Hazardous wastes containing helog*nsted organic compounds in total concentration greater than or equnl to 1.000 mg/kg. When necessary to protect human health and th* environment th* Administrator shall substitute more stringent concentration levels than th* levels specified in subparagraphs (A) through (EL (3) During the period ending forty-eight month* after November 8. 1984. thie subsection shall not apply to any disposal of contaminated soil or debrw resulting from a response action taken under section 9604 or 9606 of this title or s corrective action required under this subchapter. 20 ir f CMA 053580 I'. . C . 324(e) It) SatrMti lW SUxlM (1) Effective twenty-four months afur November 8. 1984 (except u provided in mbeermn it) of this section with respect to underground injection into deep injection well*), the lend disposal of the hiisrdous *sites referred to in paragraph (2) ts prohibited unJeee the Adinmistrstor determines the prohibition of one or more methods of lend disposal of such waste is not required in order to protoct human health and the Mvuonment for aa long is the waste remains hassrdoua. taking into account the factors referred to in subparagraph (A! through (O of subsection idkl) of this section. For the purposes of this paragraph, a method of land diapoaai may not be determined to be protective of human health and the environment for a haaardous waste referred to in paragraph (2) (other than a hasardoua wants which haa complied with the pretreatment regulations promulgated under subjection !m) of this secooo). unless upon application by an inure*ted person it haa been demonstrate ed to the Adminietretor. to a reaeonable degree of certainty, that there will be no mtgrsooo of hasardous constituents from the dapoaai unit or injection sene for as long aa the wastes remain hasardoua. (2) The hasardous watte* to which the prohibition under paragraph (1) applies aresi follow*-- (A) dioiuxontaining haaardous wastes numbered FOOT. F02I. F022. sod FOOT (se referred to ib the proposed rule published by the Administrator m the Federal Register for April 4. 19831, and (B) those haaardous wastes numbered FOOl. F002, FOG*. F004. and POOS ia regulations promulgated by the Admuuaoator under secoon 3001 (40 C.FJL 261.31 (July 1, 1963)), aa those regulations are ia effect on July 1, 1983. (3) Duriag the period ending forty-eight months after November S, 1964. this subeeetion shall not apply to aay diapoaai of contaminated soil or debris resulting from a response action taken under section 9404 or 9606 of th* title or a eonecuit ictus required under this subchapter. f f 21 CM* 053581 <l> AMMonal land Slip--I preMbMe* < 1) Not tour than twenty-four months after November 8. 1984. the Administrator shell submit e schedule to Confreee for-- (A) reviewing ell hazardous weetee listed la* of November 8. 1984) under section 6921 of this otie other than those wattes which are referred to m subsection (d) or (e) of this section; and (B) taking action under paragraph (5) of this subsection with respect to each tueh hazardous treats. (t) The Administrator shall bees the schedule on a ranking of such liatad waste* considering thetr intrinsic hazard sad their volume such that demawna regarding the land disposal of high volume hazardous wattes with high inwaste hazard shall, to the maximum extent possible, be made by the date forty-five months after Novem ber 6, 1984. Deasioas regarding low volume haxardont wastes with lower intrinsic hazard shall be made by the date sixty-six months after November 8, 1984. (3) The preperaoon and submission of the schedule under this subsection shall not be subject to the Paperwork Reduction Acs of 1980. No Storing on the record shell be required for purposes of preparation or swbauaemo of the schedule. The schedule shall not be subject to judicial renew. (4) The schedule under this subsection shell require that the Administrator shell promulgate regulations in aceerdeaes with paragraph (5) or make a determination under paragraph (5)-- f i 22 CMA 053582 Resource Conservation 3 0 0 4( j) , 42 U.S.C. t Recovery Act, 324(j ) (J> Stone* of tunrdoui wait* prohibited from land dtapoaai In the cane of any huardoui waste which is prohibited from one or more methods of land disposal under this section (or under regulations promulgated by the Administrator under any provision of this section) the storage of such hazardous waste is prohibited unless such storage is solely for the purpose of the accumulation of such quantities of hazardous waste as are necessary to facilitate proper recovery, treatment or disposal. 23 CM* 053583 imi Traowtit niMirii tor w*mm whfect <ta****^ (1) Simultaneously with the promulgation of rr1oom ui*r *ubMeta Id), It), i f). or Ig) of th* section prohibiting rmt or mote m*thod of land *poai of a parocuUf h^i^rdoui wute. and a* appropriate thtrtafltr, tht Adnunantor ih&U* iit*r noue* tad ut opportunity (op Hnrtngv wd tftf eomuiuooo ^ *PPW* FedtnJ and Sute aftnot*, promulgate rogulattona ipoctfymg thoM of m*thod* of treatment, if any, which substantially diminish the toxicity of the wtiu or substantially reduce the likelihood of migration of haaardoua constituents from Lh( wute >o that short-term and long-term threat! to human health and the e(ivironmtiK are minimized. 12> If auch haiardoui waate haa been treated to the level or by a method specified m regulations promulgated under this subsection, such waste or residue thereof shall not be subject to any prohibition promulgated under subsection id), ie), if), or 0( this section and may be diapoaed of in a land dispoaal facility which meets the requirements of this subchapter. Any regulation promulgated under this subsection for a particular hazardous waste shall become effective on the same date aa any applicable prohibition promulgated under subsection id), fe). If), or |g> of this section. 24 to m erva-:icn a' Recovery iCt f u.s.c. 25(b) $ 6926. Authorized State hazardous waate programs [Set main volume for text of (a)] <b> Authorization of State program Any State which seek* to administer and enforce a hazardous waate propram pursuant to this subchapter may develop and, after notice and opportunity for public hearing, submit to the Administrator an application, in such form as he shall require, for authorization of such program- Within ninety days following submission of an application under this subsection, the Administrator shall issue a notice at to whether or not he expects such program to be authorized, and within ninety diys following such notice (and after opportunity for public hearing) he shall publish his findings as to whether or not the conditions listed in items (1), (2). and (3) below have been met Such State is authorized to carry out such program in lieu of the Federal program under this subchapter in such State and to issue and enforce permits for the storage, treatment, or disposal of hazardous waste (and to enforce permits deemed to have been issued under section 6935<dXll of thie title) unless, within ninety days following submission of the application the Administrator notifies such State that such program may not be authorized and, within ninety days following such notice and after opportunity for public hearing, he finds that (1) such State program is not equivalent to the Federal program under this subchapter, (2) such program is not consistent with the Federal or State programs applicable in other States, or (3) such program does not provide adequate enforcement of compliance with the requirements of this subchapter. In authorizing a State program, the Administrator may base hie findings on the Federal program in effect one year prior to aubmiaeion of a State's application or in effect on January 2G, 1983, whichever is later- 25 CMA 053585 Kfesourct O I S 6 r V a , J 3010, 42 U.S.C. ; 6 9 Recover 'CZ , $ 6930, Effective date (a) Preliminary notification Not later than ninety days after promulgation of regulations under section 6921 of this title identifying by its characteristics or listing any substance as hazardous waste subject to this subchapter, any person generating or transporting such substance or owning or operating a facility for treatment, storage, or disposal of such substance shall file with the Administrator lor with States having authorized hazardous waste permit programs under section 6!>2<i of this title) a notification stating the location and general description of such activity and the identified or listed hazardous wastes handled by such person. Not later than fifteen months after November 8, 1984-- (1) the owner or operator of any facility which produces a fuel (A) from any hazardous waste identified or listed under section 6921 of this title. (B> from such hazardous waste identified or listed under section 6921 of this title and any other material. (C) from used oil, or ID) from used oil and any other material; (2) the owner or operator of any facility (other than a single- or two-family residence) which burns for purposes of energy recovery any fuel produced as provided in paragraph (1) or any fuel which otherwise contains used oil or any hazardoui waste identified or listed under section 6921 of this title: and (3) any person who distributes or markets any fuel which is produced as provided in paragraph (1) or any fuel which otherwise contains used nil or any hazardous waste identified or listed under section 6921 of this title shall file with the Administrator (and with the Slate in the case of a State with an authorized hazardous waste program) a notification stating the location and general description of the facility, together with a description of the identified nr listed hazardous waste involved and. in the case of a facility referred to in latrugraph (1) or (2), a description of the production or energy recovery activity earned out at the facility and such Other information as the Administrator deems necessary. For purposes of the preceding sentence, the term "hazardous waste listed under section 6921 of this title'' alto includes any commercial chemical product which is listed under section 6921 of this title and which, in lieu of its original intended use. is (i) produced for use ts (or as a component of) a fuel, (ii) distributed for use as a fuel, or (iii) burned as a fuel. Notification shall not be required under the second sentence of this subsection in the case of facilities (such as residential boilers! where the Administrator determines that such notification is not necessary in order for the Administrator to obtain sufficient information respecting current practices of facili ties using hazardous waste for energy recovery. Nothing in this subsection shall be construed to affect or impair the provisions of section 6921(bX3) of this title. Nothing in this subsection shall affect regulatory determinations under section 6936 of this title. In revising any regulation under section 6921 of this title identifying additional characteristics of hazardous waste or listing any additional substance as hazardous waste subject to this subchapter, the Administrator may require any person referred to in the preceding provisions to file with the Administrator lor with States having authorized hazardous waste iiermit programs under section 6926 of this title) the notification described in the preceding provisions. Not more than one such notification shall be required to lie filed with resist-1 to the same substance. No identified or listed hazardous waste subject to this stdichaplcr may lie trans|Hirt- 26 CM& 053586 PUBLIC HEALTH AND WELFARE ed treated, stored, or disposed of unless notification has been given as required under-this subsection. (b) Effective date of regulation The regulation* under this subchapter respecting requirements applicable to the generation, transportation, treatment, storage, or disposal of hazardous waste (including requirements respecting permits for such treatment, storage, or disposal) shail take effect on the date six months after the date of promulgation thereof (or six months after the date of revision in the case of any regulation which is revised after the date required for promulgation thereof). At the time a regulation is promulgated, the Administrator may provide for a shorter period prior to the effective date, or an immediate effective date for (1) a regulation with which the Administrator finds the regulated community does not need six months to come into compliance: (2) a regulation which responds to an emergency situation: or (3) other good cause found and published with the regulation. (As amended Pub.L 98-616. Title II. ${ 204<). 234. Nov. 8. 1984. 98 Suit. ml. H2.18.) IfM Aasaadmem. Subset (s). Pub.L. 98SIS. i 204<eXl). added pro*mom returns to >bt bemint and blending of hazardous waaim, after the Ant lenience. Pub.L 98-616, f 204(aX2), lubnituled "the (.lUidint proviaiona" for "the pteeedini Mn,cnx" wherever appearing. Subxs. (b). Pub.L. 98-616. f 234, added pro. vtuon that at the time a regulation it promulpl(d. the Admimatrstor may provide for a short er period prior to the effective date, or an immcdiite effective date for a regulation with which the Admimatrstor find! the reguleted community dos not need us months to come into compliance, a regulation which responds to an emergency situa tion. or other good cause found and published with the regulation. 1 iglilatlTi History. For legislative history and purpose or Pub.L 98-616. sac 1984 U.$.Code Cong, and Adm.Ncws. p. 5576. Creas Rafsrsarse Small quantity generator waste, effective date of regvlanooa. mapplicahtlity of provniont relating to. see aecnon S92I(dX9) of this title. New* eT DeeMoas ErMsnce 3 IlllwSm sm permit regulellmn 3 Protsediep fur faiiere te promelglte regnlatiena I 3. EvMenee In action brought against operator of industrial waste disposal business to enjoin alleged Violations of state and federal law. evidence that wastes were hauled onto npcraior'* premises several months before the effective date of notification under thn section was admissible, because the testimony was relevant to the issue of whether operator main tained his hazardous treatment, storage or dispos al facility in violation of slate or fcdcial law. them was no hearsay component to the testimony, and the testimony was not unduly prejudicial. Envi ronmental Defense Fund. Inc. v Lemphier. C.A. V.|9gJ, 714 F.2d .131 3. Hazardous went permit refuletlows Hauler of hazardous wastes, who slopped haul ing ihe wastes before effective dale of hazardous whit irratmem. storage and disposal regulations promulgated under the Resource Conservation and Reenvery Act nf 1976, but who owned sues on which Ihe hazardous wastes were stored, was hound by permit and notification pros istonv of thn regulations. Fishel v. Wesunghouw Elec Cnrp., M.D.Pa-1986. 640 F.Supp. 442. U VO ce Conservation and Recovery Act, '{a) , ) 2 U.S.C. 6 97 6 (a ) 6976. Judicial review (a) of Anal requieMM and certain peooone Any judicial review of final refutation* promulgated pursuant to this chapter and the Administrator's denial of any petition for the promulgation, amendment, or repeal of any regulation under this chapter shall be in aecor* dance with sections 701 through 706 of Title S. except that-- (1) a petition for review of action of the Administrator in promulgate ing any regulation, or requirement under this chapter or denying any petition for the promulgation, amendment or repeal of any regulation under this chapter may be filed only in the United States Court of Ap peals for the District of Columbia, and such petition shall be filed with in ninety days from the date of such promulgation or denial, or after such date if such petition for review is based solely on grounds arising after such ninetieth day; action of the Administrator with respect to which review could have been obtained under this subsection shall not be subject to judicial review in civil or criminal proceedinp for enforce ment; and (2) in any judicial proceeding brought under this section in which review is sought of a determination under this chapter required to be made on the record after notice and opportunity for hearing, if a party seeking review under this chapter appfat to the court for leave to ad duce additional evidence, and shows to the satisfaction of the court that the information is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Ad ministrator. the court may order such additional evidence (and evi dence in rebuttal thereof) to be taken before the Administrator, and to ^ be adduced upon the hearing in such manner and upon such terms and s conditions as the court may deem proper, the Administrator may mod ify his findinp as to the facts, or make new findings, by reason of the additional evidence so taken, and he shall file with the court such mod ified or new findinp and his recommendation, if any, for the modula tion or setting aside of his original order, with the return of such sdditional evidence. 