Response
to
Comments
Document
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
­
"
Headworks
Exemptions"
(
Proposed
Rule)

(
68
FR
17234;
April
8,
2003)
Headworks
Rule
Page
2
of
117
Public
Comments
on
the
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
("
Headworks
Exemptions")
Proposed
Rule
NOTE:
Each
comment
document
is
identified
with
the
last
8
digits
of
the
EPA
docket­
assigned
number
(
e.
g.,
RCRA­
2002­
0028­
0098).

Comment
0028­
0091,
Eastman
Chemical
Company
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4
Comment
0028­
0094,
Lauri
Morgan
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7
Comment
0028­
0095,
Grant
Gurley
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8
Comment
0028­
0096,
Stephen
A.
Loeschner
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9
Comment
0028­
0097,
Sally
Gurley
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15
Comment
0028­
0098,
Bristol­
Myers
Squibb
Company
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16
Comment
0028­
0099,
Baker
Botts
LLP
(
Texas
Terminal
Operators)
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27
Comment
0028­
0101,
American
Petroleum
Institute
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32
Comment
0028­
0102,
Lyondell
Chemical
Company
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39
Comment
0028­
0106,
ConocoPhillips
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43
Comment
0028­
0107,
Beth
Connell
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47
Comment
0028­
0109,
General
Motors;
Environmental
Services
Group
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48
Comment
0028­
0110,
Bond,
Schoeneck
and
King,
PLLC
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50
Comment
0028­
0111,
Bayer
CropScience
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54
Comment
0028­
0112,
South
Carolina
Chamber
of
Commerce
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59
Comment
0028­
0113,
Celanese
Chemicals
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66
Comment
0028­
0114,
Westinghouse
Savannah
River
Company
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71
Comment
0028­
0115,
DuPont
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73
Headworks
Rule
Page
3
of
117
Comment
0028­
0116,
Eastman
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77
Comment
0028­
0117,
Department
of
Energy
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90
Comment
0028­
0118,
American
Chemistry
Council
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95
Comment
0028­
0119,
Kinder
Morgan
Liquid
Terminals
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108
Comment
0028­
0120,
Synthetic
Organic
Chemical
Manufacturers
Association
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111
Comment
0028­
0121,
Eli
Lilly
and
Company
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114
Comment
0028­
0125,
Paul
Schwab
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116
Headworks
Rule
Page
4
of
117
Comment
0028­
0091,
Eastman
Chemical
Company
Background:
Tennessee
Operations
of
Eastman
Chemical
Company
located
in
Kingsport,
Tennessee
operates
3
hazardous
waste
incinerators
(
a
liquid
chemical
destructor
and
2
rotary
kilns)
operating
under
RCRA
permit
TNHW­
025.
Two
of
these
units
have
been
extensively
modified
to
comply
with
the
new
Hazardous
Waste
Combustor
Maximum
Achievable
Control
Technology
(
MACT)
standards
that
are
applicable
September
30,
2003.
Compliance
Performance
Tests/
RCRA
trial
burns
have
demonstrated
the
following
performance
for
these
incinerators:
1.
Destruction
of
difficult
to
burn
organic
contaminants
greater
than
99.99%;
2.
No
dioxins
or
furans
detectable
in
the
stack
gas;
3.
Exceptional
removal
of
metal
constituents
from
the
gas
stream.

In
2002,
these
units
managed
approximately
40,000,000
pounds
of
RCRA
hazardous
waste.
Over
95%
of
the
codes
managed
in
the
units
were
characteristic
codes
and
F002,
3,
4
&
5.
However,
we
also
managed
approximately
1,000,000
pounds
of
U/
P
wastes
as
follows:

These
wastes
were
primarily
generated
from
laboratories
or
from
cleanup
actions.
As
such
the
actual
quantity
of
each
material
managed
is
much
less
than
it
might
appear
as
packaging
in
laboratory
samples
is
the
bulk
of
the
waste
and
contaminated
debris
and
media
actually
contain
much
less
of
the
chemical
than
the
weights
indicate.

Comment
91­
1:
Scrubber
blowdown
from
the
incinerators
is
discharged
to
Eastman's
on­
site
industrial
wastewater
treatment
plant.
The
scrubber
blowdown
does
not
carry
a
characteristic
code
(
i.
e.,
D001­
D043).
Neither
does
it
carry
the
"
U"
codes
related
to
"
U"
chemical
listed
for
Headworks
Rule
Page
5
of
117
ignitability
that
are
treated
in
the
incinerators,
since
these
wastes
are
de­
characterized
through
incineration.
However,
the
scrubber
blowdown
does
carry
certain
"
U"
codes
when
"
U"
chemicals
listed
for
toxicity
are
managed
in
the
incinerators.
Thus,
it
appears
that
Eastman's
wastewater
might
still
be
listed
as
a
hazardous
waste,
even
if
the
proposed
exemption
demonstration
can
be
made,
due
to
the
"
U"
code
carry­
through.
Without
any
de
minimus
exclusion
for
"
U"
wastes,
the
result
would
be
that
all
influent
wastewaters
and
resulting
biological
treatment
sludges
would
be
classified
as
RCRA
hazardous
wastes.
Although
these
materials
could
be
sent
to
a
commercial
facility
for
management,
Eastman
believes
it
does
a
better
job
of
incinerating
these
materials
in
its
MACT
compliant
units,
without
the
need
for
transportation
on
public
roads.
These
material
make
up
less
than
5%
of
the
total
material
managed
in
the
incineration
units
and
the
total
blowdown
flow
is
less
than
5%
of
the
total
influent
flow
to
wastewater
treatment.

Response
91­
1
Please
see
response
to
comment
112­
7.

Comment
91­
2:
Regarding
the
de
minimus
proposal
for
commercial
chemical
products,
Eastman
offers
the
following
information:

Eastman
operates
its
wastewater
treatment
facility
in
accordance
with
its
NPDES
permit,
TN0002640.
That
permit
has
effluent
limitations
for
62
specific
organic
chemicals
and
metals
in
addition
to
conventional
parameters
such
as
total
suspended
solids,
pH,
nitrogen,
etc.,
as
well
as
biomonitoring
requirements.
Included
in
that
list
of
specific
monitored
effluent
limits
are
the
following:

The
commercial
chemical
aldehydes
and
phthalic
anhydride
are
generally
unstable
in
water.
Phthalic
anhydride
would
dissociate
to
phthalic
acid
or
terephthalic
acid.
For
these
materials,
Eastman
submits
that
effluent
limitations
for
pH
as
well
as
conventional
limitations
such
as
biological
oxygen
demand
and
biomonitoring
(
both
acute
and
chronic
toxicity)
are
adequate
monitoring
parameters.

Eastman
also
notes
that
in
the
NPDES
permit
process,
Eastman
reports
on
the
concentrations
and
potential
concentrations
of
ALL
chemicals
in
the
influent
including
all
of
those
listed
in
the
first
table.
Through
the
permitting
process,
the
applicable
regulations,
the
permit
writer,
EPA
oversight
and
public
participation
will
finally
determine
which
parameters
are
necessary
for
the
final
effluent
monitoring
in
addition
to
biomonitoring
and
other
monitoring.
Regarding
the
proposal
that
de
minimus
losses
to
wastewater
treatment
facilities
are
only
allowed
if
there
is
a
specific
permit
limitation
for
that
chemical,
Eastman
believes
that
a
more
appropriate
requirement
is
that
the
chemical
be
specifically
listed
in
the
application
and
considered
for
chemical­
specific
Headworks
Rule
Page
6
of
117
effluent
limitations.
RCRA
generally
tries
not
to
interfere
with
the
NPDES
process;
however,
it
would
be
necessary
that
use
of
the
chemicals
and
disclosure
of
potential
releases
be
made
during
the
permitting
process
so
that
such
limitations
can
be
included
IF
the
NPDES
authority
determines
such
inclusion
is
necessary
to
protect
human
health
and
the
environment.

Response
91­
2:
Please
see
response
to
comment
98­
10.
Headworks
Rule
Page
7
of
117
Comment
0028­
0094,
Lauri
Morgan
Comment
94­
1:
I
am
opposed
to
EPA's
request
that
benzene
and
2­
ethoxyethanol
be
granted
exemption
from
the
Clean
Water
Act.

Response
94­
1:
Today's
rule
does
not
grant
any
exemption
for
these
chemicals
under
the
Clean
Water
Act.
The
rule
adds
benzene
and
2­
ethoxyethanol
to
an
existing
exemption
from
EPA's
RCRA
hazardous
waste
regulation
for
small
amounts
of
spent
solvents
that
are
discharged
to
a
facility's
wastewater
treatment
system
(
the
RCRA
"
headworks
rule").
The
rule
has
no
effect
on
how
the
Clean
Water
Act
may
or
may
not
apply
to
these
chemicals.
Today's
rule
does
not
grant
any
exemption
for
these
chemicals
from
the
Clean
Water
Act.
Finally,
EPA
conducted
a
risk
analysis
and
determined
that
the
addition
of
these
chemicals
to
the
existing
headworks
rule
does
not
pose
significant
risks
to
human
health
or
the
environment.
(
see
Risk
Assessment
to
Support
the
Wastewater
Treatment
Exemptions
(
Headworks
Exemptions)
Proposed
Rule,
U.
S.
EPA
2003).
Headworks
Rule
Page
8
of
117
Comment
0028­
0095,
Grant
Gurley
Comment
95­
1:
I
have
just
learned
that
the
EPA
is
requesting
that
benzene
and
2­
ethoxyethanol
be
granted
exemption
from
the
Clean
Water
Act.
The
last
time
I
checked
it
was
a
bad
idea
to
put
gasoline
or
antifreeze
in
our
streams
and
lakes,
and
I
don't
think
the
laws
of
physics
and
chemistry
have
changed.
Please
do
not
grant
this
idiotic
exemption.

Response
95­
1:
Please
see
our
response
to
comment
94­
1.
Headworks
Rule
Page
9
of
117
Comment
0028­
0096,
Stephen
A.
Loeschner
Introduction:
This
letter
is
comment
in
accordance
with
the
procedures
set
out
in
68
FR
17234
et
seq.
(
8
April
2003)
in
re
the
intent
of
EPA
to
amend
40
CFR
261.3
principally
to
specifically
allow
wastewaters
containing
benzene
and
2­
ethoxyethanol
to
be
dumped
into
POTW
influent
by
mention
in
§
261.3(
a)(
2)(
iv)(
A)
and
(
B)
respectively.

Comment
96­
1:
The
concept
of
the
so
called
"
headworks"
rule
 
that
it
is
environmentally
beneficial
to
dump
low
concentrations
of
select
toxics
into
POTW
influent
rather
than
aggregate
them
ultimately
by
deepwell
injection
near
Vickery,
Ohio,
and
elsewhere,
following
their
transportation,
typically
by
diesel
engine
truck,
is
sound.

However,
the
current
implementation
of
the
headworks
rule,
which
apparently
has
no
concentration
ceilings
and
only
a
weekly
averaging
time,
can
only
be
viewed
as
a
pandering
gift
to
polluting
industry.

Under
no
circumstance
should
the
current
implementation
be
in
any
way
weakened,
and
under
no
circumstance
should
there
be
any
additional
chemicals
added
to
the
current
implementation.

Response
96­
1:
EPA
acknowledges
Mr.
Loeschner's
opposition
to
the
proposed
rule.
However
EPA
conducted
a
risk
analysis
and
determined
that
the
addition
of
these
chemicals
to
the
existing
headworks
rule
does
not
pose
significant
risks
to
human
health
or
the
environment.
(
see
Risk
Assessment
to
Support
the
Wastewater
Treatment
Exemptions
(
Headworks
Exemptions)
Proposed
Rule,
U.
S.
EPA
2003).

EPA
would
like
to
clarify
that
the
current
solvents
portion
of
the
headworks
rule
has
weekly
concentration
limits
of
1
ppm
and
25
ppm
for
the
solvents
listed
in
§
261.3(
a)(
2)(
iv)(
A)
and
(
B),
respectively.
The
Agency
believes
that
the
weekly
standard
is
adequate,
as
any
wastewaters
qualifying
for
this
exemption
must
undergo
treatment
onsite,
and
the
facility
must
either
have
a
Clean
Water
Act
permit
to
discharge
the
resulting
treated
wastewaters
or
have
eliminated
the
offsite
discharge
of
the
treated
wastewaters.

Comment
96­
2:
As
response
to
comment,
please
identify
the
maximum
(
instantaneous
or
6­
second
average)
concentration
of
tetrachloroethylene
(
for
example)
that
could
qualify
for
a
§
261.3(
a)(
2)(
iv)(
A)
(
July
2002)
exception.
If
that
short
term
concentration
is
unlimited,
then
so
state.

Response
96­
2:
This
comment
addresses
a
provision
of
the
existing
headworks
rule
that
was
not
specifically
identified
in
the
proposal
as
subject
to
possible
amendment.
EPA
stated
in
the
proposed
rule
that
it
would
not
respond
to
comments
addressing
such
provisions.
(
68
FR
17241,
April
8,
2003)

Comment
96­
3:
At
68
FR
17240
II.
A.
2.
a,
EPA
has
suggested
that
its
proposal
would
result
in
something
less
than
18
parts
benzene
per
billion
by
weight
concentration
and
that
this
compares
to
Headworks
Rule
Page
10
of
117
a
"
groundwater
modeled
level."
Given
that
a
fair
number
of
U.
S.
citizens
drink
groundwater
directly
and
that
the
40
CFR
141.32(
e)(
5)
mandatory
health
effects
language
level
is
5
parts
benzene
per
billion
by
weight,
EPA's
rationale
for
benzene
acceptability
is
of
no
solace.

If
you
have
a
batch
of
ground
water
that
has
more
than
5.0
parts
benzene
per
billion
by
weight
in
it,
then
you
cannot
use
a
general
NPDES
permit
in
Indiana
to
dump
it
into
the
surface
water
 
and
Indiana
is
no
friend
of
the
environment.
[
Footnote
2:
See
327
IAC
15­
10­
7
available
from
http://
www.
in.
gov/
legislative/
iac/
t03270/
a00150.
pdf]

Clearly
the
EPA
proposed
possibilities
are
not
protective,
and,
therefore,
I
request
that
the
proposed
"
exception"
to
allow
benzene
influent
be
reduced
in
concentration
from
EPA's
1
part
per
million
to
a
highly
speculative
calculated
0.10
parts
per
million
by
weight
and
a
measured
0.30
parts
per
million
by
weight;
that
EPA's
weekly
average
be
reduced
to
daily;
and
that
additional
shorter­
term
averaging
be
obligated
for
measurement­
based
exceptions.

Response
96­
3:
EPA
disagrees
with
the
comment
that
the
proposed
addition
of
benzene
to
the
exemption
at
1
ppm
with
the
contingent
management
practices
is
not
protective.
The
environmentally
conservative
risk
assessment
demonstrated
that
the
1
ppm
standard
is
protective
for
the
indirect
exposure
of
sludge
to
groundwater
and
for
direct
exposure
of
groundwater
to
wastewaters
and
sludge
from
aerated
treatment
trains
(
after
secondary
clarification).
Scenarios
from
non­
aerated
systems
and
primary
clarifier
sludge
from
the
aerated
treatment
scenario
did
result
in
some
risks
of
concern.
(
see
Risk
Assessment
to
Support
the
Wastewater
Treatment
Exemptions
(
Headworks
Exemptions)
Proposed
Rule,
U.
S.
EPA
2003).
As
a
result,
EPA
proposed
conditions
on
the
addition
of
benzene
to
the
exemption
by
requiring
that
wastewaters
containing
benzene
must
be
managed
in
an
aerated
biological
treatment
unit
and
that
surface
impoundments
used
prior
to
secondary
clarification
must
be
lined.

With
respect
to
the
commenter's
concern
that
the
effluent
concentrations
of
benzene
are
being
compared
to
a
"
groundwater
modeled
level"
of
18
ppb,
which
is
a
higher
concentration
than
both
EPA's
drinking
water
standard
and
Indiana's
NPDES
permit
level
of
5
ppb
benzene,
the
Agency
would
like
to
explain
the
groundwater
modeled
level
concentration.
In
the
proposed
preamble,
we
state
that
"
data
from
the
NRMRL
treatability
database
demonstrated
that,
after
the
specified
treatment,
effluent
concentrations
for
benzene
generally
are
below
the
groundwater
modeled
level
of
0.0177
mg/
L
(
17.7

g/
L),
even
when
the
influent
benzene
level
approaches
1
mg/
L
(
1000

g/
L)."
(
68
FR
17240,
April
8,
2003).
The
17.7

g/
L
concentration
resulted
from
a
modeling
effort
supporting
the
proposed
Hazardous
Waste
Identification
Rule
(
60
FR
66344,
December
21,
1995)
and
refers
to
the
concentration
of
benzene,
when
treated
in
non­
hazardous
industrial
surface
impoundments,
that
would
be
protective
of
human
health.
Given
that
17.7

g/
L
represents
the
level
of
benzene
entering
into
a
surface
impoundment
and
not
at
the
drinking
water
source,
this
entering
waste
concentration
would
be
expected
to
be
higher
than
EPA's
drinking
water
standard
and
Indiana's
NPDES
permit
level
of
5
ppb.
The
level
of
17.7

g/
L
takes
into
consideration
the
dilution
and
attenuation
that
will
occur
as
the
leachate
migrates
from
the
bottom
of
a
surface
impoundment
to
a
private
drinking
water
well.
Headworks
Rule
Page
11
of
117
Finally,
the
comment
suggesting
that
EPA
reduce
the
weekly
average
to
daily
or
to
some
other
shorter­
term
averaging
period
addresses
a
provision
not
specifically
identified
in
the
proposal
as
subject
to
possible
amendment.
EPA
stated
in
the
proposed
rule
that
it
would
not
respond
to
comments
addressing
such
provisions.
(
68
FR
17241,
April
8,
2003)

Comment
96­
4:
At
68
FR
17240
II.
A.
2.
a,
EPA
has
presented
some
fair
background
in
re
benzene.
The
presentation
at
II.
A.
2.
b
in
re
2­
ethoxyethanol
is
clearly
terse
and
has
a
more
subjective
quality.
It
is
far
less
technical
in
nature.
I
propose
that
in
re
a
new
implementation
of
the
headworks
rule
for
2­
ethyoxyethanol,
that
it
be
more
lenient
than
benzene
by
a
factor
of
10
and
not
by
a
factor
of
25,
as
EPA
has
proposed;
that
EPA's
weekly
average
be
reduced
to
daily;
and
that
additional
shorter­
term
averaging
be
obligated
for
measurement­
based
exceptions.

Response
96­
4:
EPA
disagrees
with
the
general
comments
characterizing
EPA's
analysis
of
2­
ethoxyethanol
as
"
subjective"
and
"
far
less
technical
in
nature"
than
its
analysis
of
benzene.
The
environmentally
conservative
risk
assessment
performed
on
2­
ethoxyethanol
is
technically
sound
and
demonstrated
that
2­
ethoxyethanol
at
25
ppm
does
not
pose
as
a
risk
for
direct
air
exposure
or
for
indirect
and
direct
groundwater
exposures
(
see
Risk
Assessment
to
Support
the
Wastewater
Treatment
Exemptions
(
Headworks
Exemptions)
Proposed
Rule,
U.
S.
EPA
2003).
EPA
notes
that
the
commenter
offered
no
specific
evidence
supporting
his
suggestion
that
2­
ethoxyethanol
be
limited
to
no
more
than
10
ppm.

The
comment
suggesting
that
EPA
reduce
the
weekly
average
to
daily
or
to
some
other
shorterterm
averaging
period
addresses
a
provision
not
specifically
identified
in
the
proposal
as
subject
to
possible
amendment.
EPA
stated
in
the
proposed
rule
that
it
would
not
respond
to
comments
addressing
such
provisions.
(
68
FR
17241,
April
8,
2003)

Comment
96­
5:
Prior
to
issuance,
the
rule
should
cause
§
261.3(
a)(
2)(
iv)(
A)
to
read:

One
or
more
of
the
following
spent
solvents
listed
in
§
261.31
 
carbon
tetrachloride,
tetrachloroethylene,
trichloroethylene
 
Provided,
That
the
maximum
total
weekly
usage
of
these
solvents
(
other
than
the
amounts
that
can
be
demonstrated
not
to
be
discharged
to
wastewater)
divided
by
the
average
weekly
flow
of
wastewater
into
the
headworks
of
the
facility's
wastewater
treatment
or
pretreatment
system
does
not
exceed
1.0
parts
per
million
by
weight,
OR
the
total
measured
concentration
of
these
solvents
entering
the
wastewater
treatment
system
(
at
facilities
subject
to
regulation
under
the
Clean
Air
Act,
as
amended,
at
40
CFR
parts
60,
61,
or
63),
does
not
exceed
1.0
parts
per
million
by
weight
on
an
average
weekly
basis.[
Footnote
3:
The
form
of
the
numeric
value
is
intentionally
chosen
so
as
to
avoid
rounding
escalation,
i.
e.
1.499
becoming
1,
and
then
1
qualifying
for
the
exception.
See
67
FR
78203,78205
(
23
December
2002)
III]
Any
facility
that
claims
this
exemption
must
use
an
aerated
biological
wastewater
treatment
system
and
must
use
only
lined
surface
impoundments
or
tanks
prior
to
secondary
clarification
in
the
wastewater
treatment
system.
Facilities
that
choose
to
measure
concentration
levels
must
file
a
copy
of
their
sampling
and
analysis
plan
Headworks
Rule
Page
12
of
117
with
the
Regional
Administrator,
or
State
Director,
as
the
context
requires,
or
an
authorized
representative
("
Director"
as
defined
in
40
CFR
270.2).
The
sampling
and
analysis
plan
must
include
the
monitoring
point
location
(
headworks),
the
sampling
frequency
and
methodology,
and
a
list
of
constituents
to
be
monitored.
A
facility
is
eligible
for
the
direct
monitoring
option
once
they
receive
confirmation
that
the
sampling
and
analysis
plan
has
been
received
by
the
Director.
The
Director
may
reject
the
sampling
and
analysis
plan
if
he/
she
finds
that,
the
sampling
and
analysis
plan
fails
to
include
the
above
information;
or
the
plan
parameters
would
not
enable
the
facility
to
calculate
the
weekly
average
concentration
of
these
chemicals
accurately.
If
the
sampling
and
analysis
plan
is
rejected
or
if
the
Director
finds
that
the
facility
is
not
following
the
sampling
and
analysis
plan,
the
facility
must
no
longer
use
the
direct
monitoring
option
until
such
time
as
the
bases
for
rejection
are
corrected;
or
and
cause
the
terminal
period
of
§
261.3(
a)(
2)(
iv)(
G)
to
be
changed
to
";
or"
and
cause
the
following
text
to
be
added
as
§
261.3(
a)(
2)(
iv)(
H):

The
spent
solvent
benzene
listed
in
§
261.31
 
Provided,
That
the
maximum
total
daily
usage
of
the
solvent
(
other
than
the
amounts
that
can
be
demonstrated
not
to
be
discharged
to
wastewater)
divided
by
the
average
daily
flow
of
wastewater
into
the
headworks
of
the
facility's
wastewater
treatment
or
pretreatment
system
does
not
exceed
0.10
parts
per
million
by
weight,
OR
the
total
measured
concentration
of
the
solvent
entering
the
wastewater
treatment
system
(
at
facilities
subject
to
regulation
under
the
Clean
Air
Act,
as
amended,
at
40
CFR
parts
60,
61,
or
63),
does
not
exceed
0.30
parts
per
million
by
weight
on
an
average
daily
basis,
does
not
exceed
1.0
parts
per
million
by
weight
on
a
3­
hour
average
basis,
and
does
not
exceed
10
parts
per
million
by
weight
on
a
6­
second
average
basis.
Any
facility
that
uses
benzene
as
a
solvent
and
claims
this
exemption
must
use
an
aerated
biological
wastewater
treatment
system
and
must
use
only
lined
surface
impoundments
or
tanks
prior
to
secondary
clarification
in
the
wastewater
treatment
system.
Facilities
that
choose
to
measure
concentration
levels
must
file
a
copy
of
their
sampling
and
analysis
plan
with
the
Regional
Administrator,
or
State
Director,
as
the
context
requires,
or
an
authorized
representative
("
Director"
as
defined
in
40
CFR
270.2).
The
sampling
and
analysis
plan
must
include
the
monitoring
point
location
(
headworks),
the
sampling
frequency
and
methodology,
and
a
list
of
constituents
to
be
monitored.
A
facility
is
eligible
for
the
direct
monitoring
option
once
they
receive
confirmation
that
the
sampling
and
analysis
plan
has
been
received
by
the
Director.
The
Director
may
reject
the
sampling
and
analysis
plan
if
he/
she
finds
that,
the
sampling
and
analysis
plan
fails
to
include
the
above
information;
or
the
plan
parameters
would
not
enable
the
facility
to
calculate
the
daily,
3­
hour,
and
6­
second
average
concentration
of
benzene
accurately.
If
the
sampling
and
analysis
plan
is
rejected
or
if
the
Director
finds
that
the
facility
is
not
following
the
sampling
and
analysis
plan,
the
facility
must
no
longer
use
the
direct
monitoring
option
until
such
time
as
the
bases
for
rejection
are
corrected;
or
Headworks
Rule
Page
13
of
117
Response
96­
5:
The
commenter's
suggested
changes
address
a
provision
not
specifically
identified
in
the
proposal
as
subject
to
possible
amendment.
EPA
stated
in
the
proposed
rule
that
it
would
not
respond
to
comments
addressing
such
provisions.
(
68
FR
17241,
April
8,
2003)

Comment
96­
6:
Prior
to
issuance,
the
rule
should
cause
40
CFR
261.3(
a)(
2)(
iv)(
B)
to
read:

One
or
more
of
the
following
spent
solvents
listed
in
261.31:
methylene
chloride,
1,1,1­
trichloroethane,
chlorobenzene,
o­
dichlorobenzene,
cresols,
cresylic
acid,
nitrobenzene,
toluene,
methyl
ethyl
ketone,
carbon
disulfide,
isobutanol,
pyridine,
and
spent
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)
divided
by
the
average
weekly
flow
of
wastewater
into
the
headworks
of
the
facility's
wastewater
treatment
or
pretreatment
system
does
not
exceed
25
parts
per
million
by
weight,
OR
the
total
measured
concentration
of
these
solvents
entering
the
wastewater
treatment
system
(
at
facilities
subject
to
regulation
under
the
Clean
Air
Act
as
amended,
at
40
CFR
parts
60,
61,
or
63),
does
not
exceed
25
parts
per
million
by
weight
on
an
average
weekly
basis.
Facilities
that
choose
to
measure
concentration
levels
must
file
a
copy
of
their
sampling
and
analysis
plan
with
the
Regional
Administrator,
or
State
Director,
as
the
context
requires,
or
an
authorized
representative
("
Director"
as
defined
in
40
CFR
270.2).
The
sampling
and
analysis
plan
must
include
the
monitoring
point
location
(
headworks),
the
sampling
frequency
and
methodology,
and
a
list
of
constituents
to
be
monitored.
A
facility
is
eligible
for
the
direct
monitoring
option
once
they
receive
confirmation
that
the
sampling
and
analysis
plan
has
been
received
by
the
Director.
The
Director
may
reject
the
sampling
and
analysis
plan
if
he
finds
that,
the
sampling
and
analysis
plan
fails
to
include
the
above
information;
or
the
plan
parameters
would
not
enable
the
facility
to
calculate
the
weekly
average
concentration
of
these
chemicals
accurately.
If
the
sampling
and
analysis
plan
is
rejected
or
if
the
Director
finds
that
the
facility
is
not
following
the
sampling
and
analysis
plan,
the
facility
must
no
longer
use
the
direct
monitoring
option
until
such
time
as
the
bases
for
rejection
are
corrected;
or
and
cause
the
following
text
to
be
added
as
40
CFR
261.3(
a)(
2)(
iv)(
I):

The
spent
solvent
2­
ethoxyethanol
listed
in
40
CFR
261.31
 
Provided
that
the
maximum
total
daily
usage
of
the
solvent
(
other
than
the
amount
that
can
be
demonstrated
not
to
be
discharged
to
wastewater)
divided
by
the
average
daily
flow
of
wastewater
to
the
headworks
of
the
facility's
wastewater
treatment
or
pretreatment
system
does
not
exceed
1.0
part
per
million
by
weight,
OR
the
total
measured
concentration
of
the
solvent
entering
the
wastewater
treatment
system
(
at
facilities
subject
to
regulation
under
the
Clean
Air
Act
as
amended,
at
40
CFR
parts
60,
61,
or
63),
does
not
exceed
3.0
parts
per
million
by
weight
on
an
average
daily
basis,
does
not
exceed
10
parts
per
million
by
weight
on
a
3­
hour
average
basis,
and
does
not
exceed
100
parts
per
million
by
weight
on
a
6­
second
average
Headworks
Rule
Page
14
of
117
basis.
Facilities
that
choose
to
measure
concentration
levels
must
file
a
copy
of
their
sampling
and
analysis
plan
with
the
Regional
Administrator,
or
State
Director,
as
the
context
requires,
or
an
authorized
representative
("
Director"
as
defined
in
40
CFR
270.2).
The
sampling
and
analysis
plan
must
include
the
monitoring
point
location
(
headworks),
the
sampling
frequency
and
methodology,
and
a
list
of
constituents
to
be
monitored.
A
facility
is
eligible
for
the
direct
monitoring
option
once
they
receive
confirmation
that
the
sampling
and
analysis
plan
has
been
received
by
the
Director.
The
Director
may
reject
the
sampling
and
analysis
plan
if
he/
she
finds
that,
the
sampling
and
analysis
plan
fails
to
include
the
above
information;
or
the
plan
parameters
would
not
enable
the
facility
to
calculate
the
daily,
3­
hour,
and
Q­
second
average
concentration
of
2­
ethoxyethanol
accurately.
If
the
sampling
and
analysis
plan
is
rejected
or
if
the
Director
finds
that
the
facility
is
not
following
the
sampling
and
analysis
plan,
the
facility
must
no
longer
use
the
direct
monitoring
option
until
such
time
as
the
bases
for
rejection
are
corrected.

Response
96­
6:
Please
see
our
response
to
comment
96­
5.
Headworks
Rule
Page
15
of
117
Comment
0028­
0097,
Sally
Gurley
Comment
97­
1:
I
am
writing
in
opposition
to
the
exemptions
of
benzene
and
2­
ethoxyethanol
from
the
clean
water
act,
to
the
change
in
procedures
for
testing,
as
well
as
the
additional
industries
as
stated
in
fr08ap03­
33,
docket
RCRA­
2002­
0028.
I
wish
to
briefly
state
the
obviousthese
are
established
extremely
hazardous
materials
both
in
your
own
published
materials
as
well
as
research
papers
here
and
abroad.
Under
no
way
should
the
current
implementation
be
weakened
and
under
no
circumstances
should
there
be
any
additional
chemicals
added
to
the
current
implementation.

I
am
asking
the
EPA
to
not
allow
this
ruling
as
you
are
the
Environmental
Protection
Agency
not
the
Industry
Protection
Agency.
The
Clean
Water
Act
has
been
making
strides
with
the
assistance
of
the
EPA.
To
allow
this
exemption
would
make
a
mockery
of
both
the
Act
and
the
agency.
On
behalf
of
the
people
and
the
environment,
please
say
no.

Response
97­
1:
Please
see
our
response
to
comment
94­
1.
Headworks
Rule
Page
16
of
117
Comment
0028­
0098,
Bristol­
Myers
Squibb
Company
Introduction:
Bristol­
Myers
Squibb
Company
("
BMS")
is
pleased
to
present
to
the
U.
S.
Environmental
Protection
Agency
("
EPA"
or
the
"
Agency
)
comments
on
the
notice
of
proposed
rulemaking
concerning
"
40
CFR
Part
261;
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
('
Headworks
Exemptions
)"
(
68
Fed.
Reg.
I7
234
(
April
8,
2003)
(
the
"
April
2003
Proposal")).

BMS
is
a
major,
world­
wide
manufacturer
and
developer
of
pharmaceuticals
and
health
care
products.
In
its
operations,
BMS
seeks
to
achieve
continuous
environmental
improvement
and
dedicates
substantial
resources
to
assuring
compliance
with
environmental
requirements.
BMS
is
committed
to
sustainable
development
through
environmental
stewardship,
social
responsibility,
and
economic
progress.

However,
BMS
believes
environmental
regulations
that
are
not
necessary
for
environmental
protection
and
improvement,
inappropriately
drain
resources
from
initiatives
that
could
produce
significant
environmental
benefits.

In
many
ways,
the
requirements
for
demonstrating
compliance
with
the
headworks
exemptions
as
they
are
currently
formulated,
impose
unnecessary
and
potentially
expensive
obligations
on
industry
that
are
not
justified
by
their
benefits.
The
new
approaches
outlined
in
the
April
2003
Proposal
are
an
important
step
to
correct
this
imbalance.
However,
as
pointed
out
in
the
remainder
of
these
comments,
some
changes
are
needed
to
assure
the
initiatives
outlined
in
the
April
2003
Proposal
are
effective.

BMS
operates
four
facilities
in
the
United
States
that
use
biological
wastewater
treatment
systems
to
treat
process
wastewater
prior
to
discharge
to
a
publicly
operated
treatment
works
(
POTW).
Because
BMS
also
generates
spent
solvents
in
its
manufacturing
facilities,
BMS
is
familiar
with
the
complexities
of
complying
with
the
current
headworks
exemption
and
supports
EPA'
s
proposal
to
reform
it.

In
evaluating
the
proposal
to
reform
the
headworks
exemption,
it
is
important
to
consider
the
function
of
the
exemption.
The
exemption
was
intended
to
temper
some
of
the
less
reasonable
outcomes
of
the
hazardous
waste
"
mixture"
and
"
derived
from"
rules.
As
the
Agency
stated
in
promulgating
the
current
headworks
exemption
in
1981:

The
Agency
believes
that
the
mixture
rule
.
.
.
sweeps
too
broadly
when
applied
to
all
mixtures
of
wastewater
and
listed
hazardous
wastes.
Strict
application
of
the
mixture
rule
would
cause
to
be
hazardous
waste
a
mixture
of
large
volumes
of
non­
hazardous
wastewater
and
the
relatively
small
volumes
of
listed
hazardous
wastes
which
are
introduced
into
the
wastewater.
.
.
.
Resulting
wastewater
treatment
sludges
would
likewise
be
hazardous
wastes
under
(
the
derived
from
rule).
In
many
cases,
however,
these
relatively
small
amounts
of
listed
hazardous
wastes
are
likely
to
be
greatly
diluted
in
the
wastewater,
so
that
the
resulting
Headworks
Rule
Page
17
of
117
mixture
is
not
hazardous.
In
addition,
hazardous
constituents
of
the
listed
hazardous
wastes
may.
.
.
attenuate
during
the
course
of
wastewater
treatment,
further
reducing
the
potential
hazardousness
of
the
mixture.
A
presumption
of
hazardousness
is
not
warranted
in
these
situations.

46
Fed.
Reg.
56
582,
56
582­
83
(
November
17,
1981).
In
the
Preamble
to
the
April
2003
Proposal,
the
Agency
reaffirm
this
approach
stating:

The
reasoning
behind
each
of
these
exemptions
is
that
the
wastewater
treatment
system
receives
many
different
kinds
of
wastes,
and
the
solvents,
commercial
chemical
products
lab
wastes,
etc.
,
are
a
minuscule
and
treatable
part
of
the
mix
of
wastewaters.
The
relatively
small
volumes
of
these
organic
constituents
should
be
easily
and
effectively
handled
by
the
wastewater
treatment
system,
so
the
risk
to
the
environment
would
be
negligible.

68
Fed.
Reg.
at
17237,
col.
2.
Using
this
standard,
BMS
believes
that
the
provisions
of
the
revised
headworks
exemption
should
be
judged
by
whether
they
reasonably
assure
that
the
wastewaters
qualifying
for
the
exemption
have
sufficiently
low
concentrations
of
the
hazardous
constituents.
Similarly,
the
headworks
exemption
should
be
available
for
all
wastewater
streams
that
can
be
shown
to
contain
only
trivial
concentrations
of
the
hazardous
constituents.

BMS
endorses
EPA'
s
intent
in
creating
the
headworks
exemption,
and
believes
the
exemption
is
vital
to
any
rational
program
to
regulate
hazardous
wastes
in
wastewater.
Indeed,
without
the
headworks
exemption,
the
hazardous
waste
land
disposal
capacity
of
the
United
States
could
be
consumed
many
times
over
to
dispose
of
biological
wastewater
treatment
residues
with
no
detectable
hazardous
constituents.
However,
BMS
also
believes
that
limitations
in
the
1981
headworks
exemption
have
caused
many
facilities
to
incur
unnecessary
and
unproductive
expense
to
avoid
characterization
of
dilute
wastewater
streams
as
hazardous
waste.
We
believe
that
the
reforms
outlined
in
the
April
2003
Proposal
are
valuable
steps
to
address
the
problems
with
the
current
headworks
exemption,
and
will
allow
a
more
complete
achievement
of
its
original
purpose,
particularly
if
modified
as
suggested
in
these
comments.

In
summary,
BMS
strongly
supports
reform
of
the
headworks
exemption,
but
believes
that
some
further
revisions
are
needed
to
achieve
the
worthy
goals
of
this
initiative.

Comment
98­
1:
BMS
Supports
the
Proposal
to
Provide
a
Monitoring
Option
for
Demonstrating
Compliance
with
the
Concentration­
Based
Exemptions:

Under
the
current
headworks
exemption,
three
alternative
exemptions
are
based
on
a
massbalance
calculation
of
the
maximum
quantity
of
specified
hazardous
constituents
in
the
wastewater
stream
entering
the
headworks
of
a
facility's
wastewater
treatment
plant.
Depending
on
the
constituents,
the
calculated
weekly
average
concentration
of
the
combined
constituents
is
then
compared
to
a
concentration
threshold
specified
in
the
exemption.
Two
concentration
thresholds
are
established
for
"
listed"
spent
solvents
depending
on
whether
they
are
considered
Headworks
Rule
Page
18
of
117
probable
human
carcinogens,
and
a
third
for
wastewater
from
the
production
of
carbamates
and
carbomyl
oximes.
See
40
CFR
261.3(
a)(
2)(
iv)(
A),(
B)&(
F).
Provided
the
specified
threshold
is
not
exceeded,
the
wastewater
is
not
a
hazardous
waste
under
the
mixture
rule
because
of
the
presence
of
the
identified
hazardous
constituents.

For
some
facilities,
the
mass
balance
calculation
for
spent
solvents
is
simple.
For
others,
it
can
be
extremely
difficult
and
involved,
and
include
detailed
calculations
of
solvents
in
product
solvents
disposed
offsite
as
hazardous
waste,
solvents
consumed
in
the
production
process,
and
solvents
otherwise
exempt
from
the
hazardous
waste
mixture
rule.
Facilities
have
incurred
substantial
costs
for
design
and
construction
of
systems
to
segregate
and
capture
trivial
quantities
of
"
spent
solvent"
streams.
In
some
cases,
these
efforts
have
been
undertaken
to
assure
the
facility's
ability
to
document
the
mass
balance
calculation.
In
other
circumstances,
the
facility
has
sought
to
avoid
the
need
to
develop
a
calculated
mass
balance
concentration
at
all
by
preventing
any
possible
mixture
of
spent
solvent
materials
with
the
wastewater
discharge.

We
do
not
believe
these
burdens
were
intended
by
EPA
when
the
Agency
issued
the
headworks
exemption
in
1981.
Instead,
we
believe
the
Agency
intended
the
mass
balance
approach
to
simplify,
not
complicate,
compliance.
To
correct
this
problem,
we
strongly
support
providing
a
monitoring
alternative
to
demonstrate
compliance.
However,
the
proposal
should
be
refined
to
assure
that
the
monitoring
alternative
does
not
become
so
burdensome
itself
that
it
does
not
provide
the
benefits
intended.

Response
98­
1:
EPA
acknowledges
BMS'
support
of
the
addition
of
direct
monitoring
as
an
alternative
compliance
method.
It
is
not
EPA's
intention
for
the
requirements
of
direct
monitoring
to
be
so
burdensome
that
no
relief
will
be
provided
to
those
facilities
opting
to
utilize
the
alternative
monitoring
method.
Please
see
our
responses
to
comments
98­
2,
98­
3,
98­
4,
98­
5,
98­
6
and
98­
7.

Comment
98­
2:
Location
of
the
"
headworks"
is
critical
since
it
is
the
point
at
which
compliance
with
the
concentration
based
thresholds
must
be
determined,
and
also
the
point
at
which
the
exemption
first
applies
to
the
wastewater
stream.
The
term
"
headworks"
has
been
commonly
understood
since
1981
to
mean
the
point
in
a
facility's
wastewater
collection
system
where
the
final
combination
of
wastewater
streams
takes
place
before
the
wastewater
enters
the
facility's
centralized
wastewater
treatment
plant.
See
46
Fed.
Reg.
at
56585.

There
is
some
potential
for
confusion,
however,
under
1981
guidance
and
the
approach
proposed
by
the
Agency
in
the
April
2003
Proposal.
In
both
instances,
EPA
appears
to
assume
that
wastewater
is
not
pretreated
prior
to
its
arrival
at
the
"
headworks."
This,
however
frequently
is
not
true.
Therefore,
the
term
"
headworks"
should
be
understood
to
be
the
point
at
which
the
"
headworks
exemption"
is
claimed
by
the
facility
whether
or
not
some
form
of
pretreatment
has
occurred
upstream
of
the
designated
"
headworks.

Typically,
we
would
expect
the
"
headworks"
will
be
designated
as
the
final
point
at
which
all
wastewater
flows
come
together
for
treatment
since
that
is
the
point
where
the
calculated
or
Headworks
Rule
Page
19
of
117
monitored
concentration
of
hazardous
constituents
would
normally
be
the
lowest.
However,
in
many
facilities
some
pretreatment
will
occur
before
the
wastewater
passes
through
the
headworks.
In
some
other
facilities,
it
may
also
be
appropriate
to
designate
a
point
before
all
wastewater
is
combined
as
the
"
headworks"
for
that
facility.

Exhibit
A
contains
a
simplified
diagram
illustrating
the
types
of
wastewater
flows
and
pretreatment
processes
that
can
occur
at
a
major
pharmaceutical
manufacturing
facility.
The
diverse
wastewater
streams
produced
require
different
treatment
processes,
and
to
be
effective
many
of
these
treatment
processes
must
be
located
close
to
the
point
of
origin
of
the
waste
water.
For
example,

°
High
cyanide
and
high
metal
content
wastewaters
are
typically
pretreated
by
chemical
precipitation
close
to
the
point
of
origin
where
the
wastewaters
are
most
concentrated
and
before
chemicals
that
could
interfere
with
treatment
are
introduced;
°
High
solvent
wastewater
streams
are
typically
processed
in
distillation
columns
to
recover
solvent
for
reuse
in
the
manufacturing
process.
While
such
a
"
closed
loop"
recovery
system
is
appropriately
considered
part
of
the
manufacturing
process,
it
may
also
be
considered
wastewater
treatment;
°
Wastewater
is
sometimes
pH
adjusted
at
a
point
close
to
production
processes
because
it
is
frequently
easier
to
adjust
a
lower
volume
stream,
and
pH
adjustment
at
this
point
may
protect
the
downstream
wastewater
conveyance
system,
and
treatment
systems
and
enhance
subsequent
treatment;
and
°
Wastewater
from
which
solvent
has
been
recovered
may
also
be
pretreated
in
air
strippers
prior
to
introduction
into
a
biological
wastewater
treatment
plant.
The
off
gas
from
the
air
stripper
is
then
treated
in
a
thermal
oxidizer
which
can
be
expected
to
achieve
an
organics
destruction
efficiency
of
over
98%.
The
stripper
and
thermal
oxidizer
operate
as
essential
elements
of
the
facility's
wastewater
treatment
system
to
assure
compliance
with
the
recently
revised
Pharmaceutical
Effluent
Guidelines
(
40
C.
F.
R.
Part
439)
and
the
Pharmaceutical
MACT
Standard
(
40
C.
F.
R.
Part
63
Subpart
GGG).

These
examples
of
typical
pharmaceutical
wastewater
treatment
processes
amply
illustrate
the
potential
difficulty
with
the
approach
suggested
in
EPA'
s
informal
description
of
the
headworks
in
the
Federal
Register
notice
as
handling
only
"
raw"
wastewater
or
being
the
point
where
transport
of
process
wastewaters
stops
and
chemical
or
biological
treatment
begins."
67
Fed.
Reg.
at
17242
col.
1.
Typically,
there
is
no
one
point
in
a
major
pharmaceutical
manufacturing
plant
where
all
wastewater
comes
together
before
it
is
initially
treated.

Regardless
of
whether
some
of
the
wastewater
has
been
pretreated
upstream
of
the
headworks,
the
headworks
exemption
should
be
available
as
long
as
the
concentration
of
hazardous
constituents
is
sufficiently
low
so
that
it
does
not
present
a
hazard
to
human
health
or
the
environment.
Discussion
in
September
2002
Technical
Background
Document
indicates
that
the
Agency
is
aware
of
this
issue
and
intends
the
"
headworks"
to
be
located
at
centralized
treatment
even
when
"
in­
process
pre­
treatment
steps"
occur
upstream
of
the
"
headworks."
However,
the
discussion
in
the
preamble
may
cause
unnecessary
confusion
unless
it
is
clarified.
Headworks
Rule
Page
20
of
117
BMS
suggests
that
a
definition
of
"
headworks"
be
added
to
the
regulation,
or
alternatively
that
a
clear
explanation
of
head
works
be
added
to
the
preamble.
In
either
case,
we
suggest
the
following:

Headworks
is
defined
as
the
point
in
a
facility'
s
wastewater
collection
system
at
which
all
process
wastewater
streams
potentially
regulated
as
hazardous
waste
are
collected
together
for
introduction
into
the
first
phase
of
a
facility
terminal
wastewater
treatment
system.
Segregated
wastewater
streams
may
be
pretreated
upstream
of
the
headworks
in
compliance
with
applicable
regulations
and
standards.
An
additional
or
alternative
"
headworks"
may
also
be
designated
at
a
point
before
all
wastewater
streams
come
together
if
the
conditions
at
a
facility
justify
such
location
and
the
designation
is
approved
by
the
Director.

