7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
1
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
261
[
RCRA­
2002­
0028;
FRL­
XXXX­
X]

[
RIN
2050­
AE84]

Revision
of
Wastewater
Treatment
Exemptions
for
Hazardous
Waste
Mixtures
("
Headworks
Exemptions")

AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
Rule
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

SUMMARY:
In
today's
action,
the
Environmental
Protection
Agency
is
finalizing
the
addition
of
benzene
and
2­
ethoxyethanol
to
the
list
of
solvents
whose
mixtures
with
wastewaters
are
exempted
from
the
definition
of
hazardous
waste
under
the
Resource
Conservation
and
Recovery
Act.
The
scrubber
waters
derived­
from
the
combustion
of
any
of
the
exempted
solvents
also
are
included
in
the
exemption.
In
addition,
the
Agency
is
revising
the
rule
by
adding
an
option
to
allow
generators
to
directly
measure
solvent
chemical
levels
at
the
headworks
of
the
wastewater
treatment
system
to
determine
whether
the
wastewater
mixture
is
exempt
from
the
definition
of
hazardous
waste.
Finally,
the
Agency
is
extending
the
eligibility
for
the
de
minimis
exemption
to
other
listed
hazardous
wastes
(
beyond
discarded
commercial
chemical
products)
and
to
nonmanufacturing
facilities.

DATES:
This
final
rule
is
effective
on
[
insert
date
[
30]
days
after
publication
in
the
Federal
Register].

ADDRESSES:
EPA
has
established
a
docket
for
this
action
under
Docket
ID
No.
RCRA­
2002­

0028.
All
documents
in
the
docket
are
listed
in
the
EDOCKET
index
at
http://
www.
epa.
gov/
edocket.
Although
listed
in
the
index,
some
information
is
not
publicly
available,
i.
e.,
CBI
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
is
not
placed
on
the
Internet
and
will
be
publicly
available
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
2
only
in
hard
copy
form.
Publicly
available
docket
materials
are
available
either
electronically
in
EDOCKET
or
in
hard
copy
at
the
RCRA
Docket,
EPA/
DC,
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW,
Washington,
DC.
The
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Public
Reading
Room
is
(
202)
566­
1744,
and
the
telephone
number
for
the
RCRA
Docket
is
(
202)
566­
0270.

FOR
FURTHER
INFORMATION
CONTACT:
Lisa
Lauer,
Hazardous
Waste
Identification
Division,
Office
of
Solid
Waste
(
5304W),
Environmental
Protection
Agency,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC
20460;
telephone
number:
703­
308­
7418;
fax
number:
703­
308­

0514;
e­
mail
address:
Lauer.
Lisa@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

General
Information
Entities
potentially
affected
by
this
action
are
generators
of
industrial
hazardous
waste,
and
entities
that
treat,
store,
transport
and/
or
dispose
of
these
wastes.
The
table
below
is
not
intended
to
be
exhaustive,
but
rather
provides
a
guide
for
readers
regarding
the
types
of
entities
likely
to
be
affected
by
this
action.

List
of
Economic
Subsectors
Potentially
Affected
by
the
Expansion
in
Scope
of
the
RCRA
Hazardous
Waste
"
Headworks
Exemption"

for
Industrial
Wastewater
Treatment
Systems
Item
Economic
Subsector
or
Industry
Identity
Description
SIC
code
NAICS
code
1
02
112
Agricultural
production
­
livestock
2
20
311
Food
&
kindred
products
3
22
313
Textile
mill
products
4
24
321
Lumber
&
wood
products
5
25
337
Furniture
&
fixtures
6
26
322
Paper
&
allied
products
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20/
05
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DO
NOT
CITE
OR
QUOTE
3
7
28
325
Chemicals
&
allied
products
8
29
324
Petroleum
&
coal
products
9
30
326
Rubber
&
miscellaneous
plastics
products
10
31
316
Leather
&
leather
products
11
32
327
Stove,
clay,
glass
&
concrete
products
12
33
331
Primary
metal
industries
13
34
332
Fabricated
metal
products
14
35
333
Industrial
machinery
&
equipment
15
36
334,
335
Electrical
&
electronic
equipment
16
37
336
Transportation
equipment
17
38
3333,
3345
Instruments
&
related
products
18
42
493
Motor
freight
transportation
&
warehousing
19
4581
48819,
56172
Airports,
flying
fields,
&
airport
terminal
services
20
4789
488999
Transportation
services
nec
21
49
221
Electric,
gas,
&
sanitary
services
22
50
421
Wholesale
trade
­
durable
goods
23
51
422
Wholesale
trade
­
nondurable
goods
24
5999
453998
Miscellaneous
retail
25
721
8123
Dry­
cleaning
&
industrial
laundry
services
26
73
514,
532,
541,
561
Business
services
27
80
621,
622,
623
Health
services
28
87
712
Engineering
&
management
services
29
8999
54162
Miscellaneous
services
30
91
921
Executive,
legislative
&
general
government
31
95
924,
925
Environmental
quality
&
housing
32
97
928
National
security
&
international
affairs
Notes:

(
a)
SIC=
1987
Standard
Industrial
Classification
system
(
U.
S.
Department
of
Commerce's
traditional
code
system
last
updated
in
1987).

(
b)
NAICS=
1997
North
American
Industrial
Classification
System
(
U.
S.
Department
of
Commerce's
new
code
system
as
of
1997).

(
c)
This
list
is
based
upon
industry
codes
reported
to
the
USEPA
RCRA
hazardous
waste
1997
"
Biennial
Reporting
System"
database
by
F002/
F005
aqueous
spent
solvent
generators
which
manage
such
wastes
in
wastewater
treatment
systems,
supplemented
by
industry
codes
which
have
USEPA
Clean
Water
Act
"
Categorical
Pretreatment
Standards"
for
indirect
discharge
of
industrial
wastewaters
to
POTWs
(
as
of
July
2002).

(
d)
The
USEPA
Office
of
Solid
Waste
matched
1987
2­
digit
level
SIC
codes
to
1997
NAICS
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
4
codes
using
the
US
Census
Bureau
website:

http://
www.
census.
gov/
epcd/
naics/
nsic2ndx.
htm#
S0.
Refer
to
the
Internet
website
http://
www.
census.
gov/
epcd/
www/
naicstab.
htm
for
additional
information
and
a
cross­
walk
table
for
the
SIC
and
NAICS
codes
systems.

This
table
lists
the
types
of
entities
that
EPA
believes
could
be
affected
by
this
action,
based
on
industrial
sectors
identified
in
the
"
Economics
Background
Document"
in
support
of
this
rule.
A
total
of
about
3,300266
to
10,40046
entities
are
expected
to
benefit
from
the
revisions
to
40
CFR
261.3
in
the
32
industrial
sectors
listed
above,
but
primarily
in
the
chemicals
and
allied
products
sector
(
i.
e.,
SIC
code
28,
or
NAICS
code
325).
Other
entities
not
listed
in
the
table
also
could
be
affected.
To
determine
whether
your
facility
is
covered
by
this
action,
you
should
examine
40
CFR
part
261
carefully
in
concert
with
the
final
rules
found
at
the
end
of
this
Federal
Register
announcement.
If
you
have
questions
regarding
the
applicability
of
the
action
to
a
particular
entity,
consult
the
person
listed
in
the
FOR
FURTHER
INFORMATION
CONTACT
section.

List
of
Acronyms
Acronym
Meaning
ACC
American
Chemistry
Council
CAA
Clean
Air
Act
CERCLA
Comprehensive
Environmental
Response,
Compensation,
and
Liability
Act
CFR
Code
of
Federal
Regulations
CWA
Clean
Water
Act
EPA
Environmental
Protection
Agency
FR
Federal
Register
HSWA
Hazardous
and
Solid
Waste
Amendments
HWIR
Hazardous
Waste
Identification
Rule
Acronym
Meaning
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
5
LDR
Land
Disposal
Restrictions
MACT
Maximum
Achievable
Control
Technology
NAICS
North
American
Industrial
Classification
System
NPDES
National
Pollutant
Discharge
Elimination
System
NSPS
New
Source
Performance
Standard
NTTAA
National
Technology
Transfer
and
Advancement
Act
OMB
Office
of
Management
and
Budget
POTW
Publicly
Owned
Treatment
Works
ppm
parts
per
million
RCRA
Resource
Conservation
and
Recovery
Act
RFA
Regulatory
Flexibility
Act
SBREFA
Small
Business
Regulatory
Enforcement
Fairness
Act
SIC
Standard
Industrial
Classification
UMRA
Unfunded
Mandates
Reform
Act
WAP
Waste
Analysis
Plan
OUTLINE.
The
information
in
this
preamble
is
organized
as
follows:

I.
Background
A.
What
Law
Authorizes
these
Rules?

B.
What
is
the
History
of
the
Headworks
Rule?

C.
When
will
the
Final
Rule
Become
Effective?

II.
Summary
of
Proposed
Rule
A.
Which
Solvents
Were
Proposed
to
Be
Added
to
the
Headworks
Exemption?

B.
What
Revisions
Were
Proposed
for
the
Headworks
Compliance
Monitoring
Method?

C.
What
Scrubber
Waters
Were
Proposed
to
Be
Exempted?
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
6
D.
Exempting
Leachate
Derived­
from
Solvent
Wastes
E.
Exempting
Other
Types
of
Leachate
F.
What
Expansions
to
the
De
minimis
Exemption
Were
Proposed?

III.
Changes
From
the
Proposed
Rule
A.
Exemption
for
Scrubber
Waters
Derived­
From
Spent
Solvent
Combustion
B.
Facilities
Using
the
De
Minimis
Exemption
Will
Not
Be
Required
to
List
Limits
for
Appendix
VII
and
LDR
Constituents
in
Their
Clean
Water
Act
Permits
C.
"
Unscheduled,"
"
Uncontrollable,"
and
"
Insignificant,"
Will
Not
Remain
in
the
Regulatory
Text
of
the
De
Minimis
Exemption
IV.
Summary
of
Responses
to
Major
Comments
A.
Addition
of
Benzene
and
2­
Ethoxyethanol
to
the
Headworks
Exemption
B.
Addition
of
Direct
Monitoring
as
a
Headworks
Compliance
Monitoring
Method
1.
General
Issues
2.
The
Informal
Headworks
Definition
3.
Sampling
and
Analysis
Plan
Issues
4.
Allowing
Performance­
Based
Reduction
in
Sampling
Frequency
and
Changing
the
Current
Compliance
Standard
C.
The
Exemption
of
Scrubber
Waters
Derived­
From
the
Incineration
of
Listed
Wastes
D.
Expansion
of
the
De
Minimis
Exemption
1.
General
Issues
2.
Clean
Water
Act
Permit
Requirement
3.
Inclusion
of
"
Unscheduled,"
"
Uncontrollable,"
"
Insignificant,"
and
"
Inadvertent"
in
the
Regulatory
Definition
of
De
Minimis
4.
Removal
of
"
Rinsates
From
Empty
Containers"
From
the
Regulatory
Definition
of
De
Minimis
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
7
E.
The
Potential
Exemptions
of
Leachates
Derived­
From
Solvent
Wastes
and
Leachates
Derived­
From
Other
Types
of
Hazardous
Wastes
V.
State
Authorization
A.
How
Will
Today's
Regulatory
Changes
Be
Administered
and
Enforced
in
the
States?

VI.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
B.
Paperwork
Reduction
Act
C.
Regulatory
Flexibility
Act
D.
Unfunded
Mandates
Reform
Act
E.
Executive
Order
13132:
Federalism
F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks
H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,

Distribution
or
Use
I.
National
Technology
Transfer
and
Advancement
Act
of
1995
J.
Congressional
Review
Act
I.
Background
A.
What
Law
Authorizes
these
Rules?

These
rules
are
promulgated
under
the
authority
of
Sections
2002(
a),
3001,
3002,
3004
and
3006
of
the
Solid
Waste
Disposal
Act
of
1970,
as
amended
by
the
Resource
Conservation
and
Recovery
Act
of
1976
(
RCRA),
42
U.
S.
C.
6912(
a),
6921,
6922,
6924,
6938.

B.
What
is
the
History
of
the
Headworks
Rule?
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
8
The
current
wastewater
treatment
exemptions
("
headworks
rule")
under
40
CFR
261.3(
a)(
2)(
iv)(
A)
­
(
G)
exempt
from
the
mixture
rule
spent
solvents,
commercial
chemical
products,
lab
wastes,
and
certain
additional
listed
wastes
which
are
a
minuscule
and
treatable
part
of
the
mix
in
wastewaters.
The
"
mixture
rule"
dictates
that
a
solid
waste
becomes
regulated
as
a
hazardous
waste
if
it
is
mixed
with
one
or
more
listed
hazardous
waste
(
40
CFR
261.3(
a)(
2)(
iv)).