28 CMA 053588 40 C.F.R. 260.10 40 era Ch. I (7-147 Edition) Swbpart --DoAnlHons 12(0.10 Definitions. When used in Puts 260 through 265 and 268 of this chapter, the following terms have the meanings given below; "Aboveground tank" means a device meeting the definition of "tank" in i 260.10 and that is situated in such a way that the entire surface area of the tank is completely above the plane of the adjacent surrounding surface and the entire surface area of the tank (in cluding the tank bottom) is able to be visually inspected. "Act" or "RCRA" means the Solid Waste Disposal Act. as amended by the Resource Conservation and Recov ery Act of 1976. as amended. 42 UAC. section 6901 et seq. "Active life" of a facility means the period from the initial receipt of haz ardous waste at the facility until the Regional Administrator receives certi fication of final closure. "Active portion" means that portion of a facility where treatment, storage, or disposal operations are being or have been conducted after the effec tive date of Part 261 of this chapter and which is not a closed portion. (See also "closed portion" and "Inactive portion".) "Administrator" means the Adminis trator of the Environmental Protec tion Agency, or his designee. "Ancillary equipment" means any device including, but not limited to. such devices as piping, fittings. flanges, valves, and pumps, that is used to distribute, meter, or control the flow of hazardous waste from its point of generation to a storage or treatment tank(s). between hazardous waste storage and treatment tanks to a point of disposal onsite, or to a point of shipment for disposal off-site. "Aquifer' means a geologic forma tion. group of formations, or part of a formation capable of yielding a signifi cant amount of ground water to wells or springs. "Authorized representative" means the person responsible for the overall operation of a facility or an operation al unit (i.e., pan of a facility), e.g., the plant manager, superintendent or person of equivalent responsibility. "Boiler* means an enclosed device using controlled flame combustion and having the following characteristics: (l)(t) The unit must have physical provisions for recovering and export ing thermal energy in the form of steam, heated fluids, or heated gases; and til) The unit's combustion chamber and primary energy recovery sections(s) must be of Integral design. To be of integral design, the combus tion chamber and the primary energy recovery seetlon(s) (such as waterwalls and superheaters) must be physically formed into one manufactured or as sembled unit. A unit in which the com bustion chamber and the primary energy recovery section(s> are joined only by ducts or connections carrying flue gas is not integrally designed: however, secondary energy recovery equipment (such as economizers or air preheaters) need not be physically formed into the same unit as the com bustion chamber and the primary energy recovery section. The following units are not precluded from being boilers solely because they are not of integral design: process heaters (units that transfer energy directly to a proc ess stream), and fluidized bed combus tion units; and (ill) While in operation, the unit must maintain a thermal energy recov ery efficiency of at least 60 percent, calculated in terms of the recovered energy compared with the thermal value of the fuel; and 29 Environmental Protection Agency 260.10 (iv> The unit must export and utilize engineer who has certification or li at least 75 percent of the recovered censing that includes education and energy, calculated on an annual basis. experience in corrosion control on In this calculation, no credit shall be buried or submerged metal piping sys given for recovered heat used internal- tems and metal tanks. ly in the same unit. (Examples of In "Designated facility" means a haz ternal use are the preheating of fuel ardous waste treatment, storage, or or combustion air. and the driving of disposal facility which has received an Induced or forced draft fans or feed- EPA permit (or a facility with interim water pumps); or status) in accordance with the require (2) The unit is one which the Re ments of Parts 270 and 124 of this gional Administrator has determined, chapter, a permit from a State author on a case-by-case basis, to be a boiler, ized in accordance with Part 271 of after considering the standards in this chapter, or that is regulated 280.32. under ! 261.8(e)(2) or Subpart F of "Certification" means a statement of Part 266 of this chapter, and that has professional opinion based upon been designated on the manifest by knowledge and belief. the generator pursuant to ! 262.20. "Closed portion" means that portion "Dike" means an embankment or of a facility which an owner or opera-. ridge of either natural or man-made tor has closed in accordance with the materials used to prevent the move approved facility closure plan and all ment of liquids, sludges, solids, or applicable closure requirements. (See other materials. also "active portion" and "inactive "Discharge" or "hazardous waste portion".) discharge" means the accidental or in "Component" means either the tank tentional spilling, leaking, pumping, or ancillary equipment of a tank pouring, emitting, emptying, or dump system. ing of hazardous waste into or on any "Confined aquifer" means an aquifer land or water. bounded above and below by imperme "Disposal" means the discharge, de able beds or by beds of distinctly lower posit. injection, dumping, spilling, permeability than that of the aquifer leaking, or placing of any solid waste itself; an aquifer containing confined or hazardous waste into or on any land ground water. or water so that such solid waste or "Container" means any portable hazardous waste or any constituent device in which a material is stored, thereof may enter the environment or transported, treated, disposed of, or be emitted into the air or discharged otherwise handled. into any waters, including ground "Contingency plan" means a docu waters. ment setting out an organized, "Disposal facility" means a facility planned, and coordinated course of or part of a facility at which hazard action to be followed in case of a fire, ous waste is intentionally placed into explosion, or release of hazardous or on any land or water, and at which waste or hazardous waste constituents waste will remain after closure. which could threaten human health "Elementary neutralization unit" or the environment. means a device which: "Corrosion expert" means a person' (1) Is used for neutralizing wastes who. by reason of his knowledge of the which are hazardous wastes only be physical sciences and the principles of cause they exhibit the corrosivity engineering and mathematics, ac characteristic defined in 261.22 of quired by a professional education and this chapter, or are listed in Subpart D related practical experience, is quali of Part 261 of this chapter only for fied to engage in the practice of corro this reason; and, sion control on buried or submerged (2) Meets the definition of tank, con metal piping systems and metal tanks. tainer, transport vehicle, or vessel in Such a person must be certified as { 280.10 of this chapter. being qualified by the National Asso "EPA hazardous waste number" ciation of Corrosion Engineers means the number assigned by EPA to (NACE) or be a registered professional each hazardous waste listed in Part 30 CMK 053590  260.10 40 CFK Ch. I (7-1-07 Edition) 281. Subpart D. of this chapter and to each characteristic identified in Part 281. Subpart C. Of this chapter. EPA identification number" means the number assigned by EPA to each generator, transporter, and treatment, storage, or disposal facility. "EPA region" means the states and territories found in any one of the fol lowing ten regions: Region I--Maine. Vermont. New Hampshire. Massachusetts. Connecticut, and Rhode Island. Region II--New York. New Jersey. Com monwealth of Puerto Rico, and the U.S. Virgin Islands. Region III--Pennsylvania. Delaware. Mary land. West Virginia. Virginia, and the Dis trict ol Columbia. Region IV--Kentucky, Tennessee, North Carolina. Mississippi. Alabama. Georgia. South Carolina, and Florida. Region V--Minnesota. Wisconsin. Illinois. Michigan. Indiana and Ohio. Region VI--New Mexico. Oklahoma. Arkan sas, Louisiana, and Texaa Region VII--Nebraska. Kansas. Missouri, and Iowa. Region VIII--Montana, Wyoming. North Dakota. South Dakota, Utah, and Colora do. Region IX--California, Nevada. Aruona. Hawaii. Guam. American Samoa, Com monwealth of the Northern Manana Is lands. Region X--Washington, Oregon. Idaho, and Alaska. "Equivalent method" means any testing or analytical method approved by the Administrator under {1280.20 and 280.21. "Existing hazardous waste manage ment (HWM) facility" or "existing fa cility" means a facility which was in operation or for which construction commenced on or before November 19. 1980. A facility has commenced con struction if: (1) The owner or operator has ob tained the Federal. State and local ap provals or permits necessary to begin physical construction: and either (2) (i) A continuous on-site, physical construction program has begun: or (ii) The owner or operator has en tered into contractual obligations-- which cannot be cancelled or modified without substantial loss--for physical construction of the facility to be com pleted within a reasonable time. "Existing portion" means that land surface area of an existing waste man agement unit, included in the original Pan A permit application, on which wastes have been placed prior to the issuance of a permit. "Existing tank system" or "existing component" means a tank system or component that is used for the storage or treatment of hazardous waste and that is in operation, or for which in stallation has commenced on or prior to July 14. 1986. Installation will be considered to have commenced if the owner or operator has obtained all Federal, State, and local approvals or permits necessary to begin physical construction of the site or installation of the tank system and if either (l)a continuous on-site physical construc tion or installation program has begun, or (2) the owner or operator has entered into contractual obliga tions--which cannot be canceled or modified without substantial loss--for physical construction of the site or in stallation of the tank system to be completed within a reasonable time. "Facility" means all contiguous land, and structures, other appurtenances, and improvements on the land, used for treating, storing, or disposing of hazardous waste. A facility may con sist of several treatment, storage, or disposal operational units (e.g.. one or more landfills, surface impoundments, or combinations of them). "Federal agency" means any depart ment. agency, or other instrumentality of the Federal Government, any inde pendent agency or establishment of the Federal Government including any Government corporation, and the Government Printing Office. "Federal. State and local approvals or permits necessary to begin physical construction" means permits and ap provals required under Federal. State or local hazardous waste control stat utes. regulations or ordinances. "Final closure" means the closure of all hazardous waste management units at the facility in accordance with all applicable closure requirements so that hazardous waste management ac tivities under Parts 264 and 269 of this chapter are no longer conducted at the facility unless subject to the provi sions in 262.34. 31 CMA 053591 Environmental Protection Agency 260.10 "Pood-chain crop*" mean* tobacco, crops grown for human consumption, and crops grown for feed for animals whose products are consumed by humans. 'Free liquids" means liquids which readily separate from the solid portion of a waste under ambient temperature and pressure. "Freeboard" means the vertical dis tance between the top of a tank or sur face Impoundment dike, and the sur face of the waste contained therein. "Generator " means any person, by site, whose act or process produces hazardous waste identified or listed in Part 261 of this chapter or whose act first causes a hazardous waste to become subject to regulation. "Ground water" means water below the land surface in a zone of satura tion. "Hazardous waste" means a hazard ous waste as defined In i 261.3 of this chapter. "Hazardous waste constituent" means a constituent that caused the Administrator to list the hazardous waste in Part 261. Subpart D, of this chapter, or a constituent listed in Table 1 of f 261.24 of this chapter. "Hazardous waste management unit" Is a contiguous area of land on or in which hazardous waste is placed, or the largest area in which there is significant likelihood of mixing haz ardous waste constituents in the same area. Examples of hazardous waste management units Include a surface impoundment, a waste pile, a land treatment area, a landfill cell, an in cinerator. a tank and its associated piping and underlying containment system and a container storage area. A container alone does not constitute a unit; the unit includes containers and the land or pad upon which they are placed. "In operation" refers to a facility which is treating, storing, or disposing of hazardous waste. "Inactive portion" means that por tion of a facility which is not operated after the effective date of Part 261 of this chapter. (See also "active portion" and "closed portion".) "Incinerator" means any enclosed device using controlled flame combus tion that neither meets the criteria tor classification as a boiler nor is listed as an industrial furnace. "Incompatible waste" means a haz ardous waste which is unsuitable for (1) Placement in a particular device or facility because it may cause corny sion or decay of containment materials (e.g., container inner liners or tank walls); or (2) Commingling with another waste or material under uncontrolled condi tions because the commingling might produce heat or pressure, fire or ex plosion, violent reaction, toxic dusts, mists, fumes, or gases, or flammable fumes or gases. (See Part .269, Appendix V. of this chapter for examples.) "Individual generation site" means the contiguous site at or on which one or more hazardous wastes are generat ed. An individual generation site, such as a large manufacturing plant, may have one or more sources of hazardous waste but is considered a single or in dividual generation site If the site or property is contiguous. "Industrial furnace" means any of the following enclosed devices that are integral components of manufacturing processes and that use controlled flame devices to accomplish recovery of materials or energy: (1) Cement kilns (2) Lime kilns <3) Aggregate kilns (4) Phosphate kilns (5) Coke ovens (6) Blast furnaces (7) Smelting, melting and refining furnaces (including pyrometallurglcal devices such as cupolas, reverberator furnaces, sintering machine, roasters, and foundry furnaces) (8) Titanium dioxide chloride proc ess oxidation reactors (9) Methane reforming furnaces (10) Pulping liquor recovery fur naces (11) Combustion devices used in the recovery of sulfur values from spent sulfuric acid (12) Such other devices as the Ad ministrator may. after notice and com ment, add to this list on the basis of one or more of the following factors: 32 CMA 053592 3 MO.10 40 CR Ch. I (7-1-47 Edition) (I) The design end use of the device primarily to accomplish recovery of material products; (II) The use of the device to burn or reduce raw materials to matte a mate* rial product; (III) The use of the device to burn or reduce secondary materials as effec tive substitutes for raw materials. In processes using raw materials as prin cipal feedstocks: (lv) The use of the device to burn or reduce secondary materials as ingredi ents In an industrial process to make a material product; (v) The use of the device In common industrial practice to produce a mate rial product; and (vl) Other factors, as appropriate. "Inground tank" means a device meeting the definition of "tank" in $ 260.10 whereby a portion of the tank wall is situated to any degree within the ground, thereby preventing visual inspection of that external surface area of the tank that is in the ground. "Injection well" means a well into which fluids are injected. (See also "underground injection".) "Inner liner" means a continuous layer of material placed inside a tank or container which protects the con struction materials of the tank or con tainer from the contained waste or reagents used to treat the waste. "Installation inspector" means a person who. by reason of his knowl edge of the physical sciences and the principles of engineering, acquired by a professional education and related practical experience, is qualified to su pervise the installation of tank sys tems. "International shipment" means the transportation of hazardous waste into or out of the Jurisdiction of the United States. "Landfill" means a disposal facility or . pan of a facility where hazardous wsste is placed in or on land and which is not a land treatment facility, & surface impoundment, or an injec tion well. "Landfill cell" means a discrete volume of a hazardous waste landfill which uses a liner to provide Isolation of wastes from adjacent cells or wastes. Examples of landfill cells are trenches and pits. "Land treatment facility" means a facility or pan of a facility at which hazardous waste is applied onto or in corporated into the soil surface; such facilities are disposal facilities if the waste will remain after closure. "Leachate" means any liquid, includ ing any suspended components in the liquid, that has percolated through or drained from hazardous waste. "Leak-detection system" means a system capable of detecting the failure of either the artmary or secondary containment structure or the presence of a release of hazardous waste or ac cumulated liquid in the secondary con tainment structure. Such a system must employ operational controls (eg., daily visual inspections for releases into the secondary containment system of aboveground tanks) or con sist of an interstitial monitoring device designed to detect continuously and automatically the failure of the pri mary or secondary containment struc ture or the presence of a release of hazardous waste into the secondary containment structure. "Liner" means a continuous layer of natural or man-made materials, be neath or on the sides of a surface im poundment. landfill, or landfill cell, which restricts the downward or later al escape of hazardous waste, hazard ous waste constituents, or leachate. "Management" or "hazardous waste management" means the systematic control of the collection, source sepa ration, storage, transportation, proc essing. treatment, recovery, and dis posal of hazardous waste. "Manifest" means the shipping doc ument EPA form 8700-22 and. if nec essary, EPA form 8700-22A. originated and signed by the generator in accord ance with the instructions included in the Appendix to Part 262. "Manifest document number" means the U5. EPA twelve digit identifica tion number assigned to the generator plus a unique five digit document number assigned to the Manifest by the generator for recording and re porting purposes. "Mining overburden returned to the mine site" means any material overly ing an economic mineral deposit which is removed to gain access to that de* 33 CMA 053593 Environmental Protection Agency 240.10 posit and is then uaed for reclamation of a surface mine. "Movement" means that hazardous waste transported to a facility In an In dividual vehicle. "New hazardous waste management facility" or "new facility" means a fa cility which began operation, or for which construction commenced after October 21. 