We
believe
that
the
suggested
language
will
provide
clear
guidance
as
to
the
application
of
the
"
headworks"
at
a
typical
facility,
while
providing
flexibility
to
address
unique
issues
that
can
arise
at
an
individual
facility.
Designation
of
such
an
alternative
location
may
be
desirable
to
exempt
a
treatment
residue
produced
in
a
segregated
pretreatment
system
upstream
of
the
point
at
which
all
wastewaters
combine.

Because
the
exemption
will
only
apply
to
wastewater
that
passes
through
the
headworks,
any
pretreatment
of
wastewater
that
occurs
upstream
of
the
headworks
will
be
subject
to
applicable
requirements
of
the
hazardous
waste
regulations.
Similarly,
to
the
extent
a
facility
chooses
to
locate
the
headworks
upstream
of
the
final
point
where
all
wastewater
is
collected,
it
will
have
to
assure
that
no
potential
hazardous
waste
streams
enter
the
flow
downstream
of
the
"
headworks.
In
either
event,
providing
the
flexibility
to
identify
the
"
headworks"
at
an
appropriate
location
in
the
facility
will
not
compromise
the
protection
of
public
health
and
the
environment.

For
example,
in
Exhibit
A,
all
of
the
wastewater
flows
in
the
wastewater
collection
system
are
combined
in
the
Equalization
Tank.
The
headworks,
therefore,
will
normally
be
located
at
the
Equalization
Tank,
and
the
exemption
from
hazardous
waste
regulation
would
apply
at
this
point.
However,
to
the
extent
the
facility
desired
to
place
the
compliance
point
for
the
headworks
exemption
upstream
of
the
Equalization
Tank,
it
could
propose
the
alternative
location
to
the
regulatory
authority
for
approval.

Response
98­
2:
EPA
disagrees
with
the
commenter's
suggestion
that
a
definition
of
headworks
be
codified.
The
informal
description
of
the
headworks
location
accommodates
a
range
of
facility
configurations,
thereby
providing
maximum
flexibility.
Codification
of
the
definition
will
only
decrease
the
flexibility
in
defining
the
headworks
point.
However,
EPA
does
agree
with
the
commenter's
suggestion
that
the
preamble
to
the
final
rule
should
clarify
that
pre­
treatment
of
wastewaters
prior
to
their
arrival
at
the
headworks
location
does
not
disqualify
that
wastewater
from
the
headworks
exemption.
Please
see
section
IV.
B.
2.
in
the
preamble
of
today's
final
rule
for
clarification
of
the
informal
description
of
headworks.

Comment
98­
3:
While
BMS
believes
that
providing
a
monitoring
alternative
for
demonstrating
Headworks
Rule
Page
21
of
117
compliance
with
the
headworks
exemptions
is
desirable,
it
will
only
be
effective
if
a
reasonable
procedure
for
conducting
sampling
is
developed.
As
currently
drafted,
the
proposed
regulation
does
not
clearly
outline
required
sampling,
but
specifies:

°
that
a
sampling
and
analysis
plan
(
SAP)
must
be
developed
and
submitted
to
the
regulatory
authority
that
includes
monitoring
point
location
(
headworks),
the
sampling
frequency
and
methodology,
and
a
list
of
the
constituents
to
be
monitored;
°
that
the
SAP
must
include
analysis
of
all
constituents
potentially
regulated
as
hazardous
waste;
and
°
that
the
SAP
must
specify
a
procedure
which
would
be
sufficient
to
"
accurately
calculate
a
weekly
average
concentration
of
the
hazardous
constituents
of
concern.

BMS
is
concerned
that
facilities
will
be
reluctant
to
utilize
the
monitoring
option
without
clearer
guidance.

Response
98­
3:
EPA
acknowledges
BMS'
comment
regarding
their
concern
over
facilities
being
reluctant
to
use
the
alternate
compliance
option
without
further
guidance
from
EPA.
In
the
preamble
of
the
proposed
rule,
we
specified
the
minimum
provisions
that
a
facility
needs
to
include
in
its
SAP.
We
did
not
include
more
guidance
regarding
the
development
of
the
plan
as
we
wanted
to
provide
flexibility
to
the
various
facilities
that
will
be
developing
SAPs.
Facilities
are
encouraged
to
discuss
the
development
of
their
SAP
with
their
overseeing
agency
and
to
obtain
from
them
any
guidance
regarding
the
specifics
of
the
SAP.

Comment
98­
4:
As
currently
proposed,
facilities
using
the
monitoring
option
would
be
required
to
conduct
monitoring
that
is
sufficient
to
"
enable
the
facility
to
calculate
the
weekly
average
concentration
.
.
.
accurately."
We
expect
virtually
any
facility
utilizing
the
monitoring
option
would
need
to
collect
24­
hour
composite
samples,
and
collect
the
samples
three
or
more
days
each
week
to
accurately
determine
a
weekly
average
concentration
of
chemicals
of
concern
in
its
wastewater
flow.
Unless
multiple
samples
are
collected,
a
facility
would
run
the
unacceptable
risk
that
an
aberrant
result
or
laboratory
error
could
result
in
loss
of
the
headworks
exemption.
It
also
seems
unlikely
that
facilities
will
be
able
to
rely
on
the
results
of
samples
collected
under
other
regulatory
requirements.
For
example,
most
wastewater
discharge
compliance
sampling
is
performed
at
the
discharge
point,
and
data
typically
are
not
now
collected
at
the
"
headworks".

Assuming
four
composite
samples
per
week
and
sampling
every
week,
BMS
estimates
that
additional
sampling
and
analysis
for
the
headworks
exemption
would
cost
in
excess
of
$
42,000
per
year
per
facility.
[
Footnote
1:
This
cost
estimate
assumes
that
analytical
costs
for
each
24
hour
composite
sample
with
expedited
reporting
time
would
be
$
180,
and
that
the
collection
costs
would
be
$
25
per
sample.
Cost
of
purchase
and
installation
of
an
appropriate
sampler
would
be
additional.]
We
believe
this
cost
would
be
excessive
and
unnecessary
for
virtually
all
facilities.

To
limit
this
cost,
BMS
recommends
that
the
Agency
specify
a
longer
compliance
period
when
the
monitoring
alternative
is
utilized.
While
a
"
weekly"
average
may
be
appropriate
in
calculating
a
mass
balance
concentration,
it
is
not
required
to
demonstrate
that
the
actual
concentrations
in
Headworks
Rule
Page
22
of
117
the
wastewater
are
sufficiently
low
to
avoid
characterization
as
hazardous
waste
when
monitoring
is
performed.
Therefore,
we
recommend
changing
the
compliance
period
for
the
monitoring
alternative
to
at
least
a
monthly
average.
This
change
alone
would
reduce
the
cost
of
monitoring
by
more
than
4­
fold
without
compromising
environmental
protection.

Response
98­
4:
The
commenter's
suggestion
to
increase
the
averaging
period
from
weekly
to
monthly
(
i.
e.,
the
compliance
period)
addresses
a
provision
in
the
current
rule
not
specifically
identified
in
the
proposal
as
subject
to
possible
amendment.
EPA
stated
in
the
proposed
rule
that
it
would
not
respond
to
comments
addressing
such
provisions.
(
68
FR
17241,
April
8,
2003).

However,
several
commenters
have
requested
that
we
accept
a
performance­
based
reduction
in
sampling
frequency.
The
Agency
is
interested
in
the
possibility
of
allowing
a
facility's
sampling
and
analysis
plan
to
include
a
provision
to
reduce
sampling
frequency
based
on
performance
as
long
as
the
current
compliance
standards
under
261.3(
a)(
2)(
iv)(
A)
and
(
B)
are
maintained
and
the
facility's
provisions
for
the
reduction
are
thoroughly
discussed
in
the
plan.
However,
EPA
would
first
need
to
propose
the
specific
requirements
of
such
a
provision
in
order
to
allow
for
adequate
notice
and
comment.

Comment
98­
5:
The
need
to
continuously
demonstrate
that
average
concentration
of
the
wastewater
remains
at
or
below
the
threshold
would
present
a
substantial
disincentive
to
facilities
considering
utilizing
the
monitoring
option.
If
a
facility
loses
the
ability
to
rely
upon
the
headworks
exemption
because
a
single
analytical
result
leads
to
an
exceedence
of
the
applicable
threshold,
the
facility
could
be
required
to
dispose
of
all
of
the
wastewater
treatment
sludge
generated
during
the
period
when
the
exceedence
occurred
as
hazardous
waste.
Such
an
exceedence
could
be
caused
by
an
unusual
and
short­
lived
event
or
even
laboratory
error.
However,
unless
some
relief
is
provided
by
the
headworks
exemption,
the
consequences
of
such
an
exceedence
could
be
very
serious
for
the
facility.

For
example,
in
a
biological
wastewater
treatment
plant,
the
biosolids
(
wastewater
treatment
sludge)
are
recycled
as
part
of
the
treatment
process.
If
the
facility
lost
the
headworks
exemption
because
of
an
aberrant
analytical
result,
this
could
result
in
all
of
the
biosolids
in
the
wastewater
treatment
system
being
regulated
as
hazardous
waste,
and
could
impact
the
regulatory
status
of
the
biosolids
long
after
compliance
with
the
headworks
exemption
is
reestablished.

Of
even
greater
consequence,
if
the
compliance
test
remains
a
weekly
average,
a
facility
is
unlikely
even
to
have
the
data
indicating
an
exceedence
until
the
compliance
period
has
closed
due
to
analytical
results
turnaround
time.
In
this
case,
by
the
time
the
facility
receives
data
indicating
that
the
facility's
average
concentration
exceeded
the
regulatory
threshold,
the
wastewater
treatment
sludge
would
almost
certainly
have
been
transported
off­
site
and
disposed.
The
implications
of
disposal
of
the
now
"
hazardous
waste"
wastewater
treatment
sludge
could
be
catastrophic
for
both
the
generating
facility
and
the
disposal
site.

These
consequences
are
unreasonable
if
the
facility
otherwise
is
able
to
demonstrate
compliance
with
the
headworks
exemption.
As
with
the
mass
balance
approach
to
compliance
with
the
Headworks
Rule
Page
23
of
117
headworks
exemptions,
it
is
important
that
the
monitoring
approach
provide
a
reasonable
certainty
of
the
regulatory
status
of
the
wastewaters
from
week
to
week.
Unless
these
issues
are
satisfactorily
addressed
in
a
final
regulation,
it
is
unlikely
that
the
monitoring
option
will
be
widely
adopted.
BMS
urges
the
Agency
to
add
provisions
to
address
these
concerns.

Response
98­
5:
EPA
acknowledges
BMS'
concerns.
The
Agency
agrees
that
if
the
facility
exceeds
the
average
weekly
threshold
due
to
one
aberrant
sample,
then
the
exemption
is
lost,
even
if
the
exceedance
is
a
result
of
an
unusual
or
short­
lived
event.
However,
EPA
would
like
to
note
that
facilities
concerned
about
possible
aberrant
results
may
elect
to
take
multiple
samples
to
demonstrate
that
the
thresholds
are
not
exceeded
on
an
average
weekly
basis.
In
addition,
the
Agency
believes
that
if
proper
QA/
QC
practices
are
employed,
laboratory
errors
causing
the
loss
of
the
exemption
can
be
avoided.
Please
see
our
response
to
comment
98­
4
for
discussion
regarding
changes
in
the
averaging
period.

Comment
98­
6:
With
regard
to
the
effective
date
of
a
facility's
SAP,
BMS
believes
alternative
approaches
may
be
appropriate.
When
a
facility
adopts
an
approach
that
is
consistent
with
standard
EPA
guidance
and
involves
collection
of
samples
sufficient
to
develop
an
average
concentration
for
the
specified
compliance
period,
the
SAP
should
be
effective
upon
receipt
by
the
regulator.
To
the
extent
an
alternative
approach
is
developed
to
limit
monitoring
cost,
the
facility
should
be
required
to
seek
approval
prior
to
implementing
the
alternative
approach.

In
either
case,
once
a
facility
has
implemented
a
SAP
in
compliance
with
the
regulations,
it
should
be
entitled
to
rely
on
the
SAP
unless
the
regulatory
authority
determines
that
the
SAP
is
completely
inadequate
or
was
submitted
in
bad
faith.
In
any
other
circumstance,
if
the
regulatory
authority
determines
that
a
SAP
is
not
completely
satisfactory,
the
regulatory
authority
should
identify
the
deficiencies
and
the
generator
should
be
provided
a
reasonable
time
to
develop
and
implement
a
revised
plan
that
addresses
the
identified
deficiencies
without
loss
of
the
exemption.

Response
98­
6:
EPA
acknowledges
BMS'
comment
regarding
the
effective
date
of
the
SAP.
The
commenter
suggests
that
the
SAP
become
effective
upon
receipt
of
the
SAP
by
the
regulator.
The
commenter's
suggested
approach
is
only
slightly
different
from
the
Agency's
proposal
that
the
SAP
becomes
effective
upon
the
facility's
receiving
confirmation
of
receipt
of
delivery.
Depending
on
the
method
of
delivery
the
two
events
could
almost
be
simultaneous
(
e.
g.,
electronic
tracking).
Given
the
slight
difference
between
the
commenter's
suggested
approach
and
the
Agency's
proposed
approach,
the
Agency
will
finalize
the
proposed
approach.
Thus,
the
SAP
becomes
effective,
and
therefore
direct
monitoring
can
commence,
when
the
facility
obtains
confirmation
of
the
receipt
of
delivery.

In
regards
to
the
SAP
being
found
completely
unsatisfactory
by
the
overseeing
agency,
the
facility
continues
to
have
the
option
to
demonstrate
compliance
with
the
mass
balance
method,
while
the
basis
for
the
SAP's
rejection
is
being
corrected.
If
the
SAP
is
submitted
in
good
faith
but
exhibits
minor
deficiencies,
then
EPA
supports
the
continued
use
of
direct
monitoring
while
the
minor
inadequacies
are
being
addressed.
However,
it
is
left
to
the
discretion
of
the
overseeing
agency
to
determine
the
severity
of
the
deficiencies
and
whether
or
not
direct
monitoring
may
continue
Headworks
Rule
Page
24
of
117
while
such
deficiencies
are
being
addressed.

Comment
98­
7:
The
Agency
also
seeks
comment
on
"
how
a
facility
suspected
of
violating
the
exemption
limits
may
be
made
to
demonstrate
compliance
with
the
weekly
standard."
68
Fed.
Reg.
at
17242,
col.
2.
BMS
believes
this
issue
depends
on
the
compliance
method
chosen
by
the
facility.
If
the
facility
uses
the
mass
balance
approach
to
demonstrate
compliance,
the
Agency
should
review
the
calculation
report
and
supporting
documentation
to
confirm
that
the
conclusion
is
adequately
documented.
To
the
extent
the
facility
is
using
the
monitoring
alternative,
the
Agency
should
confirm
that
the
facility
is
complying
with
its
SAP,
that
valid
data
are
generated
and
used
in
the
calculations,
and
that
the
facility
is
properly
maintaining
records
of
compliance.

Regardless
of
the
approach
to
compliance
chosen,
the
facility
should
only
be
required
to
demonstrate
compliance
with
the
option
it
has
chosen.
Put
another
way,
a
facility
using
the
mass
balance
option
should
not
be
required
to
demonstrate
compliance
with
the
monitoring
option
and
a
facility
using
the
monitoring
option
should
not
be
tested
with
a
mass
balance
calculation.
As
EPA
indicated
in
the
preamble
to
the
April
8
Proposal,
the
two
methods
of
demonstrating
compliance
are
fundamentally
different.
The
mass
balance
approach
considers
all
potential
discharges
of
spent
solvents
to
the
wastewater
collection
system,
but
need
not
consider
contributions
of
the
same
constituents
if
they
are
not
from
a
spent
solvent
source.
The
monitoring
option
on
the
other
hand
would
be
determined
based
on
the
total
concentrations
of
the
solvent
constituents
in
the
wastewater
regardless
of
source.
See
68
Fed.
Reg.
at
17241.

Ultimately,
BMS
believes
that
there
is
no
need
to
codify
an
approach
for
demonstration
of
compliance
with
the
headworks
exemption.
If
a
violation
is
suspected,
the
responsible
enforcement
officials
should
be
allowed
discretion
to
evaluate
the
site
specific
circumstances
and
evaluate
whether
the
facility
has
satisfactorily
demonstrated
compliance
with
the
chosen
alternative
for
documenting
the
headworks
exemption.

Response
98­
7:
EPA
acknowledges
BMS'
comment.
The
overseeing
agency
will
not
be
bound
to
use
the
same
compliance
method
chosen
by
the
facility;
however,
the
procedures
utilized
by
the
overseeing
agency
when
investigating
a
potential
violation
will
be
comprehensive
enough
to
determine
if
the
facility
has
exceeded
the
exemption
levels
before
being
found
in
violation.

Comment
98­
8:
The
preamble
to
the
April
2003
Proposal
indicates
that
EPA
proposes
to
include
scrubber
water
from
hazardous
waste
incinerators
under
the
headworks
exemption
and
will
accept
comments
on
the
inclusion
of
leachate
from
hazardous
waste
landfills.
BMS
supports
both
alternatives.
As
discussed
above
the
headworks
exemption
is
properly
seen
as
applying
to
all
dilute
wastewater
streams
that
do
not
present
a
hazard.
In
this
case,
it
should
apply
to
all
dilute
wastewater
streams
including
those
that
may
be
"
derived
from"
wastes.

The
dilute
character
of
the
wastewater
stream
is
best
demonstrated
by
showing
that
the
concentration
of
hazardous
constituents
remains
below
specified
regulatory
thresholds.
The
same
standard
can
apply
to
incinerator
scrubber
water
or
leachate.
Headworks
Rule
Page
25
of
117
Response
98­
8:
EPA
acknowledges
BMS'
support
to
include
scrubber
waters
derived
from
the
combustion
of
the
F­
listed
solvents.
We
also
acknowledge
the
commenter's
support
for
a
potential
rulemaking
addressing
leachates.

Comment
98­
9:
The
April
2003
Proposal
also
includes
an
expansion
of
the
"
de
minimis
losses"
exemption
to
include
all
"
unscheduled,
uncontrollable,
insignificant
and
inadvertent
releases
to
a
wastewater
treatment
system"
regardless
of
type
of
material.
The
current
regulation
limits
the
"
de
minimis"
losses
exemption
to
loss
of
useful
materials.

BMS
supports
the
expansion
of
the
exemption.
As
discussed
above,
the
headworks
exemptions
are
premised
on
the
conclusion
that
the
concentration
of
hazardous
constituents
in
dilute
wastewater
streams
are
sufficiently
low
so
that
they
will
not
pose
a
hazard.
The
source
of
the
constituents
does
not
change
this
conclusion.

In
1981,
the
de
minimis
losses
exemption
was
restricted
to
useful
materials
based
on
the
expectation
that
losses
of
these
materials
would
be
tightly
controlled.
While
this
expectation
remains
correct,
the
more
stringent
regulation
of
air
emissions,
and
wastewater
discharges,
as
well
as
the
more
stringent
hazardous
waste
regulations,
provide
assurance
that
waste
materials
are
also
properly
handled.
Ultimately,
whether
the
material
is
useful
or
a
waste,
the
best
indication
that
the
wastewater
should
not
be
regulated
as
hazardous
waste
is
that
it
contains
only
the
de
minimis
losses
that
are
unavoidable
at
even
a
well
maintained
and
well
operated
facility.
Other
EPA
regulations
have
recognized
that
minor
inadvertent
losses
are
unavoidable
at
a
well
run
and
well
maintained
facility,
and
should
not
be
considered
subject
to
regulation.
For
example,
the
definition
of
the
"
wastewater
streams"
subject
to
regulation
under
the
Pharmaceutical
MACT
standard
specifically
excludes
equipment
leaks,
spills
and
wastewater
drips
from
procedures
such
as
disconnecting
hoses
after
clearing
lines.
See
40
C.
F.
R.
963.1251.
This
same
approach
should
be
adopted
for
the
headworks
exemption.

Based
on
the
current
exemption,
existing
facilities
have
been
designed
or
redesigned
to
segregate
de
minimis
losses
from
waste
storage
areas,
while
similar
losses
from
useful
product
could
be
discharged
to
the
wastewater
collection
system.
Facility
wastewater
treatment
plants
are
capable
of
effectively
treating
the
hazardous
constituents,
and
there
is
no
need
to
treat
de
minimis
losses
differently
based
on
their
source.
The
current
exemption
by
distinguishing
de
minimis
loses
based
on
source,
unnecessarily
diverts
resources
to
building
and
maintaining
systems
to
segregate
waste
storage
areas.
These
unproductive
expenditures
should
be
eliminated.

Response
98­
9:
EPA
acknowledges
BMS'
support
for
the
revised
de
minimis
provisions
of
today's
rule.

Comment
98­
10:
While
BMS
supports
the
expansion
of
the
de
minimis
losses
exemption,
it
does
not
believe
the
expanded
exemption
should
only
apply
if
the
facility
has
a
discharge
permit
that
contains
limits
for
the
hazardous
constituents.
In
some
cases,
facility
permits
will
already
include
the
discharge
limits.
However,
in
many
cases,
the
constituents
will
not
be
specifically
included
in
discharge
limits
because
the
permit
writer
does
not
consider
the
potential
discharge
significant.
Headworks
Rule
Page
26
of
117
For
example,
if
the
only
discharge
of
a
constituent
is
from
de
minimis
losses,
it
likely
will
not
be
detectable
at
the
point
of
discharge
following
treatment.

Thus,
unless
permits
are
reissued,
requiring
discharge
limits
in
a
permit
will
restrict
the
expanded
exemption
to
those
facilities
with
the
greatest
discharge
of
the
hazardous
constituent,
while
denying
it
to
small
and
well­
run
facilities
that
have
no
detectable
discharge.
The
hazardous
waste
regulations
should
not
mandate
new
and
unnecessary
requirements
under
the
water
regulations.

As
a
substitute
for
the
proposed
approach,
we
recommend
that
the
expanded
de
minimis
losses
exemptions
require
that
a
generator
notify
the
regulatory
agency
responsible
for
issuing
water
discharge
permits
that
de
minimis
losses
of
hazardous
waste
constituents
may
be
present
in
its
discharge.
A
similar
notification
requirement
currently
applies
to
discharges
that
qualify
for
the
domestic
sewage
exclusion.
(
See
40
C.
F.
R.
403.12(
p).)
With
the
information
from
the
notice
the
regulators
can
determine
whether
a
discharge
limit
is
needed
in
the
facility's
wastewater
discharge
permit.
Whether
or
not
the
regulators
decide
to
include
a
discharge
limit,
the
facility
should
be
entitled
to
rely
upon
the
de
minimis
losses
exemption
once
notice
has
been
provided.

In
conclusion,
Bristol­
Myers
Squibb
Company
commends
the
Environmental
Protection
Agency
on
its
proposal
to
reform
the
"
headworks
exemption."
We
believe
the
revised
approach
can
significantly
ease
compliance
without
diminishing
environmental
protection.

Response
98­
10:
EPA
agrees
with
the
commenter's
point
that
requiring
the
Clean
Water
Act
(
CWA)
permit
to
contain
limits
for
Appendix
VII
and
LDR
constituents
in
order
to
qualify
for
the
de
minimis
exemption
is
not
necessary
to
protect
human
health
and
environment.
It
is
usually
not
the
permit
writer's
practice
to
set
specific
permit
limits
for
every
constituent
that
may
be
present
in
the
facility's
effluent.
For
instance,
some
constituents
are
controlled
through
the
use
of
limits
on
conventional
pollutants
(
such
as
biochemical
oxygen
demand,
total
suspended
solids,
or
pH)
or
through
limits
on
other
bulk
parameters
(
such
as
chemical
oxygen
demand
or
total
organic
carbon),
or
other
constituents
may
require
limitations
on
whole
effluent
toxicity
or
special
monitoring
procedures
to
be
performed.
Therefore,
we
agree
that
it
is
sufficiently
protective
for
the
facility
to
list
all
expected
Appendix
VII
and
LDR
constituents
in
the
CWA
permit
application
(
or
in
the
submittal
to
the
POTW
or
control
authority)
and
to
rely
on
the
permit
writer's
(
or
control
authority's)
judgement
to
determine
if
specific
permit
limits
are
needed.
The
Agency
also
notes
that
the
alerting
of
the
permit
writer
or
control
authority
must
occur
before
the
facility
can
claim
the
expanded
portions
of
the
de
minimis
section.
Please
see
Section
IV.
D.
2.
in
the
preamble
of
today's
final
rule
for
a
further
discussion
of
our
decision
to
revise
the
condition
of
requiring
the
CWA
permit
or
control
mechanism
to
contain
specific
limits
for
Appendix
VII
and
LDR
constituents.
Headworks
Rule
Page
27
of
117
Comment
0028­
0099,
Baker
Botts
LLP
Introduction:
These
comments
are
submitted
on
behalf
of
certain
terminal
operators
with
operations
in
Texas.
1
These
operators
maintain
for­
hire
bulk
loading,
unloading
and
storage
facilities
for
petroleum
and
chemicals
at
multiple
locations
throughout
the
State
of
Texas.
These
operations
are
vital
to
the
continued
flow
of
commerce
in
bulk
commodities
throughout
the
state
and
the
world.
These
terminals
handle
petroleum,
its
derivatives
and
various
chemical
products
and
chemical
intermediates
as
they
make
their
way
to
and
from
the
manufacturers
and
into
the
market.
Texas
has
ten
such
facilities
with
about
1,000
storage
tanks
and
32
million
barrels
of
storage
capacity.

No
manufacturing
occurs
at
for­
hire
terminal
facilities.
For­
hire
terminal
operations
do,
however,
generate
various
wastewater
streams.
These
streams
result
primarily
from
rainwater
that
falls
in
containment
areas
and
intermittently
from
hydrostatic
testing,
line
flushing,
and
storage
tank/
railcar
rinsing.
Any
bulk
residues
in
storage
tanks
and/
or
railcars
are
removed
as
solid
waste
prior
to
the
rinsing
operation
and
managed
in
accordance
with
Texas
and
federal
solid
waste
management
regulations.
Through
these
various
operations,
the
water
that
is
generated
may
come
into
contact
with
residual
commercial
chemical
products
or
manufacturing
intermediates
that
are
transported
to
and/
or
stored
at
the
terminal
facilities.
Under
the
federal
RCRA
regulations
,
discarded
portions
of
many
commercial
chemical
products
and
intermediates
are
considered
to
be
listed
wastes.
2
Due
to
the
mixture
rule,
mixtures
of
even
small
portions
of
the
residual
commercial
chemical
products
or
intermediates
and
the
rinsate
or
rain
water
produce
a
listed
hazardous
waste
stream
that
must
be
managed
as
such,
without
regard
to
the
concentration
of
the
chemical
constituents
therein,
unless
de­
listed.
On
occasion,
these
wastewaters
might
also
qualify
as
hazardous
based
on
characteristic
testing.
3
Terminal
operators
manage
these
hazardous
wastewaters
either
on­
site
in
wastewater
treatment
facilities
with
their
own
Clean
Water
Act
permit
or
by
indirect
discharge
to
a
publicly
owned
treatment
works
("
POTW").

1
Intercontinental
Terminals
Company,
LBC
Houston
(
Petro
United);
Kinder
Morgan
Liquid
Terminals
and
ST
Services.
2
See
40
C.
F.
R.
Part
261.33(
e)
and
(
f).
3
See
40
C.
F.
R.
Part
261.20
­
.24.

Comment
99­
1:
EPA's
rules
have
since
November
17,
1981,
exempted
from
the
definition
of
hazardous
waste
certain
mixtures
of
wastewaters
that
have
only
de
minimis
amounts
of
discarded
commercial
chemical
product
or
chemical
intermediates.
That
current
exemption
defines
de
minimis
losses
as
those
from:

normal
material
handling
operations
(
e.
g.,
spills
from
the
unloading
or
transfer
of
materials
from
bins
or
other
containers,
leaks
from
pipes,
valves
or
other
devices
used
to
transfer
materials);
minor
leaks
of
process
equipment,
storage
tanks
or
containers;
leaks
from
well
maintained
pump
packing
and
seals;
sample
purging;
relief
device
discharges;
discharges
from
safety
showers
and
rinsing
and
cleaning
of
personal
safety
equipment;
and
rinsate
from
empty
containers
or
from
containers
Headworks
Rule
Page
28
of
117
that
are
rendered
empty
by
that
rinsing.

40
C.
F.
R.
§
261.3(
a)(
2)(
iv)(
D).

These
are
precisely
the
kinds
of
losses
that
occur
at
terminal
facilities.
The
exemption
in
the
current
rule
does
not
apply
to
terminal
operators,
however,
because
our
losses
do
not
result
from
"
manufacturing
operations
in
which
these
materials
are
used
as
raw
materials
or
produced
in
the
manufacturing
process."
Id.
(
emphasis
added).
As
the
EPA
has
recognized
in
its
proposal,
the
limitation
of
this
exemption
solely
to
manufacturing
operations
is
unduly
restrictive
when
the
same
set
of
operative
facts
exist
at
other
non­
manufacturing
locations,
like
bulk
terminals.
Terminal
operations
are
a
necessary
corollary
to
manufacturing
operations.
The
nature
and
character
of
the
wastewater
resulting
from
terminal
operation
losses
is
exactly
the
same
as
those
that
occur
at
the
manufacturing
facility.
Therefore,
the
Texas
terminal
operators
support
EPA's
proposed
expansion
of
the
de
minimis
exemption
to
include
non­
manufacturing
operations.

Response
99­
1:
EPA
acknowledges
the
Texas
Terminal
Operators'
support
of
the
revisions
to
the
de
minimis
provisions
of
the
headworks
rule.

Comment
99­
2:
The
current
rule
already
applies
only
to
mixtures
of
solid
waste
and
one
or
more
listed
hazardous
wastes
where
the
mixture
consists
of
"
wastewater
the
discharge
of
which
is
subject
to
regulation
under
either
section
402
or
section
307(
b)
of
the
Clean
Water
Act ."
40
C.
F.
R.
§
261.3(
a)(
2)(
iv).
Indeed,
this
is
part
of
the
premise
of
the
original
exemption;
namely,
that
the
type
of
operations
with
these
de
minimis
losses
would
have
treatment
facilities
capable
of
handling
such
wastewaters.
It
is
only
logical
that
in
expanding
of
the
exemption
beyond
manufacturers
to
include
facilities
like
terminal
operators
this
same
requirement
ought
to
remain
applicable.
Therefore,
Texas
Terminal
Operators
support
the
requirement
that
to
qualify
for
the
exemption,
the
de
minimis
wastewaters
must
ultimately
be
managed
in
a
facility
subject
to
regulation
under
the
CWA.

Response
99­
2:
EPA
acknowledges
the
Texas
terminal
operators'
support
of
the
requirement
that
the
discharge
must
be
subject
to
a
CWA
permit.

Comment
99­
3:
The
Agency
appears
to
be
concerned
that
reliance
on
the
CWA
permitting
requirements
alone
is
not
sufficiently
protective.
Instead,
EPA
has
proposed
that
the
RCRA
program
must
mandate
specific
terms
and
conditions
in
such
permits
in
order
for
the
losses
to
qualify
for
the
exemption.
68
Fed.
Reg.
17234,
17244.
As
stated
above,
we
support
the
requirement
that
the
exempted
wastewaters
must
be
managed
and
discharged
via
a
system
subject
to
the
regulatory
requirements
of
the
Clean
Water
Act.
There
is
no
basis
in
the
record
of
this
rulemaking,
however,
to
draw
a
distinction
between
the
type
of
permit
required
for
nonmanufacturing
versus
manufacturing
operations.
There
is
also
no
basis
to
suggest
that
the
CWA
permitting
programs
are
not
capable
of
ensuring
on
their
own
that
these
losses
will
not
be
managed
in
a
manner
that
is
protective.
It
is
the
position
of
the
Texas
Terminal
Operators
that
the
Clean
Water
Act's
regulatory
regime
is
fully
capable
of
handling
the
permit
requirements
for
losses
no
matter
whether
they
occur
at
a
manufacturing
facility
or
a
terminal.
In
either
case,
the
Headworks
Rule
Page
29
of
117
CWA
permit
writer
is
required
to
develop
permits
that
are
fully
protective
of
human
health
and
the
environment.

The
existing
exemption
that
has
covered
de
minimis
losses
at
manufacturing
facilities
subject
only
to
further
regulation
under
the
CWA
has
apparently
provided
sufficient
protection
of
human
health
and
the
environment
for
the
past
twenty
years.
EPA
does
not
present
any
evidence
in
this
rulemaking
that
reliance
on
the
CWA
alone
has
failed
to
work
or
provided
insufficient
protection.
Consequently,
there
is
no
supporting
rationale
for
expanding
the
scope
of
the
rule
to
require
specific
terms
and
conditions
within
the
RCRA
program
for
the
NPDES
permits
managing
qualifying
de
minimis
losses.
Further
examination
of
the
specifics
of
the
CWA
permitting
program
only
makes
this
lack
of
support
clearer.

CWA
permits
are
developed
on
a
case­
by­
case
basis
following
a
detailed
application
review
process.
40
C.
F.
R.
§
122.21.
Within
the
various
disclosure
schedules
required
in
a
permit
application,
the
applicant
must
disclose
all
compounds
managed
at
a
facility
that
could
potentially
wind
up
in
the
wastewater.
(
See,
e.
g.,
EPA
CWA
Permit
Forms
2C,
2D
and
2E).
This
information
is
required
no
matter
whether
the
facility
is
a
manufacturing
facility
or
terminal
operation.
(
Both
would
qualify
as
industrial/
commercial
facilities
when
seeking
an
individual
permit
to
discharge
pursuant
to
the
CWA).
After
a
review
of
the
application,
any
applicable
technology­
based
effluent
limitations
and
state
adopted
water
quality
standards,
the
permit
writer
develops
a
facility­
specific
permit.
Based
on
the
permit
writer's
application
of
best
professional
judgment,
the
permit
is
issued
that
contains
relevant
limitations
and
monitoring
requirements
that
are
designed
to
ensure
that
the
discharge
is
fully
protective
of
human
health
and
the
environment.
The
permit
is
drafted
to
require
the
discharger
to
meet
the
more
stringent
of
the
technology­
based
limitations
and
the
water
quality
based
standards
for
both
conventional
and
toxic
pollutants.
40
C.
F.
R.
§
122.44.

Not
every
chemical
or
compound
identified
in
the
application,
however,
will
have
a
specific
permit
limit.
Some
may
be
regulated
more
generally
as
conventional
pollutants
such
total
organic
carbon
or
pH.
Other
compounds
may
be
regulated
via
general
requirement
in
the
permit
related
to
whole
effluent
toxicity.
Still
others
may
have
specific
limits
and
monitoring
requirements.
Thus,
it
is
neither
normal
nor
mandated
that
a
CWA
permit
contain
limits
for
all
compounds
managed
at
a
facility.
It
is
inappropriate,
therefore,
for
the
Agency
to
require
such
limits
in
the
permit
to
qualify
for
the
exemption.
To
do
so
would
usurp
the
permit
writer's
professional
judgment.
Given
the
way
the
CWA
permit
process
operates,
it
should
be
sufficient
for
the
EPA
to
merely
include
a
requirement
that
for
losses
to
be
covered
by
the
exemption
they
must
meet
the
definition
of
de
minimis
and
after
they
occur,
they
need
to
be
managed
in
facilities
and
units
subject
to
permit
requirements
developed
under
the
CWA.
[
Footnote
4:
A
similar
approach
to
the
one
recommend
here
was
taken
by
Congress
in
the
Land
Disposal
Program
Flexibility
Act
of
1996,
P.
L.
104­
119
(
104th
Congress).
In
that
Act,
Congress
exempted
characteristically
hazardous
wastewaters
from
the
land
disposal
restrictions
provided
that
they
are
managed
in
a
treatment
system
that
subsequently
discharges
to
waters
of
the
United
States
pursuant
to
a
CWA
permit
or
treated
for
purposes
of
the
pretreatment
requirements
and
subsequently
discharged
pursuant
to
a
CWA
permit.
Id.
at
Sec.
2,
(
amending
42
U.
S.
C.
§
6914(
g)(
7)(
A)
of
RCRA).
Headworks
Rule
Page
30
of
117
Response
99­
3:
Please
see
our
response
to
comment
98­
10.

Comment
99­
4:
The
same
analysis
is
applicable
to
those
facilities
subject
to
an
indirect
discharge
relationship
where
their
effluent
is
directed
to
a
POTW.
In
accordance
with
EPA's
national
pretreatment
standards
program,
the
POTW
must
develop
pretreatment
limitations
for
pollutants
received
from
indirect
dischargers
that
would
pass
through
or
interfere
with
the
POTW's
operation.
Consequently,
the
only
constituent
specific
limitations
appropriate
to
the
effluent
from
the
indirect
discharger
are
those
applicable
to
compounds
that
cannot
be
managed
and
controlled
by
the
POTW.
It
is
inappropriate
for
EPA
to
suggest
that
to
qualify
for
the
expanded
exemption,
pretreatment
limits
must
be
present
for
the
covered
compounds.

Further,
indirect
dischargers
should
be
entitled
to
claim
the
benefits
of
the
newly
expanded
exemption
so
long
as
POTW
has
a
valid
CWA
discharge
permit.
As
with
the
direct
discharger,
the
POTW's
CWA
permit
may
or
may
not
have
specific
permit
limits
for
all
constituents
received
from
each
of
its
indirect
dischargers.
The
requirements
for
developing
a
permit
for
a
POTW,
however,
are
no
different
in
terms
of
the
environmental
protection
standards
applicable
to
the
ultimate
discharge.
A
permit
developed
for
a
POTW
will,
in
the
best
professional
judgment
of
the
Agency's
permit
writer,
ensure
protection
of
human
health
and
the
environment.
Therefore,
indirect
dischargers
should
be
entitled
to
the
exemption
for
de
minimis
losses
that
are
routed
to
a
POTW
that
has
a
valid
NPDES
permit.

Response
99­
4:
Indirect
dischargers
are
eligible
for
the
de
minimis
exemption
if
the
POTWs
they
discharge
to
have
valid
CWA
permits
that
include
an
approved
pretreatment
program
as
a
condition
of
the
POTW's
permit.
In
addition,
EPA
agrees
that
requiring
pretreatment
limits
for
each
constituent
that
may
be
released
in
order
for
indirect
dischargers
to
qualify
for
the
de
minimis
exemption
is
not
necessary
to
protect
human
health
and
the
environment.
If
the
POTW
has
a
valid
CWA
permit
and
acts
in
accordance
with
EPA's
national
pretreatment
standards
program,
and
the
indirect
discharger
discloses
every
Appendix
VII
and
LDR
constituent
that
may
be
released
to
the
POTW,
then
pretreatment
limits
for
each
constituent
are
not
necessary
to
qualify
for
the
exemption.
Disclosing
all
Appendix
VII
and
LDR
constituents
that
may
be
released
will
alert
the
POTW
of
any
potential
chemicals
that
may
pass
through
or
interfere
with
its
operation
or
cause
the
POTW
to
violate
its
permit.
At
which
point,
the
control
authority
(
i.
e.,
the
POTW,
state,
or
EPA
Region)
can
determine
if
specific
pretreatment
limits
are
necessary.
Finally,
the
Agency
notes
that
the
alerting
of
the
control
authority
must
occur
before
the
facility
can
claim
the
expanded
portions
of
the
de
minimis
exemption.

Comment
99­
5:
To
the
extent
that
the
Agency
has
raised
concerns
related
to
the
scope
of
the
existing
exemption,
most
of
those
concerns
go
to
whether
the
losses
in
question
qualify
as
de
minimis.
As
EPA
stated
in
the
preamble
to
this
proposal,
the
exemption
is
intended
to
apply
"
to
minor,
inadvertent
releases
of
waste
to
a
wastewater
treatment
system
as
a
result
of
normal
operations
at
a
well
maintained
facility."
There
are
existing
as
well
as
proposed
incentives
to
ensure
that
non­
qualifying
losses
are
not
captured
by
the
rule.
As
the
Agency
has
noted,
one
such
incentive
is
the
found
in
the
fact
that
nothing
in
the
existing
or
expanded
exemption
negates
the
applicability
of
the
Toxicity
Characteristic
(
TC)
rule.
40
C.
F.
R.
§
261.24.
Any
release
of
Headworks
Rule
Page
31
of
117
non­
de
minimis
quantities
of
compounds
covered
by
the
TC
rule
will
render
the
resultant
wastewater
hazardous,
thus
overriding
any
potential
benefit
from
the
expanded
exemption,
which
is
applicable
only
to
mixtures
of
listed
hazardous
wastes.
In
addition,
as
the
Agency
noted
in
the
preamble,
another
quality
control
is
the
reporting
required
by
EPA
for
spills
or
releases
that
exceed
CERCLA
reportable
quantities
(
RQs).

Further,
with
the
proposed
modifications
to
the
definition
of
what
qualifies
as
de
minimis,
the
language
of
the
exemption
could
not
be
clearer
as
to
the
types
of
losses
that
are
intended
to
be
covered.
Large,
planned
releases
are
clearly
not
allowed
and
any
attempt
by
the
regulated
community
to
cover
such
losses
through
this
rule
can
be
appropriately
handled
through
active
Agency
enforcement.
In
addition,
for
this
exemption,
as
with
all
others
in
the
EPA's
rules,
the
burden
is
on
the
person
claiming
to
the
exemption
to
prove
their
entitlement
to
it.

With
these
further
safeguards
and
incentives,
there
is
no
need
to
add
the
provision
contained
in
the
proposal
related
to
permit
limits
for
specific
chemical
compounds.

Response
99­
5:
EPA
agrees
with
the
commenter
that
the
TC
and
RQs
are
additional
incentives
to
prevent
non­
de
minimis
releases.
In
addition,
we
agree
that
the
de
minimis
definition
offers
a
clear
explanation
of
what
releases
are
to
be
considered
de
minimis.
Please
see
responses
to
comments
98­
10
and
99­
4
for
discussions
regarding
the
proposed
requirement
to
have
permit
limits
for
specific
chemical
compounds.
Headworks
Rule
Page
32
of
117
Comment
0028­
0101,
American
Petroleum
Institute
Introduction:
The
American
Petroleum
Institute
(
API)
offers
the
following
comments
on
EPA's
proposed
"
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
 
Headworks
Exemptions",
herein
referred
to
as
EPA's
"
headworks
proposed
rule"
or
"
headworks
proposal".

API
represents
more
than
400
member
companies
involved
in
all
aspects
of
the
oil
and
natural
gas
industry.
API
members
are
subject
to
the
RCRA
hazardous
waste
identification
and
management
regulations,
and
therefore
are
strongly
interested
in
this
rulemaking.

Comment
101­
1:
API
supports
this
headworks
proposed
rule
where
it
provides
for
appropriate
flexibility
in
methods
available
to
best
safely
handle
wastes.
API
supports
the
option
of
demonstrating
compliance
with
the
headworks
exemption
by
direct
monitoring.
API
also
supports
the
proposal
to
broaden
the
use
of
the
de
minimis
exemption
(
40
CFR
§
261.3(
a)(
2)(
iv)).

Response
101­
1:
EPA
acknowledges
API's
support
for
these
provisions
of
the
rulemaking.

Comment
101­
2:
However,
API
has
concerns
about
certain
of
the
requirements
associated
with
this
proposed
broadening
of
that
exemption,
and
with
the
definition
of
de
minimis.

Response
101­
2:
Please
see
responses
to
comments
98­
10,
99­
4,
and
111­
1.

Comment
101­
3:
API
also
strongly
urges
EPA
to
continue
its
efforts
to
propose
to
exempt
F039
(
multi­
source
leachate),
especially
from
captive
on­
site
landfills.

Response
101­
3:
We
acknowledge
API's
support
for
a
potential
rulemaking
addressing
leachates.

Comment
101­
4:
API
supports
the
proposal
to
expand
the
options
for
demonstrating
compliance
with
the
headworks
rule
by
including
the
option
to
directly
measure
solvent
chemical
levels
at
the
headworks
of
the
wastewater
treatment
system,
in
addition
to
the
current
mass­
balance
method.

Response
101­
4:
EPA
acknowledges
API's
support
for
this
provision
of
the
rulemaking.

Comment
101­
5:
API
also
supports
the
proposal
that
each
facility
seeking
to
take
advantage
of
the
new
option
for
direct
monitoring
be
required
to
prepare
a
sampling
and
analysis
plan
in
advance
of
the
commencement
of
direct
monitoring.
We
do
not,
however,
see
any
need
to
require
that
the
plan
be
submitted
for
approval
by
the
appropriate
overseeing
agency.
Most
generators
of
hazardous
waste
are
not
required
to
prepare
a
sampling
and
analysis
plan,
except
to
meet
the
Land
Disposal
Restriction
standards
when
treating
prohibited
waste
or
contaminated
soil
in
tanks,
containers,
or
containment
buildings
under
the
requirements
of
40
CFR
268.7(
a)(
5).
Requiring
the
preparation
and
submittal
of
a
sampling
and
analysis
plan
puts
an
additional
burden
not
otherwise
required
on
small
quantity
generators
as
well
as
large
quantity
generators.
Instead,
a
sampling
and
analysis
plan
for
the
headworks
exemption
should
be
prepared
and
maintained
on
Headworks
Rule
Page
33
of
117
site
for
review
during
regular
agency
inspections.
Such
a
provision
would
allow
for
appropriate
agency
review
and
oversight
of
the
plan
without
imposing
an
unnecessary
burden
on
either
site
personnel
or
the
regulatory
officials.
API's
suggestion
to
retain
the
sampling
and
analysis
plan
at
the
facility
and
not
forward
it
to
the
appropriate
overseeing
agency
is
similar
to
changes
EPA
proposed
last
year
in
its
RCRA
Burden
Reduction
Initiative
(
67
FR
2518,
Jan.
17,
2002).

