issue-1995-12-21•Federal Register proposed rules — 1995-12-21
Federal Register proposed rules — 1995-12-21
issue-1995-12-21Federal Register proposed rules — 1995-12-21Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 95-81050 Oklahoma Abandoned Mine Land Reclamation Plan
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66244-66246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-81050]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 936
[SPATS No. OK-015-FOR]
Oklahoma Abandoned Mine Land Reclamation Plan
agency: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
action: Proposed rule; public comment period and opportunity for public
hearing.
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summary: OSM is announcing receipt of a proposed amendment to the
Oklahoma abandoned mine land reclamation plan (hereinafter referred to
as the ``Oklahoma plan'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). The proposed amendment pertains to
abandoned mine land reclamation (AMLR) goals and objectives, project
ranking and selection, coordination between reclamation agencies,
reclamation on private land, eligible lands and waters, public
participation, agency administrative and management structure,
reclamation set-aside trust funds, contractor eligibility requirements,
and acid mine drainage projects. The amendment is intended to bring the
Oklahoma AMLR Program into compliance with Federal AMLR regulations. It
will allow the Oklahoma Conservation Commission to participate in AMLR
activities authorized by the Omnibus Budget Reconciliation Act of 1990
and the Energy Policy Act of 1992.
dates: Written comments must be received by 4:00 p.m., c.s.t., January
22, 1996. If requested, a public hearing on the proposed amendment will
be held on January 16, 1996. Requests to speak at the hearing must be
received by 4:00 p.m., c.s.t., on January 5, 1996.
addresses: Written comments and requests to speak at the hearing should
be mailed or hand delivered to Jack R. Carson, Acting Director, Tulsa
Field Office at the address listed below.
Copies of the Oklahoma plan, the proposed amendment, a listing of
any scheduled public hearings, and all written comments received in
response to this document will be available for public review at the
addresses listed below during normal business hours, Monday through
Friday, excluding holidays. Each requester may receive one free copy of
the proposed amendment by contacting OSM's Tulsa Field Office.
Jack R. Carson, Acting Director, Tulsa Field Office, Office of Surface
Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470,
Tulsa, Oklahoma 74135-6547, Telephone: (918) 581-6430.
Oklahoma Conservation Commission, 2800 N. Lincoln Blvd., Suite 160,
Oklahoma City, Oklahoma 73105-4210, Telephone: (405) 521-2384.
for further information contact: Jack R. Carson, Acting Director, Tulsa
Field Office, Telephone: (918) 581-6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Oklahoma Plan
On January 21, 1982, the Secretary of the Interior approved the
Oklahoma plan. Background information on the Oklahoma plan, including
the Secretary's findings, the disposition of comments, and the approval
of the plan can be found in the January 21, 1982, Federal Register (47
FR 2989).
II. Description of the Proposed Amendment
By letter dated November 13, 1995 (Administrative Record No. OAML-
63), Oklahoma submitted a proposed amendment to its AMLR plan pursuant
to SMCRA. Oklahoma submitted the proposed amendment in response to a
September 26, 1994, letter from OSM (Administrative Record No. OAML-
65), in accordance with 30 CFR 884.15(d), concerning revisions to the
AML regulations at 30 CFR Chapter VII, Subchapter R (59 FR 28136, May
31, 1994).
Oklahoma proposes to amend its administrative rules at OAC 155:15,
Oklahoma Abandoned Mine Land Program. Oklahoma proposes to amend its
Reclamation Plan at sections 884.13(c)1, Goals and Objectives;
884.13(c)2, Project Ranking and Selection; 884.13(c)3, Interagency
Coordination; 884.13(c)5, Eligible Lands and Waters; 884.13(c)7, Public
Participation; and 884.13(d)1, Administrative and Management Structure.
(1) OAC 155:15, Oklahoma Abandoned Mine Land Reclamation Program Rules
Subsection 1-2, is revised to clarify definitions used later in the
rules. Subsection 1-3, subpart (4) is added to require that contracts
for AML projects only be awarded to successful bidders who are
determined eligible to receive funds by using OSM's Applicant Violator
System. Subsection 1-3 is revised to ensure that certain coal mine
sites damaged and abandoned after August 3, 1977, are eligible for
reclamation funding if the mining (1) took place during the interim
program or (2) ended on or before November 5, 1990, and the surety for
the mining company became insolvent during that period. Changes to
Subsection 1-6 revise the objectives of reclamation project funding and
the priority of those objectives. Objectives (4), Research and
Demonstration, and (7), Construction of Public Facilities, are
eliminated. The priority of order of the other objectives remains
unchanged. Subsection 1-14 is added to allow for the construction,
repair or enhancement of facilities related to water supplies where
such supplies have been adversely affected by coal mining practices.
Subsection 1-15 adds requirements for the establishment of special
trust accounts that will provide for coal reclamation after September
30, 1995. Once established, Oklahoma may then set aside 10% of its
annual grant funding
[[Page 66245]]
for this use. Subsection 1-16 authorizes Oklahoma to receive and retain
funds for Acid Mine Drainage Programs without regard to normal time
limitations and establishes requirements for expenditure of granted
funds.
(2) Section 884.13(c)1 Goals and Objectives
This section is revised to eliminate goal 4 (Research and
Demonstration) and goal 7 (Construction of Public Facilities). The
remaining goals and their priorities are unchanged.
(3) Section 884.13(c)(2) Project Ranking and Selection
A new sentence is added that (1) requires public notices to be
published during the project selection process and (2) outlines
requirements for public meetings and public comment during the
selection process. The ``Project Selection Matrix'' is completely
revised and Table 3 which outlines the project selection decision
process is changed to place the general public into the project
screening process.
(4) Section 884.13(c)(3) Coordination of Reclamation Work Between the
State, the Soil Conservation Service and Other Reclamation Agencies
This section revises the description of the State Reclamation
Committee and its role in the reclamation program.
(5) Section 884.13(c)(5) Policies and Procedures for Reclamation on
Private Land
The subsection ``Eligible Lands and Water'' is revised to add
eligibility for Interim Program and certain Insolvent Surety sites.
(6) Section 884.13(c)(7) Public Participation Policies
The public participation policies are revised to increase public
input into the beginning of the project selection process.
(7) Section 884.13(d)(1) Administrative and Management Structure
Figure 7, which depicts the organizational structure of the
Oklahoma Conservation Commission, is revised to reflect the current
organization. The list of state agencies which may be involved in the
reclamation program is changed to reflect current program operational
practices. Figure 8, Oklahoma Executive Branch Organizational Chart,
has been deleted.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 884.15(a), OSM is
seeking comments on whether the proposed amendment satisfies the
applicable program approval criteria of 30 CFR 884.14. If the amendment
is deemed adequate, it will become part of the Oklahoma plan.
Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under DATES or at locations other than the Tulsa Field Office will not
necessarily be considered in the final rulemaking or included in the
Administrative Record.
Public Hearing
Persons wishing to speak at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,
c.s.t., on January 5, 1996. The location and time of the hearing will
be arranged with those persons requesting the hearing. If no one
requests an opportunity to speak at the public hearing, the hearing
will not be held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to speak have been heard. Persons in the audience who
have not been scheduled to speak, and who wish to do so, will be heard
following those who have been scheduled. The hearing will end after all
persons scheduled to speak and persons present in the audience who wish
to speak have been heard.
Any disabled individual who has need for a special accommodation to
attend a public hearing should contact the individual listed under FOR
FURTHER INFORMATION CONTACT.
Public Meeting
If only one person requests an opportunity to speak at a hearing, a
public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendment may request a meeting by contacting the person listed under
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the
public and, if possible, notices of meetings will be posted at the
locations listed under ADDRESSES. A written summary of each meeting
will be made a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12866
This proposed rule is exempted from review by the Office of
Management and Budget (OMB) under Executive Order 12866 (Regulatory
Planning and Review).
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State and Tribal abandoned mine land reclamation plans and revisions
thereof since each such plan is drafted and promulgated by a specific
State or Tribe, not by OSM. Decisions on proposed abandoned mine land
reclamation plans and revisions thereof submitted by a State or Tribe
are based on a determination of whether the submittal meets the
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) AND 30 CFR
Parts 884 and 888.
National Environmental Policy Act
No environmental impact statement is required for this rule since
agency decisions on proposed State or Tribal abandoned mine land
reclamation plans and revisions thereof are categorically excluded from
compliance with the National Environmental Policy Act (42 U.S.C. 4332)
by the Manual of the Department of the Interior (516 DM 6, appendix 8,
paragraph 8.4B(29)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously
[[Page 66246]]
promulgated by OSM will be implemented. In making the determination as
to whether this rule would have a significant economic impact, the
Department relied upon the data and assumptions in the analyses for the
corresponding Federal regulations.
List of Subjects in 30 CFR Part 936
Abandoned mine land reclamation, Intergovernmental relations,
Surface mining, Underground mining.
Dated: December 14, 1995.
Russell Frum,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 95-81050 Filed 12-20-95; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 95-31119 Atlantic Mackerel, Squid, and Butterfish Fisheries; 1996 Specifications
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66249-66251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31119]
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DEPARTMENT OF COMMERCE
50 CFR Part 655
[Docket No. 951211295-5295-01; I.D. 111595C]
RIN 0648-XX37
Atlantic Mackerel, Squid, and Butterfish Fisheries; 1996
Specifications
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed 1996 initial specifications; request for comments.
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SUMMARY: NMFS proposes initial specifications for the 1996 fishing year
for Atlantic mackerel, squid, and butterfish (SMB). Regulations
governing these fisheries require NMFS to publish specifications for
the upcoming fishing year and provide an opportunity for the public to
comment. This action is intended to promote the development of the U.S.
SMB fisheries.
DATES: Public comments must be received on or before January 17, 1996.
ADDRESSES: Copies of the Mid-Atlantic Fishery Management Council's
quota paper and recommendations are available from David R. Keifer,
Executive Director, Mid-Atlantic Fishery Management Council, Room 2115,
Federal Building, 300 South New Street, Dover, DE 19901.
Comments should be sent to Dr. Andrew A. Rosenberg, Director,
Northeast Region, NMFS, 1 Blackburn Drive, Gloucester, MA 01930. Please
mark the envelope ``Comments--1996 SMB specifications.''
FOR FURTHER INFORMATION CONTACT: Myles Raizin, 508-281-9104.
SUPPLEMENTARY INFORMATION: Regulations implementing the Fishery
Management Plan for Atlantic Mackerel, Squid, and Butterfish Fisheries
(FMP)
[[Page 66250]]
prepared by the Mid-Atlantic Fishery Management Council (Council)
appear at 50 CFR part 655. These regulations stipulate that NMFS
publish a document specifying the initial annual amounts of the optimum
yield (IOY), allowable biological catch (ABC), domestic annual harvest
(DAH), domestic annual processing (DAP), joint venture processing
(JVP), and total allowable levels of foreign fishing (TALFF) for the
species managed under the FMP. No reserves are permitted under the FMP
for any of these species. Regulations implementing Amendment 4 to the
FMP allow the Council to recommend specifications for these fisheries
for up to 3 consecutive years. Procedures for determining the initial
annual amounts are found in Sec. 655.22.
The following table contains the proposed initial specifications
for Atlantic mackerel, Loligo and Illex squids, and butterfish for
1996. These specifications are based on the recommendations of the
Council.
Preliminary Initial Annual Specifications for SMB for the Fishing Year
[January 1 through December 31, 1996 (mt)]
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Squids
Specifications -------------------------- Atlantic Butterfish
Loligo Illex Mackerel
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Max OY \1\.................................................. 44,000 30,000 \2\ N/A 16,000
ABC \3\..................................................... 30,000 30,000 1,175,500 7,200
IOY......................................................... 25,000 21,000 \4\ 105,500 5,900
DAH......................................................... 25,000 21,000 105,500 5,900
DAP......................................................... 25,000 21,000 50,000 5,900
JVP......................................................... 0 0 35,000 0
TALFF....................................................... 0 0 0 0
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\1\ Max optimum yield (OY) as stated in the FMP.
\2\ Not applicable, see the FMP.
\3\ IOY can increase to this amount.
\4\ Contains 20,500 mt projected recreational catch based on the formula contained in the regulations (50 CFR
part 655).
Atlantic Mackerel
The FMP provides that ABC in U.S. waters for the upcoming fishing
year is that quantity of mackerel that could be caught in U.S. and
Canadian waters minus the estimated catch in Canadian waters, while
still maintaining a spawning stock biomass (SSB) in the year following
the year for which catch estimates and quotas are being prepared, equal
to or greater than 600,000 mt.
The Council recommended an ABC of 125,500 mt, derived by
subtracting the estimated Canadian catch of 24,500 mt from the long-
term potential yield of 150,000 mt, which was estimated at the 20th
Northeast Regional Stock Assessment Workshop (20th SAW) concluded in
August 1995. This recommendation for ABC was based on the provisions
for deriving that value as contained in Amendment 5 to the FMP.
However, NMFS has determined that ABC should be calculated in
accordance with Sec. 655.21 (b)(2)(i), while still using the most
recent stock assessment. It would be premature to use the provisions of
Amendment 5 to determine ABC for 1996 since the amendment is still
undergoing Secretarial review and has not been approved or implemented.
The 20th SAW concluded that productivity appears to decline when SSB
falls below 900,000 mt. Therefore, the ABC specification for Atlantic
mackerel is proposed at 1,175,500 mt. This level of ABC would leave an
SSB of 900,000 mt for the following year (1997) from a mean starting
value of SSB of 2,100,000 mt while also taking into account a projected
Canadian catch of 24,500 mt.
The proposed IOY for the 1996 Atlantic mackerel fishery is set at
105,500 mt, equal to the proposed DAH. The specification for DAH is
computed by adding the estimated recreational catch, the proposed DAP,
and the proposed JVP. The recreational component of DAH is estimated to
be 20,500 mt, using a formula found at Sec. 655.21(b)(2)(ii). DAP and
JVP components of DAH have historically been estimated using the
Council's annual processor survey. However, for the years 1994 and
1995, response was low and did not contain projections from the large,
known processors. In addition, inquiries regarding the utilization of
displaced Alaskan freezer trawlers and New England groundfish trawlers
for possible entry into the Atlantic mackerel fishery have led the
Council to recommend no change to the DAP and JVP for the 1996 fishery.
It is generally agreed that joint ventures have had a positive impact
on the development of the U.S. Atlantic mackerel fishery and should be
encouraged.
The Council has recommended and NMFS proposes a DAH of 105,500 mt,
which includes the 20,500 mt recreational component. The Council also
recommended and NMFS proposes a DAP of 50,000 mt. The difference
between DAH (minus the recreational component) and DAP allows for a JVP
of 35,000 mt.
Zero TALFF is recommended for the 1996 Atlantic mackerel fishery by
the Council and proposed by NMFS. In 1992, the Council used testimony
from both the domestic fishing and processing industries and analysis
of nine economic factors found at Sec. 655.21(b)(2)(ii) to determine
that mackerel produced from directed foreign fishing would compete
directly with U.S. processed products, thus limiting markets available
to U.S. processors. The industry was nearly unanimous in its assessment
that a specification of TALFF would impede the growth of the U.S.
fishery. The Council sees no evidence that this evaluation has changed.
Further, the Council believes that an expanding mackerel market and
uncertainty regarding world supply, due to the economic and political
restructuring in Eastern Europe, may substantially increase
opportunities for U.S. producers to increase sales to new markets
abroad. Although the U.S. industry has not been successful in capturing
a substantial market share for mackerel in the Caribbean, North Africa,
and Europe so far, several factors indicate that market expansion of
Atlantic mackerel may occur soon. Atlantic mackerel stock abundance
remains high. Also, the continued low abundance amounts of several
important groundfish stocks in the Gulf of Maine, southern New England,
and on Georges Bank are causing further restrictions in fishing effort
for those species and the need for many
[[Page 66251]]
fishermen to redirect their effort to underutilized species. Atlantic
mackerel is now considered a prime candidate for innovation in
harvesting, processing, and marketing.
As a supplement to the quota paper for the 1993 and 1994 fisheries,
benefit-cost and sensitivity analyses were prepared by the Council and
NMFS. Results of the analyses indicated that in the long term a
specification of zero TALFF will yield positive benefits to the fishery
and to the Nation. In its 1996 quota paper, the Council provides an
additional analysis of the costs and benefits of directed foreign
fishing, which indicates that the conclusions reached in prior analyses
of zero TALFF have not changed.
The Council also recommended and NMFS proposes that four special
conditions imposed in previous years continue to be imposed on the 1996
Atlantic mackerel fishery as follows: (1) Joint ventures are allowed
south of 37 deg.30' N. lat., but river herring bycatch may not exceed
0.25 percent of the over-the-side transfers of Atlantic mackerel; (2)
the Regional Director, Northeast region, NMFS, should ensure that
adverse impacts on marine mammals are reduced in the prosecution of the
Atlantic mackerel fishery; (3) the mackerel OY may be increased during
the year as described under Sec. 655.21(b)(2)(iv) in consultation with
the Council, but the total should not exceed 125,500 mt; and (4)
applications from a particular nation for a joint venture for 1996 will
not be approved until the Regional Director determines, based on an
evaluation of performances, that the Nation's purchase obligations for
previous years have been fulfilled.
Atlantic Squids
The maximum OY (Max OY) for Loligo is 44,000 mt. The recommended
ABC for the 1996 fishery is 30,000 mt, representing a decrease of 6,000
mt from the 1995 ABC of 36,000 mt. This level of ABC is based on the
most recent stock assessments and is determined to be at a level that
will not harm the continued growth of the resource. The 17th SAW
concluded that Loligo is an annual species and does not have a 3-year
life span, as previously assumed. The 17th SAW recommended that a real-
time assessment/management system be used to ensure an adequate level
of spawning stock. This will be addressed in Amendment 5 to the FMP,
which has been submitted to the Secretary of Commerce for review.
Amendment 5 will also address the need to lower the Max OY, which is
defined in the regulations governing the fishery to be 44,000 mt. This
specification can be changed only with a plan amendment. In the
interim, the Council believes that it would be prudent to reduce the
ABC for conservation purposes, as suggested by the 17th SAW. The
Council recommended and NMFS proposes an IOY of 25,000 mt, which is
5,000 mt less than ABC and equal to DAH and DAP. DAH and DAP have
historically been estimated using the Council annual processor survey.
However, for 1995, response was low and did not contain projections
from the large, known processors. Furthermore, the Council believes
that these stocks may be susceptible to recruitment overfishing due to
the 1-year life span of the animals, and in the absence of real-time
assessment/management, the Council has chosen a conservative strategy.
The proposed IOY/DAH/DAP of 25,000 mt for the 1996 fishery represents a
decrease of 11,000 mt from the final 1995 IOY/DAH/DAP of 36,000 mt.
The expansion of the U.S. freezer trawler and refrigerated sea
water fleets that participate in this fishery and substantially
increased U.S. landings indicate that there is no longer a
justification for foreign participation. Therefore, zero JVP and TALFF
are specified for the 1996 Loligo fishery.
The Max OY for Illex squid is 30,000 mt. The Council recommended
and NMFS proposes an ABC of 30,000 mt, which is equal to the Max OY.
However, the Council has recommended and the Regional Director proposes
that the IOY for Illex be set at 21,000 mt, 9,000 mt below the ABC, due
to the conclusion that Illex has a life span of only 1 year and is,
therefore, susceptible to recruitment overfishing. Though the 17th SAW
determined that Illex has a life span of 1 year, no recommendations to
adjust Max OY ensued. The 17th SAW recommended that, since Illex is a
transboundary stock between the United States and Canada, a joint
assessment be conducted before a revised Max OY is recommended.
However, the 17th SAW advised that the current MSY for Illex may be
inappropriate and cautioned that, while the stock is under-exploited
based on current MSY, the potential for recruitment overfishing may be
substantial. No directed foreign fishery has been specified for Illex
since 1986, which reflects the large increases in the capacity of the
East Coast freezer trawler fleet and projected increases in the number
of vessels using refrigerated seawater systems capable of landing high
quality Illex. Because U.S. vessels have the capacity to harvest the
IOY, no joint venture processing is proposed 1996 fishery.
Butterfish
The FMP sets the Max OY for butterfish at 16,000 mt. Based on the
most current stock assessments, the Council recommends and the Regional
Director proposes an ABC of 7,200 mt for the 1996 fishery, representing
a decrease of 8,800 mt from the 1995 final initial specification.
Commercial landings of butterfish have been low at 4,000 mt, 2,285 mt,
4,430 mt, and 3,537 mt for the 1991 through 1994 fisheries,
respectively. Lack of market demand and the difficulty in locating
schools of market size fish have caused severe reductions in the supply
of butterfish. Discard data from the offshore fishery is lacking and
high discard rates could be reducing potential yield.
The Council recommended and NMFS proposes an IOY for butterfish of
5,900 mt. The U.S. industry has the potential to fully utilize this
IOY. Thus, there is no TALFF available. The Council recommends and the
Regional Director proposes a DAH of 5,900 mt. There has been no
interest expressed in joint ventures, thus, the IOY is proposed at a
level that does not allow for a JVP. The Council recommended and NMFS
proposes that both JVP and TALFF be specified at zero for the 1996
fisheries. However, a 1,300 mt difference between ABC and IOY is
available to accommodate an increase in IOY if economic conditions
dictate.
Classification
This action is authorized by 50 CFR part 655, and these proposed
specifications are exempt from review under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: December 15, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
[FR Doc. 95-31119 Filed 12-18-95; 2:30 pm]
BILLING CODE 3510-22-P
Complete official Federal Register PDF
FR Doc. 95-31110 Defense Federal Acquisition Regulation Supplement; Small Disadvantaged Business Concerns
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66246-66247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31110]
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DEPARTMENT OF DEFENSE
48 CFR Parts 219, 236, and 252
[DFARS Case 95-D039]
Defense Federal Acquisition Regulation Supplement; Small
Disadvantaged Business Concerns
AGENCY: Department of Defense (DOD).
ACTION: Proposed rule with request for comment; correction.
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SUMMARY: This document contains corrections to a proposed rule on Small
Disadvantaged Business Concerns, which was published in the Federal
Register on December 14, 1995 (60 FR 64135).
FOR FURTHER INFORMATION CONTACT:
Ms. Susan Schneider, (703) 602-0131.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Accordingly, the Department of Defense is correcting 48 CFR Parts
219, 236, and 252 as follows:
[[Page 66247]]
PART 219--SMALL BUSINESS PROGRAMS
1. On page 64137, middle column, section 219.7202, paragraph
(c)(1), is corrected to read as follows:
219.7202 Applicability.
* * * * *
(c) * * *
(1) The contracting activity will meet its goal for SDB concerns,
established pursuant to 10 U.S.C. 2323 and Departmental procedures,
during the current fiscal year, without this preference;
* * * * *
2. On page 64137, middle column, section 219.7203, paragraphs (b)
and (d), are corrected to read as follows:
219.7302 Procedures.
* * * * *
(b) Evaluate total offers. If the apparently successful offeror is
an SDB concern, no preference-based evaluation is required under this
subpart.