1978. (See also "Existing hazardous waste management facili ty".) "New tank system" or "new tank component" means a tank system or component that will be used for the storage or treatment of hazardous waste and for which installation has commenced after July 14.1986; except, however. for purposes of I 284.193(gM2> and I 265.1931gX2). a new tank system is one for which con struction commences after July 14. 1988. (See also "existing tank system.") "Onground tank" means a device meeting the definition of "tank" in i 260.10 and that is situated in such a way that the bottom of the tank is on the same level as the adjacent sur rounding surface so that the external tank bottom cannot be visually in spected. "On-site" means the same or geo graphically contiguous property which may be divided by public or private right-of-way, provided the entrance and exit between the properties is at a cross-roads intersection, and access is by crossing as opposed to going along, the right-of-way. Non-contlguous properties owned by the same person but connected by a right-of-way which he controls and to which the public does not have access, is also considered on-site property. "Open burning" means the combus tion of any material without the fol lowing characteristics: (l> Control of combustion air to maintain adequate temperature for ef ficient combustion. (2) Containment of the combustion- reaction in an enclosed device to pro vide sufficient residence time and mixing for complete combustion, and (3) Control of emission of the gase ous combustion products. (See also "incineration" and "ther mal treatment".) "Operator" means the person re sponsible for the overall operation of a facility. "Owner" means the person who owns a facility or part of a facility. "Partial closure" means the closure of a hazardous waste management unit in accordance with the applicable closure requirements of Parts 264 and 265 of this chapter at a facility that contains other active hazardous waste management units. For example, par tial closure may include the closure of a tank (including its associated piping and underlying containment systems), landfill cell, surface impoundment, waste pile, or other hazardous waste management unit, while other units of the same facility continue to operate. "Person" means an individual, trust, firm. Joint stock company. Federal Agency, corporation (including a gov ernment corporation), partnership, as sociation. State, municipality, commis sion. political subdivision of a State, or any interstate body. "Personnel" or "facility personnel" means all persons who work, at, or oversee the operations of. a hazardous waste facility, and whose actions or failure to act may result in noncompli ance with the requirements of Part 284 or 265 of this chapter. "Pile" means any non-contalnerized accumulation of solid, nonflowing haz ardous waste that is used for treat ment or storage. "Point source" means any discerni ble, confined, and discrete conveyance, including, but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding op eration, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated ag riculture. "Publicly owned treatment works" or pOTW" means any device or system used In the treatment (includ ing recycling and reclamation) of mu nicipal sewage or industrial wastes of a liquid nature which is owned by a "State" or "municipality" (as defined by section 502(4) of the CWA). This definition includes sewers, pipes, or other conveyances only if they convey 34 CMA. 053594 $ 260.10 40 CFt Ch. I (7-1-47 fdltlen) wastewater to a POTW providing treatment. "Regional Administrator" means the Regional Administrator lor the EPA Region In which the facility is located, or his designee. "Representative sample" means a sample of a universe or whole <e.g.. waste pile, lagoon, ground water) which can be expected to exhibit the average properties of the universe or whole. "Run-off" means any rainwater, leachate, or other liquid that drains over land from any part of a facility. "Run-on" means any rainwater, leachate, or other liquid that drains over land onto any part of a facility. "Saturated zone" or "zone of satura tion" means that part of the earth's crust in which all voids are filled with water. "Sludge" means any solid, semi-solid, or liquid waste generated from a mu nicipal. commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollu tion control facility exclusive of the treated effluent from a wastewater treatment plant. "Small Quantity Generator" means a generator who generates less than 1000 leg of hazardous waste in a calen dar month. "Solid waste" means a solid waste as defined in } 261.2 of this chapter. "State" means any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands. Guam. American Samoa, and the Commonwealth of the Northern Mariana Islands. "Storage" means the holding of haz ardous waste for a temporary period, at the end of which the hazardous waste is treated, disposed of. or stored elsewhere. "Sump" means any pit or reservoir that meets the definition of tank and those troughs/trenches connected to it that serves to collect hazardous waste for transport to hazardous waste storage, treatment, or disposal facili ties. "Surface impoundment" or "im poundment" means a facility or part of a facility which is a natural topo graphic depression, man-made excava tion. or diked area formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumu lation of liquid wastes or wastes con taining free liquids, and which is not an injection well. Examples of surface impoundments are holding, storage, settling, and aeration pits, ponds, and lagoons. "Tank" means a stationary device, designed to contain an accumulation of hazardous waste which is construct ed primarily of non-earthen materials (e.g., wood, concrete, steel, plastic) which provide structural support. "Tank system" means a hazardous waste storage or treatment tank and its associated ancillary equipment and containment system. "Thermal treatment" means the treatment of hazardous waste in a device which uses elevated tempera tures as the primary means to change the chemical, physical, or biological character or composition of the haz ardous waste. Examples of thermal treatment processes are incineration, molten salt, pyrolysis, calcination, wet air oxidation, and microwave dis charge. (See also "incinerator" and "open burning".) "Totally enclosed treatment facility" means a facility for the treatment of hazardous waste which is directly con nected to an industrial production process and which is constructed and operated in a manner which prevents the release of any hazardous waste or any constituent thereof into the envi ronment during treatment. An exam ple is a pipe in .thich waste acid is neutralized. "Transfer facility" means any trans portation related facility including loading docks, parking areas, storage areas and other similar areas where shipments of hazardous waste are held during the normal course of transpor tation. "Transport vehicle" means a motor vehicle or rail car used for the trans portation of cargo by any mode. Each cargo-carrying body (trailer, railroad freight car, etc.) is a separate trans port vehicle. "Transportation" means the move ment of hazardous waste by air. rail, highway, or water. 35 CMA 053595 Environmental Protection Agency 360.11 "Transporter" means s person en gaged In the offsite transportation of hazardous waste by air. rail, highway, or water. "Treatment" means any method, technique, or process. Including neu tralization. designed to change the physical, chemical, or biological char acter or composition of any hazardous waste so as to neutralize such waste, or so os to recover energy or material re sources from the waste, or so as to render such waste non-hazardous, or less hazardous; safer to transport, store, or dispose of; or amenable for recovery, amenable for storage, or re duced in volume. "Treatment zone" means a soil area of the unsaturated zone of a land treatment unit within which hazard ous constituents are degraded, trans formed. or immobilized. "Underground injection" means the subsurface emplacement of fluids through a bored, drilled or driven well: or through a dug well, where the depth of the dug well is greater than the largest surface dimension. (See also "injection well".) "Underground tank" means a device meeting the definition of "tank" in ( 260.10 whose entire surface area is totally below the surface of and cov ered by the ground. "Unflt-for use tank system" means a tank system that has been determined through on integrity assessment or other inspection to be no longer capa ble of storing or treating hazardous waste without posing a threat of re lease of hazardous waste to the envi ronment. "Unsaturated zone" or "zone of aer ation" means the zone between the land surface and the water table. "United States" means the 50 States, the District of Columbia, the Com monwealth of Puerto Rico, the U.S. Virgin Islands, Guam. American Samoa, and the Commonwealth of the Northern Mariana Islands. "Uppermost aquifer" means the geo logic formation nearest the natural ground surface that is on aquifer, as well as lower aquifers that are hydrau lically interconnected with this aqui fer within the facility's property boundary. "Vessel" includes every description of watercraft, used or capable of being used os a means of transportation on the water. "Wastewater treatment unit" means a device which: (1) Is part of a wastewater treatment facility which is subject to regulation under either section 402 or 307(b) of the Clean Water Act; and (2) Receives and treats or stores an influent wastewater which is a hazard ous waste as defined in 1 261.3 of this chapter, or generates and accumulates a wastewater treatment sludge which is a hazardous waste as defined in {261.3 of this chapter, or treats or stores a wastewater treatment sludge which is a hazardous waste as defined in 1261.3 of this chapter and (3) Meets the definition of tank in I 260.10 of this chapter. "Water (bulk shipment)" means the bulk transportation of hazardous waste which is loaded or carried on board a vessel without containers or labels. "Well" means any shaft or pit dug or bored into the earth, generally of a cy lindrical form, and often walled with bricks or tubing to prevent the earth from caving in. "Well injection": (See "underground injection".) "Zone of engineering control" means an area under the control of the owner/operator that, upon detection of a hazardous waste release, can be readily cleaned up prior to the release of hazardous waste or hazardous con stituents to ground water or surface water. [45 FR 33073, May 19. 1980, as amended at 45 FR 73028. Oct. 30. 1980; 45 FR 78075, Nov.17, 1980; 45 FR 78830. Nov. 19. 1980; 45 FR 86968. Dee. 31. 1980: 48 FR 3348. Jan. 9. 1981: 48 FR 27476. May 30. 1981; 47 FR 32349. July 36. 1983; 48 FR 2511, Jan. 18. 1983; 48 FR 14393. Apr. 1. 1983: 49 FR 10500. Mar. 30.1984; 50 FR 661. Jan. 4.1985; 51 FR 10174. Mar. 34. 1988: 51 FR 16443. May 2. 1986: 51 FR 35471. July 14. 1986; 51 FR 40636. Nov. 7. 1966) (360.11 References. (a) When used in Parts 260 through 263 of this chapter, the following pub lications are incorporated by refer ence: 36 CMA, 053596 "ASTM Standard Test Methods for Flash Point of Liquids by Setaflash Closed Tester," ASTM Standard D3378-78, available from American Soci ety for Testlnc and Materials, 1818 Race Street, Philadelphia, PA 19103. "ASTM Standard Test Methods for Flash Point by Pensky-Martens Closed Tester." ASTM Standard D-93-79 or D-93-80. D-93-80 is available from American Society for Testlnc and Ma terials, 1918 Race Street, Philadelphia, PA 19103. "Flammable and Combustible Liq uids Code" (1977 or 1981), available from the National Fire Protection As sociation, 470 Atlantic Avenue. Boston, MA 03310. "Test Methods for Evaluating Solid Waste. Physical/Chemical Methods". EPA Publication SW-846 [Second Edi tion, 1983 as amended by Update I (April, 1984), and Update n (April, 1985)1. The second edition of SW-846 and Updates I and are available from the National Technical Informa tion Service. 5385 Port Royal Road, Springfield, VA 33151, (703) 487-4800, as document no. PB 87-130-391. The cost is 848.95 for paper and 813.50 for microfiche. (b) The references listed in para graph (a) of this section are also avail able for inspection at the Office of the Federal Register, 1100 L Street, NW, Washington, DC 30408. These incor porations by reference were approved by the Director of the Federal Regis ter. These materials are Incorporated as they exist on the date of approval and a notice of any change in these materials will be published in the Fxddlal Rnitm. (46 FR 35347. July 7.1981. as amended at 50 FR 18374, Apr. 30. 1985; 33 FR 8073. Mar. 18. 1987) 37 CMA. 053597  0 C.F.R. 260.20 Subpart C--Rulemaking Petition* 9 260.20 General. (a) Any person may petition the Ad ministrator to modify or revoke any provision in Parts 2S0 through 285 and 268 of this chapter. This section sets forth general requirements which apply to all such petitions. Section 260.21 sets forth additional require ments for petitions to add a testing or analytical method to Part 261, 264 or 265. Section 260.22 sets forth addition al requirements for petitions to ex clude a waste at a particular facility from f 261.3 of this chapter or the lists of hazardous wastes in Subpart D of Part 261. (b) Each petition must be submitted to the Administrator by certified mail and must Include: (1) The petitioner's name and ad dress; (2) A statement of the petitioner's interest in the proposed action; (3) A description of the proposed action, including (where appropriate) suggested regulatory language; and (4) A statement of the need and jus tification for the proposed action, in cluding any supporting tests, studies, or other information. (c) The Administrator will make a tentative decision to grant or deny a petition and will publish notice of such tentative decision, either in the form of an advanced notice of pro posed rulemaking, a proposed rule, or a tentative determination to deny the petition. In the Fedhul Recistxx for written public comment. (d) Upon the written request of any interested person, the Administrator may, at his discretion, hold an infor mal public hearing to consider oral comments on the tentative decision. A person requesting a bearing must state the Issues to be raised and explain why written comments would not suf fice to communicate the person's views. The Administrator may in any case decide on his own motion to hold an informal public hearing. (e> After evaluating all public com ments the Administrator will make a final decision by publishing in the Ftoxkal Rxoism a regulatory amend ment or a denial of the petition. (45 FR 33073, May 19. 