Response
101­
5:
EPA
notes
that
the
commenter
does
not
disagree
with
the
requirement
to
prepare
a
sampling
and
analysis
plan
(
SAP)
only
with
the
requirement
to
submit
the
SAP
to
the
overseeing
regulatory
agency.
EPA
disagrees
with
the
commenter
that
the
extra
step
of
submitting
the
SAP
to
the
overseeing
agency
in
order
to
qualify
for
the
direct
monitoring
option
is
overly
burdensome.
As
submitting
the
SAP
merely
requires
mailing
or
otherwise
delivering
the
SAP
to
the
regulator,
it
is
difficult
to
see
how
that
step
creates
undue
burden.
As
stated
in
the
preamble
to
the
proposed
rule,
initiating
direct
monitoring
does
not
require
approval
of
the
SAP,
but
rather
only
confirmation
of
receipt
of
delivery.
The
purpose
for
submitting
the
SAP
is
to
provide
notification
to
the
overseeing
agency
that
a
change
in
monitoring
option
will
occur.
This
notification
is
a
one
time
event,
unless
there
is
a
change
in
the
facility's
operations
that
mandates
a
change
in
monitoring.
The
Agency
notes
that
if
the
facility
still
determines
that
submitting
the
SAP
is
too
burdensome,
then
the
facility
has
the
option
to
continue
monitoring
with
the
mass
balance
method.

The
purpose
of
the
proposed
Burden
Reduction
rule
is
to
eliminate
reports
that
are
found
to
be
duplicative
or
not
used
by
state
agencies
to
protect
human
health
and
the
environment
(
67
FR
2518,
Jan.
17,
2002).
In
today's
rule,
submitting
the
SAP
serves
as
the
sole
notification
to
the
overseeing
agency
that
the
facility
will
be
using
direct
monitoring
to
demonstrate
compliance
with
the
exemption.
In
addition,
the
SAP
will
provide
important
information
on
key
sampling
parameters
that
the
facility
intends
to
use.
EPA
notes
that
the
facility
has
a
wide
latitude
to
design
the
SAP,
as
the
facility
will
initially
set
the
conditions
with
which
they
intend
to
comply.
As
the
SAP
is
not
duplicative
of
any
other
requirement
and
serves
as
notification
to
the
overseeing
agency,
EPA
believes
retaining
the
requirement
to
submit
the
SAP
is
reasonable
and
is
consistent
with
the
proposed
Burden
Reduction
rule.

Comment
101­
6:
For
those
facilities
which
decide
to
use
the
direct
monitoring
option,
API
believes
that
both
the
regulations
and
the
sampling
plan
should
explicitly
allow
for
reductions
in
sampling
frequency
when
a
site
using
the
direct
monitoring
option
demonstrates
consistent
compliance
with
the
weekly
performance
criterion.
Under
the
headworks
proposal,
a
facility
using
the
new
direct
monitoring
option
is
required
to
show
compliance
on
a
weekly
average
basis,
and
the
waste
analysis
plan
must
delineate
how
the
facility
would
calculate
compliance
with
a
weekly
average
requirement.
The
use
of
a
weekly
average
implies
that
facilities
need
to
take
samples
at
least
once
per
week.
Although
it
may
be
appropriate
to
initially
require
such
frequent
sampling
to
establish
a
baseline
and
to
determine
variability,
the
regulations
should
allow
a
facility
to
change
to
less
frequent
sampling
after
a
suitable
demonstration
has
been
made
that
it
consistently
complies
with
the
performance
criteria.

The
ability
to
reduce
sampling
frequency
is
consistent
with
the
parallel
approaches
taken
Headworks
Rule
Page
34
of
117
historically
in
RCRA
Waste
Analysis
Plans
(
WAP)
and
in
Clean
Water
Act
NPDES
permits.
In
each
case,
requirements
as
to
sampling
frequencies
are
established,
or
may
be
modified,
based
upon
longer­
term
data
on
the
levels
and
variability
of
the
stream
being
monitored.
Although
RCRA
WAP
and
NPDES
monitoring
requirements
often
are
reduced
to
annual
frequencies,
we
believe
in
the
context
of
these
regulations
that
being
able
to
change
initially
to
a
monthly
average
basis
would
provide
appropriate
regulatory
relief
while
still
ensuring
that
the
wastewaters
remain
within
compliance
parameters.

Accordingly,
API
supports
the
suggestion
offered
by
the
American
Chemistry
Council
that
if
a
facility
complies
with
the
performance
criteria
on
a
weekly­
average
basis
for
26
consecutive
weeks,
it
be
allowed
to
change
to
monthly
sampling
to
show
compliance
with
the
performance
criteria
on
a
monthly
average
basis.
This
shift
from
weekly
average
to
monthly
average
would
be
self­
implementing,
without
a
need
for
agency
approval.
If
a
facility
desired
to
sample
even
less
frequently
(
e.
g.,
quarterly,
semiannual
or
annual),
it
should
only
be
allowed
to
do
so
after
application
to
the
agency
and
a
demonstration
of
how
its
long
term
record
of
compliance
justifies
such
a
longer
averaging
period.

Response
101­
6:
The
commenter's
suggestion
that
the
performance
standard
change
from
a
weekly
average
to
a
monthly
average
addresses
a
provision
of
the
current
headworks
rule
not
specifically
identified
in
the
proposal
as
subject
to
possible
amendment.
EPA
stated
in
the
proposed
rule
that
it
would
not
respond
to
comments
addressing
such
provisions.

However,
the
Agency
is
interested
in
the
possibility
of
allowing
a
facility's
sampling
and
analysis
plan
to
include
a
provision
to
reduce
sampling
frequency
based
on
performance
as
long
as
the
current
compliance
standards
under
261.3(
a)(
2)(
iv)(
A)
and
(
B)
are
maintained
and
the
facility's
provisions
for
the
reduction
are
thoroughly
discussed
in
the
plan.
However,
EPA
would
first
need
to
propose
the
specific
requirements
of
such
a
provision
in
order
to
allow
for
adequate
notice
and
comment.

Comment
101­
7:
API
supports
the
headworks
proposed
rule
to
broaden
the
scope
of
the
de
minimis
exemption
to
include
non­
manufacturing
facilities,
in
addition
to
those
facilities
that
already
qualify
for
this
exemption.
The
de
minimis
losses
already
listed
in
40
C.
F.
R.
§
261.3(
a)(
2)(
iv)(
D)
are
as
relevant
to
non­
manufacturing
facilities
in
the
petroleum
industry,
including
terminal
facilities,
as
they
are
to
manufacturing
facilities.
However,
the
exemption
in
the
current
rule
has
not
been
interpreted
to
apply
to
terminal
operators
because
such
de
minimis
losses
do
not
result
from
"
manufacturing
operations
in
which
these
materials
are
used
as
raw
materials
or
produced
in
the
manufacturing
process."
API
agrees
with
EPA's
recognition
that
the
limitation
of
this
exemption
solely
to
manufacturing
operations
is
unduly
restrictive
when
the
same
set
of
operative
facts
exists
at
non­
manufacturing
locations,
like
terminals.

Response
101­
7:
EPA
acknowledges
API's
support
for
this
provision
of
the
rulemaking.

Comment
101­
8:
API
supports
the
expansion
proposed
concerning
the
types
of
wastes
(
e.
g.,
Fand
K­
listed
wastes
and
wastes
other
than
listed
commercial
chemical
products)
that
are
eligible
Headworks
Rule
Page
35
of
117
for
the
exemption
if
certain
conditions
are
met.

Response
101­
8:
EPA
acknowledges
API's
support
for
this
provision
of
the
rulemaking.

Comment
101­
9:
In
the
current
regulation,
40
CFR
§
261.3(
a)(
2)(
iv)
refers
to
the
Clean
Water
Act,
as
follows:

"
if
the
generator
can
demonstrate
that
the
mixture
consists
of
wastewater
the
discharge
of
which
is
subject
to
regulation
under
either
section
402
or
section
307(
b)
of
the
Clean
Water
Act
 "

In
the
headworks
proposal,
the
following
would
be
added
at
the
end
of
§
261.3(
a)(
2)(
iv)(
D):

"
Any
manufacturing
facility
that
claims
an
exemption
for
de
minimis
quantities
of
wastes
listed
in
§
§
261.31
through
261.32,
or
any
non­
manufacturing
facility
that
claims
an
exemption
for
de
minimis
quantities
of
wastes
listed
in
subpart
D
of
this
part
must
either
have
eliminated
the
discharge
of
wastewaters
or
have
a
permit
subject
to
the
Clean
Water
Act
that
contains
limits
for,
the
constituents
for
which
each
waste
was
listed
(
in
40
CFR
261
appendix
VII)
of
this
part;
and
the
constituents
in
the
table
"
Treatment
Standards
for
Hazardous
Wastes''
in
40
CFR
268.40
for
which
each
waste
has
a
treatment
standard
(
i.
e.,
Land
Disposal
Restriction
constituents) ."

This
proposed
additional
language
in
§
261.3(
a)(
2)(
iv)(
D)
is
overly
prescriptive
and
needlessly
burdensome
and
therefore
should
be
removed,
especially
since
de
minimis
refers
to
items
of
limited
or
no
substantive
significance.
The
proposed
additional
language
would
impose
unnecessary
burdens
on
both
generators
and
regulating
agencies
under
RCRA
and
the
Clean
Water
Act.
API
urges
EPA
to
retain
the
reference
to
Clean
Water
Act
requirements
found
in
§
261.3(
a)(
2)(
iv),
and
not
to
add
the
additional
text
discussed
above
to
§
261.3(
a)(
2)(
iv)(
D).

While
removing
the
additional
language
in
§
261.3(
a)(
2)(
iv)(
D)
is
our
primary
recommendation,
API
believes
the
concerns
expressed
by
EPA
in
the
proposal
to
explain
the
need
to
require
facilities
to
either
(
1)
have
Clean
Water
Act
permits
that
contain
limits
of
Appendix
VII
and
Land
Disposal
Restriction
constituents
associated
with
the
specific
wastes,
or
(
2)
have
eliminated
the
discharge
of
wastewaters
altogether,
could
be
better
addressed
by
having
the
generator
identify
the
specific
waste
constituents
in
the
CWA
permit
application.
As
part
of
the
CWA
permit
application
process,
the
authorizing
agency
has
the
opportunity
to
include
or
not
include
constituent
limits
based
on
the
facility's
operations
and
environmental
risk.
As
long
as
the
constituents
of
concern
routinely
managed
at
the
facility
have
been
identified
by
the
facility,
whether
or
not
they
are
included
in
the
permit
limits,
the
facility
should
be
able
to
take
advantage
of
the
expanded
de
minimis
exemption.

Response
101­
9:
Please
see
response
to
comment
98­
10.
Headworks
Rule
Page
36
of
117
Comment
101­
10:
The
same
analysis
is
also
applicable
to
expansion
of
the
de
minimis
exemption
to
those
facilities
subject
to
an
indirect
discharge
relationship
where
their
effluent
is
directed
to
a
publicly
owned
treatment
works
(
POTW).
In
accordance
with
EPA's
national
pretreatment
standards
program,
the
POTW
must
develop
pretreatment
limitations
for
pollutants
received
from
indirect
dischargers
that
would
pass
through
or
interfere
with
the
POTW's
operation.
Consequently,
the
only
constituent
specific
limitations
appropriate
to
the
effluent
from
the
indirect
discharger
are
those
applicable
to
compounds
that
cannot
be
managed
and
controlled
by
the
POTW.
It
is
inappropriate
for
EPA
to
suggest
that
to
qualify
for
the
expanded
exemption,
pretreatment
limits
must
be
present
for
the
covered
compounds.

Further,
indirect
dischargers
should
be
entitled
to
claim
the
benefits
of
the
expanded
exemption
so
long
as
the
compounds
in
question
were
fully
disclosed
to
the
POTW
as
part
of
the
baseline
monitoring
reports
required
by
40
C.
F.
R.
§
403.12(
b).
These
baseline­
monitoring
reports
are
used
to
establish
the
individual
control
mechanism
for
the
indirect
discharger
(
for
the
"
pass
through/
interference"
issues)
as
well
as
to
establish
the
POTW's
permit
limits.
As
with
the
direct
discharger,
the
POTW's
CWA
permit
may
or
may
not
have
specific
permit
limits
for
all
constituents
received
from
each
of
its
indirect
dischargers.
The
requirements
for
developing
a
permit
for
a
POTW
are
no
different
in
terms
of
the
environmental
protection
standards
applicable
to
the
ultimate
discharge
than
the
requirements
for
direct
discharger's
NPDES
permits.
Assuming
full
disclosure
by
the
indirect
dischargers,
a
permit
developed
for
a
POTW
will,
in
the
best
professional
judgment
of
the
Agency's
permit
writer,
ensure
protection
of
human
health
and
the
environment.
Therefore,
indirect
dischargers
should
be
entitled
to
use
the
de
minimis
exemption
for
otherwise
qualifying
releases
where
the
associated
constituents
have
been
disclosed
to
the
POTW.

Response
101­
10:
Please
see
response
to
comment
99­
4.

Comment
101­
11:
API
believes
the
proposed
change
of
wording
in
the
de
minimis
exemption,
§
261.3(
a)(
2)(
iv)(
D),
to
include
the
words
"
unscheduled,
uncontrollable,
insignificant,
and
inadvertent
releases
to
a
wastewater
treatment
system"
is
unnecessary
and
potentially
confusing.
The
regulated
community
has
been
working
with
the
current
wording
since
this
exemption
has
been
in
place
without
any
adverse
consequences.
Including
these
qualifiers
would
potentially
create
confusion
among
both
the
regulated
community
and
the
authorized
agencies
on
how
to
interpret
the
words
"
uncontrollable"
and
"
unscheduled".
Accordingly,
API
recommends
not
including
these
proposed
additional
words
in
§
261.3(
a)(
2)(
iv)(
D).

Response
101­
11:
EPA
acknowledges
API's
concerns
with
the
new
words
in
the
regulatory
definition
of
de
minimis.
Please
see
our
response
to
comment
111­
1
for
further
discussion
involving
our
decision
not
to
include
"
unscheduled,"
"
uncontrollable"
and
"
insignificant"
in
the
final
regulatory
language.

Comment
101­
12:
API
finds
a
conflict
within
the
language
included
in
the
proposed
exemption
at
40
CFR
§
261.3(
a)(
2)(
iv)(
D).
This
is
the
section
that
would
be
expanded
to
include
de
minimis
quantities
"
F"
and
"
K"
under
certain
circumstances,
a
modification
that
API
supports.
The
list
of
Headworks
Rule
Page
37
of
117
what
is
de
minimis,
includes
the
following
"
rinsate
from
empty
containers
or
from
containers
that
are
rendered
empty
by
that
rinsing."
"
Rinsates
from
empty
containers"
are
"
residues
of
hazardous
waste
in
empty
containers"
(
as
provided
by
40
CFR
§
261.7)
which
are
not
subject
to
regulation
under
part
261,
and
therefore
do
not
belong
in
this
list
of
sources
of
de
minimis
loss
materials.

This
discrepancy
also
exists
in
the
current
regulation.
However,
EPA's
headworks
proposal
to
expand
the
exemption
to
include
§
261.31
and
§
261.32
wastes
provides
the
Agency
the
opportunity
to
correct
this
inconsistency
by
removing
the
reference
to
"
rinsate
from
empty
containers"
from
the
current
regulation
when
it
amends
§
261.3(
a)(
2)(
iv)(
D)
to
include
"
F"
and
"
K"
wastes.
Only
the
language
referring
to
"
rinsate
from
containers
that
are
rendered
empty
by
that
rinsing"
needs
to
be
retained
in
the
last
clause
of
§
261.3(
a)(
2)(
iv)(
D).
That
language
includes
both
rinsate
from
triple
rinsing
required
to
empty
a
container
which
held
a
discarded
commercial
chemical
product
or
chemical
intermediate
listed
in
§
261.33(
e)
(
acute
or
"
P"
wastes"),
as
well
any
rinsate
from
hazardous
waste
containers
holding
a
waste
other
than
acute
or
"
P"
wastes.

Response
101­
12:
This
comment
addresses
an
issue
that
is
outside
the
scope
of
the
proposed
rulemaking.
As
stated
in
the
preamble,
the
Agency
did
not
propose
any
changes
or
seek
comment
on
any
provisions
of
the
"
headworks
rule"
not
specifically
identified
as
subject
to
possible
amendment.
The
Agency
also
made
clear
that
it
would
not
respond
to
any
comments
addressing
any
provisions
of
the
headworks
rule
not
specifically
identified
as
subject
to
possible
amendment.
(
68
FR
17233,
April
8,
2003)

However,
EPA
would
like
to
take
this
opportunity
to
clarify
how
the
existing
"
empty
container"
exemption
operates.
Under
40
CFR
261.7,
a
container
can
contain
a
small
amount
of
non­
acute
hazardous
waste
and
still
be
considered
"
empty"
for
the
purpose
of
hazardous
waste
regulation.
(
40
CFR
261.7
includes
very
specific
definitions
on
how
much
waste
can
remain
in
an
"
empty
container.")
The
waste
remaining
in
this
"
empty"
container
is
not
subject
to
hazardous
waste
regulation
(
including
the
mixture
rule).

However,
even
though
rinse
water
from
an
"
empty"
container
may
often
times
be
non­
hazardous,
40
CFR
261.7
does
not
directly
exempt
rinse
water
from
Subtitle
C
regulation.
Rinse
water
is
not
a
waste
"
remaining
in"
an
"
empty"
container.
Indeed,
while
40
CFR
261.7
clearly
exempts
residue
remaining
in
an
"
empty"
container
from
Subtitle
C
regulation,
the
Agency
also
has
made
it
clear
that
when
residue
is
removed
from
an
"
empty"
container
the
residue
is
subject
to
full
regulation
under
Subtitle
C
if
the
removal
or
subsequent
management
of
the
residue
generates
a
new
hazardous
waste
that
exhibits
any
of
the
characteristics
identified
in
Part
261,
Subpart
C
(
see
45
FR
78529,
November
25,
1980,
where
it
states
"[
C]
ontainer
cleaning
facilities
which
handle
only
"
empty"
containers
are
not
currently
subject
to
regulation
unless
they
generate
a
waste
that
meets
one
of
the
characteristics
in
Subpart
D.").
(
See
also
April
12,
2004
letter
from
Robert
Springer,
Director,
Office
of
Solid
Waste
to
Casey
Coles,
Hogan
and
Hartson,
LLP).

Finally,
it
also
should
be
noted
that
if
the
rinsing
agent
includes
a
solvent
(
or
other
chemical)
that
would
be
a
listed
hazardous
waste
when
discarded,
then
the
rinsate
from
an
"
empty"
container
would
be
considered
a
listed
hazardous
waste.
This
is
not
due
to
the
nature
of
the
waste
being
Headworks
Rule
Page
38
of
117
rinsed
from
the
"
empty"
container,
but
rather,
because
of
the
nature
of
the
rinsing
agent.
In
this
scenario,
the
rinsate
still
may
be
eligible
for
the
exemptions
from
the
mixture
rule
found
in
40
CFR
261.3(
a)(
2)(
iv)
(
i.
e.,
headworks
exemptions)
if
it
meets
the
conditions
of
those
exemptions
(
e.
g.,
solvent
levels
at
the
headworks
below
those
in
40
CFR
261.3(
a)(
2)(
iv)(
A)
and
(
B)).

Comment
101­
13:
API
is
disappointed
that
EPA
once
again
did
not
propose
exemptions
for
F039
leachates
derived
from
solvent
wastes
or
F039
leachates
from
other
hazardous
waste
leachates,
even
when
such
leachates
are
from
captive
on­
site
landfills.
Leachate
from
API
member
companies'
on­
site
captive
landfills
typically
tests
"
Not
Detected"
for
F039
constituents.
API
supports
EPA's
continued
work
to
provide
appropriate
exemptions
for
both
hazardous
and
nonhazardous
waste
landfills
that
generate
F039,
particularly
on­
site
captive
landfills.

Response
101­
13:
EPA
acknowledges
API's
support
for
a
potential
rulemaking
addressing
leachates.
Headworks
Rule
Page
39
of
117
Comment
0028­
0102,
Lyondell
Chemical
Company
Introduction:
Lyondell
Chemical
Company
is
submitting
the
following
comments
on
the
U.
S.
Environmental
Agency's
proposed
rule
(
67
Federal
Register
17234,
April
8,
2003)
to
revise
the
wastewater
treatment
system
exemptions
for
hazardous
waste
mixtures.

Lyondell
Chemical
Company
is
the
world's
largest
producer
of
propylene
oxide,
a
leading
supplier
of
propylene
oxide
derivatives
(
propylene
glycol,
butanediol
and
propylene
glycol
ethers),
and
a
producer
of
styrene
monomer
and
MTBE
as
co­
products
of
propylene
oxide
production.
Lyondell
is
also
the
world's
number
three
supplier
of
toluene
diisocyanate.
Though
a
70.5%
interest
in
Equistar
Chemicals,
LP,
Lyondell
is
also
one
of
the
largest
producers
of
ethylene,
propylene
and
polyethylene
in
North
America.
Lyondell
also
has
a
58.75%
interest
in
Lyondell­
Citgo
Refining,
LP,
a
joint
venture
with
Citgo
Petroleum
Corporation.

Many
of
Lyondell
Chemical
Company
and
Equistar
Chemicals,
LP,
manufacturing
facilities
generate,
store
and/
or
treat
hazardous
waste.
There
are
several
aspects
of
the
proposed
regulatory
changes
that
impact
our
company
facilities
and
the
following
paragraphs
address
our
issues
and
concerns.

Comment
102­
1:
We
support
the
Agency's
proposal
to
add
benzene
and
2­
ethoxyethanol
to
the
list
of
solvents
whose
mixtures
with
wastewater
are
exempt
from
the
RCRA
definition
of
hazardous
waste.
Since
1986
when
EPA
amended
its
listing
regulations
to
add
benzene
and
2­
ethoxyethanol
to
the
"
F­
listed"
spent
solvent
categories,
some
wastewaters
containing
similar
quantities
of
different
listed
solvents
have
been
regulated
as
hazardous
waste,
whereas
other
wastewater
mixtures
are
excluded
from
regulation.
EPA's
proposal
to
add
benzene
and
2­
ethanoxyethanol
to
the
list
of
solvents
that
may
qualify
for
the
wastewater
mixture
rule
exclusion
adds
consistency
to
the
Agency's
regulation
of
listed
solvents
and
will
no
longer
subject
wastewater
mixtures
with
low
concentrations
these
compounds
to
Subtitle
C
regulation.
We
concur
with
the
Agency's
determination
that
benzene
can
be
degraded
in
well
operated
aerated
biological
wastewater
treatment
facilities.
The
conditional
management
requirement
that
benzene
containing
wastewaters
be
managed
in
aerated
biological
wastewater
treatment
systems
and
surface
impoundments,
used
for
equalization
or
surge
control
prior
to
biological
treatment
be
lined,
are
reasonable.

Response
102­
1:
EPA
acknowledges
Lyondell's
support
for
these
provisions
of
the
rulemaking.

Comment
102­
2:
We
also
support
EPA's
proposal
to
revise
the
method
for
determining
compliance
with
the
wastewater
mixture
rule
exclusions
in
40
CFR
261.3(
a)(
2(
iv)(
A),
(
B),
(
F),
and
(
G)
by
allowing
direct
measurement
of
the
solvent
concentrations
at
the
inlet
(
i.
e.,
headworks)
to
the
wastewater
treatment
plant.
Currently,
to
qualify
for
the
exclusion,
a
facility
determines
the
amount
of
weekly
solvent
losses
from
inventory
records
and
divides
that
quantity
by
the
average
weekly
wastewater
flow
through
the
headworks
of
the
treatment
system.
EPA
adopted
this
methodology
in
1981
when
the
original
headworks
exemption
was
promulgated
due
to
concerns
that
direct
measurement
of
the
solvent
concentration
at
the
headworks
would
exclude
Headworks
Rule
Page
40
of
117
volatilization
from
the
conveyance
system.
We
concur
that
facilities
that
elect
to
use
direct
monitoring
must
be
covered
by
Clean
Air
Act
regulations
that
minimize
fugitive
emissions
from
wastewater.
Weekly
direct
measurement
of
the
solvents
present
in
the
wastewater
at
the
treatment
plant
inlet
is
a
far
superior
method
to
determine
compliance
with
the
exclusion
compared
to
the
mass
balance
methodology
that
relies
on
solvent
loses
determined
from
weekly
inventory
reconciliation.

Response
102­
2:
EPA
acknowledges
Lyondell's
support
for
this
provision
of
the
rulemaking.

Comment
102­
3:
Unfortunately,
EPA
imposes
more
burden
on
facilities
that
would
chose
a
more
accurate
compliance
methodology
by
requiring
a
sampling
plan
and
then
specifying
plan
content
in
minute
detail.
In
addition
the
facility
would
have
to
submit
the
sampling
plan
to
the
Regional
Administrator,
or
state
permitting
authority
and
obtain
confirmation
that
the
plan
had
been
received
before
commencing
direct
monitoring.
We
see
little
benefit
other
than
a
check
list
inspection
requirement,
to
either
the
site
or
EPA
by
imposing
this
additional
administrative
burden.
As
an
alternative,
we
suggest
that
the
sampling
and
analysis
plan
be
incorporated
into
the
facility's
Waste
Analysis
Plan.
The
Plan
should
be
maintained
onsite
for
review
during
regular
Agency
inspections.

Response
102­
3:
EPA
disagrees
that
the
requirements
for
the
SAP
content
are
too
prescriptive.
In
the
preamble
of
the
proposed
rule,
we
state
that
the
SAP
"
must
include
the
monitoring
point
location
(
headworks),
the
sampling
frequency
and
methodology,
and
a
list
of
appropriate
constituents
to
be
monitored."
(
67
FR
17242,
April
8,
2003).
Details
such
as
the
sampling
location,
sampling
frequency,
methodology
and
constituents
to
be
monitored
are
basic
components
of
a
SAP,
and
our
requiring
such
information
to
be
included
is
not
specifying
plan
content
in
minute
detail.
These
specific
parameters
are
mentioned
in
the
proposed
rule
because
they
are
the
minimum
provisions
that
a
facility
needs
to
include
in
its
SAP.
We
specifically
did
not
include
more
guidance
regarding
the
development
of
the
SAP
as
we
wanted
to
provide
flexibility
to
the
various
facilities
that
will
be
developing
SAPs.

In
addition,
we
disagree
that
the
SAP
should
be
incorporated
into
the
facility's
Waste
Analysis
Plan
and
not
submitted.
Submitting
the
SAP
serves
as
the
sole
notification
to
the
overseeing
agency
that
the
facility
will
be
using
direct
monitoring
to
demonstrate
compliance
with
the
exemption.
If
the
SAP
is
incorporated
in
the
facility's
Waste
Analysis
Plan
and
not
submitted,
the
overseeing
agency
will
not
know
that
a
change
in
monitoring
method
has
occurred.
Please
see
responses
to
comments
101­
5
and
118­
6
for
further
discussion
regarding
the
requirement
to
submit
a
SAP.

Finally,
direct
monitoring
is
not
a
requirement
to
qualify
for
the
headworks
exemption;
it
is
an
option.
If
the
facility
still
determines
that
preparing
and
submitting
the
SAP
is
too
burdensome,
then
the
facility
can
opt
not
to
use
the
direct
monitoring
method
to
demonstrate
compliance
but
to
continue
monitoring
with
the
mass
balance
method.

Comment
102­
4:
The
current
mixture
rule
exemption
under
40
CFR
261.3(
a)(
2)(
iv)(
D)
excludes
Headworks
Rule
Page
41
of
117
from
regulation
as
hazardous
waste
small
quantities
of
commercial
chemical
products
(
U
and
P
listed
wastes)
lost
to
a
wastewater
treatment
system
from
manufacturing
operations.
The
Agency
is
proposing
to
expand
the
de­
minimis
exemption
to:
I)
both
non­
manufacturing
facilities
and
ii)
wastes
listed
in
40
CFR
261.31
and
261.32
(
F
and
K
listed
wastes)
subject
to
certain
conditions.
We
support
the
Agency's
position
on
this
issue.

Response
102­
4:
EPA
acknowledges
Lyondell's
support
for
these
provisions
of
the
rulemaking.

Comment
102­
5:
However,
the
eligibility
for
excluding
de­
minimis
losses
of
F
and
K
listed
waste
is
conditioned
on:
1)
the
facility
having
a
Clean
Water
Act
(
CWA)
permit,
and
2)
the
presence
of
effluent
limitations
in
the
permit
for
the
specific
chemicals
for
which
each
waste
was
originally
listed.
In
addition
the
permit
must
also
include
effluent
limitations
for
hazardous
constituents,
identified
in
the
40
CFR
268.40,
for
which
each
listed
waste
has
a
treatment
standard
under
the
Land
Disposal
Restrictions.
It
is
likely
that
few,
if
any,
facilities
that
manage
listed
F
or
K
hazardous
waste
would
have
wastewater
discharge
permit
limitations
for
all
of
the
underlying
compounds
unless
that
particular
F
or
K
listed
hazardous
waste
is
currently
treated
in
their
wastewater
plant.
If
this
situation
doesn't
exist,
there
would
be
no
reason
for
the
facility's
CWA
permit
to
have
specific
limitations
for
the
compounds.

An
example
best
illustrates
how
wastewater
permit
limitations
are
established.
Lyondell
Chemical
Company
manufactures
toluene
diamine
(
TDA)
and
toluene
diisocyanate
(
TDI)
at
Lake
Charles,
LA.
Both
of
these
manufacturing
processes
produce
listed
hazardous
waste:
K113,
K114,
K115,
K116
and
K027.
The
heavy
ends
from
the
TDA
process
and
the
distillation
residue
from
TDI
production
are
incinerated.
Process
wastewater
from
the
complex
is
biologically
treated
and
discharged.
Compounds
present
in
the
wastewater
were
identified
and
quantified
in
the
permit
application
and
the
state
permitting
authority
developed
permit
limitations
for
BOD5,
suspended
solids,
pH,
ammonia
nitrogen,
nitrate
nitrogen,
and
total
organic
nitrogen.
Permit
limitations
for
these
surrogate
parameters
are
based
on
OCPSF
source
category
performance
standards
for
the
manufacturing
processes.
The
permit
also
contains
daily
and
monthly
average
discharge
limits
for
benzene,
phenol,
nitrophenol,
dinitrophenol,
toluene,
dinitrotoluene
which
could
be
present
from
TDA
manufacture.
Similar
limits
are
imposed
for
carbon
tetrachloride
and
chlorobenzene
which
could
be
present
from
TDI
manufacture.
Despite
this
extensive
list
of
permit
parameters
with
daily
and
monthly
limitations,
the
site
could
not
meet
both
conditions
EPA
has
proposed
for
deminimis
losses
of
K
listed
waste.

We
recommend
that
EPA
condition
the
exclusion
on
having
a
facility
identify
and
quantify
the
compounds
that
are
present
in
the
wastewater
in
the
CWA
permit
application
and,
as
part
of
the
permitting
process,
allow
the
state
permitting
authority
to
include
specific
effluent
limitations
based
on
the
facility
operations
and
OCPSF
source
category
standards.
The
wastewater
discharge
permitting
regulations
include
an
additional
safeguard
as
they
stipulate
that
information
contained
in
a
permit
application
is
considered
part
of
the
permit
conditions.
In
summary
as
long
as
the
constituents
of
concern
have
been
identified
by
the
facility
in
their
wastewater
permit
application,
the
facility
should
be
allowed
to
use
the
expanded
de
minimis
exemption
in
the
headworks
rule
for
listed
hazardous
waste.
Headworks
Rule
Page
42
of
117
Response
102­
5:
Please
see
response
to
comment
98­
10.
Headworks
Rule
Page
43
of
117
Comment
0028­
0106,
ConocoPhillips
Introduction:
ConocoPhillips
is
pleased
to
provide
comment
on
EPA's
Proposed
Rule
(
68
FR
17234,
April
8,
2003)
titled
"
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
(``
Headworks
Exemptions'').

ConocoPhillips
is
an
international,
integrated
energy
company.
It
is
the
third
largest
integrated
energy
company
in
the
United
States,
based
on
market
capitalization,
and
oil
and
gas
reserves
and
production.
Worldwide
it
is
the
sixth
largest
publicly
owned
energy
company,
based
on
oil
and
gas
reserves,
and
the
fifth
largest
refiner.
Headquartered
in
Houston,
Texas,
ConocoPhillips
operates
in
49
countries.
The
company
has
approximately
57,000
employees
worldwide
and
assets
of
$
77
billion.
As
both
a
RCRA
hazardous
waste
generator
and
owner/
operator
of
RCRApermitted
treatment,
storage
and
disposal
facilities,
ConocoPhillips
through
its
subsidiaries
has
a
significant
interest
in
this
proposed
rulemaking.

Comment
106­
1:
ConocoPhillips
is
not
directly
affected
by
the
proposal
to
add
specific
additional
solvents
to
the
"
headworks
exemption"
but
agrees
with
EPA
that
when
contributions
of
listed
hazardous
wastes
are
minuscule
and
are
managed
by
a
wastewater
treatment
system
regulated
under
the
Clean
Water
Act
(
CWA)
that
the
risk
to
the
environment
would
be
negligible.
Additional
protection
is
afforded
by
application
of
characteristic
hazardous
waste
criteria
to
those
wastewaters
managed
in
a
wastewater
treatment
system.

Response
106­
1
EPA
acknowledges
ConocoPhilips'
support
for
these
provisions
of
the
rulemaking.

Comment
106­
2:
In
principle,
ConocoPhillips
supports
EPA's
proposal
to
give
facilities
a
choice
of
using
direct
measurement
or
mass
balance
calculations
to
determine
compliance
with
the
"
headworks
exemption".

Response
106­
2:
EPA
acknowledges
ConocoPhilips'
support
for
this
provision
of
the
rulemaking.

Comment
106­
3:
Furthermore,
regulations
and
the
facility's
sampling
and
analysis
plan
should
explicitly
allow
for
reductions
in
sampling
frequency
when
a
site
using
the
direct
monitoring
option
demonstrates
consistent
compliance
with
the
weekly
performance
criterion.

Response
106­
3:
Please
see
response
to
comment
116­
5.

Comment
106­
4:
ConocoPhillips
also
agrees
with
EPA's
approach
not
to
define
the
term
"
headworks"
by
regulation
but
to
generally
describe
the
term
as
a
wastewater
collection
area
where
the
transport
of
wastewaters
stops
and
the
chemical
or
biological
treatment
begins.

Response
106­
4:
EPA
acknowledges
ConocoPhilips'
support
for
the
informal
headworks
definition.
Headworks
Rule
Page
44
of
117
Comment
106­
5:
ConocoPhillips
supports
the
proposal
to
broaden
the
scope
of
the
de
minimis
exemption
to
include
non­
manufacturing
facilities
in
addition
to
those
facilities
that
already
qualify
for
this
exemption.
The
exemption
present
in
the
current
regulations
has
been
interpreted
not
to
apply
to
petroleum
terminal
facilities
because
such
de
minimis
losses
do
not
result
from
"
manufacturing
operations
in
which
these
materials
are
used
as
raw
materials
or
produced
in
the
manufacturing
process".
ConocoPhillips
agrees
with
EPA's
recognition
that
the
limitation
of
this
exemption
solely
to
manufacturing
operations
is
unduly
restrictive
when
the
same
set
of
operative
facts
(
i.
e.,
effective
wastewater
treatment
systems
that
prevent
the
release
of
small
amounts
of
spilled
wastes
from
posing
a
threat
to
human
health
or
the
environment)
exists.

Response
106­
5:
EPA
acknowledges
ConocoPhilips'
support
for
these
provisions
of
the
rulemaking.

Comment
106­
6:
ConocoPhillips
supports
the
expansion
of
the
"
headworks
exemption"
to
include
types
of
listed
hazardous
wastes
other
than
commercial
chemical
products
(
i.
e.,
F­
and
Klisted
wastes).

Response
106­
6:
EPA
acknowledges
ConocoPhilips'
support
for
the
addition
of
the
F­
and
Klisted
wastes
to
the
de
minimis
portion
of
the
exemption.

Comment
106­
7:
However,
ConocoPhillips
sees
no
reason
to
expand
the
conditions
of
the
"
headworks
exemption"
for
either
manufacturing
or
non­
manufacturing
facilities
beyond
those
already
promulgated
in
40
CFR
§
261.3(
a)(
2)(
iv).

In
the
current
regulation,
§
261.3(
a)(
2)(
iv)
makes
reference
to
the
Clean
Water
Act,
as
follows:

"
if
the
generator
can
demonstrate
that
the
mixture
consists
of
wastewater
the
discharge
of
which
is
subject
to
regulation
under
either
section
402
or
section
307(
b)
of
the
Clean
Water
Act
 "

In
the
proposal,
the
following
has
been
added
at
the
end
of
§
261.3(
a)(
2)(
iv)(
D):

"
Any
manufacturing
facility
that
claims
an
exemption
for
de
minimis
quantities
of
wastes
listed
in
§
§
261.31
through
261.32,
or
any
non­
manufacturing
facility
that
claims
an
exemption
for
de
minimis
quantities
of
wastes
listed
in
subpart
D
of
this
part
must
either
have
eliminated
the
discharge
of
wastewaters
or
have
a
permit
subject
to
the
Clean
Water
Act
that
contains
limits
for,
the
constituents
for
which
each
waste
was
listed
(
in
40
CFR
261
appendix
VII)
of
this
part;
and
the
constituents
in
the
table
``
Treatment
Standards
for
Hazardous
Wastes''
in
40
CFR
268.40
for
which
each
waste
has
a
treatment
standard
(
i.
e.,
Land
Disposal
Restriction
constituents);"

This
proposed
additional
language
in
§
261.3(
a)(
2)(
iv)(
D)
is
overly
prescriptive
and
should
be
removed.
De
minimis
refers
to
contributions
of
limited
or
no
substantive
significance.
Headworks
Rule
Page
45
of
117
ConocoPhillips
urges
EPA
to
retain
the
reference
to
Clean
Water
Act
requirements
found
in
§
261.3(
a)(
2)(
iv),
and
strike
the
additional
text
listed
above
found
in
the
proposed
§
261.3(
a)(
2)(
iv)(
D).
In
other
instances
where
EPA
has
promulgated
de
minimis
exemptions
(
e.
g.,
existing
§
261.3(
a)(
2)(
iv)
and
§
279.12(
f)
(
relating
to
Used
Oil
inadvertently
discharged
to
wastewater
treatment
systems)),
EPA
saw
no
need
for
additional
conditions.

ConocoPhillips
believes
that
the
CWA
is
the
appropriate
authority
for
addressing
which
pollutants
and
parameters
are
required
to
be
identified
in
a
discharge
permit
application
and
ultimately
which
of
those
are
of
such
significance
as
to
require
a
discharge
limit.
NPDES
Application
Form
2D
(
New
Sources
and
New
Dischargers:
Application
for
Permit
to
Discharge
Process
Wastewater).
The
application
(
Page
I­
2)
requires
determination
whether
a
pollutant
will
be
present
in
a
discharge
based
on
" 
knowledge
of
the
proposed
facility's
raw
materials,
maintenance
chemicals,
intermediate
and
final
products,
byproducts...".
Lists
of
pollutants
and
parameters
to
be
considered
are
found
in
Table
2D­
2
and
Table
2D­
3.
Enforcement
to
ensure
that
appropriate
demonstrations
have
been
made
is
vested
in
CWA
regulatory
authorities.

The
same
analysis
is
applicable
to
those
facilities
subject
to
an
indirect
discharge
relationship
where
their
effluent
is
directed
to
a
publicly
owned
treatment
works
(
POTW).
In
accordance
with
EPA's
national
pretreatment
standards
program,
the
POTW
must
develop
pretreatment
limitations
for
pollutants
received
from
indirect
dischargers
that
would
pass
through
or
interfere
with
the
POTW's
operation.
Consequently,
the
only
constituent
specific
limitations
appropriate
to
the
effluent
from
the
indirect
discharger
are
those
applicable
to
compounds
that
cannot
be
managed
and
controlled
by
the
POTW.

It
is
not
appropriate
for
the
Office
of
Solid
Waste
to
prescribe
conditions
that
potentially
conflict
with
programs
administered
by
the
Office
of
Water.

The
proposal
that
the
RCRA
"
headworks
exemption"
be
conditioned
on
a
facility's
CWA
NPDES
discharge
or
POTW
pre­
treatment
permit
containing
limits
for
all
the
constituents
for
which
each
waste
was
listed
and
for
which
a
Land
Disposal
Restrictions
(
LDR)
treatment
standard
has
been
promulgated
is
overreaching
and
redundant.
It
will
add
additional
paperwork
burden
to
the
regulated
entities
but
that
burden
will
be
compounded
for
States
and
EPA
Regions
if
the
proposal
to
include
discharge
limits
for
all
the
constituents
is
enacted.

Response
106­
7:
Please
see
responses
to
comments
98­
10
and
99­
4.

Comment
106­
8:
ConocoPhillips
would
also
like
to
comment
on
the
change
of
wording
in
the
de
minimis
exemption.
In
the
proposal,
the
words
"
unscheduled,
uncontrollable,
insignificant,
and
inadvertent
releases
to
a
wastewater
treatment
system"
have
been
added
without
any
discussion
by
EPA
of
a
need
for
the
additional
qualifications.
The
regulated
community
has
been
working
with
the
current
wording
since
this
exemption
has
been
in
place
without
any
adverse
issues.
ConocoPhillips
recommends
that
these
additional
qualifiers
not
be
incorporated
into
proposed
40
CFR
§
261.3(
a)(
2)(
iv)(
D).
Headworks
Rule
Page
46
of
117
Response
106­
8:
EPA
acknowledges
ConocoPhillip's
concerns
over
the
new
words
in
the
regulatory
definition
of
de
minimis.
Please
see
our
response
to
comment
111­
1
for
further
discussion
involving
our
decision
not
to
include
"
unscheduled,"
"
uncontrollable"
and
"
insignificant"
in
the
final
regulatory
language.

Comment
106­
9:
ConocoPhillips
finds
a
conflict
with
the
language
included
in
the
proposed
at
§
261.3(
a)(
2)(
iv)(
D).
This
is
the
section
that
would
be
expanded
to
include
de
minimis
quantities
of
"
F"
and
"
K"
wastes
under
certain
circumstances,
a
modification
that
ConocoPhillips
supports.
In
the
list
of
what
is
encompassed
by
de
minimis,
is
the
following,
"
rinsate
from
empty
containers
or
from
containers
that
are
rendered
empty
by
that
rinsing".

"
Rinsates
from
empty
containers"
are
"
residues
of
hazardous
waste
in
empty
containers"
(
§
261.7)
which
are
not
subject
to
regulation
under
part
261,
and
therefore
do
not
belong
in
this
list
of
sources
of
de
minimis
loss
materials.

This
language
should
not
be
perpetuated
for
the
new
wastes
listed
in
§
261.31
and
261.32.
Since
this
discrepancy
exists
in
the
regulations
today,
EPA's
proposal
to
expand
the
applicability
provides
the
Agency
the
opportunity
to
removing
it
completely
from
§
261.3(
a)(
2)(
iv)(
D).
Only
the
language
referencing
"
rinsate
from
containers
that
are
rendered
empty
by
that
rinsing"
needs
to
be
retained
in
the
last
clause
of
§
261.3(
a)(
2)(
iv)(
D).
"
Rinsate
from
containers
that
are
rendered
empty
by
that
rinsing"
includes
both
rinsate
from
the
triple
rinsing
required
to
empty
a
container
which
held
a
discarded
commercial
chemical
product
or
chemical
intermediate
listed
in
§
261.33(
e)
(
acute
("
P")
wastes"),
as
well
any
rinsate
from
not
empty
hazardous
waste
containers
holding
a
hazardous
waste
other
than
an
acute
("
P")
waste.

Response
106­
9:
This
comment
addresses
an
issue
that
is
outside
the
scope
of
the
proposed
rulemaking.
Please
see
response
to
comment
101­
12
for
further
discussion.

Comment
106­
10:
ConocoPhillips
is
disappointed
that
EPA
once
again
did
not
propose
exemptions
for
F039
leachates
derived
from
solvent
wastes
or
F039
leachates
from
other
hazardous
waste
leachates,
even
from
captive
on­
site
landfills.
Leachate
from
the
captive
hazardous
waste
landfill
at
the
ConocoPhillips
Company
Borger
Refinery
and
NGL
Center
typically
tests
"
Not
Detected"
for
the
full
suite
of
F039
constituents.
ConocoPhillips
supports
EPA's
continued
work
to
provide
appropriate
exemptions
for
both
hazardous
and
non­
hazardous
waste
landfills
that
generate
F039,
particularly
onsite
captive
landfills,
and
will
provide
its
F039
leachate
data
to
EPA
for
consideration
in
future
rulemakings.

Response
106­
10:
EPA
acknowledges
the
commenter's
support
for
a
potential
rulemaking
addressing
leachates.
Headworks
Rule
Page
47
of
117
Comment
0028­
0107,
Beth
Connell
Comment
107­
1:
The
proposed
revision
adds
benzene
to
the
list
of
spent
solvents
that
can
be
discharged
to
a
wastewater
facility.
What
about
benzene
still
bottoms?
At
our
facility,
we
use
benzene
in
a
closed
loop
process.
Over
time,
the
benzene
picks
up
impurities
in
the
process.
Rather
than
declaring
the
benzene
solvent
stream
a
waste,
we
use
a
benzene
still
to
separate
the
impurities
and
return
the
"
clean"
benzene
back
to
the
process.
The
impurities
are
managed
as
a
benzene
still
bottoms
waste
(
F005).
The
impurities
in
the
benzene
still
bottoms
stream
are
the
same
components
that
are
currently
treated
at
our
activated
sludge
treatment
plant.
By
allowing
an
exemption
for
the
solvent
use
only,
it
discourages
the
use
of
the
benzene
still
to
continuously
recycle
the
benzene
used
in
the
process.
This
is
not
consistent
with
the
overall
goal
of
waste
minimization.
Could
the
exemption
be
revised
to
include
the
still
bottoms
provided
the
wastewater
treatment
facility
is
capable
of
treating
the
impurities
found
in
the
still
bottoms.