The
rationale
for
these
exemptions
is
the
risk
to
the
environment
would
be
negligible
because
wastewater
treatment
systems
are
capable
of
easily
and
effectively
handling
small
volumes
of
these
organic
constituents.
After
the
promulgation
of
the
original
headworks
rule
(
46
FR
56582,

November
17,
1981),
the
Agency
listed
four
additional
solvents
(
1,1,2­
trichloroethane,
benzene,

2­
nitropropane,
and
2­
ethoxyethanol)
in
the
F002
and
F005
categories
(
51
FR
6537,
February
25,

1986).
However,
at
the
time,
the
Agency
did
not
determine
whether
or
not
to
add
these
solvents
to
the
headworks
rule
exemptions.

In
August
1999,
EPA
received
a
request
from
the
American
Chemistry
Council
(
ACC,

formerly
the
Chemical
Manufacturers
Association)
to
add
1,1,2­
trichloroethane,
benzene,

2­
nitropropane,
and
2­
ethoxyethanol
to
the
headworks
exemption.
ACC
also
asked
the
Agency
to
allow
direct
monitoring
as
an
alternative
method
for
determining
compliance
with
the
headworks
rule.
Other
ACC­
requested
headworks
rule
changes
included
allowing
those
wastes
listed
in
40
CFR
261.31
and
261.32
to
be
added
to
the
de
minimis
exemption
and
expanding
the
headworks
rule
to
include
certain
landfill
leachates.
EPA
included
a
request
for
comment
in
the
November
19,
1999,
proposed
Hazardous
Waste
Identification
Rule
(
HWIR)
(
64
FR
63382)
on
these
and
other
ACC­
suggested
exemptions
to
the
mixture
and
derived­
from
rules.
Many
of
the
changes
in
the
April
8,
2003,
proposed
rule
(
68
FR
17234)
are
an
outgrowth
of
ACC's
suggested
revisions
and
the
public
comments
that
EPA
received
in
response
to
the
discussion
of
these
suggested
revisions
in
the
1999
HWIR
proposal.

C.
When
will
the
Final
Rule
Become
Effective?

These
final
regulations
will
become
effective
[
INSERT
30
DAYS
AFTER
FR
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
9
PUBLICATION].

II.
Summary
of
the
Proposed
Rule
A.
Which
Solvents
Were
Proposed
to
Be
Added
to
the
Headworks
Exemption?

On
April
8,
2003,
we
proposed
to
add
to
the
headworks
exemption
two
of
the
four
solvents
that
were
listed
in
1986
(
68
FR
17234).
Benzene
was
proposed
to
be
added
at
the
level
of
1
part
per
million
(
ppm)
with
these
conditions:
wastewaters
containing
benzene
are
managed
in
aerated
biological
waste
management
units;
and,
surface
impoundments
used
prior
to
secondary
clarification
are
lined
(
40
CFR
261.3(
a)(
2)(
iv)(
A)).
The
addition
of
these
contingent
management
practices
was
supported
by
data
from
the
groundwater
pathway
human
health
risk
analysis
which
demonstrated
that
non­
aerated
treatment
scenarios
resulted
in
exposures
above
the
level
of
concern
for
all
components
of
the
treatment
scenario
and
that
aerated
biological
treatment
scenarios
resulted
in
exposures
above
the
level
of
concern
only
when
primary
clarifier
wastewaters
were
managed
in
an
unlined
surface
impoundment.
(
See
Risk
Assessment
to
Support
the
Wastewater
Treatment
Exemptions
(
Headworks
Exemptions)
Proposed
Rule,
U.
S.
EPA
2003).

In
addition,
we
proposed
to
add
2­
ethoxyethanol
to
the
headworks
exemption
at
the
level
of
25
ppm
(
40
CFR
261.3(
a)(
2)(
iv)(
B)).
Data
from
the
groundwater
pathway
human
health
risk
analysis
supported
this
proposed
addition
of
2­
ethoxyethanol
at
25
ppm
in
the
headworks
as
it
posed
no
significant
human
health
risk
at
this
level.
(
See
Risk
Assessment
to
Support
the
Wastewater
Treatment
Exemptions
(
Headworks
Exemptions)
Proposed
Rule,
U.
S.
EPA
2003).

The
Agency
did
not
take
any
action
to
add
2­
nitropropane
and
1,1,2­
trichloroethane
to
the
exemption
due
to
the
lack
of
available
risk
information
and
the
failures
in
the
groundwater
pathway
human
health
risk
analysis,
respectively.

B.
What
Revisions
Were
Proposed
for
the
Headworks
Compliance
Monitoring
Method?
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
10
The
Agency
proposed
to
add
an
additional
approach
for
facilities
to
demonstrate
compliance
with
40
CFR
261.3(
a)(
2)(
iv)(
A),
(
B),
(
F)
and
(
G)
of
the
wastewater
treatment
exemptions.
The
additional
method
is
an
option
to
directly
measure
solvent
chemical
levels
at
the
headworks
of
the
wastewater
treatment
system
in
lieu
of
performing
mass
balance
calculations.

Direct
monitoring
will
be
an
option
for
those
facilities
subject
to
Clean
Air
Act
(
CAA)
regulations
that
minimize
fugitive
process
or
wastewater
emissions
(
e.
g.,
MACT
standards
under
40
CFR
part
61
or
63
or
NSPS
requirements
under
40
CFR
part
60).
Facilities
taking
advantage
of
the
proposed
direct
monitoring
approach
will
be
required
to
report
the
entire
concentration
of
the
chemical
in
question
if
any
of
it
was
used
as
a
solvent.

The
proposed
addition
of
direct
monitoring
as
a
headworks
compliance
monitoring
method
required
the
Agency
to
address
a
number
of
implementation
issues
not
associated
with
the
mass
balance
approach.
To
ensure
facilities
utilizing
the
direct
monitoring
method
will
understand
where
in
the
wastewater
treatment
train
sampling
is
to
occur,
the
Agency
provided
guidance
describing
the
headworks
location
in
the
proposal
(
67
FR
17242,
April
8,
2003).
This
guidance
mirrors
the
language
in
the
1981
preamble
and
provides
maximum
flexibility
by
accommodating
the
numerous
facility
configurations
present
in
the
regulated
community.

The
Agency
also
proposed
that
facilities
taking
advantage
of
the
direct
monitoring
approach
are
to
develop
a
site­
specific
sampling
and
analysis
plan
that
demonstrates
compliance
with
the
weekly
average
standards
set
for
the
appropriate
solvent(
s).
The
sampling
and
analysis
plan
must
include
the
monitoring
point
location,
the
sampling
frequency
and
methodology,
and
a
list
of
appropriate
constituents
to
be
monitored.
The
Agency
proposed
that
facilities
file
a
copy
of
the
sampling
and
analysis
plan
with
the
overseeing
agency.
However,
no
approval
of
the
plan
is
required
prior
to
the
commencement
of
the
direct
monitoring
method;
nevertheless,
the
facility
must
have
confirmation
of
the
plan's
receipt
(
e.
g.,
a
certified
mail
return
receipt
or
written
confirmation
of
delivery
from
a
commercial
delivery
service)
by
the
overseeing
agency
prior
to
implementation
of
the
direct
monitoring
scheme.
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
11
C.
What
Scrubber
Waters
Were
Proposed
to
Be
Exempted?

The
Agency
proposed
to
add
those
scrubber
waters
derived­
from
the
combustion
of
spent
solvents
that
are
then
subsequently
sent
to
a
facility's
wastewater
treatment
system
to
the
headworks
exemption.
The
Agency
believes
that
the
scrubber
waters
derived­
from
combustion
of
spent
solvent
wastes
will
be
comparable
in
expected
constituents
and
concentration
levels
with
spent
solvent
wastewaters.

D.
Exempting
Leachate
Derived­
from
Solvent
Wastes
The
Agency
discussed
the
ACC
request
to
consider
adding
leachate
from
landfills
that
accept
only
F001
­
F005
spent
solvent
wastes
to
the
headworks
exemption.
Because
we
lacked
sufficient
data
concerning
the
variability,
the
Agency
did
not
propose
an
exemption
but
considered
the
discussion
of
the
issue
as
an
Advanced
Notice
of
Proposed
Rulemaking.

E.
Exempting
Other
Types
of
Leachate
The
Agency
also
discussed
and
sought
comment
regarding
a
possible
future
addition
of
leachate
from
captive,
on­
site
hazardous
waste
landfills
to
the
headworks
exemption.
Again,

because
EPA
lacked
adequate
information
to
determine
if
the
levels
of
constituents
present
in
the
leachate
pose
an
unacceptable
risk,
it
did
not
propose
an
exemption
for
non­
solvent
leachate.

F.
What
Expansions
to
the
De
Minimis
Exemption
Were
Proposed?

The
Agency
proposed
to
broaden
the
scope
of
the
de
minimis
exemption
(
40
CFR
261.3(
a)(
2)(
iv)(
D))
in
two
ways:
(
1)
by
expanding
the
eligibility
for
the
exemption
beyond
manufacturing
facilities
to
include
non­
manufacturing
sites
such
as
raw
material
storage
terminals
and
hazardous
waste
facilities;
and,
(
2)
by
expanding
the
types
of
waste
eligible
for
the
exemption
to
include
the
F­
and
K­
listed
wastes
(
§
§
261.31
and
261.32).
To
qualify
for
the
newly
expanded
portions
of
the
de
minimis
exemption,
we
also
proposed
that
either
the
manufacturing
facilities
claiming
a
de
minimis
loss
of
F­
or
K­
listed
wastes
or
non­
manufacturing
facilities
claiming
a
de
minimis
loss
of
waste
listed
in
§
§
261.31
through
261.33
would
need
to
have
limits
for
the
Appendix
VII
and
Land
Disposal
Restrictions
(
LDR)
constituents
associated
with
their
wastes
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
12
included
in
their
Clean
Water
Act
(
CWA)
permits
or
that
the
facilities
had
to
have
eliminated
the
discharge
of
wastewater
altogether.

In
addition,
the
Agency
proposed
that
the
words
"
unscheduled,"
"
uncontrollable,"

"
inadvertent,"
and
"
insignificant"
be
added
to
the
regulatory
definition.
The
reasoning
behind
the
addition
of
these
words
was
to
provide
a
clearer
understanding
of
what
a
de
minimis
release
is
for
all
the
listed
wastes.

III.
Changes
From
the
Proposed
Rule
A.
Exemption
for
Scrubber
Waters
Derived­
from
Spent
Solvent
Combustion
In
the
April
8,
2003,
notice,
EPA
proposed
to
include
in
the
exemption
under
§
261.3(
a)(
2)(
iv)(
A)
and
(
B)
those
scrubber
waters
derived­
from
the
combustion
of
spent
solvents
that
then
are
sent
to
a
facility's
wastewater
treatment
system.
However,
specific
regulatory
language
for
the
inclusion
of
these
scrubber
waters
in
the
headworks
exemption
was
not
included
in
the
proposal.
Based
on
the
comments
received,
the
final
rule
includes
such
language.

As
discussed
in
the
preamble
of
the
proposed
rule,
scrubber
waters
derived­
from
the
combustion
of
spent
solvents
previously
were
not
considered
eligible
for
the
headworks
exemption
because
they
are
derived­
from
residuals
of
spent
solvents
and
their
release
into
the
wastewater
treatment
system
is
not
incidental
(
68
FR
17243,
April
8,
2003).
However,
in
the
carbamates
rule
(
60
FR
7824­
7859,
February
9,
1995),
the
Agency
allowed
scrubber
waters
derived­
from
the
incineration
of
carbamate
production
wastes
to
be
eligible
for
the
headworks
exemption
because
the
scrubber
waters
would
be
comparable
in
the
expected
constituents
and
concentration
levels
with
the
already­
exempted
wastewaters.
Following
the
rationale
in
the
carbamates
rule,
the
Agency
decided
to
propose
in
the
April
8,
2003
notice
that
scrubber
waters
derived­
from
spent
solvent
combustion
which
are
then
sent
to
a
facility's
wastewater
treatment
system
will
be
eligible
for
the
headworks
exemption
under
§
261.3(
a)(
2)(
iv)(
A)
and
(
B).
Similar
to
the
carbamate
scrubber
waters,
the
Agency
believes
that
the
scrubber
waters
derived­
from
such
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
13
combustion
will
be
comparable
in
expected
constituents
and
concentration
levels
with
spent
solvent
wastewaters.