1980. u amended at 51 FR 40636. Nov. 7,1986] 38 CMA 053598 Environmental Protaction Agency 260.22 S 260.22 Petition* to amend Part 261 to exclude a waste produced at a particu lar facility. (a) Any person seeking to exclude a waste at a particular generating facili ty from the lists in Subpart D of Part 261 may petition for a regulatory amendment under this section and S 260.20. To be successful: (1) The petitioner must demonstrate to the satisfaction of the Administra tor that the waste produced by a par ticular generating facility does not meet any of the criteria under which the waste was listed as a hazardous or an actutely hazardous waste; and (2) Based on a complete application, the Administrator must determine, where he has a reasonable basis to be lieve that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant re taining the waste as a hazardous waste. A waste which is so excluded, however, still may be a hazardous waste by operation of Subpart C of Part 261. (b) The procedures in this section and S 260.20 may also be used to peti tion the Administrator for a regula tory amendment to exclude from 261.3(aX2)(ii) or (c), a waste which is described in those sections and is either a waste listed in Subpart D, contains a waste listed in Subpart D. or is derived from a waste listed in Subpart D. This exclusion may only be issued for a particular generating, storage, treatment, or disposal facility. The petitioner must make the same demonstration as required by para graph (a) of this section, except that where the waste is a mixture of solid waste and one or more listed hazard ous wastes or is derived from one or more hazardous wastes, his demon stration may be made with respect to each constituent listed waste or the waste mixture as a whole. A waste which is so excluded may still be a hazardous waste by operation of Sub part C of Part 261. <c) If the waste is listed with codes 'T\ "C", "R", or "E". in Subpart D, (1) The petitioner must show that the waste does not exhibit the rele vant characteristic for which the waste was listed as defined in S 261.21, $ 261.22. 261.23, or % 261.24 using any applicable methods prescribed therein. The petitioner also must show that the waste does not exhibit any of the other characteristics defined in I 261.21. $ 261.22. $ 261.23. or 1 261.24 using any applicable methods pre scribed therein: (2) Based on a complete application, the Administrator must determine, where he has a reasonable basis to be 260.22 40 CFR Ch. I (7-1.87 Edition) lieve that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. A waste which is so excluded, however, still may be a hazardous waste by op eration of Subpart C of Part 261. (d) If the waste is listed with code "T" in Subpart D. (1) The petitioner must demonstrate that the waste: (1) Does not contain the constituent or constituents (as defined in Appen dix VII of Part 261) that caused the Administrator to list the waste, using the appropriate test methods pre scribed in Appendix III: or (ii) Although containing one or more of the hazrdous constituents (as de fined in Appendix VII of Part 261) that caused the Administrator to list the waste, does not meet the criterion of $ 261.11(a)(3) when considering the factors used by the Administrator in 261.11(a)(3) (i) through (xi) under which the waste was listed as hazard ous; and (2) Based on a complete application, the Administrator must determine, where he has a reasonable basis to be lieve that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant re taining the waste as a hazardous waste; and (3) The petitioner must demonstrate that the waste does not exhibit any of the characteristics defined in $ 261.21, 1 261.22. 261.23. and 261.24 using any applicable methods prescribed therein; (4) A waste which is so excluded, however, still may be a hazardous waste by operation of Subpart C of Part 261. (e) If the waste is listed with the code "H" in Subpart D. (1) The petitioner must demonstrate that the waste does not meet the crite rion of 261,11(a)(2); and (2) Based on a complete application, the Administrator must determine, where he has a reasonable basis to be lieve that additional factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazard ous waste, that such factors do not warrant retaining the waste as a haz ardous waste; and (3) The petitioner must demonstrate that the waste does not exhibit any of the characteristics defined in 261.21, 261.22. 261.23, and 261.24 using any applicable methods prescribed therein: (4) A waste which is so excluded, however, still may be a hazardous waste by operation of Subpart C of Part 261. (f) [Reserved for listing radioactive wastes.) (g) [Reserved for listed infectious wastes.) (h) Demonstration samples must consist of enough representative sam ples, but in no case less than four sam ples, taken over a period of time suffi cient to represent the variability or the uniformity of the waste. (i) Bach petition must include, in ad dition to the information-required by 260.20(b): (1) The name and address of the lab oratory facility performing the sam pling or tests of the waste; (2) The names and qualifications of the persons sampling and testing the waste; (3) The dates of sampling and test ing; (4) The location of the generating facility; (5) A description of the manufactur ing processes or other operations and feed materials producing the waste and an assessment of whether such processes, operations, or feed materi als can or might produce a waste that is not covered by the demonstration; (6) A description of the waste and an estimate of the average and maximum monthly and annual quantities of waste covered by the demonstration; (7) Pertinent data on and discussion of the factors delineated in the respec tive criterion for listing a hazardous waste, where the demonstration is based on the factors in 261.11(a)(3); (8) A description of the methodolo gies and equipment used to obtain the representative samples; (9) A description of the sample han dling and preparation techniques, in- 0 CMA. 053600 Environmental Protection Agency eluding techniques used for extrac tion, containerization and preservation of the samples: (10) A description of the tests per formed (including results); (11) The names and model numbers of the instruments used in performing the tests: and (12) The following statement signed by the generator of the waste or his authorized representative: I certify under penalty of law that I have personally examined and am familiar with the information submitted m this demon stration and all attached documents, and that, based on my inquiry of those individ uals immediately responsible for obtaining the information. I believe that the submit ted information is true, accurate, and com plete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and impris onment. (j) After receiving a petition for an exclusion, the Administrator may re quest any additional information which he may reasonably require to evaluate the petition. . (k) An exclusion will only apply to the waste generated at the individual facility covered by the demonstration and will not apply to waste from any other facility. (1) The Administrator may exclude only part of the waste for which the demonstration is submitted where he has reason to believe that variability of the waste justifies a partial exclu sion. (45 FR 33073, May 19. 1980, as amended at 50 FR 28742. July 15, 19851 Editorial Note For information on the availability of a guidance manual for peti tions to delist hazardous wastes, see 50 FTt 21607. May 28. 1985. 41 CMA. 053601 C L'.F.R. 261.3(a)(2)Mv) (iv) It is a mixture of solid waste and one or more hazardous wastes listed in Subpart D and has not been excluded from this paragraph under ( 260.20 and 260.22 of this chapter, however, the following mixtures of solid wastes and hazardous wastes listed in Sub* part D are not hazardous wastes (except by application of paragraph (a)(2) (i) or (ii) of this section) if the generator can demonstrate that the mixture consists of wastewater the dis* charge of which is subject to regula tion under either section 402 or sec tion 307(b) of the Clean Water Act (in cluding wastewater at facilities which have eliminated the discharge of wastewater) and: (A) One or more of the following spent solvents listed m 261.31-- carbon tetrachloride, tetrachloroethy- lene. trichoroethylene--Provided, That the maximum total weekly usage of these solvents (other than the amounts that can be demonstrated not to be discharged to wastewater) divid ed by the average weekly flow of wastewater into the headworks of the facility's wastewater treatment or pre treatment system does not exceed 1 part per million; or (B) One or more of the following spent solvents listed in 261.31--meth ylene chloride, 1.1.1-trichloroethane. chlorobenzene, o*dichlorobenzene, cre- sols. cresylic acid, nitrobenzene, tolu ene, methyl ethyl ketone, carbon di sulfide, isobutanol, pyridine, spent CMA 053602  261.3 chlorofluorocarbon 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) divid ed by the average weekly flow of wastewater into the headworks of the facility's wastewater treatment or pre treatment system does not exceed 25 parts per million; or (C) One of the following wastes listed in $ 261.32--heat exchanger bundle cleaning sludge from the petro leum refining industry <FA Hazard ous Waste No. K050); or (D) A discarded commercial chemi cal product, or chemical intermediate listed in ; 261.33, arising from de mini mis losses of these materials from manufacturing operations in which these materials are used as raw mate rials or are produced In the manufac turing process. For purposes of this subparagraph, "de minimis" losses in clude those from normal material han dling 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 wellmaintained pump packings and seals; sample purgings; relief device dis charges; discharges from safety show ers and rinsing and cleaning of person al safety equipment: and rlnsate from empty containers or from containers that are rendered empty by that rins ing: or (E) Wastewater resulting from labo ratory operations containing toxic (T) wastes listed in Subpart D, Provided, That the annualised average /low of laboratory wastewater does not exceed one percent of total wastewater flow into the headworks of the facility's wastewater treatment or pre-treatment system, or provided the wastes, com bined annualised average concentra tion does not exceed one part per mil lion in the headworks of the facility's wastewater treatment or pre-treatment facility. Toxic (T) wastes used in lab oratories that are demonstrated not to be discharged to wastewater are not to be included in this calculation. 43 CMpt. 053603 40 C.F.R. 2 61.3(c) (2' (c) Unless and until it meets the cri teria of paragraph (d): (1)A hazardous waste will remain a hazardous waste. <2)(t) Except as otherwise provided in paragraph <c)(2Xii) of this section, any solid waste generated from the treatment, storage, or disposal of a hazardous waste, including any sludge, spill residue, ash, emission control dust, or leachate (but not including precipitation run-off) is a hazardous waste. (However, materials that are re claimed from solid wastes and that are used beneficially are not solid wastes and hence are not hazardous wastes under this provision unless the re claimed material is burned for energy recovery or used in a manner consti tuting disposal.) 44 ^ 0536Q4 0 C.F.R. 261.3(d)(2) (d) Any solid waste described in paragraph (c> of this section is not a hazardous waste 11 it meets the follow ing criteria: (1) In the case of any solid waste. It does not exhibit any of the character istics of hazardous waste identified in Subpart C. (2) In the case of a waste which is a listed waste under Subpart D, contains a waste listed under Subpart D or is derived from a waste listed in Subpart D, it also has been excluded from paragraph (c> under if 260.20 and 2S0.22 of this chapter. C45 PR 33119. May 19. 1980. as amended at 48 FR 56588, Nov. 11. 1981: 30 FR 14219. Apr. 11. 1983: SO FR 49202. Nov. 29, 1983; 52 FR 11821. Apr. 13. 1987] 45 CMA 053605 Subpart C--Characteristics af Hazardous Wasta 9 261.20 GcncnL (a) A solid waste, ss defined in {201.2, which is not excluded from regulation as a hazardous waste under ! 261.4(b). is a hazardous waste if it ex hibits any of the characteristics identi fied in this subpart. t Comment |262.11 ol this chapter sets forth the venerator's responsibility to deter mine whether his waste exhibits one or more of the characteristics identified in this subpart] (b) A hazardous waste which is iden tified by a characteristic in this sub part. but is not listed as a hazardous 46 CMA 053606 Environmental FntMtlM Agency J 2*1.23 waste tn Subpart D. is assigned the EPA Hazardous Waste Number set forth In the respective characteristic in this subpart. This number must be used in complying with the notifica tion requirements of section 3010 of the Act and certain recordkeeping and reporting requirements under Parts 363 through 269, 368. and Part 370 of this chapter. (c) For purposes of this subpart, the Administrator will consider a sample obtained using any of the applicable sampling methods specified in Appen dix I to be a representative sample within the meaning of Part 260 of this chapter. [Comment. Since the Appendix 1 sampling methods are not being formally adopted by the Administrator, a person who desires to employ an alternative sampling method la not required to demonstrate the equivalency of his method under the procedures set forth in II 360.30 and 360.31.1 [45 TO 33110, May 19. 1980. as amended at 48 FR 14294. Apr. 1. 1983; 51 TO 40636. Nov. 7. 1986] 9 261.21 Characteristic of ignitabillty. (a) A solid waste exhibits the charac teristic of ignitabillty if a representa tive sample of the waste has any of the following properties: (1) It is a liquid, other than an aque ous solution containing less than 24 percent alcohol by volume and has flash point less than 60*C (140'F), as determined by a Penaky-Martens Closed Cup Tester, using the test method specified In ASTM Standard D-93-79 or D-93-80 (incorporated by reference, see 1260.11), or a Setaflaah Closed Cup Tester, using the test method specified in ASTM Standard D-327S-78 (incorporated by reference, see 1260.11), or as determined by an equivalent test method approved by the Administrator under procedures set forth In H 260.20 and 260.21. (2) It is not a liquid and is capable, under standard temperature and pres sure, of causing fire through friction, absorption of moisture or spontaneous chemical changes and. when Ignited, bums so vigorously and persistently that it creates a hazard. (3) It is an lgnltablc compressed gas as defined in 49 CFR 173.300 and as determined by the test methods de- scribed in that regulation or equiva lent test methods approved by the Ad ministrator under if 280.20 and 260.21. (4) It is an oxidizer as defined in 49 CFR 173.151. (b) A solid waste that exhibits the characteristic of ignitabllity. but is not listed as a hazardous waste in Subpart D. has the EPA Hazardous Waste Number of D001. (45 TO 33119. May 19. 1930, as amended at 48 TO 35247. July 7. 1981) 9 261.22 Characteristic of corrosivity. (a) A solid waste exhibtta the charac teristic of corrosivity if a representa tive sample of the waste has either of the following properties: (1) It is aqueous and has a pH less than or equal to 2 or greater than or equal to 12.5. as determined by a pH meter using either an EPA test method or an equivalent test method approved by the Administrator under the procedures set forth in II 260.20 and 260.21. The EPA test method for pH is specified as Method 5.2 in "Test Methods for the Evaluation of Solid Waste, Physlcal/Chemical Methods" (incorporated by reference, see i 260.11). (2) It is a liquid and corrodes steel (SAE 1020) at a rate greater than 6.35 mm (0.250 Inch) per year at a test tem perature of 55`C (130*F> as determined by the test method specified in NACE (National Association of Corrosion En gineers) Standard TM-01-69 as stand ardized in "Test Methods for the Eval uation of Solid Waste. Physical/ Chemical Methods" (incorporated by reference, see i 260.11) or an equiva lent test method approved by the Ad ministrator under the procedures set forth in II 260.20 and 260.21. (b) A solid waste that exhibits the characteristic of corrosivity, but is not listed ss a hazardous waste in Subpart D, has the EPA Hazardous Waste Number of D002. [45 TO 33119. May 19. 