Response
107­
1:
EPA
did
not
consider
benzene
still
bottoms
or
still
bottoms
resulting
from
the
distillation
of
other
F­
listed
solvents
within
the
scope
of
the
proposed
headworks
rule.
Therefore,
still
bottoms
were
not
included
in
the
risk
assessment
that
was
performed
in
support
of
the
addition
of
the
spent
solvents
to
§
261.3(
a)(
2)(
iv)(
A)
and
(
B).
Due
to
concerns
regarding
constituents,
such
as
metals,
that
can
be
found
in
still
bottoms,
EPA
does
not
believe
it
is
appropriate
to
include
benzene
still
bottoms
in
the
wastewater
treatment
exemption
without
having
performed
a
risk
assessment.
EPA
notes
that
if
a
facility
recycling
benzene
wishes
to
exempt
their
benzene
still
bottoms,
they
can
apply
for
a
site
specific
delisting
for
their
still
bottoms
under
§
260.22.
Headworks
Rule
Page
48
of
117
Comment
0028­
0109,
General
Motors;
Environmental
Services
Group
Introduction:
General
Motors
(
GM)
is
pleased
to
submit
the
following
comments
in
response
to
the
Federal
Register
notice
of
April
8,
2003,
(
68
FR
17234),
"
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
("
Headworks
Exemptions");
Proposed
Rule":

Comment
109­
1:
GM
supports
and
acknowledges:
°
EPA's
consideration
of
other
regulatory
requirements,
such
as
the
Clean
Air
Act
MACT
standards
and
Clean
Water
Act
regulations
into
the
development
of
RCRA
regulations;

Response
109­
1:
EPA
acknowledges
GM's
support.

Comment
109­
2:
GM
supports
and
acknowledges:
°
EPA's
proposal
to
add
benzene
and
2­
ethoxyethanol
to
the
list
of
solvents
whose
mixtures
with
wastewater
are
exempt
from
the
definition
of
hazardous
waste;

Response
109­
2:
EPA
acknowledges
GM's
support
of
this
provision
of
the
rulemaking.

Comment
109­
3:
GM
supports
and
acknowledges:
°
EPA's
proposed
direct
monitoring
option
for
demonstrating
compliance
with
the
headworks
exemption
provided
that
mass
balance
calculations
and
predications
also
continue
to
be
allowed.

Response
109­
3:
EPA
acknowledges
GM's
support
of
this
provision
of
the
rulemaking.

Comment
109­
4:
GM
does
not
support
the
proposed
requirement
that
direct
monitoring
sampling
and
analysis
plans
(
SAPs)
be
submitted
to
and
approved
by
the
regulatory
agency;
a
SAP
should
be
maintained
onsite
for
agency
review.

Response
109­
4:
Please
see
responses
to
comments
101­
5
and
118­
6.
EPA
would
like
to
clarify
that
it
is
not
the
approval
of
the
SAP
by
the
overseeing
agency
that
is
required
for
direct
monitoring,
but
rather
confirmation
of
the
SAP's
delivery.

Comment
109­
5:
Further,
GM
proposes
that
the
sampling
frequency
reflect
significant
changes
in
the
influent
rather
than
a
mandated
schedule.

Response
109­
5:
The
Agency
disagrees
that
the
sampling
frequency
for
direct
monitoring
should
reflect
significant
changes
in
the
influent
rather
than
a
mandated
schedule.
However,
several
commenters
have
stated
that
the
current
sampling
schedule
for
direct
monitoring
may
be
overburdernsome
and
have
requested
that
we
accept
a
performance­
based
reduction
in
sampling
frequency.
The
Agency
is
interested
in
the
possibility
of
allowing
a
facility's
sampling
and
analysis
plan
to
include
a
provision
to
reduce
sampling
frequency
based
on
performance
as
long
as
the
current
compliance
standards
under
261.3(
a)(
2)(
iv)(
A)
and
(
B)
are
maintained
and
the
facility's
provisions
for
the
reduction
are
thoroughly
discussed
in
the
plan.
EPA
would
first
need
Headworks
Rule
Page
49
of
117
to
propose
the
specific
requirements
of
such
a
provision
in
order
to
allow
for
adequate
notice
and
comment.

Conclusion:
GM
supports
EPA's
efforts
in
expanding
the
headworks
exemption.
Headworks
Rule
Page
50
of
117
Comment
0028­
0110,
Bond,
Schoeneck
and
King,
PLLC
Introduction:
On
April
8,
2003,
the
Environmental
Protection
Agency
(
EPA)
published
a
proposal
(
the
Headworks
Exemption
Proposal"
or
the
"
Proposed
Amendment")
to
implement
much
needed
reforms
to
the
Headworks
Exemptions
found
at
40
C.
F.
R.
261.3(
a)(
2)(
iv).
The
Headworks
Exemptions
were
promulgated
in
1981
to
relieve
industrial
dischargers
from
unreasonably
stringent
regulation
of
wastes
derived
from
treatment
of
wastewaters
that
contain
small
amounts
of
regulated
spent
solvents.
Absent
the
availability
of
an
exemption,
the
operation
of
the
mixture
and
derived
from
rules
could
cause
all
of
the
wastewater
from
an
industrial
facility
to
be
regulated
as
F­
listed
spent
solvent
even
if
none
of
the
spent
solvent
constituents
were
detectable.

For
facilities
that
did
not
treat
their
wastewater,
the
domestic
sewage
exclusion
and
the
industrial
wastewater
discharge
exclusions
(
40
C.
F.
R.
261.4(
a)(
1)
&
(
2))
prevented
regulation
of
the
discharge
as
hazardous
waste.
If
there
were
treatment
of
the
wastewater,
however,
the
discharge
of
only
a
few
drops
of
F
­
listed
spent
solvent
in
a
wastewater
flow
of
hundreds
of
thousands
or
millions
of
gallons
per
day,
could
result
in
the
entire
flow
being
regulated
as
listed
hazardous
waste.
Any
residues
from
treatment
of
this
wastewater
would
then
be
regulated
as
listed
hazardous
waste
under
the
derived
from
rule.
This
result
clearly
was
not
justified.
In
1981
the
Agency
created
the
Headworks
Exemptions
to
avoid
characterization
of
the
many
tons
per
day
of
wastewater
treatment
sludge
generated
by
typical
industrial
wastewater
treatment
facilities
as
listed
hazardous
waste.
While
the
1981
Headworks
Exemption
provided
essential
relief,
in
many
ways
it
has
not
gone
far
enough.
The
Proposed
Amendment
is
an
important
step
to
correct
the
deficiencies
in
the
current
rule.
We
strongly
support
the
approach
outlined
in
the
Headworks
Exemption
Proposal,
but
offer
the
following
suggested
changes
to
assure
that
the
reforms
are
effective.

Comment
110­
1:
I.
The
Proposal
to
Allow
Demonstration
of
Compliance
With
the
Headworks
Exemption
Through
Monitoring
Should
Be
Adopted
Under
the
1981
Headworks
Exemption,
facilities
were
required
to
demonstrate
compliance
with
the
1
ppm
or
25
ppm
concentration
exemptions
for
spent
solvent
constituents
through
a
detailed
mass­
balance
calculation.
This
calculation
could
be
simple
for
some
facilities,
but
in
other
cases
was
extremely
difficult
and
involved.
We
have
worked
with
a
number
of
facilities
where
a
monitoring
option
could
greatly
simplify
the
process
of
demonstrating
compliance.

However,
it
is
important
to
assure
that
the
monitoring
option
is
workable.
One
concern
relates
to
the
need
to
demonstrate
a
weekly
average
concentration
under
the
monitoring
option.
Monitoring
burdens
will
be
excessive
if
facilities
are
required
to
demonstrate
that
the
weekly
concentration
of
the
solvent
constituents
in
wastewater
entering
the
headworks
remains
below
the
regulatory
thresholds.
Typically,
wastewater
discharge
limits
under
the
Clean
Water
Act
use
daily
maximum
and
monthly
average
concentrations.
To
limit
unnecessary
costs,
the
monitoring
option
should
be
based
on
no
more
than
a
monthly
average
concentration.
Headworks
Rule
Page
51
of
117
Response
110­
1:
EPA
acknowledges
the
commenter's
support
for
the
addition
of
direct
monitoring
as
a
headworks
compliance
method.
The
commenter's
suggestion
to
increase
the
compliance
period
from
a
weekly
average
to
a
monthly
average
addresses
a
provision
of
the
current
rule
not
specifically
identified
in
the
proposal
as
subject
to
possible
amendment.
EPA
stated
in
the
proposed
rule
that
it
would
not
respond
to
comments
addressing
such
provisions.
(
68
FR
17241,
April
8,
2003).

However,
several
commenters
have
requested
that
we
accept
a
performance­
based
reduction
in
sampling
frequency.
The
Agency
is
interested
in
the
possibility
of
allowing
a
facility's
sampling
and
analysis
plan
to
include
a
provision
to
reduce
sampling
frequency
based
on
performance
as
long
as
the
current
compliance
standards
under
261.3(
a)(
2)(
iv)(
A)
and
(
B)
are
maintained
and
the
facility's
provisions
for
the
reduction
are
thoroughly
discussed
in
the
plan.
EPA
would
first
need
to
propose
the
specific
requirements
of
such
a
provision
in
order
to
allow
for
adequate
notice
and
comment.

Comment
110­
2:
II.
Scrubber
Water
and
Other
Treatment
Wastes
Should
Be
Specifically
Included
In
The
Headworks
Exemption
In
1993,
we
submitted
a
request
for
interpretation
to
the
Agency
seeking
clarification
that
the
Headworks
Exemption
applied
to
wastewaters
that
contained
wastes
derived
from
treatment
of
Flisted
spent
solvents.
Unfortunately,
the
Agency
responded
that
the
derived
from
wastes,
such
as
scrubber
water,
could
not
qualify
for
the
Headworks
Exemption.
A
copy
of
our
request
for
interpretation
and
the
Agency's
response
are
attached.

We
continue
to
believe
the
1981
Headworks
Exemption
should
apply
to
scrubber
water
and
other
treatment
wastewaters
provided
the
facility
can
document
that
the
concentration
of
spent
solvent
constituents
remain
below
the
concentration
thresholds
specified
in
the
Exemption.
As
the
Agency
notes
in
the
preamble
to
the
Headworks
Exemption
Proposal,
hazardous
waste
incinerators
have
very
high
solvent
destruction
rates
and
the
scrubber
water
is
readily
treatable
in
wastewater
treatment
systems.
Therefore,
we
strongly
support
the
extension
of
the
Headworks
Exemption
to
these
waste
streams.

Response
110­
2:
EPA
acknowledges
the
commenter's
support
for
the
addition
of
scrubber
waters
derived
from
F­
listed
solvents
to
the
exemption.

Comment
110­
3:
However,
while
we
understand
from
the
preamble
to
the
Notice
of
Proposed
Rulemaking
that
EPA
intends
to
expand
the
Headworks
Exemption
to
include
scrubber
water
from
incineration
of
F­
listed
spent
solvents,
the
expanded
exemption
has
not
been
included
in
the
proposed
regulation.
To
avoid
misunderstanding,
we
feel
strongly
that
EPA
must
provide
a
clear
statement
that
the
Headworks
Exemption
will
now
be
available
for
these
wastewaters.

Section
261.3(
a)(
2)(
iv)(
G)
includes
an
express
exemption
for
"
wastewaters
derived
from
the
treatment
of
one
or
more
of
the
following
wastes
listed
in
261.32."
However,
the
F­
listed
spent
solvents
are
included
in
261.31,
not
261.32.
It
may
be
appropriate
to
revise
this
provision
to
be
a
Headworks
Rule
Page
52
of
117
general
exemption
for
incinerator
scrubber
water
and
other
treatment
wastewaters
regardless
of
the
hazardous
waste
incinerated.

Alternatively,
scrubber
water
and
other
wastewaters
derived
from
treatment
of
spent
solvents
could
be
specifically
referenced
in
sections
261.3(
a)(
2)(
iv)(
A)&(
B)
by
changing
the
regulatory
language
introducing
the
provisions
to
read:
"
One
or
more
of
the
following
spent
solvents
listed
in
261.31
and
any
wastes
derived
from
treatment
of
these
spent
solvents
 
.
"

As
a
less
desirable
alternative,
EPA
could
more
clearly
state
its
intent
to
abandon
its
prior
interpretation,
and
in
the
preamble
to
the
final
rule
state
that
the
concentration
based
exemption
does
apply
to
derived
from
wastes.
In
the
absence
of
such
a
clear
statement,
past
experience
indicates
at
least
some
states
will
refuse
to
accept
that
EPA
has
revised
its
interpretation.
Even
with
a
clear
statement
in
the
preamble,
in
the
absence
of
a
regulatory
change,
some
states
likely
will
be
unwilling
to
view
the
revision
as
justified.
This
would
particularly
be
the
case
where,
as
here,
the
preamble
discussion
addresses
the
issue
as
if
there
were
a
change
to
the
regulation,
but
no
corresponding
change
is
made
in
the
proposed
regulatory
language.

In
conclusion,
we
support
the
proposal
to
include
scrubber
water
and
other
treatment
wastewaters
within
the
scope
of
the
Headworks
Exemption.
However,
we
strongly
suggest
the
revision
be
incorporated
into
the
regulation.

Response
110­
3:
EPA
acknowledges
the
commenter's
support
of
the
rulemaking.
Even
though
specific
regulatory
text
for
this
provision
was
not
proposed,
we
expressly
stated
in
the
preamble
that
the
"
Agency
is
proposing
that
scrubber
waters
derived
from
the
combustion
of
spent
solvents
and
sent
to
a
facility's
wastewater
treatment
system
qualify
for
the
exemption
under
40
CFR
261,3(
a)(
2)(
iv)(
A)
and
(
B)."
68
FR
17243
(
April
8,
2003).
Based
on
the
rational
set
forth
in
the
preamble
to
the
proposal,
EPA
has
included
regulatory
language
under
§
261.3(
a)(
2)(
iv)(
A)
and
(
B).
Please
see
our
response
to
comment
118­
10
for
discussion
on
why
all
scrubber
waters
will
not
be
included
in
the
exemption.

Comment
110­
4:
III.
The
De
Minimis
Losses
Exemption
Should
Be
Expanded.

We
also
strongly
support
the
Agency
s
proposal
to
expand
the
exemption
for
"
de
minimis
losses"
to
include
all
"
de
minimis
losses"
and
not
just
losses
of
useful
product.
By
definition
de
minimis
losses"
are
trivial
and
unavoidable
in
even
the
best­
run
facilities.
The
distinction
between
"
de
minimis
losses"
of
useful
product
and
"
de
minimis
losses"
of
waste
materials
is
not
justified.
The
current
"
de
minimis
losses"
exemption
virtually
compels
any
facility
generating
F­
listed
spent
solvents
to
compile
a
mass
balance
calculation
of
the
concentration
of
spent
solvent
constituents
in
its
wastewater,
if
there
is
the
possibility
of
a
drop
of
spent
solvent
reaching
wastewater.
Inclusion
of
a
"
de
minimis
losses"
exemption
for
these
streams
would
greatly
simplify
compliance
for
facilities
that
do
not
deliberately
discharge
any
F­
listed
solvent
wastes.

Response
110­
4:
EPA
acknowledges
the
commenter's
support
for
this
provision
of
the
rulemaking.
Headworks
Rule
Page
53
of
117
Comment
110­
5:
We
are
concerned,
however,
with
the
requirement
that
a
discharge
limit
must
be
included
in
the
facility's
water
discharge
permit
before
the
expanded
"
de
minimis
losses"
exemption
will
apply.
In
many
cases,
no
discharge
limit
will
be
included
in
an
existing
discharge
permit
because
there
is
no
intentional
discharge
of
the
spent
solvent.
Adding
the
requirement
for
a
discharge
limit
will
put
a
facility
in
the
position
of
asking
for
unnecessary
discharge
limits
in
its
permit
or
proving
the
negative
proposition
that
there
are
no
discharges
of
listed
spent
solvents.
This
choice
is
not
necessary.
The
Agency
should
rely
on
the
State
or
federal
officials
responsible
for
issuing
water
permits
to
determine
the
pollutants
which
should
be
included
in
the
discharge
limits
in
a
permit,
and
not
force
their
decision
through
hazardous
waste
regulations.

Response
110­
5:
Please
see
response
to
comment
98­
10.

Conclusion:
In
conclusion,
we
strongly
support
the
Agency
s
proposal
to
reform
the
Headworks
Exemption
but
recommend
that
the
amendment
be
revised
to
incorporate
changes
to
address
the
issues
described
in
these
comments.
Headworks
Rule
Page
54
of
117
Comment
0028­
0111,
Bayer
CropScience
Introduction:
Bayer
CropScience
LP
(
BCS)
is
pleased
to
submit
these
comments
on
EPA's
proposed
revision
of
two
wastewater
exemptions
for
hazardous
waste
mixtures
that
appeared
in
the
Federal
Register
at
68
FR
17234
(
April
8,
2003).
BCS
researches,
develops,
manufactures
and
sells
a
broad
range
of
crop
science
products
for
the
crop
protection,
biotechnology
and
seed
markets;
the
turf
&
ornamental
and
professional
pest
management
markets;
and
the
consumer
lawn
and
garden
markets.
Bayer
CropScience,
with
its
administrative
headquarters
in
Research
Trinagle
Park,
NC,
is
a
business
area
within
the
worldwide
Bayer
Group.

Comment
111­
1:
BCS's
comments
are
limited
to
the
underlined
words
quoted
below
that
EPA
proposes
to
add
to
the
existing
de
minimus
loss
exemption
at
40
CFR
261.3(
a)(
2)(
iv)(
D):

"
A
discarded
hazardous
waste,
commercial
chemical
product,
or
chemical
intermediate
listed
in
Section
261.33
arising
from
de
minimis
losses
of
these
materials.
For
purposes
of
this
paragraph
(
a)(
2)(
iv)(
D),
de
minimis
losses
are
unscheduled,
uncontrollable,
insignificant,
and
inadvertent
releases
to
a
wastewater
treatment
system,
including
those
from
normal
material
handling
operations..."

EPA
should
not
add
these
four
qualifiers
for
two
principal
reasons:

First,
nowhere
in
the
proposed
rule
does
EPA
announce
the
addition
of
these
four
qualifiers,
explain
what
the
four
words
are
intended
to
mean,
or
explain
to
what
extent,
if
any,
they
alter
the
way
in
which
the
de
minimis
loss
exemption
has
been
interpreted
in
the
past.
This
calls
into
serious
question
whether
finalizing
the
rule
to
include
these
four
additional
qualifiers
would
comport
with
procedural
requirements
of
the
Administrative
Procedures
Act,
and
it
will
certainly
lead
to
considerable
confusion
among
the
regulated
community
and
contentious
enforcement
actions.

Second,
and
most
importantly,
these
four
qualifiers
would
appear
to
narrow
the
current
scope
of
the
de
minimis
loss
exemption
contrary
to
EPA's
original
and
long­
held
intent.
When
EPA
originally
adopted
the
de
minimis
loss
exemption,
it
recognized
two
situations
in
which
small
amounts
of
discarded
commercial
chemical
products
should
be
exempt
from
the
mixture
rule
if
mixed
with
CWA­
regulated
wastewater:
In
some
cases,
the
losses
would
be
"
unavoidable";
in
other
cases,
the
mixing
would
result
from
"
reasonable
and
efficient
practices
for
managing
these
small
volumes
of
wastes."
46
FR
at
56583/
col.
1
(
November
17,
1981).
The
qualifiers
"
uncontrollable,"
"
inadvertent"
and
"
unscheduled"
that
EPA
proposes
to
add
might
be
consistent
with
the
"
unavoidable"
situation
EPA
was
considering,
but
are
not
consistent
with
the
second
situation
where
it
might
be
reasonable
and
efficient
to
capture
de
minimis
losses
in
the
CWAregulated
wastewater
treatment
system.
Losses
that
can
be
reasonably
and
efficiently
captured
in
the
wastewater
treatment
system
often
will
not
be
"
uncontrollable,"
"
inadvertent"
or
"
unscheduled."
Headworks
Rule
Page
55
of
117
The
addition
of
the
four
qualifiers
is
also
inconsistent
with
several
of
the
specific
de
minimis
losses
EPA
intended
to
exempt
when
it
adopted
the
de
minimis
loss
exemption
in
1982,
as
shown
by
the
Federal
Register
language
below.

"
For
example,
small
amounts
of
raw
materials
are
lost
in
various
unloading
or
material
transfer
operations
(
e.
g.,
small
drippage
when
transfer
hose
lines
are
disconnected,
and
fugitive
dust
when
certain
materials
are
emptied
from
bags
or
transferred
from
bins).
Additionally,
small
amounts
of
manufactured
products
or
intermediates
are
lost
in
material
handling,
manufacturing
process
or
storage
activities
(
e.
g.,
losses
from
packing
or
pumps
being
used
to
transfer
product,
unanticipated
spills,
relief
valve
discharges,
rinsates
from
drained
or
otherwise
emptied
containers
and
purgings
associated
with
pressure
relief
or
taking
samples).
These
are
normal
losses
which
are
typically
minimized
because
the
materials
have
value
and
their
loss
creates
an
economic
penalty.
Although
these
losses
theoretically
can
be
prevented,
it
often
is
only
at
considerable
costs
which
usually
exceeds
the
cost
of
the
lost
material.

These
small
losses
of
raw
materials,
products
or
intermediates
are
often
disposed
of
by
draining
or
washing
them
into
the
wastewater
treatment
system.
This
typically
is
a
reasonable
and
practical
means
of
disposing
of
these
lost
materials.
Segregating
and
separately
managing
them
often
would
be
exceedingly
expensive
and
may
not
be
necessary
because
the
small
quantities
can
be
assimilated
and
treated
in
the
wastewater
treatment
system."

46
FR
at
56586/
col.
2
(
November
17,
1982)
(
emphasis
added).
For
example,
de
minimis
losses
from
"
unloading
or
material
transfer
operations,"
including
"
drippage"
from
disconnecting
lines
and
"
fugitive
dust"
from
product
packaging
or
material
handling,
often
result
from
scheduled
activities,
involve
predictable
not
"
inadvertent"
losses,
and
might
be
controllable
at
great
expense.
Losses
from
packing
and
pumps
being
used
to
transfer
product
often
occurs
on
a
schedule
of
transfer
operations,
and
possibly
could
be
controlled
at
great
expense.
Rinsates
from
emptied
containers
and
purgings
associated
with
taking
samples
also
are
not
"
unscheduled,"
"
inadvertent"
or
"
uncontrollable."
EPA
recognized
that
it
might
be
most
"
reasonable
and
practicable"
to
dispose
of
de
minimis
quantities
of
"
P"
and
"
U"
chemicals
in
the
wastewater
treatment
system,
and
to
do
so
consciously
by
"
draining
and
washing
them
into
the
wastewater
treatment
system."
But
the
new
proposed
language
would
appear
to
call
into
question
all
of
these
aforementioned
losses
since
they
might
be
"
unscheduled,"
"
uncontrollable,"
and
"
inadvertent."

We
understand
that
EPA
proposed
to
add
the
four
qualifiers
to
ensure
that
companies
do
not
intentionally
mix
into
the
wastewater
treatment
system
the
F
and
K
listed
wastes
that
EPA
proposes
to
add
into
the
de
minimis
loss
exemption.
Since
F
and
K
materials
are
wastes,
we
understand
that
EPA
is
concerned
that
companies
might
use
the
new
exemption
to
get
rid
of
small
amounts
of
the
wastes
by
mixing
them
in
the
wastewater
treatment
system.
In
contrast,
this
has
not
been
a
major
concern
with
respect
to
P
and
U
commercial
chemical
products
since
EPA
properly
recognized
in
1982
that
companies
would
have
economic
incentive
to
minimize
the
loss
Headworks
Rule
Page
56
of
117
of
valuable
U
and
P
commercial
chemical
products
into
their
wastewater
treatment
system.
Id.
But
unfortunately,
the
proposed
four
qualifiers
would
limit
valuable
U
and
P
raw
materials
and
products
to
the
same
extent
as
unwanted
F
and
K
wastes.
If
EPA
is
concerned
about
misuse
of
the
de
minimis
exemption
to
discard
F
and
K
wastes,
EPA
should
have
articulated
that
concern
in
the
proposal
and
sought
notice
and
comment
on
a
more
narrow
regulatory
amendment.

In
that
regard,
if
EPA
re­
proposes
language
to
address
this
narrow
concern,
it
should
consider
the
following:

"
de
minimis
losses
of
F
and
K
wastes
must
be
impracticable
to
control
and
their
mixing
into
the
wastewater
treatment
system
must
be
inadvertent."

We
believe
"
impractical
to
control"
is
a
better
qualifier
than
"
uncontrollable"
since
virtually
all
releases
are
controllable
at
some,
often
huge
expense.
The
rule
amendment
should
also
make
clear
that
mixing
of
the
F
and
K
wastes
into
the
wastewater
treatment
system
should
be
inadvertent,
as
opposed
to
the
loss
itself
being
inadvertent.
Some
F
and
K
losses
are
predictable;
it
is
their
intended
mixing
into
the
wastewater
treatment
system
that
EPA's
rules
should
discourage.
We
also
do
not
recommend
including
the
term
"
insignificant"
in
any
new
limitation,
even
one
solely
relating
to
F
and
K
wastes.
The
concept
of
de
minimis
already
covers
the
concept
of
"
insignificant."
Adding
a
new
term
"
insignificant"
suggests
a
difference,
and
would
only
cause
confusion.

Finally
we
do
not
recommend
including
the
concept
of
"
unscheduled"
in
any
amendment
to
the
de
minimis
loss
exemption.
Often
de
minimis
losses
result
from
scheduled
activities,
such
as
cleaning
of
reactor
vessels,
washing
of
equipment,
packaging,
batch
operations,
transfer
operations,
etc.
Further,
there
is
really
no
need
to
limit
de
minimis
losses
of
F
and
K
wastes
to
unscheduled
losses
so
long
as
EPA
were
to
require
that
the
losses
be
impracticable
to
control
and
that
their
mixing
in
the
wastewater
treatment
system
be
inadvertent.
In
conclusion,
the
current
scope
of
the
de
minimis
loss
exemption
has
served
well
over
the
last
23
years.
Although
BCS
supports
the
proposed
expansion
of
the
exemption
to
F
and
K
wastes
and
non­
manufacturing
operations,
we
do
not
support
the
proposed
addition
of
the
four
qualifiers,
since
they
are
inconsistent
with
the
coverage
of
the
current
exemption
for
U
and
P
commercial
chemical
product
losses.
This
proposed
change
will
greatly
confuse
the
regulated
community
and
enforcement
officials,
and
lead
to
substantial
disputes
regarding
the
scope
of
the
exemption.
If
EPA
feels
compelled
to
add
additional
qualifiers
to
the
de
minimis
loss
exemption
to
discourage
the
discharge
of
F
and
K
wastes
into
the
wastewater
treatment
system,
it
should
limit
the
rule
amendment
to
de
minimis
losses
of
F
and
K
wastes
that
are
impractical
to
control
and
that
become
mixed
inadvertently
in
the
wastewater
treatment
system.

Response
111­
1:
EPA
acknowledges
BCS'
dissenting
comments
regarding
the
proposed
addition
of
the
"
qualifiers"
to
the
regulatory
definition
of
de
minimis.
Overall,
BCS
states
that
all
four
of
the
words
be
removed
from
the
regulatory
text.
EPA
recognizes
that
the
intended
meanings
of
"
unscheduled"
and
"
uncontrollable"
can
be
misinterpreted
and
therefore
agrees
that
they
should
not
be
included
in
this
final
rule.
EPA
also
recognizes
the
redundancy
of
including
"
insignificant"
Headworks
Rule
Page
57
of
117
in
the
regulatory
definition
of
de
minimis.
Therefore,
in
the
final
rule,
"
insignificant"
also
will
not
be
included
in
the
regulatory
language.
However,
EPA
disagrees
that
facilities
will
be
confused
over
the
meaning
of
"
inadvertent."
The
inclusion
of
"
inadvertent"
in
the
regulatory
definition
of
de
minimis
reinforces
that
these
losses,
no
matter
if
a
F­,
K­,
P­
or
U­
listed
waste,
must
be
minor
and
must
result
from
normal
operating
procedures
at
well­
maintained
facilities.
The
following
responses
address
BCS'
specific
comments.

BCS
states
that
EPA
failed
to
announce
the
four
qualifiers
and
to
explain
their
intended
meanings.
EPA
disagrees
that
we
did
not
announce
the
proposed
qualifiers.
The
presence
of
"
uncontrollable,"
"
unscheduled,"
"
inadvertent"
and
"
insignificant"
in
the
proposed
regulatory
language
is
sufficient
notice
to
the
public.
Regarding
the
lack
of
explanation
for
the
meaning
of
the
words,
we
did
not
anticipate
confusion
to
occur
as
a
result
of
their
addition
to
the
regulatory
language.
Therefore,
section
III.
C.
in
the
preamble
of
today's
final
rule
provides
a
clear
definition
of
"
inadvertent."

The
commenter
also
states
that
EPA
failed
to
explain
how
these
words
will
effect
the
current
interpretation
of
the
de
minimis
exemption.
Regarding
the
remaining
additional
term
"
inadvertent,"
it
was
not
our
intent
to
alter
the
interpretation
of
the
exemption.
It
is
clearly
illustrated
in
the
preamble
of
the
original
rule
that
the
de
minimis
exemption
was
intended
for
minor
losses
resulting
from
normal
operating
procedures,
such
as
when
small
amounts
of
raw
material
are
lost
in
various
unloading
or
material
transfer
operations,
or
when
small
losses
occur
as
a
result
from
purgings
and
relief
valve
discharges.
In
addition,
the
original
preamble
states
that
it
was
not
the
Agency's
intention
for
the
exemption
to
include
losses
from
normal
operating
procedures
occurring
at
facilities
that
use
neglectful
or
careless
management
practices.
In
fact,
the
preamble
states
that
the
Agency
will
use
its
listing
authority
to
list
the
wastewaters
from
those
facilities
whose
neglectful
and
careless
management
practices
cause
such
high
losses
of
§
261.33
that
hazardous
concentrations
in
wastewaters
result.
(
46
FR
56586,
November
17,
1981).
Therefore,
"
inadvertent"
is
not
altering
the
interpretation
of
de
minimis
but
is
reinforcing
the
Agency's
original
intent
that
the
exemption
only
apply
to
those
minor
losses
resulting
from
normal
operating
procedures
at
well­
maintained
facilities.
The
Agency
believes
that
it
is
imperative
to
reinforce
that
the
minor
losses
of
waste
must
be
inadvertent
because
the
expanded
exemption
including
the
listed
wastes
that
are
not
commercial
chemical
products.
As
is
discussed
in
the
1981
preamble,
facilities
have
an
economical
incentive
to
minimize
the
loss
of
commercial
chemical
products
during
normal
operating
procedures.
Id.
This
economic
incentive
does
not
exist
for
the
F­
and
K­
listed
wastes
being
added
to
the
de
minimis
exemption.
Therefore,
it
is
imperative
that
there
is
an
understanding
that
any
large
intentional
losses
of
these
wastes
will
not
be
considered
as
de
minimis
and
accordingly,
will
not
be
exempted
under
§
261.3(
a)(
2)(
iv)(
D).

In
addition,
BCS
states
that
the
inclusion
of
"
inadvertent"
in
the
regulatory
language
will
narrow
the
scope
of
the
exemption,
claiming
that
a
loss
which
can
be
reasonably
and
efficiently
captured
in
the
wastewater
treatment
system
will
not
be
"
inadvertent."
EPA
disagrees
with
BCS'
assessment.
Our
use
of
the
term
"
inadvertent"
implies
that
the
de
minimis
loss
must
not
be
a
result
of
neglect
or
carelessness.
As
stated
in
the
1981
preamble,
small
losses
of
listed
wastes
do
occur
during
normal
operating
procedures
at
well­
maintained
facilities
because
it
is
exceedingly
Headworks
Rule
Page
58
of
117
expensive
to
prevent
such
losses.
In
addition,
EPA
recognized
that
the
segregation
and
separate
management
of
these
losses
would
also
be
exceedingly
expensive
as
well
as
unnecessary
because
wastewater
treatment
systems
would
be
capable
of
efficiently
treating
these
small
quantities
of
listed
wastes.
Id.
Our
inclusion
of
the
word
"
inadvertent"
in
the
regulatory
language
is
not
intended
to
alter
the
original
scope
of
the
exemption
as
these
small
losses
that
are
occurring
during
normal
operating
procedures
at
well­
maintained
facilities
will
remain
in
the
exemption.
Inclusion
of
the
term
"
inadvertent"
only
reinforces
that
losses
which
result
from
mismanagement,
neglectfulness
or
carelessness
during
normal
operating
procedures
are
not
included
in
the
exemption
Finally,
the
commenter
suggests
that
"
inadvertent"
is
not
consistent
with
the
examples
provided
in
the
existing
regulatory
language
as
the
examples
describe
losses
that
are
"
predictable,"
not
"
inadvertent."
As
acknowledged
in
the
1981
preamble,
well­
maintained
facilities
will
have
predictable
losses
which
can
be
prevented
but
only
at
a
considerable
cost.
Id.
The
Agency
recognizes
these
"
predictable"
losses
as
"
inadvertent"
as
long
as
they
are
occurring
during
normal
operating
procedures
at
a
facility
that
is
not
managed
in
a
neglectful
or
careless
manner.

We
disagree
with
BCS'
request
to
limit
the
qualifiers
to
only
F­
and
K­
listed
wastes.
The
universe
of
the
de
minimis
exemption
is
being
expanded
to
include
both
the
listed
wastes
in
§
261.31
and
§
261.32
and
non­
manufacturing
facilities.
Therefore,
it
is
imperative
that
those
facilities
that
do
not
have
a
history
with
the
exemption
have
a
clear
understanding
of
what
a
de
minimis
release
is
for
all
the
listed
wastes.
Headworks
Rule
Page
59
of
117
Comment
0028­
0112,
South
Carolina
Chamber
of
Commerce
Introduction:
The
South
Carolina
Chamber
of
Commerce
Environmental
Technical
Committee
(
Chamber)
represents
over
two
thousand
companies
having
facilities
in
South
Carolina.
The
Chamber
appreciates
the
opportunity
to
comment
on
the
Agency's
proposed
rule
"
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
(`
Headworks
Exemptions')"
(
68
FR
17234,
April
8,
2003).
The
current
headworks
exemption
has
proved
unworkable
at
some
of
our
facilities,
and
we
commend
the
Agency
and
support
its
proposal
to
allow
an
alternative
compliance
method
that
includes
direct
monitoring
at
the
headworks.
Our
comments
on
specific
portions
of
the
proposal
are
attached.

Comment
112­
1:
The
Chamber
Supports
the
Addition
of
Benzene
and
2­
Ethoxyethanol
to
the
List
of
Solvents
at
40
CFR
261.3(
a)(
2)(
iv)(
A)
and
(
B).

EPA
added
four
solvents­
benzene,
2­
ethoxyethanol,
2­
nitropropane
and
1,1,2trichloroethane­
to
the
F002
and
F005
categories
of
spent
solvent
wastes
in
1986.
However,
the
Agency
did
not
make
a
determination
at
that
time
of
whether
those
solvents
should
also
be
eligible
for
the
headworks
exemption
at
40
CFR
261.3(
A)
and
(
B).
We
believe
the
EPA
is
correct
in
conducting
risk
assessments
and
determining
their
suitability
for
addition
to
the
list
of
solvents
eligible
for
the
headworks
exemption.
We
support
the
addition
of
benzene
and
2­
ethoxyethanol
to
the
list
of
solvents
eligible
for
the
headworks
exemption.

Response
112­
1:
EPA
acknowledges
the
Chamber's
support
of
these
provisions
of
the
rulemaking.

Comment
112­
2:
The
Chamber
Supports
Expansion
of
the
Headworks
Exemption
to
Include
Actual
Monitoring
at
the
Headworks.

The
proposed
rule
would
allow
facilities
a
choice
of
using
direct
measurement
of
solvent
levels
at
the
headworks
or
the
current
mass
balance
demonstration
to
determine
compliance
with
the
headworks
rule
(
68
FR
17241).
The
Chamber
believes
this
new
choice
of
direct
measurement
at
the
headworks
is
a
reasonable,
much­
needed
expansion
that
will
allow
a
greater
number
of
facilities
to
responsibly
utilize
the
headworks
exemption.

Response
112­
2:
EPA
acknowledges
the
Chamber's
support
of
this
provision
of
the
rulemaking.

Comment
112­
3:
The
Chamber
agrees
that
the
Agency's
description
of
the
headworks
within
the
preamble
is
adequate.
A
formal,
codified
definition
is
neither
necessary
nor
desirable,
given
that
the
location
of
the
headworks
will
vary
from
facility
to
facility,
and
given
that
the
facility
and
its
regulating
agency
will.
have
an
understanding
of
where
the
headworks
is
for
that
facility.
We
support
the
description
that
the
headworks
".
.
.
is
the
location
at
which
final
combination
of
raw
process
wastewater
streams
typically
takes
place"
and
that
it
can
".
.
.
include
a
catch
basin
for
industrial
wastewaters,
a
pump
station
outfall,
equalization
tank,
or
some
other
main
wastewater
collection
area
that
exists
in
which
transport
of
process
wastewaters
stops
and
chemical
or
Headworks
Rule
Page
60
of
117
biological
treatment
begins."(
68
FR
17242)
Though
the
location
of
the
headworks
varies
among
our
facilities,
there
is
no
confusion
as
to
just
where
it
is
at
a
given
facility;
the
location
is
clearly
understood
by
all
relevant
parties.

Response
112­
3:
EPA
acknowledges
the
Chamber's
support
of
the
informal
headworks
definition.

Comment
112­
4:
Many
of
our
member
facilities
are
subject
to
NESHAP
and
NSPS
standard
sunder
the
Clean
Air
Act
(
CAA),
and
we
agree
with
EPA
that
all
the
new
CAA
regulations
promulgated
since
1990
address
the
1980
concerns
about
volatilization
of
solvents
(
intentional
or
otherwise).
The
industrial
wastewater
collection,
conveyance,
and
treatment
facilities
handling
the
F001­
F005
constituents
either
are,
or
soon
will
be,
subject
to
Maximum
Achievable
Control
Technology
(
MACT)
standards
for
hazardous
air
pollutants
(
HAPs)
under
the
40
CFR
Part
63
standards.
Many
of
the
process
units
generating
wastewaters
containing
these
constituents
are
now
subject
to
one
of
a
number
of
MACT
source
category
standards.
Wastewaters
brought
in
from
off­
site
and
treated
in
these
systems
are
subject
to
the
Off­
Site
Waste
and
Recovery
Operations
MACT
standard.
All
of
these
standards
address
air
emissions
of
HAPs
from
the
process
and
maintenance
wastewaters
generated
by
the
affected
manufacturing
process
units
and
ensure
that
the
maximum
achievable
control
technology,
as
defined
in
the
Clean
Air
Act,
is
applied.
Additionally,
these
MACT
standards
are
followed
by
a
program
called
"
Residual
Risk"
under
section
112(
f)
of
the
Clean
Air
Act
to
provide
an
ample
margin
of
safety
for
protection
of
public
health.
This
is
an
appropriate
time
for
expanding
this
exemption
to
allow
direct
measurement
at
the
headworks
to
provide
a
reliable
compliance
method
and
to
ensure
the
applicability
of
the
exclusion
for
individual
facilities.

Response
112­
4:
EPA
acknowledges
the
Chamber's
support
of
these
provisions
of
the
rulemaking.

Comment
112­
5:
Cost
of
Analyses
with
Direct
Monitoring
May
Be
Overburdensome
for
Facilities
with
Low
Levels
of
Solvent
in
Influent.

To
demonstrate
compliance
under
the
direct
monitoring
option,
a
facility
would
need
to
develop
a
site­
specific
sampling
and
analysis
plan
that
demonstrates
compliance
with
the
weekly
average
standards
set
for
the
appropriate
solvent(
s).
This
plan
must
include
the
sampling
frequency
and
methodology,
as
well
as
other
information.
The
requirement
to
meet
a
weekly
average
suggests
at
least
one
or
two
analyses
per
week.

The
Chamber
suggests
that
if
a
given
facility
can
demonstrate
compliance
with
the
exemption
using
direct
monitoring
for
some
baseline
period
of
time,
such
as
six
months,
it
should
then
be
able
to
test
on
a
less
frequent
basis.
We
advocate
no
less
frequent
than
once
per
month
(
i.
e.,
demonstrate
compliance
on
a
weekly
average
basis
one
week
out
of
each
month).
If
at
any
point
in
time
after
going
to
a
less
frequent
sampling
calendar
the
facility
fails
to
qualify
for
the
exemption,
then
a
weekly
average
is
again
compulsory
for
a
minimum
six­
month
period.
For
a
facility
that
consistently
measures
below
the
regulatory
limit,
this
would
allow
the
resources
Headworks
Rule
Page
61
of
117
associated
with
the
frequent
analyses
to
be
better
utilized.

Response
112­
5:
Please
see
our
response
to
comment
116­
5.

Comment
112­
6:
The
Chamber
Supports
the
Exemption
of
Scrubber
Water
Derived
from
Solvent
Combustion.

Scrubber
blowdown
water
is
generated
at
some
facilities
that
have
on­
site
incinerators.
When
such
water
is
designated
as
hazardous,
it
is
primarily,
or
in
some
cases
exclusively,
because
of
the
incineration
of
spent
solvents.
Because
of
the
derived­
from
rule,
the
scrubber
water
carries
the
F­
code(
s)
of
the
spent
solvent
streams
that
are
incinerated,
and
such
code(
s)
carry
over
to
both
the
combined
influent
wastewater
stream
being
treated
and
the
resultant
biosludge.
This
derived­
from
designation
of
the
scrubber
water
negates
the
use
of
the
headworks
exemption,
because
the
headworks
exemption
only
applies
to
"
normal
losses"
of
spent
solvents
from
manufacturing
operations
and
not
from
wastes
that
are
already
separated
from
the
wastewaters
or
that
had
been
removed
from
the
process
previously
(
68
FR
17242).

The
Chamber
believes
the
exemption
of
scrubber
waters
derived
from
solvent
combustion
is
justified.
We
do
suggest
that
EPA
incorporate
this
exemption
into
the
regulatory
code,
rather
than
relying
solely
on
its
intended
interpretation
within
the
preamble
of
the
rule.
This
will
avoid
any
potential
misinterpretation
and
provide
a
greater
comfort
level
to
facilities
using
the
expanded
exemption
that
do
have
scrubber
waters
from
incinerators
treating
spent
solvent
wastes.

Response
112­
6:
EPA
acknowledges
the
commenter's
support
of
the
rulemaking.
Even
though
specific
regulatory
text
for
this
provision
was
not
proposed,
we
expressly
stated
in
the
preamble
that
the
"
Agency
is
proposing
that
scrubber
waters
derived
from
the
combustion
of
spent
solvents
and
sent
to
a
facility's
wastewater
treatment
system
qualify
for
the
exemption
under
40
CFR
261,3(
a)(
2)(
iv)(
A)
and
(
B)."
68
FR
17243
(
April
8,
2003).
Based
on
the
rational
set
forth
in
the
preamble
to
the
proposal,
EPA
has
included
regulatory
language
under
§
261.3(
a)(
2)(
iv)(
A)
and
(
B).

Comment
112­
7:
The
Chamber
also
requests
that
the
scrubber
water
exemption
be
extended
to
de
minimus
quantities
of
U­
and
P­
wastes
listed
for
toxicity.
The
U­
wastes
listed
for
ignitability
lose
that
characteristic
after
treatment
and
thus
the
U­
codes
for
those
wastes
do
not
carry
through.
In
order
to
use
the
expanded
headworks
exemption
to
allow
actual
monitoring
at
the
headworks
and
to
exempt
scrubber
waters
resulting
from
the
incineration
of
spent
solvent
(
F­
listed)
wastes,
incineration
of
the
U­
and
P­
wastes
that
are
listed
for
toxicity
would
have
to
be
avoided.
The
actual
proportion
of
the
overall
U­
or
P­
stream
that
is
chemical
material
compared
to
packaging
material
involved
with
lab
waste
is
very
low.
With
greater
than
99.99%
organics
destruction,
incineration
is
the
best
way
to
manage
these
materials
that
are
U­
or
P­
listed
for
toxicity.

The
rationale
for
exempting
de
minimis
quantities
of
U­
and
P­
wastes
from
the
definition
of
a
solid
waste
(
40
CFR
261.3(
a)(
2)(
iv)(
D)),
the
rationale
for
expanding
the
de
minimis
exemption
to
Headworks
Rule
Page
62
of
117
F­
and
K­
listed
wastes,
and
the
above­
discussed
rationale
for
allowing
scrubber
waters
containing
what
is
known
to
be
minute
quantities
of
F­
listed
wastes
to
be
eligible
for
the
headworks
exemption
could
be
applied
as
well
to
equally
minute
quantities
of
U­
and
P­
wastes
in
scrubber
waters.
The
regulations
are
unfortunately
constructed
such
that
the
de
minimis
exemption
applies
only
to
minor,
inadvertent
releases
of
waste
to
a
wastewater
treatment
system
from
normal
manufacturing
operations.
Minute
quantities
of
derived­
from
U­,
P­,
K­
or
F­
wastes
in
scrubber
water
going
to
WWT,
however,
are
exactly
analogous
to
de
minimis
quantities
of
those
same
chemicals
going
to
WWT
from
manufacturing
operations
in
terms
of
treatability.
The
combination
of
treatment
in
an
incinerator
plus
subsequent
treatment
of
any
remaining
residues
of
U­
or
P­
wastes
in
the
WWT
system
poses
no
threat
to
human
health
or
the
environment.