* * * * *
(d) When using the procedures in 236.303-70, additive or deductive
items, the evaluation preference in this subpart shall be applied.
3. On page 64137, last column, section 219.7204, paragraph (2), is
corrected to read as follows:
219.7204 Contract clause.
* * * * *
(2) Where work is to be performed inside the U.S., its territories
or possessions, Puerto Rico, the Trust Territory of the Pacific
Islands, or the District of Columbia.
PART 236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
4. On page 64137, last column, section 236.303-70, paragraph
(c)(2), is corrected to read as follows:
236.303-70 Additive or deductive items.
* * * * *
(c) * * *
(2) Evaluate all bids, including those using the procedures in
219.7203, on the basis of the same additive or deductive bid items.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. On page 64138, first column, section 252.219-7010, paragraphs
(b)(2) and (b)(3)(i) are corrected to read as follows:
252.219-7010 Notice of evaluation preference for small disadvantaged
business concerns--construction acquisitions--Test program.
* * * * *
(b) * * *
(2) Offers will be evaluated initially based on their total prices.
If the apparently successful offeror is an SDB concern, no preference-
based evaluation will be conducted.
(3) * * *
(i) Offers from SDBs which have not waived the evaluation
preference; and
* * * * *
[FR Doc. 95-31110 Filed 12-20-95; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 95-31100 Proposed Alteration of V-99, V-451 and J-62
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66181-66182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31100]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-ANE-35]
Proposed Alteration of V-99, V-451 and J-62
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This proposed rule would alter Federal Airways V-99, V-451 and
Jet Route J-62 in Massachusetts and Connecticut. Specific portions of
each of the airways and jet route are no longer necessary for
navigation and would be revoked. Removing the obsolete segments would
eliminate clutter on the aeronautical charts.
DATES: Comments must be received on or before February 2, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Manager, Air
Traffic Division, ANE-500, Docket No. 95-ANE-35, Federal Aviation
[[Page 66182]]
Administration, 12 New England Executive Park, Burlington, MA 01803.
The official docket may be examined in the Rules Docket, Office of
the Chief Counsel, Room 916, 800 Independence Avenue, SW., Washington,
DC, weekdays, except Federal holidays, between 8:30 a.m. and 5:00 p.m.
An informal docket may also be examined during normal business
hours at the office of the Regional Air Traffic Division.
FOR FURTHER INFORMATION CONTACT: Patricia P. Crawford, Airspace and
Obstruction Evaluation Branch (ATP-240), Airspace-Rules and
Aeronautical Information Division, Air Traffic Rules and Procedures
Service, Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591; telephone: (202) 267-9255.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 95-
ANE-35.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the Rules Docket both before and after the closing
date for comments. A report summarizing each substantive public contact
with FAA personnel concerned with this rulemaking will be filed in the
docket.
Availability of NPRM's
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
Office of Public Affairs, Attention: Public Inquiry Center, APA-220,
800 Independence Avenue, SW., Washington, DC 20591, or by calling (202)
267-3485. Communications must identify the notice number of this NPRM.
Persons interested in being placed on a mailing list for future NPRM's
should also request a copy of Advisory Circular No. 11-2A, which
describes the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to alter VOR Federal Airways V-
99, V-451 and Jet Route J-62. Specific portions of each of the airways
and jet route are no longer necessary for navigation and would be
revoked. The airspace designation for V-99 would be revoked between
Hartford, CT, and the GRAYM intersection; V-451 would be revoked
between Groton, CT, and the SEEDY intersection; and J-62 would be
revoked east of the Nantucket, CT, Very High Frequency Omnidirectional
Range (VOR). Removing the obsolete segments would eliminate clutter on
the aeronautical charts. Jet Routes and Domestic VOR Federal airways
are published in paragraphs 2004 and 6010(a), respectively, of FAA
Order 7400.9C dated August 17, 1995, and effective September 16, 1995,
which is incorporated by reference in 14 CFR 71.1. The jet route and
airways listed in this document would be published subsequently in the
Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this rule, when promulgated, will not have a significant
economic impact on a substantial number of small entities under the
criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 2004-Jet Routes
* * * * *
J-62 [Revised]
From Robbinsville, NJ; to Nantucket, MA.
* * * * *
Paragraph 6010(a)--Domestic VOR Federal Airways
* * * * *
V-99 [Revised]
From LaGuardia, NY, via INT LaGuardia 043 deg. and Hartford, CT,
245 deg. radials; Hartford.
* * * * *
V-451 [Revised]
From LaGuardia, NY; INT LaGuardia 063 deg. and Hampton, NY,
289 deg. radials; INT Hampton 289 deg. and Calverton, NY, 044 deg.
radials; INT Calverton 044 deg. and Groton, CT, 243 deg. radials;
Groton.
* * * * *
Issued in Washington, DC, on December 12, 1995.
Harold W. Becker,
Manager, Airspace-Rules and Aeronautical Information Division.
[FR Doc. 95-31100 Filed 12-20-95; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 95-31059 Finality of Decisions Regarding Railroad Retirement Annuities
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66203-66205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31059]
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RAILROAD RETIREMENT BOARD
20 CFR Part 261
RIN 3220-AB15
Finality of Decisions Regarding Railroad Retirement Annuities
AGENCY: Railroad Retirement Board.
ACTION: Proposed rule.
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SUMMARY: The Railroad Retirement Board (Board) hereby proposes to adopt
regulations pertaining to the finality of decisions under the Railroad
Retirement Act of 1974 (Act).
DATES: Comments must be received on or before February 20, 1996.
ADDRESSES: Secretary to the Board, Railroad Retirement Board, 844 North
Rush Street, Chicago, Illinois 60611.
FOR FURTHER INFORMATION CONTACT:
Michael C. Litt, General Attorney, Railroad Retirement Board, 844 North
Rush Street, Chicago, Illinois 60611, telephone (312) 751-4929, TDD
(312) 751-4701.
SUPPLEMENTARY INFORMATION: The Board's rules and procedures regarding
the finality of decisions are presently contained in Board Orders,
which are not readily available to the public. The Board Order
regarding finality of decisions provides that finality of certain
decisions is based on a number of factors; adjudication based on these
factors is difficult to administer. Also the Board Order does not
contain any time limits on reopening.
The proposed regulation addresses the finality of benefit
decisions. This proposed rule is similar to the regulation of the
Social Security Administration (SSA) entitled ``Reopening and Revising
Determinations and Decisions'' (20 CFR 404.987-404.996).
Proposed Sec. 261.1 describes who may open a final decision issued
by the agency. Proposed Sec. 261.2 describes when a final decision may
be reopened. All final decisions, except decisions awarding separation
allowance lump sum payments, may be reopened within 12 months of the
date of notice of such decision; within 3 years of the date of notice
if new and material evidence is furnished or if there was an
adjudicative error not consistent with the evidence of record at the
time of adjudication; or at any time under the conditions set forth in
proposed Sec. 261.2(c).
Proposed Sec. 261.3 provides that a change of legal interpretation
or administrative ruling upon which a decision was based is not a basis
for reopening.
Proposed Sec. 261.4 provides that the annuity beginning date will
not be changed if the annuitant was later found to be engaged in
compensated service for an employer, as defined in part 202 of the
Board's regulations, and the annuitant had no basis for knowing that he
was engaged in such service. This section also provides that the award
of an annuity would not be withdrawn if based upon incorrect records of
service where the erroneously credited service months do not exceed 6
months and the annuitant was not at fault in causing the error.
Proposed Sec. 261.5 provides that a decision may be reopened after
the 1 year and 3 year time limits set forth in Sec. 261.2 of this part
if the Board had begun an investigation within those time limits.
However, if the Board does not diligently pursue the investigation it
will not reopen the decision if the decision was favorable to the
annuitant.
Proposed Secs. 261.6-261.8 are procedural and provide that if a
decision is reopened, the annuitant will be given notice and will have
a right to reconsideration and/or a hearing. Any hearing shall be
conducted in accordance with part 260 of the Board's regulations (20
CFR part 260).
Proposed Sec. 261.9 provides that if a decision on a claim is
reopened it may also cause a reopening of a decision on a previous
claim based upon the same compensation record, even though the time
limits for reopening a decision on the first claim have passed.
Proposed Sec. 261.10 provides that where new evidence shows that
the date of birth used in the initial decision was incorrect or where
the record of compensation has been changed a decision may be revised
even beyond the time limits of Sec. 261.2 of this part if such
reopening is favorable to the annuitant, but any increase in benefits
payable as the result of the reopening shall be paid prospectively
only.
Finally, proposed Sec. 261.11 provides that the three-member Board
has the discretion to reopen or not to reopen any decision under these
regulations.
The Labor Member of the Board dissented from the action of the
majority of the Board approving this proposed rule. The Labor Member's
reasons for dissenting from this action are set out below.
[[Page 66204]]
Views of the Labor Member of the Board
Proposed Sec. 261.2 would allow unlimited retroactivity for
reopening where an overpayment resulted from the Board's failure to
apply a proper reduction to the tier I component of an annuity. This
same section would allow unlimited retroactivity in cases where an
incorrect decision results in entitlement to an annuity where if the
decision were correct there would be no entitlement.
The Labor Member contends that failure to consider these cases
final after a reasonable period of time clearly defeats the purpose of
developing an administrative finality policy. He agrees that, where an
individual through fraudulent or similar means causes an incorrect
benefit to be paid, the Board should promptly take steps to correct the
payment and collect the overpayment. However, in cases where an
overpayment has been made due to an error on the part of the Board or
the beneficiary and there was no intent at deception, he feels that a
reasonable ``statute of limitations'' should be set. He feels a more
reasonable approach would be to borrow a policy from the Social
Security Administration and allow unlimited retroactivity for reopening
decision that were unfavorable to a party, but only to correct clerical
error or error that appears on the face of the evidence that was
considered when the determination or decision was originally made. In
most other cases, reopening should be limited.
The Labor Member points out that in November 1985 the Board
published a proposed rule in the Federal Register dealing with
administrative finality (50 FR 48602, November 26, 1985). Several
months later, the Office of Management and Budget submitted a letter to
the then Chairman of the Board expressing dissatisfaction with the
proposed rule comparing it unfavorably with SSA's.
The Labor Member interprets this as a clear message that the Board
should tailor its administrative finality policy to that of SSA's to
the extent possible.
The Labor Member wants our beneficiaries to have the security of
knowing that benefits that they have come to rely on will not be
suddenly taken away and argues that conforming our administrative
finality regulations to those of SSA's where appropriate, lends itself
to a true administrative finality, while still maintaining the
integrity of the railroad retirement system. He thinks the proposed
rule approved by the majority of the Board fails to do this, and for
this reason he cannot endorse it.
The Board, with the concurrence of the Office of Management and
Budget, has determined that this is not a significant regulatory action
under Executive Order 12866; therefore, no regulatory impact analysis
is required. There are no information collections associated with this
rule.
List of Subjects in 20 CFR Part 261
Pensions, Railroad employees, Railroad retirement.
For the reasons set out in the preamble, chapter II of title 20 of
the Code of Federal Regulations is proposed to amended as follows:
1. Part 261, Administrative Finality, is added to read as follows:
PART 261--ADMINISTRATIVE FINALITY
Sec.
261.1 Reopening and revising decisions.
261.2 Conditions for reopening.
261.3 Change of legal interpretation or administrative ruling.
261.4 Decisions which shall not be reopened.
261.5 Late completion of timely investigation.
261.6 Notice of revised decision.
261.7 Effect of revised decision.
261.8 Time and place to request review of a revised decision.
261.9 Finality of findings when later claim is filed on same
earnings record.
261.10 Increase in future benefits where time period for reopening
has expired.
261.11 Discretion of the three-member Board to reopen or not to
reopen a final decision.
Authority: 45 U.S.C. 231f.
Sec. 261.1 Reopening and revising decisions.
(a) This part sets forth the Board's rules governing finality of
decisions. After the expiration of the time limits for review as set
forth in part 260 of this chapter, decisions of the agency may be
reopened and revised under the conditions described in this part, by
the bureau, office, or entity that made the earlier decision or by a
bureau, office, or other entity at a higher level, which has the claim
properly before it.
(b) A final decision as that term is used in this part means any
decision of the type listed in Sec. 260.1 of this chapter where the
time limits for review as set forth in part 260 of this chapter or in
the Railroad Retirement Act have expired.
(c) Reopening a final decision under this part means a conscious
determination on the part of the agency to reconsider an otherwise
final decision for purposes of revising that decision.
(d) New and material evidence as that phrase is used in this part
means evidence that may reasonably be expected to affect a final
decision, which was unavailable to the agency at the time the decision
was made, and which the claimant could not reasonably have been
expected to have submitted at that time.
Sec. 261.2 Conditions for reopening.
A final decision may be reopened:
(a) Within 12 months of the date or the notice of such decision,
for any reason;
(b) Within three years of the date of the notice of such decision,
if there is new and material evidence or there was adjudicative error
not consistent with the evidence of record at the time of adjudication;
or
(c) At any time if:
(1) The decision was obtained by fraud or similar fault;
(2) Another person files a claim on the same record of compensation
and allowance of the claim adversely affects the first claim;
(3) A person previously determined to be dead on whose earnings
record a survivor annuity is based is found to be alive;
(4) A claim was denied because of the absence of proof of death of
the employee, and the death is later established:
(i) By reason of an unexplained absence from his or her residence
for a period of 7 years; or
(ii) By location or identification of his or her body;
(5) The Social Security Administration has awarded duplicate
benefits on the same record of compensation;
(6) The decision was that the claimant did not have an insured
status, and compensation has been credited to the employee's record of
compensation in accordance with part 211 of this chapter:
(i) To enter items transferred by the Social Security
Administration which were credited under the Social Security
Administration which were credited under the Social Security Act when
they should have been credited to the employee's railroad retirement
compensation record; or
(ii) To correct an error made in the allocation of earnings to an
individual which, if properly allocated, would have given him or her an
insured status at the time of the decision and the evidence of these
earnings was in the possession of the Railroad Retirement Board or the
Social Security Administration at the time of the decision;
(7) The decision found the claimant entitled to an annuity or to a
lump sum payment based on the earnings record of
[[Page 66205]]
a deceased person, and it is later established that:
(i) the claimant was convicted of a felony or an act in the nature
of a felony for intentionally causing that person's death; or
(ii) If the claimant was subject to the juvenile justice system, he
or she was found by a court of competent jurisdiction to have
intentionally caused that person's death by committing an act which, if
committed by an adult, would have been considered a felony or an act in
the nature of a felony;
(8) The claimant shows that it is to his or her advantage to select
a later annuity beginning date and refunds, by cash payment or setoff,
past payments applying to the period prior to the later beginning date,
subject, however, to the provisions of subpart D of part 217 and Sec.
218.9 of this chapter;
(9) The decision is incorrect because of a failure to apply a
reduction, or the proper reduction, to the tier I component of an
annuity;
(10) Except as is provided in Sec. 261.4 of this part, the
decision is incorrect for any reason and results in entitlement to an
annuity in a case where if the decision were correct there would be no
entitlement.
(d) Revision of the amount or payment of a separation allowance
lump sum amount pursuant to section 6(e) of the Railroad Retirement Act
is limited to 60 days from the date of notification of the award of the
separation allowance lump sum payment.
Sec. 261.3 Change of legal interpretation or administrative ruling.
A change of legal interpretation or administrative ruling upon
which a decision is based does not render a decision erroneous and does
not provide a basis for reopening.
Sec. 261.4 Decisions which shall not be reopened.
The following decisions shall not be reopened:
(a) An award of an annuity beginning date to an applicant later
found to have been in compensated service to an employer under part 202
of this chapter on that annuity beginning date and who is found not to
be at fault in causing the erroneous award; provided, however, that
this exception shall not operate to permit payment of benefits for any
month in which the claimant is found to be engaged in compensated
service.
(b) An award of an annuity based on a subsequently discovered
erroneous crediting of months of service and compensation to a claimant
where:
(1) The loss of such months of service and compensation will cause
the applicant to lose his or her eligibility for an annuity previously
awarded;
(2) The erroneously credited months of service do not exceed six
months; and
(3) The annuitant is found not to be at fault in causing the
erroneous crediting.
(c) An erroneous award of an annuity where the error is no greater
than one dollar per month per annuity affected.
(d) An erroneous award of a lump sum or accrued annuity payment
where the error is no greater than $25.00.
Sec. 261.5 Late completion of timely investigation.
(a) A decision may be revised after the applicable time period in
Sec. 261.2(a) or Sec. 261.2(b) of this part expires if the Railroad
Retirement Board begins an investigation into whether to revise the
decision before the applicable time period expires and the agency
diligently pursues the investigation to the conclusion. The
investigation may be based on a request by a claimant or on action by
the Railroad Retirement Board.
(b) Diligently pursued for purposes of this section means that in
view of the facts and circumstances of a particular case, the necessary
action was undertaken and carried out as promptly as the circumstances
permitted. Diligent pursuit will be presumed to have been met if the
investigation is concluded and, if necessary, the decision is revised
within 6 months from the date the investigation began.
(c) If the investigation is not diligently pursued to its
conclusion, the decision will be revised if a revision is applicable
and if it is favorable to the claimant. It will not be revised if it
would be unfavorable to the claimant.
Sec. 261.6 Notice of revised decision.
(a) When a decision is revised, notice of the revision will be
mailed to the parties to the decision at their last known address. The
notice will state the basis for the revised decision and the effect of
the revision. The notice will also inform the parties of the right to
further review.
(b) If a hearings officer or the three-member Board proposes to
revise a decision, and the revision would be based only on evidence
included in the record on which the prior decision was based, all
parties will be notified in writing of the proposed action. If a
revised decision is issued by a hearings officer, any party may request
that it be reviewed by the three-member Board, or the three-member
Board may review the decision on its own initiative.
Sec. 261.7 Effect of revised decision.
A revised decision is binding unless:
(a) The revised decision is reconsidered or appealed in accord with
part 260 of this chapter;
(b) The three-member Board reviews the revised decision; or
(c) The revised decision is further revised consistent with this
part.
Sec. 261.8 Time and place to request review of a revised decision.
A party to a revised decision may request, as appropriate, further
review of the decision in accordance with the rules set forth in part
260 of this chapter.
Sec. 261.9 Finality of findings when later claim is filed on same
earnings record.
If two claims for benefits are filed on the same record of
compensation, findings of fact made in a decision in the first claim
may be revised in determining or deciding the second claim, even though
the time limit for revising the findings made in the fist claim has
passed. However, a finding in connection with a claim that a person was
fully or currently insured at the time of filing an application, at the
time of death, or any other pertinent time, may be revised only under
the conditions stated in Sec. 261.2 of this part.
Sec. 261.10 Increase in future benefits where time period for
reopening has expired.
If, after the time period for reopening under Sec. 261.2(b) of this
part has expired, new evidence is furnished showing a different date of
birth or new evidence is furnished which would cause a correction in a
record of compensation as provided for in part 211 of this chapter and,
as a result of the new evidence, increased benefits would be payable,
the Board will pay increased benefits, but only for the months
following the month the new evidence is received.
Sec. 261.11 Discretion of the three-member Board to reopen or not to
reopen a final decision.
In any case in which the three-member Board may deem proper, the
Board may direct that any decision, which is otherwise subject to
reopening under this part, shall not be reopened or direct that any
decision, which is otherwise not subject to reopening under this part,
shall be reopened.
Dated: December 14, 1995.
By authority of the Board.
For the Board
Beatrice Ezerski,
Secretary to the Board.
[FR Doc. 95-31059 Filed 12-20-95; 8:45 am]
BILLING CODE 7905-01-M
Complete official Federal Register PDF
FR Doc. 95-31051 Lamps, Reflective Devices and Associated Equipment; Advisory Committee Public Meetings
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Page 66247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31051]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 95-28; Notice 5]
RIN 2127-AF73
Lamps, Reflective Devices and Associated Equipment; Advisory
Committee Public Meetings
AGENCY: National Highway Traffic Safety Administration (NHTSA); DOT.
ACTION: Notice; schedule of advisory committee meetings.
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SUMMARY: This notice announces the final dates and locations of the
three remaining series of meetings of NHTSA's Advisory Committee on
Regulatory Negotiation (concerning the improvement of headlamp
aimability performance and visual/optical headlamp aiming).
DATES: Tuesday-Thursday, January 16-18, 1996; Monday-Wednesday, March
4-6, 1996; Tuesday-Thursday, April 23-25, 1996.
ADDRESSES: The January and March 1996 meetings of the Advisory
Committee will be held at the Department of Transportation, Room 2230,
Nassif Building, 400 Seventh Street SW., Washington, DC. The April 1996
meeting will be held at the Federal Mediation and Conciliation Service,
2100 K Street NW., Washington, DC. Meetings will begin at 9:00 a.m.,
except for the meeting of Tuesday, January 16, 1996, which will begin
at 10:00 a.m.
FOR FURTHER INFORMATION CONTACT: Jere Medlin, Office of Vehicle Safety
Standards, NHTSA (Phone: 202-366-5276; FAX: 202-366-4329). Mediator:
Lynn Sylvester, Federal Mediation and Conciliation Service, (phone:
202-606-9140; FAX: 202-606-3679).
SUPPLEMENTARY INFORMATION: On August 16, 1995, the National Highway
Traffic Safety Administration (NHTSA) published a tentative schedule
for its early 1996 meetings of the Advisory Committee on Regulatory
Negotiation (concerning the improvement of headlamp aimability
performance and visual/optical headlamp aiming) (60 FR 42496)). The
notice announced that this schedule was subject to confirmation or
modifications at the Committee's November 1995 meeting. It announced
that if there were changes or additions to the schedule, NHTSA would
publish a notice informing the public of the changes.
At its meeting on November 30, 1995, in order to complete its tasks
by the end of April 1996, the Committee decided to expand its three
remaining series of meetings from a schedule of two days each to one of
three days each, to be held on the days and in the locations shown
above. The dates are approximately those announced in the August
notice.
The meetings are open to the public.
Issued: December 15, 1996.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 95-31051 Filed 12-20-95; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 95-31047 Orthopedic Devices: Classification, Reclassification, and Codification of Pedicle Screw Spinal Systems; Correction
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Page 66227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31047]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 888
[Docket No. 95N-0176]
Orthopedic Devices: Classification, Reclassification, and
Codification of Pedicle Screw Spinal Systems; Correction
AGENCY: Food and Drug Administration, HHS.
ACTION: Proposed rule; correction.
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SUMMARY: The Food and Drug Administration (FDA) is correcting certain
statements in the preamble to a proposed rule that appeared in the
Federal Register of October 4, 1995 (60 FR 51946). The document
proposed to classify certain unclassified preamendments pedicle screw
spinal systems into class II (special controls), and to reclassify
certain postamendments pedicle screw spinal systems from class III
(premarket approval) to class II. The document states further that FDA
is issuing for public comment the recommendations of the Orthopedic and
Rehabilitation Devices Panel (the Panel) concerning the classification/
reclassification of pedicle screw spinal systems, and the agency's
tentative findings on the Panel's recommendations. The document is
being corrected to reflect an accurate description of the formation,
membership, and activities of the Spinal Implant Manufacturers Group
(SIMG), and the Scientific Committee, two separate entities established
by the spinal implant manufacturers and medical professional societies
to collect and submit to FDA all available valid scientific data on the
performance of pedicle screw spinal devices.