1980. u amended at 48 TO 35347. July 7.1981] 9 261.23 Characteristic of reactivity. (a) A solid waste exhibits the charac teristic of reactivity if a representative sample of the waste has any of the fol lowing properties: 47 CMA. 053607 $aAU24 40 CFt Ch. I (7-1-47 Edition) (1) It la normally unstable and read ily undergoes violent change without detonating. (2) It reacts violently with water. (3) It forms potentially explosive mixtures with water. (4) When mixed with water. It gener ates toxic gases, vapors or fumes In a quantity sufficient to present a danger to human health or the environment. (3) It Is a cyanide or sulfide bearing waste which, when exposed to pH con ditions between 2 and 12.S. can gener ate toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment. (6) It Is capable of detonation or ex plosive reaction 11 It is subjected to a strong initiating source or if heated under confinement. (7) It Is readily capable of detona tion or explosive decomposition or re action at standard temperature and pressure. < 8) It Is a forbidden explosive as de fined In 49 CFR 173.51, or a Class A explosive as defined In 49 CFR 173.53 or a Class B explosive as defined In 49 CnR 173 88 (b> A solid waste that exhibits the characteristic of reactivity, but is not listed as a hazardous waste in Subpart D, has the EPA Hazardous Waste Number of 0003. 12(1.24 Characteristic of EP toxicity. (a) A solid waste exhibits the charac teristic of EP toxicity If, using the test methods described In Appendix n or equivalent methods approved by the Administrator under the procedures set forth In f! 200.20 and 200.21, the extract from a representative sample of the waste contains any of the con taminants listed In Table I at a con centration equal to or greater than the respective value given in that Table. Where the waste contains less than 0.5 percent filterable solids, the waste Itself, after filtering. Is considered to be the extract for the purposes of this section. (b) A solid waste that exhibits the characteristic of EP toxicity, but Is not listed as a hazardous waste in Subpart O, has the EPA Hazardous Waste Number specified in Table I which cor responds to the toxic contaminant causing It to be hazardous. Table 1--Maximum Concentration Of Con taminants for Characteristic of EP Toxicttv 48 CMA 053608 G C . F . R . Psr^ Sucp. D Subpart D--lists of Hazardous Wostos I 2S1JO General. () A solid waste Is & hazardous waste If it is listed in this subpart, unless it has been excluded from this list under 3i 260.20 and 260.22. <b> The Administrator will indicate his basis for listing the classes or types of wastes listed in this Subpart by em ploying one or more of the following Hazard Codes: fnlatt* warn-------------- CflffQVrt ................ ....... EP Tone WaM............ AOM HartM WlM... Jem .................. <<Qn (<R) (H) (T) Appendix VII identifies the constitu ent which caused the Administrator to list the waste as an EP Toxic Waste (E) or Toxic Waste (T) in 11261.31 and 261.32. (c) Each hazardous waste listed in this subpart is assigned an EPA Has- 49 CMA 053609 EAvfrMHiMfttal Protection Agency 5 261.31 ardous Waste Number which precedes the name of the waste. This number must be used In complying with the notification requirements of Section 3010 of the Act and certain record keeping and reporting requirements under Parts 262 through 285, 266, and Part 270 of this chapter. (d) The following hazardous wastes listed in f 281.31 or i 261.32 are subject to the exclusion limits for acutely haz ardous wastes established in | 261.5: EPA Hazardous Wastes Nos. FO20, F021, F022, F023. F026. and F027. US PR 33119. May 19, 1980, as amended at 48 FR 14394. Apr. 1. 1983; SO FR 3000. Jan. 14. 1985: 51 FR 40838. Nov. 7, 19881 8 281.31 Hazardous wastes from non-specific sources. The following solid waste* are listed hazardous wastes from non-specific sources unless they are excluded under || 260.20 and 260.22 and listed in Appen dix IX. $261,33 40 OF* Ch. I (7-1-17 Edition) [44 FR 4417. Jan. 14. 1981. as amended at 44 FR 37477. May 30. 1481: 44 FR 5312. Feb. 10, 1984: 44 FR 37070. Sept. 21. 1484: SO FR 485. Jan. 4. 1485; SO FR 3000. Jan. 14. 1085; 50 FR 53314, Pec. 31.1485: 51 FR 3701 Jan. 21,1488: 51 FR 8541. Feb. 25. 1988] 135133 Huudoiu waetae horn *pacific sources. The following aolld wastes are listed hazardous wastes from specific sources unless they are excluded under It 260.30 and 260.22 and listed in Appendix XX. 51 CMA. 053611 1 invironmantal Protection Agoncy nouttry and ERA hazardous waste No Hazardous watt* 261.32 Hazard coot KO11 .... K013 ... K014 .. KOI 5 .... K016.... KQ17 .... KOI.... KOI#.... K020 .... K0J1 .... K022.... K023.... K024 .... K093 ... K094.... K025.... K026 ... K027.... K028 .... K029.... K095 KOM Bottom stream from the wastewater stnpper m ITw production of acrytomtnlo............ (R T) Bonom stream from ths acstonrtnie column in mo production of acrytomtnte ........... (R. T) Bottom* from the acatomthte purification eotumn m tno production of acryionrtnla (T) Still bottoms from mo distillation of benjyt cftfondo............................................. (T) mHoavy onds or dsbiiation rouuot from mo production of carbon tstrsemonos........... (T) Hoavy onda (still bottoms) from tho purification column m mo production of ptcmorofTyOnn. mHoavy onds from mo fractionation eotumn m othyi enionda production.......................... mHoavy onds from tho distillation of othytono diehtonoa m ethytana dienionoo production. Hoavy onds from tno distillation of vmyi enionda m vinyl chtondo monomer (T) mproduction. Aguoous aoont antimony catalyst wasta from fkioromatnanos production...................... Distillation bottom tars from tha production of phanoi/acofona from eumona................ (T) (DDistillation hgnt onds from tha production of phthaSc snnydndo from napnthatona....... Distillation bottoms from tho production of ptWioSc onnytfido from naphihatano......... mO)Distillation ugnt onds from tho production of phthaic tnhydnoo from ortho-xytena...... Distiitation bottoms from tho production of phthaac snhydnde from onho-*yt#n#........... (D Ottillsson bottoms from tha production of mtrobancana by tno nitration of oanzana.... (D CRDStripping stilt tail* from tha production of methy othyi pyndmos....................................... CD Conrnfugo and distillation rasiduas from tofuana dreocysnste production...................... Spam catalyst from tho hydroemormator raaeter m tha production of i.vi-tnchiof* (D oomono. Waato from tha product siaam stnppar m tha production of i.t.i-tncruoroomano.... m Distillation bottoms from ma production of i,i,itnchioro*mana...................................... (D Hoavy onds from tho hoavy ands eolumn from tha production of l.i.l-tncmoroettv (D K030 (DColumn bottoms or haavy ands from tha combmad production of mehioroatnylono mKDS3........................ ........ Distillation bottoms from anSina production...................... ..... ............................................ K103 ....................... K104 ....................... KOSS........................ K105...................... ......... ... ........ Process residues from amlmo attraction from tno production of inline.......................... Combmed wastewater streams generated from mtrobanzana/snwoe production........... Distillation or fractionation column bottom* from tha production of chlorobenzenes...... Separated aqueous stream from tno reactor product washing stao m ma production fD <mfTT)) of cniorobonzana*. Kill ....................... ........ Product washwaters from the production of dtmtrotoiuana via nitration of tofuana........ (C.D Kl 12........................ ....... Reaction by-product water from mo drying column m mo production of tokienedti- CD K113 mmine via hyorogonstion of dmitrotoiusne. ....... Condensed liquid light ends from tho purification of toluenediamtne m mo production Kl 14 mOf toluanadiamino via hydrogenation of dtfwtrototuane. ........ Vicinal* from the purification of toiuonedumme m tno production of totuonodiammo Kl 15 (T)via hydrogenation of dmitrotoiuono ....... Heavy end* from the purification of toiuenedLimme m tno production of toluenedia- K116........ mine via hydroganation of dmitrotoiuano m...... Organic condensate from tho solvent recovery column m tho production of toluene Kl 17 . .. (DdiTSocyanoto via phosgsnaoen of toluonodismmo. .... Wastewater from tha reactor vent gas scrubber m the production of ethylene Kllfi ....... mdibromida via prommabon of ethane. ......... Spent adsorbent sows from purification of ethylene drom*Je m tno production of K136 ..... momyvtne dibromde vie brommabon of ethana. ...... Still bottoms from me punftcaion of ethylene qibcormoo in the production of ethylene ! didromKM via brormnation of ethane (Dinorgamc chemicals: K071 ........................ ....... Brme pitthcabon muds from me mercury cell process m cMorme production, where | separately prepunfied brme is not used. j mK073 ..................... ....... Chkmimted hydrocarbon waste from the purification stop of the diaphragm cell | procse* uamg-graphita anodes m cniorme production. Rasbods*K106........................ ........ Wastewater treatment sludge from tno mercury cell process in chtormo production | K03T......................... .... ( By-product.salts gomrgtoa m tha production of MSMA and cacddyfie acid...................j K032.......-............... _____ Wastawatar treatment sludge from the production of chlordane.............................. K033........................ .......... Wastewater and scrub water from the chlorination of eyelooentadiene in me (T) m ID (T) production of chlordane mK034........................ ...... . Fiber softds from -me Miration of hexachiciocyclopantadiene m me production of K097 ........ K035.... . K03S......... K037 . ... K03 .. . Vacuum stnppar discharge from the chlordane chtonnator in the production of chlordane, wastewater treatment sludges generated in tno production of creosote StNl bottom* from toluene reclamation distillation m tha production of disulfoton ...... Wastewitar treatment sludges from tna production of disulfoton .................... Wastewater horn the washing and stripping of phorati production................................. m m (D CD (D CMA 053612 261.33 40 CFR Ch. I (7-1-87 Edition) industry and EPA hazardous wasts No Hazardous wests Hazard cooe KQ39 ................................... K041.................................... KW2.................................... K043............................... K0W ................................ KtZ3.................................... Filter cake from the filtration of diethytpnospnorodrthioc sod m the production of pnorate. Wastewater traetment sludge from the production of toxaphene.................................... Heavy ends or distillation residues from the detiHation of tetrachtorobenzene m the production of 2,4,5-T, Untreated wastewater from the production of 2.4-0.......................................................... Process wastewater (including supematee, filtrates. and wathwatert) from the production of ethyienoduddhiocarttamic aod and its salt m m rn m m m (T) m K124 .................................. K125.................................... K12................................... Reactor vent scrubber water from the prooueeon of ethyfenebisdrtfttocarpamic aod and ns sans. Filtration, evaporation, and eentnfugaoon sotids from the production of etfiyteneon drthiocarbamic aod and its salts. Baghouee duet and floor sweepings m m4kng and peckaging operations from the production or formulation of etfiylenebisdUtiiocsrtiimr sod and its salts. (C. T) m fT) Explosives: mK044 ................................... wastewater treatment sludges from the manufacttfog and processing of sxpioivoa .. (R) mK0*6.................................... Wastpester treatment sludges from the manufecnamg. formulation and loading of lead-based mrsatmg compounds. (W Petroleum refining: mK04*.................................... DtMOfwfl air flotation (OAR lloat from tha patrataum rafmng mOuatry........................... mK049................................... Slop oil emulsion solids from the petroleum refining industry........................................... KQ50.................................... Heat exchanger bundle cleaning sludge from the petroleum refmmg industry................. m K051 mAPI separator sludge from tha petroleum refining mousey................ ............... ............... Iron and stoat; (71 K061.................................... Emission control dust/sludge from the primary production of steel m siectnc fumeces. 2ko ................................... Spent pickle figuer generated by steel finishing operator* of facilities within the von and steel industry {SlC Codes 331 and 332). (T) (C.T) Secondary teed: m mK100................................... waata Macting totuuon Iran too metwij of wauion control duat/ttudg* from secondary lead smelting. Veterinary pharmaceuticals: rnK0B4................................... wastawater treatment sludges generated durmg the production of veterinary pharma- ceuucait from arsemc or organo-arserac compounds. K101.................................... Distillation tar residues from the dtStiHauon of amkne-baaed compounds m the { (T} production of veterinary pharmaceuticals from arsenic or organo-aroeme com pounds. mK1Q2 .................................. Residue from the use of activated carbon for decotonzabon m the production of veterinary pharmaceuticals from arsemc or organo-iroeme compounds. ink formulation' K086 Solvent washes and sludges, caustic washes and sludges, or water washes and m sludges from cleaning tubs and egmpment used m the formulation of ink from pigmem*, driers, soaps, and stabilisers containing chromium and lead CokingKQQ0 .................................. Ammoma still hme Sludge from coking operations....................................................... m (T) [46 FR 4618, Jan. 16, 1981. U amended at 46 FR 27476-27477. May 20. 1981; 49 FR 37070. Sept. 21. 1984; 50 FR 42942. Oct. 23. 198S: 51 FR 5330. Feb. 13. 1986; 51 FR 19322. May 28. 1986; 51 FR 33612, Sept. 22. 1986; 51 FR 37729, Oct. 24, 19861 261.33 Discarded commercial chemical product*, off.ipeeiflcation species, con tainer residues, and spill residues thereof. The following materials or items are hazardous wastes if and when they are discarded or intended to be discarded as described in 261.2(a)(2)(l). when they are mixed with waste oil or used oil or other material and applied to the land for dust suppression or road treatment, when they are otherwise applied to the land in lieu of their original intended use or when they are contained in products that are applied to the land in lieu of their original in tended use, or when, in lieu of their original intended use. they are pro duced for use as (or as a component 53 i. ... CMA 053613 Environmental Protection Agency 261.33 of) a fuel, distributed for use as a fuel, or burned as a fueL (a) Any commercial chemical prod uct. or manufacturing chemical inter mediate having the generic name listed in paragraph (e) or (f) of this section. (b) Any off-specification commercial chemical product or manufacturing chemical intermediate which, if it met specifications, would have the generic name listed in paragraph (e> or (f) of this section. (O Any residue remaining in a con tainer or in an inner liner removed from a container that has held any commercial chemical product or man ufacturing chemical intermediate having the generic name listed in paragraph (e) of this section, unless the container is empty as defined in 261.7<bX3) of the chapter. [Comment: Unless the residue is being bene ficially used or reused, or legitimately recy cled or reclaimed: or being accumulated, stored, transported or treated prior to such use. re-use. recycling or reclamation. EPA considers the residue to be intended for dis card. and thus, a hazardous waste. An exam ple of a legitimate re-use of the residue would be where the residue remains in the container and the container is used to hold the same commercial chemical product or manufacturing chemical intermediate It pre viously held. An example of the discard of the residue would be where the drum is sent to a drum recondltloner who recondltlona the drum but discards the residue.] (d) Any residue or contaminated soil, water or other debris resulting from the cleanup of a spill into or on any land or water of any commercial chemical product or manufacturing chemical intermediate having the ge neric name listed in paragraph (e) or (f) of this section, or any residue or contaminated soil, water or other debris resulting from the cleanup of a spill, into or on .any land or water, of any off-specification chemical product and manufacturing chemical Interme diate which, if it met specifications, would have the generic name listed In paragraph (e) or (f) of this section. (Comment The phrase "commercial chemi cal product or manufacturing chemical in termediate having the generic name listed in . . refers to a chemical substance which Is manufactured or formulated tor commercial or manufacturing use which consists nf the commercially pure gnde of the chemical, any technical grades at the chemical that are produced or marketed, and all formulations in which the chemical is the sole active ingredient. It does not refer to a material, such as a manufacturing process waste, that contains any of the sub stances listed in paragraph <e> or (f). Where a manufacturing process waste is deemed to be a hazardous waste because it contains a substance listed in paragraph (e) or it), such waste will be listed in either i 361.31 or i 361.33 or will be identified as a hazardous waste by the characteristics set forth in Subpart C of this part.] (e) The commercial chemical prod ucts. manufacturing chemical interme diates or off-speclflcatlon commercial chemical products or manufacturing chemical intermediates referred to in paragraphs (a) through (d) of this sec tion. are identified as acute hazardous wastes (H) and are suaject to be the small quantity exclusion defined In I 261.3(e). [ Comment For the convenience of the rsgu- v lated community the primary hazardous properties of these materials hsve been Indi cated by the letters T (Toxicity), and R (Re activity). Absence of a letter indicates that the compound only Is listed for scute toxldty.l These wastes and their correspond ing EPA Hazardous Waste Numbers are: 54 CMA. 053614 CMA 053615 Hita** -*''>n*' 'o AsucliNo. POM 107-20-0 POM Sit-OS-2 POST S40-1S-7 P05S 62-74-S POM 167U-77-S AcMmdc aadl NlpiwS*cafMmoy0o>YlMO-, P002 SSI-OS-2 1 Acrtp-2-MourM POOS 107-02-S P0T0 1IS-0S-3 POM 300-00-2 POOS 107-lt-S Apl tfcohol POOS 20S5S-73-S P00T POOS 2T43-SS-4 S04-24-S 4lphAnanopyratn POOS 131-T4-S Ammonum picrM (R) PHI 7S03-S5-S P0I0 P0I2 777S-3S-4 1327-S3-3 ArMW Midi A^O. POM 1303-20-2 Anmc Ml AlA POM 1303-2S-2 P0I2 1327-S3-3 Ln P03S 002-42-2 Ln POM 0SS-2S-S POM 1S1-5S-4 P0I3 S42-S2-1 P024 10S-4T-S P07T 100-01-S P02S P042 100-44-7 91-43-4 . cnj- POM 122-OO-S POM pool I0S-M-S `ll-SI-2 POM 100-44-7 P01S 7*40-41-7 P01S S42-SS-1 POIT SSS-31-2 pois 3S7-S7-3 P021 9S2-01-S P022 7S-1S-0 POM 7S-1S-0 POSS 7S-44-S POM 107-20-0 PQ24 10S-47-S POM $44-02-3 ia b Environmental Protection Agency P030 P031 P033 PP0O3M4 POST POO POM POOO poir F05I P047 POO POM POOS 400-10-5 500-77-4 131-00-5 400-20-0 00-57-1 002-42-2 311-45-5 207-07-2 55-01-4 305-00-2 405-73-0 00-57-1 72-20-0 60-51-5 30100-10-4 I22-O0-O *534-52-1 51-20-5 00-05-7 152-10-0 CyamdM (tobMi eyamda aatu). nol o*Mranaa spacihad Cfinogan Cyinogan cNonda 2-Cydohmy* 4.0 OnOopImiol O.OM|I Opitunifl Np0n<lb0r0|A0lpiM|DEf1 1.4 5.0Ow404*wn4|O>ia1a>0. 