Response
112­
7:
EPA
is
not
persuaded
by
the
commenter's
arguments
that
scrubber
waters
derived
from
U­,
P­,
K­
and
other
F­
listed
wastes
should
be
included
in
the
de
minimis
exemption.
EPA's
proposal
discussed
expanding
the
de
minimis
exemption
to
facilities
other
than
manufacturing
facilities
and
discussed
expanding
the
type
of
wastes
that
could
qualify
for
the
exemption.
The
proposal
did
not
discuss
the
possibility
of
expanding
the
de
minimis
exemption
to
systematic
discharges
of
small
amounts
of
waste
to
a
wastewater
treatment
system.
Since
originally
adopted
in
1981,
the
de
minimis
exemption
has
removed
from
regulation
small
amounts
of
listed
wastes
that
are
inadvertently
and
often
unavoidably
lost
under
normal
material
handling
operations
at
well­
maintained
facilities.
The
systematic
release
of
scrubber
waters
into
the
wastewater
system
advocated
by
the
commenter
would
neither
be
inadvertent
or
unavoidable
as
the
scrubber
water
is
a
segregated
wastewater
stream
at
its
point
of
generation.
Allowing
systematic
releases
to
come
within
the
de
minimis
exemption
would
be
a
fundamental
change
in
how
the
de
minimis
exemption
operates
and
arguably
would
require
additional
notice
and
comment
to
adopt.

In
addition,
the
Agency
is
not
exempting
scrubber
waters
derived
from
the
other
listed
wastes
under
§
261.3(
a)(
2)(
iv)(
A)
and
(
B)
or
under
a
separate
"
scrubber
waters"
exemption.
Please
see
our
response
to
comment
118­
10
for
further
discussion
as
to
why
these
scrubber
waters
are
not
being
included
in
an
exemption.

Comment
112­
8:
The
Chamber
Supports
Exempting
Leachate
Derived
from
Solvent
Wastes
and
Also
an
Exemption
for
Non­
solvent
Leachate.

EPA
discusses
in
the
preamble
(
68
FR
17243)
the
suggested
revision
that
F039
landfill
leachate
resulting
from
the
disposal
of
more
than
one
listed
waste
under
40
CFR
part
261,
subpart
D
be
exempted
under
the
headworks
proposal.
Such
revision
would
be
limited
to
leachate
derived
from
landfills
accepting
only
F00l­
F005
spent
solvent
hazardous
wastes
and
no
other
listed
wastes.
EPA
does
not
propose
this
"
solvent­
only
leachate"
exemption
at
this
time,
because
it
"
does
not
have
sufficient
data
concerning
the
variability
of
these
leachates."
(
68
FR
17243)
Rather,
the
agency
considers
the
leachate
exemption
discussion
an
Advanced
Notice
of
Proposed
Rulemaking
(
ANPRM).
EPA
also
discusses
the
potential
option
of
proposing
an
exemption
for
"
other
types
of
leachate",
i.
e.,
non­
solvent
leachate,
that
would
most
likely
also
carry
the
F039
waste
code.
The
Chamber
supports
both
of
these
exemptions,
and
encourages
the
Agency
to
continue
work
on
a
Headworks
Rule
Page
63
of
117
proposal
that
would
allow
those
exemptions.

However,
the
Chamber
disagrees
with
the
Agency's
discussion
that
compares
leachate
derived
from
hazardous
waste
landfills
with
that
derived
from
nonhazardous
waste
landfills.
EPA
states
that
"
hazardous
waste
landfill
leachate
contained
a
greater
number
of
constituents
than
non­
hazardous
waste
landfill
leachate,
and
the
constituents
found
in
both
hazardous
and
nonhazardous
waste
landfill
leachate
generally
were
present
in
hazardous
waste
landfill
leachate
at
concentrations
an
order
of
magnitude
higher
than
those
found
in
non­
hazardous
waste
landfill
leachate."
(
68
FR
17243)
In
reality,
however,
the
number
of
potential
constituents
in
leachate
from
a
nonhazardous
landfill,
such
as
a
municipal
landfill,
is
likely
to
be
much
greater
than
the
number
found
in
leachate
from
a
hazardous
landfill
because
of
the
greater
diversity
of
materials
placed
in
many
nonhazardous
landfills.

Response
112­
8:
EPA
acknowledges
the
commenter's
support
for
a
potential
rulemaking
addressing
leachates.
EPA
also
notes
that
the
statement
regarding
the
number
of
constituents
in
hazardous
waste
landfill
leachate
is
based
on
data
gathered
to
establish
technology­
based
effluent
limitations
guidelines
and
standards
for
landfills
(
65
FR
3007,
January
19,
2000)
and
was
therefore
designed
to
be
comparable.
The
Agency
analyzed
all
wastewater
samples
that
it
collected
for
the
study
for
the
same
list
of
constituents
regardless
of
whether
the
landfill
was
considered
hazardous
or
non­
hazardous.

Comment
112­
9:
The
Chamber
Supports
Expanding
the
De
Minimis
Exemption
but
Believes
the
Conditions
for
De
Minimis
Losses
of
F­
and
K­
Wastes
to
Be
Excessive.

EPA
is
proposing
to
expand
the
de
minimis
exemption
at
40
CFR
26l.
3(
a)(
2)(
iv)(
D)
which
currently
exempts
small
amounts
of
P­
and
U­
listed
wastes
lost
to
a
wastewater
treatment
system
from
manufacturing
operations.
This
expansion
would
allow
de
minimis
amounts
of
F­
and
K­
listed
wastes
released
to
a
facility's
WWT
system
to
be
exempt
from
regulation
when
arising
from
losses
during
manufacturing
operations.

The
Chamber
supports
this
expansion
of
de
minimis,
however,
we
believe
the
Agency
has
attached
excessive
conditions
to
the
F­
and
K­
wastes
before
de
minimis
can
apply.
We
do
not
believe
it
is
essential
to
have
each
and
every
chemical
for
which
the
waste
was
listed
to
be
specifically
named
in
the
permit
with
a
permit
limit.
Through
the
NPDES
permitting
process­
the
applicable
regulations,
the
permit
writer,
EPA
oversight
and
public
participation­
it
is
finally
determined
which
parameters
are
necessary
for
the
final
effluent
monitoring,
in
addition
to
biomonitoring
and
other
monitoring.

We
believe
the
NPDES
permitting
process
is
a
thorough
one,
and
as
long
as
any
chemicals
for
which
an
F­
or
a
K­
waste
are
listed
were
considered
during
that
process,
it
is
unnecessary
to
re­
open
the
permit
to
allow
inclusion
of
a
monitoring
parameter
for
one
or
more
chemicals.

The
Chamber
requests
that
the
Agency
revise
its
proposed
regulatory
language
in
261.3(
a)(
2)(
iv)(
D)
for
any
manufacturing
facility
the
claims
an
exemption
for
de
minimus
Headworks
Rule
Page
64
of
117
quantities
of
wastes
listed
in
261.31
through
261.32,
or
any
non
manufacturing
facility
that
claims
an
exemption
for
de
minimis
quantities
of
wastes
listed
in
subpart
D
of
this
part
must
.
.
have
included
in
its
Clean
Water
Act
permit
application
all
constituents
for
which
each
waste
was
listed
(
in
40
CFR
261
appendix
VII
including
any
of
those
constituents
for
which
a
treatment
standard
exists
in
the
table
`
Treatment
Standards
for
Hazardous
Wastes'
in
40
CFR
268.40
(
i.
e.,
Land
Disposal
Restriction
constituents)
so
that
consideration
may
be
given
and
a
decision
made
regarding
whether
or
not
a
permit
limit
is
needed
for
each
of
those
constituents.

Response
112­
9:
EPA
acknowledges
the
Chamber's
support
for
the
expansion
of
the
de
minimis
exemption.
Please
see
response
to
comment
98­
10.

Comment
112­
10:
The
Chamber
Disagrees
with
the
Expanded
Definition
of
a
De
Minimis
Loss
at
Proposed
261.3(
a)(
2)(
iv)(
D)

The
proposed
code
for
40
CFR
261.3(
a)(
2)(
iv)(
D)
has
new
text
that
reads:

...
de
minimis
losses
are
unscheduled,
uncontrollable,
insignificant,
and
inadvertent
releases
to
a
wastewater
treatment
system,
including
those
from
normal
material
handling
operations
.
.
.

The
Chamber
does
not
support
this
new
language
that
attempts
to
more
narrowly
define
a
de
minimis
loss.
In
our
opinion,
this
adds
an
intolerable
level
of
uncertainty
for
the
regulated
community,
and
it
opens
the
door
for
differing
interpretations
by
EPA
enforcement
staff.
In
addition,
the
very
fact
that
these
losses
are
de
minimis
and
not
subject
to
regulation
indicates
the
Agency
is
not
concerned
with
their
"
control."
That
is,
the
Agency
recognizes
that
letting
such
small
quantities
of
material
go
to
a
facility's
wastewater
treatment
system
is
"
not
likely
to
have
a
significant
effect
upon
that
system,
the
quality
of
facility
effluent
discharges,
solid
wastes
generated,
occupational
safety
and
health,
and
human
health
and
the
environment."
(
68
FR
17244)
Thus,
it
is
not
necessary
or
required
to
"
control"
the
discharge
of
these
de
minimis
quantities
of
material
to
a
wastewater
treatment
system.

The
Chamber
objects
to
the
inclusion
of
the
new
words
to
the
definition
of
de
minimis
because
their
addition
results
in
an
internally
inconsistent
definition.
For
example,
two
of
the
new
words,
uncontrollable
and
inadvertent,
are
inconsistent
with
the
regulatory
language
that
cites
examples
of
"
sample
purgings"
and
"
rinsing
and
cleaning
of
personal
safety
equipment"
as
being
de
minimis."
These
activities
are
always
intentional,
and
usually
controllable.

The
expanded
definition
of
de
minimus
is
not
included
in
the
preamble
to
the
proposal,
therefore
the
regulated
community
cannot
know
EPA's
intent
for
including
these
new
words.
The
key
language
of
the
de
minimus
exception
was
promulgated
with
the
RCRA
regulations
in
1980.
At
that
time,
it
was
well
understood
by
all
parties
what
this
verbal
formula
meant.
To
insert
new
words
in
that
formula,
especially
when
they
conflict
with
phrases
that
have
long
been
a
part
of
the
formula,
would
create
unnecessary
confusion
as
to
what
type
of
change
was
intended.
The
inclusion
of
the
new
words
is
not
consistent
with
the
context
of
the
overall
definition
of
de
Headworks
Rule
Page
65
of
117
minimus.
The
new
words
in
the
definition
of
de
minimus
are
of
a
limiting
nature
and
thus
make
the
definition
more
stringent.
However,
in
the
preamble
on
page
17246,
EPA
specifically
states
that
the
proposed
changes
are
less
stringent
than
current
federal
requirements,
and
therefore
delegated
states
are
not
required
to
adopt
the
changes.
Therefore,
the
inclusion
of
the
new
words
is
inconsistent,
arbitrary,
and
misleading.
For
these
reasons,
we
urge
the
Agency
to
leave
the
language
regarding
the
definition
of
de
minimus
in
40
CFR
261.3(
a)(
2)(
iv)(
D)
unchanged.

Response
112­
10:
EPA
acknowledges
The
Chamber's
concerns
over
the
new
words
in
the
regulatory
definition
of
de
minimis.
Please
see
our
response
to
comment
111­
1
for
further
discussion
involving
our
decision
not
to
include
"
unscheduled,"
"
uncontrollable"
and
"
insignificant"
in
the
final
regulatory
language.
Headworks
Rule
Page
66
of
117
Comment
0028­
0113,
Celanese
Chemicals
Introduction:
Celanese
appreciates
the
opportunity
to
comment
on
the
USEPA's
proposal
to
amend
the
"
de
minimis"
and
spent
solvent
exceptions
to
the
mixture
rule,
as
proposed
at
68
Fed.
Reg.
17234
(
April
8,
2003),
Docket
ID
Number
RCRA­
2002­
0028.
Enclosed
are
an
original
and
two
copies
of
our
comments.
In
these
comments,
we
focus
on
(
1)
the
changes
to
the
definition
of
the
"
de
minimis"
and
(
2)
the
requirement,
in
the
direct
measurement
method
of
the
solvent
exception,
that
facilities
with
more
than
one
source
of
a
chemical
(
one
of
which
is
from
a
spent
solvent
source)
must
assume
all
of
the
measured
amount
of
the
chemical
is
from
the
spent
solvent
source.

Comment
113­
1:
I.
USEPA
should
not
adopt
the
changes
to
the
definition
of
the
term
"
de
minimis".

Celanese
objects
to
the
proposed
language
changes
to
the
definition
of
"
de
minimis."
In
the
proposal,
USEPA
sets
out
the
actual
regulatory
language
of
the
proposed
changes.
In
the
proposed
regulatory
language,
see
68
Fed.
Reg.
at
page
17249,
the
definition
of
"
de
minimis"
is
set
out
as
follows:

For
purposes
of
this
paragraph
(
a)(
2)(
iv)(
D)
de
minimis
losses
are
unscheduled,
uncontrollable,
insignificant
and
inadvertent
releases
to
a
wastewater
treatment
system,
including
those
from
normal
material
handling
operations
(
e.
g.,
spills
from
the
unloading
or
transfer
of
materials
from
bins
or
other
containers,
leaks
from
pipes,
valves
or
other
devices
used
to
transfer
materials);
minor
leaks
process
equipment,
storage
tanks
or
containers,
leaks
from
well
maintained
pump
packings
and
seals,
sample
purgings;
relief
device
discharges;
discharges
from
safety
showers
and
rinsing
and
cleaning
of
personal
safety
equipment;
and
rinsate
from
empty
containers
or
from
containers
that
are
rendered
empty
from
that
rinsing.

Definition
of
"
de
minimis"
at
68
Fed.
Reg.
at
page
17249
(
April
8,
2003)
(
underlines
added).

In
the
proposed
regulatory
language,
the
above
underlined
words:
"
unscheduled,
uncontrollable,
insignificant
and
inadvertent"
have
been
added
to
the
definition
of
"
de
minimis"
that
currently
exists
at
paragraph
40
CFR
261.3(
a)(
2)(
iv)(
D).

Celanese
objects
to
the
insertion
of
these
words
"
unscheduled,
uncontrollable,
insignificant
and
inadvertent"
(
hereinafter
"
the
new
words")
to
the
definition
of
"
de
minimis"
at
40
CFR
261.3
(
a)(
2)(
iv)(
D)
for
several
reasons
that
are
discussed
below.
Celanese
asserts
that
USEPA
should
not
include
the
new
words
in
the
definition
of
de
minimis.

A.
USEPA
has
not
provided
the
required
notice
to
the
regulated
community
of
its
intent
to
make
changes
to
the
definition
of
"
de
minimis."

Celanese
objects
to
the
inclusion
of
the
new
words
because
USEPA
has
not
given
proper
notice
Headworks
Rule
Page
67
of
117
of
the
proposed
inclusion
of
these
words
to
the
regulated
community.
The
inclusion
of
these
new
words
is
not
discussed
or
even
mentioned
in
the
preamble
to
the
proposal,
nor
are
the
new
words
themselves
highlighted
in
the
actual
proposed
language.
The
new
words
simply
appear
in
the
definition
with
no
notice,
warning
or
explanation.
This
makes
it
difficult
to
ensure
that
all
affected
parties
will
take
note
of
the
change
and
provide
any
pertinent
comments.
Also,
the
definition
at
261.3
(
a)(
2)(
iv)(
D)
applies
not
only
to
the
chemicals
this
proposal
would
add
to
the
de
minimis
exception
(
i.
e.,
those
chemicals
listed
in
261.31
and
.32)
but
it
also
applies
to
those
chemicals
already
subject
to
the
de
minimis
exception
(
i.
e,
those
listed
at
261.33).
However,
the
regulated
community
is
given
no
notice
of
USEPA's
intent
to
make
any
change
to
the
parameters
of
the
exception
for
commercial
chemical
products
listed
at
261.33.
The
new
words
that
affect
the
definition
of
de
minimis
for
261.33
listed
chemicals
simply
appear
without
any
mention
of
any
changes
to
the
de
minimis
exception
for
261.33
listed
chemicals.

Further,
because
USEPA
provides
no
discussion
of
the
surprise
inclusion
of
these
new
words,
the
regulated
community
cannot
know
USEPA's
intent
for
including
the
new
words,
which
makes
it
difficult
to
provide
meaningful
comment
on
the
inclusion.
This
legally
insufficient
notice
is
more
than
enough
reason
to
not
adopt
the
new
words
in
the
definition
of
"
de
minimis."

B.
The
definition
of
"
de
minimis"
is
internally
inconsistent
with
the
inclusion
of
the
new
words
and
creates
unnecessary
confusion
regarding
the
meaning
of
a
term
that
has
been
in
use
without
significant
controversy
for
more
than
20
years.

Celanese
objects
to
the
inclusion
of
the
new
words
to
the
definition
of
"
de
minimis"
because
their
addition
results
in
an
internally
inconsistent
definition.
For
example,
three
of
the
new
words,
unscheduled,
uncontrollable
and
inadvertent,
are
inconsistent
with
the
included
examples
of
"
sample
purgings"
and
"
rinsing
and
cleaning
of
personal
safety
equipment."
Sample
purgings
are
always
intentional,
and
thus
cannot
be
"
inadvertent."
The
rinsing
and
cleaning
of
personal
safety
equipment
is
likewise
intentional,
thus
the
cleaning
of
personal
safety
equipment
cannot
be
inadvertent.
Sample
purgings
and
the
rinsing
and
cleaning
of
personal
safety
equipment
are
also
usually
controllable
and
are
often
scheduled.
Thus
it
is
internally
inconsistent
and
senseless
to
include
the
terms
unscheduled,
uncontrollable
and
inadvertent
into
a
definition
that
has
for
over
20
years
contained
as
examples
sample
purgings
and
personal
safety
equipment
rinsing.
The
term
"
insignificant"
is
little
more
than
a
loose
translation
of
the
Latin
de
minimis
and
adds
nothing
but
the
potential
for
confusion
to
the
definition.
Therefore
the
inclusion
of
the
new
words
should
not
be
adopted
since
they
do
not
make
sense
in
the
context
of
the
entire
definition.

The
key
language
of
the
de
minimis
exception
was
promulgated
with
the
first
round
of
RCRA
regulations
in
1980.
Both
the
regulated
community
and
the
agencies
responsible
for
implementing
RCRA
long
ago
established
a
working
understanding
of
what
this
verbal
formula
means.
Indeed,
when
it
was
necessary
to
amend
the
land
disposal
regulations
to
include
a
de
minimis
exception,
EPA
wisely
stuck
with
essentially
the
same
well­
established,
well­
understood
verbal
formula
that
it
had
first
published
in
1980.
To
insert
some
new
words
in
that
formula,
especially
when
they
conflict
on
their
face
with
phrases
that
have
long
been
a
part
of
the
formula,
would
create
unnecessary
confusion
as
to
what
type
of
change
was
intended.
All
of
this
would
occur
without
Headworks
Rule
Page
68
of
117
any
explanation
in
the
preamble
as
to
why
there
was
a
need
for
change
or
what
was
intended
to
be
accomplished
by
the
change.

The
existing
verbal
formula
for
de
minimis
has
worked
well
and
we
respectfully
suggest
that
the
prudent
course
of
action
here
is
to
follow
the
old
adage,
"
If
it's
not
broken,
don't
fix
it."

C.
The
inclusion
of
the
new
words
appears
to
make
the
definition
of
"
de
minimis"
more
stringent,
despite
statements
to
the
contrary
in
the
preamble.

The
inclusion
of
the
new
words
in
the
definition
of
"
de
minimis"
appears
to
make
the
definition
more
stringent.
The
words
being
added
to
the
definition
do
not
provide
a
more
expansive
version
of
the
de
minimis
exception.
Rather,
because
these
words
are
of
a
limiting
nature,
they,
in
effect,
are
placing
more
stringent
conditions
on
the
exception.
Thus,
the
new
definition
results
in
a
more
stringent
regulation.
And
yet,
in
the
preamble
at
page
17246,
in
the
discussion
regarding
whether
delegated
states
are
required
to
adopt
the
new
proposal,
the
USEPA
specifically
states
that
the
proposed
changes
are
less
stringent
than
current
Federal
requirements,
and
therefore
delegated
states
are
not
required
to
adopt
the
changes.
The
addition
of
limiting
conditions
to
the
existing
de
minimis
exception
results
in
a
more
stringent
regulation,
and
this
is
directly
contradictory
to
the
statement
in
the
preamble
that
the
proposal
is
less
stringent.
Therefore,
the
inclusion
of
the
new
words
is
inconsistent,
arbitrary,
and
misleading.

For
all
the
reasons
set
out
herein
and
because
USEPA
has
provided
no
reason
or
explanation
for
including
the
new
words,
Celanese
asserts
that
USEPA
should
not
adopt
the
addition
of
the
words
"
unscheduled,
uncontrollable,
insignificant
and
inadvertent"
to
the
definition
of
"
de
minimis"
at
40
CFR
261.3(
a)(
2)(
iv)(
D).

Response
113­
1:
EPA
acknowledges
Celanese's
concerns
with
the
new
words
in
the
regulatory
definition
of
de
minimis.
Please
see
our
response
to
comment
111­
1
for
further
discussion
involving
our
decision
not
to
include
"
unscheduled,"
"
uncontrollable"
and
"
insignificant"
in
the
final
regulatory
language.

Comment
113­
2:
II.
The
requirement
that
facilities
with
multiple
sources
of
a
chemical,
one
of
which
is
from
a
spent
solvent
source,
should
count
all
of
the
measured
amount
of
the
chemical
as
spent
solvent
is
overly
conservative
and
should
be
modified.

In
the
preamble
to
the
proposed
new
direct
measurement
method
of
compliance
for
the
spent
solvent
exception,
the
Agency
states
the
following:

Use
of
this
method
also
means
that
the
measured
level(
s)
of
the
chemical(
s)
at
the
headworks
may
not
exceed
the
total
regulatory
level,
regardless
of
its
(
or
their)
origin
in
the
process,
as
long
as
some
of
it
(
or
them)
has
been
used
as
a
"
solvent".
Therefore,
direct
measurement
could
overstate
the
amount
of
solvent(
s)
if
the
chemical(
s)
were
used
at
the
facility
in
other
applications
(
e.
g.,
impurity
in
other
feedstocks,
production
component,
reaction
byproduct,
etc.)
Facilities
that
wish
to
Headworks
Rule
Page
69
of
117
take
advantage
of
the
direct
monitoring
approach
must
report
the
entire
concentration
of
the
chemical
in
question
if
any
of
it
was
used
as
a
solvent.
68
Fed.
Reg.
at
17241.

Celanese
believes
this
requirement
to
count
all
of
the
measured
chemical
as
spent
solvent,
simply
because
one
source
is
from
a
spent
solvent
source,
is
overly
broad
and
overly
conservative.
This
requirement
will
likely
result
in
no
facility
with
multiple
sources
being
able
to
take
advantage
of
the
direct
measurement
method
even
though
those
facilities
certainly
know,
through
process
knowledge,
that
portions
of
the
measured
chemical
are
not
from
spent
solvent
sources.
Celanese
sees
no
discernable
benefit
to
the
environment
from
this
requirement,
since
a
wastewater
treatment
facility
that
has
multiple
sources
of
the
chemical
is
fully
acclimated
to
the
chemical
and
thus
can
fully
treat
the
chemical
regardless
of
its
source
with
no
harm
to
the
environment.
Therefore,
the
agency
should
not
impose
this
requirement,
but
rather
should
allow
process
knowledge
to
be
used
to
discount
the
quantities
of
the
chemical
that
are
not
from
spent
solvent
sources.

We
recognize
that
the
use
of
process
knowledge
to
discount
the
non­
spent
solvent
sources
may
be
difficult
to
enforce.
Therefore,
as
one
possible
solution
to
this
concern,
Celanese
proposes
that
the
Agency
allow
multiple
source
facilities
to
use
a
monthly
averaging
direct
measurement
method.
Under
this
option,
multiple
source
facilities
would
still
be
subject
to
the
applicable
limit
i.
e.,
1
ppm
or
25
ppm
depending
upon
the
chemical)
and
all
the
measured
chemical
would
be
counted
towards
the
average,
but
facilities
would
be
allowed
to
meet
the
limit
using
a
monthly
average,
rather
than
just
weekly.
Allowing
for
monthly,
rather
than
weekly,
averaging
will
help
to
blunt
the
impact
of
requiring
that
all
of
the
measured
chemical
is
from
spent
solvent
sources.
Celanese
realizes
this
may
not
help
all
multiple
source
facilities,
but
we
believe
it
will
take
away
some
of
the
burden
of
the
overly
conservative
requirement,
while
still
ensuring
there
is
no
detriment
to
the
environment.
Celanese
appreciates
the
opportunity
to
submit
these
comments
on
USEPA's
proposed
changes
to
the
"
de
minimis"
and
spent
solvent
exceptions.

Celanese
AG
is
a
Global
Chemicals
company
with
leading
positions
in
its
key
products
and
world
class
process
technology.
The
Celanese
portfolio
consists
of
five
main
businesses:
Acetyl
Products,
Chemical
Intermediates,
Acetate
Products,
Technical
Polymers
and
Performance
Products.
Celanese
generated
sales
of
around
i4.3
billion
in
2002
and
has
10,700
employees.
The
company
has
25
production
plants
and
six
research
centers
in
11
countries
mainly
in
North
America,
Europe
and
Asia.

Response
113­
2:
EPA
acknowledges
Celanese's
concern
that
counting
all
of
the
measured
chemical
as
spent
solvent,
even
if
not
all
of
it
was
used
for
solvent
purposes,
is
overly
broad
and
conservative.
In
addition,
we
acknowledge
any
concerns
that
facilities
may
have
regarding
the
collection
of
direct
monitoring
samples
at
the
headworks
location
because
of
chemical
not
being
used
for
solvent
purposes
being
included
in
the
measured
level.
However,
the
Agency
disagrees
that
requiring
all
measured
chemical
to
be
counted
as
spent
solvent
and
sampling
to
occur
only
at
the
headworks
location
is
overly
broad
and
conservative.
The
risk
assessment
performed
in
Headworks
Rule
Page
70
of
117
support
of
the
rulemaking
was
based
upon
the
total
concentration
(
1
or
25
ppm)
at
the
headworks.
Facilities
discounting
the
non­
solvent
portions
of
the
total
concentration
was
not
accounted
for
in
the
risk
assessment.
If
the
facility
cannot
meet
the
exemption
without
discounting
for
non­
solvent
use,
the
facility
will
be
exceeding
the
threshold
concentrations
that
the
Agency
used
for
the
risk
assessment,
and
this
would
not
be
protective
of
human
health
and
the
environment.
If
the
regulated
solvent
contributes
to
the
exceedence
of
the
total
amount
of
chemical
of
the
risk­
based
threshold,
then
it
would
be
inappropriate
to
exempt
the
solvent.
EPA
also
notes
that
direct
monitoring
is
an
alternative
compliance
method.
If
the
facility
feels
that
counting
all
of
the
measured
chemical
as
spent
solvent
and
that
sampling
only
at
the
headworks
are
too
strict,
then
the
facility
can
opt
to
use
the
mass
balance
option.

The
comment
suggesting
that
EPA
reduce
the
weekly
average
to
a
monthly
averaging
period
addresses
a
provision
not
specifically
identified
in
the
proposal
as
subject
to
possible
amendment.
EPA
stated
in
the
proposed
rule
that
it
would
not
respond
to
comments
addressing
such
provisions.
(
68
FR
17241,
April
8,
2003).

Finally,
several
commenters
have
requested
that
we
accept
a
performance­
based
reduction
in
sampling
frequency.
The
Agency
is
interested
in
the
possibility
of
allowing
a
facility's
sampling
and
analysis
plan
to
include
a
provision
to
reduce
sampling
frequency
based
on
performance
as
long
as
the
current
compliance
standards
under
261.3(
a)(
2)(
iv)(
A)
and
(
B)
are
maintained
and
the
facility's
provisions
for
the
reduction
are
thoroughly
discussed
in
the
plan.
EPA
would
first
need
to
propose
the
specific
requirements
of
such
a
provision
in
order
to
allow
for
adequate
notice
and
comment.
Headworks
Rule
Page
71
of
117
Comment
0028­
0114,
Westinghouse
Savannah
River
Company
Comment
114­
1:
As
both
a
large
quantity
hazardous
waste
generator
and
an
operator
of
multiple
permitted
wastewater
treatment
facilities,
Westinghouse
Savannah
River
Company
(
WSRC)
agrees
with
and
supports
the
expansion
of
the
de
minimis
wastewater
treatment
exemptions
to
include
the
additional
solvents
benzene
and
2­
ethoxyethanol
as
specified
in
the
proposed
rule.

Response
114­
1:
EPA
acknowledges
WSRC's
support
of
the
rulemaking.
For
clarification,
benzene
and
2­
ethoxyethanol
are
being
added
to
the
current
"
headworks"
exemption
under
40
CFR
261.3(
a)(
2)(
iv)(
A)
and
(
B),
respectively,
and
not
the
de
minimis
portion
of
the
exemption
under
40
CFR
261.3(
a)(
2)(
iv)(
D).

Comment
114­
2:
WSRC
is
still
in
the
process
of
determining
its
usage
of
the
solvent
1,1,2­
trichloroethane
and
whether
or
not
we
have
data
on
the
treatment
capabilities
of
our
wastewater
treatment
facilities.
As
a
result,
WSRC
does
not
have
the
data
to
support
the
inclusion
of
1,1,2­
trichloroethane
as
an
additional
solvent
for
the
de
minimis
wastewater
treatment
exemption
at
this
time.
Although
we
cannot
recommend
inclusion
of
1,1,2­
trichloroethane,
WSRC
recommends
additional
data
gathering
activities
to
make
1,1,2­
trichloroethane
a
candidate
for
the
de
minimis
wastewater
treatment
exemption.
For
example,
because
1,1,2­
trichloroethane
is
below
the
level
of
concern
for
indirect
exposure
and
the
previous
modeling
efforts
indicate
that
the
1
ppm
standard
would
be
protective
for
the
direct
air
inhalation
pathway,
specific
data
related
to
current
operating
wastewater
treatment
facilities
and
their
use
or
non­
use
of
unlined
surface
impoundment's
and
monofills
may
substantiate
an
acceptable
risk
factor
for
the
groundwater
pathway
scenario.
Additional
data
may
also
enable
the
establishment
of
specific
operational
requirements
for
the
wastewater
treatment
facility
that
would
alleviate
the
groundwater
pathway
risk
scenario,
i.
e.,
restricting
the
use
of
monofills
or
unlined
surface
impoundments.
The
additional
data
activities
may
provide
the
opportunity
to
include
1,1,2­
trichloroethane
as
a
candidate
for
the
de
minimis
wastewater
treatment
exemption,
thus
providing
consistency
with
the
current
laboratory
wastewater
exemption
(
261.3(
a)(
2)(
iv)(
E))
which
does
not
differentiate
between
1,1,2­
trichloroethane
and
other
solvents
in
a
laboratory
wastewater
destined
for
a
wastewater
treatment
facility.

Response
114­
2:
We
based
part
of
our
decision
not
to
include
1,1,2­
trichloroethane
in
the
headworks
exemption
on
the
public
data
available
for
this
compound.
In
the
preamble
of
the
proposed
rule,
we
specifically
request
comment
on
the
current
solvent
use
of
1,1,2­
trichloroethane.
Any
submission
of
data
regarding
the
solvent
use
of
this
compound
from
the
public
will
be
accepted.

Comment
114­
3:
Direct
Measuring
Methodology:

WSRC
agrees
that
the
availability
of
options
for
a
compliance
methodology
is
appropriate
for
the
headwork's
rule.
The
direct
measuring
method
described
in
the
proposed
rule
offers
an
alternative
option
of
monitoring
while
still
maintaining
compliance
with
the
specified
solvent
limits.
Response
114­
3:
EPA
acknowledges
WSRC's
support
of
the
addition
of
direct
monitoring
as
a
Headworks
Rule
Page
72
of
117
compliance
method.

Comment
114­
4:
Although
the
direct
method,
as
described
in
the
proposed
rule,
requires
a
facility
to
identify
the
specific
location
of
it's
"
headworks,"
WSRC
agrees
with
the
1981
preamble
(
46
FR
56582,
11/
17/
81)
description
of
"
headworks"
and
consequently,
the
proposed
rule's
adaptation.
WSRC
does
not
support
a
more
detailed
description
of
"
headwork's"
in
this
rule.

Response
114­
4:
EPA
acknowledges
WSRC's
support
of
the
informal
headworks
definition.

Comment
114­
5:
Expansion
of
eligibility
for
de
minimis
treatment
exemption:

WSRC
agrees
with
the
alternatives
being
proposed
for
expanding
the
eligibility
of
the
de
minimis
treatment
exemption.
The
prerequisites
identified
in
the
proposed
rule;
a
CWA
permit
that
contains
limits
for
the
specific
chemicals
for
which
each
waste
was
listed,
as
well
as,
each
constituent
for
which
each
waste
listed
has
a
treatment
standard
under
LDR,
or
eliminating
the
discharge
altogether,
all
offer
adequate
protection
of
human
health
and
the
environment.
The
expansion
of
eligible
facilities
(
beyond
manufacturing
facilities)
and
the
additional
eligibility
of
de
minimis
losses
of
either
F
and/
or
K
listed
wastes
still
ensure
that
the
wastes
are
subject
to
adequate
protective
regulatory
mechanisms.

Response
114­
5:
EPA
acknowledges
WSRC's
support
of
these
provisions
of
the
rulemaking.
Headworks
Rule
Page
73
of
117
Comment
0028­
0115,
DuPont
Introduction:
DuPont
appreciates
this
opportunity
to
offer
comments
to
the
U.
S.
Environmental
Protection
Agency
on
the
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
("
Headworks
Exemptions");
Proposed
Rule
(
68
FR
17234
 
17250,
April
8,
2003).

DuPont
also
appreciates
EPA
responding
to
ACC's
August,
1999
letter
requesting
review
and
modification
of
the
headworks
and
de
minimis
exemptions,
and
for
acting
on
comments
received
in
response
to
the
Agency's
November
19,
1999
hazardous
waste
identification
rule
(
HWIR)
proposal
(
64
FR
63382).
In
particular,
DuPont
stands
to
benefit
most
from
the
Agency's
proposals
to
provide
for
a
direct
monitoring
alternative
to
demonstrating
compliance
with
the
headworks
exemptions
for
both
spent
solvents
and
carbamates,
proposed
expansion
of
the
de
minimis
loss
exemption
to
include
wastes
beyond
those
listed
in
40
CFR
261.33
and
the
Agency's
advance
notice
regarding
a
potential
headworks
exemption
for
leachate
derived
from
the
land
disposal
of
hazardous
wastes.

DuPont
has
participated
in
the
development
of
comments
submitted
separately
by
both
the
American
Chemistry
Council
(
ACC)
and
the
Synthetic
Organic
Chemical
Manufacturers
Association
(
SOCMA),
and
incorporates
those
comments
herein,
by
reference.
In
addition
to
comments
submitted
by
ACC
and
SOCMA,
DuPont
submits
the
following
comments
for
the
Agency's
consideration.

Comment
115­
1:
DuPont
Supports
the
Agency's
Proposal
to
Provide
for
a
Direct
Monitoring
Alternative
Towards
Demonstrating
Compliance
with
the
Headworks
Exemptions
for
Spent
Solvent
and
Carbamate
Wastewaters.

In
today's
rule,
the
Agency
proposes
to
expand
the
ways
in
which
compliance
with
the
headworks
rule
may
be
determined
by
adding
the
option
of
directly
measuring
solvent
and
carbamate
chemical
levels
at
the
headworks
of
the
wastewater
treatment
system.

DuPont
strongly
supports
a
direct
monitoring
alternative
to
the
headworks
rule
for
spent
solvent
and
carbamate
wastewaters.

Response
115­
1:
EPA
acknowledges
DuPont's
support
of
the
addition
of
direct
monitoring
as
a
compliance
method.

Comment
115­
2:
In
addition
to
comments
submitted
by
ACC
and
SOCMA,
which
are
incorporated
herein,
by
reference,
DuPont
would
appreciate
additional
clarification
in
the
preamble
to
the
final
rule
with
regard
to
three
implementation
issues:
opportunities
to
use
mass
balance,
direct
monitoring
and
combinations
thereof,
sampling
location
and
sampling
frequency.

DuPont
has
one
facility
that
presently
claims
the
spent
solvent
headworks
exemption
using
a
mass
balance
approach.
As
proposed,
DuPont
is
concerned
that
some
may
interpret
the
proposed
Headworks
Rule
Page
74
of
117
regulatory
text
to
require
either
a
mass
balance
OR
direct
monitoring
approach
to
demonstrating
compliance
with
the
spent
solvent
headworks
exemption.
DuPont,
therefore,
would
appreciate
it
if
the
Agency
more
clearly
articulated
its
intent
in
the
preamble
to
the
final
rule
that
use
of
one
method
to
demonstrate
compliance
does
not
automatically
eliminate
the
option
of
using
the
other,
or
a
combination
thereof
(
e.
g.,
use
of
direct
monitoring
does
not
mean
that
at
some
later
time
the
generator
cannot
switch
back
to
using
a
mass
balance
approach,
or
from
using
a
combination
of
the
two
approaches
to
demonstrate
compliance).

Response
115­
2:
It
was
not
EPA's
intent
for
a
facility
to
be
prohibited
from
switching
between
the
two
compliance
methods.
Facilities
have
the
option
to
alternate
between
the
two
methods
or
to
concurrently
use
both
methods
and
report
the
result
of
either
method.
However,
facilities
cannot
use
a
hybrid
of
the
two
methods
(
e.
g.,
apply
the
solvent
percentage
to
measured
concentrations
to
discount
the
non­
solvent
use).
EPA
encourages
facilities
to
notify
the
overseeing
agency
via
the
SAP
that
alternating
between
the
compliance
methods
may
occur.
EPA
also
encourages
facilities
to
provide
examples
of
when
a
facility
may
switch
from
one
method
to
the
other.
EPA
notes
that
facilities
may
switch
compliance
methods
even
if
their
submitted
SAP
did
not
discuss
examples
of
when
such
an
occurrence
would
happen.

Comment
115­
3:
The
same
facility
contains
several
different
manufacturing
operations,
some
of
which
use
solvents
for
their
solvent
properties
and
some
of
which
that
may
not.
In
the
preamble
to
the
proposed
rule,
the
Agency
notes
that
use
of
the
direct
monitoring
approach
"
means
that
the
measured
level(
s)
of
the
chemical(
s)
at
the
headworks
may
not
exceed
the
total
regulatory
level,
regardless
of
its
(
or
their)
origin
in
the
process,
as
long
as
some
of
it
(
or
them)
has
been
used
as
a
"
solvent""
[
68
FR
17241].
While
DuPont
strongly
supports
the
Agency's
decision
to
propose
an
informal
definition
of
"
headworks,"
we
are
concerned
that
limiting
the
collection
of
samples
to
the
"
headworks"
to
demonstrate
compliance
is
unnecessarily
limiting.
For
example,
at
the
subject
facility,
DuPont
would
benefit
from
the
flexibility
of
having
the
ability
to
collect
samples
upstream
of
the
"
headworks"
(
prior
to
the
location
where
the
final
combination
of
on­
site
generated
process
wastewaters
takes
place).
In
DuPont's
case,
samples
are
already
collected
at
regional
locations
across
the
facility
for
operational
purposes,
and
would
more
accurately
reflect
the
concentrations
of
these
solvents
in
process
wastewaters
(
as
a
result
of
their
use
as
solvents)
as
the
samples
are
collected
closer
to
the
point
of
generation.
DuPont
submits
that
results
of
these
chemical
analyses
could
then
be
flow­
weighted
considering
the
regional
locations
contribution
to
the
estimated
total
flow
into
the
"
headworks"
to
demonstrate
compliance.

DuPont
would
appreciate,
therefore,
if
the
Agency
clarified
in
the
preamble
to
the
final
rule
that
the
generator
has
to
option
of
collecting
samples
upstream
of
the
"
headworks"
in
lieu
of
or
in
addition
to
samples
collected
at
the
"
headworks"
towards
demonstrating
compliance
with
the
exemption.

Response
115­
3:
EPA
acknowledges
DuPont's
concern
that
only
allowing
the
collection
of
direct
monitoring
samples
at
the
headworks
location
is
unnecessarily
limiting
because
chemical
not
being
used
for
solvent
purposes
will
be
included
in
the
measured
level.
For
discussion
regarding
this
issue,
please
see
our
response
to
comment
113­
2.
Headworks
Rule
Page
75
of
117
Comment
115­
4:
Last,
as
proposed,
DuPont
is
concerned
that
some
may
interpret
the
proposed
regulatory
text
to
possibly
require
the
collection
of
samples
at
the
"
headworks"
at
least
once
per
week
to
demonstrate
compliance
on
an
"
average
weekly
basis."
DuPont
encourages
the
Agency
to
take
a
sampling
frequency
approach
more
consistent
with
the
current
mass
balance
approach
(
i.
e.,
initially,
and
repeated
whenever
a
change
in
the
generators
operations
could
affect
the
amount
of
spent
solvents
in
the
wastewater)
and
with
the
approach
taken
in
CWA
permits.
With
regard
to
CWA
permits,
DuPont's
experience
is
that
while
permits
may
contain
daily
or
average
weekly
discharge
limitations,
the
sampling
frequency
specified
in
the
permit
varies
from
as
frequently
as
daily,
to
as
infrequently
as
once
per
month,
once
per
quarter
and
once
per
year,
depending
upon
the
variability
of
the
process
wastewater.
[
See
40
CFR
122.2,
EPA
definition
of
"
average
weekly
discharge
limitation"].

DuPont
requests
that
the
Agency
clarify
in
the
preamble
to
the
final
rule
that
the
frequency
by
which
samples
are
collected
to
demonstrate
compliance
with
the
average
weekly
discharge
limitations
contained
in
the
exemptions
is
a
site
specific
determination,
and
may
not
necessarily
require
the
collection
of
at
least
one
sample
per
week.

Response
115­
4:
EPA
acknowledges
DuPont's
concern
regarding
the
regulatory
text
being
misinterpreted.
Requiring
sampling
to
occur
at
a
minimum
of
once
per
week
in
order
to
demonstrate
compliance
when
using
the
direct
monitoring
method
is
the
Agency's
intention.
However,
several
commenters
have
requested
that
we
accept
a
performance­
based
reduction
in
sampling
frequency.
The
Agency
is
interested
in
the
possibility
of
allowing
a
facility's
sampling
and
analysis
plan
to
include
a
provision
to
reduce
sampling
frequency
based
on
performance
as
long
as
the
current
compliance
standards
under
261.3(
a)(
2)(
iv)(
A)
and
(
B)
are
maintained
and
the
facility's
provisions
for
the
reduction
are
thoroughly
discussed
in
the
plan.
However,
EPA
would
first
need
to
propose
the
specific
requirements
of
such
a
provision
in
order
to
allow
for
adequate
notice
and
comment.
Please
see
our
response
to
comment
116­
5.

Comment
115­
5:
DuPont
Supports
the
Notion
of
a
Headworks
Exemption
for
Landfill
Leachate.

In
today's
proposal,
the
Agency
provides
advance
notice
of
proposed
rulemaking
for
two
potential
headworks
exemptions.
One
potential
revision
to
the
headworks
rule
would
exempt
leachate
from
landfills
that
accepted
only
F001­
F005
spent
solvent
wastes.
A
second
potential
revision
to
the
headworks
rule
regards
a
potential
broader
exemption
for
leachate
from
hazardous
waste
landfills.

DuPont
presently
has
two
facilities
with
active
on­
site
hazardous
waste
landfills.
The
principal
waste
disposed
of
in
one
on­
site
hazardous
waste
landfill
is
sludge
generated
in
an
on­
site
wastewater
treatment
facility.
The
on­
site,
entirely
tank­
based,
wastewater
treatment
facility
treats
hazardous
and
non­
hazardous
wastewaters
generated
both
on­
site
and
off­
site,
resulting
in
a
wastewater
treatment
sludge
that
is
identified
with
multiple
solvent
and
non­
solvent
listed
hazardous
waste
codes
as
a
result
of
the
derived­
from
rule.
Leachate
collected
from
this
on­
site
hazardous
waste
landfill
is
currently
re­
introduced
into
the
secondary
portion
of
the
on­
site
wastewater
treatment
system.
A
headworks
exemption
for
this
leachate
would
provide
additional
Headworks
Rule
Page
76
of
117
operational
flexibility
not
presently
available
(
e.
g.,
collected
leachate
could
be
re­
introduced
at
other
points
in
the
on­
site
wastewater
treatment
facility
without
causing
treatment
residuals
to
become
listed
hazardous
wastes
via
the
derived­
from
rule).

At
the
second
facility,
the
disposal
of
hazardous
wastes
in
the
on­
site
landfill
has
been
historically
restricted
to
the
receipt
of
DuPont­
only
generated
hazardous
wastes
at
facilities
located
within
the
facilities
regional
location.
Although
presently,
the
on­
site
hazardous
waste
landfill
is
only
receiving
wastes
generated
on­
site.

Prior
to
the
advent
of
the
land
disposal
restrictions,
this
landfill
received
wastes
identified
with
various
listed
and
characteristic
waste
codes,
including
lab
pack
wastes
(
up
to
1990).
For
example,
characteristic
waste
codes
received
include
D001,
D002,
D003,
D004­
D011,
D018,
D019,
D021,
D022,
D026,
D035,
D039
and
D040,
and
listed
hazardous
waste
codes
received
include
F001­
F003,
F005,
F039,
K011,
K013,
K014,
K103,
K104,
U003,
U012,
U019,
U037,
U056,
U080,
U154,
U169,
U211,
U213,
U220.