Regulatory
language
has
been
included
under
§
261.3(
a)(
2)(
iv)(
A)
and
(
B).
The
Agency
notes
the
requirement
that
the
scrubber
waters
must
be
solely
derived­
from
the
combustion
of
the
listed
spent
solvents
remains
unchanged
from
the
proposal.

B.
Facilities
Using
the
De
Minimis
Exemption
Will
Not
Be
Required
to
List
Limits
for
Appendix
VII
and
LDR
Constituents
in
their
Clean
Water
Act
Permits
The
proposed
rule
contained
a
new
requirement
for
those
facilities
taking
advantage
of
the
expanded
de
minimis
exemption.
Under
this
proposed
requirement,
a
manufacturing
facility
claiming
a
de
minimis
loss
of
F­
or
K­
listed
wastes
or
a
non­
manufacturing
facility
claiming
any
de
minimis
loss
of
waste
listed
in
§
§
261.31
through
261.33
would
have
needed
limits
for
the
Appendix
VII
and
LDR
constituents
associated
with
its
wastes
included
in
its
CWA
permit.

However,
commenters
noted
that
permit
writers
usually
do
not
set
specific
permit
limits
for
every
constituent
that
may
be
present
in
the
effluent.
In
response
to
this
comment,
the
Agency
instead
is
requiring
any
facility
that
would
like
to
claim
any
part
of
the
expanded
exemption
to
list
all
expected
Appendix
VII
and
LDR
constituents
in
the
CWA
permit
application.

Alerting
the
permit
writers
of
all
expected
Appendix
VII
and
LDR
constituents
by
listing
them
in
the
CWA
permit
application
will
allow
the
permit
writers
to
ensure
that
the
permit
is
sufficiently
protective
of
human
health
and
the
environment.
Similarly,
facilities
that
discharge
to
publicly
owned
treatment
works
(
POTW)
must
disclose
every
Appendix
VII
and
LDR
constituent
that
may
be
released
to
the
POTW,
as
this
will
alert
the
POTW
of
any
potential
chemicals
that
may
pass
through
or
interfere
with
its
operation
or
cause
a
permit
violation.
This
notification
to
the
permit
writer
or
control
authority
must
occur
before
the
facility
claims
the
newly
expanded
portions
of
the
de
minimis
exemption.
EPA
has
promulgated
updated
regulatory
language
under
§
261.3(
a)(
2)(
iv)(
D)
in
response
to
these
comments.

C.
"
Unscheduled,"
"
Uncontrollable,"
and
"
Insignificant,"
Will
Not
Remain
in
the
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
14
Regulatory
Text
of
the
De
Minimis
Exemption
In
the
proposed
rule,
the
words
"
unscheduled,"
"
uncontrollable,"
"
insignificant"
and
"
inadvertent"
were
added
to
the
regulatory
definition
of
de
minimis
(
§
261.3(
a)(
2)(
iv)(
D)).

Numerous
commenters
were
opposed
to
the
addition
of
these
four
words
and
requested
that
they
be
removed
from
the
regulatory
text
because
the
words
would
cause
confusion
to
the
regulated
community
and
narrow
the
scope
of
the
exemption.
The
Agency
agrees
that
these
descriptors
are
not
necessary
and
is
removing
the
words
"
unscheduled,"
"
uncontrollable,"
and
"
insignificant"

from
the
regulatory
text
of
de
minimis.
However,
the
word
"
inadvertent"
will
remain
in
the
regulatory
language.
The
purpose
for
the
addition
of
"
inadvertent"
in
the
regulatory
definition
of
de
minimis
is
to
reinforce
the
concept
that
the
losses
must
not
be
a
result
of
neglectful
or
careless
facility
management.
Rather,
de
minimis
refers
to
small
losses
that
occur
during
normal
operating
procedures
at
well­
maintained
facilities.
The
Agency
believes
that
it
is
imperative
that
this
concept
be
conveyed
due
to
the
exemption
being
expanded
to
include
the
F­
and
K­
listed
wastes
(
§
231.31
and
§
231.32),
as
well
as
to
non­
manufacturing
facilities.
Please
see
Section
IV.
D.
3.

for
further
discussion
regarding
the
addition
of
the
word
"
inadvertent"
to
the
regulatory
definition.

IV.
Summary
of
Responses
to
Major
Comments
The
Agency
summarizes
below
the
responses
to
the
most
significant
comments
received
in
response
to
the
proposal.
All
comments
received
by
the
Agency
are
addressed
in
the
Response
to
Comments
Background
Document
that
is
available
in
the
docket
associated
with
this
rulemaking.

A.
Addition
of
Benzene
and
2­
Ethoxyethanol
to
the
Headworks
Exemption
Many
commenters
supported
the
addition
of
benzene
and
2­
ethoxyethanol
as
proposed
stating
that
their
inclusion
in
the
exemption
will
add
consistency
to
the
current
regulatory
scheme.

Several
commenters
emphasized
that
the
spent
solvents
will
remain
a
very
small
and
treatable
part
of
the
wastewater
mixture.
In
addition,
one
commenter
stated
that
the
contingent
management
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
15
practices
placed
on
the
addition
of
benzene
to
the
exemption
were
very
reasonable.

While
there
was
strong
support
for
the
inclusion
of
the
two
solvents,
one
commenter
disagreed
with
the
addition
of
benzene
and
2­
ethoxyethanol
to
the
exemption
at
the
current
concentration
levels
of
1
ppm
and
25
ppm,
respectively.
The
commenter
stated
that
these
levels
are
not
protective
of
human
health
and
the
environment
and
that
the
calculated
and
direct
measurement
concentrations
need
to
be
reduced.
In
addition,
the
commenter
suggested
that
the
current
weekly
averaging
period
be
decreased
to
daily
or
to
some
other
shorter­
term
averaging
period;
however,
the
commenter
did
not
submit
data
to
support
the
reduction
of
the
calculated
and
direct
measurement
concentrations,
nor
was
data
submitted
to
support
a
reduction
in
the
averaging
period.

The
Agency
disagrees
that
the
concentration
limits
of
1
ppm
and
25
ppm
for
benzene
and
2­
ethoxyethanol,
respectively,
are
not
protective.
The
environmentally
conservative
risk
assessment
performed
on
benzene
demonstrated
that
the
1
ppm
standard
is
protective
when
groundwater
is
indirectly
exposed
to
the
wastewater
treatment
sludge
and
when
groundwater
is
directly
exposed
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.
As
a
result,
we
are
requiring
that
wastewaters
containing
benzene
be
managed
in
an
aerated
biological
treatment
unit
and
that
surface
impoundments
used
prior
to
secondary
clarification
be
lined
to
be
eligible
for
the
exemption.
The
risk
assessment
performed
on
2­
ethoxyethanol
demonstrated
it
does
not
pose
a
risk
of
concern
for
direct
air
exposure
or
for
indirect
and
direct
groundwater
exposures
at
the
concentration
limit
of
25
ppm.
(
See
Risk
Assessment
to
Support
the
Wastewater
Treatment
Exemptions
(
Headworks
Exemptions)
Proposed
Rule,
U.
S.
EPA
2003).
In
regards
to
the
commenter's
statement
that
the
weekly
average
be
reduced
(
i.
e.,
that
the
compliance
standard
be
changed),
decreasing
the
averaging
period
from
weekly
to
daily
or
to
some
other
shorter
averaging
time
addresses
a
provision
in
the
current
rule
not
identified
specifically
in
the
proposal
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
16
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).

One
commenter
supported
the
addition
of
benzene
but
not
the
conditional
management
practices.
The
commenter
requested
that
we
reconsider
our
proposed
conditions
and
allow
benzene
to
be
discharged
into
wastewater
treatment
systems
in
the
same
manner
that
the
other
solvents
listed
in
§
261.3(
a)(
2)(
iv)(
A)
are
allowed.
In
the
commenter's
opinion,
the
conditional
management
practices
are
too
restrictive
and
inflexible
for
the
addition
of
benzene
to
the
exemption
to
be
of
any
use
to
facilities.

EPA
disagrees
that
the
exemption
for
benzene
be
unrestricted.
Due
to
the
exemption
being
based
on
the
concentration
level
of
benzene
entering
the
wastewater
treatment
system
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
further
discussion,

please
see
Risk
Assessment
to
Support
the
Wastewater
Treatment
Exemptions
(
Headworks
Exemptions)
Proposed
Rule,
U.
S.
EPA
2003).
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
based
directly
on
the
results
of
the
risk
assessment
for
benzene
(
see
above).
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.

One
commenter
requested
that
we
include
benzene
still
bottoms
in
the
headworks
exemption.
This
commenter
argued
that
there
is
no
regulatory
relief
for
facilities
recycling
benzene
in
a
still
since
the
still
bottoms
must
be
managed
as
a
hazardous
waste
(
F005).
The
commenter
stated
that
if
the
facility's
wastewater
treatment
system
has
the
capability
of
treating
the
impurities
that
can
be
found
in
still
bottoms,
then
the
facility
should
be
able
to
benefit
from
the
exemption
as
well.
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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
we
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,
which
can
be
found
in
still
bottoms,
EPA
does
not
believe
that
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.

B.
Addition
of
Direct
monitoring
as
a
Headworks
Compliance
Method
1.
General
Issues
Most
commenters
supported
the
addition
of
direct
monitoring
as
a
compliance
option.

Several
cited
the
complexity
for
some
sites
to
perform
the
mass
balance
calculations
and
commended
the
Agency
for
proposing
to
allow
direct
monitoring
at
the
headworks
location
as
an
alternative
compliance
option.
No
commenters
opposed
the
addition
of
direct
monitoring,

although
several
commenters
did
raise
a
number
of
issues
related
to
direct
monitoring.
Separate
sections
discuss
commenters'
issues
and
the
Agency's
responses
regarding
the
informal
definition
of
headworks,
eliminating
the
requirement
to
submit
the
sampling
and
analysis
plan,
and
allowing
performance­
based
reductions
in
sampling
frequency.

In
addition
to
the
issues
listed
above,
many
commenters
expressed
support
for
the
requirement
that
a
facility
wanting
to
use
direct
monitoring
be
subject
to
CAA
rules
that
minimize
fugitive
emissions.
One
commenter,
however,
questioned
the
eligibility
status
of
those
facilities
that
have
adopted
voluntary
limits
or
controls
as
part
of
a
federally
enforceable
permit.
The
Agency
agrees
that
those
facilities
having
federally
enforceable
permits
that
limit
fugitive
emissions
in
the
facility
prior
to
the
headworks
are
eligible
for
the
exemption
as
these
federally
enforceable
permits
are
equivalent
to
a
facility
being
subjected
to
CAA
regulations
that
minimize
fugitive
emissions.
Therefore,
regulatory
language
explicitly
allowing
those
facilities
that
have
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adopted
limits
or
controls
for
fugitive
emissions
as
part
of
a
federally
enforceable
permit
has
been
added
in
§
261.3(
a)(
2)(
iv)(
A),
(
B),
(
F),
and
(
G).

Another
commenter
expressed
confusion
about
whether
the
CAA
rule
had
to
apply
to
the
entire
facility
or
just
to
the
wastewater
treatment
unit
specifically.
The
purpose
of
the
requirement
is
to
ensure
that
volatilization
of
solvents
are
minimized,
and
thereby
preventing
fugitive
emissions
from
lowering
spent
solvent
concentration
levels,
prior
to
the
monitoring
point
at
the
headworks.
EPA
considered
volatilization
from
the
wastewater
treatment
unit
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
did
not
present
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
federal
operating
permit,
that
minimizes
fugitive
emissions.