1.2.3,4.10.10 haKachloro-M.aa.S.O.Oa haKatyifro-. |ialpha.4aipha4abaia.Sa4pfka.Oaipia,Oat>aia) 1.4 O.Q-Oanlhaiwmaioilhalaoa, 1.2.3,4,1O.1O4MitcMDro-1,4,4a.50,Oa-haRahvOro-. jla1pha.4lpha.4abata.Sbala.0bala.0abaiB)&7.3.5Oima0ianonapNM2.3b)ojiiraM. 3.4.SA0.5hiaacMoM-la.2.2a.3.6.6a.7r7a-octahydrO'. |taalpti.2bala.2aaiphi>3bata>6toai.6a40>ha.rbaia 7aalpft*l2,7:3.0tlHMOi0nonaphOi(2.3li)oM5ana. odahy*o-. 0aaha.2bala.2ab<t.3alpfra.6alpha(6abata. 7bata.7aiphap waOioan 3,3-OawQiyl 1 -Onih|4>MO)-2-0tifnoft4. Q-t(malhy1anana>cait>ori|0 oaima PPOOS4O0 541-53-7 2,4-Dtfaofeaaal 115-20-7 POO0 145-73-3 P0S1 72-20-0 Ul P042 51-43-4 O P101 107-12-0 POM 151-50-4 PO07 52-05-7 P050 7702-41-4 P057 040-10-7 POSO 02-74-0 PO02 P110 POOO POOS POOS POOO P004 POOO P007 P002 POOS P002 poio 757-50-4 70-10-0 00-34-4 74-00-0 74-00-0 7003-51-2 024-03-0 405-73-0 2703-054 02-30-4 O2O-0O-4 02-75-0 542-00-1 HyAatma. aiaOiyl S^touuotoni, S-iamnomathyOMatCury, (aciM&Olfiwnvl Maicury Mmnala (R.T) Mlhamina. Mdiw, cwytaalcMoro- 2*1.33 CMA 053616 CM* 053617 Chamcol MOOCH Np No, PI 12 PHO POSO POW POM poor POM POM POM P071 n POTS POTS POTS POT* POTT POT* POTS POT* poai POM POM PON P0*S POST PMT POM POM POM POM PWT PO POM POM POM POM POM PM* P041 PQ39 POM POM poa *09-14-9 75-70-1 ns-it-7 29-44-9 10752-77-5 7S-5S-0 O'34-4 024-49-0 75-00-5 290-00-0 13413-39-3 134*3-39-3 1 64-11-5 10102-43-* 100-01-4 10102-44-0 10102-43-0 10102-44-0 SS-M-0 02-75-0 4349-404 M7-14-7 152-!*- 20*l*-l2-0 30414-12-0 145-13-3 4444-3 111-44-4 51-20-0 * 534-52-1 *0-05-2 131-24-9 *2-39-4 109-95-5 200-02-2 75-44-5 7003-51-2 3*1-45-5 290-04-4 290-02-2 *0-51-5 60-91-4 IMKm, MUnH- (H) MaOwneOvd. tocrtoto4.44Mtan2.*>baniaito>atliM(Mn. O.rj.t.lO.iO-tiuaclikJia- l.5,S.e.. 4.7 IIHwl H mOfU. t.4.M,7.M M0acMota-te.4.7.|4'Mi*hrd'OMiftowyl 2-ftMhvtaundMW Uiv hrjn Mtfhvt HocydneM 24de**9*on*da WiOyt pUfcttwn alpha NtpWhMwn0-- McM CVtJOfV McMt HtonjA (74)Hcotow and mM Mine oudt p-Ntfroanfen* Hdrogan Henri* MOoganoudaNO N*OQan ouH NO* N*0(frcm (HI HMo4nirt)toiMi *4tWoeog*iiy*wny*emri> NcW cyande OcH#n>4pTOphophCMrn4M Omun and* OMMum N>ok* TOabicycM2.2.1 IMpHfte-2,3-<fccart>OKy*C cod PareOaofl Phenol 2<vctoMivM.*-<kn*o- PMnol. T.IOnlOPtunol, 2mill>)M,5{*n4ia and sans Phenol, 2 ft-mNh)^propy4> 4,6-iki*o Phenol. 2.4.0-mndfO-, ammomim aa* (R| Phenjanarcury acew PhanyWimaM morale fhoegeoa PhoapNne Phoaphonc Bad. (hefty* 4 alrophenyl Mlar Phoaphorodriftoc oad. O.Oddhif 5(2[dMhojdhyi) hW PhoaphorocMhaoic ocad. O.O-iWfty* S-l(aih)i4ftto)mafti4| mm phoaphorodtfrac oad, O.OdmdM S[2-(Mthyfamh2-MMt)4| n* Rwaphorolluonc ead. ftep nwfty+eftyfr eater *0* b s Q 9 Jm S%o> CMA 053618 PM9 56-31-2 Mad. O.O-dalhyt O H nrtropTwnytl iiw PO40 20747-2 Mad, O.Odd^ O ppumgt iM por 5245-7 cad. 0-14-C ><tmMhyiamino)>udoov<lph*ny11 O.O-dmdhft i P071 MS-00-0 Mad. OOdMWhvl 0-14 ndrophanylt Mr PlIO 70-00-2 POM 151504 POM PO70 500-01-4 114-00-3 2 t ImatoyOtooh CH(rM* ojcdto^louiM P101 107-12-0 P027 S42-7S-7 POM 7S-SS-S POM 95434 poir 900-31-2 P102 107-1S-7 P003 107-02-0 POOS 107-1S-S }<ntNn-1-ol P067 P102 75-55-0 1,2-Pnifiytonmna 501-0S-2 ?frop<n>1-t POM 504-24-5 fydnm* port ' S4-1I-S PyndK*. (SJ-3-(1-m0)|4-2-p|^oUri|i1K and aaHa pi 11 107-40-3 ^tophoifitane lad. tolraidayt MtM PIM 030-10-4 Satonotvaa PI04 500-44 0 Sfear cywdi PIOS 20020-224 Sodun md pioe 143-33-0 Socfeun cyamcto PI07 tn PIM oo POtl 1314-00-1 SVoduin iuMa 57-24 0 Skydndn-IIMm, and uHa 357-57-3 SkychnM 10-ona, 2,3dnMhoiiv- PIM * 57-24-0 Stycfmi and uHi Pllft 1003I-S0-1 SuNmc aod. OiaOumfl) uH PIM 3000-24-5 Tadaatti^ddlMOpidophMfihM PllO 7040-2 falMttiyt toad Pill 107-40-3 PIU 500-144 POM 757-504 PIU 1314-32-5 PIU 1314-32-5 PIU 12030-524 PIIS 10031-50-1 PIM 3000-244 P04S 30100-104 POO 441-53-7 P014 100-00-5 PIIS POM 70-104 534442-1 Ihoum, |2<cMorofdwnyt|- P072 00404 fhMM. I napWtMton^- POM PIM 103454 0001-35-2 Itoam. plian^ iBHptom 3 < 3a 3 3 t 9 > a 41 n CMA 053619 [ *CAS HufftMr pm lor parent confound only U1 KO 40 C H Ch. I (7-1-17 M Hin) 261.33 / Environmental Protection Agency 261.33 (f> The commercial chemical prod ucts. manfacturing chemical Interme diates. or off-specification commercial chemical products referred to in para graphs (a) through (d) of this section, are identified as toxic wastes (T). unless otherwise designated and are subject to the small quantity genera tor exclusion defined in } 281.5 (a) and <>. (Comment- For the convenience of the regu lated community, the primary hazardous properties of these materials have been indi cated by the letters T (Toxicity). R (Reac tivity). I (Ignitabillty) and C (Corroalvlty). Absence of a letter Indicates that the com pound la only listed for toxicity.] These wastes and their correspond ing EPA Hazardous Waste Numbers are: 60 CMA 053620  M 1.33 a t40 Ch. I (7-1-17 Edition) o UIw cKn) CMA 053622 U060 4-74-2 1,2-6*runMfecarbo)Oc cd. dtoutyl UOM 4-00-2 1,2 Boniw*caffeojte tod. dwihyt Mm U1U 131-11-3 1,2B--u***c*BonOc mad. cfcraefryH nim U107 uoro I17-M-0 l,a BwmoOc>ton*r kO On-octiii M 5-50-1 Barron*. 12-OeMoffr U07I intz 541-73-1 105-40-7 U060 72-54-* mm. 1. 1-(724c^o%UMi)hiMNQio- U017 223 20471-02-5 - 1M> U235 1330-20-7 U1 100-40-3 UI27 115-74-1 U0202560 MO-52-7 I00-W-3 OOIIOOOS ooss O0IBIM3 121-14-2 000-20-2 506--0052--30 605-53-5 Banian*. 2 mOhirl-l.3-Omtto0*ni*n*, (l nwOyWhifr <0 Bnuim, n*o- |I.T| Banian*. (anOcWwfr UI55 62-66 0 Smiina, panl*cNoon*o- 0020 50-00-0 BwiwuWonic mad cNond* U020 U207 55-54-3 SniHM, 114.SMlcN0f^ U06I 50-20-3 Bin**, 1.1 `-<2.2,2- tcttoroetfiyMenaibisI 4 cMoro- U24? o> U023 K> 0021U234 72-43-5 56-07-7 50-35-4 52-07-5 Bmihm, 1.l^(2.2^'5ichlooi5i)4Ml0m|l4-mirMW|r6MHM, flncMoronMhyO |C.R.T| Bmntmm, U.5lnr*o- JR.I) 0202 1 51-07-2 1.2-B*u*oOi*m-3-{2HH)n. I.IOoada and uMi 0203 54-50-7 o00u00t 120-55-1 54-55-0 OBaniodouto, 5-popyl- 0004 150-55-0 Boniol f* IponUplMf* 0022 50-32-0 Bvo{i]pfan UIB7 100-51-4 pOnuoom* 0023 BwmneWonili (C.RJ) 0005 1404-53-5 2.74*ox**n* O.TI 0021 52-07-5 11,1'-BfMnyl M,45imn 0023 51-54-1 tl.1B*hanvlM.4-*n*. 3.3-4chtoro- 110-50-4 ll.f BnhwHM.I ^wiw, 33-cfcnatho*y 110-53-7 11.1 ftftfwngl M.4'-(fc*nw. 0027 0024 m-pi-i30535-32-5 6t2-cMovoiMprap)4 0mt 0020 117-01-7 0225 75-25-2 0090 101-55-3 UI20 07-00-3 1.3 Bull***. MM4.44iw*c40f0- 3a3 a 3| a > 3a 2 o* 5  26143 40 CW CK. I (7 .1 4 7 E6Hi*n) CMA 053623 CMA. 0 5 3 6 2 4 U0S7 Ut30 UOM U240 U0S9 uoto uooi U062 UOM U094 UOM uom uoto uon uon uoio UOM UOM uon UOM U025 uooi UD62 11240 UOM U004 UOOS UIM UOM uoor UOM UOM UOM UOOI UOM UOM 11004 UOM UOM uoor UOM UOM UI6t UIQ2 UI03 UIM UIM UIOI 100-04-1 IT-41-4 M-IO-O *04-74-7 20630-01) 72-54-6 50-20-3 2303-16-4 53-70-3 1M-53-6 00-12-0 04-74-2 00-50-1 541-73-1 100-46-1 11-04-1 704-41-0 76-71-0 76-35-4 156-60-5 111-44-1 120-03-2 07-66-0 04-76-7 76-07-5 542-76-0 1464-63-5 123-01-1 1015-60-1 32M-S6-2 64-66-2 56-63-1 04-66-6 116-00-4 124-40-3 60-11-7 07-07-0 116-03-7 00-16-0 70-44-7 57-14-7 640-73-0 106-61-0 131-14-3 77-70-1 121-14-2 0M-2O-2 147-64-0 CtrdDtMftnOM 10 I ^CydopantKMna, CirctoptuMflumiH 2.4 0. u6aai*w Oaunomyon 000 DOT 0M4I4 Dtenil aJilanlirictM Pbu4y1 jhtiMla oOcNorabanum iftOcMonOamant p-OtaMorotmuana 1,40cHoro>20utM |I.T| OcNaniMuwanNVwn* 1,HM4oioa6|ftw UOcNotoaNi|!lai4 OcWoIOHMM TlOcMoiopfianol 2.6(lkMoreolMnol 740fd4M(fliafN)facakc sod, aaRa and Mara UOicHMOpropaM 1.3-Oichfc)f0fWtif>n U3.4 Onpoqtaim il l) I^Owt^inaoiirta KKOjaMiOuna O,O-0nH4-S w6p4 rUhiophoaphaM DmolfMMato EMOKOomOcM OmUytaniM (0 7.1 !UnMi|ml lamia*cn >M.Mi** OwT|dbnrv*rdiopfojudi (R) 1.1 Oni6|ii)6tiaii UObmA)li|Outna 240mt#ianol DnaM prtftalan Dkm4)|I mMi 1.4-Onkolokim 2.0-Omilra4oliiM D n od4 pwnMw 333 3 a. -* 3 l 3 b CMX 053625 HU ar<ku No Chamcai abUttdiNo UI00 123-91-1 1.4-Dkwom UI09 122-09-7 1.lEXphanyXydianna U110 um 142-94-7 OpropirMm'M (t| 021-94-7 ft-nfroftWownwi uooi 79-07-0 Efeantf 40 U1T4 U15S 95-19-5 EDanmint, N iUjl-N nOMO11-90-5 MEUMnadwim. ? W a*art|*iiat|rl| U097 uoro 109-03-4 Elm. 1.1-dMwm75-34-3 Eftm. U-dcMofo- 0077 107-09-2 EXana. 0131 97-72-1 Etfiana. ftatacNoro- U024 111-91-1 EMM. l,r-E>Mlh|i(anMM|o>)lltMlI'CM0(O- urn 00-29-7 EIhm, i.r-OKyOta- 40 U026 111-44-4 EXana. l.t -SMlMll-cMaa- U'94 79-01-7 EXana. panXcMvo- U20I 530-20-9 EXana. I.I.I.MaaacMoro- 0200 79-34-5 EXana, I.I.M-taaacWora- U210 2-55-5 ElWMMinM , U227 110-00-5 Ettwwi. 2-Mtwqr- 0359 70-40-S EIwn, Ui-mcNoio- 0173 o> 0004 m U043 ine-54-r Exam*. 2^ (naaamniM 90-45-2 EtaMM, Ifhmyt75-01-4 Etiana. cMoio- U042 114-75-0 Etftana. (2-CMoroMhOr}- U07I 75-35-4 EMnt, 1,1-AcNoro- 007* 15900-5 ENn*. 1.2-dKMoro-, (E| U210 127-10-4 ENm, MruMoro U229 79-01-9 Etiana, IncNoao 0112 0113 141-70-9 EXftacaiau B 140-00-5 acrytaia |l| U230 0030 51-79-9 E9i)4 ciOamM 514-15-0 Eojl 4,4'4cNoiobaniilaia 0114 111-54-0 0067 109-93-4 EOiylana dtaomda 0077 107-09-2 Eltftana OcHonda 0350 110-90-5 EXirtana jljcol monoaXy* aXat 0115 75-21-4 Etiytana owda (M> U11I 99-45-7 Ethytana taouaa UI17 94-29-7 EtiylaOiar (0 0070 75-34-3 E9i|Wana dKMorida UI10 97-93-2 Elh)4 ma<aciytii> 0119 2-50-0 0120 209-44-0 FbwanXana a G e * z 5s CMA. 053626 U122 UI23 UI24 0125 UI47 U2t3 0123 UtM 0205 0126 0163 0127 UtM U126 UtM UI3I UI32 U243 UI33 UOM UOM UOM UIM 0134 0134 0135 UOM 0135 0115 uur UtM U150 UI40 UI41 UI42 LM43 0144 0145 0143 0145 0125 0147 U145 UI45 utso UISI UIU 0052 50-00-0 54-15-5 110-00-5 M-OI-1 105-31-5 105-05-3 55-01-1 110-00-0 15853 55 4 755-34-4 70-23-7 115-74-1 57-55-3 35-55-5 77-47-4 57-72-1 70-30-4 1585-71-7 302-01-2 1513-50-1 37-14-7 340-73-5 122-65-7 7554-35-3 7554-35-3 7753-05-4 50-13-5 73-50-3 55-43-7 153-35-3 0004-55-4 53-44-5 75-53-1 120-35-1 143-60-0 303-34-4 301-04-2 1335-32-5 7446-27-7 1333-32-5 35-55-5 105-31-5 123-33-1 105-77-3 145-52-3 7435-67-5 125-M-7 124-40-3 FormaJdahyda Forme aad&Tl Foron tO 2-FunnuitaMMaiivda V) 2.3-Furamtano Furan, 01 Fufardff Firk*an (1) OOhiC0f>yin0M. 2-daoinr'2(&ma5i|*3-ra*oaouraM)ot- G*adv*UaMa Oumlnt, HyriMt)4Fr-nlro-N^MriM Hauaddorobamana 1 HmrNniottiimtMM 1 lararWoror^rinhowno {gamma aonw| 1 laiiactiniorftiopantartaoa 1 lanartiloioatiana Hrdrum (B.T) H|5um, U4a5|i1Hrdrum. I,l4m6f1 Hydrun. U-dmlijl Hvrftwna, U4phan|4Ifrdoiuonc aod fC.T) HTdiogM Nuond* |C.I| Mydoyn auftda Hydroparojuda. 1-maihyl l-phanytolfti't (H) 1%<5puy^ma5i|laraina ouda Indanot l.2.3cd)p>rana Iron daxlran 1 >laobanioluraMbona |ioMvlllcoM|t,T| laoaafroia Kapona laarocarpmo Ld acatata Load. ba|icuita<HMnhydroiyiflLaid phoaphata taad *`A**^i** Lmdana Malac wtiydnda Mane hydaada MatononMa tHfrlrlan Mercury Mmhaoiloreaaa |l.l> M--*--mm. N-nway- |l) CT19C S X>uBv uo}p40J4 |a(uuiuoj|AU] I CMA, 053627 a - l - l ) I *M3 U 3 Of c ri S il CMA. 053628 U147 UIU UOM uier UIM uai r UIM ui?o ui u\?t uin UtM uwo 0177 U17I UI79 UIM UI9I UIU UOM uns UIM U041 UIM UIM UIM UIU U242 UIU UIM UIU uon UOM UOM UOM UOM uiei UOM UIU UIM 0242 0212 U230 UMI UIM UIU 134-32-7 91-594 MUNipM%*ian* 494-03-1 i HK-twg-cWoronwOnt}- 134-32-7 01-59-0 10102-43-1 99-96-3 NttoMfiMoa P.T) 160-02-7 rW|Mm 76469 a-Mkaptapam (I.T) 24-16-3 1119-54-7 fl 66-19-5 N4lfeoH0>O|iMm 706-764 N M>o>o M lOitan 664-93-5 W NOow fl miO)iu(ii 019-53-2 H 709090 H l--Ql|farMMW 100-75-4 M IMtaopynitni 930-55-2 6N9oHpynofe5ni 00-554 5-Mt0-0-tokfcM 1120-71-4 1,2-OMMhiolm. 2i4oml 50-194 2H-1.3,a-Ohaupfcaaplia(^a-amnk M/HMti-clilnoMiyVIMiMivdiO 75-214 0tf 3.1) 705-34-4 100-664 Omim, (cMorpmuyi 12343-7 000-03-5 PwriadtorobtruOTt 7641-7 ffMrMnrnlh** 92464 Pamactte>onkebaniana (PCNBI 97465 PartacMofOphanol 50440-0 MMmanp 62-44-2 PhfiacMn 106062 nwut 6674 Phenol. 2-cMoro- 56567 Phonal 4-dOoro 3 m4hv*- 126062 PtwKA 2,44cNoro> 07464 torn*t. 244cMoro- 56561 Hwwi, 4.4'-<l.a-*aPivM.a-a*iana(M|Dk-. (Et- 10547-0 Plwnol, 24 Onwtul- 131677-3 Phenol 7630-4 Ptknol 12 wm)Hanttkl3.*.*-lnclitao- 10602-7 Plwnai 4-mta- 07465 Rtwal. pwocWmo- 56062 FMnot U.4,6MkNoio- 06644 Phanol. 2.4.6lncNor0- 00462 Phenol, 2.4.6bcNoro- 14642-3 I Wiwjunwi. 4Hw|2<Wwoli><|wwol744627-7 Ptotffton 9O0L iHd MN 3206562 106062 K i SM lJ3 HU ardoua No Chamcai aMracta No UI00 5-44-0 PMhahe WdyOnO Uttl uiro utoo 100-00-0 24fcotna 100-70-4 PfwiOM. l-odraao- 23050-50-5 PtoNmO UtM 107-10-0 l-Aorawm (I.T| U1I1 021-04-7 I-Piopinimni, OMnwN pp|l U110 UMO M2-M-7 H-pfopi* (1) 00-12-0 Pnpmm. UOlMMOcNao UMO 100-77-2 nopMOdw>> til 71 70-40-0 Pcopana. 1-mta- ll.T) U027 20030-22-0 Pkvmm. 2^-o**m<2-c**vo- U103 1120-71-4 I.TPrapm mOcm U22S 120-72-1 IFcapanol. phoaphala 0 l| UI40 70-02-1 i Prapamt Mnaiiif O.T| U002 07-M-1 I-Pmpanon* UOM uisa 042-704 1 ftopana, 1,2-deWof120-00-7 ITrofunanMi. 2 wtnl O.I| U0Q7 70-00-1 27H|wnanidi U242 1000-71-7 1 AopMi. hwjcWwfr uooo 107-12-1 ]A4nUi UOM 70-10-7 7-Pniwioc add (0 O'. urn 140-00-5 SPropanccc aad, a*>*l Mac ID VO Oil! 07-02-2 l-Pfopanae idt J-ma*nt-_ atiyl aatac mu 00-00-2 t-Propanoic aod. J-cn**>i*, rnttiyl Mac #,T) U233 02-72-1 Proptonc acid, M?.<>aicCoiocihanoicy)- J UIM UOM 107-104 n-Prapiflainnt 0,T) 7047-0 PiapjOnt OcWnnO UI40 122-22-1 UIM uto* 11040-1 PtnOna 100404 P|40m, U22I UIM 06-75-1 O.HIH.SHhPynmdmacfcona. 5 lbtM2-cMoiMihi4)aminol00-04-2 4 pH^PyiwOnont, 2.MtiyOo 6 w*n< 2-Moo- UIM 020-55-2 Pynofedna, 1 whom- U200 50-55-5 RWfpM U201 100-40-2 n-orrwiQ* U202 0147-2 Btcctawi and ulO U203 04-50-7 Saida U204 7703-00-0 Salanoua aca) IBM 7702404 Sdawum dtaoda U2G5 7440-244 Salankaii auMda (R.T1 U015 110424 L Sacma. itanaralala taala>| U232 02-72-1 SOMM UIM 1000240-4 ^kapttnmrm m40 CFK Ch. I (7.1-07 U W ) CMA 053629 CMA 053630 Li 103 U1M U232 0207 U200 U200 U2I0 U2I2 020 0214 0219 021* 0212 0212 0153 0244 0211 0244 0220 0221 0223 0320 0353 0222 UOIt 0220 0227 0220 out 11230 U23I 0234 0102 0235 0230 0237 0170 0*77 0043 U240 0230 0200 0240 77-70-1 1314-00-3 03-70-5 05-04-3 030-20-0 70-34-5 127-10-4 50-80-2 100-90-0 15043-14-0 0533-73-0 7701-12-0 10102-45-1 02-55-5 74-03-1 137-20-0 52-50-0 137-20-0 100-00-3 25370-45-0 20471-02-5 05-53-4 106-40-0 036-21-5 01-02-5 71-55-6 70-00-5 70-01-0 75-00-4 05-05-4 09-00-2 00-35-4 123-03-7 120-72-7 72-57-1 00-75-1 750-73-0 004-03-5 75-01-4 01-01-2 1330-20-7 50-55-5 1314-04-7 SullMfc tod. frmtrfl mm SuNur phoaptada <R) 2.4.S-T 1.2.4,5-Tabacftorotoanaana i.l, UlifeieNnMOm 1.1.22'TMfecMoroaOm lOrKMoroDMiM 2.3.4J- T*lrcMoiO(AMQl Tabahydrofuran J nwOumfO CW4 Tha*un(f) cutonM IhoOwmcNondo lhaftum(0 n*M: Throoclaronla Tlaamatianof |U| ThiopKOcyifeCirtionic Oamd*. Wiimt7i|4 IlMOUTM IhUM Tolum TofeMMitarnM Totuana ifcaocyanata (R.T| frlofejdnt p-Tofcaibna O-foftacbna hy*oc*4onde 1H- 1.2.4-Triuol-3-nna IJ.I-TncMoroatfiana M.2TflcMot*iaM IncMoroatfiytan* TncHwomonofluoronMlhana 2.4.5-TMChtarophancf 2.4.0- Incttorophand tym-TflralratMnrano (fl,T| 1.3,S-fno*ana. 2.4,6-bMMthyt ?< (2.3-dt)(omop(opyt| phoaptwl* Trypan Uut Uraol muatard Ua N ay< NnWroaoUtm. N-maiy* N nntoioVinyl cNondo Warlwn, whan praaan* a) concentration* of 0 3% or lau X4m(0 line phoapWda, whan praaont at conconbabona of 10% or laoa 'CAS Nuntet pw few pttwi compos'd only f I 1 3 a 9 3 i  26143 (Approved by the Office of tlenegement end Budget under control number 1060-0041) rA FR 70510 10541 Nov 10 1000. M emended et 40 FR 11411. Mey 10. 1901; 49 FR 19913. Mey 10, 1904; 50 FR 1000. Jen. 14, 1905; 60 .FRM144. July16.' 1906; 6* FR 41941. Oct. 13. 