FOR FURTHER INFORMATION CONTACT: Mark N. Melkerson, Center for Devices
and Radiological Health (HFZ-410), Food and Drug Administration, 9200
Corporate Blvd., Rockville, MD 20850, 301-594-2036.
In the FR Doc. 95-24686, appearing on page 51946 in the Federal
Register of Wednesday, October 4, 1995, the following corrections are
made:
1.On page 51947, in the second column, in the fourth paragraph,
beginning in line 7, the second, third, and fourth sentences are
removed and the following text is added in their place to read as
follows:
In response, two groups were founded: The Spinal Implant
Manufacturers Group (SIMG), and the Scientific Committee. SIMG, founded
by 16 medical device manufacturers, agreed to provide the funding that
would be required to conduct a nationwide study of pedicle screw
devices. The Scientific Committee was formed by five professional
medical societies, including the North American Spine Society, the
American Academy of Orthopedic Surgeons, the Scoliosis Research
Society, the Congress of Neurosurgeons, and the American Association of
Neurological Surgeons. The Scientific Committee was formed to develop
and implement a uniform research protocol to gather clinical experience
from the use of the device. The Scientific Committee consisted of four
surgeons and two nonvoting SIMG representatives, a biostatistician, and
a clinical/regulatory affairs professional.
2. On page 51947, in the third column, in the first paragraph,
beginning in the fifteenth line, the fourth and fifth sentences are
removed and the following text is added in their place to read as
follows:
At this meeting, the Scientific Committee presented clinical data
from its nationwide ``Historical Cohort Study of Pedicle Screw Fixation
in Thoracic, Lumbar, and Sacral Spinal Fusions'' (Cohort Study). FDA
presented a comprehensive review of the medical literature, an analysis
of the medical literature, an analysis of the Cohort study conducted by
the Scientific Committee, and a summary of the clinical data that had
been released by IDE sponsors.
3. On page 51950, in the first column, in the fourth paragraph, in
the first line, the abbreviation ``SIMG'' is corrected to read
``Scientific Committee''.
Dated: December 8, 1995.
D.B. Burlington,
Director, Center for Devices and Radiological Health.
[FR Doc. 95-31047 Filed 12-20-95; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 95-31039 Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Georgia
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Page 66246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31039]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[GA27-1-7186b; FRL-5320-4]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; State of Georgia
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes to approve the State Implementation Plan
(SIP) revision submitted by the State of Georgia for the adoption of
the Clean Fuel Fleet program. In the final rules section of this
Federal Register, the EPA is approving the State's SIP revision as a
direct final rule without prior proposal because the Agency views this
as a noncontroversial revision amendment and anticipates no adverse
comments. A detailed rationale for the approval is set forth in the
direct final rule. If no adverse comments are received in response to
that direct final rule, no further activity is contemplated in relation
to this proposed rule. If EPA receives adverse comments, the direct
final rule will be withdrawn and all public comments received will be
addressed in a subsequent final rule based on this proposed rule. The
EPA will not institute a second comment period on this document. Any
parties interested in commenting on this document should do so at this
time.
DATES: To be considered, comments must be received by January 22, 1996.
ADDRESSES: Written comments should be sent to Ben Franco, EPA Region 4,
Air Programs Branch, 345 Courtland Street NE, Atlanta, Georgia, 30365.
Copies of the State of Georgia submittal are available for public
review during normal business hours at the addresses listed below.
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460.
Environmental Protection Agency, Region 4, Air Programs Branch, 345
Courtland Street NE, Atlanta, Georgia 30365.
Georgia Department of Natural Resources, 4244 International Parkway,
Suite 120, Atlanta, GA 30354.
FOR FURTHER INFORMATION CONTACT: Ben Franco of the EPA Region 4 Air
Programs Branch at (404) 347-3555, ext. 4211, and at the above address.
SUPPLEMENTARY INFORMATION: For additional information see the direct
final rule which is published in the rules section of this Federal
Register.
Dated: September 29, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 95-31039 Filed 12-20-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-31015 Petition for Rulemaking; Summary of Petitions Received; Dispositions of Petitions Issued
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Page 66181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31015]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Chapter I
[Summary Notice No. PR-95-4]
Petition for Rulemaking; Summary of Petitions Received;
Dispositions of Petitions Issued
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of petitions for rulemaking received and of dispositions
of prior petitions.
-----------------------------------------------------------------------
SUMMARY: Pursuant to FAA's rulemaking provisions governing the
application, processing, and disposition of petitions for rulemaking
(14 CFR part 11), this notice contains a summary of certain petitions
requesting the initiation of rulemaking procedures for the amendment of
specified provisions of the Federal Aviation Regulations and of denials
or withdrawals of certain petitions previously received. The purpose of
this notice is to improve the public's awareness of, and participation
in, this aspect of FAA's regulatory activities. Neither publication of
this notice nor the inclusion or omission of information in the summary
is intended to affect the legal status of any petition or its final
disposition.
DATES: Comments on petitions received must identify the petition docket
number involved and must be received January 19, 1996.
ADDRESSES: Send comments on any petition in triplicate to: Federal
Aviation Administration, Office of the Chief Counsel, Attn: Rules
Docket No.________, 800 Independence Avenue, SW., Washington, D.C.
20591.
The petition, any comments received, and a copy of any final
disposition are filed in the assigned regulatory docket and are
available for examination in the Rules Docket (AGC-200), Room 915G, FAA
headquarters Building (FOB 10A), 800 Independence Ave., SW.,
Washington, D.C. 20591; telephone (202) 267-3132. Comments may also be
sent electronically to the following internet address:
[email protected].
FOR FURTHER INFORMATION CONTACT: Mr. D. Michael Smith, Office of
Rulemaking (ARM-1), Federal Aviation Administration, 800 Independence
Avenue, SW, Washington, DC 20591; telephone (202) 267-7470.
This notice is published pursuant to paragraphs (b) and (f) of
Sec. 11.27 of part 11 of the Federal Aviation Regulations (14 CFR part
11).
Donald P. Byrne,
Assistant Chief Counsel for Regulations.
Petitions for Rulemaking
Docket No.: 28376.
Petitioner: National Business Aircraft Association, Inc.
Regulations Affected: 14 CFR 91.501.
Description of Rulechange Sought: To add a new paragraph (e) to
Sec. 91.501 defining the word ``company'' as it is used in Sec.
91.501(b)(5) and (6) to include a governmental agency and governmental
corporation, as well as defining the words ``parent'' and
``subsidiary'' to include another governmental agency or governmental
corporation within the same local, state, or federal jurisdiction. This
amendment, if granted, would include government aircraft operations
with corporate aircraft operations under part 91 and, therefore, allow
government agencies to recover the costs of owning, operating, and
maintaining their aircraft in certain circumstances.
Petitioner's Reason for the Request: The petitioner feels that the
current regulatory scheme discriminates against government owners and
operators of civil aircraft without justification.
[FR Doc. 95-31015 Filed 12-20-95; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 95-31008 Food Labeling: Nutrient Content Claims, General Principles; Health Claims, General Requirements and Other Specific Requirements for Individual Health Claims
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66205-66227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31008]
=======================================================================
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[[Page 66206]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 101
[Docket Nos. 94P-0390 and 95P-0241]
Food Labeling: Nutrient Content Claims, General Principles;
Health Claims, General Requirements and Other Specific Requirements for
Individual Health Claims
AGENCY: Food and Drug Administration, HHS.
ACTION: Proposed rule.
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SUMMARY: The Food and Drug Administration (FDA) is proposing to amend
its regulations on nutrient content claims and health claims to provide
additional flexibility in the use of these claims on food products.
These changes are intended to benefit public health by encouraging
manufacturers to use health claims and nutrient content claims that
will assist consumers in maintaining a healthy diet. The agency's
current regulations were issued in January of 1993 to implement the
Nutrition Labeling and Education Act of 1990. This document proposes
refinements to those regulations to allow additional synonyms for
nutrient content claims without specific preclearance by the agency,
permit health claims on certain foods that do not currently qualify
because they do not contain 10 percent of certain required nutrients,
permit the use of shortened versions of authorized health claims under
certain circumstances, eliminate some of the required elements for
health claims, and provide additional guidance for petitioners seeking
exemption from the disqualification of some foods from bearing a health
claim because they contain high levels of certain nutrients. FDA is
proposing these amendments in response to petitions submitted by the
National Food Processors Association (NFPA) and the American Bakers
Association (ABA).
DATES: Written comments by March 20, 1996. The agency is proposing that
any final rules that may issue based upon this proposal become
effective on the date of publication.
ADDRESSES: Written comments to the Dockets Management Branch (HFA-305),
Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23, Rockville,
MD 20857, 301-443-1751.
FOR FURTHER INFORMATION CONTACT: F. Edward Scarbrough, Center for Food
Safety and Applied Nutrition (HFS-2), Food and Drug Administration, 200
C St. SW., Washington, DC 20204, 202-205-4561.
SUPPLEMENTARY INFORMATION:
I. Background
A. The Nutrition Labeling and Education Act of 1990
On November 8, 1990, the President signed into law the Nutrition
Labeling and Education Act of 1990 (the 1990 amendments) (Pub. L. 101-
535). This new law amended the Federal Food, Drug, and Cosmetic Act
(the act) in a number of important ways. Among the more notable aspects
of the 1990 amendments were that they confirmed FDA's authority to
regulate nutrient content and health claims on food labels and in food
labeling.
Section 403(r)(1)(A) of the act (21 U.S.C. 343(r)(1)(A)), which was
added by the 1990 amendments, provides that a product is misbranded if
it bears a claim that characterizes the level of a nutrient of the type
required to be included in nutrition labeling unless the claim uses
terms that are defined and designated in regulations adopted by FDA and
is made in accordance with all other regulatory requirements.
Similarly, section 403(r)(1)(B) of the act provides that a product is
misbranded if it bears a claim that characterizes the relationship of a
nutrient to a disease or health-related condition unless the claim is
made in accordance with the requirements of the act.
The 1990 amendments instruct the Secretary of Health and Human
Services (the Secretary) (and, by delegation, FDA) to issue regulations
defining nutrient content claims that characterize levels of nutrients
in food. The 1990 amendments also instruct the Secretary (and, by
delegation, FDA) to issue regulations authorizing health claims only if
he or she determines,
``based on the totality of publicly available scientific
evidence (including evidence from well-designed studies conducted in
a manner which is consistent with generally recognized scientific
procedures and principles), that there is significant scientific
agreement, among experts qualified by scientific training and
experience to evaluate such claims, that the claim is supported by
such evidence'' (section 403(r)(3)(B)(i) of the act).
Section 403(r)(3)(B)(ii) and (r)(3)(B)(iii) of the act describe the
information that must be included in any health claim authorized under
the act. The act provides that the claim shall be an accurate
representation of the significance of the substance in affecting the
disease or health-related condition, and that it shall enable the
public to comprehend the information and understand its significance in
the context of the total daily diet. Section 403(r)(4)(A)(i) of the act
also provides that any person may petition FDA to issue a regulation
authorizing a nutrient content or health claim.
In addition, the 1990 amendments directed FDA to consider 10
disease-nutrient relationships as possible subjects for health claims.
B. FDA's Implementation of the 1990 Amendments
In the Federal Register of January 6, 1993 (58 FR 2066-2941), FDA
adopted final rules that implemented the 1990 amendments to the act.
Among those final rules, Sec. 101.13 sets out general principles for
nutrient content claims and provides for their use on food labels.
Other regulations in subpart D of part 101 (21 CFR part 101) establish
specific requirements for nutrient content claims. These regulations
define specific terms such as ``free,'' ``low,'' ``good source,''
``high,'' ``reduced,'' ``less (or fewer),'' ``more,'' and ``light'' or
``lite,'' and establish values for these terms for various nutrients.
They also designate certain synonyms that can be used in place of these
defined terms (58 FR 2302). In addition, Sec. 101.69 establishes
procedures for petitioning the agency to authorize additional nutrient
content claims and provide for additional synonyms which, if
authorized, will be listed in the relevant regulations (Sec. 101.69)
(e.g., ``extra'' as a synonym for ``more'').
FDA also adopted final rules that implemented the health claims
provisions of the act (58 FR 2478). Section 101.14 establishes general
principles for health claims. This regulation prescribes the
circumstances in which a substance is eligible to be the subject of a
health claim (Sec. 101.14(b)), sets forth the standard in section
403(r)(3)(B)(i) of the act as the standard that the agency will apply
in deciding whether to authorize a claim about a substance-disease
relationship (101.14(c)), sets forth general rules on how authorized
claims are to be made in food labeling (Sec. 101.14(d)), and
establishes limitations on the circumstances in which claims can be
made (Sec. 101.14(e)). The agency also adopted Sec. 101.70, which
established a process for petitioning the agency to authorize health
claims about a substance-disease relationship (Sec. 101.70(a)) and sets
out the types of information that any such petition must include
(Sec. 101.70(f)).
At the same time, the agency announced its decisions regarding
health claims on the 10 disease-nutrient
[[Page 66207]]
relationships specified in the 1990 amendments. Of the 10, FDA
authorized health claims for calcium and osteoporosis (58 FR 2665);
dietary lipids and cancer (58 FR 2787); sodium and hypertension (58 FR
2820); dietary saturated fat and cholesterol and risk of coronary heart
disease (58 FR 2739); fiber-containing grain products, fruits, and
vegetables and cancer (58 FR 2537); fruits, vegetables, and grain
products that contain fiber, particularly soluble fiber, and risk of
coronary heart disease (58 FR 2552); and fruits and vegetables and
cancer (58 FR 2622). The regulations on general requirements for health
claims and on the claims specified above became effective May 8, 1993.
In the Federal Register of January 6, 1993 (58 FR 2066), FDA also
issued ``Food Labeling Regulations Implementing the Nutrition Labeling
and Education Act of 1990; Opportunity for Comments,'' (the
implementation final rule). The implementation final rule provided 30
days for interested persons to comment on technical issues arising in
any of the final rules implementing the 1990 amendments. In the Federal
Register of August 18, 1993 (58 FR 44020 to 44096), FDA published
technical amendments to the final rules in response to the comments it
received.
In the Federal Register of October 14, 1993 (58 FR 53254), FDA
proposed to authorize the use of a health claim about the relationship
between folate and the risk of neural tube defects on the labels or in
labeling of foods in conventional food form and dietary supplements.
This action was in response to provisions of the 1990 amendments and
the Dietary Supplement Act of 1992 (Pub. L. 102-571). In the Federal
Register of January 4, 1994 (59 FR 395), FDA announced that the
proposed regulation to authorize use of the health claim about the
association between folate and neural tube defects in food labeling was
considered a final regulation for dietary supplements of vitamins,
minerals, herbs, and other similar nutritional substances.
II. The Petition of the National Food Processors Association
The National Food Processors Association (NFPA) submitted a citizen
petition dated October 25, 1994, requesting initiation of rulemaking
for the adoption of amendments to the regulations governing nutrient
content and health claims. This petition was assigned FDA Docket No.
94P-0390.
For nutrient content claims, NFPA requested specific amendments to
Secs. 101.13 and 101.65 allowing use of synonyms and implied nutrient
content claims, without FDA preclearance, that are understood by
consumers to have the same meaning as a defined term, where such claims
are made in accordance with the requirements for the defined term, and
the defined term also appears in the product's labeling.
NFPA also requested several amendments to the health claim
regulations. Among other changes, NFPA requested that FDA permit the
use of an abbreviated or implied health claim with a referral statement
directing consumers to the complete claim elsewhere in labeling.
Currently, all required information must appear in one place without
other intervening material.
It also requested that health claims be permitted for foods with
levels of nutrients that FDA had determined increase the risk of other
diseases to the general population. Among the general requirements for
health claims, FDA established in Sec. 101.14(a)(5) levels of total
fat, saturated fat, cholesterol, and sodium in a food above which the
food is disqualified from making a health claim. These are identified
as ``disqualifying nutrient levels.'' In its petition, NFPA suggested
that FDA amend the regulation so that a food with a nutrient at a
disqualifying level would be prohibited from making a health claim only
if the nutrient is directly and adversely associated with the disease
to which the claim refers. Absent such an association, NFPA requested
that the presence of a nutrient above a threshold level not disqualify
a product from bearing a health claim but instead require disclosure of
that fact in labeling.
Finally, NFPA requested an amendment to Sec. 101.14(e)(6), which
prohibits a food in conventional food form from bearing a health claim
unless the food contains 10 percent or more of the Reference Daily
Intake or Daily Reference Value for vitamin A, vitamin C, iron,
calcium, protein, or fiber per reference amount customarily consumed
before any nutrient addition (the ``10 percent nutrient contribution
requirement''). NFPA requested that this prohibition be replaced by a
requirement that any food bearing a health claim that refers to an
added nutrient disclose the fact of that nutrient addition in labeling.
FDA issued a letter on May 11, 1995, granting most of the requests
to initiate rulemaking on the foregoing aspects of the petition
(hereinafter referred to as the May 11, 1995, letter). However, the
agency denied certain aspects of NFPA's petition, including NFPA's
request that FDA change the levels in Sec. 101.14(a)(5) from
disqualification levels to disclosure levels. Although the agency
recognized that it has the authority under section 403(r)(3)(A)(ii) of
the act to exempt any claim from the disqualifying nutrient levels if
it finds that the claim would ``assist consumers in maintaining healthy
dietary practices,'' the agency concluded that a generic change in its
regulations would not be consistent with the underlying goals of the
NLEA.
FDA acknowledged, however, that disclosure rather than
disqualification may be appropriate under certain circumstances. The
agency said it will seek more limited criteria to define the conditions
under which disclosure rather than disqualification could be permitted.
III. The Petition of the American Bakers Association
A citizen petition, dated July 27, 1995, was submitted to FDA by
the ABA (Docket No. 95P-0241/CP 1), requesting that FDA amend, among
other things, the regulatory provision in Sec. 101.14(e)(6) to permit
enriched cereal-grain products that conform to the standards of
identity in part 136, 137, or 139 (21 CFR part 136, 137, or 139), and
bread that conforms to the standard of identity for enriched bread in
Sec. 136.115, except that it contains whole wheat or other grain
products not permitted under that standard, to bear health claims. The
petition specifically requested that FDA amend Sec. 101.14(e)(6) to
read:
Except for dietary supplements, enriched grain products that
conform to a standard of identity in part 136, 137, or 139, and
bread that conforms to the standard of identity for enriched bread
in Sec. 136.115, except that it contains whole wheat or other grain
products not permitted under that standard, or where provided for in
other regulations in part 101, subpart E.
In the alternative, ABA suggested that the agency expand the list of
qualifying nutrients to include complex carbohydrates, niacin, or
thiamin or allow the 10 percent nutrient contribution requirement to
apply to all foods for which the summation of the Daily Value of the
applicable nutrients is 10 percent rather than requiring that the 10
percent be based on a single serving.
Because of the similarities in the NFPA and ABA petitions regarding
the 10 percent nutrient contribution and health claims, FDA is
responding to part of the ABA petition in this document, which
implements FDA's May 11, 1995, letter response to the NFPA petition.
Other issues raised in the ABA petition will be handled separately.
[[Page 66208]]
IV. The Proposals
As the petitioners have requested, the agency is reconsidering its
position on several of the issues raised in the NFPA and ABA petitions.
The agency is well within its legal authority to reconsider the issues
in the NFPA petition and propose changes to the current food labeling
regulations. ``An agency may always change its mind and alter its
policies.'' (See Conference of State Bank Examiners v. Office of Thrift
Supervision, 792 F. Supp. 837, 845 (D.D.C. 1992)). While the burden is
on the agency to justify the change from the status quo, that
justification need not consist of an affirmative demonstration that the
status quo is wrong. The agency need only supply ``a reasoned analysis
for the change.'' (See Center for Auto Safety v. Peck, 751 F.2d 1336,
1349 (D.C. Cir 1985) (citing Motor Vehicle Mfrs. Ass'n v. State Farm
Mutual, 463 U.S. 29, 41, 103 S.Ct. 2856, 2865-2866 (1983))). The agency
can justify its departure from past policy ``with reference to the
objectives underlying statutory scheme it purports to construe.'' (See
Simmons v. I.C.C., 829 F.2d 150, 156 (D.C. 1987)).
One of the primary purposes of the 1990 amendments was to educate
consumers about healthful dietary practices. The legislative history
states, ``Health claims supported by significant scientific agreement
can reinforce the Surgeon General's recommendations and help Americans
to maintain a balanced and healthful diet'' (Ref. 1).
If the current regulations hinder food companies who want to use
one of the FDA-authorized claims, as NFPA has alleged, this public
health objective will be frustrated. As the agency has stated, if valid
health claims are not being used, ``there is a cost imposed on society
in that some valuable information may not be conveyed to consumers''
(58 FR 2927 at 2940). Consumers cannot change their dietary practices
if they do not have the necessary information.
The agency is pleased that many food companies are using the health
claims on the labels of their products. While the agency has not done
an extensive survey, FDA notes that dozens of health claims have
appeared on products such as cereal, cookies, frozen dessert bars, egg
products, and frozen vegetables. Nonetheless, the agency is concerned
that health claims are not being used as extensively as they could be,
despite the fact that many foods qualify for such claims.
FDA also notes that food companies are submitting petitions seeking
approval of new claims. Since the final regulations have been
published, the agency has received two such petitions, one regarding
sugar alcohols and dental caries and one regarding oat products and
coronary heart disease. A proposed regulation to authorize a health
claim regarding sugar alcohols and dental caries was published in the
Federal Register on July 20, 1995 (60 FR 37502) (hereinafter referred
to as the sugar alcohols proposal). The agency expects to complete in
the very near future its evaluation of the petition regarding oat
products and coronary heart disease.
Accordingly, the agency is proposing changes to the regulations
regarding the use of synonyms for nutrient content claims, the 10
percent nutrient contribution requirement for health claims, the use of
abbreviated health claims, the specific requirements for individual
health claims, and disqualifying levels for health claims to facilitate
additional use of these claims.
A. Synonyms in Nutrient Content Claims
Section 403(r)(1)(A) and (r)(2) of the act state that claims that
either expressly or by implication characterize the level of a nutrient
(nutrient content claims) may be made in the label or labeling of a
food only if the characterization of the level made in the claim uses
terms that are defined in regulations of the agency. Based on these
provisions, the agency has defined expressed claims as any direct
statement about the level (or range) of a nutrient in the food
(Sec. 101.13(b)(1)). In addition, it has defined implied claims as
nutrient content claims that describe the food or an ingredient therein
in a manner that suggests that a nutrient is absent or present in a
certain amount (e.g., ``high in oat bran'') (Sec. 101.13(b)(2)(i)) or
that suggests that the food, because of its nutrient content, may be
useful in maintaining healthy dietary practices and is made in
association with an expressed claim or statement about a nutrient
(e.g., ``healthy, contains 3 grams of fat'') (Sec. 101.13(b)(2)(ii)).