One
commenter
objected
to
the
requirement
that,
under
the
direct
monitoring
alternative,

the
generator
must
count
the
total
amount
of
the
chemical
in
the
waste
stream,
even
if
some
portion
of
it
was
from
a
non­
solvent
source.
In
addition,
another
commenter
stated
that
only
allowing
the
sampling
to
occur
at
the
headworks
location
is
unnecessarily
limiting
because
the
chemical
not
being
used
for
its
solvent
purposes
will
be
included
in
the
measured
level.
They
asserted
that
these
requirements
are
overly
conservative
and
should
be
modified,
suggesting
that
facilities
be
allowed
to
reduce
the
measured
concentration
by
the
fraction
known
to
be
from
nonsolvent
sources
and
that
facilities
be
allowed
to
sample
wastewaters
closer
to
the
point
of
generation.
The
Agency
disagrees.
The
risk
assessment
performed
by
the
Agency
demonstrated
that
the
1
ppm
and
25
ppm
standards
were
protective
for
the
total
amount
of
the
chemicals
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(
benzene
and
2­
ethoxyethanol,
respectively)
introduced
at
the
headworks.
The
source
of
these
chemicals
is
irrelevant
for
the
purposes
of
determining
risk.
If
the
solvent
fraction
of
the
chemical
in
the
waste
stream
contributed
to
the
total
chemical
concentration
in
the
wastestream
which
exceeds
the
1
ppm
or
25
ppm
threshold,
then
that
constituent
is
posing
an
unacceptable
risk
to
human
health.
Therefore,
facilities
cannot
use
a
hybrid
of
the
results
from
the
mass
balance
and
direct
monitoring
methods
to
discount
the
non­
solvent
source
from
the
total
measured
concentration,
nor
can
facilities
sample
at
alternate
locations
in
lieu
of
sampling
at
the
headworks
point.
The
Agency
notes
that
facilities
continue
to
have
the
option
of
using
mass
balance.

Another
issue
of
concern
by
a
commenter
is
the
possibility
of
the
overseeing
agency
finding
a
facility
to
have
exceeded
the
exemption
levels
on
the
basis
of
a
compliance
method
different
than
the
one
the
facility
chose
to
use
(
e.
g.,
the
facility
using
mass
balance
and
the
agency
using
sampling).
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.

Lastly,
a
commenter
requested
that
we
clarify
our
intent
with
regards
to
allowing
facilities
to
alternate
between
the
two
compliance
methods
or
to
use
a
combination
of
the
two
methods
to
demonstrate
compliance.
Facilities
will
have
the
option
to
alternate
between
the
two
methods
or
to
concurrently
use
both
methods
and
report
the
result
of
either
method.
However,
as
discussed
above,
facilities
cannot
use
a
hybrid
of
the
two
methods
to
demonstrate
compliance
(
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
sampling
and
analysis
plan
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
monitoring
methods
even
if
their
submitted
sampling
and
analysis
plan
did
not
discuss
examples
of
when
such
an
occurrence
would
happen.
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2.
The
Informal
Headworks
Description
Several
commenters
supported
the
Agency's
approach
of
not
proposing
a
formal
regulatory
definition
for
the
term
"
headworks,"
but
rather
providing
guidance
on
what
it
considers
to
be
the
"
headworks"
location.
In
the
preamble
to
the
proposed
rule,
EPA
stated
that
for
purposes
of
this
rule,
"
headworks
can
include
a
central
catch
basin
for
industrial
wastewaters,
a
pump
station
outfall,
equalization
tank,
or
some
other
main
wastwater
collection
area
that
exists
in
which
transport
of
process
wastewaters
stops
and
chemical
or
biological
treatment
begins"
(
68
FR
17242).
The
Agency
did
solicit
comments
on
this
non­
regulatory
description.
Supporters
for
the
informal
description
stated
that
the
description
of
the
term
"
headworks"
in
the
preamble
to
the
proposal
is
flexible
enough
to
accommodate
a
myriad
of
different
facilities
within
the
regulated
community.
In
addition,
commenters
agreed
that
creating
a
regulatory
definition
for
"
headworks"
would
result
in
the
loss
of
this
flexibility.

However,
one
commenter
believed
that
confusion
might
result
from
EPA's
headworks
description
because
it
assumes
that
no
pretreatment
is
occurring
prior
to
the
wastewaters'
arrival
at
the
headworks.
The
commenter
explained
that
pretreatment
frequently
occurs
upstream
to
the
headworks
location,
and
typically
there
is
no
one
central
location
where
all
wastewaters
come
together
prior
to
pretreatment.
Therefore,
the
headworks
location
should
be
the
point
where
the
exemption
is
claimed
regardless
of
whether
or
not
pretreatment
has
occurred.
The
commenter
also
stated
that
the
definition
of
headworks
should
be
codified;
however,
as
an
alternative
to
incorporating
the
definition
into
the
regulatory
code,
the
commenter
suggested
that
clarification
of
the
location
be
provided
in
the
preamble
of
the
final
rule.

First,
EPA
disagrees
with
the
commenter's
statement
that
a
definition
of
headworks
should
be
codified.
The
Agency
believes
that
it
would
be
difficult
to
develop
a
regulatory
definition
of
the
term
"
headworks"
that
could
apply
at
all
or
even
most
facilities
given
the
varied
nature
of
facility
configurations.
The
guidance
approach
to
identifying
the
headworks
location
accommodates
a
range
of
facility
configurations,
thereby
providing
maximum
flexibility.
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However,
EPA
does
agree
that
the
in­
process
pre­
treatment
of
wastewaters
prior
to
their
arrival
at
the
headworks
location
occurs
and
is
allowable
under
this
provision.
Therefore,
EPA
is
modifying
its
guidance
regarding
the
informal
description
of
the
term
"
headworks"
so
that
the
headworks
location
can
now
be
described
as
the
point
at
which
final
combination
of
raw
or
pretreated
process
wastewater
streams
typically
takes
place.

3.
Sampling
and
Analysis
Plan
Issues
Many
supporters
of
the
direct
monitoring
option
commented
that
it
was
too
burdensome
to
submit
the
sampling
and
analysis
plan
and
to
obtain
confirmation
of
its
receipt
before
direct
monitoring
can
begin.
One
commenter,
who
misunderstood
the
proposed
requirement,
objected
to
explicit
approval
having
to
be
obtained
by
the
overseeing
agency
prior
to
starting
direct
monitoring.
However,
the
Agency
is
not
requiring
that
the
facility
obtain
explicit
approval
from
their
overseeing
agency
prior
to
the
start
of
direct
monitoring.
The
facility
simply
is
required
to
obtain
confirmation
of
receipt
(
e.
g.,
a
certified
mail
return
receipt
or
written
confirmation
of
delivery
from
a
commercial
delivery
service)
prior
to
starting
direct
monitoring.

The
Agency
disagrees
that
submittal
of
the
sampling
and
analysis
plan
is
overly
burdensome.
Submittal
of
the
sampling
and
analysis
plan
will
provide
notification
to
the
overseeing
agency
that
a
change
in
compliance
methodology
is
planned.
This
notification
is
a
one­
time
event,
unless
there
is
a
change
in
the
facility's
operations
that
causes
a
change
in
monitoring
that
renders
the
SAP
obsolete.
The
majority
of
the
burden
in
this
requirement
is
the
preparation
of
the
sampling
and
analysis
plan,
and
no
commenter
objected
to
developing
the
sampling
and
analysis
plan,
correctly
recognizing
that
it
is
the
foundation
for
any
rigorous
monitoring
program.

Several
commenters
asserted
that
requiring
the
facility
to
submit
their
sampling
and
analysis
plan
ran
counter
to
EPA's
recently
proposed
RCRA
Burden
Reduction
Initiative
(
67
FR
2518,
Jan.
17,
2002).
In
addition,
commenters
noted
that
in
1997,
the
Agency
specifically
eliminated
the
requirement
that
generators
managing
and
treating
prohibited
waste
in
tanks,
1The
provision
in
the
proposed
chlorinated
aliphatics
rule
which
stated
that
facilities
must
develop
but
do
not
need
to
submit
their
sampling
and
analysis
plan
was
never
finalized.
2The
Agency
notes
that
while
the
paints
rule
has
been
finalized,
no
wastestreams
were
listed.
Therefore,
any
provisions
involving
sampling
and
analysis
plans
were
not
finalized.

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containers
and
containment
buildings
under
40
CFR
262.34
submit
sampling
and
analysis
plans
to
its
overseeing
Agency
under
268.7(
a)(
5).
These
commenters
also
pointed
out
that
neither
the
chlorinated
aliphatics
final
rule
(
65
FR
67068)
nor
the
paint
production
proposed
rule
(
66
FR
10060)
required
facilities
to
submit
their
sampling
and
analysis
plans
to
the
overseeing
agency,

instead
allowing
the
facilities
to
keep
their
plans
on­
site.

EPA
believes
that
it
is
inappropriate
to
compare
the
proposed
chlorinated
aliphatics
rule1
(
64
FR
46476;
August
25,
1999)
and
the
proposed
paints
rule2
to
the
headworks
rule.
While
it
is
true
that
the
proposed
chlorinated
aliphatics
rule
and
the
proposed
paint
production
rule
required
sampling
and
analysis
plans
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.
The
Agency
has
generally
taken
a
different
approach
for
determining
whether
a
waste
is
hazardous,
as
opposed
to
demonstrating
that
hazardous
waste
in
fact
is
not
hazardous.
Second,
direct
monitoring
is
not
a
requirement
to
qualify
for
the
headworks
exemption;
it
is
an
option.
If
the
facility
determines
that
submitting
the
sampling
and
analysis
plan
is
too
burdensome,
then
the
facility
can
opt
not
to
use
the
direct
monitoring
method
to
demonstrate
compliance
but
can
continue
to
use
the
mass
balance
approach.

EPA
also
disagrees
that
submitting
the
sampling
and
analysis
plan
is
contradictory
to
the
proposed
RCRA
Burden
Reduction
Initiative
(
67
FR
2518,
Jan.
17,
2002)
and
the
removal
in
1997
of
the
LDR
requirement
to
submit
the
facility's
sampling
and
analysis
plan.
The
purpose
of
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the
proposed
burden
reduction
rule
is
to
eliminate
reports
that
are
found
to
be
duplicative
or
not
used
by
state
or
regional
agencies
to
protect
human
health
and
the
environment.
In
today's
rule,

submitting
the
sampling
and
analysis
plan
serves
as
a
notification
to
the
overseeing
agency
that
the
facility
will
be
using
direct
monitoring
to
demonstrate
compliance
with
the
headworks
exemption.

The
sampling
and
analysis
plan
also
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
sampling
and
analysis
plan,
and
the
facility
initially
will
set
the
conditions
with
which
they
intend
to
comply.
As
the
sampling
and
analysis
plan
is
not
duplicative
of
any
other
requirement
and
serves
as
notification
to
the
overseeing
agency,
EPA
believes
retaining
the
requirement
to
submit
the
sampling
and
analysis
plan
is
reasonable
and
consistent
with
the
proposed
burden
reduction
rule.

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
removing
this
requirement
was
to
streamline
the
LDR
process
(
60
FR
43678,
August
22,
1995).
This
streamlining
was
in
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
regulatory
burden
(
61
FR
2363,
January
25,
1996).
EPA
notes
several
key
differences
between
the
headworks
rule
and
the
LDR
Phase
IV
rule.
First,
while
the
headworks
exemption
is
not
a
new
exemption,
the
addition
of
direct
monitoring
as
a
compliance
method
is
a
new
option.
Second,
submitting
the
sampling
and
analysis
plan
is
not
a
requirement
to
qualify
for
the
exemption;
it
is
a
requirement
for
the
use
of
the
direct
monitoring
option.

Therefore,
EPA
is
requiring
submittal
of
sampling
and
analysis
plans
to
provide
the
overseeing
agency
the
opportunity
to
ensure
that
facilities
are
utilizing
the
newly
instituted
compliance
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method
properly.

Two
commenters
requested
further
clarification
regarding
the
rejection
of
the
sampling
and
analysis
plan.
One
commenter
stated
that
if
a
sampling
and
analysis
plan
is
submitted
in
good
faith,
but
only
exhibits
minor
flaws,
then
that
facility
should
be
able
to
continue
to
use
the
direct
monitoring
method
while
the
minor
inadequacies
are
being
addressed.
The
other
commenter
requested
more
explanation
regarding
the
actions
that
need
to
be
taken
in
order
for
a
facility
to
restart
direct
monitoring
if
the
sampling
and
analysis
plan
is
rejected.