1906; SI FR 0641. Feb IS. 1900; 61 FR 10116. Her. 14. I960; St FR 10390, Aug. 0 1900; SI FR mod! June 5.1901; SI FR 10013. July 10. 10011 I 40 C fl. Ch. I (7-1-67 W M * * } 053631 ; 0 C.F.R. 262.11 8 262.11 Hazardous waste determination. A person who generates a solid waste, as defined In 40 CFR 261.2, must determine If that waste la a haz ardous waste using the following method: (a) He should first determine if the waste is excluded from regulation under 40 CFR 261.4. (b) He must then determine if the waste is listed as a hazardous waste in Subpart D of 40 CFR Part 261. Nora: Even if the waste is listed, the gen erator still has an opportunity under 40 CFR 260.22 to demonstrate to the Adminis trator that the waste from his particular fa cility or operation Is not a hazardous waste. (c) If the waste is not listed as a haz ardous waste in Subpart D of 40 CFR Part 261, he must determine whether the waste Is identified in Subpart C of 40 CFR Part 261 by either (1) Testing the waste according to the methods set forth in Subpart C of 40 CFR Part 261. or according to an equivalent method approved by the Administrator under 40 CFR 260.21: or (2) Applying knowledge of the hazard characteristic of the waste in light of the materials or the processes used. (d) If the waste la determined to be hazardous, the generator must refer to Parts 264. 265, 268 of this chapter for passible exclusions or restrictions per taining to management of his specific waste. (45 PR 33142. May 19. 1980. as amended at 45 FR 76624. Nov. 19. I960; 51 FR 40637, NOV. 7, 1986] 72 CMA 053632 40 C.F.R. I 264.100 S 264.100 Corrective action program. An owner or operator required to es tablish a corrective action program under this subpart must, at a mini mum, discharge the following respon sibilities: (a) The owner or operator must take corrective action to ensure that regu lated units are in compliance with the ground-water protection standard under $ 264.92. The Regional Adminis trator will specify the ground-water protection standard in the facility permit, including: (1) A list of the hazardous constitu ents identified under { 264.93: (2) Concentration limits under 5 264.94 for each of those hazardous constituents'. 73 CMA. 053633 (3) The compliance point under S 264.95; and (4) The compliance period under 264.96. (b) The owner or operator must im plement a corrective action program that prevents hazardous constituents from exceeding their respective con centration limits at the compliance point by removing the hazardous waste constituents or treating them in place. The permit will specify the spe cific measures that will be taken. (c) The owner or operator must begin corrective action within a rea sonable time period after the ground- water protection standard is exceeded. The Regional Administrator will speci fy that time period in the facility permit. If a facility permit includes a corrective action program in addition to a compliance monitoring program, the permit will specify when the cor rective action will begin and such a re quirement will operate in lieu of $ 264.99(1X2). (d) In conjunction with a corrective action program, the owner or operator must establish and implement a ground-water monitoring program to demonstrate the effectiveness of the corrective action program. Such a monitoring program may be based on the requirements for a compliance monitoring program under {264.99 and must be as effective as that pro gram in determining compliance with the ground-water protection standard under ( 264.92 and in determining the success of a corrective action program under paragraph (e) of this section, where appropriate. (e) In addition to the other require ments of this section, the owner or op erator must conduct a corrective action program to remove or treat in place any hazardous constituents under J 264.93 that exceed concentra tion limits under 1264.94 in ground water between the compliance point under {264.95 and the downgradient facility property boundary. The permit will specify the measures to be taken. (1) Corrective action measures under this paragraph must be initiated and completed within a reasonable period of time considering the extent of con tamination. (2) Corrective action measures under this paragraph may be terminated once the concentration of hazardous constituents under 264.93 is reduced to levels below their respective concen tration limits under} 264.94. (f) The owner or operator must con tinue corrective action measures during the compliance period to the extent necessary to ensure that the ground-water protection standard is not exceeded. If the owner or operator is conducting corrective action at the end of the compliance period, he must continue that corrective action for as long as necessary to achieve compli ance with the ground-water protection standard. The owner or operator may terminate corrective action measures taken beyond the period equal to the active life of the waste management area (including the closure period) if he can demonstrate, based on data from the ground-water monitoring program under paragraph (d) of this section, that the ground-water protec tion standard of | 264.92 has not been exceeded for a period of three consec utive years. (g) The owner or operator must report in writing to the Regional Ad ministrator on the effectiveness of the corrective action program. The owner or operator must submit these reports semi-annually. (h) If the owner or operator deter mines that the corrective action pro gram no longer satisfies the require ments of this section, he must, within 90 days, submit an application for a permit modification to make any ap propriate changes to the program. (Approved by the Office of Management and Budget under control number 20300033) [47 FR 32350. July 26. 1983. as amended at 50 FR 4514, Jan. 31. 1985) 74 CM* 053634 264.301(a)(2 (2) A leachate collection and remov al system immediately above the liner that is designed, constructed, main tained, and operated to collect and remove leachate from the landfill. The Regional Administrator will specify design and operating conditions in the permit to ensure that the leachate depth over the liner does not exceed 30 cm (one foot). The leachate collec tion and removal system must be: (i) Constructed of materials that are: (A) Chemically resistant to the waste managed in the landfill and the leachate expected to be generated; and (B) Of sufficient strength and thick ness to prevent collapse under the pressures exerted by overlying wastes, waste cover materials, and by any equipment used at the landfill: and (11) Designed and operated to func tion without clogging through the scheduled closure of the landfill. 75 CMA. 053635 iC C.P.R. 255.113 S 265.113 Closure: time allowed for clo sure. (a) Within 90 days after receiving the final volume of hazardous wastes at a hazardous waste management unit or facility, or within 90 days after approval of the closure plan, whichev er is later, the owner or operator must treat, remove from the unit or facility, or dispose of on-site, all hazardous wastes in accordance with the ap proved closure plan. The Regional Ad ministrator may approve a longer period if the owner or operator dem onstrates that: (lXi) The activities required to comply with this paragraph will, of ne cessity. talte longer than 90 days to complete: or (HXA) The hazardous waste manage ment unit or facility has the capacity to receive additional hazardous wastes; and <B) There is a reasonable likelihood that he or another person will recom mence operation of the hazardous waste management unit or the facility within one year: and (C) Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site: and (2) He has taken and will continue to take all steps to prevent threats to human health and the environment, including compliance with all applica ble interim status requirements. (b) The owner or operator must com plete partial and final closure activi ties in accordance with the approved closure plan and within 180 days after receiving the final volume of hazard ous wastes at the hazardous waste management unit or facility, or 180 days after approval of the closure 76 CMA 053636 plan, if that is later. The Regional Ad ministrator may approve an extension to the closure period if the owner or operator demonstrates that: (1) a) The partial or final closure ac tivities will, of necessity, take longer than 180 days to complete; or (u) (A) The hazardous waste man agement unit or facility has the capac ity to receive additional hazardous wastes: and <B) There is reasonable likelihood that he or another person will recom mence operation of the hazardous waste management unit or the facility within one year, and (C) Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site: and O) He has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed but not operating hazardous waste management unit or facility, including compliance with all applicable interim status require ments. (c) The demonstrations referred to in 265.113(a) and (b) must be made as follows: (1) The demonstrations in paragraph (a) must be made at least 30 days prior to the expiration of the 90-day period in paragraph (a); and (2) the demonstrations in paragraph (b) must be made at least 30 days prior to the expiration of the 180-day period in paragraph (b). 77 CM*. 053637 53 Fed. Reg. 31214 (ly<. (to be cocifieu at 4 0 C.r'.R. I 2 6 8.7(b)(6)) (b) Treatment facilities mutt test their wastes according to the frequency specified in their watte analysis plans as required by 1264.13 or S 265.13. Such testing must be performed as provided in paragraphs (b)(1). (b)(2) and (b)(3) of this section. (1) For wastes with treatment standards expressed as concentrations in the waste extract (} 288.41). the owner or operator of the treatment facility must test the treatment residues, or an extract at such residues developed using the test method described in Appendix I of this part to assure that the treatment residues or extract meet the applicable treatment standards. (2) For wastes that are prohibited under 1288J2 of this part or RCRA section 3004(d) but not subject to any treatment standards under Subpart D of this part, the owner or operator of the treatment facility must test the treatment residues according to the generator testing requirements specified in 1288.32 to assure that the treatment residues comply with the applicable prohibitions. (3) For wastes with treatment standards expressed as concentrations in the waste (! 288.43), the owner or operator of the treatment facility must test the treatment residues (not an extract of such residues) to assure that the treatment residues meet the applicable treatment standards. 4t (8) If the waste or treatment residue will be further managed at a different treatment or storage facility, the treatment storage or disposal facility sending the waste or treatment residue off-site must comply with the notice and certification requirements applicable to generators under this section. 78 CMA. 053638 40 C.F.R. 5 268.10-268. Subpart b--Schedule for Land Disposal Prohibition and Establishment of Treatment Standards Source Si FR 19309, May 28. 1988. unless otherwise noted. 8 268.10 Identification of wastes to be evaluated by August 8. 1988. EPA will take action under sections 3004(g)(5) and 3004(m). of the Re source Conservation and Recovery Act, by August 8, 1988. for the follow- 79 053639  268.10 40 CF1 Ch. I (7-1-87 Edition) mg wastes (Tor ease of understanding the wastes have been listed by the sec tion of 40 CFR Part 261 under which they were listed): 1281.31 wastes FO06--Wastewater treatment sludges from electroplating operations except from the following processes: < 1) Sulfuric acid anod ising of aluminum: (2) tin plating on carbon steel: (3) zinc plating (segregated basis) on carbon steel: (4) aluminum or zinc-aluminum plating on carbon steel: (5> cleaning/stripping associated with tin, zinc and aluminum plating on carbon steel; and (6) chemical etching and milling of aluminum. F007--Spent cyanide plating bath solutions from electroplating operations. F008--Plating bath sludges from the bottom of plating baths from electroplating oper ations where cyanides are used in the process. F009--Spent stripping and cleaning bath so lutions from electroplating operations where cyanides are used in the process. F019--Wastewater treatment sludges from the chemical conversion coating of alumi num. f 281.32 Wastes K001--Bottom sediment sludge from the treatment of wastewaters from wood pre serving processes that use creosote and/or pentachlorophenol. K004--Wastewater treatment sludge from the production of zinc yellow pigments. K008--Over residue from the production of chrome oxide green pigments. KO11--Bottom stream from the wastewater stnpper in the production of acrylonitrile. K013--Bottom stream from the acetonitrile column in the production of acrylonitrile. K014--Bottoms from the acetonitrile purifi cation column in the production of acrylo nitrile. K015--Still bottoms from the distillation of benzyl chloride. K016--Heavy ends or distillation residues from the production of carbon tetrachlo ride. K017--Heavy ends (still bottoms) from the purification column In the production of epichlorohydrin. K018--Heavy ends from the fractionation column in ethyl chloride production. K020--Heavy ends from the distillation of vinyl chloride In vinyl chloride monomer production. K021--Aqueous spent antimony catalyst waste from fluoromethanes production. K022--Distillation bottom tars from the production of phenol/acetone from cumane. K024--Distillation bottoms from the produetion of phthalic anhydride from napn. thaiene. K030--Column bottom or heavy ends from the combined production of trichloroethy. lene and perchloroethylene. K031--By-products salts generated in the production of M5MA and cacodyllc acid. K035--Wastewater treatment sludges gener ated in the production of creosote. K036--Still bottoms from toluene reclama tion distillation in the production of disulfoton. K037--Wastewater treatment sludge from the production of disulfoton. K044--Wastewater treatment sludges from the manufacturing and processing of ex plosives. K045--Spent carbon from the treatment of wastewater containing explosives. K048--Wastewater treatment sludges from the manufacturing, formulation and load ing of lead-based initiating compounds. K047--Pink/red water from TNT oper. ations. KQ4S--Dissolved air flotation (DAF) float from the petroleum refining industry. K049--Stop oil emulsion solids from the pe troleum refining industry. K050--Heat exchange bundle cleaning sludge from the petroleum refining indus try. K0S1--API separator sludge from the petro leum refining Industry. K052--Tank bottoms (leaded) from the pe troleum refining industry. K080--Ammonia still lime sludge from coking operations. K081--Emission control dust/sludge from the primary production of steel In electric fumsces. K062--Spent pickle liquor from steel finish ing operations in chlorine production. K089--Emission control dust/sludge from secondary lead smelting. K071--Brine purification muds from the mercury cells process In chlorine produc tion. where separately prepurlfied brine is not used. K073--Chlorinated hydrocarbon waste from the purification step of the diaphragm cell process using graphite anodes KQ83--Distillation bottoms from aniline production. K084--Wastewater treatment sludges gener ated during the production of veterinary pharmaceuticals from arsenic or organoarsenic compounds. KOSS--Distillation of fractionation column bottoms from the production of chloro benzenes. K086--Solvent washes and sludges; caustic washes and sludges, or water washes and sludges from cleaning tubs and equipment used In the formulation of ink from pig- Environmental Protection Agency 268.10 merits, driers, soaps, and stabilizers con taining chromium and lead. K087--Decanter tank tar sludge from coking operations. K099--Untreated wastewater from the pro duction of 2,4-D. K101--Distillation tar residues from the dis tillation of aniline-based compounds in the production of veterinary pharmaceuti cals from arsenic or organo-arsenic com pounds. K102--Residue from the use of activated carbon for decolorization in the produc tion of veterinary pharmaceuticals from arsenic or organo-arsenic compounds. K103--Process residues from aniline extrac tion from the production of aniline. K104--Combined wastewater streams gener ated from nitrobenzene/aniline produc tion. K106--Waste water treatment sludge from the mercury cell process m chlorine pro duction. i 261.33(e) Waste* P001--Warfarin, when present at concentra tion greater than 0.3% P004--Aidrin POOS--Ally! alcohol P010--Arsenic acid POll--Arsenic <V) oxide P013--Arsenic (III) oxide P015--Beryllium dust P016--Bls-(chloromethyl) ether P018--Brucine P020--Dinoseb P030--Soluble cyanide salts not elsewhere specified F036--Dlchlorophenylanlne P037--Dleldrin P039--Disulfoton P041--Diethyl-p-nitrophenyl phosphate P048--2.4-Dinitrophenol P050--Endosulfan P058--Fluoracetlc acid, sodium salt P059--Heptachlor P063--Hydrogen cyanide P068--Methyl Hydrazine P089--MethyUactonitrile P070--Aldicarb P071--Methyl parathion P081--Nitroglycerine P083--N-Nitrosodlmethylamine P084--N-Nltrosomethylvinylamlne P087--Osmium tetraoxlde P089--Parathion P092--Phenylmercuric acetate P094--Phorate P097--Famphur P102--Propargyl alcohol P105--Sodium azide P108--Strychnine and salts PI 10--Tetraethyl lead PI 15--Thallium (I) sulfate P120--Vanadium pentoxlde P122--Zinc phosphide, when present at con centrations greater than 10% P123--Toxaphene 5 261.33(f) Wastes U007--Acrylamide U009--Acrylonitrile 0010--Mitomycin C 0012--Aniline 0018--Benz(c)acridlne U018--Benz( a)anthracene U019--Benzene U022--Benzol a)pyrene 17029--Methyl bromide U031--n-Butanol U038--Chlordane, technical 17037--Chlorobenzene 17041--n-Chloro-2.3-epoxypropane 17043--Vinyl chloride 17044--Chloroform U048--Chloromethyl methyl ether 17050--Chrysene 17051--Creosote 17053--Crotonaldehyde U081-DDT 17083--Dibenz o (a. h) anthracene 17064--1.2:7.8 Dibenzopyrene U066--Dibromo-3-chloropropane 1.217067--Ethylene dibromide 17074--1.4-Dichloro-2-butene 17077--Ethane, 1.2-dichloro0078--Dlchloroethylene. 