Leachate
from
this
landfill
is
currently
collected
in
a
tank
and
sent
off­
site
for
incineration.
The
volume
of
leachate
collected
over
the
last
three
years
(
2000,
2001
and
2002,
respectively)
is
estimated
at
314,600
gallons,
700,000
gallons
and
696,000
gallons.
Over
the
same
period,
the
volume
of
influent
received
in
the
on­
site
biological
wastewater
treatment
facility
(
2000,
2001
and
2002,
respectively)
is
estimated
at
679,000,000
gallons,
681,000,000
gallons
and
798,000,000
gallons.

A
headworks
exemption
for
this
leachate
would
allow
the
leachate
to
be
effectively
treated
in
the
on­
site
biological
wastewater
treatment
facility
without
causing
treatment
residuals,
e.
g.,
currently
non­
hazardous
sludge,
to
become
listed
hazardous
waste
via
the
derived­
from
rule.

Response
115­
5:
EPA
acknowledges
the
commenter's
support
for
a
potential
rulemaking
addressing
leachates.
Headworks
Rule
Page
77
of
117
Comment
0028­
0116,
Eastman
Chemical
Company
Introduction:
Eastman
Chemical
Company
(
Eastman)
appreciates
the
opportunity
to
comment
on
the
Agency's
proposed
rule
"
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
(`
Headworks
Exemptions')"
(
68
FR
17234,
April
8,
2003).
Eastman
is
a
major
global
manufacturer
of
chemicals,
plastics,
fibers,
specialty
resins
and
colorants,
and
specialty
products
for
the
inks
and
coatings
markets.
We
are
also
a
member
of
the
American
Chemistry
Council
and
as
such,
subscribe
to
the
tenets
of
the
Responsible
Care
®
program.
This
includes
continuous
improvement
in
the
manufacturing,
transportation,
and
waste
management
operations
of
our
facilities.

Eastman
has
facilities
based
in
the
U.
S.
ranging
in
size
from
very
large
(
8,000+
employees)
to
very
small
(
10
employees).
The
current
headworks
exemption
based
on
a
mass
balance
approach
has
proved
unworkable
at
our
largest,
most
complex
site,
and
we
commend
the
Agency
and
support
its
proposal
to
allow
an
alternative
compliance
method
that
includes
direct
monitoring
at
the
headworks.
An
executive
summary
followed
by
our
comments
on
specific
portions
of
the
proposal
follows.

Executive
Summary:


Eastman
supports
the
addition
of
benzene
and
2­
ethoxyethanol
to
the
list
of
solvents
at
40
CFR
261.3(
a)(
2)(
iv)(
A)
and
(
B).


Eastman
has
found
the
current
mass
balance
approach
impossible
to
implement
and
strongly
supports
expansion
of
the
headworks
exemption
to
include
actual
monitoring
at
the
headworks.


The
Agency's
description
of
the
headworks
within
the
preamble
is
adequate.


EPA's
reliance
upon
the
integration
of
multiple
environmental
laws
and
regulations
for
protecting
the
environment
(
Clean
Air
Act,
Clean
Water
Act
and
RCRA
among
others)
is
appropriate
and
avoids
the
burden
of
duplicative
regulations,
protections
or
controls.


Eastman
believes,
for
the
purpose
of
burden
reduction,
that
it
is
appropriate
to
allow
direct
monitoring
less
frequently
than
weekly,
when
a
facility
has
consistently
demonstrated
compliance
at
the
headworks
with
the
1
ppm
or
25
ppm
compliance
level.


Eastman
supports
the
qualification
of
scrubber
water
derived
from
solvent
combustion
for
the
headworks
exemption,
and
urges
the
Agency
to
also
qualify
scrubber
water
for
the
exemption
that
contains
minute
amounts
of
U­,
P­
and
K­
wastes
that
are
listed
for
toxicity.


F039
leachate
from
landfills
and
from
corrective
action
units,
and
purge
water
from
groundwater
monitoring
wells
designated
as
F039,
whether
from
solvent
or
nonsolvent
wastes,
should
also
be
exempted
under
the
headworks
proposal.
Eastman
has
attached
F039
data
from
two
of
its
manufacturing
facilities
to
assist
the
Agency
in
its
future
consideration
of
exempting
F039
leachate
under
the
headworks
exemption.


Eastman
supports
expanding
the
de
minimis
exemption
to
F­
and
K­
listed
wastes,
but
believes
it
is
unnecessary
for
EPA
to
attach­
conditions
relevant
to
permit
limits.
Providing
full
disclosure
to
the
regulatory
agency
of
all
chemcials
relevant
to
the
facility
as
per
Application
Form
2C
­
Wastewater
Discharge
Information
­
as
well
as
the
permit
"
shield"
based
on
a
1995
EPA
policy
memorandum
should
negate
the
requirement
under
this
proposal
to
include
Headworks
Rule
Page
78
of
117
specific
effluent
limitations.


Eastman
strongly
disagrees
with
the
expanded
definition
of
a
de
minimis
loss
in
proposed
40
CFR
261.3(
a)(
2)(
iv)(
D).
The
addition
of
words
such
as
"
unscheduled"
or
"
uncontrollable"
is
unnecessary
given
the
number
of
years
the
de
minimis
exemption
has
been
in
use,
and
it
simply
adds
an
intolerable
level
of
uncertainty
for
the
regulated
community.

Comment
116­
1:
A.
Eastman
Supports
the
Addition
of
Benzene
and
2­
Ethoxyethanol
to
the
List
of
Solvents
at
40
CFR
261.3(
a)(
2)(
iv)(
A)
and
(
B).

EPA
added
four
solvents­
benzene,
2­
ethoxyethanol,
2­
nitropropane
and
1,1,2trichloroethane­
to
the
F002
and
F005
categories
of
spent
solvent
wastes
in
1986.
However,
the
Agency
did
not
make
a
determination
at
that
time
of
whether
those
solvents
should
also
be
eligible
for
the
headworks
exemption
at
40
CFR
261.3(
a)(
2)(
iv)(
A)
and
(
B).
Though
none
of
our
Eastman
facilities
will
utilize
the
headworks
exemption
based
on
the
addition
of
benzene
and
2­
ethoxyethanol
to
the
list
of
solvents
eligible
for
the
headworks
exemption,
nor
will
we
be
affected
by
the
Agency's
decision
to
not
add
2­
nitropropane
and
1,1,2­
trichloroethane
to
the
list
of
eligible
spent
solvents,
we
believe
the
EPA
is
correct
in
conducting
risk
assessments
and
determining
their
suitability
for
addition
to
the
list
of
solvents
eligible
for
the
headworks
exemption.
Eastman
supports
the
addition
of
benzene
and
2ethoxyethanol
to
the
list
of
solvents
eligible
for
the
headworks
exemption.

Response
116­
1:
EPA
acknowledges
Eastman's
support
for
these
provisions
of
the
rulemaking.

Comment
116­
2:
B.
Eastman
Supports
Expansion
of
the
Headworks
Exemption
to
Include
Actual
Monitoring
at
the
Headworks
The
proposed
rule
would
allow
facilities
a
choice
of
using
direct
measurement
of
solvent
levels
at
the
headworks
or
the
current
mass
balance
demonstration
to
determine
compliance
with
the
headworks
rule
(
68
FR
17241).
Eastman
believes
this
new
choice
of
direct
measurement
at
the
headworks
is
a
reasonable,
much­
needed
expansion
that
will
allow
a
greater
number
of
facilities
to
responsibly
utilize
the
headworks
exemption.

We
have
found
the
current
mass
balance
approach
impossible
to
implement
at
our
largest,
most
complex
facility
in
Kingsport,
TN,
even
though
the
solvent
level
at
the
headworks
is
significantly
below
the
regulatory
limit
of
25
ppm
for
that
particular
solvent.
We
have
provided
EPA
with
a
6­
month
analysis
(
available
in
the
docket
for
this
proposal)
that
was
completed
at
the
site
in
the
early
`
90s
that
demonstrates
the
uncertainty
related
to
trying
to
account
for
all
but
25
ppm
of
the
solvent,
given
the
very
large
amounts
used
at
the
facility
in
its
manufacturing
processes.
Factors
that
contribute
to
that
uncertainty
include
(
1)
the
quantity
of
the
solvent
being
processed
in
reactors
at
any
one
point
in
time,
(
2)
the
quantity
of
the
solvent
being
recovered
on­
or
off­
site,
(
3)
the
quantity
of
the
solvent
in
nutche
(
filter)
cloths
going
to
incineration
or
in
process,
and
(
4)
the
quantity
of
the
solvent
in
containers
of
mixed
solvents
awaiting
incineration.
Eastman
analyzed
five
different
mass
balance
methodologies,
but
given
the
millions
of
pounds
of
solvent
used,
recovered
and
reused
at
the
site,
we
determined
that
the
uncertainty
of
providing
a
clear,
Headworks
Rule
Page
79
of
117
definitive
demonstration
that
would
be
impervious
to
compliance
assessments,
when
so
many
variables
could
not
be
directly
measured,
rendered
this
option
unreliable
and
unusable.

Allowing
direct
monitoring
at
the
headworks
removes
the
uncertainty
associated
with
the
mass
balance
approach
and
actually
allows
for
a
much
greater
degree
of
accuracy
in
determining
compliance
with
the
headworks
exemption.

Response
116­
2:
EPA
acknowledges
Eastman's
support
for
the
addition
of
direct
monitoring
as
a
compliance
method.

Comment
116­
3:
C.
Eastman
Supports
EPA's
Description
of
a
Headworks
Eastman
agrees
that
the
Agency's
description
of
the
headworks
within
the
preamble
is
adequate.
A
formal,
codified
definition
is
neither
necessary
nor
desirable,
given
that
the
location
of
the
headworks
will
vary
from
facility
to
facility,
and
given
that
the
facility
and
its
regulating
agency
will
have
an
understanding
of
where
the
headworks
is
for
that
facility.
Eastman
supports
the
description
that
the
headworks
"...
is
the
location
at
which
final
combination
of
raw
process
wastewater
streams
typically
takes
place"
and
that
it
can
"...
include
a
catch
basin
for
industrial
wastewaters,
a
pump
station
outfall,
equalization
tank,
or
some
other
main
wastewater
collection
area
that
exists
in
which
transport
of
process
wastewaters
stops
and
chemical
or
biological
treatment
begins."
(
68
FR
17242)
Though
the
location
of
the
headworks
does
vary
among
our
Eastman
facilities,
there
is
no
confusion
as
to
just
where
it
is
at
a
given
facility;
the
location
is
clearly
understood
by
all
relevant
parties.
Thus,
no
formal
definition
is
required.

Response
116­
3:
EPA
acknowledges
Eastman's
support
for
the
informal
headworks
definition.

Comment
116­
4:
D.
Eastman
Supports
EPA's
Reliance
upon
the
Integration
of
Multiple
Environmental
Laws
and
Regulations
for
Protecting
the
Environment
Eastman
commends
the
Agency
for
recognizing
the
levels
of
protectiveness
offered
by
multiple
regulations
such
as
RCRA,
the
Clean
Water
Act
(
CWA)
and
the
Clean
Air
Act
(
CAA).
Our
Kingsport
facility
and
multiple
other
Eastman
facilities
are
subject
to
MACT
and
NSPS
standards
under
the
CAA,
and
we
agree
with
EPA
that
all
the
new
CAA
regulations
promulgated
since
1990
address
the
1980
concerns
about
volatilization
of
solvents
(
intentional
or
otherwise).

The
industrial
wastewater
collection,
conveyance,
and
treatment
facilities
handling
the
F001­
F005
constituents
either
are,
or
soon
will
be,
subject
to
Maximum
Achievable
Control
Technology
(
MACT)
standards
for
hazardous
air
pollutants
(
HAP)
under
the
40
CFR
Part
63
standards.
Many
of
the
process
units
generating
wastewaters
containing
these
constituents
are
now
subject
to
one
of
a
number
of
MACT
source
category
standards,
including
the
Hazardous
Organic
NESHAP
for
the
Synthetic
Organic
Chemical
Manufacturing
Industry
(
HON),
Group
1and
Group
IV
Polymers
and
Resins,
Pharmaceutical
Production,
and
Pesticide
Action
Ingredient
Production.
Wastewaters
brought
in
from
off­
site
and
treated
in
these
systems
are
subject
to
the
Off­
Site
Waste
and
Recovery
Operations
MACT
standard.
Any
other
processes
within
the
chemical
industry
Headworks
Rule
Page
80
of
117
(
including
SIC
codes
282,283,284,285,286,
287,289,
and
386)
that
process,
use,
or
produce
a
HAP
will
soon
be
subject
to
the
Miscellaneous
Organic
Chemical
NESHAP
(
or
MON).
All
of
these
standards
address
air
emissions
of
HAPs
from
the
process
and
maintenance
wastewaters
generated
by
the
affected
manufacturing
process
units
and
ensure
that
the
maximum
achievable
control
technology,
as
defined
in
the
CAA,
is
applied.
Additionally,
these
MACT
standards
are
followed
by
a
program
called
"
Residual
Risk"
under
section
112(
f)
of
the
CAA
to
provide
an
ample
margin
of
safety
for
protection
of
public
health.

The
CWA
also
addresses
the
constituents
of
concern,
as
discussed
in
these
comments.
Thus,
between
RCRA,
the
CAA
and
the
CWA,
the
environment
will
continue
to
be
protected
under
this
expanded
exemption
`
without
the
burden
of
duplicative
regulations,
protections
or
controls.
The
time
is
ripe
for
expanding
the
headworks
exemption
to
allow
direct
measurement
at
the
headworks
to
provide
a
reliable
compliance
method
and
to
ensure
the
applicability
of
the
exclusion
for
individual
facilities.

Response
116­
4:
EPA
acknowledges
Eastman's
support
for
our
reliance
upon
the
integration
of
multiple
environmental
laws
and
regulations
for
protecting
the
environment.

Comment
116­
5:
E.
Cost
of
Analyses
with
Direct
Monitoring
May
Be
Overburdensome
for
Facilities
with
Low
Levels
of
Solvent
in
Influent;
Eastman
Recommends
a
less
Frequent
Sampling
Schedule
after
a
Sufficient
Period
of
Compliance
with
the
Weekly
Standard
To
demonstrate
compliance
under
the
direct
monitoring
option,
a
facility
would
need
to
develop
a
site­
specific
sampling
and
analysis
plan
(
SAP)
that
demonstrates
compliance
with
the
weekly
average
standards
set
for
the
appropriate
solvent(
s).
This
plan
must
include
the
sampling
frequency
and
methodology,
as
well
as
other
information.
The
requirement
to
meet
a
weekly
average
could
suggest
at
least
one
or
two
analyses
per
week.

Eastman
supports
the
agency's
proposal
to
"
develop
a
site­
specific
sampling
and
analysis
plan."
Such
a
plan
may
consist
of
intensive
initial
sampling
and
analyses
over
a
period
of
several
months.
We
suggest,
however,
that
if
solvent
concentrations
are
consistently
below
the
headworks
exemption
concentration
level
of
25
ppm
(
in
accordance
with
proposed
rule
261.3(
a)(
2)(
iv)(
B)
or
1
ppm
under
subparagraph
(
A)),
the
plan
may
propose
that
direct
monitoring
occur
less
frequently
than
weekly.
Under
such
a
plan,
an
exemption
could
be
claimed
for
direct
measurements
of
samples
collected
less
frequently
than
weekly
but
supported
by
adequate
historical
direct
monitoring
data
to
assure
that
weekly
concentrations
of
applicable
compounds
are
less
than
25
ppm
(
or
1
ppm).
In
such
a
case,
Eastman
believes
that
review
and
comment
by
the
overseeing
agency
is
necessary
and
appropriate.

In
this
way,
facilities
that
can
readily
and
repeatedly
demonstrate
compliance
based
on
weekly
analyses
over
a
period
of
time
may
be
allowed
to
reduce
the
sampling
frequency
to
less
than
weekly
based
on
approval
by
the
overseeing
agency.
With
such
flexibility,
unnecessary
costs
associated
with
compliance
could
be
avoided.
Specifically,
Eastman
suggests
the
following
clarification
to
proposed
rules
261.3(
a)(
2)(
iv)(
A)
and
(
B):
Headworks
Rule
Page
81
of
117
"....
The
Director
may
reject
the
sampling
and
analysis
plan
if
he/
she
finds
that,
the
sampling
and
analysis
plan
fails
to
include
the
above
information;
or
the
plan
parameters
would
not
enable
the
facility
to
calculate
the
weekly
average
concentrations
of
these
chemicals
accurately.
Upon
request
of
the
facility,
the
Director
may
approve
a
sampling
interval
less
frequently
than
weekly
if
data
from
previous
analyses
demonstrate
clear
compliance
with
the
applicable
weekly
average
concentration
and
if
the
sampling
and
analysis
plan
is
adequate
to
assure
continued
compliance
under
a
revised
sampling
schedule.
If
the
sampling
and
analysis
plan
is
rejected
or
if
the
Director
finds
that
the
facility
is
not
following
the
sampling
and
analysis
plan,
the
facility
must
no
longer
use
the
direct
monitoring
option
until
such
time
as
the
bases
for
rejection
are
corrected."

Response
116­
5:
EPA
acknowledges
the
commenter's
concern
that
the
current
sampling
schedule
for
direct
monitoring
may
be
overburdensome.
The
Agency
is
interested
in
the
possibility
of
allowing
a
facility's
sampling
and
analysis
plan
to
include
a
provision
to
reduce
sampling
frequency
based
on
performance
as
long
as
the
current
compliance
standards
under
261.3(
a)(
2)(
iv)(
A)
and
(
B)
are
maintained
and
the
facility's
provisions
for
the
reduction
are
thoroughly
discussed
in
the
plan.
However,
EPA
would
first
need
to
propose
the
specific
requirements
of
such
a
provision
in
order
to
allow
for
adequate
notice
and
comment.

Comment
116­
6:
F.
Eastman
Supports
the
Exemption
of
Scrubber
Water
Derived
from
Solvent
Combustion
Scrubber
blowdown
water
is
generated
at
several
of
our
facilities
that
have
on­
site
incinerators.
When
such
water
is
designated
as
hazardous,
it
is
primarily,
or
in
some
cases
exclusively,
because
of
the
incineration
of
spent
solvents.
Because
of
the
derived­
from
rule,
the
scrubber
water
carries
the
F­
code(
s)
of
the
spent
solvent
streams
that
are
incinerated,
and
such
code(
s)
carry
over
to
both
the
combined
influent
wastewater
stream
being
treated
and
the
resultant
biosludge.
This
derived­
from
designation
of
the
scrubber
water
negates
the
use
of
the
headworks
exemption,
because
the
headworks
exemption
only
applies
to
"
normal
losses"
of
spent
solvents
from
manufacturing
operations
and
not
from
wastes
that
are
already
separated
from
the
wastewaters
or
that
had
been
removed
from
the
process
previously
(
68
FR
17242).

EPA
provides
several
reasons
for
allowing
combustion
scrubber
waters
to
qualify
for
the
headworks
exemption
(
68
FR
17243):

1.
In
the
carbamates
final
rule
of
1995,
scrubber
waters
from
the
incineration
of
carbamate
production
wastes
were
deemed
as
eligible
for
the
headworks
exemption,
because
the
scrubber
waters
would
be
comparable
in
expected
constituents
and
concentration
levels
as
the
already­
exempted
carbamate
wastewaters.
2.
The
solvent
constituents
receive
at
least
99.99%
destruction
and
removal
during
incineration.
3.
The
scrubber
water
is
typically
a
small
percentage
of
the
flow
into
a
wastewater
treatment
system.
4.
The
wastewater
treatment
system
further
reduces
remaining
constituent
concentrations.

Eastman
supports
the
Agency's
decision
to
exempt
scrubber
water
derived
from
solvent
Headworks
Rule
Page
82
of
117
combustion,
and
can
verify
the
accuracy
of
the
provided
rationale.
For
example,
our
incinerators
are
newly
modified
to
meet
the
hazardous
waste
combustor
MACT
standards,
and
compliance
performance
tests
and
trial
burns
have
demonstrated:

1.
Destruction
of
difficult
to
burn
organic
contaminants
is
greater
than
99.99%;
2.
All
hazardous
waste
combustion
MACT
emission
requirements
are
readily
achieved
under
worst
case
operating
conditions.

The
flow
of
scrubber
blowdown
water
at
our
Kingsport
site
is
only
about
3
percent
of
the
total
influent
to
the
wastewater
treatment
(
WWT)
system.
Thus,
it
is
a
small
percentage
of
the
total
wastewaters
treated
in
our
state­
of­
the­
art
WWT
system.
WWT
has
consistently
demonstrated
removal
of
organic
materials
at
efficiencies
of
99.5%.
Thus,
between
>
99.99%­
destruction
of
organics
at
the
incinerator
and
a
subsequent
99.5%
destruction
at
WWT,
few
molecules
of
any
spent
solvent
survive
such
aggressive
treatment.

Eastman
believes
the
Agency
is
absolutely
justified
in
exempting
scrubber
waters
derived
from
solvent
combustion.
We
do
suggest,
however,
that
EPA
incorporate
this
exemption
into
the
regulatory
code,
rather
than
relying
solely
on
its
intended
interpretation
within
the
preamble
of
the
rule.
This
will
avoid
any
potential
misunderstandings
and
provide
a
more
clear
compliance
option
for
facilities
using
the
expanded
exemption
that
do
have
scrubber
waters
from
incinerators
treating
spent
solvent
wastes.

Response
116­
6:
Please
see
response
to
comment
112­
6.

Comment
116­
7:
G.
Eastman
Requests
That
the
Scrubber
Water
Exemption
Be
Extended
to
Small
Quantities
of
"
U"
and
"
P"
Wastes
Listed
for
Toxicity
At
our
Kingsport,
TN
site,
small
quantities
of
U­
and
P­
wastes
are
also
incinerated,
and
because
several
of
those
wastes
are
listed
for
toxicity,
the
U­
or
P­
code
carries
through
to
the
scrubber
water.
The
U­
wastes
listed
for
ignitability
lose
that
characteristic
after
treatment
and
thus
the
U­
codes
for
those
wastes
do
not
carry
through.
But
to
make
use
of
the
expanded
headworks
exemption
to
allow
actual
monitoring
at
the
headworks
and
to
exempt
scrubber
waters
resulting
from
the
incineration
of
spent
solvent
(
F­
listed)
wastes,
we
would
have
to
avoid
incineration
of
the
U­
and
P­
wastes
that
are
listed
for
toxicity.
These
are
primarily
small
quantities
of
laboratory
chemicals
whose
shelf
life
has
expired
or
even
surplus
commercial
chemicals
remaining
from
RCRA
trial
burns,
certification
testing,
risk
evaluations
and
such.
In
some
cases
a
waste
stream
will
carry
a
commercial
chemical
code
because
a
material
such
as
insulation
has
been
contaminated
with
a
commercial
chemical
product
or
the
waste
can
result
from
cleanup
actions.
However,
the
combined
U­
and
P­
streams,
whether
listed
for
toxicity
or
ignitability,
account
for
only
2.5
to
3.0
percent
of
the
total
hazardous
waste
in
pounds
managed
at
the
incinerators.
Even
then,
the
actual
quantity
of
the
U­
or
P­
chemicals
being
managed
is
much
less
than
the
2.5
percent
indicates,
because
the
bulk
of
the
weight
of
the
laboratory
waste
is
packaging,
and
the
contaminated
debris
and
media
also
contain
much
less
of
the
chemical
than
the
weights
would
indicate.
The
actual
proportion
of
the
overall
U­
or
P­
stream
that
is
chemical
is
very,
very
low.
Headworks
Rule
Page
83
of
117
With
greater
than
99.99%
organics
destruction,
Eastman
believes
the
best
way
to
manage
these
materials
that
are
U­
or
P­
listed
for
toxicity
is
to
treat
them
in
its
onsite
MACT­
and
RCRA­
compliant
incinerator.

The
rationale
for
exempting
de
minimis
quantities
of
U­
and
P­
wastes
from
the
current
definition
of
a
solid
waste
(
40
CFR
261.3(
a)(
2)(
iv)(
D),
the
rationale
for
expanding
the
de
minimis
exemption
to
F­
and
K­
listed
wastes
as
proposed,
and
the
above­
discussed
rationale
for
allowing
scrubber
waters
containing
what
is
known
to
be
minute
quantities
of
F­
listed
wastes
to
be
eligible
for
the
headworks
exemption
can
reasonably
be
applied
as
well
to
equally
minute
quantities
of
U­,
P­
and
K­
wastes
in
scrubber
waters.
The
regulations
are
unfortunately
constructed
such
that
the
de
minimis
exemption
applies
only
to
minor,
inadvertent
releases
of
waste
to
a
wastewater
treatment
system
from
normal
manufacturing
operations.
Minute
quantities
of
derived­
from
U­,
P­,
K­
or
F­
wastes
in
scrubber
water
going
to
WWT,
however,
are
exactly
analogous
to
de
minimis
quantities
of
those
same
chemicals
going
to
WWT
from
manufacturing
operations
in
terms
of
treatability.
One
could
argue
that
the
rationale
is
even
stronger
for
the
scrubber
water
stream,
because
the
wastes
have
already
undergone
one
extremely
effective
treatment.
The
combination
of
treatment
in
an
incinerator
plus
subsequent
treatment
of
any
remaining
residues
of
U­
or
P­
wastes
in
the
WWT
system
poses
no
threat
to
human
health
or
the
environment.

Included
in
section
I
of
these
comments
is
a
discussion
of
an
additional
method
assuring
that
de
minimis
losses
of
U­
and
P­
chemicals
are
properly
managed
for
purposes
of
the
exclusion
proposed
at
40
CFR
261.3(
a)(
2)(
iv)(
D).
This
methodology
could
be
used
with
regard
to
minute
levels
of
U­
and
P­
chemicals
in
scrubber
blowdown.
In
this
way,
small
quantities
of
these
chemicals
would
not
require
transportation
offsite
over
public
roads
for
incineration
when
they
could
be
managed
at
fully
compliant
incinerators
onsite,
without
loss
of
the
opportunity
to
use
the
revised
headworks
exemption
for
scrubber
blowdown.

We
urge
EPA
to
expand
the
qualification
of
scrubber
waters
for
the
headworks
exemption
to
include
minute
quantities
of
derived­
from
U­,
P­
and
K­
wastes,
when
listed
for
toxicity.

Response
116­
7:
Please
see
our
response
to
comment
112­
7.

Comment
116­
8:
H.
Eastman
Supports
Exempting
Leachate
Derived
from
Solvent
Wastes
and
Also
an
Exemption
for
Non­
solvent
Leachate
EPA
discusses
in
the
preamble
(
68
FR
17243)
the
suggested
revision
that
F039
landfill
leachate
resulting
from
the
disposal
of
more
than
one
listed
waste
under
40
CFR
part
261,
subpart
D­
be
exempted
under
the
headworks
proposal.
Such
revision
would
be
limited
to
leachate
derived
from
landfills
accepting
only
F001­
F005
spent
solvent
hazardous
wastes
and
no
other
listed
wastes.
EPA
does
not
propose
this
"
solvent­
only
leachate"
exemption
at
this
time,
because
it
"
does
not
have
sufficient
data
concerning
the
variability
of
these
leachates."
(
68
FR
17243)
Rather,
the
agency
considers
the
leachate
exemption
discussion
an
Advanced
Notice
of
Proposed
Rulemaking
(
ANPRM).
EPA
also
discusses
the
potential
option
of
proposing
an
exemption
for
"
other
types
of
leachate",
i.
e.,
non­
solvent
leachate,
that
would
most
likely
also
carry
the
F039
waste
code.
Headworks
Rule
Page
84
of
117
Eastman
supports
both
of
these
exemptions,
and
encourages
the
Agency
to
continue
work
on
a
proposal
that
would
allow
those
exemptions.

We
are
confused,
however,
with
the
Agency's
discussion
that
compares
leachate
derived
from
hazardous
waste
landfills
with
that
derived
from
nonhazardous
waste
landfills.
EPA
states
that
"
hazardous
waste
landfill
leachate
contained
a
greater
number
of
constituents
than
non­
hazardous
waste
landfill
leachate,
and
the
constituents
found
in
both
hazardous
and
nonhazardous
waste
landfill
leachate
generally
were
present
in
hazardous
waste
landfill
leachate
at
concentrations
an
order
of
magnitude
higher
than
those
found
in
non­
hazardous
waste
landfill
leachate."
(
68
FR
17243)
Indeed
it
seems
that
the
agency
is
in
need
of
additional
data
before
such
conclusions
can
be
drawn.
It
is
possible
that
the
data
base
for
nonhazardous
waste
landfills
is
driven
by
a
large
number
of
construction/
demolition
type
landfills
as
opposed
to
municipal
solid
waste
landfills
but
in
any
case,
comparisons
of
all
categories
of
nonhazardous
landfill
leachate
to
hazardous
waste
landfill
leachate
may
be
of
marginal
value.

After
all,
hazardous
waste
disposed
in
a
hazardous
waste
landfill
must
meet
technology
derived
land
disposal
restrictions
prior
to
disposal.
Waste
disposed
in
such
facilities
receives
a
much
more
intensive
analytical
evaluation
and
leachate
from
such
facilities
is
generally
subject
to
more
intensive
analyses.
More
complete
testing
would
be
done
for
a
hazardous
unit,
in
terms
of
the
number
of
constituent
analyses
and
the
frequency
of
testing.
In
reality,
however,
the
number
of
potential
constituents
in
leachate
from
a
nonhazardous
municipal
landfill
is
likely
to
be
quite
varied.
Such
landfills
accept
household
hazardous
waste,
conditionally
exempt
small
quantity
generator
waste,
commercial
waste,
wastewater
treatment
sludges
and
a
multitude
of
other
wastes
for
which
no
prior
treatment
requirements
exist.
However,
because
these
units
are
generally
municipally
owned
or
financed,
the
testing
and
analytical
requirements
are
generally
less
onerous
than
for
hazardous
waste
facilities.
As
such
the
data
base
may
be
more
limited
and
substantially
diluted
by
data
from
other
classes
of
nonhazardous
landfills
that
are
more
restrictive
concerning
the
types
of
wastes
that
can
be
managed.
With
so
much
uncertainty
and
based
on
an
understanding
of
the
types
of
wastes
received
by
such
facilities,
Eastman
thinks
any
denial
of
an
exemption
for
landfill
leachate
on
the
basis
of
the
"
number"
of
constituents
showing
up
in
available
analytical
data
is
not
appropriate.

We
also
disagree
with
any
suggestion
that
an
exemption
is
inappropriate
because
the
constituent
levels
in
hazardous
waste
leachate
are
greater
than
those
in
nonhazardous
waste
leachate.
Again,
Eastman
questions
whether
such
conclusions
are
drawn
based
on
equivalent
comparisons
of
data
and
types
of
units.
Just
because
data
for
certain
constituents
in
certain
leachates
does
not
exist,
does
not
mean
that
the
constituent
does
not
exist
in
that
leachate.

Given,
then,
that
one
should
realistically
expect
both
more
constituents
to
be
analyzed
in
hazardous
waste
and
considering
the
differences
in
the
types
of
nonhazardous
landfills
used
for
comparison,
the
Agency's
rationale
for
not
proposing
exemptions
for
leachate
on
the
basis
just
discussed
is
inappropriate.

The
Agency's
lack
of
sufficient
data
concerning
the
variability
of
landfill
leachates
is
the
better
Headworks
Rule
Page
85
of
117
rationale
for
asking
for
comment
on
the
appropriateness
of
exempting
the
leachates.
To
assist
the
Agency
in
better
understanding
the
composition
of
such
leachates,
we
are
submitting
F039
data
collected
at
our
Kingsport
site
and
at
our
Longview,
Texas
site
for
the
purposes
of
inclusion
in
this
comments
package.

Our
Kingsport
facility
operates
a
three­
acre
hazardous
waste
landfill
that
generates
very
small
quantities
of
an
F039
leachate
compared
to
the
total
WWT
influent
flow
(
1x10­
8
percent).
This
landfill
is
used
to
manage
derived­
from
incinerator
ash
that
results
from
the
treatment
of
F­,
U­
and
P­
wastes,
as
described
earlier,
contaminated
media
and
some
nonhazardous
wastes.
It
also
accepts
small
quantities
of
hazardous
waste
from
other
off­
site
Eastman
facilities
that
are
similar
to
those
generated
onsite
and
which
carry
RCRA
codes
consistent
with
those
wastes
generated
onsite.
In
addition,
groundwater
monitoring
wells
are
sampled
at
various
frequencies
from
quarterly
to
annually
throughout
the
facility
in
accordance
with
corrective
action
provisions
included
in
the
facility
RCRA
permit.
Although
no
remediation
of
these
ground
waters
is
required,
sporadic
low­
level
concentrations
of
organics
has
caused
Eastman
to
characterize
purge
waters
from
these
wells
as
F039.
Currently
these
wastewaters
are
discharged
to
the
WWT
for
management.
Other
management
options
will
be
required
for
the
purge
waters
if
no
exclusion
option
is
available.

To
assist
in
the
development
of
an
EPA
database
for
hazardous
waste
landfill
leachate
and
groundwater
monitoring
well
purge
water,
Eastman
is
providing
in
Attachment
1
to
these
comments
a
set
of
data
including
F039
analytical
data
for
both
the
hazardous
waste
landfill
leachate
and
groundwater
monitoring
well
purge
water
at
the
Kingsport
site
(
two
spreadsheets
in
one
electronic
Excel
file).
We
are
also
providing
in
Attachment
1
F039
data
for
our
Longview,
Texas
site.
This
Longview
leachate
data
is
from
groundwater
recovery
wells
for
the
site's
RCRA
corrective
action
units.
The
leachate
accounts
for
about
2.5
percent
of
the
total
flow
to
the
headworks.

Response
116­
8:
EPA
acknowledges
the
commenter's
support
for
a
potential
rulemaking
addressing
leachates.
EPA
also
notes
that
the
statement
regarding
the
number
of
constituents
in
hazardous
waste
landfill
leachate
is
based
on
data
gathered
to
establish
technology­
based
effluent
limitations
guidelines
and
standards
for
landfills
(
65
FR
3007,
January
19,
2000)
and
was
therefore
designed
to
be
comparable.
The
Agency
analyzed
all
wastewater
samples
that
it
collected
for
the
study
for
the
same
list
of
constituents
regardless
of
whether
the
landfill
was
considered
hazardous
or
non­
hazardous.

Comment
116­
9:
I.
Eastman
Supports
Expanding
the
De
Minimis
Exemption
but
Believes
the
Conditions
for
De
Minimis
Losses
of
F­
and
K­
wastes
to
Be
Excessive
EPA
is
proposing
to
expand
the
de
minimis
exemption
at
40
CFR
261.3(
a)(
2)(
iv)(
D)
which
currently
exempts
small
amounts
of
P­
and
U­
listed
wastes
lost
to
a
wastewater
treatment
system
from
manufacturing
operations.
The
area
of
expansion
that
Eastman
is
interested
in
reads:
"...
wastes
other
than
listed
commercial
chemical
products
for
sites
that
either
(
1)
have
a
permit
subject
to
the
CWA
that
contains
limits
for
(
1)
the
constituents
for
which
each
waste
was
listed
Headworks
Rule
Page
86
of
117
(
in
40
CFR
part
261,
appendix
VII)
and
(
b)
the
constituents
in
the
table
(
Treatment
Standards
for
Hazardous
Wastes'
in
40
CFR
268.40
for
which
each
waste
has
a
treatment
standard
(
i.
e.,
Land
Disposal
Restriction
constituents),
or
(
2)
have
eliminated
the
discharge
of
wastewaters
altogether."
(
68
FR
17244)
This
expansion
would
allow
de
minimis
amounts
of
F­
and
K­
listed
wastes
released
to
a
facility's
WWT
system
to
be
exempt
from
regulation
when
arising
from
losses
during
manufacturing
operations.

Eastman
supports
this
expansion
of
de
minimis.
However,
we
believe
the
Agency
has
attached
excessive
conditions
to
the
F­
and
K­
wastes,
before
de
minimis
can
apply.
We
do
not
believe
it
is
essential
to
have
each
and
every
chemical
for
which
the
waste
was
listed
to
be
specifically
named
in
the
permit
with
a
permit
limit.
In
the
NPDES
permit
process,
Eastman
reports
on
those
constituents
that
have
potential
to
be
in
the
WWT
influent.
In
addition,
Eastman
provides
a
compilation
of
the
facility's
SARA
312
report
that
provides
an
inventory
of
listed
material
used
at
the
facility
(
included
in
Attachment
2).
Because
the
facility
requires
a
permit
for
discharging
treated
process
wastewater,
EPA
Form
2C
is
submitted
as
part
of
the
application
(
also
included
in
Attachment
2).
Form
2C
requires
effluent
data
for
a
list
of
23
heavy
metals,
113
organic
chemicals,
and
numerous
indicator
parameters
(
i.
e.,
nitrate,
nitrite,
chlorine,
bromide,
and
biochemical
oxygen
demand).
Through
the
permitting
process­
the
applicable
regulations
and
effluent
guidelines,
the
permit
writer,
EPA
oversight
and
public
participation­
it
is
finally
determined
which
parameters
are
necessary
for
the
final
effluent
monitoring.

As
a
result
of
this
NPDES
permitting
process,
our
Kingsport
facility
has
effluent
limitations
­
based
on
effluent
guidelines
for
the
Organic
Chemicals,
Plastics,
and
Synthetic
Fibers
(
OCPSF)
point
source
category
­­
for
62
specific
organic
chemicals
and
metals,
in
addition
to
conventional
parameters
such
as
total
suspended
solids,
pH,
nitrogen,
as
well
as
biomonitoring
requirements.
The
conventional
parameters
and
biomonitoring
limitations
are
designed
to
address
discharges
of
constituents
for
which
specific
effluent
limitations
have
not
been
included.
The
process
is
quite
robust
in
evaluating
the
wastes
to
be
managed
and
appropriate
monitoring
of
effluent.
In
fact,
some
parameters
in
the
permit
have
effluent
limitations
lower
than
those
required
by
the
OCPSF
effluent
guidelines
in
order
to
comply
with
in­
stream
water
quality
standards.
As
such,
it
seems
clear
that
in
the
course
of
NPDES
permitting
for
facilities
subject
to
effluent
guidelines,
it
is
appropriate
that
the
agency
responsible
for
development
of
the
final
permit
should
decide
what
constituents
are
subject
to
constituent
specific
effluent
limitations
and
which
are
subject
to
control
based
on
indicator
parameter
monitoring.
For
your
reference,
enclosed
as
Attachment
2
is
a
copy
of
the
facility's
Form
2C
for
those
portions
applicable
to
the
WWT
outfall.

We
also
point
out
that
a
1995
EPA
policy
memorandum
on
the
"
shield"
associated
with
NPDES
permits
also
supports
our
position
that
identification
of
the
specific
waste
constituents
in
the
CWA
permit
application
should
be
adequate.
The
relevant
portion
of
that
"
shield"
reads
as
follows:

"
A
permit
provides
authorization
and
therefore
a
shield
for
the
following
pollutants
resulting
from
facility
processes,
waste
streams,
and
operations
that
have
been
clearly
identified
in
the
permit
application
process
when
discharged
from
specified
outfalls:
...
2)
Pollutants
for
which
the
permit
Headworks
Rule
Page
87
of
117
authority
has
not
established
limits
or
other
permit
conditions,
but
which
are
specifically
identified
in
writing
as
present
in
facility
discharges
during
the
permit
application
process
and
contained
in
the
administrative
record
which
is
available
to
the
public;
and
3)
Pollutants
not
identified
as
present
but
which
are
constituents
of
waste
streams,
operations
or
processes
that
were
clearly
identified
in
writing
during
the
permit
application
process
and
contained
in
the
administrative
record
which
is
available
to
the
public"
(
Revised
Policy
Statement
on
Scope
of
Discharge
Authorization
and
Shield
Associated
with
NPDES
Permits,"
Memorandum
to
Regional
Administrators
and
Regional
Counsels
from
Robert
Perciasepe,
Assistant
Administrator,
Office
of
Water,
April
11,
1995)

In
order
not
to
have
RCRA
impose
more
restrictions
on
WWT
facilities
than
are
required
from
the
NPDES
permitting
process
based
on
full
disclosure
of
information
as
required
on
Application
Form
2C
­
Wastewater
Discharge
Information
(
applicable
to
treated
wastewaters
as
opposed
to
storm
waters)
and
in
consideration
of
the
shield
associated
with
NPDES
permits,
Eastman
requests
that
the
Agency
revise
its
proposed
regulatory
language
to
read
as
follows
at
261.3(
a)(
2)(
iv)(
D):

"....
Any
manufacturing
facility
that
claims
an
exemption
for
de
minimis
quantities
of
wastes
listed
in
§
§
261.31
through
261.32,
or
any
non­
manufacturing
facility
that
claims
an
exemption
for
de
minimis
quantities
of
wastes
listed
in
subpart
D
of
this
part
must
have
eliminated
the
discharge
of
wastewaters
or
have
a
permit
subject
to
the
Clean
Water
Act
that
contains
limits
for,
the
constituents
for
which
each
waste
was
listed
(
in
40
CFR
261
appendix
VII)
of
this
part;
and
the
constituents
in
the
table
"
Treatment
Standards
for
Hazardous
Wastes"
in
40
CFR
268.40
for
which
each
waste
has
a
treatment
standard
(
i.
e.,
Land
Disposal
Restriction
constituents);
or
have
a
permit
subject
to
the
Clean
Water
Act
for
which
an
Application
Form
2C
­
Wastewater
Discharge
Information
has
been
submitted
which
includes
specific
information
concerning
the
constituents
for
which
each
waste
was
listed
(
in
40
CFR
261
appendix
VII)
of
this
part
and
the
constituents
in
the
table
"
Treatment
Standards
for
Hazardous
Wastes"
in
40
CFR
268.40
for
which
each
waste
has
a
treatment
standard
(
i.
e.
Land
Disposal
Restriction
constituents);
or"

Further,
Eastman
believes
that
this
type
of
process
could
be
used
to
further
assure
that
minute
discharges
of
U­
and
P­
wastes
in
scrubber
blowdown
can
be
appropriately
included
in
the
exclusion.
For
example,
some
of
the
commercial
chemicals
managed
at
the
Kingsport
incineration
facility
include
U102
(
dimethyl
phthalate)
and
UO88
(
diethyl
phthalate).
Eastman
provided
information
concerning
these
chemicals
on
Form
2C
of
the
NPDES
application
process
and
has
specific
effluent
limitations
for
these
chemicals
in
the
NPDES
permit.
Clearly,
it
is
protective
of
human
health
and
the
environment
if
scrubber
blowdown
carrying
these
codes
for
incineration
in
a
RCRA/
MACT
combustion
unit
for
which
less
than
five
percent
of
the
annual
scrubber
blowdown
contains­
these
codes
and
for
which
proper
notification
was
provided
in
the
NPDES
permitting
process
more
than
adequately
justifies
inclusion
of
such
blowdown
in
the
headworks
exemption.

In
a
second
example
of
commercial
chemicals
managed
at
this
facility,
commercial
chemical
U190
(
phthalic
anhydride)
or
U147
(
maleic
anhydride)
contaminated
insulation
is
managed
in
the
combustion
units.
These
materials
are
solids
at
ambient
temperatures
and
do
not
exist
in
scrubber
Headworks
Rule
Page
88
of
117
blowdown
as
phthalic
anhydride
or
maleic
anhydride.
Any
residual
material
that
may
exist
in
scrubber
blowdown
would
dissociate
in
water
to
form
acids
such
as
phthalic
acid,
terephthalic
acid
or
maleic
acid.
It
is
not
necessary
to
list
these
chemicals
as
a
specific
effluent
limitation
as
proper
treatment
of
such
acetic
materials
is
accomplished
by
measuring
effluent
pH
as
well
as
biological
demand
(
BOD).
In
addition,
any
effluent
toxicity
issues
are
adequately
addressed
by
provisions
for
biomonitoring
(
both
acute
and
chronic).
As
such,
it
would
be
appropriate
that
scrubber
blowdown
characterized
as
U190
or
U147
should
be
eligible
for
the
headworks
exemption
as
a
result
of
the
NDPES
permitting
and
effluent
limitation
process.

Clearly,
we
believe
the
NPDES
permitting
process
is
a
thorough
one,
and
as
long
as
any
chemicals
for
which
an
F­
or
a
K­
waste
are
listed
or
any
commercial
chemicals
that
may
be
managed
in
incinerators
which
discharge
scrubber
blowdown
to
permitted
WWT
facilities
were
considered
during
that
process,
it
is
unnecessary
that
specific
effluent
limitations
be
included
in
the
applicable
WWT
outfall's
permit.
In
addition,
as
discussed
above,
it
is
not
appropriate
to
establish
specific
effluent
limitations
for
RCRA­
listed
chemicals
whose
treatment
may
be
better
indicated
by
other
parameters.

While
the
NPDES
permit
process
may
vary
somewhat
from
state
to
state,
Eastman
believes
that
if
the
regulating
authority
has
knowledge
of
each
constituent
known
to
the
owner/
operator
to
be
in
the
influent
or
potentially
in
the
effluent,
and
if
after
public
review,
the
regulating
authority
determines
it
is
unnecessary
to
include
one
or
more
of
those
constituents
in
the
permit
with
regulatory
limits,
then
the
facility
should
be
able
to
utilize
the
expanded
de
minimis
exemption
without
the
need
to
modify
its
existing
permit
to
include
specific
effluent
limitations.
EPA
could
easily
require
that
documentation
be
kept
on­
site,
showing
that
the
permitting
authority
had
knowledge
of
those
chemicals
for
which
the
F­
or
K­
wastes
were
listed
during
the
permitting
process.

Response
116­
9:
EPA
acknowledges
Eastman's
support
for
the
expansion
of
the
de
minimis
exemption.
Please
see
our
responses
to
comments
98­
10
and
112­
7.