The
Agency
notes
that
the
parameters
of
the
sampling
and
analysis
plan
must
enable
the
facility
to
accurately
calculate
the
weekly
average
concentration,
and
the
plan
must
include
the
monitoring
point
location,
the
sampling
frequency
and
methodology,
and
a
list
of
the
constituents
to
be
monitored.
Therefore,
the
Agency
maintains
that
if
the
sampling
and
analysis
plan
is
rejected
for
major
deficiencies
(
e.
g.,
fails
to
include
the
above
information
or
does
not
enable
the
facility
to
accurately
calculate
the
weekly
average)
or
if
the
facility
is
found
not
to
be
following
the
plan,
then
the
facility
can
no
longer
use
the
direct
monitoring
option
until
the
bases
for
rejection
are
corrected.
Even
if
the
overseeing
agency
does
reject
the
sampling
and
analysis
plan,

the
facility
continues
to
have
the
option
to
demonstrate
compliance
using
the
mass
balance
method,
while
the
facility
is
addressing
the
sampling
and
analysis
plan
issues.
The
Agency
does
support
the
continued
use
of
direct
monitoring
while
deficiencies
are
being
corrected
if
the
sampling
and
analysis
plan
is
submitted
in
good
faith
and
the
deficiencies
are
minor.
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
while
the
facility
addresses
such
minor
deficiencies.

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
is
to
resubmit
the
entire
sampling
and
analysis
plan
or
just
the
amended
sections
once
the
facility
corrects
the
bases
for
the
rejection.
Once
the
facility
has
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received
confirmation
that
the
overseeing
agency
no
longer
has
concerns
with
the
amended
sections
of
the
plan,
the
facility
may
begin
using
the
direct
monitoring
option.

4.
Allowing
Performance­
Based
Reduction
in
Sampling
Frequency
and
Changing
the
Current
Compliance
Standard
Several
commenters
offered
detailed
suggestions
of
how
the
proposed
site­
specific
sampling
and
analysis
plan
could
establish
a
sampling
schedule
that
would
allow
a
reduced
sampling
frequency
once
compliance
with
the
1
ppm
and
25
ppm
thresholds
was
established.
The
commenters
stated
that
this
approach
would
be
analogous
to
those
taken
historically
in
RCRA
Waste
Analysis
Plans
(
WAP)
and
in
CWA
NPDES
permits.

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
reduced
sampling
frequency
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.

In
addition,
a
number
of
commenters
suggested
that
EPA
increase
the
length
of
the
current
compliance
period
in
order
to
reduce
the
costs
associated
with
direct
monitoring.
The
commenters'
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).

C.
The
Exemption
of
Scrubber
Waters
Derived­
From
the
Incineration
of
Listed
Wastes
Numerous
commenters
supported
the
proposed
addition
of
scrubber
waters
derived­
from
the
incineration
of
F­
listed
solvents
to
the
headworks
exemption.
Several
supporters
stated
that
the
rationales
used
by
EPA
to
advocate
the
addition
of
these
scrubber
waters
are
both
accurate
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and
justifiable.
However,
many
commenters
were
concerned
over
the
Agency
reinterpreting
the
current
regulatory
language
and
requested
that
the
exemption
be
incorporated
into
the
regulatory
text.
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).

Nevertheless,
based
on
the
rational
set
forth
in
the
preamble
to
the
proposal,
EPA
is
promulgating
regulatory
text
to
implement
the
proposed
addition
to
the
headworks
exemption.
Many
commenters
stated
that
limiting
the
exemption
to
only
scrubber
waters
derived­
from
the
incineration
of
F­
listed
solvents
was
too
narrow
in
scope
and
that
the
exemption
as
proposed
would
not
be
of
much
benefit
to
the
regulated
community.
For
the
exemption
to
be
useful,

commenters
requested
that
the
exemption
also
apply
to
scrubber
waters
derived­
from
the
incineration
of
other
F­,
K­,
P­,
and
U­
listed
wastes.
The
commenters
claimed
that
the
rationales
used
to
exempt
the
scrubber
waters
derived­
from
the
F­
listed
solvents
and
to
exempt
the
de
minimis
quantities
of
P­
and
U­
listed
wastes
could
be
used
to
support
the
exemption
of
the
scrubber
waters
derived­
from
the
incineration
of
other
listed
wastes
in
the
headworks
exemption.

As
an
alternative,
some
commenters
stated
that
the
other
F­,
K­,
P­,
and
U­
listed
wastes
in
the
scrubber
waters
are
analogous
to
the
de
minimis
quantities
of
the
same
chemicals.
Therefore,
the
rationale
used
to
exempt
the
release
of
de
minimis
quantities
of
these
listed
wastes
can
be
applied
to
justify
the
addition
of
these
scrubber
waters
into
the
de
minimis
exemption
(
§
261.3(
a)(
2)(
iv)(
D)).

The
Agency
disagrees
that
scrubber
waters
derived­
from
the
incineration
of
other
listed
wastes
should
be
included
in
the
headworks
exemption.
Scrubber
waters
derived­
from
the
incineration
of
F­
listed
solvents
are
eligible
for
the
exemption
because
these
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
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scrubber
waters
derived­
from
the
incineration
of
the
other
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.

The
Agency
also
will
not
be
including
scrubber
waters
derived­
from
the
incineration
of
U­,

P­,
K­
and
other
F­
listed
wastes
in
the
de
minimis
exemption
(
§
261.3(
a)(
2)(
iv)(
D)).
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
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
wellmaintained
facilities.
The
systematic
release
of
scrubber
waters
into
the
wastewater
treatment
system
advocated
by
some
of
the
commenters
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.

D.
Expansion
of
the
De
minimis
Exemption
1.
General
Issues
All
who
commented
on
the
proposed
de
minimis
expansion
generally
supported
it,
but
many
commenters
raised
specific
issues.
Separate
sections
discuss
commenters'
issues
and
the
Agency's
responses
regarding
the
CWA
permit
requirement,
the
inclusion
of
"
unscheduled,"

"
uncontrollable,"
"
insignificant"
and
"
inadvertent"
in
the
regulatory
language
and
the
removal
of
"
rinsates
from
empty
container"
from
the
regulatory
language.

In
addition
to
the
issues
listed
above,
one
commenter
stated
that
they
were
interpreting
the
de
minimis
exemption
expansions
to
include
facilities
that
have
eliminated
the
discharge
of
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wastewaters
using
permitted
Class
I
injection
wells.
The
Agency
agrees
with
this
interpretation.

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
continues
to
believe
that
underground
injection
wells
can
meet
the
headworks'
definition
of
zero
discharge
if
the
injection
well
is
being
used
for
the
purposes
of
complying
with
a
NPDES
permit,
other
applicable
effluent
guideline,
or
pretreatment
program
requirements.
See
discussion
in
Third
Third
Rule
(
55
FR
22672,
June
1,
1990).
Wastewaters
disposed
of
via
injection
well
usually
are
not
considered
discharges
under
the
CWA.
However,
if
underground
injection
of
wastewaters
occurs
for
reasons
other
than
to
comply
with
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)).

2.
Clean
Water
Act
Permit
Requirement
The
Agency
proposed
that
for
manufacturing
facilities
claiming
a
de
minimis
loss
of
F­
or
K­
listed
wastes
or
non­
manufacturing
facilities
claiming
a
de
minimis
loss
of
wastes
listed
in
§
§
261.31
through
261.33,
the
CWA
permit
must
include
limits
for
the
Appendix
VII
hazardous
constituents
and
the
LDR
constituents
associated
with
the
listed
wastes.
Many
commenters
objected
to
this
proposed
requirement.
Several
of
these
commenters
argued
that
it
usually
is
not
the
permit
writer's
practice
to
set
specific
permit
limits
for
every
constituent
that
may
be
present
in
the
facility's
effluent.
Rather,
they
argued
that
listing
the
waste
streams
or
constituents
of
concern
in
the
CWA
permit
application
will
provide
the
permit
writer
or
control
authority
with
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the
necessary
information
to
decide
whether
or
not
a
specified
level
or
method
of
treatment
is
necessary
in
the
permit
for
the
various
constituents.

The
rationale
for
requiring
a
facility's
CWA
permit
to
contain
limits
for
Appendix
VII
and
LDR
constituents
associated
with
the
specific
wastes
was
due
to
the
de
minimis
eligibility
being
expanded
to
include
F­
and
K­
listed
wastes.
At
the
time
of
the
proposal,
the
Agency
wanted
to
ensure
that
the
releases
of
F­
and
K­
listed
wastes
would
be
minimized
so
that
these
wastes
would
not
have
a
significant
effect
upon
wastewater
treatment
systems,
the
quality
of
effluent
discharges,

solid
wastes
generated,
occupational
safety
and
health,
and
human
health
and
the
environment
(
67
FR
17244,
April
8,
2003).
However,
the
Agency
recognizes
that
it
usually
is
not
the
permit
writer's
practice
to
set
specific
permit
limits
for
every
constituent
that
may
be
present
in
a
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),
while
other
constituents
may
require
limitations
on
whole
effluent
toxicity
or
special
monitoring
procedures
to
be
performed,
or
may
be
present
at
such
low
levels
that
no
permit
limit
is
necessary.
Therefore,
we
agree
with
the
commenters
that
it
is
sufficiently
protective
for
direct
discharging
facilities
to
list
all
expected
Appendix
VII
and
LDR
constituents
in
their
CWA
permit
application
(
or
for
indirect
dischargers
to
POTWs,
in
their
submission
to
their
control
authority)

and
to
rely
on
the
permit
writer's
(
or
control
authority's)
judgment
to
determine
if
specific
permit
limits
are
needed.
Further,
as
discussed
in
the
preamble
of
the
proposed
rule,
the
toxicity
characteristics
and
CERCLA's
reportable
quantities
will
remain
as
additional
protective
mechanisms
(
68
FR
17244).
Therefore,
in
the
final
rule,
facilities
only
will
be
required
to
list
all
Appendix
VII
and
LDR
constituents
in
the
CWA
permit
application
or
POTW
submission
which
will
allow
the
permit
writer
or
control
authority
to
determine
if
specific
permit
limits
are
needed.

In
addition,
facilities
will
be
required
to
keep
a
copy
of
the
CWA
permit
application
or
POTW
submission
on­
site
as
an
alert
to
inspectors
that
the
permit
writer
or
control
authority
was
notified
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of
the
possible
de
minimis
releases
of
constituents
of
concern.
Finally,
the
Agency
notes
that
alerting
the
permit
writer
or
control
authority
must
occur
before
the
facility
claims
the
newly
expanded
portions
of
the
de
minimis
exemption.

In
addition,
several
commenters
stated
that
facilities
that
discharge
to
POTWs
should
be
allowed
to
take
advantage
of
the
exemption,
and
if
allowed,
they
should
not
be
required
to
have
pretreatment
limits
for
each
constituent
that
may
be
released.
Further,
the
POTW's
CWA
permit
should
not
be
required
to
have
specific
limits
for
each
of
the
constituents
managed
at
the
indirect
discharger's
facility.

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.
As
discussed
above,
the
rationale
for
requiring
all
constituents
to
have
pretreatment
limits
was
to
ensure
the
protection
of
human
health
and
the
environment
and
to
minimize
the
incentive
to
"
dispose
of"
F­
and
K­
listed
wastes
into
the
wastewater
treatment
system.
However,
EPA
believes
indirect
dischargers
can
qualify
for
the
de
minimis
exemption
using
mechanisms
other
than
requiring
pretreatment
limits
for
each
constituent
potentially
released
and
still
be
protective
of
human
health
and
the
environment.
The
disclosure
of
each
Appendix
VII
and
LDR
constituent
that
may
be
released
to
the
POTW
by
the
indirect
discharger
will
sufficiently
protect
human
health
and
the
environment
by
alerting
the
POTW
of
any
potential
chemicals
that
may
pass
through
or
interfere
with
its
operation
or
cause
a
permit
violation
of
the
POTW's
discharge
permit.
The
control
authority
(
i.
e.,
POTW,
state,
or
EPA
Region)
can
determine
if
specific
pretreatment
limits
are
necessary
once
all
potential
Appendix
VII
and
LDR
constituents
are
disclosed.
In
addition,
as
with
the
direct
dischargers,
POTWs
do
not
need
to
have
specific
limits
listed
for
each
constituent
in
the
indirect
discharger's
permit
(
or
control
mechanism)
but
must
have
received
a
list
of
all
Appendix
VII
and
LDR
constituents
from
the
indirect
discharger
in
order
for
the
discharger
to
use
the
exemption.

3.
Inclusion
of
"
Unscheduled,"
"
Uncontrollable,"
"
Insignificant,"
and
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"
Inadvertent"
in
the
Regulatory
Definition
of
De
Minimis
Commenters
also
objected
to
the
proposed
addition
of
the
words
"
unscheduled,"

"
uncontrollable,"
"
insignificant,"
and
"
inadvertent"
which
were
used
to
describe
de
minimis
releases
to
a
wastewater
treatment
system
(
§
261.3(
a)(
2)(
iv)(
D)).
Commenters
expressed
concern
that
EPA
did
not
adequately
announce
or
explain
these
qualifiers
and
that
the
qualifiers
would
cause
confusion
to
the
regulated
community
as
well
as
narrow
the
scope
of
the
exemption.