The agency has specifically defined a number of expressed nutrient
content claims (``free,'' ``low,'' ``reduced,'' ``light,'' ``good
source,'' ``high,'' and ``more'') and provided for their synonyms,
e.g., ``no,'' ``little,'' ``contains,'' and ``rich in.'' The agency
also provided for certain implied nutrient content claims
(Sec. 101.65(c) and (d)). Finally, the agency has defined the implied
nutrient content claim ``healthy'' (Sec. 101.65(d)(2)).
The agency considered the use of additional synonyms for the
defined terms in the 1993 nutrient content claims final rule (58 FR
2302 at 2320). At that time the agency provided for a limited number of
specific synonyms and declined to provide for either long lists of
synonyms or conditions for use of unevaluated terms. The agency
concluded that permitting additional synonyms to be used in conjunction
with either a defined claim or a disclosure statement explaining the
synonym's intended meaning would not assist consumers in maintaining
healthy dietary practices (58 FR 2302 at 2320). The agency stated that
there is no provision in the act that allows for the use of undefined
synonyms in the absence of action by the agency. Because of time
constraints, in developing the final regulations FDA was unable to
fully study the suggested schemes for use of terms without preclearance
to determine whether a scheme could be devised that would constitute
approval by the agency without preclearance of each term.
The agency also considered but rejected (58 FR 2302 at 2373) the
suggestion that implied claims that are defined on the label be
permitted. The agency did provide for certain implied claims on
products that meet the definition for certain expressed claims and gave
specific examples of some of these claims in the preamble (58 FR 2302
at 2374) and in the regulations (Sec. 101.65(c)(3)) (e.g., ``high in
oat bran'' for foods that are a good source of fiber; ``no oil'' for
fat free foods).
In the October 25, 1994, petition, as stated above, NFPA requested
that the agency reconsider allowing synonyms and implied nutrient
content claims to be used without FDA preclearance under certain
circumstances. NFPA maintained that FDA's strict interpretation and
application of the 1990 amendments totally frustrated the achievement
of the various statutory goals of improving consumer education about
diet and health and thereby reducing the incidence of diet-related
diseases.
NFPA argued that, because the regulations sharply limit the
terminology that can be used to make nutrient content claims for food
products and require ``premarket clearance'' of terminology that FDA
has not specifically authorized by regulation, the regulations ban a
host of truthful and nonmisleading labeling statements. The petitioner
requested that FDA propose amendments that would permit nonmisleading
terms or statements that are reasonably understood by consumers to be
synonyms of a term defined in subpart D of part 101 to be used in
product labeling when the defined term also is used in the labeling.
Requesting similar amendments for implied claims, NFPA
[[Page 66209]]
stated that such amendments would ensure that claims characterizing the
level of a nutrient in a food are truthful and nonmisleading but would
give manufacturers greater freedom to construct such labeling messages
creatively.
In its May 11, 1995, response, FDA recognized that there may be
some merit to the argument that more latitude in the use of truthful,
nonmisleading nutrient content claims may assist consumers in
maintaining healthy dietary practices because greater flexibility would
provide the food industry with an increased incentive to develop more
healthful products. Permitting synonyms for defined terms to be used on
product labels without specific authorization for the particular
synonyms has the potential to provide the industry with a greater
variety of ways to convey nutrient information to the consumer because
the nutrient content claims on the label would not be restricted to a
finite list of terms that can only be expanded by filing an appropriate
petition. This approach could facilitate the industry's efforts to
arrive at terms that not only appropriately describe the nutrient level
in a food but also effectively catch the attention of the consumer.
In its May 11, 1995, letter, the agency noted that while a plethora
of uncontrolled terms would confuse consumers by diminishing the
usefulness of clearly defined and limited terms, NFPA's ``anchoring''
concept, if properly implemented, could offer the possibility of
increasing the available terms without confusing consumers. The agency
stated that it was granting NFPA's petition to initiate rulemaking on
the use of additional synonyms anchored to specifically authorized
terms.
Consequently, the agency is proposing to add new paragraph (r) to
Sec. 101.13, which provides that synonyms may be used in labeling in
accordance with one of two provisions. First, proposed
Sec. 101.13(r)(1) reflects the fact that a term may be used as a
synonym when the agency has specifically listed it as a synonym for a
defined term in one of the regulations listing authorized nutrient
content claims in subpart D of part 101 (``listed synonym''). FDA
included a number of synonyms in the regulation that it adopted as part
of the 1993 nutrient content claims final rule. It has also adopted
synonyms as a result of a petition filed in accordance with
Sec. 101.69(n). Additional synonyms may be added to FDA's regulations
following this procedure. Second, FDA is proposing in Sec. 101.13(r)(2)
to authorize the use of synonyms that are not specifically listed by
name in the regulations in subpart D of part 101, part 105, or part 107
(21 CFR part 105 or part 107) (``unlisted synonyms'') but are used in
labeling in accordance with the labeling requirements set out in this
provision.
Specifically, in Sec. 101.13(r)(2), the agency is proposing a
number of requirements to ensure that the use of unlisted synonyms will
not confuse or mislead consumers. In particular, FDA is proposing in
Sec. 101.13(r)(2)(i) to require that an unlisted term be reasonably
understood by consumers to be a synonym of a term defined in subpart D
of part 101, part 105, or part 107. Such an understanding is necessary
because the agency has, for example, defined the terms ``high'' and
``good source'' to represent two different levels of a nutrient.
Consumers can reasonably be expected to understand that ``without
any [nutrient]'' is the same as ``free of [nutrient],'' and that ``not
much'' of a nutrient is, in common usage, synonymous with ``low'' for
that nutrient since ``not much'' implies that some but not a lot of the
nutrient is present. Other ``synonyms'' however, may not be so clear.
It is important, therefore, that the use of unlisted synonyms that FDA
is proposing to authorize under Sec. 101.13(r)(2) be clear and
unambiguous to consumers regarding the levels to which they apply.
Without such clarity, consumers may be confused as to the nutrient
content of the food bearing the claim. Thus, regardless of the
prominent use of a listed term or other explanatory information
discussed below, terms that are not clearly understood by consumers to
be synonymous with specific listed terms may still be misleading and
misbrand the food under both section 403(a) and section 403(r)(1)(A) of
the act.
Further, the agency is concerned that different manufacturers might
use the same term but anchor it to different nutrient content claims.
For example ``plenty of fiber'' might be anchored to ``good source'' on
one product label and ``high'' on another. In this event, the agency
reserves the right to call for petitions to define the term by
regulation or to define the term on its own initiative.
The agency agrees with NFPA that, in addition to considering the
words of the individual claim, it is important to consider the meaning
of the unlisted synonym in the context of the entire product label. It
is possible, for instance, that other statements such as other nutrient
content claims on the label or in labeling could establish a context in
which the unlisted synonym would be misleading. Section 403(a) of the
act states that a food is misbranded if it bears any labeling statement
that is false or misleading in any particular. Therefore, proposed
Sec. 101.13(r)(2)(i) requires that the unlisted synonym not be
misleading in the context of the entire label.
The agency seeks comments as to whether further requirements should
be imposed to ensure that an unlisted term is truly synonymous with a
listed term. For example, FDA seeks comments as to whether it should
require companies to have data in their files demonstrating that
consumers understand the unlisted term to be synonymous with the listed
term in question as a condition for the use of the unlisted terms. In
addition, the agency seeks comments on why, if it includes such a
requirement, it should not also require that such data be available for
review by regulatory officials.
As stated above, for any term used as a synonym authorized under
proposed Sec. 101.13(r)(2) not to be misleading, the defined term for
which it purports to be a synonym would have to be clear to the
consumer. Proposed Sec. 101.13(r)(2)(ii)(A) will require that the
listed term appear prominently and conspicuously on the label.
Proposed Sec. 101.13(r)(2)(ii)(A)(1) requires the listed term
appear immediately adjacent to (with no intervening material) the most
prominent (as defined in Sec. 101.13(j)(2)(iii)) use of the unlisted
synonym. The agency tentatively concludes that having a listed term
immediately adjacent to the most prominent use of each such unlisted
synonym will help to ensure that consumers understand the claim that is
being made and thus to ascertain the level of the nutrient that the
food purports to contain.
The agency tentatively concludes that it is not sufficient for the
listed term to appear anywhere on the label, as suggested in the NFPA
petition. Such a scheme would not guarantee that the unlisted synonym
is read in conjunction with a listed term and would hinder the consumer
from ascertaining the level of the nutrient that the food purports to
have. For example, with such a provision, the unlisted synonym
authorized under Sec. 101.13(r)(2) could be very large and prominent,
and the listed term could be a part of the fine print (i.e., in small
print that is in sentence or paragraph form elsewhere on the label).
Although such defining information may be read by consumers at some
point, it would be unlikely to be fully read and comprehended at the
same
[[Page 66210]]
time as the unlisted term and thus would not make clear to the consumer
that the two statements are synonymous.
The agency's proposal is consistent with section 403(f) of the act
which deems a food to be misbranded if any word, statement, or other
information required by the act to appear on the label or labeling is
not prominently placed with such conspicuousness (as compared with
other words, statements, designs, or devices, in the labeling) and in
such terms as to render it likely to be read and understood by the
ordinary individual under customary conditions of purchase and use.
Section 403(f) of the act necessitates placement of the listed term on
the label so that it is likely to be read and understood, and thereby
to eliminate any ambiguity as to the meaning of the unlisted synonym.
Allowing the listed term to be anywhere on the label that the
manufacturer chooses would not ensure that this requirement is met.
There are a number of precedents for requiring clarifying
information in labeling to be adjacent to the text that it clarifies.
For example, Sec. 101.3(e) requires that the word ``imitation'' precede
the name of the food imitated; the term ``artificial'' is required by
Sec. 101.22(i)(1)(i), (i)(1)(ii), and (i)(3) to be adjacent to the name
of the flavor; and Sec. 102.5(b)(2) (21 CFR 102.5(b)(2)) requires that
if the percentage of a characterizing ingredient is required to be
included in the common or usual name of the food, it must be adjacent
to the name of the food. Further, several aspects of the nutrient
content claims regulations require that clarifying statements such as
the referral statement, ``See [side] panel for nutrition information''
(Sec. 101.13(g)); the disclosure statement, ``See [side] panel for
information about [sodium] and other nutrients'' (Sec. 101.13(h)); the
percentage reduction and identity of the reference food for a relative
claim (Sec. 101.14(j)(2)(ii)); and other clarifying information about
the food in relation to the claim, e.g., Sec. 101.13(i)(2) and (p)(2),
be immediately adjacent to the claim to which the statement pertains.
As with accompanying information for relative claims (i.e., percent
reduction in the nutrient and identity of the reference food
(Sec. 101.13(j)(2)(i) through (j)(2)(iii)), the agency considers the
presence of a listed term to be necessary to ensure that the claim is
understood by, and is not misleading to, consumers. However, as with
accompanying information, it recognizes that to require that this
information be included each time an unlisted synonym is used may
overburden the label. Consequently, as with relative claims, the agency
is proposing to require only that the defined term or listed synonym be
placed immediately adjacent to the most prominent declaration of each
unlisted synonym. Because of the similar purposes of the two
requirements, the agency believes that the provisions in
Sec. 101.1(j)(2)(iii) for determining the order of prominence of
relative claims are also appropriate for determining the order of
prominence of presentations of an unlisted synonym. The order of
prominence for relative claims is: (1) A claim on the principal display
panel adjacent to the statement of identity, (2) a claim elsewhere on
the principal display panel, (3) a claim on the information panel, or
(4) a claim elsewhere on the label or labeling.
The agency is proposing in Sec. 101.13(r)(2)(ii)(A)(2) that the
listed term be at least half as prominent as the unlisted synonym. If
it adopts these changes, FDA will evaluate prominence using type size,
style, and color. In the past, FDA has required certain clarifying
information to be in type at least half the size of that of the
statement it is clarifying. For example, when the term ``light'' is
used to describe a physical or organoleptic property of a food (e.g.,
``light in color''), the clarifying information ``in color'' is
required to be at least half the type size as the word ``light''
(Sec. 101.56(e)(2)). Similarly, when the term ``light'' is used on a
meal type product to describe a nutrient reduction, a clarifying
statement as to whether the food is ``low in calories'' or ``low in
fat'' is required and must be at least half the size of the term
``light'' (Sec. 101.56(d)(1)(ii)). Further, Sec. 102.5 requires that
the percentage declaration of a characterizing ingredient or component
be no less than half the height of the largest type appearing in the
common or usual name when it has a material bearing on the nature of
the product. Further, this information must appear in bold-faced type.
As a final example, Sec. 101.13(f) requires that any nutrient content
claim not be more than two times larger than, and not unduly prominent
in type style compared to, the statement of identity. All of these
provisions are examples of requirements where clarifying information
must be at least half as large or prominent as the statement that it is
clarifying.
FDA is proposing section 101.13(r)(2)(ii)(A)(1) and
(r)(2)(ii)(A)(2) to ensure that the combination of unlisted and listed
terms that appear on a food label are understood by consumers to be
making a single claim. This understanding is crucial because the act
requires that a nutrient content claim be made ``only if the
characterization of the level made in the claim uses terms which are
defined in regulations * * *.'' (Section 403(r)(2)(A)(i) of the act
(emphasis added).) In its petition, NFPA argues that there is nothing
in the act that defines a claim to mean individual label statements--as
opposed to the overall message conveyed by labeling for a product. The
petition stated that, in NFPA's view, a ``claim'' is properly viewed
under the statute as referring to the message about the level of a
particular nutrient in the food conveyed in the context of the entire
product labeling. NFPA maintained that, while the labeling should
include terms defined by FDA, other synonyms or implied statements
concerning the nutrient should be viewed as components of the single
labeling claim. FDA tentatively concludes that the use of unlisted
synonyms in the manner proposed will ensure that consumers understand
them to be part of a single nutrient content claim that uses terms
defined by regulation. As stated in its May 11, 1995, letter to NFPA,
however, the agency cannot finalize this rule unless it receives
evidence demonstrating that consumers understand the terms used in this
way.
FDA also recognizes that there may be some labels on which the
listed term is significantly more prominent than an unlisted synonym.
This would be the case, for example, if the listed term was made in a
``burst'' or in the statement of identity and the unlisted synonym was
used in a paragraph in smaller sized type. Such usage might occur if a
manufacturer wanted to use a variety of ways to express the level of a
nutrient in a discussion about the food. The agency tentatively finds
that, in this case, the level of the nutrient described by the listed
term would be clearly understood, and additional clarification next to
the smaller print on the same label would not be necessary. Therefore,
FDA is proposing in Sec. 101.13(r)(2)(ii)(B) that if the listed term is
more than twice as prominent on a label as the listed synonym, such
that the claimed nutrient level is clearly understood, e.g., a bold
faced listed term versus an unlisted synonym used only in a paragraph
in smaller sized type, the listed need not be placed adjacent to the
unlisted synonym. The agency requests comment on whether this approach
is consistent with a nonmisleading label.
The agency is also providing in proposed Sec. 101.13(r)(2)(iv) that
a listed term may not be used with an unlisted synonym to form a new
term, e.g., extra low, extra high, especially good source, or great
source. In its review of food
[[Page 66211]]
labels before the passage of the 1990 amendments, the Institute of
Medicine (IOM) stated that consumers were confused by the plethora of
terms on food labels and recommended that definitions of nutrient
levels for label claims be severely restricted (Ref. 2). The IOM
recommended that four levels be defined for explicit claims: Low, very
low, high and very high or their equivalents. The agency has
essentially done just that in defining, ``low,'' ``free,'' ``good
source'' and ``high.'' With the use of unlisted synonyms, the agency is
concerned that there may be instances when the use of unapproved
modifiers for these terms (e.g., ``extra low,'' ``extra high,''
``especially good source,'' ``great source'') would confuse consumers
by unjustifiably suggesting that there is a distinction between the
listed term with and without the modifier. To avoid this confusion, the
agency tentatively concludes that it is necessary to prohibit the use
of claims that consist of a term that modifies an existing listed term.
In the course of developing the definitions and other requirements
for the use of nutrient content claims, the agency made a diligent
effort to determine the various meanings and requirements of the
nutrient content claims it defined. In some cases the agency determined
that, in order for the label not to be misleading, it was necessary for
certain additional information to be conveyed to consumers along with
the claim. This information included referral or disclosure statements
(required by the statute), additional label statements such as
accompanying information for foods bearing relative claims
(Sec. 101.13(j)(2)), and other statements such as ``not a sodium free
food'' on a food bearing an ``unsalted'' claim that was not ``sodium
free'' (Sec. 101.61(c)(2)(iii)). Just as this information is necessary
for a listed term not to be misleading and for a label bearing such a
claim to provide full and relevant information to the consumer, the
agency tentatively concludes that such additional information is
equally important and necessary when unlisted synonyms are used.
Consequently, the agency is proposing in Sec. 101.13(r)(2)(iii) to
require that unlisted synonyms be used in conformance with all of the
requirements for the use of the listed terms.
The petitioners also requested that the agency permit the use of
unlisted synonyms with implied claims such as terms, statements, or
symbols. As with unlisted synonyms, FDA tentatively finds that this
concept may have some merit. However, the agency points out that
implied claims that are consistent with a listed term may currently be
used on a label. Therefore, the agency is not proposing further
provisions for the use of implied nutrient content claims.
B. Section 101.14(e)(6): The 10 Percent Nutrient Contribution
Requirement
In the Federal Register of January 6, 1993, FDA published a final
rule entitled ``Food Labeling: General Requirements for Health Claims
for Food'' (58 FR 2478) (hereinafter referred to as the 1993 health
claims final rule). Among other things, this rule requires that, to be
eligible to bear a health claim, a food other than a dietary supplement
contain 10 percent or more of the Daily Value (DV) for vitamin A,
vitamin C, iron, calcium, protein, or fiber, before any nutrient
addition (Sec. 101.14(e)(6)). As explained in that document, FDA
concluded that such a requirement was necessary to assure that the
value of health claims would not be trivialized or compromised by their
use on foods of little or no nutritional value. Furthermore, such a
requirement responded to Congress's intent that health claim provisions
consider the role of the nutrients in food in a way that will enhance
the chances of consumers constructing total daily diets that meet
dietary guidelines. Thus, foods bearing health claims should be
consistent with current dietary guidelines. Furthermore, the agency
concluded that fortification of foods of little or no nutritional value
for the sole purpose of qualifying that food for a health claim is
misleading, especially if foods such as confections, soda, and sweet
desserts are fortified to qualify for a health claim, because such
foods have been cited in dietary guidance as those that should be used
sparingly.
In the Federal Register of August 18, 1993 (58 FR 44036), FDA
published technical amendments to the health claim regulations in
response to comments that the agency received on the implementation
final rule (hereinafter referred to as the 1993 health claims technical
amendment). One of the comments stated that if a health claim petition
were submitted for the claim ``useful only in not promoting tooth
decay,'' virtually none of the sugar-free products on the market would
be eligible to bear the claim because of the 10 percent nutrient
contribution requirement.
In the 1993 health claims technical amendments, FDA acknowledged
that certain food products of limited nutritional value that have been
specially formulated relative to a specific disease condition, such as
dental caries, may be determined to be appropriate foods to bear a
health claim. The agency commented that its intention was to deal with
such situations within the regulations authorizing specific health
claims. Therefore, FDA amended Sec. 101.14(e)(6) to state that:
Except for dietary supplements not in conventional food form or
where provided for in other regulations in part 101, subpart E, the
food contains 10 percent or more of the Reference Daily Intake or
Daily Reference Value for vitamin A, vitamin C, iron, calcium,
protein, or fiber per reference amount customarily consumed prior to
any nutrient addition.
The terminology ``not in conventional food form'' was subsequently
deleted in the final rules pertaining to health claims for dietary
supplements published in the Federal Register on January 4, 1994 (59 FR
395).
The sugar alcohols proposal proposes such an exemption from the 10
percent nutrient contribution requirement.
Following publication of the health claims final rule, two trade
associations--NFPA and the ABA--submitted petitions to FDA requesting
that the agency revise the general requirements for health claims and
reconsider its decision regarding the 10 percent nutrient contribution
requirement. The NFPA petition argued that the 10 percent nutrient
contribution requirement precludes truthful, nonmisleading health
claims because it sets an arbitrary nutritional contribution a food
must make to the diet to qualify for any claim. Consequently, NFPA
argued, the 10 percent nutrient contribution requirement prohibits some
common fruits, vegetables, and other wholesome and nutritious foods
from making health claims. While NFPA agreed that a food bearing a
health claim should contain levels of the nutrient consistent with the
health claim, it contended that the lack of significant levels of other
nutrients should not prevent a food from bearing a health claim. NFPA
argued that if other nutrient levels are deemed to be material with
respect to consumers' understanding of a health claim, then such levels
should be disclosed in the Nutrition Facts panel.
Furthermore, NFPA contended that the 1993 health claims final rule
precludes truthful, nonmisleading claims because it prohibits a food
from satisfying the 10 percent nutrient contribution requirement
through fortification. NFPA stressed that even though fortification of
a food to support a health claim is material information that should be
disclosed in labeling, added and indigenous nutrients are equally
nutritious, and, therefore,
[[Page 66212]]
prohibiting fortified foods from bearing a health claim is not
justified.
NFPA requested that FDA amend Sec. 101.14(e) by revoking the
requirement that foods bearing a health claim contain 10 percent of the
DV of vitamin A, vitamin C, calcium, protein, iron, or fiber before any
nutrient addition, so that fruits, vegetables, and other nutritious
foods could bear health claims.
The ABA petition did not request that the agency revoke the 10
percent nutrient contribution requirement. Rather, it requested that
FDA modify the 10 percent nutrient contribution requirement to permit
health claims on certain enriched grain products. ABA contended that
while some enriched breads might meet the 10 percent nutrient
contribution requirement for fiber, most enriched grain products cannot
meet the 10 percent nutrient contribution requirement for any of the
six listed nutrients because they are precluded by the standards of
identity from containing 10 percent of the six listed nutrients. ABA
also stated that the standards of identity require specific nutrient
addition at levels that were established by FDA as optimal for reducing
the risk of certain diet-related diseases. These foods, in fact, have
been used for many years to improve the nutrition of U.S. consumers and
to reduce the risk of diet-related diseases. Therefore, ABA contended
that these foods are precisely the kinds of foods that should be
permitted to bear health claims.