Comment
116­
10:
J.
Eastman
Disagrees
with
the
Expanded
Definition
of
a
De
Minimis
Loss
at
Proposed
261.3(
a)(
2)(
iv)(
D)

The
existing
code
at
40
CFR
261.3(
a)(
2)(
iv)(
D)
that
describes
a
de
minimis
loss
reads
as
follows:
...
de
minimis
losses
include
those
from
normal
material
handling
operations
(
e.
g.,
spills
from
the
unloading
or
transfer
of
materials
from
bins
or
other
containers,
leaks
from
pipes,
valves
or
other
devices
used
to
transfer
materials);
minor
leaks
of
process
equipment,
storage
tanks
or
containers;
leaks
from
well
maintained
pump
packings
and
seals;
sample
purgings;
relief
device
discharges;
discharges
from
safety
showers
and
rinsing
and
cleaning
of
personal
safety
equipment;
and
rinsate
from
empty
containers
or
from
containers
that
are
rendered
empty
by
that
rinsing...

The
proposed
code
for
that
same
paragraph
has
new
text
that
reads:

...
de
minimis
losses
are
unscheduled,
uncontrollable,
insignificant,
and
inadvertent
releases
Headworks
Rule
Page
89
of
117
to
a
wastewater
treatment
system,
including
those
from
normal
material
handling
operations...

Eastman
does
not
support
this
new
language
that
attempts
to
more
narrowly
define
a
de
minimis
loss.
In
our
opinion,
this
adds
an
intolerable
level
of
uncertainty
for
the
regulated
community,
and
it
opens
the
door
for
differing
interpretations
by
EPA
enforcement
staff.
Can
one
ever
claim
that
a
de
minimis
loss
is
"
uncontrollable"?
Given
enough
money
and
enough
hindsight,
perhaps
no
loss
can
be
claimed
as
uncontrollable.
The
new
wording
is
also
at
odds
with
the
existing
code
because
sample
purgings
and
container
rinsate,
for
example,
are
scheduled
losses.
They
are
not
"
unscheduled,
uncontrollable.
..
and
inadvertent."
For
internal
consistency,
the
new
words
should
not
be
added
to
this
paragraph
of
code.

In
addition,
the
very
fact
that
these
losses
are
de
minimis
and
not
subject
to
regulation
indicates
the
Agency
is
not
concerned
with
their
"
control."
That
is,
the
Agency
recognizes
that
letting
such
small
quantities
of
material
go
to
a
facility's
WWT
systems
is
"
not
likely
to
have
a
significant
effect
upon
that
system,
the
quality
of
facility
effluent
discharges,
solid
wastes
generated,
occupational
safety
and
health,
and
human
health
and
the
environment."
(
68
FR
17244)
Thus,
it
is
neither
necessary
nor
required
to
"
control"
the
discharge
of
these
de
minimis
quantities
of
material
to
WWT.

Given
that
regulators
have
administered
the
existing
de
minimis
exemption
and
the
regulated
community
has
implemented
the
exemption
without
need
for
further
clarification
for
a
number
of
years,
we
urge
the
Agency
to
leave
this
portion
of
the
paragraph
unchanged
or
at
minimum,
to
remove
the
words
"
uncontrollable"
and
"
unscheduled."
This
new
text
simply
raises
new
issues
without
any
demonstrated
need
for
such
revision.

Response
116­
10:
EPA
acknowledges
Eastman's
concerns
with
the
new
words
in
the
regulatory
definition
of
de
minimis.
Please
see
our
response
to
comment
111­
1
for
further
discussion
involving
our
decision
not
to
include
"
unscheduled,"
"
uncontrollable"
and
"
insignificant"
in
the
final
regulatory
language.
Headworks
Rule
Page
90
of
117
Comment
0028­
0117,
Department
of
Energy
Introduction:
On
April
8,
2003,
the
U.
S.
Environmental
Protection
Agency
(
EPA)
published
a
proposed
rule,
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
("
Headworks
Exemptions"),
in
which
EPA
proposes
to
add
benzene
and
2­
ethoxyethanol
to
the
list
of
solvents
whose
mixtures
with
wastewater
are
exempted
[
under
40
CFR
261.3(
a)(
2)(
iv)]
from
the
Resource
Conservation
and
Recovery
Act
(
RCRA)
definition
of
hazardous
waste.
The
U.
S.
Department
of
Energy
(
DOE)
appreciates
the
opportunity
to
comment
on
this
proposed
regulatory
revision.

The
enclosed
DOE
comments
are
divided
into
two
sections:
general
and
specific.
The
general
comments
address
broad
issues
regarding
the
proposed
rule.
The
specific
comments
address
particular
sections
of
the
proposed
rule.
For
clarity,
each
specific
comment
is
preceded
by
a
reference
to
the
section
of
the
proposed
rule
to
which
it
applies
and
a
quote
of
the
text
to
which
DOE's
comment
is
directed.

Comment
117­
1:
In
general,
the
Department
of
Energy
(
DOE)
supports
the
proposed
revisions
and
expansion
of
the
headworks
exemptions.

Response
117­
1:
EPA
acknowledges
DOE's
general
support
for
the
rulemaking.

Comment
117­
2:
Certain
of
the
proposed
changes,
however,
appear
to
be
somewhat
restrictive
and
inflexible
to
be
of
use
to
many
generators.
In
particular,
DOE
suggests
that
the
Environmental
Protection
Agency
(
EPA)
revise
the
approach
of
limiting
benzene
discharges
to
an
aerated
biological
wastewater
treatment
system,
and
allow
for
other
wastewater
treatment
units
(
WWTU)
to
receive
benzene
discharges
at
their
headworks
when
acceptable
levels
of
treatment
can
be
demonstrated.
DOE
also
seeks
clarification
regarding
several
specific
elements
of
the
proposed
rule.

Response
117­
2:
Please
see
response
to
comment
117­
3.

Comment
117­
3:
EPA
is
proposing
a
conditional
exemption
that
would
allow
the
discharge
of
benzene
at
1
ppm
at
the
headworks
of
the
WWTU.
However,
the
exemption
requires
that,
for
wastewater
containing
benzene
(
used
as
a
solvent),
the
wastewater
must
be
treated
using
an
aerated
biological
treatment
system.
The
exemption
further
requires
that,
for
any
facility
using
benzene
as
a
solvent,
only
lined
surface
impoundments
or
tanks
be
used
prior
to
secondary
clarification.
DOE
requests
the
Agency
reconsider
the
proposed
condition
that
mixtures
containing
benzene
must
be
managed
only
in
aerated
biological
wastewater
treatment
systems,
and
allow
benzene
to
be
discharged
to
the
headworks
of
any
WWTU
(
at
the
1
part
per
million
(
ppm)
total
headworks
limit)
as
is
allowed
for
the
other
solvents
listed
in
261.3(
a)(
2)(
iv)(
A).

A
WWTU
operated
at
DOE'S
Oak
Ridge
National
Laboratory
(
ORNL)
utilizes
a
combination
of
air
strippers
and
granular
activated
carbon
columns
that
remove
organics,
including
benzene,
as
effectively
as
an
aerated
biological
treatment
unit.[
Footnote
1:
Benzene
is
among
the
toxic
Headworks
Rule
Page
91
of
117
organics
that
is
monitored
in
the
ORNL,
effluent
under
the
National
Priority
Discharge
Elimination
System(
NPDES)
permit.
Benzene
has
not
been
detected
in
the
ORNL,
WWTU
effluent
in
monthly
monitoring
results
from
February
1997
through
April
2003.
Total
toxic
organics
in
RWL's
effluent
has
been
consistently
below
10ugL
throughout
that
period.]
Moreover,
the
on­
site
treatability
data
for
industrial
wastewaters
provided
by
EPA
in
the
background
document
Proposed
Rule
to
Expand
the
RCRA
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures;
Technical
Document,
September
2002,
indicates
that
the
majority
of
WWTUs
have
>
90%
median
removal
efficiencies,
with
most
at
99%
or
higher.
Only
solvent
extraction
had
a
low
median
removal
efficiency
(<
50%).
DOE
suggests
the
unrestricted
wording
of
the
existing
exemption
be
retained
and
"
benzene"
be
simply
added
as
an
additional
listed
spent
solvent
subject
to
the
1
ppm
limit.

Response
117­
3:
EPA
disagrees
with
the
suggestion
that
the
exemption
for
benzene
be
unrestricted.
Because
the
exemption
level
EPA
considered
is
for
benzene
concentration
in
wastewater
at
the
entrance
to
the
WWTU,
and
not
wastewater
and/
or
sludge
waste
leaving
a
facility,
evaluation
of
the
risks
associated
with
benzene
at
this
level
required
assuming
various
treatment
methods
and
determining
the
risks
from
managing
effluents
from
each
interim
point
in
a
given
treatment
method
(
for
a
more
detailed
discussion
of
the
risk
assessment
methodology,
please
see
Risk
Assessment
to
Support
the
Wastewater
Treatment
Exemptions
(
Headworks
Exemptions)
Proposed
Rule,
U.
S.
EPA
2003,
for
further
information).
Aerated
and
non­
aerated
biological
treatment,
the
two
methods
evaluated
during
the
risk
assessment,
are
understood
by
EPA
to
be
the
treatment
methods
used
by
the
vast
majority
of
facilities
potentially
affected
by
this
rule.
The
conditional
requirements
on
benzene
are
directly
based
on
the
results
of
the
risk
assessment
for
benzene.
Specifically,
risks
from
non­
aerated
biological
treatment
in
general
and
from
managing
primary
clarifier
wastewater
from
aerated
biological
treatment
in
unlined
surface
impoundments
had
unacceptable
risk
levels
for
lifetime
exposure.
All
other
commenters
on
this
proposed
rulemaking,
including
several
industry
associations
representing
the
majority
of
chemical
and
petrochemical
facilities,
support
the
conditional
requirements
as
reasonable.
Increasing
the
allowable
treatment
methods
for
benzene
or
removing
conditional
requirements
altogether
is
not
supported
by
the
risk
assessment.
In
a
subsequent
discussion
to
clarify
their
comments,
DOE
stated
that
their
objection
was
theoretical,
as
the
ORNL
WWTU
is
not
currently
handling
hazardous
wastewater
and
therefore
would
not
be
affected
by
the
proposed
addition
of
benzene
to
the
headworks
rule,
regardless
of
any
conditional
requirements
(
See
memorandum
on
October
7,
2003
conference
call
with
DOE
(
Docket#
RCRA­
2002­
0028­
0124)).
If
a
facility
using
a
method
other
than
aerated
biological
treatment
wishes
to
exempt
their
wastewater,
they
can
apply
for
a
site
specific
delisting
for
their
wastewater
under
§
260.22.

Comment
117­
4:
DOE
supports
the
inclusion
of
2­
ethoxyethanol
to
the
headworks
exemption
under
261.3(
a)(
2)(
iv)(
B)
at
the
25
ppm
limit.
The
exemption
would
encourage
on­
site
WWTU
management
options
that
would
be
environmentally
beneficial.

Response
117­
4:
EPA
acknowledges
DOE's
support
for
the
inclusion
of
2­
ethoxyethanol
to
the
headworks
exemption.
Headworks
Rule
Page
92
of
117
Comment
117­
5:
DOE
supports
EPA's
proposal
to
allow
an
additional
option
to
demonstrate
compliance
with
the
headworks
exclusion.

Response
117­
5:
EPA
acknowledges
DOE's
support
for
the
addition
of
direct
monitoring
as
a
compliance
method.

Comment
117­
6:
However,
DOE
is
concerned
with
the
component
of
the
proposal
that
would
limit
use
of
the
direct
monitoring
option
to
those
"
facilities"
that
are
subject
to
Clean
Air
Act
(
CAA)
regulations
(
40
CFR
60,61
or
63).

The
ORNL
WTU,
and
potentially
WTUs
at
other
DOE
facilities,
may
qualify
for
this
exemption.
The
ORNL
wastewater
treatment
unit
is
not
itself
subject
to
CAA
standards,
however,
other
operations
at
ORNL
are
subject
to
the
CAA
standards.
DOE
requests
clarification
of
the
meaning
of
the
term
"
facility"
with
regard
to
the
facility
being
subject
to
the
CAA
regulations.
If
EPA
intends
that
the
receiving
WWTU
must,
itself,
be
subject
to
CAA
regulations,
this
would
limit
the
number
of
facilities
that
could
utilize
the
alternative
monitoring
method
at
their
WWTU
headworks.

Response
117­
6:
As
we
stated
in
Section
II.
B.
of
the
proposal,
"
Facilities
that
choose
to
use
direct
monitoring
must
be
subject
to
Clean
Air
Act
regulations
that
minimize
fugitive
process
or
wastewater
emissions
(
e.
g.,
MACT
standards
under
40
CFR
61
or
63
or
NSPS
requirements
under
40
CFR
60)."
The
purpose
of
this
requirement
is
to
ensure
that
volatilization
of
solvents
are
minimized
prior
to
the
monitoring
point
at
the
headworks,
a
concern
in
the
original
1981
rule.
EPA
considered
volatilization
from
the
WWTU
units
after
the
headworks
point
(
such
as
from
the
activated
sludge
unit
or
primary
clarifier)
in
the
Agency's
risk
assessment
and
did
not
find
volatilization
to
be
an
unacceptable
source
of
risk
as
long
as
the
solvent
concentrations
at
the
headworks
did
not
exceed
the
specified
levels.
Because
the
intention
of
the
requirement
is
to
minimize
volatilization
prior
to
the
headworks
point
and
the
risk
assessment
found
that
volatilization
from
the
wastewater
treatment
unit
was
not
an
unacceptable
risk,
it
is
not
necessary
for
the
receiving
wastewater
treatment
unit
itself
to
be
subject
to
CAA
regulations.
However,
EPA
stresses
that
the
process
streams
and
wastewater
streams
that
lead
up
to
the
headworks
point
must
be
subject
to
CAA
regulations,
or
an
enforceable
limit
in
a
federal
operating
permit,
that
minimize
fugitive
emissions.

Comment
117­
7:
EPA
is
requesting
input
on
whether
to
require
its
approval
of
sampling
and
analysis
plans,
to
only
require
submittal
of
the
plan,
or
to
require
facilities
to
wait
a
period
of
time
before
implementing
the
plan
to
allow
for
a
review
period
by
EPA.
DOE
supports
a
30­
day
waiting
period,
to
allow
for
overseeing
agency
review
of
the
proposed
sampling
and
analysis
plan,
before
the
facility
implements
that
plan.
If
no
concerns
are
raised
by
the
agency
at
the
end
of
the
30­
day
period,
the
facility
should
be
allowed
to
proceed
with
direct
monitoring
without
further
delay
or
notification.

Response
117­
7:
EPA
acknowledges
DOE's
support
to
submit
a
SAP
for
review
and
to
have
a
30­
day
waiting
period.
While
requiring
a
30­
day
waiting
period
provides
the
overseeing
agency
Headworks
Rule
Page
93
of
117
the
opportunity
to
review
SAPs
prior
to
the
implementation
of
direct
monitoring,
it
will
put
an
unnecessary
burden
upon
both
the
regulating
agency
and
the
facility.
Requiring
the
facility
to
submit
the
SAP
and
only
obtain
confirmation
of
receipt
of
delivery
before
initiating
direct
monitoring
allows
the
facility
to
benefit
from
regulatory
relief
as
soon
as
possible
while
providing
the
agency
notification.
The
agency
can
then
decide
if
the
SAP
needs
immediate
review.
If
upon
review
the
overseeing
agency
decides
that
the
SAP
is
insufficient,
the
agency
can
reject
the
plan.
Once
the
overseeing
agency
rejects
the
plan,
the
facility
must
cease
direct
monitoring
until
the
bases
for
rejection
are
rectified.

Comment
117­
8:
DOE
requests
that
EPA
further
address
the
comment
resolution
process
for
facilities
whose
plan
has
been
rejected.
The
preamble
discussion
(
on
page
17242)
implies
that
the
facility
cannot
use
the
direct
monitoring
option
until
"
the
bases
for
the
rejection
are
corrected."
In
particular,
DOE
requests
that
EPA
clarify
the
actions
that
need
to
be
undertaken
before
the
facility
can
restart
its
direct
monitoring.
For
instance,
would
the
facility
need
only
to
resubmit
a
plan
that
it
believes
corrects
the
rejection,
or
would
the
revised
plan
need
to
be
approved
by
EPA?

Response
117­
8:
Upon
rejection
of
the
SAP,
it
is
the
facility's
responsibility
to
determine
from
the
overseeing
agency
the
reason
for
the
rejection
and
the
steps
that
need
to
be
taken
to
rectify
the
insufficiencies.
The
overseeing
agency
will
determine
whether
the
facility
can
resubmit
the
entire
SAP
or
submit
the
amended
sections
once
the
bases
for
rejection
are
corrected.
Once
the
facility
has
received
confirmation
that
the
overseeing
agency
has
approved
the
amended
sections
of
the
SAP,
the
facility
may
begin
using
the
direct
monitoring
option.

Comment
117­
9:
EPA
requested
information
on
influent
monitoring
at
WWTUs.
Influent
monitoring
at
the
ORNL
WTU
includes
flow
rates,
pH
(
3
times
per
day),
total
hardness
(
every
4
hrs),
phenolphthalein
(
every
8
hrs),
bicarbonate
(
every
8
hrs),
organic
sweeps
[
Total
Organic
Carbon
and
semi­
volatile
and
volatile
organic
analysis
totals
(
monthly)],
and
radiological
sweeps
(
daily).
Effluent
monitoring
is
based
on
the
National
Pollutant
Discharge
Elimination
System
(
NPDES)
permit
requirements,
for
example:

A.
Individual
toxic
organics
are
analyzed
and
the
individual
results
above
detection
are
totaled.
B.
The
results
of
the
total
toxic
organics
detected
are
compared
to
the
permit's
discharge
limits
for
total
toxic
organics.
C.
Cyanide
and
toxic
metals
are
also
monitored
at
the
WWTU
discharge.

Benzene
is
among
the
toxic
organics
that
is
monitored
in
the
effluent
under
the
NPDES
permit.
Benzene
has
not
been
detected
in
the
WWTU
effluent
in
monthly
monitoring
results
from
February
1997
through
April
2003.
Total
toxic
organics
in
the
effluent
has
been
consistently
below
10
micrograms/
liter
throughout
that
period.

Response
117­
9:
EPA
appreciates
DOE's
information
on
influent
monitoring
at
the
ORNL
WWTU.

Comment
117­
10:
DOE
supports
EPA's
proposal
to
exempt
scrubber
waters
derived
from
Headworks
Rule
Page
94
of
117
combustion
of
spent
solvent
wastes,
in
accordance
with
the
proposed
conditions
of
exemption
delineated
in
40
CFR
261.3(
a)(
2)(
iv)(
A)
and
(
B).

Response
117­
10:
EPA
acknowledges
DOE's
support
for
the
proposal
to
exempt
scrubber
waters
derived
from
combustion
of
spent
solvent
wastes,
in
accordance
with
the
proposed
conditions
of
exemption
delineated
in
40
CFR
261.3(
a)(
2)(
iv)(
A)
and
(
B).

Comment
117­
11:
DOE
supports
EPA's
proposal
to
expand
the
de
minimis
exemption
beyond
manufacturing
facilities
and
to
expand
the
types
of
wastes
included
in
that
exemption.
Non­
manufacturing
facilities
should
not
be
required
to
meet
additional
burdens
that
are
not
imposed
on
manufacturing
facilities
as
part
of
the
de
minimis
exemption.
Non­
manufacturing
facilities,
that
discharge
to
CWA
facilities,
have
their
own
discharge
limitations
that
have
been
set
by
their
NPDES
permit
or
pretreatment
programs
under
the
CWA.
If
the
revised
de
minimis
exemption
requires
a
CWA­
basis
(
e.
g.,
constituents
defined
in
the
permit),
then
that
standard
should
be
consistently
imposed
on
both
manufacturing
facilities
and
non­
manufacturing
facilities.
Additionally,
DOE
suggests
that
an
option
to
use
a
general
limit
(
e.
g.,
total
toxic
organics)
be
made
available
under
the
de
minimis
exemption
criteria
for
wastewaters
subject
to
the
CWA
402
and
307(
b)
rather
than
confining
it
to
chemical
constituent­
specific
limits.
As
such,
manufacturing
and
non­
manufacturing
facilities
could
be
eligible
for
the
de
minimis
exemption
without
having
to
necessarily
modify
its
CWA
NPDES
permit
for
each
chemical
constituent
(
e.
g.,
benzene)
proposed
for
the
exemption.

Response
117­
11:
EPA
acknowledges
DOE's
support
for
the
expansion
of
the
de
minimis
exemption.
Please
see
response
to
comments
98­
10
and
99­
4.
Headworks
Rule
Page
95
of
117
Comment
0028­
0118,
American
Chemistry
Council
Introduction:
The
American
Chemistry
Council
is
pleased
to
submit
comments
on
EPA's
"
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
­
Headworks
Exemptions,"
herein
referred
to
as
EPA's
"
headworks
proposed
rule"
or
"
headworks
proposal."
(
68
FR
17234,
April
8,
2003)

The
American
Chemistry
Council
(
ACC)
represents
the
leading
companies
engaged
in
the
business
of
chemistry.
Council
members
apply
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and
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that
make
people's
lives
better,
healthier,
and
safer.
The
Council
is
committed
to
improved
environmental,
health
and
safety
performance
through
Responsible
Care
®
,
common
sense
advocacy
designed
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address
major
public
policy
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and
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and
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research
and
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testing.
The
business
of
chemistry
is
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450
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and
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It
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S.
exports.
Chemistry
companies
invest
more
in
research
and
development
than
any
other
business
sector.

As
EPA
acknowledges
in
the
preamble
to
the
headworks
proposal,
ACC
has
had
a
long
history
of
interest
and
participation
in
the
rulemaking
effort.
We
appreciate
EPA
responding
to
ACC's
August
,
1999
letter
requesting
review
and
modification
of
the
headworks
and
de
minimis
exemptions,
and
for
acting
on
comments
received
in
response
to
the
Agency's
Novermber
19,
1999
hazardous
waste
identification
rule
(
HWIR)
proposal
(
64
FR
63382).

Executive
Summary:
ACC
supports
the
Agency's
continued
commitment
to
carefully
considered
modifications
of
the
existing
headworks
exemptions.
The
proposed
revisions
to
the
headworks
exemptions
allow
for
much­
needed
flexibility
in
the
safe
handling
and
treatment
of
wastewaters
with
minuscule,
treatable
amount
of
wastes
from
solvents
and
solvent
mixtures.
A
quick
summary
of
ACC's
comments
on
the
headworks
proposed
rule
is
as
follows:
°
ACC
supports
the
Agency's
proposal
to
add
benzene
and
2­
ethoxyethanol
to
the
list
of
solvents
whose
mixtures
with
wastewater
exempt
from
the
Resource
Conservation
and
Recovery
Act's
(
RCRA)
definition
of
hazardous
waste.
°
ACC
concurs
with
EPA's
reliance
on
RCRA's
mandate
that
the
Administrator
integrate
RCRA
with
other
environmental
laws,
including
Clean
Air
Act
and
Clean
Water
Act
regulations,
to
expand
the
headworks
exemption.
°
ACC
supports
the
description
of
"
headworks"
as
proposed.
°
ACC
supports
EPA's
proposal
to
exempt
certain
scrubber
waters
generated
from
the
combustion
of
solvent
wastes,
though
we
believe
that
the
proposal
is
too
limited
in
scope.
We
have
therefore
suggested
some
specific
additional
scrubber
water
wastes
that
should
also
be
eligible
for
the
exemption
based
on
a
logical
extension
of
the
justification
presented
by
EPA
in
the
proposed
rule.
°
ACC
supports
broadening
the
scope
of
the
de
minimis
exemption
to
include
nonmanufacturing
facilities
to
those
that
qualify
for
this
exemption
and
to
expand
the
types
of
wastes
that
are
allowed.
°
ACC
has
significant
concerns
about
and
objects
to
the
proposed
changes
to
the
regulatory
Headworks
Rule
Page
96
of
117
text
of
the
de
minimis
exemption.
°
ACC
supports
the
concept
of
exemption
leachate
derived
from
solvent
wastes,
and
suggests
that
in
the
future,
EPA
expand
the
possible
exemption
discussed
in
the
preamble
to
include
non­
solvent
leachate.

Our
more
specific
and
detailed
comments
follow
below.

Comment
118­
1:
ACC
supports
the
Agency's
proposal
to
add
benzene
and
2­
ethoxyethanol
to
the
list
of
solvents
whose
mixtures
with
wastewater
are
exempt
from
the
RCRA
definition
of
hazardous
waste.
In
1986,
EPA
added
benzene
and
2­
ethoxyethanol
to
its
spent
solvent
list
under
40
CFR
Part
261.31(
but
failed
to
make
an
analogous
addition
to
the
"
headworks"
exemption).
This
meant
that
wastewaters
containing
some
specific
F­
listed
solvents
would
be
exempted
from
regulation
as
hazardous
wastes,
but
wastewaters
containing
similar
quantities
of
different
F
listed
solvents
continue
to
be
regulated,
even
though
they
pose
no
greater
hazard
than
the
exempted
wastewaters.
The
Agency's
proposal
to
add
benzene
and
2­
ethoxyethanol
to
the
headworks
exemptions
will
make
the
regulatory
scheme
more
consistent
and
ensure
that
wastewaters
containing
these
constituents
are
no
longer
subject
to
needless
and
costly
Subtitle
C
regulation.
As
stated
in
this
proposed
rulemaking,
these
solvents,
like
those
already
exempted,
will
make
up
a
very
small
and
safely
treatable
part
of
the
mixture
of
wastewater
entering
the
headworks.
The
reasoning
that
sustained
the
prior
exemptions
of
1986
remains
valid
and
applicable
to
the
proposal
to
add
benzene
and
2­
ethoxyethanol
to
the
headworks
exemptions.
(
68
FR
17237)

Response
118­
1:
EPA
acknowledges
ACC's
support
for
the
addition
of
benzene
and
2­
ethoxyethanol
to
the
list
of
solvents
whose
mixtures
with
wastewater
are
exempt
from
the
RCRA
definition
of
hazardous
waste.

Comment
118­
2:
ACC
supports
EPA's
interpretation
of
RCRA's
mandate
to
integrate
RCRA's
provisions
with
other
environmental
laws
in
expanding
the
headworks
exemption,
42
U.
S.
C.
6905.
Since
the
Clean
Air
Act
(
CAA)
and
the
Clean
Water
Act
(
CWA)
already
regulate
the
constituents
of
concern,
the
environment
will
continue
to
be
protected
and
the
unnecessary
burden
of
duplicative
regulations,
protections
and
controls
will
be
avoided.
We
appreciate
the
fact
that
the
Agency's
current
headworks
proposal
recognizes
the
levels
of
protectiveness
currently
offered
by
other
laws
and
regulations.
For
example,
when
the
original
headworks
rule
was
promulgated
in
1981,
the
Agency
was
concerned
that
the
headworks
exemptions
might
encourage
facilities
to
volatilize
solvents
before
a
defined
measurement
point,
thus
allowing
facilities
to
claim
compliance
with
the
exemption.
Since
1981,
the
Agency
has
promulgated
numerous
air
emissions
regulations
for
new
and
existing
sources
under
the
Clean
Air
Act
(
e.
g.,
MACT
and
NSPS
programs).
ACC
supports
EPA's
contention
that
because
of
the
coverage
of
these
regulations,
any
concern
about
intentional
or
inadvertent
volatilization
has
now
been
addressed
and
resolved.

In
addition,
ACC
fully
supports
EPA's
reliance
upon
CAA
and
CWA
regulations
as
a
basis
for
proposing
flexible
compliance
approaches
(
e.
g.,
allowing
facilities
a
choice
of
using
either
direct
measurement
or
mass
balance
to
demonstrate
compliance)
in
the
headworks
rule.
Headworks
Rule
Page
97
of
117
Response
118­
2:
EPA
acknowledges
ACC's
support
for
the
rulemaking
our
integration
of
RCRA
with
other
environmental
laws.

Comment
118­
3:
In
the
proposal,
EPA
solicits
specific
comments
on
the
proposed
description
of
headworks
and
on
the
monitoring
and
reporting
requirements
of
the
rule.
(
68
FR
17242)
ACC
supports
the
Agency's
informal
description
of
headworks
as
the
location
at
which
the
final
combination
of
"
raw"
process
water(
s)
takes
place.
This
language
is
both
flexible
and
consistent
with
the
language
of
the
original
1981
preamble.
(
46
FR
56582)
The
inclusion
in
the
preamble
of
different
headworks
locations
is
helpful
to
illustrate
the
flexibility
implied
by
the
Agency's
description
of
what
location(
s)
may
constitute
the
"
headworks."
And
while
the
monitoring
and
reporting
requirements
of
the
rule
are
not
minimal,
we
support
the
flexibility
of
multiple
options
for
demonstration
of
compliance
(
see
the
following
section
of
our
comments).

Response
118­
3:
EPA
acknowledges
ACC's
support
of
the
informal
headworks
definition.

Comment
118­
4:
The
Agency
also
requests
comments
on
how
to
minimize
overlapping
reporting
requirements.
(
68
FR
17242)
Monitoring
for
the
headworks
rule
requires
sampling
wastewater
treatment
system
influent(
s).
While
some
facilities
would
routinely
conduct
influent
sampling
for
reasons
such
as
treatment
system
process
control,
such
monitoring
is
not
generally
a
reporting
requirement.
Some
facilities
may
also
perform
occasional
waste
stream
analyses
for
the
purposes
of
toxic
release
inventory
reporting,
but
we
think
it
unlikely
that
such
monitoring
could
routinely
be
used
as
part
of
the
demonstration
of
compliance
with
the
headworks
rule.
As
described
in
greater
detail
below,
we
believe
that
the
best
ways
to
minimize
the
burden
of
monitoring
and
reporting
for
the
headworks
rule
are
to:
1)
allow,
as
proposed,
for
the
demonstration
of
compliance
by
direct
monitoring,
and
2)
allow
for
performance­
based
reductions
in
sampling
frequency.

Response
118­
4:
EPA
acknowledges
ACC's
comment
regarding
ways
to
minimize
the
burden
of
monitoring
and
reporting
for
the
headworks
rule.
Please
see
response
to
comment
116­
5.

Comment
118­
5:
ACC
supports
EPA's
proposal
to
allow
for
demonstration
of
compliance
with
the
headworks
exemption
for
spent
solvents
and
for
carbamates
by
either
mass
balance
or
direct
monitoring.
The
numerous
air
emissions
regulations,
promulgated
since
the
1981
headworks
rule
was
published,
provide
significant
protection
to
address
former
concerns
about
intentional
or
inadvertent
constituent
volatilization
prior
to
monitoring
at
the
headworks.
For
many
facilities,
demonstration
of
compliance
by
direct
monitoring
will
give
more
accurate
and
reliable
results
than
mass
balance
predictions,
and
the
added
flexibility
provided
in
the
current
proposal
will
allow
facilities
to
demonstrate
compliance
in
the
most
technically
appropriate
and
cost­
effective
manner.

Response
118­
5:
EPA
acknowledges
ACC's
support
for
the
addition
of
direct
monitoring
as
a
compliance
method.

Comment
118­
6:
ACC
also
supports
the
proposal
that
each
facility
seeking
to
take
advantage
of
the
new
option
for
direct
monitoring
be
required
to
prepare
a
sampling
and
analysis
plan
(
SAP)
in
Headworks
Rule
Page
98
of
117
advance
of
the
commencement
of
direct
monitoring.
We
do
not,
however,
understand
why
EPA
is
proposing
to
require
that
the
plan
be
submitted
to
the
appropriate
overseeing
agency
since
this
has
not
been
required
in
other
similar
rulemakings,
e.
g.,
characterizing
waste
for
purposes
of
meeting
conditional
exemptions
under
the
chlorinated
aliphatics
rule
and
the
paint
production
proposed
rule.
(
65
FR
67068
and
66
FR
10060,
respectively)
In
addition,
most
generators
of
hazardous
waste
are
no
longer
required
to
prepare
and
submit
plans
to
analyze
waste
to
meet
the
Land
Disposal
Restriction
standards
when
treating
prohibited
waste
or
contaminated
soil
in
tanks,
containers,
or
containment
buildings
under
the
requirements
of
§
268.7(
a)(
5).
In
1997,
the
Agency
specifically
eliminated
the
requirement
to
submit
these
plans
in
order
to
reduce
the
burden
on
permitted
sites,
states,
and
EPA
Regions.
(
62
FR
25998)
Requiring
the
preparation
and
submittal
of
an
SAP
puts
an
additional
burden
on
both
large
and
small
quantity
generators.
An
SAP
should
be
prepared
and
maintained
on
site
for
review
during
regular
agency
inspections.
Such
a
provision
would
allow
for
appropriate
agency
review
and
oversight
of
the
plan
without
imposing
an
unnecessary
burden
on
either
site
personnel
or
regulatory
officials.
This
approach
is
also
consistent
with
changes
proposed
by
EPA
last
year
in
its
RCRA
Paper
Burden
Reduction
Rule.
(
67
FR
2518)

Response
118­
6:
Please
see
our
response
to
comment
101­
5
for
discussions
on
the
purpose
of
the
SAP
submittal
and
the
RCRA
Paper
Burden
Reduction
Rule.
The
following
discusses
ACC's
comments
regarding
this
condition
not
being
consistent
with
the
requirements
of
other
rules.

EPA
believes
that
it
is
inappropriate
to
compare
the
proposed
Chlorinated
Aliphatics
rule
(
64
FR
46476,
August
25,
1999)
and
the
proposed
Paints
rule
to
the
headworks
rule.
While
it
is
true
these
two
listing
rules
require
SAPs
to
be
developed
but
not
submitted,
there
are
two
significant
differences
between
these
listing
rules
and
the
headworks
exemption.
First,
the
testing
required
under
the
two
listing
rules
is
on
currently
non­
hazardous
waste
to
document
that
the
waste
should
continue
to
be
out
of
the
hazardous
waste
regulatory
system.
In
contrast,
the
testing
required
under
the
headworks
rule
is
on
currently
hazardous
waste
to
determine
whether
or
not
it
can
safely
exit
the
hazardous
waste
regulatory
system.
Second,
direct
monitoring
is
not
a
requirement
to
qualify
for
the
headworks
exemption;
it
is
an
option.
If
the
facility
still
determines
that
submitting
the
SAP
is
too
burdensome,
then
the
facility
can
opt
not
to
use
the
direct
monitoring
method
to
demonstrate
compliance
but
to
continue
monitoring
with
the
mass
balance
method.

In
addition,
while
it
is
true
that
in
1997
EPA
removed
the
requirement
of
submitting
waste
analysis
plans
for
generators
managing
and
treating
prohibited
waste
in
tanks,
containers
and
containment
buildings,
the
purpose
of
the
removal
was
to
streamline
the
LDR
process.
(
60
FR
43678,
August
22,
1995).
This
streamlining
was
a
response
to
the
Burden
Reduction
initiative
set
forth
in
the
President's
report
on
"
Reinventing
Environmental
Regulations,"
March
16,
1995.
EPA
stated
that
due
to
the
growth
of
the
LDR
program
and
the
regulated
community's
better
understanding
of
the
program,
it
was
unnecessary
to
maintain
all
of
the
reporting
and
recordkeeping
requirements.
Thus,
certain
LDR
paperwork
requirements
were
eliminated
to
reduce
the
burden.
(
61
FR
2363,
January
25,
1996).
In
regards
to
this
rulemaking's
requirement
to
submit
a
SAP
in
order
to
qualify
for
direct
monitoring,
EPA
notes
several
key
differences
between
the
headworks
rule
and
the
LDR
Phase
IV
rule.
First,
while
the
headworks
exemption
is
Headworks
Rule
Page
99
of
117
not
a
new
exemption,
the
addition
of
direct
monitoring
as
a
compliance
method
is.
Second,
the
SAP
serves
as
the
sole
notification
to
the
overseeing
agency
that
the
facility
will
be
using
the
direct
monitoring
method,
and
the
SAP
will
provide
important
information
on
key
sampling
parameters.
Third,
facilities
will
initially
set
the
conditions
with
which
they
intend
to
comply.
Finally,
submitting
the
SAP
is
not
a
requirement
to
qualify
for
the
exemption,
it
is
a
requirement
for
the
use
of
the
direct
monitoring
method.
Therefore,
it
is
necessary
to
require
SAPs
to
be
submitted
to
provide
the
overseeing
agency
the
opportunity
to
ensure
that
facilities
are
utilizing
the
newly
instituted
compliance
method
properly.

Comment
118­
7:
ACC
supports
the
concept
of
headworks
sampling
to
determine
weekly
average
concentrations.
We
believe
that
both
the
regulations
and
the
sampling
and
analysis
plan
should
explicitly
allow
for
reductions
in
sampling
frequency
when
a
site,
using
the
direct
monitoring
option,
demonstrates
consistent
compliance
with
the
weekly
performance
criterion.
Under
the
current
proposal,
a
facility
using
the
new
direct
monitoring
option
is
required
to
show
compliance
on
a
weekly
average
basis,
and
the
SAP
must
delineate
how
the
facility
will
calculate
compliance
with
a
weekly
average
requirement.
The
use
of
a
weekly
average
suggests
that
facilities
may
need
to
take
samples
at
least
once
per
week.
Although
it
may
not
be
unreasonable
to
initially
conduct
such
frequent
sampling
to
establish
a
baseline
and
to
determine
variability,
the
regulations
should
allow
a
facility
to
change
to
less
frequent
sampling
after
a
suitable
demonstration
has
been
made
that
it
consistently
complies
with
the
performance
criteria.

The
ability
to
reduce
sampling
frequency
is
consistent
with
the
parallel
approaches
taken
historically
in
RCRA
waste
analysis
plans
and
in
NPDES
permits.
In
each
case,
requirements
as
to
sampling
frequencies
are
established,
or
are
modified,
based
upon
longer­
term
data
on
the
levels
and
variability
of
the
stream
being
monitored.
As
stated
above,
we
believe
the
requirements
of
the
SAP
should
be
self­
implementing
and
based
on
site­
specific
data.
If
the
data
collected
over
time
suggests
that
the
sampling
frequency
can
safely
be
modified
to
a
monthly
average
basis,
or
later,
conducted
on
a
quarterly,
semiannual
or
annual
basis,
the
SAP
should
be
modified
to
justify
and
account
for
such
change.
Because
the
SAP
is
always
subject
to
regulatory
review
during
a
site
visit,
we
believe
this
provides
adequate
regulatory
relief
while
still
ensuring
that
the
wastewaters
remain
within
compliance
parameters.
Accordingly,
ACC
respectfully
requests
that
the
Agency
incorporate
language
into
the
final
headworks
rule
that
states
that
if
a
facility
complies
with
the
performance
criteria
on
a
weekly­
average
basis
for
26
consecutive
weeks
as
outlined
in
the
facility's
SAP,
it
may
amend
its
SAP
and
switch
to
monthly
(
or
less
frequent)
sampling
sufficient
to
demonstrate
compliance
with
the
performance
criteria.

Response
118­
7:
Please
see
our
response
to
comment
116­
5.

Comment
118­
8:
Many
of
our
member
companies
use
hazardous
waste
combustors
to
treat
spent
solvents.
Those
combustors
have
air
pollution
control
equipment
that
generates
scrubber
water
that
is
easily
treatable
in
the
facilities'
wastewater
treatment
plants.
However,
because
of
the
"
derived­
from"
rule,
the
scrubber
water
carries
the
F
code(
s)
of
the
spent
solvent
streams
that
are
combusted,
and
such
code(
s)
apply
to
both
the
combined
influent
wastewater
stream
being
treated
Headworks
Rule
Page
100
of
117
and
the
resultant
biosludge.
The
sludge
must
then
be
managed
in
a
Subtitle
C
landfill
(
or
a
hazardous
waste
combustion
unit)
due
solely
to
the
listed
codes
attached
to
the
scrubber
water
via
the
"
derived­
from"
rule.
This
derived­
from
designation
of
the
scrubber
water
precludes
the
use
of
the
headworks
exemption
because,
that
exemption
only
applies
to
"
normal
losses"
of
spent
solvents
from
manufacturing
operations,
and
not
from
wastes
that
are
already
separated
from
the
wastewaters
or
that
had
been
removed
from
the
process
previously
(
68
FR
17242).

EPA
now
provides
several
reasons
for
allowing
combustion
scrubber
waters
to
qualify
for
the
headworks
exemption:

A.
In
the
carbamates
final
rule
of
1995,
scrubber
waters
from
the
incineration
of
carbamate
production
wastes
were
considered
eligible
for
the
headworks
exemption
because
the
scrubber
waters
would
be
comparable
in
expected
constituents
and
concentration
levels
as
the
already­
exempted
carbamate
wastewaters.
B.
The
solvent
constituents
receive
at
least
99.99%
destruction
and
removal
efficiency
during
incineration.
C.
The
scrubber
water
is
typically
a
small
percentage
of
the
flow
into
a
wastewater
treatment
system.
D.
The
wastewater
treatment
system
further
reduces
remaining
constituent
concentrations.

ACC
strongly
supports
the
above
rationale
for
allowing
scrubber
waters
to
qualify
for
the
headworks
exemption.
(
68
FR
17242­
17243)
This
proposed
change
would
address
a
major
hindrance
to
the
efficient
management
of
the
scrubber
water,
yet
maintain
protection
of
human
health
and
the
environment.
The
RCRA
standards
for
combustors
require
a
high
destruction
and
removal
efficiency
(
DRE)
of
organic
contaminants
(
even
those
that
are
difficult
to
treat)
­
frequently
even
greater
than
99.99%
DRE
­
resulting
in
the
scrubber
waters
carrying
extremely
low
levels
of
contaminants.
Our
members
verify
that
the
total
blowdown
flow
from
the
combustion
units
is
usually
a
very
small
percentage,
generally
less
than
5%,
of
the
total
influent
flow
to
wastewater
treatment.
In
addition,
our
members'
wastewater
treatment
systems
are
designed
on
a
site­
specific
basis
to
treat
the
specific
organic
contaminants
entering
the
system.
In
effect,
the
spent
solvent
contaminants
are
nearly
all
destroyed
during
combustion
and
the
minute
quantities
left
in
the
treatment
residuals
(
the
scrubber
water)
undergo
yet
another,
highly
effective
treatment
method
in
the
wastewater
treatment
plant.

Response
118­
8:
EPA
acknowledges
ACC's
support
of
this
provision
of
the
rulemaking.

Comment
118­
9:
ACC
is
concerned,
however,
that
in
the
final
rule
EPA
may
simply
reinterpret
the
existing
text
of
the
headworks
exemption
to
allow
the
exemption
to
apply
to
scrubber
waters,
despite
the
fact
that
EPA
has
previously
interpreted
the
same
text
to
make
the
exemption
not
available
for
scrubber
waters.
This
may
make
the
validity
of
the
new
interpretation
vulnerable
to
legal
challenge,
and
companies
may
not
feel
comfortable
relying
on
it.
To
clarify
this
issue,
ACC
respectfully
recommends
that
the
final
regulatory
language
explicitly
include
scrubber
water
within
the
scope
of
the
exemption,
and
that
EPA
state
and
explain
its
justification
in
the
preamble
to
the
final
rule.
Headworks
Rule
Page
101
of
117
Response
118­
9:
Please
see
response
to
comment
112­
6.

Comment
118­
10:
ACC
believes
that
both
the
rationale
for
exempting
de
minimis
quantities
of
P
and
U
wastes
from
the
definition
of
a
hazardous
waste
(
40
CFR
261.3(
a)(
2)(
iv)(
D)),
and
for
applying
the
headworks
exemptions
to
scrubber
waters
containing
minute
quantities
of
F
listed
wastes,
should
also
apply
to
scrubber
waters
containing
minute
quantities
of
K,
P,
and
U
wastes
that
will
undergo
further
treatment
in­
wastewater
treatment
plants.
EPA
presently
proposes
to
exempt
only
a
limited
set
of
waste
codes
for
spent
solvents
(
F001
through
F005).
ACC
believes
this
is
too
narrow
and
will
not
be
of
much
benefit
to
most
facilities
that
generate
hazardous
waste
incinerator
scrubber
water.
Typically,
an
incinerator
permitted
under
RCRA
Part
B
incinerates
several
other
listed
waste
codes
from
the
F,
K,
P,
and
U
lists
in
addition
to
the
spent
solvents.
ACC
believes
that
the
same
logic
EPA
used
to
justify
exempting
scrubber
water
from
the
incineration
of
spent
solvents
can
be
used
to
justify
exempting
scrubber
water
derived­
from
the
incineration
of
other
solvents
and
organic
constituents.
[
Footnote
1:
See
68
Fed.
Reg.
Page
17243
referring
to
68
Fed.
Reg.
pages
7824­
7859]
An
incinerator
does
not
differentiate
between
spent
vs.
unused
solvents,
each
will
be
99.99%
destroyed
or
removed.

In
addition,
as
EPA
is
well
aware,
incineration
of
hazardous
waste
is
a
highly
regulated
treatment
method
where
several
operational
parameters
are
controlled
to
ensure
the
treatment
meets
the
99.99%
destruction
and
removal
efficiency.
All
RCRA
permitted
hazardous
waste
incinerators
are
limited
to
treatment
of
waste
codes
containing
hazardous
organic
constituents
that
are
"
incinerable,"
that
is,
only
hazardous
organic
constituents
that
can
be
destroyed
to
the
99.99%
DRE
levels
are
allowed
in
an
incinerator.
Most
RCRA
permits
specify
which
hazardous
organic
constituents
and
waste
codes
can
be
managed
in
an
incinerator.
The
hazardous
organic
constituents
are
selected
based
on
results
of
a
trial
burn
where
the
most
difficult
to
incinerate
organic
compounds
are
used
as
test
surrogates
(
i.
e.,
principal
organic
hazardous
constituents).
(
40
CFR
264.342)
A
measured
amount
of
the
test
surrogate
is
fed
to
the
incinerator
while
the
flue
gas
is
measured
to
determine
compliance
with
the
DIE
standard.
The
selection
of
the
difficult­
to­
incinerate
compound
is
based
on
the
"
Thermal
Stability­
Based
Incinerability
Hierarchy
Rankings."
The
incinerator
permit
will
only
allow
the
treatment
of
hazardous
wastes
that
are
more
incinerable
than
the
test
surrogate,
thereby
ensuring
effective
combustion,
as
long
as
the
incinerator
is
operated
at
conditions
determined
during
the
trial
burn.
The
incinerators
are
operated
by
trained
personnel
and
monitored
by
automatic
waste
feed
cut­
off
systems,
which
stop
the
waste
feed
if
one
of
the
monitored
parameters
is
not
in
line
with
the
values
(
determined
in
trial
burn)
required
to
obtain
the
99.99%
DRE
level.