Because
the
expansion
of
the
de
minimis
exemption
includes
the
F­
and
K­
listed
wastes
for
which
there
is
no
economic
incentive
to
prevent
their
loss
into
the
wastestream,
the
Agency
believed
that
it
was
necessary
to
reaffirm
its
understanding
of
what
is
meant
by
a
de
minimis
release.
However,
EPA
has
been
persuaded
by
commenters
that
the
intended
meanings
of
"
unscheduled"
and
"
uncontrollable"
can
be
misinterpreted
and
that
they
should
not
be
included
in
this
final
rule.
EPA
also
recognizes
the
redundancy
of
including
"
insignificant"
in
the
regulatory
definition
of
de
minimis.
Therefore,
in
today's
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
commenters
also
state
that
EPA
failed
to
explain
how
these
words
would
effect
the
current
interpretation
of
the
de
minimis
exemption.
Regarding
the
remaining
additional
term
"
inadvertent,"
it
is
not
the
Agency's
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,
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the
preamble
states
that
the
Agency
will
use
its
listing
authority
to
list
the
wastewaters
from
those
facilities
whose
neglectful
or
careless
management
practices
cause
such
high
losses
of
§
261.33
hazardous
wastes
(
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
apply
only
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
includes
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).

Commenters
stated
that
the
inclusion
of
the
four
new
terms
in
the
regulatory
language
would
narrow
the
scope
of
the
exemption.
However,
the
Agency
disagrees
that
the
inclusion
of
the
remaining
term
"
inadvertent"
in
the
regulatory
language
will
narrow
the
scope
of
the
exemption.
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
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,
7/
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33
neglectfulness
or
carelessness
during
normal
operating
procedures,
are
not
(
and
have
never
been)

included
in
the
exemption.

The
commenters
also
suggest
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
that
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.

Finally,
some
commenters
suggested
applying
the
qualifying
terms
"
unscheduled,"

"
uncontrollable,"
"
insignificant,"
and
"
inadvertent"
to
only
F­
and
K­
listed
wastes.
As
we
have
decided
not
to
include
the
first
three
of
those
terms
in
the
final
rule,
we
will
address
the
comment
with
respect
to
the
remaining
term
"
inadvertent."
We
disagree
with
the
comments
requesting
the
qualifiers
apply
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.

4.
Removal
of
"
Rinsates
From
Empty
Containers"
From
the
Regulatory
Definition
of
De
Minimis
Two
commenters
raise
what
they
believe
is
an
inconsistency
between
two
existing
regulatory
provisions.
The
commenters
believe
that
the
phrase
"
rinsates
from
empty
containers"

in
40
CFR
261.3(
a)(
2)(
iv)(
D)
conflicts
with
language
found
in
40
CFR
261.7,
which
excludes
"
residues
of
hazardous
waste
in
empty
containers"
from
regulation
under
part
261.
As
argued
by
the
commenters,
"
rinsates
from
empty
containers"
are
"
residues
of
hazardous
waste
in
empty
containers,"
and
since
"
residues
of
hazardous
waste
in
empty
containers"
are
not
considered
hazardous
wastes,
it
is
inconsistent
for
EPA
to
retain
the
"
rinsates
from
empty
containers"
phrase
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DRAFT
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in
the
de
minimis
regulatory
language.
Because
the
de
minimis
regulatory
language
is
being
amended
to
include
the
new
expansions
to
the
exemption,
the
commenters
claim
that
the
Agency
now
has
the
opportunity
to
fix
the
apparently
inconsistent
language.

EPA
notes
that
this
comment
raises
an
issue
that
is
outside
the
scope
of
the
proposed
rulemaking.
As
stated
in
the
preamble,
the
Agency
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
nonhazardous
40
CFR
261.7
does
not
directly
exempt
rinse
water
from
Subtitle
C
regulation.

Specifically,
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
has
made
it
clear
that
when
the
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
7/
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05
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35
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
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)).

E.
The
Potential
Exemptions
of
Leachates
Derived­
from
Solvent
Wastes
and
Leachates
Derived­
from
Other
Types
of
Hazardous
Wastes
Commenters
generally
supported
potential
exemptions
of
solvent
waste
and
non­
solvent
waste
leachates
and
urged
EPA
to
continue
developing
a
future
proposal
addressing
such
exemptions.
One
commenter
stated
that
exempting
such
leachates
would
provide
facilities
flexibility
in
waste
management
that
currently
is
not
available
to
them.
The
commenter
also
added
that
if
exempted,
leachates
could
be
treated
in
a
biological
wastewater
treatment
unit
without
the
facility
having
to
manage
the
resulting
treatment
residue
as
a
listed
hazardous
waste.

While
very
supportive
of
a
potential
rulemaking
addressing
leachates,
several
commenters
objected
to
our
use
of
the
most
recent
EPA
study
of
landfill
leachate
characteristics
(
65
FR
3007,

January
19,
2000)
as
a
factor
in
our
decision
to
not
exempt
non­
solvent
leachates
during
this
rulemaking.
This
study,
which
was
conducted
as
part
of
data
collected
to
establish
technologybased
effluent
limitations
guidelines
and
standards
for
landfills,
determined
that
leachates
from
hazardous
waste
landfills
had
a
greater
number
of
constituents
than
leachates
from
non­
hazardous
landfills.
In
addition,
the
study
concluded
that
the
constituents
present
in
the
leachates
from
hazardous
waste
landfills
were
an
order
of
magnitude
greater
than
their
counterparts
in
non­
3Development
Document
for
Final
Effluent
Limitations
Guidelines
and
Standards
for
the
Landfills
Point
Source
Category,
EPA­
821­
R­
99­
019,
U.
S.
EPA,
January
2000.

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hazardous
waste
landfills3.
The
commenters
argued
that
the
results
of
the
study
might
be
biased
for
two
reasons.
First,
the
commenters
stated
that
leachates
from
hazardous
waste
landfills
are
analyzed
for
more
constituents
as
well
as
analyzed
more
frequently
than
leachates
from
nonhazardous
landfills.
Therefore,
the
lack
of
data
resulting
from
non­
hazardous
waste
landfill
leachates
not
being
routinely
analyzed
cannot
be
an
indicator
for
the
absence
of
constituents
in
those
leachates.
Second,
commenters
were
concerned
that
the
contents
of
the
non­
hazardous
landfill
database
may
have
been
skewed
towards
landfills
that
do
not
accept
hazardous
wastes
from
households,
conditionally
exempt
small
quantity
generators,
or
other
wastes
that
do
not
require
pretreatment,
such
as
construction/
demolition
types
of
landfills.
Therefore,
the
commenters
question
whether
or
not
the
comparison
made
between
leachates
from
hazardous
waste
and
non­
hazardous
waste
landfills
is
based
upon
equivalent
data.
Finally,
due
to
the
concern
that
our
decision
was
based
upon
an
insufficient
analysis,
one
commenter
submitted
analytical
data
from
their
facilities
on
leachate
composition.

The
Agency
disagrees
that
it
is
inappropriate
to
base
the
decision
not
to
include
leachates
in
the
exemption,
in
part,
on
the
study
of
landfill
leachate
characteristics.
The
results
of
the
study
are
based
on
data
gathered
to
support
the
final
effluent
guidelines
for
the
landfill
point
source
category
(
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
a
hazardous
or
non­
hazardous
waste
landfill.
While
the
Agency
disagrees
with
the
commenters
regarding
the
appropriateness
of
utilizing
the
landfill
leachate
characteristics
study
as
a
decision
factor
to
not
include
leachates
in
the
exemption
at
this
time,
we
do
believe,
as
stated
in
the
preamble
to
the
proposed
rule,
that
the
results
of
the
study
indicate
that
further
analysis
is
needed
before
an
exemption
is
considered.
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V.
State
Authorization
A.
How
Will
Today's
Regulatory
Changes
Be
Administered
and
Enforced
in
the
States?

Under
section
3006
of
RCRA,
EPA
may
authorize
a
qualified
state
to
administer
and
enforce
a
hazardous
waste
program
within
the
state
in
lieu
of
the
federal
program,
and
to
issue
and
enforce
permits
in
the
state.
Following
authorization,
the
state
requirements
authorized
by
EPA
apply
in
lieu
of
equivalent
federal
requirements
and
become
federally
enforceable
as
requirements
of
RCRA.
EPA
maintains
independent
authority
to
bring
enforcement
actions
under
RCRA
sections
3007,
3008,
3013,
and
7003.
Authorized
states
also
have
independent
authority
to
bring
enforcement
actions
under
state
law.

A
state
may
receive
authorization
by
following
the
approval
process
described
in
40
CFR
part
271.
Part
271
of
40
CFR
also
describes
the
overall
standards
and
requirements
for
authorization.
After
a
state
receives
initial
authorization,
new
federal
regulatory
requirements
promulgated
under
the
authority
in
the
RCRA
statute
which
existed
prior
to
the
1984
Hazardous
and
Solid
Waste
Amendments
(
HSWA)
do
not
apply
in
that
state
until
the
state
adopts
and
receives
authorization
for
equivalent
state
requirements.
The
state
must
adopt
such
requirements
to
maintain
authorization.
In
contrast,
under
RCRA
section
3006(
g),
(
42
U.
S.
C.
6926(
g)),
new
federal
requirements
and
prohibitions
imposed
pursuant
to
HSWA
provisions
take
effect
in
authorized
states
at
the
same
time
that
they
take
effect
in
unauthorized
states.
Although
authorized
states
still
are
required
to
update
their
hazardous
waste
programs
to
remain
equivalent
to
the
federal
program,
EPA
carries
out
HSWA
requirements
and
prohibitions
in
authorized
states,
including
the
issuance
of
new
permits
implementing
those
requirements,
until
EPA
authorizes
the
state
to
do
so.
Authorized
states
are
required
to
modify
their
programs
only
when
EPA
promulgates
federal
requirements
that
are
more
stringent
or
broader
in
scope
than
existing
federal
requirements.

RCRA
section
3009
allows
the
states
to
impose
standards
more
stringent
than
those
in
the
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federal
program.
See
also
40
CFR
271.1(
i).
Therefore,
authorized
states
are
not
required
to
adopt
federal
regulations,
either
HSWA
or
non­
HSWA,
that
are
considered
less
stringent.

Today's
rule
is
finalized
pursuant
to
non­
HSWA
authority.
The
finalized
changes
in
the
conditional
exemptions
from
the
definition
of
hazardous
waste
under
the
headworks
rule
are
less
stringent
than
the
current
federal
requirements.
Therefore,
states
will
not
be
required
to
adopt
and
seek
authorization
for
the
finalized
changes.
EPA
will
implement
the
changes
to
the
exemptions
only
in
those
states
which
are
not
authorized
for
the
RCRA
program.
Nevertheless,

EPA
believes
that
this
rulemaking
has
considerable
merit,
and
we
thus
strongly
encourage
states
to
amend
their
programs
and
become
federally­
authorized
to
implement
these
rules.

VI.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866,
[
58
Federal
Register
51,735
(
October
4,
1993)]
the
Agency
must
determine
whether
the
regulatory
action
is
"
significant"
and
therefore
subject
to
OMB
review
and
the
requirements
of
the
Executive
Order.
The
Order
defines
"
significant
regulatory
action"
as
one
that
is
likely
to
result
in
a
rule
that
may:
(
1)
have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,
public
health
or
safety,
or
State,

local,
or
tribal
governments
or
communities;
(
2)
create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;
(
3)
materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.