ABA argued that the 10 percent nutrient contribution requirement
was obviously not intended to apply to foods that conform to the
standards of identity for enriched grain products because it precludes
virtually all enriched grain products from bearing health claims. It
contended that this exclusion is inconsistent with the basis of the
health claims because these foods are not only beneficial in reducing
the risk of diet-related diseases but, more importantly, are also
recommended in current dietary guidelines as foods whose consumption
should be increased to maintain a balanced and healthful diet. The
petition noted that the Food Guide Pyramid recommends that 6 to 11
servings of grain products be consumed per day. ABA contended that this
recommendation demonstrates the importance of including these foods in
the diet. ABA argued that the 10 percent nutrient contribution
requirement has had the unintended effect of precluding foods that FDA
concluded could appropriately bear a health claim from bearing the
claim. Thus, ABA requested that the agency amend Sec. 101.14(e) to
exempt from the 10 percent nutrient contribution requirement enriched
grain products that conform to a standard of identity in part 136, 137,
or 139, and bread that conforms to the standard of identity for
enriched bread in Sec. 136.115, except that it contains whole wheat or
other grain products not permitted under that standard.
In the alternative, ABA suggested that the agency expand the list
of nutrients that must be present at 10 percent to include complex
carbohydrates, niacin, or thiamin. Such action, the petition explained,
would permit enriched grain products to bear health claims because
these products are a significant source of such nutrients.
As a second alternative, ABA suggested that FDA amend the 10
percent nutrient contribution requirement to allow it to apply to a
daily consumption of grain products rather than to the nutrient profile
of a specific food.
FDA has fully evaluated and considered the arguments raised in both
petitions. FDA recognizes that the 10 percent nutrient contribution
requirement may have had the unintended effect of prohibiting health
claims on certain foods that could be beneficial for consumers and help
them to maintain a balanced and healthful diet. The agency is
concerned, however, that eliminating the 10 percent nutrient
contribution requirement will permit misleading health claims on foods
with little or no nutritional value such as candies and soft drinks or
will encourage overfortification of the food supply (e.g., vitamin or
mineral addition to soft drinks). The appearance of health claims on
such foods would be inconsistent with Congress's intent when it enacted
the health claims provisions. As discussed in the 1993 health claims
final rule, Congress enacted the health claims provisions of the 1990
amendments to not only protect consumers from health claims that are
not scientifically valid but also to help consumers maintain healthy
dietary practices by providing information that would be useful in
constructing total daily diets that meet current dietary guidelines.
Thus, an important part of the significance and benefit of health
claims is that they appear on foods that are compatible with current
dietary recommendations. (See H. Rept. 101-538, 101st Cong., 2d sess.
pp. 9-10 (1990).)
During the development of the health claims final rule, FDA
considered other alternatives that would ensure that health claims are
not trivialized or rendered meaningless by appearing on foods of little
or no nutritional value. For example, the agency considered prohibiting
health claims on specific foods, such as confections, soda, and snack
foods, based on the foods' categorization or characteristic use.
However, as fully discussed in the 1993 health claims final rule (58 FR
2478 at 2521), the agency was not persuaded that such action was in
keeping with the intent of the statute. The agency concluded that
Congress did not intend that specific foods that could be in general
use be prohibited from bearing a health claim. Thus, the agency
concluded that a prohibition on health claims for specific categories
of foods was not a viable option.
However, given the requirement in section 403(r)(3)(B)(iii) of the
act that a claim should enable the public to comprehend the information
in a claim and understand the relative significance of that information
in the context of a total daily diet, FDA concluded (as discussed in
the 1993 health claims final rule (58 FR 2478 at 2521-2522)) that it is
appropriate to provide a basis for health claims that takes into
account the nutritional contribution of the food beyond its role as a
source of calories. The agency noted that ``Congress intended that FDA
establish provisions of health claims regulations by considering the
role of the nutrients in food in a way that will enhance the chances of
consumers constructing total daily diets that meet dietary guidelines''
(Id. at 2521). Without such provisions, foods that are not compatible
with dietary guidelines could bear health claims. In addition to being
inconsistent with Congress's intent when it established the health
claim provisions, and section 403(r) of the act, claims intended to
promote the consumption of a food that is incompatible with dietary
guidelines would be misleading to consumers and, therefore, would be in
violation of section 403(a) (id.). Such claims would be misleading
because consumers would be purchasing the food, in part, to achieve a
more healthful diet, when, in fact, such foods are inconsistent with
dietary guidelines. Further, such claims could be damaging if consumers
are encouraged to replace wholesome and nutritious foods that are
recommended in dietary guidelines with these foods.
Thus, the agency concluded then, and reiterates now, that the 10
percent nutrient contribution requirement is a necessary component of
the health claims provisions to ensure that such claims appear on foods
that make a nutritional contribution to the diet and are consistent
with dietary guidelines. If the agency were to revoke this requirement,
it would have to establish
[[Page 66213]]
an alternative mechanism to ensure that health claims are not made on
inappropriate foods. The NFPA petition did not suggest any alternatives
to the 10 percent nutrient contribution requirement to preclude
misleading health claims on inappropriate foods.
The agency also tentatively concludes that the alternatives
suggested in the ABA petition would not ensure that health claims were
made only on foods that are consistent with dietary guidelines. Relying
on either of the two alternatives suggested in the ABA petition would
not adequately assist consumers in placing foods that bear health
claims in their proper dietary context.
The ABA's suggestion that the nutrients required to be present at
10 percent be expanded to include thiamin, niacin, or carbohydrates
would not encourage consumers to increase their intake of vitamins and
minerals that have been identified as those of continuing public health
significance. Public health concerns for deficient intakes of thiamin,
niacin, or carbohydrates have lessened considerably in the last 20
years, whereas the inadequate intakes of vitamin A, vitamin C, calcium,
and iron remain a public health concern especially because of the
possible association between several of these nutrients and the risk of
chronic disease. Furthermore, expanding the list of nutrients required
to be at 10 percent to include thiamin, niacin, or carbohydrates would
permit only certain foods to bear health claims, such as enriched
cereal grain products. Certain fruit and vegetable products that are
promoted in dietary guidelines but that are currently prohibited from
bearing health claims would still not be able to bear a health claim.
Consequently, the agency tentatively concludes that expanding the list
of nutrients would not sufficiently address the concern that the
current regulation precludes certain foods that contribute to a
healthful diet, and whose consumption is encouraged by the dietary
guidelines, from bearing health claims.
Likewise, permitting the 10 percent nutrient contribution
requirement to be based on the daily consumption of a food group would
not enhance the likelihood of consumers achieving dietary goals. In
fact, such a requirement would be contrary to dietary goals because it
would reduce the likelihood that a consumer would reach 100 percent of
the DV if daily consumption of an entire food group only supplies 10
percent of one of the listed nutrients. One reason for requiring that a
serving of the food provide 10 percent of one or more of the listed
nutrients is to assist the consumer in achieving daily intakes
recommended in current dietary guidelines. Permitting a food that does
not meet the 10 percent nutrient requirement to bear a claim on the
basis that the total daily consumption of foods from that category
would provide 10 percent of the nutrient would be inconsistent with one
of the basic principles of the requirement. Accordingly, the agency has
not been persuaded by the arguments raised in the petitions to propose
to eliminate the 10 percent nutrient contribution requirement, to
expand the list of nutrients that will qualify a food to bear a health
claim, or to allow the 10 percent nutrient requirement to apply to a
daily consumption of grain products rather than to the nutrient profile
of a specific food.
Regarding the request that FDA permit fortification to meet the 10
percent nutrient contribution requirement, the agency is concerned that
fortification of foods solely to bear a health claim could result in
deceptive or misleading labeling and, thereby, be in violation of
section 403(a) of the act. As fully addressed in the 1993 health claims
final rule (58 FR 2478 at 2522), fortification of a food of little or
no nutritional value for the purpose of bearing a health claim has the
great potential of misleading and confusing consumers if foods like
confections, soda, and sweet desserts are fortified to qualify for a
health claim when, at the same time, dietary guidance as contained in
the Food Guide Pyramid, for example, states that ``[T]hese foods
provide calories and little else nutritionally. Most people should use
them sparingly'' (Ref. 3). Indiscriminate fortification of such foods
with one nutrient would not make such foods consistent with dietary
guidelines. Consequently, FDA has not been persuaded that foods should
be permitted to be fortified to qualify to bear a health claim.
Accordingly, FDA is denying NFPA's request to permit fortification to
specifically qualify a food to bear a health claim.
The agency notes, as discussed in the 1993 health claims technical
amendments (58 FR 44036 at 44037), that some foods either have been
traditionally formulated in accordance with the fortification policy or
to meet standards of identity that include fortification and, in that
form, contain 10 percent or more of one of the six nutrients listed. In
such cases, the agency notes that the food would not be precluded by
Sec. 101.14(e)(6) from being fortified to qualify for a health claim.
Although the agency has not been persuaded that elimination of the
10 percent nutrient contribution requirement is in order, or that it
should permit fortification so that a food could qualify to bear a
health claim, the agency has been persuaded by the arguments raised in
the petitions that it should act to modify the 10 percent nutrient
contribution requirement. As stated above, the agency acknowledges that
the 10 percent nutrient contribution requirement has had the unintended
effect of precluding some foods that contribute to a healthful diet,
and whose consumption is encouraged by the dietary guidelines, from
bearing health claims. As discussed above, the agency's primary goals
in establishing the 10 percent nutrient contribution requirement were
to preclude foods of little or no nutritional value from bearing health
claims and, at the same time, to enhance the likelihood of consumers
constructing overall daily diets that conform to current dietary
guidelines.
FDA recognizes that precluding certain fruits, vegetables, and
grain products from bearing health claims because of the 10 percent
nutrient contribution requirement is contrary to that goal. The agency
agrees with the arguments raised in the petitions that certain fruits,
vegetables, and grain products that otherwise meet the requirements of
the specific health claim should be able to bear the claim even though
they do not contain 10 percent of one of the six listed nutrients
because these foods comprise a major part of a balanced and healthful
diet, and because current dietary guidance promotes consumption of
these foods. Moreover, diets high in fruits, vegetables, and grain
products have been associated with various specific health benefits,
including lower occurrence of coronary heart disease and of some
cancers (Refs. 4 and 5) and therefore, are exactly the types of foods
that should be included in the diet to reduce the risk of specific
diet-related diseases. Precluding such foods from bearing health claims
could confuse consumers and undermine the utility of health claims.
Furthermore, the foods described in the petitions are not the types
of foods FDA intended to preclude from bearing health claims when it
established the 10 percent nutrient contribution requirement. In fact,
these foods can contribute significantly to a balanced and healthful
diet and to achieving compliance with dietary guidelines even though
they do not meet the 10 percent nutrient contribution requirement.
Consequently, the agency
[[Page 66214]]
tentatively concludes that fruit and vegetable products comprised
solely of fruits and vegetables, enriched grain products that conform
to a standard of identity, and bread that conforms to the standard of
identity for enriched bread except that it contains whole wheat or
other grain products not permitted under that standard, that do not
meet the 10 percent nutrient contribution requirement but that meet all
other aspects of the health claim should be permitted to bear a health
claim. Accordingly, the agency is proposing to amend Sec. 101.14(e)(6)
to exempt these products from the 10 percent nutrient contribution
requirement.
The agency is proposing to limit the exemption for fruit and
vegetable products to those products comprised solely of fruits and
vegetables because it is concerned that permitting health claims on
fruit and vegetable products that do not contain 10 percent of one of
the six listed nutrients, but that contain ingredients that may raise
the level of certain other nutrients, such as fat, cholesterol, and
sodium, would be inconsistent with the purpose of the health claim and
incompatible with current dietary guidelines. While the agency
recognizes that fruit and vegetable products with added syrups, sauces,
and other ingredients that have increased levels of fat, cholesterol,
or sodium have an appropriate place in the diet, the agency tentatively
concludes that to exempt these products from the 10 percent nutrient
contribution requirement would be to promote the consumption of foods
that do not fall within the recommendations in dietary guidelines.
Accordingly, the agency is not prepared to extend the exemption to
these products. However, FDA requests comment on whether the exemption
proposed in this document should be extended to include fruit and
vegetable products with added oils, sodium, sauces, syrups, or other
ingredients.
The agency also requests comment on whether other foods, for
example, other types of grain products such as breakfast cereals,
should be exempt from the 10 percent nutrient contribution requirement.
The agency advises that comments submitted in support of extending this
exemption to other foods should provide valid data and sound
justification for exempting such foods from the 10 percent nutrient
contribution requirement. If the comments persuade the agency that such
foods are being unfairly precluded from bearing health claims, and that
the foods are consistent with the intent of the health claims, the
agency will consider including such foods in the exemption provided in
any final regulation based on this proposal.
C. Abbreviated Health Claims
Current Sec. 101.14(d)(2)(iv) mandates that all information
required to be included in the claim appear in one place without other
intervening material. The current rule, however, does permit a
reference statement ``See-------- for information about the
relationship between-------- and--------,'' with the blanks filled in
with the location of the labeling containing the health claim, the name
of the substance, and the disease or health-related condition (e.g.,
``See attached pamphlet for information about calcium and
osteoporosis'') with the complete health claim appearing elsewhere on
the other labeling. The current rule also permits the use of graphic
material, such as a symbol that constitutes an expressed or implied
health claim, to be used on the label or labeling of the product
provided that it is accompanied by the complete claim, an abbreviated
claim, or a referral statement (Sec. 101.14(d)(2)(iv)).
In the preamble to its 1993 health claims final rule, the agency
stated that it did not believe that it is appropriate to use
abbreviated health claims as referral statements (58 FR 2478 at 2512).
The agency was concerned that an abbreviated claim did not include
facts that are material in light of the representation that is made and
that are necessary to understand the claim in the context of the daily
diet. The agency was concerned that such confusion is possible
``whenever the full health claim information appears in a location
different from that of the reference statement and is especially likely
to occur when a multiplicity of labeling is associated with a product''
(Id.). The agency then described the situation where the grocer
displays an abbreviated claim on a display (labeling) near the product
but only puts the full claim on a billboard in a far corner of the
store (labeling) (id.).
In its petition, NFPA requested that the agency reconsider this
position and permit greater latitude in constructing and presenting
health claims. More specifically, the petition requested that FDA
permit abbreviated health claims that are accompanied by a referral
statement directing the consumer to the label panel where the complete
health claim appears.
The agency has no desire for its regulations to unnecessarily stand
in the way of the use of health claims and the presentation of the
important information contained therein. While health claims are
currently being used on the label and in labeling, the agency would
like to see them used more extensively. Consequently, the agency agreed
to initiate rulemaking in this area. The agency stated, however, that
it must have assurance that the claims will be presented in a
scientifically valid, truthful, and nonmisleading manner.
FDA notes that in this document the agency is proposing to provide
the basis for shorter health claims by making optional some of the
elements that it has required to be included in claims. If those
changes are finalized, many of the complete claims will be brief enough
to permit their use on the principal display panel. For example, a
claim for sodium and hypertension could be made in 12 words: ``Diets
low in sodium may reduce the risk of high blood pressure.'' Most other
claims would be of a similar length. The agency believes that these
shortened claims will, for the most part make this issue moot.
Nevertheless, the agency recognized that some claims may still remain
somewhat complex.
In those cases where the complete health claim remains long and
somewhat complex, the agency recognizes that there may be a need to
permit a shortened version of the claim on the principal display panel.
Although the entire health claim contains important information
necessary for consumers to fully understand the subject substance-
disease relationship, the agency recognizes that a short message that
captures the consumer's attention will facilitate use of the claim. As
a result, the communication of formation will assist consumers in
achieving healthful dietary practices.
The agency tentatively concludes that the use of an abbreviated
health claim on the principal display panel is consistent with the act.
The full health claim includes information required under section
403(a) and 403(r)(3)(B)(iii) of the act. Section 403(r)(3)(B)(iii)
requires that the complete health claim ``enable[] the public to
comprehend the information provided in the claim and to understand the
relative significance of such information in the context of a total
daily diet.'' Section 403(a) of the act requires only that a claim not
be false and misleading. FDA has long required that all information
that is necessary to make the claim truthful and not misleading appear
in one place, without any intervening material. (See, e.g., United
States v. An Article of Food * * * ``Manischewitz * * * Diet Thins'',
377 F. Supp. 746 (E.D. New York 1974)). However, there is nothing in
the act that would require that information required under section
403(r)(3)(B)(iii) appear as
[[Page 66215]]
part of the claim each time it is presented on the label.
Thus, an abbreviated health claim that is a scientifically valid
representation of the relationship between a substance and a diet-
related disease may be permissible under section 403(a) of the act if
it is truthful and not misleading. If such an abbreviated claim
includes a prominent and immediately adjacent reference to the full
claim elsewhere on the label, the requirements of section 403(a) and
(r)(3)(B)(iii) of the act would be fulfilled. Consequently, the agency
is proposing to amend Sec. 101.14(d)(2)(iv). In addition to permitting
the current reference statement to the full claim
(Sec. 101.14(d)(2)(iv)(A)), the agency is proposing to permit an
abbreviated health claim to be used on the principal display panel of
the label provided that it is accompanied by a reference statement to
the complete health claim on the same label or in the same labeling
(proposed Sec. 101.14(d)(2)(iv)(B)).
It is vital to compliance with the act that the complete claim
appear elsewhere on the same label or in the same labeling as the
abbreviated claim. For example, as discussed below for the calcium and
osteoporosis health claim, the agency is concerned that consumers might
be less likely to read the full health claim if an abbreviated claim
appears on the principal display panel of a label, and the full health
claim appears in a separate brochure that accompanies the product.
The agency is also proposing to require that the reference
statement be prominent and in immediate proximity to the abbreviated
claim. The agency notes, of course, that if the proposed provision is
adopted, an abbreviated claim could not be used unless the food meets
the criteria necessary to make the complete health claim.
As stated above, in the section D.IV. of this document, the agency
is proposing to amend the regulations in subpart E of part 101, where
appropriate, to set forth the elements that are required to ensure that
an abbreviated health claim complies with section 403(a) of the act. As
stated above, provision for an abbreviated claim will not be needed for
most of the nutrient-disease relationships about which FDA has
authorized claims if the revisions proposed in this document are
adopted. Consumers may benefit, however, from abbreviated claims for a
few of the longer, more complicated claims, such as those for calcium/
osteoporosis and folic acid/neural tube defects.
The agency strongly emphasizes that the diet-disease relationship
may not be overstated. Even with a prominent referral to the full
claim, the abbreviated claim must not overemphasize the importance of
the substance in the diet-disease relationship or in the total daily
diet. The concept of risk reduction must be accurately conveyed.
The agency notes that some of the diet-disease relationships may
already be well-known by consumers. Therefore, nutrient content claims
such as ``low sodium'' and ``reduced cholesterol'' on the principal
display panel and elsewhere on the label may serve as a reminder of the
diet-disease relationship and provide a way to market a product for its
contribution to a healthy diet.
FDA encourages the use of all authorized claims by the food
industry in order to educate consumers about the importance of a
healthy diet. The agency believes that the proposed changes to
Sec. 101.14(d)(2)(iv) will result in increased use of the authorized
health claims and, consequently, will fulfill the legislative intent to
educate the public about diet-disease relationships.
D. Specific Requirements for Health Claims
To date, FDA has authorized eight health claims that are codified
in the Code of Federal Regulations, Title 21, subpart E of part 101
(Secs. 101.72 to 101.79). Among the actions requested by NFPA in its
petition is one to ``* * * modify the regulations in subpart E of part
101 prescribing the content of authorized health claims so that they
constitute `safe harbors' rather than requirements for claims; * * *.''
To accomplish this request, NFPA requested that the health claims
regulations be modified to permit simplified, nondeceptive claims that
are likely to be more easily understood. NFPA contended that the
specific health claims regulations contained in subpart E of part 101
include several provisions that prescribe the content and form of
health claims to an extent that far exceeds that necessary to ensure
that claims are truthful and not misleading. Mentioned as an example
was that some regulations require claims to include references to
specific nondietary factors even though, in NFPA's view, this
information is unnecessary to ensure a claim is stated in a truthful,
nonmisleading manner. Cited as illustrative of the nature of the
problem was the model claim from the calcium/osteoporosis regulation
(Sec. 101.72(e)) containing all required elements:
Regular exercise and a healthy diet with enough calcium helps
teen and young adult white and Asian women maintain good bone health
and may reduce their high risk of osteoporosis later in life.
Each of the other regulations authorizing claims in subpart E of part
101 was identified as requiring similar information.
NFPA requested that the regulations in subpart E of part 101
governing the specific information that
FR Doc. 95-31008 Food Labeling: Nutrient Content Claims, General Principles; Health Claims, General Requirements and Other Specific Requirements for Individual Health Claims
must appear in a health claim,
and the circumstances in which a claim could be used, be amended.
Where, for example, Sec. 101.14(d)(2)(i) requires that labeling
statements about a health claim be based on, and consistent with, the
conclusions set forth in the regulations in subpart E of part 101, NFPA
recommended amending Sec. 101.14(d)(2)(i), along with Sec. 101.14(d)(1)
and the rest of (d)(2), so that such statements are objective and
either consistent with applicable guidelines set forth in subpart E of
part 101, or a reasonable basis for the claim is otherwise
substantiated. The petitioner contended that such changes would operate
to allow truthful, nonmisleading health claims that either omit
information currently required under the regulations (e.g., nondietary
information) or that include other useful information not expressly
authorized by the regulations.
Responding to NFPA in the May 11, 1995, letter, FDA acknowledged
that, although use of health claims in food labeling has increased over
the period of time that they have been in effect, the number of
products bearing such claims is not as great as the agency had
anticipated. Because of the importance of the information conveyed to
consumers by health claims, the agency stated that it would review the
authorizing regulations to determine whether they contain any
unnecessary barriers to the use of the claims and, if so, take steps to
remove those barriers. FDA stated that, as part of this assessment, it
would conduct a review of what are referred to as ``required elements''
in each of the eight authorized health claims to determine whether any
of them are unnecessary or can be made optional and initiate rulemaking
to propose any changes identified in its internal review.
The eight authorized health claims in subpart E of part 101 are
codified following the same format. Thus the ``required elements'' for
each claim are contained in paragraph (c) of the respective regulation
under the heading ``Requirements.'' For example, specific requirements
that apply to the calcium/osteoporosis health claim are contained in
Sec. 101.72(c)(2)(i)(A) through (c)(2)(i)(E).
[[Page 66216]]
The agency has reviewed all of the required elements in the eight
authorized claims codified in subpart E of part 101. This document
presents the results of this review for the following seven claims:
Sec. 101.72 on calcium and osteoporosis; Sec. 101.73 on dietary lipids
and cancer; Sec. 101.74 on sodium and hypertension; Sec. 101.75 on
dietary saturated fat and cholesterol and risk of coronary heart
disease; Sec. 101.76 on fiber-containing grain products, fruits, and
vegetables and cancer; Sec. 101.77 on fruits, vegetables, and grain
products that contain fiber, particularly soluble fiber, and risk of
coronary heart disease; and Sec. 101.78 on fruits and vegetables and
cancer. The health claim on folate and neural tube defects
(Sec. 101.79) will be dealt with separately but in a manner consistent
with the review of the other health claims.