After
treatment
in
a
highly
efficient
hazardous
waste
incinerator,
the
minute
quantity
of
waste
contained
in
scrubber
waters
will
undergo
further
treatment
in
a
wastewater
treatment
plant.
Wastewater
treatment
systems
are
known
to
be
effective
in
the
destruction
of
organic
chemicals,
and
with
CWA
permits
in
place
that
limit
the
discharge
of
specific
chemicals
of
concern,
we
don't
believe
that
allowing
these
minute
quantities
of
K,
P,
and
U­
listed
wastes
to
be
included
in
the
exemption
poses
a
threat
to
human
health
or
the
environment.
Therefore,
ACC
respectfully
requests
EPA
expand
the
list
of
wastes
allowed
in
exempted
scrubber
water
to
include
the
K,
P,
U,
and
other
non­
spent
solvent
F­
listed
organic
constituents.
This
would
allow
far
more
facilities
Headworks
Rule
Page
102
of
117
to
benefit
from
the
exemption
than
as
presently
proposed.

Response
118­
10:
EPA
is
not
persuaded
by
the
commenter's
argument
to
expand
the
exemption
of
scrubber
waters
derived
from
F­
listed
solvents
to
include
all
scrubber
waters.
The
rationale
for
including
scrubber
waters
from
the
F­
listed
solvents
in
the
exemption
under
§
261.3(
a)(
2)(
iv)(
A)
&
(
B)
cannot
reasonably
be
applied
to
the
scrubber
waters
derived
from
the
other
F­,
K­,
P­,
and
U­
listed
wastes.
This
rationale,
which
follows
the
rationale
used
to
exempt
carbamates
scrubber
waters,
states
that
scrubber
waters
derived
from
the
incineration
of
F­
listed
solvents
are
eligible
for
the
exemption
because
the
scrubber
waters
would
be
comparable
in
expected
constituents
and
concentration
levels
with
the
already­
exempted
F­
listed
solvents
(
§
261.3(
a)(
2)(
iv)(
A)
&
(
B)).
This
rationale
cannot
be
applied
universally
to
the
scrubber
waters
derived­
from
the
incineration
of
other
F­,
K­,
P­
and
U­
listed
wastes
because
not
all
of
these
listed
wastes
are
currently
exempted
in
§
261.3(
a)(
2)(
iv)(
A)
&
(
B).
Therefore,
if
the
listed
wastes
themselves
are
not
exempt,
then
the
scrubber
waters
derived­
from
their
incineration
cannot
be
exempt
using
this
rationale.

In
addition,
the
rationale
for
exempting
de
minimis
quantities
of
F­,
K­,
P­
and
U­
listed
wastes
from
the
definition
of
hazardous
waste
(
§
261.3(
a)(
2)(
iv)(
D))
cannot
be
applied
in
this
circumstance.
The
de
minimis
exemption
removes
from
regulation
small
amounts
of
F­,
K­,
Pand
U­
listed
wastes
that
are
often
unavoidably
lost
under
normal
material
handling
operations
at
well­
maintained
facilities.
The
release
of
scrubber
waters
into
the
wastewater
system
is
not
unavoidable
as
the
scrubber
water
is
a
segregated
wastewater
stream
at
its
point
of
generation.
Additionally,
the
rationale
behind
exempting
small
amounts
of
these
listed
wastes
is
that
wastewater
treatment
systems
are
capable
of
handling
the
small
amounts
of
the
wastes
that
are
unavoidably
spilled
to
the
system.
While
the
amount
of
actual
chemical
entering
some
wastewater
treatment
systems
via
scrubber
waters
is
extremely
low,
this
may
not
be
the
case
at
all
facilities
and
therefore,
this
reasoning
cannot
be
sufficient
justification
to
expand
the
exemption
universally
to
all
scrubber
waters.
EPA
notes
that
facilities
have
the
option
to
apply
for
a
site­
specific
delisting
if
desired.

Please
see
our
response
to
comment
112­
7
for
further
discussion
as
to
why
these
scrubber
waters
are
not
being
included
in
an
exemption.

Comment
118­
11:
ACC
supports
the
proposal
to
broaden
the
scope
of
the
de
minimis
exemption
to
add
non­
manufacturing
facilities
to
those
that
qualify
for
this
exemption
and
to
expand
the
types
of
wastes
(
e.
g.,
F
and
K
listed
wastes
and
wastes
other
than
listed
commercial
chemical
products)
that
are
eligible
for
the
exemption.
We
support
conditioning
the
expanded
exemption
on
the
facility
having
a
CWA
permit
that
meets
certain
requirements,
or
having
attained
the
status
of
a
zero
wastewater
discharge
facility.
ACC
also
interprets
the
expanded
de
minimis
provisions
as
applicable
to
facilities
that
have
eliminated
the
discharge
of
wastewaters
using
permitted
Class
I
injection
wells,
since
such
facilities
have
historically
been
considered
and
included
as
zero
discharge
facilities
under
the
CWA.

Response
118­
11:
EPA
acknowledges
ACC's
support
for
the
expansion
of
the
de
minimis
Headworks
Rule
Page
103
of
117
exemption.
The
following
response
discusses
ACC's
interpretation
that
the
expanded
de
minimis
provisions
are
applicable
to
facilities
that
have
eliminated
the
discharge
of
wastewaters
using
permitted
Class
I
injection
wells.

As
explained
in
the
preamble
of
the
original
headworks
rule,
the
exemptions
not
only
apply
to
wastewaters
that
are
managed
in
wastewater
treatment
systems
whose
discharges
are
subject
to
regulation
under
Section
402
or
307(
b)
of
the
CWA,
but
also
apply
to
"
those
facilities
(
known
as
"
zero
dischargers")
that
have
eliminated
the
discharge
of
wastewater
as
a
result
of,
or
by
exceeding,
NPDES
or
pretreatment
program
requirements."
(
46
FR
56584,
November
17,
1981).
These
wastewater
management
requirements
remain
unchanged
by
the
amendments
to
the
final
headworks
rule.

In
addition,
EPA
will
continue
to
invoke
the
same
approach
that
was
described
in
the
Third
Third
Rule.
(
55
FR
22672,
June
1,
1990).
As
stated
in
the
Third
Third
Rule
preamble,
underground
injection
wells
can
meet
the
headworks'
definition
of
zero
discharge
only
if
the
injection
well
is
being
used
for
the
purposes
of
complying
with
a
NPDES
permit,
other
applicable
effluent
guideline,
or
pretreatment
program
requirements.
Wastewaters
disposed
of
via
injection
well
are
not
usually
considered
discharges
under
the
CWA.
Therefore,
if
underground
injection
of
wastewaters
occurs
for
reasons
other
than
to
abide
by
a
NPDES
permit,
other
applicable
effluent
guideline
or
pretreatment
program
requirements,
then
those
wastewaters
are
not
eligible
for
the
wastewater
treatment
(
headworks)
exemptions
(
in
40
CFR
261.3(
a)(
2)(
iv)).

Comment
118­
12:
We
believe,
however,
that
in
addition
to
requiring
that
a
facility's
Clean
Water
Act
permit(
s)
contain
limits
of
Part
261
Appendix
VII
and
Land
Disposal
Restriction
constituents
associated
with
the
specific
wastes,
the
constituents
identified
in
the
permit
application
(
including,
as
described
below,
pollutants
which
are
identified
in
writing
as
being
present,
and
pollutants
not
specifically
identified
as
present,
but
which
are
constituents
of
a
waste
stream,
operation,
or
process
clearly
identified
in
writing
during
the
permit
application
process)
should
also
be
authorized
in
the
discharge
even
if
permit
limits
were
not
set
for
those
constituents
by
the
regulatory
agency.

As
part
of
the
CWA
permit
application
process,
the
authorizing
agency
has
the
opportunity
to
include
or
not
to
include
constituent
limits
based
on
the
facility's
operations
and
environmental
risk.
ACC
points
out
that
it
is
sometimes
inappropriate
to
have
regulatory
limits
for
certain
chemicals
included
in
the
NPDES
permit,
even
though
they
are
detected
within
the
influent
to
wastewater
treatment.
This
is
because
some
chemicals
in
the
influent
will
transform
to
other
chemicals
during
treatment
and
prior
to
discharge
in
the
effluent.
An
example
is
phthalic
anhydride,
which
would
dissociate
to
phthalic
acid
or
terephthalic
acid:
Typically,
the
regulatory
agency
would
not
set
a
limit
for
phthalic
anhydride,
but
would
instead
include
a
limitation
for
pH\
or
some
other
conventional
limit
appropriate
for
the
acids
that
would
form.
Thus,
the
proposed
requirement
to
include
limits
for
all
constituents
for
which
the
waste
was
listed,
or
for
which
each
waste
has
a
treatment,
standard
(
LDR),
is
inappropriately
narrow
and
contrary
to
EPA
policy.
Headworks
Rule
Page
104
of
117
Through
the
permit
application
process,
the
authorizing
agency
should
be
informed
of
all
chemicals
known
to
be
in
the
influent
and
will
determine
whether
or
not
a
permit
limit
for
any
given
chemical
is
appropriate
or
whether
some
other
monitoring
parameter
is
more
appropriate.
Moreover,
the
information
contained
in
permit
applications
is
considered
part
of
the
CWA
permit
conditions.
A
1995
EPA
policy
memorandum
on
the
"
shield"
associated
with
NPDES
permits
makes
this
point
clearly:

"
A
permit
provides
authorization
and
therefore
a
shield
for
the
following
pollutants
resulting
from
facility
processes,
waste
streams,
and
operations
that
have
been
clearly
identified
in
the
permit
application
process
when
discharged
from
specified
outfalls:
...
2)
Pollutants
for
which
the
permit
authority
has
not
established
limits
or
other
permit
conditions,
but
which
are
specifically
identified
in
writing
as
present
in
facility
discharges
during
the
permit
application
process
and
contained
in
the
administrative
record
which
is
available
to
the
public;
and
3)
Pollutants
not
identified
as
present
but
which
are
constituents
of
waste
streams,
operations
or
processes
that
were
clearly
identified
in
writing
during
the
permit
application
process
and
contained
in
the
administrative
record
which
is
available
to
the
public"
("
Revised
Policy
Statement
on
Scope
of
Discharge
Authorization
and
Shield
Associated
with
NPDES
Permits"
Memorandum
to
,
Regional
Administrators
and
Regional
Counsels
from
Robert
Perciasepe,
Assistant
Administrator,
Office
of
Water,
April
11,
1995).

As
long
as
the
waste
streams
or
constituents
of
concern
have
been
identified
by
the
facility
in
its
permit
application,
the
facility
should
be
able
to
take
advantage
of
the
expanded
de
minimis
exemption
whether
or
not
limits
for
all
constituents
are
included
in
the
CWA
permit.

Response
118­
12:
Please
see
response
to
comment
98­
10.

Comment
118­
13:
EPA
has
proposed
adding
some
new
regulatory
text
to
the
existing
code
at
40
CFR
261.3(
a)(
2)(
iv)(
D)
that
would
significantly
narrow
the
definition
of
the
de
minimis
exemption
as
follows:

``
..
de
minimis
losses
are
unscheduled,
uncontrollable,
insignificant,
and
inadvertent
releases
to
a
wastewater
treatment
system,
including
those
from
normal
material
handling
operations
..."

ACC
strongly
objects
to
this
new
language
because
it
adds
significant
compliance
and
enforcement
uncertainty
for
both
the
regulated
community
and
EPA's
enforcement
staff.
For
example,
the
word
"
uncontrollable"
opens
the
door
for
differing
interpretations,
because
how
can
one
ever
claim
that
a
de
minimis
loss
is
"
uncontrollable?"
Given
enough
hindsight
and
enough
money
spent
on
control
apparatus/
devices,
perhaps
no
loss
can
be
claimed
as
"
uncontrollable."
But
such
term
argues
against
the
very
logic
of
not
regulating
these
de
minimis
losses
of
material.
That
is,
the
Agency
recognizes
that
allowing
such
small
quantities
of
material
to
go
to
a
facility's
wastewater
treatment
system
is
"
not
likely
to
have
a
significant
effect
upon
that
system,
the
quality
of
facility
effluent
discharges,
solid
wastes
generated,
occupational
safety
and
health,
and
Headworks
Rule
Page
105
of
117
human
health
and
the
environment"
(
68
FR
17244).
Thus,
it
is
not
necessary
nor
is
it
required
to
"
control"
the
discharge
of
these
de
minimis
quantities
of
material.

Specifically,
ACC
objects
to
the
insertion
of
the
words
"
unscheduled,
uncontrollable,
insignificant
and
inadvertent"
(
hereinafter
"
the
new
words'')
to
the
definition
of
"
de
minimis"
at
40
CFR
261.3
(
a)(
2)(
iv)(
D)
for
the
two
main
reasons
given
below,
and
we
assert
that
EPA
should
not
include
the
new
words
into
the
definition
of
de
minimis.

First,
ACC
objects
to
the
inclusion
of
the
new
words
because
EPA
has
not
given
proper
notice
of
the
proposed
inclusion
of
these
words
to
the
regulated
community.
The
inclusion
of
these
new
words
is
not
discussed
or
explained
in
the
preamble
to
the
proposal,
nor
are
the
new
words
themselves
highlighted
in
the
actual
proposed
language.
The
new
words
simply
appear
in
the
definition
without
notice,
warning,
explanation,
or
justification.
This
makes
it
difficult
to
ensure
that
all
affected
parties
will
take
note
of
the
change
and
provide
any
pertinent
comments.
Also,
the
definition
at
261.3
(
a)(
2)(
iv)(
D)
applies
not
only
to
the
chemicals
being
added
to
the
de
minimis
exception
(
i.
e.,
those
chemicals
listed
in
261.31
and
.32,
which
the
addition
of
such
chemicals
to
the
exception
is
discussed
in
the
preamble)
but
also
to
those
chemicals
already
subject
to
the
de
minimis
exception
(
i.
e.,
those
listed
at
261.33).
Again,
the
regulated
community
is
given
no
notice
of
EPA's
intent
to
make
any
change
to
the
parameters
of
the
exception
for
commercial
chemical
products
listed
at
261.33.
The
new
words
that
affect
the
definition
of
de
minimis
for
261.33
listed
chemicals
simply
appear
without
any
mention
of
any
changes
to
the
de
minimis
exception
for
261.33
listed
chemicals.
Further,
because
EPA
provides
no
discussion
of
the
surprise
inclusion
of
these
new
words,
the
regulated
community
cannot
know
the
Agency's
intent
in
including
the
new
words,
which
makes
it
difficult
to
provide
meaningful
comment
on
the
need
for
their
inclusion.

Second,
ACC
objects
to
the
inclusion
of
the
new
words
to
the
definition
of
de
minimis
because
their
addition
results
in
an
internally
inconsistent
definition.
For
example,
two
of
the
new
words,
"
uncontrollable"
and
"
inadvertent",
are
inconsistent
with
the
included
examples
of
"
sample
purgings"
and
"
rinsing
and
cleaning
of
personal
safety
equipment."
Sample
purgings
are
always
intentional,
and
thus
cannot
be
"
inadvertent."
Sample
purgings
are
also
usually
controllable.
Thus
the
inclusion
of
these
terms
as
applied
to
sample
purgings
is
internally
inconsistent
and
makes
no
sense.
The
rinsing
and
cleaning
of
personal
safety
equipment
is
likewise
intentional
and
cannot
be
inadvertent;
again,
this
is
another
example
of
internal
inconsistency
in
the
new
proposed
definition.
Therefore
the
proposed
inclusion
of
the
new
words
should
be
rejected.

The
key
language
of
the
de
minimis
exception
was
promulgated
with
the
first
round
of
RCRA
regulations
in
1981.
Both
the
regulated
community
and
the
agencies
responsible
for
implementing
RCRA
long
ago
established
a
working
understanding
of
what
this
verbal
formula
means.
Indeed,
when
it
was
necessary
to
amend
the
land
disposal
regulations
to
include
a
de
minimis
exception,
EPA
wisely
maintained
essentially
the
same
well­
established,
well­
understood
verbal
formula
that
it
had
first
published
in
1981.
To
insert
some
new
words
in
that
formula,
especially
when
they
conflict
on
their
face
with
phrases
that
have
long
been
a
part
of
the
formula,
would
create
unnecessary
confusion
as
to
the
purpose
of
the
change,
and
would
result
in
significant
compliance
Headworks
Rule
Page
106
of
117
and
enforcement
uncertainty.

Response
118­
13:
EPA
acknowledges
ACC's
concern
over
the
new
words
in
the
regulatory
definition
of
de
minimis.
Please
see
our
response
to
comment
111­
1
for
further
discussion
involving
our
decision
not
to
include
"
unscheduled,"
"
uncontrollable"
and
"
insignificant"
in
the
final
regulatory
language.

Comment
118­
14:
EPA
discusses
in
the
preamble
the
suggested
revision
that
F039
(
landfill
leachate
resulting
from
the
disposal
of
more
than
one
listed
waste
under
40
CFR
part
261,
subpart
D)
be
exempted
under
the
headworks
proposal.
(
68
FR
17243)
Such
revision
would
be
limited
to
leachate
derived
from
landfills
accepting
only
F001
­
F005
spent
solvent
hazardous
wastes
and
no
other
listed
wastes.
EPA
does
not
propose
this
"
solvent­
only
leachate"
exemption
at
this
time,
because
it
"
does
not
have
sufficient
data
concerning
the
variability
of
these
leachates."
(
68
FR
17243)
Rather,
the
agency
considers
the
leachate
exemption
discussion
an
Advanced
Notice
of
Proposed
Rulemaking.
EPA
also
discusses
the
potential
option
of
proposing
an
exemption
for
"
other
types
of
leachate",
i.
e.,
nonsolvent
leachate,
that
would
most
likely
also
carry
the
F039
waste
code.
ACC
supports
both
of
these
exemptions,
and
encourages
the
Agency
to
continue
work
on
a
proposal
that
would
allow
those
exemptions
in
the
near
future.

Response
118­
14:
EPA
acknowledges
ACC's
support
for
a
potential
rulemaking
to
addressing
leachates.

Comment
118­
15:
We
respectfully
disagree,
however,
with
the
Agency's
conclusions
drawn
from
the
comparison
of
leachate
derived
from
hazardous
waste
landfills
with
that
derived
from
nonhazardous
waste
landfills.
EPA
states
that
"
hazardous
waste
landfill
leachate
contained
a
greater
number
of
constituents
than
non­
hazardous
waste
landfill
leachate,
and
the
constituents
found
in
both
hazardous
and
nonhazardous
waste
landfill
leachate
generally
were
present
in
hazardous
waste
landfill
leachate
at
concentrations
an
order
of
magnitude
higher
than
those
found
in
non­
hazardous
waste
landfill
leachate."
(
68
FR
17243)
For
the
reasons
described
below,
we
believe
that
these
conclusions
are
premature,
and
cannot
be
drawn
without
more
refined
comparison
and
analyses.

First,
leachate
comparison
on
the
basis
of
the
"
number"
of
constituents
showing
up
in
the
available
analytical
data
may
not
be
appropriate.
Waste
disposed
in
a
hazardous
waste
landfill
(
and
the
leachate
captured
from
that
waste)
is
subject
to
much
more
intensive
analytical
evaluation
than
for
a
nonhazardous
landfill.
As
such,
the
frequency
of
testing
and
the
number
of
constituent
analyses
at
a
hazardous
waste
landfill
might
produce
a
misleading
greater
"
number"
of
constituents
(
either
detected
or
not
detected,
and
then
assumed
present
at
the
detection
limit).
Just
because
data
does
not
exist
for
certain
constituents
in
certain
leachates
does
not
mean
that
the
constituent
doesn't
exist
in
that
leachate.
ACC
therefore
believes
that
denial
of
an
exemption
for
landfill
leachate
on
the
basis
of
the
"
number"
of
constituents
showing
up
in
available
analytical
data
is
not
appropriate.

Second,
leachate
comparison
on
the
basis
of
constituent
levels
in
the
available
data
does
not
take
Headworks
Rule
Page
107
of
117
into
account
the
wide
variety
of
contents
present
in
either
a
hazardous
or
a
nonhazardous
landfill.
For
example,
it
is
possible
that
the
database
for
nonhazardous
waste
landfills
is
driven
by
a
large
number
of
construction/
demolition
type
landfills
as
opposed
to
municipal
solid
waste
landfills.
Leachate
from
such
landfills
would
be
very
different
in
composition
from
leachate
from
a
nonhazardous
municipal
landfill,
which
may
accept
household
hazardous
waste,
conditionally
exempt
small
quantity
generator
waste,
commercial
waste,
wastewater
treatment
sludges,
and
a
multitude
of
other
wastes
for
which
no
prior
treatment
requirements
exist.
ACC
questions
whether
such
conclusions
are
drawn
based
on
equivalent
comparisons
of
data
and
types
of
units
(
i.
e.,
whether
the
Agency
is
inadvertently
making
an
"
apples
to
oranges"
comparison).
Without
more
refined
analyses,
EPA's
conclusions
are
inappropriate.

To
assist
the
Agency
in
better
understanding
the
composition
of
such
leachates,
at
least
one
of
ACC's
member
companies
(
Eastman
Chemical
Company)
intends
to
submit
analytical
data
on
leachate
composition.
ACC,
Eastman,
DuPont,
and
other
ACC
member
companies
would
be
pleased
to
work
with
the
Agency
as
it
gives
further
consideration
to
a
potential
exemption
for
leachate.

Response
118­
15:
The
statement
regarding
the
number
of
constituents
in
hazardous
waste
landfill
leachate
is
based
on
data
gathered
to
establish
technology­
based
effluent
limitations
guidelines
and
standards
for
landfills
(
65
FR
3007,
January
19,
2000)
and
was
therefore
designed
to
be
comparable.
EPA
notes
that
any
submission
of
data
regarding
leachates
from
the
public
will
be
accepted.
Headworks
Rule
Page
108
of
117
Comment
0028­
0119,
Kinder
Morgan
Liquid
Terminals
Introduction:
Kinder
Morgan
Liquid
Terminals
(
KMLT)
LLC
offers
the
following
comments
on
EPA's
"
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
 
Headworks
Exemptions",
herein
referred
to
as
EPA's
the
"
headworks
proposal".

KMLT
is
a
Delaware
limited
liability
company
owning
and
operating
19
terminals
throughout
US
involved
in
storage
and
handling
of
petroleum
and
chemicals.
These
terminals
are
subject
to
the
RCRA
hazardous
waste
identification
and
management
regulations,
and
therefore
impacted
by
this
rulemaking.

KMLT
supports
this
proposal
where
it
proposes
appropriate
flexibility
in
management
of
wastewaters.
We
specifically
support
the
proposal
to
broaden
the
use
of
the
de
minimis
exemption,
currently
only
available
to
manufacturing
operations.
There
are
concerns
however
about
some
of
the
requirements
associated
with
this
proposed
broadened
application
of
the
exemption
and
with
the
definition
of
de
minimis.
Below
we
are
providing
detailed
discussion
of
these
issues.

Comment
119­
1:
The
conditions
for
expansion
of
exemption
in
the
proposed
rule
§
261.3(
a)(
2)(
iv)(
D)
require
an
NPDES
permit
with
specific
constituents
limits
or
that
wastewater
discharge
be
eliminated.
Majority
of
KMLT
terminals
impacted
by
the
EPA's
RCRA
rules
for
mixtures
do
not
have
direct
discharge
permits
for
their
wastewaters;
instead
they
discharge
wastewaters
into
publicly
owned
treatment
works
(
POTWs)
or
city
treatment
works.
Therefore,
the
terminals
can
not
use
the
expanded
exemption
as
proposed.

Further,
such
indirect
discharges
from
terminals
are
subject
to
varying
level
of
pretreatment
based
upon
requirements
specified
by
the
wastewater
receiving
authorities.
The
authorities
are
made
aware
of
the
nature
of
discharges,
chemicals
handled,
and
pretreatment
operations
at
the
terminals,
and
they
elect
to
specify
conditions
of
discharge
as
well
as
specific
limits
that
are
necessary
for
their
operations
and
discharge
limitations.
The
authorities
also
conduct
periodic
monitoring
of
discharges
to
ensure
compliance
with
the
limits
specified
in
their
agreements
with
terminals.

Rarely
do
conditions
of
discharge
("
permits")
described
above
contain
specific
constituent
limits
as
contemplated
for
the
expansion
of
exemption
in
the
proposed
rule.
The
authorities,
as
part
of
their
requirements
under
the
CWA/
NPDES
permitting
process,
have
permits
with
certain
specific
limits.
Based
on
information
on
discharges
from
terminals,
and
their
own
influent
monitoring
data,
water
treatment
authorities
provide
information
on
potential
influent
sources
to
the
appropriate
NPDES
permitting
authorities
who
in
turn
develop
permits
with
limits
that
are
protective
of
the
environment.
Such
NPDES
permits
do
not
always
contain
specific
limits
for
each
of
the
chemicals
managed
at
the
terminals.
Therefore,
even
if
the
EPA
were
to
extend
the
condition
of
expansion
of
exemption
to
indirect
discharges
to
Cities
and
POTWs,
the
requirement
to
have
each
constituent
listed
in
the
permit
with
a
specific
limit
may
preclude
KMLT
terminals
from
utilizing
the
exemption.
Headworks
Rule
Page
109
of
117
In
cases
where
the
terminals
employ
on­
site
treatment
and
have
direct
discharge
NPDES
permits,
generally,
the
permits
do
not
contain
limits
for
each
of
the
chemicals
handled
at
the
facility.
Terminals
follow
the
NPDES
permit
application
process
in
describing
potential
sources
of
contaminants
and
the
appropriate
NPDES
authorities
develop
permits
with
monitoring
and
limits
as
they
determine
are
protective
of
the
environment.

The
expansion
of
exemption
as
proposed
will
require
terminals
to
undertake
significant
and
unnecessary
permit
amendments,
a
prolonged
administrative
process
that
in
the
big
picture
will
not
add
any
additional
protection
to
the
discharges
or
the
environment,
and
add
significant
burden
for
monitoring
each
constituent.
The
current
process
provides
for
protection
of
environment
from
terminals
that
are
indirect
dischargers
through
NPDES
permitting
and
monitoring
of
final
discharge
from
POTWs,
and
from
terminals
with
direct
discharge
capabilities
through
their
own
NPDES
permits.

Therefore,
we
recommend
that
in
addition
to
the
requirement
to
eliminate
the
discharge
of
wastewaters
altogether,
the
requirements
for
expansion
of
exemption
include:

A.
discharges
to
POTWs,
and
B.
discharges
under
NPDES
permits
If,
however,
EPA
must
provide
for
any
additional
safeguards
to
ensure
that
discharge
of
de
minimis
losses
is
adequately
addressed
under
the
RCRA
program,
it
may
require
that
nonmanufacturing
facilities
provide
full
disclosure
of
chemicals
handled
at
the
facility
at
the
next
routine
NPDES
permit
amendment
or
renewal.
The
choice
of
specific
limit
for
each
chemical
in
the
Permit
should
be
left
to
the
NPDES
permitting
authority.

Response
119­
1:
Please
see
responses
to
comment
98­
10
and
99­
4.

Comment
119­
2:
We
find
it
unnecessary
to
make
any
changes
by
adding
explanations
to
the
definition
of
de
minimis
as
the
current
definition
has
been
in
use
for
almost
20+
years
by
the
manufacturing
industry
and
the
intent
behind
this
exemption
has
been
well
established
over
this
time.
We
suggest
that
the
agency
leave
the
definition
as
in
the
current
rules
with
emphasis
on
what
de
minimis
is
rather
than
what
it
is
not
as
in
the
proposed
rule.

Response
119­
2:
EPA
acknowledges
KMLT's
concerns
with
the
new
words
in
the
regulatory
definition
of
de
minimis.
Please
see
our
response
to
comment
111­
1
for
further
discussion
involving
our
decision
not
to
include
"
unscheduled,"
"
uncontrollable"
and
"
insignificant"
in
the
final
regulatory
language.

Comment
119­
3:
We
support
EPA's
continuing
efforts
in
this
area
to
narrow
the
definition
of
solid
waste
that
is
subject
to
RCRA.
We
support
comments
being
submitted
by
Texas
Terminal
Operators
with
respect
to
concerns
regarding
the
requirements
associated
with
expansion
of
de
minimis
exemption,
and
support
API's
comments
regarding
definition
of
de
minimis,
and
proposal
to
exempt
F039
from
captive
on­
site
landfills.
Headworks
Rule
Page
110
of
117
Response
119­
3:
EPA
acknowledges
KMLT's
support
of
the
de
minimis
expansion
comments
submitted
by
the
Texas
Terminal
Operators,
as
well
as
KMLT's
support
of
the
comments
on
the
de
minimis
definition
and
leachate
submitted
by
API.
Headworks
Rule
Page
111
of
117
Comment
0028­
0120,
Synthetic
Organic
Chemical
Manufacturers
Association
Introduction:
The
Synthetic
Organic
Chemical
Manufacturers
Association
("
SOCMA")
is
pleased
to
provide
comments
on
EPA's
proposed
rule
entitled
"
Revisions
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
("
Headworks
Exemptions")
(
67
FR
38102)
(
hereinafter
the
"
Headworks
Proposal").

SOCMA's
300+
member
companies
make
the
products
and
refine
the
raw
materials
that
make
our
standard
of
living
possible.
From
pharmaceuticals
to
cosmetics,
soaps
to
plastics,
and
all
manner
of
industrial
and
construction
products,
SOCMA
members
make
materials
that
save
lives,
make
our
food
supply
safe
and
abundant,
and
enable
the
manufacture
of
literally
thousands
of
other
products.

In
connection
with
their
regular
manufacturing
operations,
many
SOCMA
members
routinely
generate
and
manage
materials,
which
are
regulated
as
hazardous
waste
under
the
Resource
Conservation
and
Recovery
Act
("
RCRA").
Hence,
SOCMA
members
have
a
direct
interest
in
EPA's
efforts
to
reform
the
headworks
exemptions.
Many
SOCMA
member
companies
are
relatively
smaller
companies
that
have
limited
staff
and
resources.
In
fact,
over
70%
of
SOCMA's
members
qualify
as
"
small
businesses."
Consequently,
SOCMA
is
very
interested
in
this
proposed
rule
and
its
potential
impact
on
our
members.

Frequently,
the
manufacturing
operations
of
SOCMA
members
are
"
batch"
manufacturing
operations,
as
distinct
from
the
continuous
operations
used
in
commodity
chemical
operations.
These
manufacturers
often
have
a
fluctuating
product
mix
that
varies
in
response
to
customer
demand.
As
a
result,
the
waste
streams
generated
by
these
facilities
can
vary
over
time.
Consequently,
these
SOCMA
members
have
a
direct
and
significant
interest
in
the
regulations,
procedures
and
methods
to
be
used
to
identify
and
characterize
wastes
as
"
hazardous"
under
RCRA
and
are
particularly
interested
in
steps
that
can
be
taken
to
reduce
the
regulatory
burdens
of
the
hazardous
waste
program.

Comment
120­
1:
SOCMA
generally
supports
the
proposal
to
add
two
additional
solvents,
benzene
and
2­
ethoxyethanol,
to
the
group
of
solvents
already
listed
under
the
headworks
exemption
in
40
C.
F.
R.
§
261.3(
a)(
2)(
iv)(
A)
&
(
B).
Given
that
the
additional
listings
do
not
alter
the
previously
established
concentration
levels,
this
increased
flexibility
will
prove
beneficial
to
a
number
of
companies
and
will
not
require
significant
implementation
steps
on
the
part
of
the
regulators
or
the
regulated
community.

Response
120­
1:
EPA
acknowledges
SOCMA's
general
support
for
the
addition
of
benzene
and
2­
ethoxyethanol
to
the
headworks
exemption.

Comment
120­
2:
SOCMA
supports
the
proposal
to
allow
for
direct
monitoring
as
an
alternative
compliance
demonstration
method
with
the
headworks
exemptions
for
spent
solvents
and
carbamate
wastes.
Use
of
the
mass­
balance
approach
is
more
resource­
intensive
for
many
facilities,
and
direct
monitoring
should
be
a
reliable
and
feasible
alternative
for
many
facilities.
Headworks
Rule
Page
112
of
117
Response
120­
2:
EPA
acknowledges
SOCMA's
support
for
the
addition
of
direct
monitoring
as
an
alternative
compliance
method.

Comment
120­
3:
EPA
has
indicated
that
facilities
will
only
be
allowed
to
implement
the
direct
monitoring
alternative
if
the
facility
is
subject
to
Clean
Air
Act
requirements
such
as
MACT
standards
or
NSPS
requirements.
The
Agency
imposes
this
prerequisite
in
order
to
provide
assurance
that
controls
exist
at
the
facility
to
address
potential
for
volatilization.
SOCMA
considers
this
a
reasonable
approach.
However,
SOCMA
also
believes
that
a
facility
having
fugitive
controls
in
place
is
what
is
important,
not
that
they
are
regulated
by
a
MACT
standard.
For
example,
the
Pharma
MACT
requires
fugitive
controls.
If
a
site
is
major
source
and
puts
covers
on
equalization
basins
and
controls
on
sumps
to
meet
the
MACT
requirements
prior
to
the
effective
date
of
the
MACT,
however,
this
allowed
for
Federally
enforceable
permit
limits
to
take
place
that
allowed
the
site
to
become
an
area
source
under
a
synthetic
minor
permit.

Response
120­
3:
EPA
agrees
that
federally
enforceable
permit
limits
addressing
fugitive
emissions
would
qualify
a
facility
to
use
the
direct
monitoring
alternative.

Comment
120­
4:
The
proposed
option
for
direct
monitoring
would
require
facilities
to
develop
a
site­
specific
sampling
and
analysis
plan
that
would
demonstrate
compliance
with
the
weekly
average
standards
set
for
solvents.
The
proposal
also
requires
submission
of
that
plan
to
the
appropriate
regulatory
authority
and
receipt
of
confirmation
of
the
delivery
before
the
facility
can
start
implementing
the
direct
monitoring
exemption.
SOCMA
agrees
with
the
Agency
that
there
should
not
be
any
review
or
approval
mechanism
for
these
plans,
as
such
a
requirement
would
further
burden
regulators
and
could
create
a
considerable
delay
in
the
ability
of
a
facility
to
gain
the
regulatory
relief
contemplated
by
the
proposal.

SOCMA
questions,
however,
the
need
for
the
plans
to
be
submitted
and
believes
that
facilities
instead
should
simply
be
required
to
maintain
the
plans
on­
site
and
have
them
available
for
review
upon
request.
This
is
inconsistent
with
the
approach
the
Agency
has
recently
taken
in
other
similar
rulemakings
(
e.
g.,
Chlorinated
Aliphatics
Final
Rule,
65
FR
67068;
Paint
Production
Proposed
Rule,
66
FR
10060).
Furthermore,
in
1997,
the
Agency
specifically
eliminated
the
requirement
that
generators
managing
and
treating
prohibited
waste
in
tanks,
containers
and
containment
buildings
under
40
CFR
262.34
submit
sampling
and
analysis
plans
to
its
overseeing
Agency
under
268.7(
a)(
5).

Response
120­
4:
Please
see
response
to
comment
118­
6.

Comment
120­
5:
SOCMA
supports
EPA's
proposal
regarding
broadening
of
the
de
minimis
exemption.
Expanding
the
de
minimis
exemption
to
apply
to
inadvertent
de
minimis
releases
of
small
amount
at
non­
manufacturing
facilities
could
be
very
helpful
to
our
members.
Similarly,
SOCMA
supports
expanding
the
wastes
that
would
be
covered
by
the
de
minimis
exemption
beyond
listed
commercial
chemical
products.

Response
120­
5:
EPA
acknowledges
SOCMA's
support
of
the
expansion
of
the
de
minimis
Headworks
Rule
Page
113
of
117
exemption
beyond
manufacturing
facilities
and
listed
commercial
chemical
products.

Comment
120­
6:
SOCMA
concurs
with
EPA's
view
that
a
precise
regulatory
definition
of
"
headworks"
is
not
required
or
even
advisable
as
element
of
the
proposed
exemption.
The
general
guidance
and
information
that
is
available
is
sufficient.
Any
effort
to
further
delineate
this
concept
in
regulatory
language
presents
a
risk
of
removing
the
flexibility
needed
to
adapt
this
concept
to
its
multiple
presentations
in
the
real
world.
The
approach
taken
and
location
used
by
a
particular
facility
will
be
readily
identified
in
the
facility's
sampling
and
analysis
plan.
This
location
will
therefore
be
documented
on
a
facility­
by­
facility
basis,
and
the
information
will
be
readily
available.

Response
120­
6:
EPA
acknowledges
SOCMA's
support
of
the
informal
headworks
description.

Comment
120­
7:
SOCMA
agrees
with
the
Agency's
proposal
to
exempt
certain
scrubber
waters
generated
from
the
combustion
of
spent
solvent
wastes
from
the
"
derived
from"
rule,
though
we
believe
that
the
proposal
in
its
current
language
may
be
confusing
and
that
the
Agency
should
specifically
state
in
the
regulatory
text
of
the
final
rule
that
scrubber
waters
are
within
the
scope
of
the
exemption.
For
example,
both
261.3(
a)(
2)(
iv)(
A)
and
(
B)
could
be
modified
to
read,
"
one
or
more
of
the
following
spent
solvents
listed
in
261.31,
including
scrubber
waters
derived
from
one
or
more
of
the
following
spent
solvents
listed
in
261.31,
­­...".

Response
120­
7:
Please
see
response
to
comment
112­
6.

Comment
120­
8:
Furthermore,
SOCMA
believes
that
the
Agency
should
expand
the
scope
of
its
proposed
exemption
for
scrubber
waters
derived
from
the
combustion
of
spent
solvents
such
that
it
encompasses
all
listed
hazardous
wastes.

Response
120­
8:
Please
see
responses
to
comments
112­
7
and
118­
10.

Comment
120­
9:
SOCMA
supports
the
notion
exempting
landfill
leachate
derived
solely
from
land
disposal
of
spent
solvent
wastes
and
the
expansion
of
the
leachate
exemption
to
include
nonsolvent
landfill
leachate.
SOCMA
encourages
the
Agency
to
continue
work
on
a
proposal
that
would
provide
for
both
of
these
exemptions.

Response
120­
9:
EPA
acknowledges
SOCMA's
support
for
a
potential
rulemaking
addressing
leachates.
Headworks
Rule
Page
114
of
117
Comment
0028­
0121,
Eli
Lilly
and
Company
Introduction:
Eli
Lilly
and
Company
("
Lilly")
submits
the
comments
below
on
EPA's
"
Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
­
Headworks
Exemptions",
herein
referred
to
as
EPA's
"
headworks
proposed
rule"
or
"
headworks
proposal".
Lilly
supports
the
comments
submitted
on
this
rulemaking
by
the
American
Chemistry
Council,
but
has
additional
comments
specific
to
the
proposal
to
exempt
scrubber
water
derived
from
solvent
combustion.

Lilly's
manufacturing
operations
in
the
United
States
are
subject
to
the
Resource
Conservation
and
Recovery
Act
(
RCRA),
including
both
the
generator
and
the
treatment,
storage
and
disposal
regulations.
Lilly
has
three
locations
which
hold
RCRA
Part
B
permits
for
incinerators.
Lilly
is
therefore
directly
impacted
by
the
proposed
changes
to
exempt
scrubber
waters
derived
from
solvent
combustion.

Comment
121­
1:
Lilly
supports
the
proposal
to
exempt
hazardous
waste
incinerator
scrubber
water
in
the
headworks
exemption
(
68
Fed.
Reg.
17243)
but
does
not
believe
the
exemption
will
provide
regulatory
relief
for
many
facilities.
The
comments
submitted
by
the
American
Chemistry
Council
outline
several
reasons
why
the
headworks
exemption
is
not
an
ideal
regulatory
solution
for
exemption
of
scrubber
water
derived­
from
solvent
combustion.
EPA
has
assumed
that
the
flow
into
a
wastewater
treatment
system
from
incinerator
scrubber
water
is
a
"
small
percentage"
of
the
flow
(
68
Fed.
Reg.
17243).
While
this
may
be
true
for
some
facilities,
for
some
of
Lilly's
facilities,
the
flow
of
incinerator
scrubber
water
is
approximately
80%
of
the
total
flow.
However,
due
to
the
destruction
and
removal
of
at
least
99.99%
of
the
organics
from
the
waste
streams
through
the
incineration
process,
the
overall
loading
to
the
wastewater
treatment
plant
is
small.
In
addition,
the
NPDES
permitting
process
for
these
wastewater
treatment
plants
assures
that
the
discharges
from
the
wastewater
treatment
process
is
appropriately
controlled
to
protect
receiving
waters.

Instead
of
the
proposed
exemption
of
scrubber
water
derived
from
the
incineration
process
through
the
headworks
exemption
(
or
perhaps
in
addition
to
the
headworks
exemption),
Lilly
suggests
that
EPA
provide
an
exemption
from
the
"
derived­
from"
rule
for
hazardous
waste
incinerator
scrubber
water.
Lilly
first
suggested
such
an
exemption
in
response
to
EPA's
December
12,
1995
Hazardous
Waste
Identification
Rule
(
HWIR)
proposal
(
60
Fed.
Reg.
66344).
The
Lilly
comments
submitted
in
response
to
the
1995
HWIR
proposal
are
attached
to
this
letter;
the
comments
in
section
A
are
relevant
to
the
exemption
of
incinerator
scrubber
waters
from
the
derived­
from
rule.

Lilly
respectfully
requests
that
EPA
consider
these
comments
in
relation
to
the
proposed
exemption
of
scrubber
waters
derived­
from
solvent
combustion.

Response
121­
1:
This
comment
addresses
an
issue
that
is
outside
the
scope
of
the
proposed
rulemaking.
As
stated
in
the
preamble,
the
Agency
did
not
propose
any
changes
or
seek
comment
on
any
provisions
of
the
"
headworks
rule"
not
specifically
identified
as
subject
to
possible
Headworks
Rule
Page
115
of
117
amendment.
Nor
will
the
Agency
respond
to
any
comments
addressing
any
provisions
of
the
headworks
rule
not
specifically
identified
as
subject
to
possible
amendment.
(
68
FR
17233,
April
8,
2003)
Headworks
Rule
Page
116
of
117
Comment
0028­
125,
Paul
Schwab
Comment
125­
1:
Hello
­­
I
recently
was
asked
a
question
about
a
posting
on
the
EPA
website
concerning
benzene
in
wastewater.
Here's
the
website
in
question:

http://
www.
epa.
gov/
epaoswer/
hazwaste/
id/
headworks/
index.
htm>

And
the
passage
in
question
from
the
site:

"
The
Environmental
Protection
Agency
is
proposing
in
today's
notice
to
add
benzene
and
2­
ethoxyethanol
to
the
list
of
solvents
whose
mixtures
with
wastewater
are
exempted
from
the
definition
of
hazardous
waste
under
the
Resource
Conservation
and
Recovery
Act
(
RCRA).
The
Agency
studied
two
other
solvents,
1,1,2­
trichloroethane
and
2­
nitropropane,
and
is
not
proposing
at
this
time
to
add
them
to
the
current
exemption.

"
Besides
adding
the
two
solvents
to
the
exemption,
the
Agency
is
proposing
to
provide
flexibility
in
the
way
compliance
with
the
rule
is
determined
by
adding
the
option
of
directly
measuring
solvent
chemical
levels
at
the
headworks
of
the
wastewater
treatment
system
to
the
current
requirements.
Finally,
the
Agency
also
is
proposing
to
make
additional
listed
hazardous
wastes
(
beyond
discarded
commercial
chemical
products)
eligible
for
the
de
minimis
exemption,
as
well
as
adding
non­
manufacturing
facilities
to
those
that
qualify
for
this
exemption
if
certain
conditions
are
met."

Does
this
mean
that
benzene
can
now
be
flushed
down
the
sewers?
Does
this
open
the
door
to
the
possibility
that
benzene
will
now
start
showing
up
in
sewage
sludge?

Thanks
for
your
time.

Response
125­
1:
The
proposed
revisions
will
affect
only
industrial
facilities
that
use
either
benzene
or
2­
ethoxyethanol
as
a
solvent,
and
in
the
process,
generate
wastewaters
contaminated
with
these
two
chemicals.
To
qualify
for
the
proposed
exemption,
facilities
will
be
required
to
have
an
onsite
wastewater
treatment
plant
to
treat
the
wastewater.
In
addition,
facilities
will
be
required
either
to
have
a
permit
to
discharge
the
wastewater
under
Section
402
or
Section
307(
b)
of
the
Clean
Water
Act
or
to
have
completely
eliminated
any
offsite
discharge
of
wastewater.
Any
facility
wishing
to
apply
the
proposed
exemption
to
wastewater
containing
benzene
must
prove
that
the
total
concentration
of
benzene
does
not
exceed
1
ppm
when
it
enters
the
onsite
aerated
biological
wastewater
treatment
system.
EPA's
risk
assessment,
which
examined
the
benzene­
contaminated
wastewater
throughout
the
biological
wastewater
treatment
and
the
subsequent
disposal
of
wastewater
sludge
and
treated
wastewater,
found
risk
levels
to
be
acceptable
when
the
required
conditions
for
the
exemption
were
met.

Given
that
facilities
are
not
exempted
from
the
requirements
listed
in
their
Clean
Water
Act
discharge
permit
and
that
the
risk
assessment
showed
acceptable
levels
when
the
above
conditions
are
met,
the
impact
on
a
municipality's
sewer
water
quality
and
sewage
sludge
should
be
Headworks
Rule
Page
117
of
117
insignificant.
For
more
information
on
the
risk
assessment,
see
Risk
Assessment
to
Support
the
Wastewater
Treatment
Exemptions
(
Headworks
Exemptions)
Proposed
Rule,
U.
S.
EPA
2003.