Pursuant
to
the
terms
of
Executive
Order
12866,
it
has
been
determined
that
this
rule
is
a
"
significant
regulatory
action"
because
this
rule
contains
novel
policy
issues.
As
such,
this
action
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was
submitted
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
will
be
documented
in
the
public
record.
EPA's
economic
analysis
suggests
that
this
rule
is
not
economically
significant
under
Executive
Order
12866,
because
EPA
estimates
that
the
overall
national
economic
effect
of
the
rule
is
$
11.4
million
to
$
48.6
million
in
average
annual
potential
cost
savings
for
RCRA
regulatory
compliance.
The
following
table
presents
an
itemization
of
EPA's
estimated
count
of
affected
facilities,
affected
annual
RCRA
waste
quantities,
and
estimated
annual
cost
savings
for
each
of
the
five
main
features
of
this
final
rule.
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Summary
of
Estimated
Potential
National
Economic
Impact
From
the
Final
revisions
to
the
"
Headworks
Exemption"

of
the
RCRA
Hazardous
Waste
Mixture
Rule
(
40
CFR
261.3(
a)(
2)(
iv)(
A)
to
(
E))

Item
Final
regulatory
Revision
to
"
Headworks
Exemption"
Count
of
Potentially
Affected
Entities
(
Eligible
Industrial
Facilities)
Annual
Quantity
of
Potentially
Affected
(
Eligible)
RCRA
Hazardous
Waste
(
tons/
year)
Estimate
of
Average
Annual
Economic
Impact*

($/
year)

1
Add
two
F005
spent
solvents
(
benzene
&
2­
ethoxyethanol)
to
the
"
headworks
exemption"
for
the
RCRA
hazardous
waste
mixture
rule**
115
to
1,800
facilities
0.036
to
0.594
million
tons/
year
spent
solvent
wastes
(
aqueous
&
non­
aqueous
forms)
$
0.32
to
$
5.65
million/
year
in
spent
solvent
waste
management
cost
savings
(
netting­
out
implementation
paperwork
costs).

2
Provide
"
headworks
exemption"
for
F001
to
F005
spent
solvent
hazardous
waste
combustion
"
scrubber
waters"
3
to
9
facilities
0.20
to
0.61
million
tons/
year
scrubber
wastewater
$
0.53
to
$
1.58
million/
year
in
scrubber
wastewater
management
cost
savings
3
Allow
"
direct
monitoring"
of
F001
to
F005
spent
solvent
waste
concentrations
in
headworks
influent
wastewaters,
in
lieu
of
"
mass
balance"
computations
1,80011
to
7,300
facilities
1.13
to
4.58
million
tons/
year
spent
solvent
wastes
(
aqueous
&
non­
aqueous
forms)
$
10.09
to
$
40.88
million/
year
in
spent
solvent
waste
management
cost
savings
4
Revise
RCRA
hazardous
waste
"
de
minimis"
exemption
to
include
RCRA
F­
&
K­
listed
wastes,
701
facilities
30
tons/
year
spill
incidents
$
0.03
million/
year
in
spill
response
cost
savings
5
Revise
RCRA
hazardous
waste
"
de
minimis"
exemption
to
include
nonmanufacturing
facilities
1,27066
facilities
570
tons/
year
spill
incidents
0.48
million/
year
in
spill
response
cost
savings
Column
totals
=
3,300266
to
10,40046
facilities
1.37
to
5.78
million
tons/
year
$
11.4
to
48.6
million/
year
cost
savings
*
Economic
impact
based
on
year
2000
price
levels
for
waste
management
systems.
Also,
for
reasons
explained
in
the
Economic
Background
Document,
the
upper­
ends
of
the
numerical
ranges
in
this
table
probably
represent
overestimation
of
potential
impacts;
actual
impacts
are
probably
closer
to
the
lower­
ends
of
impact
ranges.

**
In
comparison,
expansion
of
the
RCRA
  
headworks
exemption''
to
include
all
four
chemical
solvents
examined
in
the
08
April
2003
proposed
rule,
would
likely
only
result
in
addition
of
one
wastestream,
at
an
additional
annual
cost
savings
of
about
$
19,000
(
consisting
of
17,000
tons/
year
aqueous
spent
solvent).

A
detailed
presentation
of
EPA's
methodology,
data
sources,
and
computations
applied
for
estimating
the
number
of
affected
entities
(
industrial
facilities)
and
economic
impacts
attributable
to
today's
final
rule
is
provided
in
the
"
Economic
Background
Document."

B.
Paperwork
Reduction
Act
The
Office
of
Management
and
Budget
(
OMB)
has
approved
the
information
collection
requirements
contained
in
this
rule
under
the
provisions
of
the
Paperwork
Reduction
Act,
44
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U.
S.
C.
3501
et
seq.
and
has
assigned
OMB
control
number
20XX­
XXXX.
The
revised
exemptions
under
this
rule
are
voluntary,
not
mandatory.

The
rule
requires
generators
wanting
to
demonstrate
compliance
with
the
RCRA
headworks
ruleexemptions
through
direct
monitoring
(
rather
than
by
the
mass
balance
computation
method
as
required
before
this
rule),
to
submit
a
one­
time
copy
of
their
wastewater
headworks
sampling
and
analysis
plan
(
SAP),
to
the
EPA
Regional
Administrator
(
or
to
the
state
Director
in
an
authorized
state),
and
to
maintain
in
on­
site
files,
all
records
concerning
such
direct
monitoring
records
for
a
minimum
of
three
years.
The
sampling
planSAP
requirements
for
the
direct
monitoring
willshall
be
site
­
specific.
As
with
all
other
exemptions
and
exclusions
from
theEPA's
RCRA
definition
of
hazardous
waste,
a
facility
is
required
under
40
CFR
268.7(
a)(
7)
to
place
a
one­
time
notice
concerning
RCRA
hazardous
waste
generation,
subsequent
exclusion
from
the
RCRA
definition
of
hazardous
waste,
or
RCRA
definition
of
solid
waste,
or
exemption
from
RCRA
Subtitle
C
regulation,
and
the
disposition
of
the
waste,
in
the
facility's
on­
site
files.

Generally,
such
notification,
as
well
as
certifications,
waste
analysis
data,
and
other
documentation
must
be
kept
in
on­
site
files
for
a
period
of
three
years,
unless
an
enforcement
action
by
the
Agency
extends
the
record
retention
period
(
§
26840
CFR
268.7(
a)(
8)).

EPA
estimates
that
the
total
annualincremental,
three­
year
average
annualized
respondent
burden
for
the
new
paperwork
requirements
in
the
rule
is
approximately
16,564
hours
per
year
and
the
annual,
including
initial
burden
to
exemption
claimants
for
reading
the
rule,
is
45,900
hours
per
year,
and
the
three­
year
annualized
respondent
cost
for
the
new
paperwork
requirements
in
the
rule
is
approximately
$
15$
8.56
million
per
year.
However,
in
addition
to
the
new
paperwork
requirements
in
the
rule,
EPA
also
estimated
the
burden
and
cost
that
generators
could
expect
as
a
result
of
complying
with
the
existing
RCRA
hazardous
waste
information
collection
requirements
for
the
excluded
materials.
Because
the
addition
of
benzene
and
2­­

ethoxyethanol
would
increase
the
number
of
facilities
that
participate
in
the
existing
headworks
exemptions
(
and
the
greater
possibility
of
using
direct
monitoring),
EPA
expects
there
would
be
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42
both
a
reduction
in
some
paperwork
requirements
(
i.
e.,
preparation
of
hazardous
waste
manifests
and
Biennial
Reports)
and
an
increase
in
otherRCRA
paperwork
requirements
(
i.
e.,
preparation
of
RCRA
hazardous
waste
manifests
and
RCRA
Biennial
Reports),
and
an
increase
in
other
RCRA
paperwork
requirements
(
i.
e.,
demonstrating
compliance
by
using
mass
balance
and
submitting
a
one­
time
LDR
notification
under
40
CFR
268.7(
a)(
7)).
Taking
both
revised
and
existing
RCRA
requirements
into
account,
EPA
expects
the
final
expansionsrule's
revisions
to
the
headworks
exemption,
would
result
in
a
bottom
line
total
annual
aggregatenet
annualized
burden
of
approximately
19,315
hours
and
$
15.1
million.
This
cost
is
expectedabout
46,200
hours
per
year
at
a
cost
of
$
8.53
million
per
year.
EPA
expects
this
net
additional
paperwork
cost
to
be
offset
by
annual
costs
savings
to
respondents
from
reduced
waste
management
costs
with,
resulting
in
a
net
cost
savings
of
$
11.4
­
48.6
million.
The
net
cost
to
EPAto
$
48.6
million
per
year.
In
addition
to
respondent
burden,
EPA
estimates
the
paperwork
burden
cost
to
RCRA­
authorized
State
agencies
of
administering
the
rule
was
estimated
at
approximately
942
hours
and
$
34,250
per
yearat
about
370
hours
per
year
at
a
cost
of
$
13,800
per
year.
Because
of
the
fact
that
some
of
the
rule's
paperwork
requirements
are
one­
time
only
(
e.
g.
sampling
and
analysis
plan)
rather
than
annually­
recurring
burden,
the
actual
annual
burden
hours
and
burden
costs
after
the
first­
year
in
which
the
rule
takes
effect,
will
be
lower
than
the
three­
year
average
annual
values
summarized
above.
Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information,
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.

An
agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
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collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
in
40
CFR
are
listed
in
40
CFR
part
9.
In
addition,
EPA
is
amending
the
table
in
40
CFR
part
9
of
currently
approved
OMB
control
numbers
for
various
regulations
to
list
the
regulatory
citations
for
the
information
requirements
contained
in
this
final
rule.

C.
Regulatory
Flexibility
Act
The
Regulatory
Flexibility
Act
(
RFA)
generally
requires
an
agency
to
prepare
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedure
Act
or
any
other
statute
unless
the
agency
certifies
that
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
Small
entities
include
small
businesses,
small
organizations,
and
small
governmental
jurisdictions.

For
purposes
of
assessing
the
impacts
of
today's
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
a
small
business
as
defined
by
the
Small
Business
Administration's
(
SBA)

regulations
at
13
CFR
121.201;
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.

After
considering
the
economic
impacts
of
today's
final
rule
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.

In
determining
whether
a
rule
has
a
significant
economic
impact
on
a
substantial
number
of
small
entities,
the
impact
of
concern
is
any
significant
adverse
economic
impact
on
small
entities,
since
the
primary
purpose
of
the
regulatory
flexibility
analyses
is
to
identify
and
address
regulatory
alternatives
"
which
minimize
any
significant
economic
impact
of
the
proposed
rule
on
small
entities."
5
U.
S.
C.
Sections
603
and
604.
Thus,
an
agency
may
certify
that
a
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities
if
the
rule
relieves
regulatory
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burden,
or
otherwise
has
a
positive
economic
effect
on
all
of
the
small
entities
subject
to
the
rule.

Because
this
final
rule
expands
the
existing
wastewater
treatment
exemptions,
the
Agency
believes
that
the
hazardous
waste
management
costs
for
both
small
and
large
entities
will
be
reduced.
In
addition,
these
new
exemptions
are
non­
mandatory;
therefore,
the
exemptions
do
not
need
to
be
claimed
unless
it
is
cost­
effective.
The
net
cost
savings
for
affected
entities
has
been
estimated
to
be
$
11.4
­
48.6
million
(
please
refer
to
the
economic
background
document
to
this
final
rule
for
more
information).
We
have
therefore
concluded
that
today's
final
rule
will
relieve
regulatory
burden
for
all
small
entities.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
P.
L.
104­
4,
establishes
requirements
for
Federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
State,
local,

and
tribal
governments
and
the
private
sector.
Under
section
202
of
the
UMRA,
EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
rules
with
"
Federal
mandates"
that
may
result
in
expenditures
to
State,
local,
and
tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
one
year.
Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
why
that
alternative
was
not
adopted.
Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
tribal
governments,
it
must
have
developed
under
section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
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EPA
regulatory
proposals
with
significant
Federal
intergovernmental
mandates,
and
informing,

educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.

EPA
has
determined
that
this
rule
does
not
contain
a
Federal
mandate
that
may
result
in
expenditures
of
$
100
million
or
more
for
state,
local,
and
tribal
governments,
in
the
aggregate,
or
the
private
sector
in
any
one
year.
This
is
because
this
final
rule
imposes
no
enforceable
duty
on
any
state,
local
or
tribal
governments.
EPA
also
has
determined
that
this
rule
contains
no
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.
In
addition,

as
discussed
above,
the
private
sector
is
not
expected
to
incur
costs
exceeding
$
100
million.
Thus,

today's
rule
is
not
subject
to
the
requirements
of
sections
202
and
205
of
the
UMRA.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
"
Federalism"
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications."
"
Policies
that
have
federalism
implications"
is
defined
in
the
Executive
Order
to
include
regulations
that
have
"
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government."

This
final
rule
does
not
have
federalism
implications.
It
will
not
have
substantial
direct
effects
on
the
states,
on
the
relationship
between
the
national
government
and
the
states,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
This
rule
directly
affects
primarily
generators
of
hazardous
wastewaters
containing
spent
solvents,
generators
of
scrubber
waters
derived­
from
the
incineration
of
spent
solvents,
and
generators
releasing
de
minimis
amounts
of
listed
wastes
under
certain
conditions.