Since the final rules on the seven claims addressed in this
document were published on January 6, 1993 (58 FR 2537 to 2849), new
data have become available allowing FDA to reconsider the need for some
information that, at the time the specific health claim regulations
were issued, was considered necessary to preclude a claim from being
misleading. Most notable among these data are two documents, one a
National Institutes of Health (NIH) consensus statement on optimal
calcium intake (hereinafter referred to as the 1994 consensus
statement) and the other an FDA report on consumer understanding of
health claims (hereinafter referred to as the 1995 consumer report)
(Refs. 6 and 7, respectively).
1. The Calcium/Osteoporosis Health Claim
The 1994 consensus statement is the result of the Consensus
Development Conference on Optimal Calcium Intake convened by NIH on
June 6 through 8, 1994, which brought together experts in public
education and different biomedical sciences dealing with osteoporosis
and bone and dental health. Directly relevant to the calcium/
osteoporosis health claim, this conference addressed questions and
provided recommendations on optimal calcium intake for various
population segments, on important cofactors for achieving optimal
intake, on the risks associated with increased intake, on the best ways
to attain optimal intake, and on the public health strategies that are
available or are needed to implement optimal calcium intake
recommendations.
The 1995 consumer report is part of FDA's ongoing review of its
regulations governing health claims. The report evaluated consumer
understanding of four health claims (dietary lipids and cancer, fruits
and vegetables and cancer, calcium and osteoporosis, and folate and
neural tube defects) and consumer reaction to possible variations on
the messages. The report describes the content, the manner of
presentation, and the results of a consumer survey of knowledge about
the four health claims mentioned above among consumer groups at
eastern, central, and western locations in the United States.
For the calcium/osteoporosis health claim, the first required
element is contained in Sec. 101.72(c)(2)(i)(A) and provides that:
The claim makes clear that adequate calcium intake throughout
life is not the only recognized risk factor in this multifactorial
bone disease by listing specific factors, including sex, race, and
age that place persons at risk of developing osteoporosis and
stating that an adequate level of exercise and a healthful diet are
also needed.
The effect of presenting the information required by this element is to
convey the message that, for any individual, several factors define the
disease risk.
The focus of the 1994 consensus statement is, as stated in its
title, optimal calcium intake for promotion of public health. The first
of several significant conclusions in the report is that a large
percentage of Americans fail to meet currently recommended guidelines
for optimal calcium intake. Because of the need to correct this public
health shortfall and to improve bone health in the United States,
thereby reducing the risk of osteoporosis, FDA tentatively concludes
that a singular focus on achieving and maintaining adequate calcium
intake as a required element in the calcium/osteoporosis health claim
is important.
Accordingly, FDA is proposing to simplify Sec. 101.72(c)(2)(i)(A)
by limiting the requirement to a balanced statement that reflects the
importance of the essential nutrient calcium over a lifetime in a
healthful diet to reduce osteoporosis risk, but that does not imply
that calcium is the only risk factor for the development of
osteoporosis. To this end, proposed Sec. 101.72(c)(2)(i)(A) states that
the claim must make clear that adequate calcium intake as part of a
healthful diet throughout life is essential to reduce the risk of
osteoporosis.
FDA has included the reference to a ``healthful diet'' in proposed
Sec. 101.72(c)(2)(i)(A) for consistency with the general requirement in
Sec. 101.14(d)(2)(v) that ``the claim enable[ ] the public * * * to
understand the relative significance of such information [in this case,
the relationship between calcium and osteoporosis] in the context of a
total daily diet.'' The effect of adequate calcium intake can only be
realized if the calcium is a part of a healthy diet that provides all
essential and other nutrients to optimize nutritional health status.
The proposed revision of Sec. 101.72(c)(2)(i)(A) emphasizes the
most important risk factor in the development of osteoporosis on the
label of a food product, i.e., adequacy of dietary calcium intake.
Nevertheless, the agency is concerned that such a claim could lead
consumers to believe that adequacy of dietary calcium intake is the
only risk factor for the disease. In the proposal to authorize the
calcium/osteoporosis health claim, the following was stated:
Calcium intake is not the only recognized risk factor in the
development of osteoporosis. Other factors include a person's sex,
race, hormonal status, family history, body stature, level of
exercise, general diet, and specific life style choices, such as
smoking and excess alcohol consumption.
(56 FR 60689 at 60698, November 27, 1991). Based on that information in
part, Sec. 101.72(c)(2)(i)(A) requires a listing of several specific
risk factors, in addition to dietary calcium intake, in the calcium/
osteoporosis health claim.
As stated above, however, FDA acknowledges that the number of food
products bearing health claims is not as great as the agency had
anticipated. FDA is concerned that manufacturers have been disinclined
to use lengthy health claims on food labels, and that too many words
will detract from the central consumer message of the claim. As a
result, FDA is concerned that health claims like the calcium/
osteoporosis claim will continue to be infrequently used, and that the
benefits of communicating information on diet-disease relationships
through such claims will not be realized.
Because of these concerns, the agency has reevaluated the
requirement in Sec. 101.72(c)(2)(i)(A) that a calcium/osteoporosis
health claim ``* * * list[ ] specific factors, including sex, race, and
age that place persons at risk of developing osteoporosis and stat[e]
that an adequate level of exercise * * * [is] also needed.'' Given the
consensus statement's central focus on optimal calcium intake and the
agency's desire to make health claims as useful and useable as
possible, FDA is proposing to replace the requirement in
Sec. 101.72(c)(2)(i)(A) that specific risk factors and the need for an
adequate level of exercise be stated in any claim with the more simple
requirement that the claim not imply that adequate dietary calcium
intake is the only recognized risk factor for a reduced risk
[[Page 66217]]
of osteoporosis. This revision will ensure that the scientific validity
of claims about osteoporosis is preserved by recognizing the
multifactorial nature of this disease without adding words to the
claim.
In concert with the proposed change in Sec. 101.72(c)(2), the
agency is proposing to redesignate Sec. 101.72(d)(2) as paragraph
(d)(5) and to add a new paragraph (d)(2) that provides for the
provision of the following information from current
Sec. 101.72(c)(2)(i)(A) as optional information:
The claim may list specific risk factors for osteoporosis,
identifying them among the multifactorial risks for the disease.
Such factors include a person's sex, age, and race. The claim may
state that an adequate amount of exercise is also needed to reduce
risk for the disease.
The 1995 consumer report identified the calcium/osteoporosis model
health claim as the one most actively disliked (Ref. 7). This dislike
most likely arises primarily from a misunderstanding one of the
concepts required in Sec. 101.72(c)(2)(i)(B), specific identification
of the populations at particular risk for the disease. The current
regulation states:
The claim does not state or imply that the risk of osteoporosis
is equally applicable to the general United States population. The
claim shall identify the populations at particular risk for the
development of osteoporosis. These populations include white (or the
term ``Caucasian'') women and Asian women in their bone forming
years (approximately 11 to 35 years of age or the phrase ``during
teen or early adult years'' may be used). The claim may also
identify menopausal (or the term ``middle-aged'') women, persons
with a family history of the disease, and elderly (or ``older'') men
and women as being at risk.
The 1995 consumer report states that minority women were unanimous
in objecting to the inference that black American women do not need
calcium. Accordingly, minority participants questioned the accuracy of
the information. All of the survey participants recognized that calcium
is essential for everyone. Although there was some recognition based on
prior knowledge that younger women need to be concerned about
osteoporosis, no participant thought the model claim communicated that
concept very well. For these and other reasons, older women tended to
dismiss the model claim as incorrect.
The agency did not intend that the calcium/osteoporosis health
claim imply that calcium is not needed by any individual or specific
population. Given that calcium is essential for every person, the
agency attempted to craft requirements for presenting this disease
claim in a truthful, nonmisleading, and scientifically valid manner. In
reviewing the scientific data supporting the claim, including the
incidence of low-trauma bone fracture in the elderly, FDA stated in the
preambles to the calcium/osteoporosis proposed and final rules (56 FR
60689 and 58 FR 2665, respectively) that those individuals in the
general population at greatest risk of developing osteoporosis, and for
whom the health claim would have greatest benefit, include Caucasian
and possibly Asian women and adolescent girls and young adult women
between 11 and 35 years of age. For this and other reasons, a
requirement for identifying these high risk groups was included in
Sec. 101.72(c)(2)(i)(B). In identifying those at highest risk, there
was no intent by the agency to imply that other consumers are risk
free.
The 1994 consensus statement is silent in ascribing relative risk
for osteoporosis on the basis of race or ethnicity of population
groups. For adolescents and young adults of both sexes, 11 through 24
years of age, the optimal calcium requirement is given as a range of
1,200 to 1,500 milligrams (mg) of calcium daily. The report says the
following about a subset of this population, 12 to 19 year old females:
Importantly, population surveys of girls and young women 12-19
years of age show their average calcium intake to be less than 900
mg/day, which is well below the calcium intake threshold. The
consequences of low calcium intake during this crucial period of
rapid skeletal accrual raise concerns that achievement of optimal
peak adult peak bone mass may be seriously compromised. Special
education and public measures aimed at improving dietary calcium
intake in this age group are essential.
(Ref. 6.)
FDA tentatively concludes that greater use in food labeling of the
calcium/osteoporosis health claim, articulated in a manner that will be
accepted and followed by consumers, can help support significant
strides in improving calcium intake in all segments of the U.S.
population. Accordingly, the agency is proposing to revise
Sec. 101.72(c)(2)(i)(B) in several ways.
First, it is proposing to revise Sec. 101.72(c)(2)(i)(B) by
removing the requirement to identify by race those populations at
particular risk for the development of osteoporosis. In neither the
statement cited above nor elsewhere in the 1994 consensus statement is
any racial or ethnic segment among girls and young women 12 to 19 years
of age identified as being more at risk for the consequences of a less
than optimal calcium intake. The 1994 NIH consensus statement found
that the recommendation for optimal nutrient requirements for any
particular age/sex population segment to forestall the impact of a
degenerative disease applies to all members of that segment, although
not necessarily to the same degree for everyone. Thus, the agency is
proposing not to require mention of race or ethnicity as a required
element but to permit such information as an option since it is useful
and important to those to whom it applies.
Nevertheless, retention of teen and young adult women, irrespective
of race or ethnicity, as the focus of the claim is important because,
as stated succinctly in the 1994 consensus statement:
Two important factors that influence the occurrence of
osteoporosis are optimal bone mass attained in the first two or
three decades of life and the rate at which bone is lost in later
years.
Failure to attain optimal bone mass during the bone-forming years
of adolescence and early adulthood is a loss that cannot be recovered
during middle age or later in life (Ref. 6). Once peak adult bone mass
is reached at about age 25, bone turnover is stable in men and women
such that bone formation and bone resorption (breakdown) are balanced.
In women, resorption rates increase, and bone mass declines, beginning
with the fall in estrogen production that is associated with the onset
of menopause. Unlike hormone replacement therapy, supplemental calcium
during this initial phase will not slow the decline in bone mass
attributable to estrogen deficiency. The effects of calcium in reducing
the rate of bone loss can be shown more clearly in postmenopausal women
after the period when the effects of estrogen deficiency are no longer
dominant (i.e., about 10 years after menopause).
Osteoporosis affects more than 25 million people in the United
States and is the major underlying cause of bone fractures in
postmenopausal women and the elderly (Ref. 6). Given this tremendous
cost to public health, it is essential that the health claim on calcium
and osteoporosis inform consumers, particularly those at great risk for
the disease, of the importance of adequate calcium intake throughout
life for attaining peak adult bone mass and for reducing the rate of
bone resorption or loss, two processes that occur at different periods
over a lifetime.
Thus, FDA is proposing to retain the requirement in
Sec. 101.72(c)(2)(i)(B) that the claim not suggest that the risk of
osteoporosis applies equally to the general U.S. population. However,
it is proposing to remove the required
[[Page 66218]]
reference to any racial or ethnic group in identifying the at-risk
population. The agency is proposing to identify this population in the
following way:
* * * The claim shall identify the population at particular risk
for the development of osteoporosis as women in their bone forming
years from approximately 11 to 35 years of age. An optional
statement that further characterizes this and other populations at
risk for developing osteoporosis may be made in accordance with
paragraph (d)(3) of this section.
FDA is proposing to permit identification of Caucasian women and
Asian women as among those at particular risk for the disease as
optional information, along with other information from
Sec. 101.72(c)(2)(i)(B), in new Sec. 101.72(d)(3). While the 1995
consumer report (Ref. 7) found evidence that some consumers could be
misled by references in the calcium/osteoporosis health claim to
Caucasian and Asian women, FDA tentatively concludes that, if properly
qualified, this information could be helpful in informing such women
who may be unaware of their risk of developing this disease. By
providing for this information as an optional element in
Sec. 101.72(d), the agency is attempting to encourage manufacturers to
use this information in formats where the message can be phrased in
enough detail to clarify its meaning. For example, ``while all women
may be at risk of osteoporosis, Caucasian and Asian women are
particularly at risk,'' may be understood and not rejected by
consumers. While this statement provides more detail than seems to be
necessary in the basic health claim, this information could be useful
in a longer discussion of calcium and osteoporosis, for example in a
paragraph format on a large label or in a pamphlet. The agency requests
comment, and is particularly interested in data, on whether its
tentative view that consumer understanding would be helped is correct.
Section 101.72(c)(2)(i)(C) established a requirement for
identifying the mechanism whereby adequate dietary calcium over a
lifetime should reduce the risk of osteoporosis:
The claim states that adequate calcium intake throughout life is
linked to reduced risk of osteoporosis through the mechanism of
optimizing peak bone mass during adolescence and early adulthood.
The phrase ``build and maintain good bone health'' may be used to
convey the concept of optimizing peak bone mass. When reference is
made to persons with a family history of the disease, menopausal
women, and elderly men and women, the claim may also state that
adequate calcium intake is linked to reduced risk of osteoporosis
through the mechanism of slowing the rate of bone loss.
The agency concluded in developing this requirement that it is
important for consumers to have a basic understanding of the biological
and physiological mechanisms by which adequate dietary intake of
calcium achieves a reduced risk of osteoporosis. However, information
developed since the regulation was published indicates that a health
claim may not be the best way to provide this information. The 1995
consumer survey (Ref. 7) found that, because participants had learned
elsewhere that calcium intake is related to general bone health, they
thought the food label was not the right means for conveying this
information. In addition, this awareness by consumers that calcium's
ability to ``build and maintain good bone health'' is the mechanism
whereby risk of osteoporosis is reduced, raises a question as to
whether there is a need to state that fact in a health claim. In the
interest of streamlining the claim, therefore, FDA is proposing to make
the statement of the mechanism by which calcium intake affects the risk
of osteoporosis optional information. The agency is proposing to move
Sec. 101.72(c)(2)(i)(C) to Sec. 101.72(d)(4), changing only the word
``shall'' to ``may''.
Section 101.72(c)(2)(i)(D) requires that:
The claim does not attribute any degree of reduction in risk of
osteoporosis to maintaining an adequate calcium intake throughout
life;
This paragraph is consistent with requirements in regulations for all
other authorized claims that no attribution to degree of risk reduction
for the respective disease or health-related condition be made in
reference to the nutrient or substance that is the subject of the claim
(see, for example: Secs. 101.73(c)(2)(i)(E), 101.74(c)(2)(i)(D),
101.75(c)(2)(i)(D), 101.76(c)(2)(i)(E), 101.77(c)(2)(i)(G),
101.78(c)(2)(i)(E), and 101.79(c)(2)(i)(F).
Unlike these other regulations, Sec. 101.72 does not contain an
express requirement that the claim state that adequate calcium intake
throughout life ``may'' or ``might'' reduce the risk of osteoporosis
(see, for example, paragraphs (c)(2)(i)(A) in Secs. 101.73 through
101.79). However, it is clear that FDA also intended that this
requirement apply to the calcium/osteoporosis health claim. This
intention may be inferred from the two model health claims that use the
term ``may'' in relating calcium intake with a reduction in risk of
osteoporosis. Accordingly, the agency is proposing to revise
Sec. 101.72(c)(2)(i)(D) and redesignate it as Sec. 101.72(c)(2)(i)(C)
to read as follows:
The claim does not attribute any degree to which maintaining
adequate calcium intake throughout life may reduce the risk of
osteoporosis;
This proposed revision retains the prohibition against attributing the
degree to which adequate calcium intake is associated with a reduced
risk for osteoporosis while introducing the concept that, because of
the multifactorial nature of the disease, maintenance of an adequate
calcium intake throughout life may reduce risk of developing the
disease.
Section 101.72(c)(2)(i)(E) contains the conditional requirement
that a calcium/osteoporosis health claim include a statement that
reflects the limit on the benefit derived from dietary calcium intake
as follows:
The claim states that a total dietary intake greater than 200
percent of the recommended daily intake (2,000 milligrams (mg) of
calcium) has no further known benefit to bone health. This
requirement does not apply to foods that contain less than 40
percent of the recommended daily intake of 1,000 mg of calcium per
day or 400 mg of calcium per reference amount customarily consumed
as defined in Sec. 101.12(b) or per total daily recommended
supplement intake.
Most conventional foods and many calcium-fortified foods do not
exceed the threshold of 40 percent of the DV for calcium for adults and
children 4 or more years of age and, therefore, do not trigger the
required use of the statement in Sec. 101.72(c)(2)(i)(E). Dietary
supplements containing calcium, particularly single nutrient
supplements containing 500 or 600 mg of calcium per tablet, exceed the
threshold and are therefore required to bear the statement as part of a
health claim. The Dietary Supplement Health and Education Act of 1994
(the DSHEA) (Pub. L. 103-417) was enacted on October 25, 1994, and
amends the act (Ref. 8). Among the findings of Congress for this new
law regarding the benefits of dietary supplements to health promotion
and disease prevention is one that identifies a link between ingestion
of certain nutrients or dietary supplements and reduced risk for
several chronic diseases including osteoporosis. Another finding states
that the Federal Government should not take any actions to impose
unreasonable regulatory barriers limiting or slowing the flow of safe
products and accurate information to consumers.
Among the issues addressed in the 1994 consensus statement is the
question of the ways by which optimal calcium intake may be attained.
The
[[Page 66219]]
document draws the following conclusion:
The preferred source of calcium is through calcium-rich foods
such as dairy products. Calcium-fortified foods and calcium
supplements are other means by which optimal calcium intake can be
reached in those who cannot meet this need by ingesting conventional
foods.
The agency has taken into consideration the expressed intent of the
DSHEA and this finding from the 1994 consensus statement and
tentatively concludes that revision of Sec. 101.72(c)(2)(i)(E) is in
order. The agency is proposing to raise the threshold for the required
statement from 400 to 1,500 mg of calcium, along with other changes.
With regard to adverse effects and the risks associated with
increased levels of calcium intake, the 1994 consensus statement states
the following:
Even at intake levels of less than 4 g/day, certain otherwise
healthy persons may be more susceptible to developing hypercalcemia
or hypercalciuria. Likewise, subjects with mild or subclinical
illnesses marked by dysregulation of 1,25-dihydroxyvitamin D
synthesis (e.g., primary hyperparathyroidism, sarcoidosis) may be at
increased risk from higher calcium intakes. Nevertheless, in
intervention studies (albeit of relatively short duration--less than
4 years), no adverse effects of moderate supplementation up to 1500
mg/day have been reported.
(Ref. 6.)
The same document concludes that daily calcium intake, up to a
total of 2,000 mg, appears to be safe in most individuals (Ref. 6). For
major segments of the U.S. population the 1994 consensus statement
identifies an optimal calcium requirement of either 1,500 mg or a range
of 1,200 to 1,500 mg of calcium per day. These population groups
include adolescents and young adults 11 to 24 years of age, pregnant
and lactating women, women over 50 (postmenopausal) who are not on
estrogens, and men over 65 years of age (Ref. 6). Therefore, the agency
tentatively finds that a level of 1,500 mg of calcium as the proposed
threshold for the statement in Sec. 101.72(c)(2)(i)(E) is not only
consistent with current recommendations for dietary calcium intake but
is also well within a range that is not known to cause adverse effects.
The agency is consequently proposing to require that the statement
of limited benefit appear only on foods that provide more than 1,500 mg
of calcium per day. FDA has expressed this proposed threshold level as
a percentage of the Daily Values (DV's) for adults and children 4 or
more years of age and for pregnant or lactating women. The agency notes
that the calcium DV's for adults and children 4 or more years of age
and for pregnant or lactating women have not changed and are 1,000 and
1,300 mg, respectively. (See Sec. 101.9(c)(8)(iv) and 58 FR 2206 at
2213.) The agency intends to redesignate this requirement as
Sec. 101.72(c)(2)(i)(D).
A common form of a calcium dietary supplement in the marketplace is
as a tablet containing either 500 or 600 mg of calcium as the sole
nutrient with directions for use in labeling that recommend an intake
of one or two tablets per day. A health claim in the labeling of such a
product would not require the additional statement in proposed
Sec. 101.72(c)(2)(i)(D). FDA tentatively concludes that this proposed
change is consistent with the recommendation from the 1994 consensus
statement on dietary sources for this nutrient.
For consistency with the proposed revisions in Sec. 101.72(c) and
(d), FDA has revised the model health claims in proposed
Sec. 101.72(e). FDA has used the phrase ``Especially for teen and young
adult women'' in example 1, which sets out how a claim that conforms
with Sec. 101.72(c) might look to reflect the effects on the risk of
developing osteoporosis that may be realized by this population segment
without implying that adequate calcium intake is without benefit for
others.
The agency solicits comment on the proposed revisions to the
calcium/osteoporosis health claim and is particularly interested in
data on consumer understanding of this claim, and how such
understanding can be improved.
2. Other Health Claims
A common requirement in the authorized claims for dietary fat and
cancer (Sec. 101.73); sodium and hypertension (Sec. 101.74); dietary
saturated fat and cholesterol and risk of coronary heart disease
(Sec. 101.75); fiber-containing grain products, fruits, and vegetables
and cancer (Sec. 101.76); fruits, vegetables, and grain products that
contain fiber, particularly soluble fiber, and risk of coronary heart
disease (Sec. 101.77); and fruits and vegetables and cancer
(Sec. 101.78) is a statement that development of the particular disease
depends on many factors.
It is well documented over the past 10 years that consumers are
generally aware that development of major chronic diseases, such as
cancer and coronary heart disease, is dependent on a number of
different factors such as smoking, excess body weight, family history
of the disease, exposure to environmental chemicals, and dietary and
other factors (Refs. 9 and 10). Additionally, the requirement that
authorized claims use the term ``may'' or ``might'' to relate the
ability of the substance that is the subject of the claim to reduce the
risk of the corresponding disease or health-related condition is an
indication to consumers of the multifactorial nature of the disease or
health-related condition. In responding to comments on the scientific
standard for health claims as to whether or not a claim based on
preliminary scientific data would be consistent with that standard, the
agency said:
* * * Further, absolute claims about diseases affected by diet
are generally not possible because such diseases are almost always
multifactorial. Diet is only one factor that influences whether a
person will get such a disease. For example, in the case of calcium
and osteoporosis, genetic predisposition (e.g., where there is a
family history of fragile bones with aging) can play a major role in
whether an individual will develop the disease. Because of factors
other than diet, some individuals may develop the disease regardless
of how they change their dietary patterns to avoid the disease. For
those individuals, a claim that changes in dietary patterns will
reduce the risk of disease would be false. Thus, health claims must
be free to use the term ``may'' with respect to the potential to
reduce the risk of disease. However, use of this term would not be
appropriate for health claims on food labeling where significant
scientific agreement does not exist that there is a high probability
that a reduction in disease risk will occur.