1.117088--NJf Dlethylhydrazine U089--Diethylstllbestrol U103--Dimethyl sulfate 0105--2,4-DUiltrotoluene 0108--Dioxane. 1.40115--Ethylene oxide 0122--Formaldehyde 0124--Furan 0129--Lindane U130--Hexachlorocydopentadiene 0133-- Hydrazine 0134-- Hydrofluoric acid 1*137--Indeno<1.2.3-cd)pyrene 0151--Mecury 0154- Methanol 0155-- Methapyrllene 0157--3-Methylcholanthrene U158--4.4-Methylene-bls-(2-chloroaniUne) 0159--Methyl ethyl ketone 0171--Nltropropane. 20177--N-Nltroso-N-methylurea 0180--N-Nitrosopyrrolldlne 0185--Pentachloronltrobenzene 0188-Phenol 0192--Pronamide 0200--Reserplne 0209-- Tetrachloroethane, 1,1.2.20210-- Tetrachloroethylene 0211-- Carbon tetrachloride 0219-- Thiourea 0220-- Toluene 0221-- Toluenedlamine 0223--Toluene diisocyanate 0226--Methylchloroform U227--Trichloroethane. 1.1,20228--Trichloroethylene 81 CMA. 053641 261.11 40 cn Ch. I (7-1-87 Edition) U237--Uracil mustard U238--Ethyl carbamate U248--Warfarin, when present at concentra tions of 0.3% or less U249--Zinc phosphide, when present at con centrations of 10% or less 8 268.11 Identification of wastes to be evaluated by June 8, 1989. EPA will take action under sections 3004(c)(5) and 3004(m> of the Re source Conservation and Recovery Act. by June 8. 1989, for the following wastes (for ease of understanding the wastes have been listed by the section of 40 CFR Part 261 under which they were listed): 9 261.31 Wastes F010--Quenching bath sludge from oil baths from metal heat treating operations where cyanides are used in the process. F011--Spent cyanide solutions from salt bath pot cleaning from metal heat treat ing operations. F012--Quenching wastewater treatment sludges from metal heat operations where cyanides are used in the process. F024--Wastes including but not limited to. distillation residues, heavy ends, tars and reactor clean-out wastes from the produc tion of chlorinated aliphatic hydrocar bons, having carbon content from one to five, utilizing free radical catalyzed proc esses. [This listing does not include light ends, spent filters and filter aids, spend desiccants, wastewater, wastewater treat ment sludges, spent catalysts, and wastes listed in I 261.32.1. f 261.32 Wastes K009--Distillation bottoms from the pro duction of acetaldehyde from ethylene. K010--Distillation side cuts from the pro ductions of acetaldehyde from ethylene. KOI9--Heavy ends from the distillation of ethylene dichloride in ethylene dichlorlde production. K02S--Distillation bottoms from the pro duction of nitrobenzene by the nitration of benzene. K027--Centrifuge and distillation residues from toluene diisocyanate production. K028--Spent catalyst from the hydrochlorinator reactor in the production of 1.1,1tricbloroethane. K029--Waste from the product steam strip per In the production of 1,1.1-trichloroethane. K038--Wastewater from the washing and stripping of phorate production. K039--Filter cake from the filtration of diethylphosphoro-dithioic acid in the pro duction of phorate. K040--Wastewater treatment sludge from the production of phorate. K041--Wastewater treatment sludge from the production of toxaphene. K042--Heavy ends or distillation residue* from the distillation of tetrachlorobenzene in the production of 2,4,5-T. K043--2,6-Dichlorophenol waste from the production of 2.4-D. K095--Distillation bottoms from the pro duction of l.l.l-trichloroethane. K096--Heavy ends from the heavy ends column from the production of 1.1.1-trichloroethane. K097--Vacuum stripper discharge from the chiordane chlorinator in the production of chlordane. KIMS--Untreated process wastewater from the production of toxaphene. K10S--Separated aqueous stream from the reactor produet washing step in the pro duction of chlorobenzenes. 9 261.33(0 Wastes P002--l-Acetyl-2-thiourea POO3--Acrolein P001--5-( Aminoethy1 >-3-isoxazolol POOS--4-Amlnopyrldlne P014--Thlophenol P028--14 o-Chloropheny1)thiourea P027--PropanenitiUe, 3-chioro P029--Copper cyanides P040--O.O-Dlethyi o-pyrazlnyl phosphor othioate P043--Dtisopropyl fluorophbaphate P044--Dlmethoate P049--2,4-Dlthiobluret P054--Azlrldlne P057--Fluoracetamide F060--Isodrin P062--Hexaethyltetnphoephate P066--Methomyl P067--3-Methylaziridine ___ F072--Aipha-naphthylthiourea (ANTU) P074--Nickel cyanide P085--Octamethylpyrophoephoramide POOS--Potassium cyanide P104--Silver cyanide F106--Sodium cyanide P107--Strontium sulfide Pill --'Tetraethylpyrophoephate Pi 12--Tetnnltromethane P113--Thalllc oxide PI 14--Thallium (1) selenite 9 261.33U) Wastes U003--Acetone U003--Acetonitrile U00S--o-Acetylaminofluorene U008--Acrylic acid U011--Amltrole U014--Auramine U015--Azaaerlne U020--Benzenesulfonyl chloride U021--Benzidine 82 CMA 053642 Environmental NticHw Agency 24112 0023--Benzotrichlorlde 0213-- Tetrahydrofuran 0025--Dlehloroethyl ether 0214-- Thallium (I) acetate 0028--Chlomaphasine 0215-- Thallium (I) carbonate 0028--Bts-(3-ethylhexyl)phthalata 0219--Thallium (I) chloride 0033--Caldum chromate 0217-- Thallium (I) nitrate U033--Chlorambucil 0047--Beta-chloronaphthalene 0049--4-Chloro-o-toluidlne. hydrochloride 0051--Cyclohexanone 0218-- Thloacetamlde 0235--'Trla (3.3-Dlbromopropyl) phoephate 0239--Xylene 0244--Thiram 17058--Cyclophoaphmmlde 0059--Daunomydn 0090-- DDD U082--Dlallate 1268.12 Identlflcatlon of waatee to be evaluated by May 8.1990. UOTO--o-Dlchlorobenaene 0073--Dlchiorobenxidene. 3.3* U080--Methylene chloride 0083--Olchlorapropane. 1J0093--Olmethylamlne 0093-- Dlmethylamlnoasobensen* 0094-- Dimethylb*na)amhrac*n#.7.l2- EPA will take action under sections 3004(6X5) and 3004(m) of the Re source Conservation and Recovery Act, by May 8, 1990, for the following wastes (for ease of understanding, the wastes have been listed by the section U095--Dlmethylbenzldlne.3.3'- of 40 CFR Part 281 under which they 0091-- Dlmethylearbamoyl chloride were listed): U098--Dlmethylhydradne. 1.1- 0099--DlmethylhydraaliM. 1.3* 1211.32 Wiuta 0101--DlmethylphenoL 2.4- 0109--Olnltrotoluene. 2.60101--Di-n-octyl phthalate 0109-- 1.2,-Otphenylhydrasine 0110-- Dlpropylamlne 0111-- Dl-N-Propylnltro*amlne 0114--Ethylenebl*-(dithlocarbamic add) 0119--Ethylene thiourea 0119--Ethyl methaneaulfonate 0127--Hexsehlorobensen* 0138--Hexachlorobutediene 0131--Hexachloroethan* 0135--Hydrogen sulfide 0138--Methyl Iodide 0140-- laobutyl alcohol 0142-- Kepone 0143-- Leeloearpine 0144-- Lead acetate 0148-- Lead aubacetate 0141-- Maleic anhydride 0149-- MalononltrUc 0150-- Melphalan 0191-- Methyl laobutyl ketone 0192-- Methyl methacrylate 0193-- N-Methyl-W-nltro-W-nltroeocuanMIne 0184-- Methylthiouracil 0185-- Naphthalene 0188-- Napthylamlne, 20189-- Nltrobenaene 0110--p-Nltrophenol 0112-- N-NItroeo-dl-n-butylamlne 0173--H-Nltroao-diethanolamine 0114--N-Nitroao-dlethylamlne 0179--N-Nltroeo-N-ethylurea 0178-- N-Nltroeo-N-methylurethane 0179-- N-Nltroeoplperldlne 002--'Wastewater treatment sludge from the production of chrome yellow and oranse pigments. K003--Wastewater treatment aludse from the production of molybdate orange pLa ments. 008--Wastewater treatment sludge from the production of chrome green pigments. 008--Wastewater treatment aludse from the production of chrome oxide green pig ments (anhydrous and hydrated). 007--Wastewater treatment aludse from the production of iron blue ptsmenta. 023--Distillation light ends from the pro duction of phthaUe anhydride from naph thalene. K029--Stripping still tells from the produc tion of methyl ethyl pyridine*. 032--Wastewater treatment sludge from the production of chlordene. 033--Wastewater and scrub water from the chlorination of cydopentadten* in the production of ehlordan*. K034--Filter solids from the hexachlorocydopentadiene In the production of chlor dene. K093--Distillation light ends from the pro duction of phthallc anhydride from orth^ xylene. 094--Distillation bottoms from the pro duction of phthallc anhydride from ortho xylene. K100--Waste leaching solution from add leaching of emission control dust/sludge from secondary lead smelting. 0189--Phoaphorua aulilde U193--1.3-Propan* aultone f 281.3X*) Wastes 0198--Pyrtdln* 0203--Salrole P009--Aluminum phosphide P009--Ammonium pierste 0205--Selenium dlaulllde P013--Barium cyanide 0209--Streptoeotodn P017--Bromoacetone 0308--Terachloroethane. 1.1.1.2- P021--Calcium cyanide 83 CM* 053643  260.13 P022--Carbon disulfide P023--Chloroacetaldehyde P024--p-Chloroaniline P028--Benzyl chloride P031--Cyanogen P033--Cyanogen chloride P034--4.8-Dinitro-o<yclohexylphenol P038--Diethylarsine P042--Epinephrine P045--Thiofanox P048--Alpha. alpha-Dimethylphenethyla- mine P047--4.6-Dinitro^cresol and salts P0S1--Endrtn POM--Fluorine POM--Methyl Isocyanate P065--Mercury fulminate P073--Nickel carbonyl P07S--Nicotine and salts P078--Nitric oxide F077--p-Nitroaniline P078--Nitrogen dioxide P088--Endothsll P093--N-Phenylthlourea POOS--Phosgene POM--Phosphine POM--Potassium silver cyanide P101--Propanenltrile PI 03--Selenourea P109--Tetraethyldlthlopyrophoephate Pile--Thiosemicarbazide PI 18--Trlchloromethanethlol Pi 18--Ammonium vanadate P121--Zinc cyanide | 2e1.33(f) WatUl U001--Acetaldehyde 0004--Acetophenone U00S--Acetyl chloride U017--Bengal chloride U024--Bia<2-chloroethoxy imethane U027--Bls( 2-cbloroisopropyllether 0030--Benzene, l-bromo-4-phenoxy U033--Carbonyl fluoride U034--Chloral U038--Ethyl-4-4'-dichlorobenzilate U039--4-Chloro-m-cresol U042--Vinyl ether. 2-chloroethyl U045--Methyl chloride U048--o-Chiorophenol U053--Cresols DOSS--Cumene DOSS--Cyclohexane UOSS--Methane, dlbromo 0009--Dlbutyl phthalate D071--m-Dichlorobenzene U072--p-DIchlorobenzene D015--Dichlorodifluoromethane U078--Ethane. U-dichloroU079--1,2-Dichlorethylene U081--2.4-Dlchlorophenol D082--2.6-Dichlorophenol D084--1.3-Dlchloropropene UOSS--2.2'-Bioxirane U087--0,0,-Diethyl-S-methyl- dlthlophosphate UOSS--Diethyl phthalate 40 CFK Ch. I (7-147 Edition) U090--Dihydrosafrole U091--3.3'.Dimethoxy benzidine U096--alpha.alpha- Dimethylbenzylhydroxyperoxide U102--Dimethyl phthalate U112--Ethyl acetate U113--Ethyl acrylate U117--Ethyl ether U118--Ethylmethacrylate U120--Fluoranthene U121 --Trichloromonofluoromethane U123--Formic acid U125--Furfural U126--Glycidylaldehyde U132--Hexachlorophene U136--Cacodylic acid U139--Iron dextran U141--Isoaalrole U145--Lead phosphate U148--Maleic hydrazide U152--Methacrylonltrlle U153--Methanethiol U158--Methyl chlorocarbonate U160--Methyl ethyl ketone peroxide U186--l.4-Naphthaquinone U187--l-Naphthylamlne U181--S-NitrcHi-toluldlne U182--Paraldehyde U183--Pentachlorobenzene U184--Pentachloroethane U188--1.3-Pentadlene D187--Phenacetin U190--Phthalic anhydride U191--2-Plcoline 0194--l-Propanamlne U197--p-Benzoquinone U201--Resorcinol U202--Saccharin and salts U204--Selenlous acid vvfl-- L2.4.5-tetrachlorobenzene 0222--o-Toluidlne hydrochloride U22S--Bromoform U234--Sym-Tdnitrobenzene U236--Trypan blue U240--2.4-D, salts and esters 0243--Hexachloropropene U246--Cyanogen bromide U247--Methoxychlor Wastes identified as hazardous based on a characteristic alone (i.e., corrosi vity, reactivity, ignitability and EP toxicity). 84 CMA 053644 53 Fed. Reg. 31215 (19: (zo be codified ot 40 C.F.R. 208.12) 8. In I 288.12. the existing text ie designated as paragraph [a] and paragraphs (b), (c) and (d) are added to read as follows: 268.12 MawMWeaMon of wastes to be evaluated by May 8, 1*60. tt (b) Wastewater residues (less than 1% total organic carbon and less than 1% suspended solids) resulting from the following well-designed and welloperated treatment methods for wastes listed in $ 268.10 for which EPA has not promulgated wastewater treatment standards: metals recovery, metals precipitation, cyanide destruction, carbon adsorption, chemical oxidation, steam stripping, biodegradation, and incineration or other direct thermal destruction. The treatment standards applicable to wastes prohibited under 268.30-268.33 of this part still apply. (r) Leachate derived from the treatment, storage or disposal of wastes listed in $ 268,10 for which EPA has not promulgated wastewater treatment standards, and contaminated ground water that contains such wastes. The treatment standards applicable to wastes prohibited under i S 268.30268.33 of this Part still apply. (d) Hazardous wastes listed in 268.10 which are mixed hazardous/ radioactive wastes. The treatment standards applicable to wastes prohibited under i S 2B8.30-Z68.32 of this part still apply- 85 CMA 053645 0 F.R. 270.10(e) (e) Existing HWM facilities and in terim status qualifications. (1) Owners and operators of existing hazardous waste management facilities or of haz ardous waste management facilities in existence on the effective date of stat utory or regulatory amendments under the act that render the facility subject to the requirement to have a RCRA permit must submit Part A of their permit application no later than: (11 Six months after the date of pub lication of regulations which first re quire them to comply with the stand ards set forth in 40 CFR Part 265 or 266. or (ii) Thirty days after the date they first become subject to the standards set forth in 40 CFR Part 265 or 266. whichever first occurs. (ill) For generators generating great er than 100 ltilograms but less than 1000 kilograms of hazardous waste in a calendar month and treats, stores, or disposes of these wastes on-site, by March 24.1987. [Note For facilities which must comply with Part 265 because they handle a waste listed in EPA's May 19, 1980, Part 261 regu lations (45 FR 33006 et seq.). the deadline for submitting an application is November 19, 1980. Where other existing facilities must begin in complying with Part 265 or 266 at a later date because of revisions to Part 260, 261, 265, or 266, the Administrator will specify in the preamble to those revi sions when those facilities must submit a permit application.] 86 CMA. 053646 0 C.F.R S 270.70(a) Subport G--Interim Status 270.70 Qualifying for interim statue. (a) Any person who owns or operates an "existing HWM facility" or a facili ty in existence on the effective date of statutory or regulatory amendments under the Act that render the facility subject to the requirement to have an RCRA permit shall have interim status and shall be treated as having been issued a permit to the extent he or she has: (1) Complied with the requirements of section 3010(a) of RCRA pertaining to notification of hazardous waste ac tivity. {Comment Some existing facilities may not be required to file a notification under sec tion 3010(a) of RCRA. These facilities may qualify for interim status by meeting para graph (ax2> of this section.) (2) Complied with the requirements of $ 270.10 governing submission of Part A applications; 87 CMA 053647 CMX 053648 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Brief of Consolidated Petitioners on Leachate-Related Issues, as well as the Designation of Record Documents for Joint Appendix, was hand-delivered this 27th day of October, 1988, to the following: John T. Smith II, Esquire Covington & Burling 1201 Pennsylvania Ave., N.W. Washington, D.C. 20004 Steven F. Hirsch, Esquire Beveridge & Diamond 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 Aaron Goldberg, Esquire Beveridge & Diamond 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 Don Patterson, Esquire Beveridge & Diamond 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 John Chambers Jr., Esquire McKenna, Connor & Cuneo 1575 Eye Street, N.W. Washington, D.C. 20005 Angus Macbeth, Esquire Sidley & Austin 1722 Eye Street, N.W. Washington, D.C. 20006 Kevin Gaynor, Esquire Therese M. Schmitt, Esquire Venable, Baetjer, Howard & Civiletti 1301 Pennsylvania Ave., N.W. Suite 1200 Washington, D.C. 20004 CMA 053649 2 David R. Case# Esquire General Counsel Hazardous Waste Treatment Council 1440 New York Ave., N.W. Suite 310 Washington, D.C. 20005 Lisa F. Ryan, Esquire Daniel S. Goodman, Esquire Environmental Defense Section U.S. Department of Justice Room 7204 Tenth & Pennsylvania Ave., N.W. Washington, D.C. 20530 Steven E. Silverman, Esquire Office of General Counsel LE-132S U.S. Environmental Protection Agency 401 M Street, S.w. Washington, D.C. 20460 CMA. 053650