There
are
no
state
and
local
government
bodies
that
incur
direct
compliance
costs
by
this
rulemaking.
State
and
local
government
implementation
expenditures
are
expected
to
be
less
than
$
500,000
in
any
one
year.
Thus,
Executive
Order
13132
does
not
apply
to
this
rule.
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In
the
spirit
of
Executive
Order
13132,
and
consistent
with
EPA
policy
to
promote
communications
between
EPA
and
state
and
local
governments,
EPA
specifically
solicited
comment
on
the
proposed
rule
from
state
and
local
officials.

F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
Executive
Order
13175,
entitled
"
Consultation
and
Coordination
with
Indian
Tribal
Governments"
(
65
FR
67249,
November
9,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications."
This
final
rule
does
not
have
tribal
implications,
as
specified
in
Executive
Order
13175.
Today's
rule
does
not
significantly
or
uniquely
affect
the
communities
of
Indian
tribal
governments,
nor
would
it
impose
substantial
direct
compliance
costs
on
them.
Thus,
Executive
Order
13175
does
not
apply
to
this
rule.

G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks
Executive
Order
13045:
"
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks"
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that:
(
1)
is
determined
to
be
"
economically
significant"
as
defined
under
Executive
Order
12866,
and
(
2)
concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
the
Agency
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children,
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.

This
final
rule
is
not
subject
to
the
Executive
Order
because
it
is
not
economically
significant
as
defined
in
Executive
Order
12866,
and
because
the
Agency
does
not
have
reason
to
believe
the
environmental
health
or
safety
risks
addressed
by
this
action
present
a
disproportionate
risk
to
children.
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H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,

Distribution
or
Use
This
rule
is
not
a
"
significant
energy
action"
as
defined
in
Executive
Order
13211,

"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use"

(
66
FR
28355
(
May
22,
2001))
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.
This
final
rule
reduces
regulatory
burden.
It
thus
should
not
adversely
affect
energy
supply,
distribution
or
use.

I.
National
Technology
Transfer
and
Advancement
Act
of
1995
As
noted
in
the
proposed
rule,
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
("
NTTAA"),
Public
Law
No.
104­
113,
12(
d)
(
15
U.
S.
C.
272
note)

directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.
This
rulemaking
involves
environmental
monitoring
or
measurement.
Consistent
with
the
Agency's
Performance
Based
Measurement
System
("
PBMS"),
EPA
has
decided
not
to
require
the
use
of
specific,
prescribed
analytic
methods.
Rather,
the
rule
will
allow
the
use
of
any
method
that
meets
the
prescribed
performance
criteria.
The
PBMS
approach
is
intended
to
be
more
flexible
and
cost­
effective
for
the
regulated
community;
it
is
also
intended
to
encourage
innovation
in
analytical
technology
and
improved
data
quality.
EPA
is
not
precluding
the
use
of
any
method,
whether
it
constitutes
a
voluntary
consensus
standard
or
not,
as
long
as
it
meets
the
performance
criteria
specified.

J.
Congressional
Review
Act
The
Congressional
Review
Act,
5
U.
S.
C.
801
et
seq.,
as
added
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996,
generally
provides
that
before
a
rule
may
take
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effect,
the
agency
promulgating
the
rule
must
submit
a
rule
report,
which
includes
a
copy
of
the
rule,
to
each
House
of
the
Congress
and
to
the
Comptroller
General
of
the
United
States.
EPA
will
submit
a
report
containing
this
rule
and
other
required
information
to
the
U.
S.
Senate,
the
U.
S.
House
of
Representatives,
and
the
Comptroller
General
of
the
United
States
prior
to
publication
of
the
rule
in
the
Federal
Register.
A
Major
rule
cannot
take
effect
until
60
days
after
it
is
published
in
the
Federal
Register.
This
action
is
not
a
"
major
rule"
as
defined
by
5
U.
S.
C.

804(
2).
This
rule
will
be
effective
([
insert
30
days
after
publication
date)]
.

Lists
of
Subjects
in
40
CFR
Part
261
Environmental
protection,
Hazardous
waste,
Recycling,
Waste
treatment
and
disposal.

Dated
Stephen
L.
Johnson
Administrator
For
the
reasons
set
out
in
the
preamble,
title
40,
chapter
I
of
the
Code
of
Federal
Regulations
is
amended
as
follows:

PART
261
 
IDENTIFICATION
AND
LISTING
OF
HAZARDOUS
WASTE
1.
The
authority
citation
for
part
261
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
6905,
6912(
a),
6921,
6922,
6924(
y),
and
6983.

2.
Section
261.3
is
amended
by
revising
paragraphs
(
a)(
2)(
iv)(
A),
(
B),
(
D),
(
F)
and
(
G)
to
read
as
follows:

§
261.3
Definition
of
hazardous
waste.

(
a)
*
*
*

(
2)
*
*
*

(
iv)
*
*
*

(
A)
One
or
more
of
the
following
spent
solvents
listed
in
§
261.31
 
benzene,
carbon
tetrachloride,

tetrachloroethylene,
trichloroethylene
or
the
scrubber
waters
derived­
from
the
combustion
of
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
49
these
spent
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
1
part
per
million,
OR
the
total
measured
concentration
of
these
solvents
entering
the
headworks
of
the
facility's
wastewater
treatment
system
(
at
facilities
subject
to
regulation
under
the
Clean
Air
Act,
as
amended,
at
40
CFR
parts
60,
61,
or
63,
or
at
facilities
subject
to
an
enforceable
limit
in
a
federal
operating
permit
that
minimizes
fugitive
emissions),
does
not
exceed
1
part
per
million
on
an
average
weekly
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).
A
facility
must
file
a
copy
of
a
revised
sampling
and
analysis
plan
only
if
the
initial
plan
is
rendered
inaccurate
by
changes
in
the
facility's
operations.
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
Director
rejects
the
sampling
and
analysis
plan
or
if
the
Director
finds
that
the
facility
is
not
following
the
sampling
and
analysis
plan,
the
Director
shall
notify
the
facility
to
cease
the
use
of
the
direct
monitoring
option
until
such
time
as
the
bases
for
rejection
are
corrected;
or
(
B)
One
or
more
of
the
following
spent
solvents
listed
in
§
261.31
 
methylene
chloride,
1,1,1­
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
50
trichloroethane,
chlorobenzene,
o­
dichlorobenzene,
cresols,
cresylic
acid,
nitrobenzene,
toluene,

methyl
ethyl
ketone,
carbon
disulfide,
isobutanol,
pyridine,
spent
chlorofluorocarbon
solvents,
2­

ethoxyethanol,
or
the
scrubber
waters
derived­
from
the
combustion
of
these
spent
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,
OR
the
total
measured
concentration
of
these
solvents
entering
the
headworks
of
the
facility's
wastewater
treatment
system
(
at
facilities
subject
to
regulation
under
the
Clean
Air
Act
as
amended,
at
40
CFR
parts
60,
61,
or
63,
or
at
facilities
subject
to
an
enforceable
limit
in
a
federal
operating
permit
that
minimizes
fugitive
emissions),
does
not
exceed
25
parts
per
million
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).
A
facility
must
file
a
copy
of
a
revised
sampling
and
analysis
plan
only
if
the
initial
plan
is
rendered
inaccurate
by
changes
in
the
facility's
operations.
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
Director
rejects
the
sampling
and
analysis
plan
or
if
the
Director
finds
that
the
facility
is
not
following
the
sampling
and
analysis
plan,
the
Director
shall
notify
the
facility
to
cease
the
use
of
the
direct
monitoring
option
until
such
time
as
the
bases
for
rejection
are
corrected;
or
*
*
*
*
*
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
51
(
D)
A
discarded
hazardous
waste,
commercial
chemical
product,
or
chemical
intermediate
listed
in
§
§
261.31
through
261.33,
arising
from
de
minimis
losses
of
these
materials.
For
purposes
of
this
paragraph
(
a)(
2)(
iv)(
D),
de
minimis
losses
are
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
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.
Any
manufacturing
facility
that
claims
an
exemption
for
de
minimis
quantities
of
wastes
listed
in
§
§
261.31
through
261.32,
or
any
nonmanufacturing
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
included
in
its
Clean
Water
Act
permit
application
or
submission
to
its
pretreatment
control
authority
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).
A
facility
is
eligible
to
claim
the
exemption
once
the
permit
writer
or
control
authority
has
been
notified
of
possible
de
minimis
releases
via
the
Clean
Water
Act
permit
application
or
the
pretreatment
control
authority
submission.
A
copy
of
the
Clean
Water
permit
application
or
the
submission
to
the
pretreatment
control
authority
must
be
placed
in
the
facility's
on­
site
files;
or
*
*
*
*
*

(
F)
One
or
more
of
the
following
wastes
listed
in
§
261.32
 
wastewaters
from
the
production
of
carbamates
and
carbamoyl
oximes
(
EPA
Hazardous
Waste
No.
K157)
 
Provided
that
the
maximum
weekly
usage
of
formaldehyde,
methyl
chloride,
methylene
chloride,
and
triethylamine
(
including
all
amounts
that
cannot
be
demonstrated
to
be
reacted
in
the
process,
destroyed
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
52
through
treatment,
or
is
recovered,
i.
e.,
what
is
discharged
or
volatilized)
divided
by
the
average
weekly
flow
of
process
wastewater
prior
to
any
dilution
into
the
headworks
of
the
facility's
wastewater
treatment
system
does
not
exceed
a
total
of
5
parts
per
million
by
weight
OR
the
total
measured
concentration
of
these
chemicals
entering
the
headworks
of
the
facility's
wastewater
treatment
system
(
at
facilities
subject
to
regulation
under
the
Clean
Air
Act
as
amended,
at
40
CFR
parts
60,
61,
or
63,
or
at
facilities
subject
to
an
enforceable
limit
in
a
federal
operating
permit
that
minimizes
fugitive
emissions),
does
not
exceed
5
parts
per
million
on
an
average
weekly
basis.
Facilities
that
choose
to
measure
concentration
levels
must
file
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).
A
facility
must
file
a
copy
of
a
revised
sampling
and
analysis
plan
only
if
the
initial
plan
is
rendered
inaccurate
by
changes
in
the
facility's
operations.
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
Director
rejects
the
sampling
and
analysis
plan
or
if
the
Director
finds
that
the
facility
is
not
following
the
sampling
and
analysis
plan,
the
Director
shall
notify
the
facility
to
cease
the
use
of
the
direct
monitoring
option
until
such
time
as
the
bases
for
rejection
are
corrected;
or
(
G)
Wastewaters
derived­
from
the
treatment
of
one
or
more
of
the
following
wastes
listed
in
§
261.32
 
organic
waste
(
including
heavy
ends,
still
bottoms,
light
ends,
spent
solvents,
filtrates,

and
decantates)
from
the
production
of
carbamates
and
carbamoyl
oximes
(
EPA
Hazardous
Waste
No.
K156).
 
Provided,
that
the
maximum
concentration
of
formaldehyde,
methyl
chloride,
methylene
chloride,
and
triethylamine
prior
to
any
dilutions
into
the
headworks
of
the
7/
20/
05
DRAFT
DO
NOT
CITE
OR
QUOTE
53
facility's
wastewater
treatment
system
does
not
exceed
a
total
of
5
milligrams
per
liter
OR
the
total
measured
concentration
of
these
chemicals
entering
the
headworks
of
the
facility's
wastewater
treatment
system
(
at
facilities
subject
to
regulation
under
the
Clean
Air
Act
as
amended,
at
40
CFR
parts
60,
61,
or
63,
or
at
facilities
subject
to
an
enforceable
limit
in
a
federal
operating
permit
that
minimizes
fugitive
emissions),
does
not
exceed
5
milligrams
per
liter
on
an
average
weekly
basis.
Facilities
that
choose
to
measure
concentration
levels
must
file
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).
A
facility
must
file
a
copy
of
a
revised
sampling
and
analysis
plan
only
if
the
initial
plan
is
rendered
inaccurate
by
changes
in
the
facility's
operations.
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
Director
rejects
the
sampling
and
analysis
plan
or
if
the
Director
finds
that
the
facility
is
not
following
the
sampling
and
analysis
plan,
the
Director
shall
notify
the
facility
to
cease
the
use
of
the
direct
monitoring
option
until
such
time
as
the
bases
for
rejection
are
corrected.

*
*
*
*
*