(58 FR 2478 at 2505.)
Given these facts, as part of its review of required elements for
all health claims the agency has reconsidered the need to remind
consumers of the multifactorial nature of hypertension, heart disease,
and cancer. Based on its review, FDA tentatively concludes that the
statement of that fact in each claim can be made optional. In place of
the requirement for stating the multifactorial nature of the disease,
the agency proposes to substitute a requirement that the claim not
imply that the substance that is the subject of the health claim is the
only recognized risk factor for the corresponding disease or health-
related condition. Thus, the agency tentatively concludes that the
concept of the multifactorial nature of the disease or health-related
condition for each health claim will be preserved without adding
additional words to the claim. The agency requests comment on whether
consumers will be misled to believe reduction of risk will be achieved
if the multifactorial nature of
[[Page 66220]]
the disease or health-related condition is not stated in the claim.
Accordingly, the agency is proposing to revise
Secs. 101.73(c)(2)(i)(F), 101.74(c)(2)(i)(E), 101.75(c)(2)(i)(E),
101.76(c)(2)(i)(D), 101.77(c)(2)(i)(F), and 101.78(c)(2)(i)(I) in
similar fashion to ensure that the health claim not imply that there is
only one recognized risk factor for the development of the
corresponding disease or health-related condition. The agency is also
proposing to revise Secs. 101.73(d)(1), 101.74(d)(1), 101.75(d)(1),
101.76(d)(2), 101.77(d)(1), and 101.78(d)(2) to state that development
of the disease in question depends on many factors and to list the
relevant factors for each disease. For consistency, the agency is also
proposing to revise the model claims to reflect the proposed revisions
to Secs. 101.73, 101.74, 101.75, 101.76, 101.77, and 101.78.
In addition, the agency is proposing to correct Sec. 101.77(e) by
adding the phrase ``and the risk of coronary heart disease'' which was
inadvertently omitted in the final rule.
The health claim for fruits and vegetables and cancer (Sec. 101.78)
contains one additional element that FDA tentatively concludes could be
optional instead of a mandatory part of the claim. In
Sec. 101.78(c)(2)(i)(D) the regulation states:
The claim characterizes the food bearing the claim as containing
one or more of the following, for which the food is a good source
under Sec. 101.54: dietary fiber, vitamin A, or vitamin C.
This required statement is very similar to the one required by
Sec. 101.78(c)(2)(i)(C):
The claim characterizes fruits and vegetables as foods that are
low in fat and may contain vitamin A, vitamin C, and dietary fiber.
The agency believes that the statement required by
Sec. 101.78(c)(2)(i)(C) is necessary to describe the relationship
between the food and the disease. In the 1993 health claims final rule,
FDA stated that by requiring that all characterizing nutrients be
identified as characteristic of dietary patterns rich in fruits and
vegetables without specifically attributing reduced cancer risk to a
single nutrient, the claim is consistent with current scientific
knowledge. However, the requirement in Sec. 101.78(c)(2)(i)(D)
identifies for the consumer which of the characterizing nutrients is
contributed by the labeled food. FDA tentatively concludes that this
information need not be a required element of the claim because it is
available as part of the nutrition label.
Therefore, the agency has tentatively concluded that the
information in Sec. 101.78(c)(2)(i)(D) can be made optional.
Accordingly, the agency is proposing to remove Sec. 101.78(c)(2)(i)(D);
redesignate Sec. 101.78(d)(3) through (d)(5) as Sec. 101.78(d)(4)
through (d)(6), and add new Sec. 101.78(d)(3) which reads:
The claim may characterize fruits and vegetables that meet the
requirements described in paragraph (c)(2)(ii) of this section as
foods that are low in fat and that contain (or are a good source of)
one or more of vitamin A, vitamin C, or dietary fiber.
FDA is also proposing to revise the model health claims in
Sec. 101.78(e) to reflect these changes.
3. Abbreviated Health Claims
In addition to eliminating some of the requirements for a full
health claim, as stated above, NFPA requested that FDA permit the use
of abbreviated health claims in labeling, such as on the principal
display panel. FDA has reviewed the health claims as it is proposing to
revise them to determine whether the required elements can be
reorganized in accordance with proposed Sec. 101.14(d)(2)(iv) to
facilitate their use on the food label.
With the revisions to Secs. 101.73, 101.74, 101.75, 101.76, 101.77,
and 101.78 proposed in this document, the agency tentatively finds that
all of the required elements for each of the claims are required under
section 403(a) of the act to ensure that the claims are truthful and
not misleading as well as under section 403(r) to ensure that they are
scientifically valid. Accordingly, the agency tentatively concludes
that there is no basis upon which it can propose to permit the
splitting of these required elements between the principal display
panel and another part of the food label.
Using the health claim for dietary fat and cancer as an example,
the agency is proposing to remove the requirement that the claim state
that cancer is a multifactorial disease. The remaining specific
requirements in Sec. 101.73(c)(2)(i)(A) through (c)(2)(i)(E) are
necessary so that claims on the relationship between dietary fat and
cancer are truthful, not misleading, and scientifically valid. A claim
consistent with these requirements can be expressed in 11 or fewer
words (e.g., ``A low fat diet may reduce the risk of some cancers'').
These requirements also ensure that consumers will be able to
understand the relative significance of the information presented in
the claim in the context of a total daily diet. Accordingly, the agency
tentatively finds that there is no need to divide the required elements
of Sec. 101.73 into those that must be included whenever the claim is
presented and those that need only be included as part of the full
claim. Based on the same reasoning, FDA has reached the same judgment
about the elements of the claims authorized by Secs. 101.74 through
101.78.
The agency tentatively concludes, however, that such a split is
appropriate among the required elements of health claims on calcium and
osteoporosis (Sec. 101.72). The various proposed revisions for the
specific requirements in Sec. 101.72(c)(2)(i) would produce a claim
that is shorter than is provided for in the current regulation.
Nonetheless, even with the proposed revisions, the length of the claim
that would be required under Sec. 101.72 is such that, to facilitate
use of the claim, FDA is proposing to distinguish between those
elements necessary to ensure that the claim is truthful and not
misleading, and those elements that are necessary to understand the
significance of the claim in the context of the total daily diet.
Section 101.72(c)(2)(i)(A), which the agency is proposing to
revise, sets forth the most important requirement. It establishes the
essence of the calcium/osteoporosis claim in that it requires clarity
in a statement that associates adequacy of dietary calcium intake over
a lifetime with a reduced risk of osteoporosis, a degenerative disease
that affects more than 25 million Americans, particularly
postmenopausal women and the elderly, and that is manifested by an
incidence of 1.5 million bone fractures annually (Ref. 6). This
provision sets out information that is fundamental if a claim
associating calcium and osteoporosis is to be truthful and not
misleading.
Section 101.72(c)(2)(i)(C), which requires that the claim not
attribute any particular degree of risk reduction to adequate calcium
intake is also necessary to ensure that claims are truthful, not
misleading, and scientifically valid. Compliance with this requirement,
however, does not add any words to the claim.
For the remaining requirements, Sec. 101.72(c)(2)(i)(B) prohibits
the implication that risk for the disease applies equally across the
U.S. population. Instead, it requires identification of that segment of
the population that is most at risk for developing the disease later in
life, women in their bone forming years. The agency requires this
information in response to section 403(r)(3)(b)(iii) of the act, which
as stated above, requires that the claim accurately represent the
relationship between calcium and osteoporosis in a manner that is
comprehensible to the public. It is also under section
403(r)(3)(b)(iii) of the act
[[Page 66221]]
that FDA is requiring in Sec. 101.72(c)(2)(i)(D) that the claim
disclose that further benefit does not derive from a daily dietary
intake of calcium that exceeds 2,000 mg.
Given these bases for the calcium/osteoporosis claim, an
abbreviated claim consistent with the principles proposed earlier in
this document may be developed that sets out the information required
under Sec. 101.72(c)(2)(i)(A) and (c)(2)(i)(C). To reflect this fact,
the agency is proposing to renumber current Sec. 101.72(c)(2)(ii),
which deals with the nature of a food bearing a calcium/osteoporosis
health claim, as Sec. 101.72(c)(2)(iii), and it is proposing a new
Sec. 101.72(c)(2)(ii) that describes how the health claim is to be
presented on the label or in labeling. This proposed new paragraph
states that all of the elements listed in Sec. 101.72(c)(2)(i) must be
included in one presentation of the claim on the label or labeling.
However, it also provides that a short, simple statement of the claim
that includes the elements in Sec. 101.72(c)(2)(i)(A) and (c)(2)(i)(C),
and thus that is truthful, not misleading, and scientifically valid,
may be used on the principal display panel as long as the full claim
appears on the label or in the labeling, and, there is a referral
statement to the full claim in immediate proximity to the abbreviated
statement.
The referral statement that FDA is proposing accompany the
abbreviated claim is consistent with that provided for in the general
requirements for nutrient content claims (Sec. 101.13) and health
claims (Sec. 101.14(d)(2)(iv)). Because this referral statement is
short, it is also consistent with the use of an abbreviated claim.
In the 1993 health claims final rule, the agency stated that it did
not believe that it is appropriate to use abbreviated health claims as
referral statements (58 FR 2478 at 2512). The agency was concerned that
an abbreviated claim did not include facts that are material in light
of the representation that is made and that are necessary to understand
the claim in the context of the daily diet. The agency was concerned
that such confusion is possible whenever the full health claim
information is in a location different from that of the reference
statement, and that such confusion is especially likely to occur when a
multiplicity of labeling is associated with a product. If these
concerns can be addressed, however, the use of an abbreviated claim on
the principal display panel would facilitate use of the claim and, as a
result, the communication of information that will assist consumers in
achieving healthful dietary practices.
The agency has tentatively concluded that this proposed rule
addresses these concerns. It is providing for an abbreviated statement
that reflects the facts that are material under section 201(n) of the
act (21 U.S.C. 321(n)) and that are necessary to ensure that the claim
is scientifically valid. It is also providing for an accompanying
referral statement to additional information that is necessary for a
full understanding of the claim. The agency is concerned, however,
about the possibility that consumers may not read the complete claim,
and thus that they will not have all the facts necessary to fully
understand the significance of the claim being made and to comprehend
the claim in the context of the daily diet. For this reason, the agency
is asking for data to demonstrate that permitting an abbreviated claim
in the manner that FDA has proposed will not significantly decrease the
likelihood that consumers will read the full claim.
In Sec. 101.72(c)(2)(ii)(A) and (c)(2)(ii)(B), the agency is
proposing requirements for the type size and location of the referral
statement that are consistent with those for nutrient content claims in
Sec. 101.13(g)(1) and (g)(2).
FDA has long held that accompanying information should be in a size
reasonably related to that of the information that it modifies. Section
403(f) of the act requires that information required under the act be
placed on the label with such conspicuousness as to render it likely to
be read. Section 403(r)(2)(B) of the act requires that a referral
statement for nutrient content claims appear prominently, although it
does not specify requirements such as to type size or style.
For nutrient content claims, FDA established type size requirements
for referral and disclosure statements that are related to the area of
the surface bearing the principal display panel rather than to the type
size used for the nutrient content claim. The proportionality between
size of the referral statement and the size of the label panel ensures
that the referral statement is presented with appropriate prominence.
However, when the claim is less than twice what the minimum size of the
referral statement would be, given the size of the label and
Sec. 101.105(i), the type size of the referral statement may be less
than that required under Sec. 101.105 for net quantity of contents. In
such circumstances, the referral statement is of appropriate prominence
if it is at least one-half the size of the claim and not less than one-
sixteenth of an inch. This approach to the type size requirement for
the referral statement provides additional flexibility to firms in
utilizing label space but still ensures adequate prominence for this
statement.
Because, under this proposal, health claim referral statements are
to be used in a manner that is similar to how nutrient content claim
referral statements are used, and because they are likely to appear on
the principal display panel, the agency tentatively concludes that a
health claim referral statement should be subject to the same type size
requirements as those for nutrient content claims. Therefore, the
agency tentatively concludes that the requirements for the referral
statement set forth in Sec. 101.72(c)(2)(ii)(A) and (c)(2)(ii)(B) are
appropriate when an abbreviated health claim is used, and it is
including them in this proposed rule.
In concert with the proposed requirements for an abbreviated health
claim, the agency is including an abbreviated health claim among the
examples of other model claims in proposed Sec. 101.72(e).
E. Disclosure Versus Disqualifying Nutrient Levels for Health Claims
Section 403(r)(3)(A)(ii) of the act provides that a health claim
may only be made for a food that ``does not contain, as determined * *
* by regulation, any nutrient in an amount which increases to persons
in the general population the risk of a disease or health-related
condition which is diet related, taking into account the significance
of the food in the total daily diet.'' This section helps to ensure
that consumers who rely on health claims will be consuming foods that
will assist them in structuring a healthful diet that meets dietary
guidelines.
As discussed more fully in the preamble to the 1993 health claims
final rule, the agency implemented this provision by considering a
food's role in the total daily diet and calculating levels of total
fat, saturated fat, cholesterol, and sodium that would increase the
risk of disease or health-related conditions in the general population.
FDA calculated these levels by considering the number of foods consumed
each day, as well as the number of foods that are likely to contain
significant levels of these nutrients.
The agency has established different disqualifying levels for
different types of foods, depending on the role that they play in the
daily diet. Section 101.14(a)(5) defines the disqualifying level for
individual foods as 20 percent of the DV's for total fat, saturated
fat, cholesterol, and sodium. These levels
[[Page 66222]]
translate to 13.0 grams (g) of total fat, 4.0 g of saturated fat, 60 mg
of cholesterol, and 480 mg of sodium per reference amount customarily
consumed, per label serving size, and for foods with reference amounts
customarily consumed of 30 g or less or 2 tablespoons or less, per 50
g. The regulations make additional allowances for main dish products
and meal-type products. The disqualifying levels for main dish and meal
products are 30 percent and 40 percent of the DV, respectively. These
different levels are consistent with the legislative history, which
states, ``a particular level of fat in a frozen dinner might not
trigger the provision, whereas the same amount of fat in a snack food
might trigger it.''
A food that exceeds the disqualifying level for any of the four
disqualifying nutrients may not bear a health claim unless the agency
has granted an exemption ``based on a finding that such a claim would
assist consumers in maintaining healthy dietary practices.'' (Section
403(r)(3)(A)(ii) of the act.) To date, the agency has received no
petitions for an exemption from this provision.
The NFPA petition requested that the defined disqualification
levels be converted to disclosure levels under certain circumstances.
More specifically, the petition suggested that ``the presence of one of
these nutrients at the prescribed level would require disqualification
only if the nutrient was found in another health claim regulation to be
directly and adversely related to the disease mentioned in the claim.''
The petition went on to state that ``[i]f the nutrient is not so
directly related to the disease to which the claim refers, the
regulations would require only disclosure by an appropriate referral
statement in conjunction with the health claim on the label, as the
regulations now require for nutrient content claims.''
As stated in the May 11, 1995, letter to NFPA, FDA concludes that a
generic change in its regulations would not be consistent with the
underlying goals of the NLEA. The current disqualifying levels assist
consumers in constructing total daily diets that meet dietary
guidelines. The agency considered the role a food plays in the daily
diet when it calculated the disqualifying levels. Health claims on
foods with levels of fat, saturated fat, cholesterol, or sodium that
exceed the disqualifying levels would encourage increased intake of
these foods and would make it difficult for consumers to follow the
Surgeon General's recommendations and to construct a healthful diet.
Even with the current disqualification levels, consumers could reach
the DV's for total fat, saturated fat, cholesterol, or sodium by eating
as few as five foods that bear health claims.
The agency considers the current disqualification rules to be
consistent with congressional intent. Congress contemplated that health
claims would be reserved for those foods that can contribute to a
healthful diet. As the House Report states, ``Health claims supported
by a significant scientific agreement can reinforce the Surgeon
General's recommendations and help Americans to maintain a balanced and
healthful diet.'' (See H. Rept. 101-538, 101st Cong., 2d sess. pp. 9-10
(1990).)
Nevertheless, the agency tentatively finds that there may be some
instances where disclosure rather than disqualification is appropriate.
While FDA continues to believe that exceptions should be granted on a
case-by-case basis, using a petition process, the agency recognizes
that further guidance on the criteria that it will use to evaluate
petitions for exceptions would be useful. FDA is, therefore, proposing
to amend its regulations to give such guidance.
Proposed Sec. 101.70(f) provides guidance for petitioners
requesting an exception to the prohibition in Sec. 101.14(e)(3) against
health claims for foods exceeding the disqualifying levels identified
in Sec. 101.14(a)(5). This proposed amendment to the petition
procedures sets out some of the factors that the agency will consider
when evaluating a petition.
The first factor that FDA is proposing to list is whether the risk
of the disease or health-related condition is of such public health
significance, and the role of the diet so critical, that
disqualification is not appropriate (proposed Sec. 101.70(f)(1)). The
agency recognizes that there may be instances where extraordinary
efforts are needed to address a particular public health problem. In
such cases, the agency would consider providing for disclosure rather
than disqualification levels.
The second factor is whether the availability of foods that qualify
for a health claim is adequate to address the public health concern
that is the subject of the health claim (proposed Sec. 101.70(f)(2)).
The agency intends to consider whether the application of the claim is
so limited because of the disqualification levels that it will not be
possible to meet the public health goal of the health claim. If only a
limited number of food products qualify to bear the claim because of
the disqualifying levels, the agency would consider providing for
disclosure rather than disqualification levels.
The third factor that FDA intends to consider is whether there is
some evidence that the population to which the health claim is targeted
is not at risk for the disease or health-related condition associated
with the disqualifying nutrient (proposed Sec. 101.70(f)(3)). Although
the current disqualifying nutrients are associated with diseases or
health-related conditions that pose risks to the general population,
there may be some categories of foods that are targeted to specific
subpopulations that are not at particular risk for the disease or
health-related condition associated with the disqualifying nutrient
(toddlers, for example). The agency would be willing to look at data
and to consider whether an exception to the disqualifying levels should
be made for foods intended for such subgroups.
Related to this criterion, is the question of whether there is
evidence that consumers can identify themselves as being at risk for a
particular disease or health-related condition associated with the
disqualifying levels. For instance, some individuals can already
identify themselves as being sensitive to sodium and, therefore, would
recognize the risk of a high sodium food if it were disclosed. If the
ability to self-identify for these risks becomes widespread, disclosure
might be sufficient to reduce the risk from the disqualifying nutrient.
FDA would expect to receive data that demonstrate that this ability
exists, however, before it would be willing to grant an exemption on
this basis.
Finally, the agency intends to consider whether there are any other
public health reasons for providing for disclosure rather than
disqualification (proposed Sec. 101.70(f)(4)). The agency does not
consider the above list of criteria exhaustive. There may be other
criteria that would be useful in determining whether the agency should
provide for disclosure rather that disqualification levels for health
claims, and the agency is open to considering such factors.
The agency requests comments on the appropriateness of these
criteria.
The agency notes that there are ways to convey important health
information other than through health claims. A food may still be able
to bear a nutrient content claim or a structure/function claim in order
to highlight a particular attribute even if it exceeds the
disqualification level for a health claim. For example, while whole
milk may not be able to bear a calcium and osteoporosis health claim,
it can still bear a ``high calcium'' nutrient content claim, so long as
the levels of fat and saturated fat are disclosed. Similarly,
[[Page 66223]]
cooking oils that are lower in saturated fat may not be able to bear a
``healthy heart'' claim but can still bear a ``low'' or ``less''
saturated fat nutrient content claim.
In addition, some products can make other truthful and not
misleading claims. For example, the label of whole milk can state
``Calcium builds strong bones.'' While such a claim is not considered a
health claim under the 1990 amendments, it still conveys important
dietary advice useful to consumers in constructing a healthful diet.
V. Environmental Impact
The agency has determined under 21 CFR 25.24(a)(11) that this
action is of a type that does not individually or cumulatively have a
significant effect on the human environment. Therefore, neither an
environmental assessment nor an environmental impact statement is
required.
VI. Analysis of Impacts
FDA has examined the impacts of the proposed rule under Executive
Order 12866 and the Regulatory Flexibility Act (Pub. L. 96-354).
Executive Order 12866 directs agencies to assess all costs and benefits
of available regulatory alternatives and, when regulation is necessary,
to select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity). The agency believes that
this proposed rule is consistent with the regulatory philosophy and
principles identified in the Executive Order. In addition, the proposed
rule is not a significant regulatory action as defined by the Executive
Order and so is not subject to review under the Executive Order.
FDA is proposing to: (1) Specify circumstances under which synonyms
may be used, authorizing the use of unlisted synonyms provided that
they are properly anchored to a listed term; (2) exempt certain types
of products from the 10 percent nutrient contribution requirement; (3)
provide the basis for shorter health claims by eliminating some of the
required elements; and (4) permit an abbreviated health claim to be
used on the principal display panel. FDA is also providing guidance for
petitioners requesting an exception to the prohibition against health
claims for foods exceeding FDA's defined disqualifying levels. The
agency anticipates that the costs of this proposed rule will be
minimal. If this rule is finalized as proposed, it will not require any
manufacturers currently making claims to change their labels or
labeling. Also, this rule may reduce the costs of making future claims
by reducing the uncertainty and relaxing the requirements of the
petition process for claims.
Although many health claims have appeared on a variety of products,
the agency is concerned that health claims are not being used as
extensively as they could be. To the extent that valid claims are not
being used, a cost is imposed on society in that some valuable
information may not be conveyed to consumers. This proposed rule will
reduce the cost of lost beneficial information by making it easier for
firms to make nutrient content and health claims. The agency is aware
that the food label or labeling is a major means of providing
information on foods at the point-of-purchase. By adopting a less
restrictive approach to claims, the agency is providing industry with a
method by which the label can be used to inform consumers of the health
benefits of foods in such a way that will catch the attention of
consumers. As long as the claims are truthful, not misleading, and
scientifically valid, the additional information will benefit consumers
by reinforcing the Surgeon General's recommendations and helping
consumers maintain healthful dietary practices. In addition, the
greater flexibility provided to industry will increase the incentive to
develop more healthful products.
The Regulatory Flexibility Act requires analyzing options for
regulatory relief for small businesses. The current claims regulations
may have discouraged small businesses from making valid nutrient
content claims and health claims. To the extent that this rule relaxes
the restrictions on the ability of firms to use claims on the labels or
in the labeling of their products, this rule will benefit small firms.
In accordance with the Regulatory Flexibility Act, the agency certifies
that the proposed rule will not have a significant economic impact on a
substantial number of small businesses.
VII. Paperwork Reduction Act
FDA tentatively concludes that this proposed rule contains no
reporting, recordkeeping, labeling, or other third party disclosure
requirements; thus there is not ``information collection''
necessitating clearance by the Office of Management and Budget.
However, to ensure the accuracy of this tentative conclusion, FDA is
seeking comment on whether this proposed rule to permit additional
flexibility in the use of health claims and synonyms for nutrient
content claims on food labels imposes any paperwork burden.
VIII. Comments
Interested persons may, on or before March 20, 1996, submit to the
Dockets Management Branch (address above) written comments regarding
this proposal. Two copies of any comments are to be submitted, except
that individuals may submit one copy. Comments are to be identified
with the docket number found in brackets in the heading of this
document. Received comments may be seen in the office above between 9
a.m. and 4 p.m., Monday through Friday.
IX. References
The following references have been placed on display in the Dockets
Management Branch (address above) and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday through Friday.
1. House Committee on Energy and Commerce, ``Nutrition Labeling
and Education Act of 1990,'' 101st Congress, 2d sess., Report 101-
538, pp. 9-10, June 13, 1990.
2. Committee on the Nutrition Components of Food Labeling, Food
and Nutrition Board, IOM, National Academy of Science, ``Nutrition
Labeling, Issues and Directions for the 1990's,'' Washington, DC,
National Academy Press, 1990.
3. United States Department of Agriculture, Human Nutrition
Information Services, ``USDA's Food Guide Pyramid,'' Home and Garden
Bulletin No. 249, April, 1992.
4. ``The Surgeon General's Report on Nutrition and Health,''
DHHS, Public Health Service Publication No. 88-50210 (Government
Printing Office Stock No. 017-001-00465-1), U.S. Government Printing
Office, Washington, DC, 1988.
5. Committee on Diet and Health, Food and Nutrition Board,
Commission on Life Sciences, National Research Council, National
Academy of Science, ``Diet and Health: Implications for Reducing
Chronic Disease Risk,'' National Academy Press, Washington, DC,
1989.
6. National Institutes of Health, Office of the Director, ``NIH
Consensus Statement, Optimal Calcium Intake,'' vol. 12, No. 4, June
6-8, 1994. Available from: NIH Consensus Program Information
Service, P.O. Box 2577, Kensington, MD 20891, 1-800-644-6627.
7. Levy, A., Food and Drug Administration, Center for Food
Safety and Applied Nutrition, Division of Market Studies, ``Summary
Report on Health Claims Focus Groups,'' June 15, 1995.
8. Dietary Supplement Health and Education Act of 1994 (Pub. L.
103-417), October 25, 1994.
9. Technical Report--Cancer Prevention Awareness Survey--Wave
II, Office of Cancer Communications, National Cancer Institute,
National Institutes of Health, Bethesda, MD, November 1986.
10. Brenda Derby, Memorandum to Victor Frattali, ``Consumer
Understanding of
[[Page 66224]]
Multifactoriality of Disease,'' October 25, 1995.-
List of Subjects in 21 CFR Part 101
Food labeling, Nutrition, Reporting and recordkeeping requirements.
Therefore, under the Federal Food, Drug, and Cosmetic Act, and
under authority delegated to the Commissioner of Food and Drugs, it is
proposed that 21 CFR part 101 be amended as follows:
PART 101--FOOD LABELING
1. The authority citation for 21 CFR part 101 continues to read as
follows:
Authority: Secs. 4, 5, 6 of the Fair Packaging and Labeling Act
(15 U.S.C. 1453, 1454, 1455); secs. 201, 301, 402, 403, 409, 701 of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 331, 342,
343, 348, 371).
2. Section 101.13 is amended by revising the introductory text of
paragraph (b) and adding new paragraph (r) to read as follows:
Sec. 101.13 Nutrient content claims--general principles.
* * * * *
(b) A claim that expressly or implicitly characterizes the level of
a nutrient (nutrient content claim) of the type required in nutrition
labeling under Sec. 101.9 with the exception of such claims on
restaurant menus and except as noted in paragraph (r) of this section
for unlisted synonyms, may not be made on the label or in labeling of
foods unless the claim is made in accordance with this regulation and
with the applicable regulations in subpart D of this part or in part
105 or part 107 of this chapter.
* * * * *
(r) Expressed synonyms for nutrient content claims may be used,
provided:
(1) The term is listed as a synonym of a defined term in the
regulations in subpart D of this part or in part 105 or part 107 of
this chapter; or
(2) The term is used in a manner that complies with the following
requirements:
(i) Such term is not misleading and, in the context of the entire
label, is reasonably understood by consumers to be a synonym of a term
listed in subpart D of this part or in part 105 or part 107 of this
chapter;
(ii)(A) The term that is listed in subpart D of this part or in
part 105 or part 107 of this chapter, and for which the unlisted term
is being used as a synonym, appears prominently and conspicuously on
the label, such that it is:
(1) Immediately adjacent (with no intervening material) to the most
prominent use of the unlisted synonym (as determined in accordance with
Sec. 101.13(j)(2)(iii)); and
(2) At least half as prominent (including type size, style, and
color) as the unlisted synonym authorized under this paragraph.
(B) If the term listed in subpart D of this part or in part 105 or
part 107 of this chapter is more than twice as prominent on a label as
the synonym authorized under this paragraph such that the claimed
nutrient level is clearly understood (e.g., a claim in the statement of
identity versus an unlisted synonym used only in a paragraph in small
sized type), the term listed in subpart D of this part or in part 105
or part 107 of this chapter need not be placed adjacent to the unlisted
synonym authorized under this paragraph.
(iii) The unlisted synonym is used in conformance with all the
requirements for the use of the defined term, i.e., the referral
statement required in Sec. 101.13(g) and any other required label
statements appear in the prescribed manner; and
(iv) This paragraph does not authorize a term listed in subpart D
of this part or in part 105 or part 107 of this chapter to be used in
conjunction with an unlisted qualifying term (e.g., ``extra low,''
``extra high,'' ``especially good source,'' or ``great source'').
3. Section 101.14 is amended by revising paragraphs (d)(2)(iv) and
(e)(6) to read as follows:
Sec. 101.14 Health claims: general requirements.
* * * * *
(d) * * *
(2) * * *
(iv) All information required to be included in the claim appears
in one place without other intervening material, except that the
principal display panel of the label or labeling may bear:
(A) The reference statement, ``See---------- for information about
the relationship between-------- and ---------- ,'' with the blanks
filled in with the location of the labeling containing the health
claim, the name of the substance, and the name of the disease or
health-related condition (e.g., ``See attached pamphlet for information
about calcium and osteoporosis''), with the entire claim appearing
elsewhere on the other labeling, Provided that, where any graphic
material (e.g., a heart symbol) constituting an explicit or implied
health claim appears on the label or labeling, the reference statement
or the complete claim shall appear in immediate proximity to such
graphic material; or
(B) As authorized under subpart E of this part, an abbreviated
claim consisting only of a truthful, nonmisleading, and scientifically
valid description of the relationship between the substance and the
disease or health-related condition, Provided that:
(1) Such an abbreviated claim is accompanied by a reference
statement to the complete health claim;
(2) The reference statement is prominent and in immediate proximity
to the abbreviated claim; and
(3) The complete health claim appears on the same label, or in the
same labeling, in which the abbreviated claim appears.
* * * * *
(e) * * *
(6) Except for dietary supplements, fruit or vegetable products
composed solely of fruits and vegetables, enriched grain products that
conform to a standard of identity in part 136, 137, or 139 of this
chapter, and bread which conforms to the standard of identity for
enriched bread in Sec. 136.115 of this chapter except that it contains
whole wheat or other grain products not permitted under that standard,
or where provided for in other regulations in part 101, subpart E, the
food contains 10 percent or more of the Reference Daily Intake or Daily
Reference Value for vitamin A, vitamin C, iron, calcium, protein, or
fiber per reference amount customarily consumed prior to any nutrient
addition.
* * * * *
4. Section 101.70 is amended in paragraph (f) by adding in the
model petition new text immediately preceding the last undesignated
paragraph of section B to read as follows:
Sec. 101.70 Petitions for health claims.
* * * * *
(f) * * *
B. * * *
In deciding the merits of a petition filed for an exception to the
prohibition in Sec. 101.14(e)(3) against health claims for foods
exceeding the disqualifying levels identified in Sec. 101.14(a)(5), the
agency will consider the following factors:
1. The public health significance of the risk of the disease or
health-related condition that is the subject of the claim and the role
that the diet plays in decreasing that risk;
2. The availability of foods that qualify for a claim to address
the underlying public health concerns;
3. Evidence demonstrating the population to which the health claim
is targeted is not at risk for the disease or health-related condition
associated with the disqualifying nutrient, including,
[[Page 66225]]
but not limited to, the ability of individuals to identify themselves
as being at risk for the disease or health-related condition associated
with the disqualifying nutrient; and
4. All other evidence demonstrating the public health need for
waiving the disqualification requirements.
* * * * *
5. Section 101.72 is amended by revising paragraph (c)(2)(i); by
redesignating paragraphs (c)(2)(ii) and (d)(2) as (c)(2)(iii) and
(d)(5), respectively; by adding new paragraphs (c)(2)(ii), (d)(2),
(d)(3), and (d)(4); and by revising paragraph (e) to read as follows:
Sec. 101.72 Health claims: calcium and osteoporosis.
* * * * *
(c)(2) Specific requirements. (i) Nature of the claim. A health
claim associating calcium with a reduced risk of osteoporosis may be
made on the label or labeling of a food described in paragraph
(c)(2)(iii) of this section, provided that:
(A) The claim makes clear that adequate calcium intake as part of a
healthful diet throughout life is essential to reduce the risk of
osteoporosis. The claim does not imply that adequate dietary calcium
intake is the only recognized risk factor for the development of
osteoporosis;
(B) The claim does not state or imply that the risk of osteoporosis
is equally applicable to the general United States population. The
claim shall identify the population at particular risk for the
development of osteoporosis as women in their bone forming years from
approximately 11 to 35 years of age. An optional statement that further
characterizes this and other populations at risk for developing
osteoporosis may be made in accordance with paragraph (d)(3) of this
section;
(C) The claim does not attribute any degree to which maintaining
adequate calcium intake throughout life may reduce the risk of
osteoporosis; and
(D) The claim states that total dietary intake of calcium greater
than 2,000 milligrams (mg) per day (200 percent of the DV for calcium
for adults and children 4 or more years of age or 154 percent of the
daily value (DV) for pregnant or lactating women) provides no further
benefit to bone health in reducing the risk of osteoporosis. This
requirement does not apply to a food that provides 1,500 mg or less of
calcium per day (150 percent or less of the DV for calcium for adults
and children 4 or more years of age or 115 percent or less of the DV
for pregnant or lactating women) when used as directed in labeling.
(ii) Presentation of the claim. All of the elements listed in
paragraph (c)(2)(i) of this section must be included in one
presentation of the claim displayed prominently on the label or
labeling on which the claim appears. Other presentations of the claim
on that label or labeling, including on the principal display panel,
need not include the information in paragraphs (c)(2)(i)(B) and
(c)(2)(i)(D) of this section provided that, displayed prominently and
in immediate proximity to such claim, the following referral statement
is used: ``See -------- for more information'' with the blank filled in
with the identity of the panel on which is presented the statement of
the claim that includes all of the elements in paragraph (c)(2)(i) of
this section.
(A)-The referral statement ``See [appropriate panel] for more
information'' shall be in easily legible boldface print or type, in
distinct contrast to other printed or graphic matter, that is no less
than that required by Sec. 101.105(i) for net quantity of contents,
except where the size of the claim is less than two times the required
size of the net quantity of contents statement, in which case the
referral statement shall be no less than one-half the size of the claim
but no smaller than one-sixteenth of an inch.
(B) The referral statement shall be immediately adjacent to any
presentation of the health claim that does not include all of the
elements of paragraph (c)(2)(i) of this section, and there may be no
intervening material between the claim and the referral statement. If
the abbreviated health claim appears on more than one panel of the
label, the referral statement shall be adjacent to the claim on each
panel except for the panel that bears the full health claim where it
may be omitted.
-* * * * *
(d) * * *
(2) The claim may list specific risk factors for osteoporosis,
identifying them among the multifactorial risks for the disease. Such
factors include a person's sex, age, and race. The claim may state that
an adequate amount of exercise is also needed to reduce risk for the
disease.
(3) The claim may further identify the population at particular
risk for the development of osteoporosis as including white (or
``Caucasian'') women and Asian women in their bone forming years
(approximately 11 to 35 years of age). The claim may also identify
menopausal (or the term ``middle-aged'') women, persons with a family
history of the disease, and elderly (or ``older'') men and women as
being at risk.
(4) The claim may state that adequate calcium intake throughout
life is linked to reduced risk of osteoporosis through the mechanism of
optimizing peak bone mass during adolescence and early adulthood. The
phrase ``build and maintain good bone health'' may be used to convey
the concept of optimizing peak bone mass. When reference is made to
persons with a family history of the disease, menopausal women, and
elderly men and women, the claim may also state that adequate calcium
intake is linked to reduced risk of osteoporosis through the mechanism
of slowing the rate of bone loss.
-* * * * *
(e) Model health claims. The following are examples of model health
claims that may be used in food labeling to describe the relationship
between calcium and osteoporosis:
(1) Examples 1 and 2. Model health claims for a food that does not
require the statement specified in paragraph (c)(2)(i)(D) of this
section:
Especially for teen and young adult women, adequate calcium in a
healthful diet may reduce the risk of osteoporosis later in life.
A healthful diet with adequate calcium and regular exercise help
teen and young adult white and Asian women maintain good bone health
and may reduce their high risk of osteoporosis later in life.
(2) Example 3. Model health claims for a food labeled for use by
adults and children 4 or more years of age that requires the statement
specified in paragraph (c)(2)(i)(D) of this section:
Exercise and a healthful diet with enough calcium may help teen
and young adult women reduce their high risk of osteoporosis later
in life. Adequate calcium is important for everyone (women and men
at all ages) but daily intakes above 2,000 mg (200 percent of the
DV) may not provide added benefit.
(3) Example 4. Abbreviated model health claim for use with a full
health claim and that conforms with the requirements of paragraph
(c)(2)(ii) of this section:
Adequate calcium in a healthful diet may reduce the risk of
osteoporosis. See [appropriate panel] for more information.
6. Section 101.73 is amended by revising paragraphs (c)(2)(i)(F),
(d)(1), and (e)(1) to read as follows:
Sec. 101.73 Health claims: dietary lipids and cancer.
* * * * *
(c) * * *
(2) * * *
(i) * * *
(F) The claim does not imply that dietary fat consumption is the
only
[[Page 66226]]
recognized risk factor for the development of cancer.
* * * * *
(d) Optional information. (1) The claim may indicate that
development of cancer depends on many factors and identify one or more
of the following as risk factors for the disease: Family history of a
specific type of cancer, cigarette smoking, alcohol consumption,
overweight and obesity, ultraviolet or ionizing radiation, exposure to
cancer-causing chemicals, and dietary factors.
* * * * *
(e) * * *
(1) A low fat diet may reduce the risk of some cancers.
-* * * * *
7. Section 101.74 is amended by revising paragraphs (c)(2)(i)(E),
(d)(1), (e)(1), and (e)(2) to read as follows:
Sec. 101.74 Health claims: sodium and hypertension.
-* * * * *
(c) * * *
(2) * * *
(i) * * *
(E) The claim does not imply that dietary sodium consumption is the
only recognized risk factor for the development of high blood pressure.
-* * * * *
(d) Optional information. (1) The claim may indicate that
development of high blood pressure depends on many factors and identify
one or more of the following as risk factors for the disease in
addition to dietary sodium consumption: Family history of high blood
pressure, growing older, alcohol consumption, and excess weight.
-* * * * *
(e) * * *
(1) A low sodium diet may reduce the risk of high blood pressure.
(2) [This product] can be part of a low sodium, low salt diet that
might reduce the risk of hypertension or high blood pressure.
8. Section 101.75 is amended by revising paragraphs (c)(2)(i)(E),
(d)(1), (e)(1), and (e)(2) to read as follows:
Sec. 101.75 Health claims: dietary saturated fat and cholesterol and
risk of coronary heart disease.
-* * * * *
(c) * * *
(2) * * *
(i) * * *
(E) The claim does not imply that consumption of dietary saturated
fat and cholesterol is the only recognized risk factor for the
development of coronary heart disease.
-* * * * *
(d) Optional information. (1) The claim may indicate that coronary
heart disease risk depends on many factors and identify one or more of
the following in addition to saturated fat and cholesterol about which
there is general scientific agreement that they are major risk factors
for this disease: A family history of coronary heart disease, elevated
blood total and LDL-cholesterol, excess body weight, high blood
pressure, cigarette smoking, diabetes, and physical inactivity.
-* * * * *
(e) * * *
(1) Diets low in saturated fat and cholesterol may reduce the risk
of heart disease;
(2) Your risk of heart disease might be reduced by a diet low in
saturated fat and cholesterol and a healthy lifestyle;
-* * * * *
9. Section 101.76 is amended by revising paragraphs (c)(2)(i)(D),
(d)(2), (e)(1), and (e)(2) to read as follows:
Sec. 101.76 Health claims: fiber-containing grain products, fruits,
and vegetables and cancer.
-* * * * *
(c) * * *
(2) * * *
(i) * * *
(D) The claim does not imply that consumption of diets low in fat
and high in fiber-containing grain products, fruits, and vegetables is
the only recognized risk factor for a reduced risk of developing
cancer.
-* * * * *
(d) * * *
(2) The claim may indicate that development of cancer depends on
many factors and identify one or more of the following as risk factors
for the disease: Family history of a specific type of cancer, cigarette
smoking, alcohol consumption, overweight and obesity, ultraviolet or
ionizing radiation, exposure to cancer-causing chemicals, and dietary
factors.
-* * * * *
(e) * * *
(1) Low fat diets rich in fiber-containing grain products, fruits,
and vegetables may reduce the risk of some types of cancer.
(2) A diet low in fat and high in grain products, fruits, and
vegetables that contain fiber may reduce your risk of some cancers.
-* * * * *
10. Section 101.77 is amended by revising paragraphs (c)(2)(i)(F),
(d)(1), and (e) to read as follows:
Sec. 101.77 Health claims: fruits, vegetables, and grain products -
that contain fiber, particularly soluble fiber, and risk of -coronary
heart disease.
(c) * * *
(2) * * *
(i) * * *
(F) The claim does not imply that consumption of diets low in
saturated fat and cholesterol and high in fruits, vegetables, and grain
products that contain fiber, particularly soluble fiber, is the only
recognized risk factor for a reduced risk of developing coronary heart
disease.
-* * * * *
(d) Optional information. (1) The claim may indicate that
development of coronary heart disease depends on many factors and
identify one or more of the following as risk factors for the disease:
A family history of coronary heart disease, elevated blood-, total- and
LDL-cholesterol, excess body weight, high blood pressure, cigarette
smoking, diabetes, and physical inactivity.
-* * * * *
(e) Model health claims. The following model health claims may be
used in food labeling to characterize the relationship between diets
low in saturated fat and cholesterol and high in fruits, vegetables,
and grain products that contain soluble fiber and the risk of coronary
heart disease:
(1) Diets low in saturated fat and cholesterol and rich in fiber-
containing fruits, vegetables, and grain products may reduce the risk
of heart disease.
(2) A diet low in saturated fat and cholesterol and high in fruits,
vegetables, and grain products that contain fiber may lower blood
cholesterol levels and reduce your risk of heart disease.
11. Section 101.78 is amended by removing paragraph (c)(2)(i)(D);
by redesignating paragraphs (c)(2)(i)(E) through (c)(2)(i)(J) and
(d)(3) through (d)(5) as (c)(2)(i)(D) through (c)(2)(i)(I) and (d)(4)
through (d)(6), respectively; by revising newly redesignated paragraph
(c)(2)(i)(I), paragraphs (d)(2), (e)(1), and (e)(2); and by adding new
paragraph (d)(3) to read as follows:
Sec. 101.78 Health claims: fruits and vegetables and cancer.
-* * * * *
(c) * * *
(2) * * *
(i) * * *
(I) The claim does not imply that consumption of diets low in fat
and high in fruits and vegetables is the only recognized risk factor
for a reduced risk of developing cancer.
-* * * * *
[[Page 66227]]
(d) * * *
(2) The claim may indicate that development of cancer depends on
many factors and identify one or more of the following as risk factors
for the disease: Family history of a specific type of cancer, cigarette
smoking, alcohol consumption, overweight and obesity, ultraviolet or
ionizing radiation, exposure to cancer-causing chemicals, and dietary
factors.
(3) The claim may characterize fruits and vegetables that meet the
requirements described in paragraph (c)(2)(ii) of this section as foods
that are low in fat and that contain (or are a good source of) one or
more of vitamin A, vitamin C, or dietary fiber.
-* * * * *
(e) * * *
(1) Low fat diets rich in fruits and vegetables (foods that are low
in fat and may contain dietary fiber, vitamin A and vitamin C), may
reduce the risk of some types of cancer.
(2) A diet low in fat and high in certain fruits and vegetables,
foods that are low in fat and that may contain vitamin A and vitamin C,
may reduce your risk of some cancer.
Dated: December 13, 1995.
William B. Schultz,
Deputy Commissioner for Policy.
[FR Doc. 95-31008 Filed 12-20-95; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 95-30996 Federal Acquisition Regulation; Allowable Cost and Payment Clause
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Page 66472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30996]
[[Page 66471]]
_______________________________________________________________________
Part III
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Parts 52 and 44
Allowable Cost and Payment Clause and Contractors' Purchasing Systems
Reviews; Proposed Rule
Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 /
Proposed Rules
[[Page 66472]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 52
[FAR Case 93-024]
RIN 9000-AG74
Federal Acquisition Regulation; Allowable Cost and Payment Clause
AGENCIES Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are proposing changes to the Federal
Acquisition Regulation (FAR) to clarify payment provisions for large
business prime contractors which are awarded cost-type contracts. This
regulatory action was not subject to Office of Management and Budget
review under Executive Order 12866, dated September 30, 1993.
DATES: Comments should be submitted on or before February 20, 1996 to
be considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments on:
General Services Administration, FAR Secretariat (VRS), 18th and F
Streets, NW, Room 4037, Washington, DC 20405.
Please cite FAR case 93-024 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT:
Jeremy F. Olson at (202) 501-3221 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAR case 93-
024.
SUPPLEMENTARY INFORMATION:
A. Background
The Office of Federal Procurement Policy SWAT Team on Civilian
Agency Contracting in its report of December 1992, entitled ``Improving
Contracting Practices and Management Controls on Cost-Type Federal
Contracts'', recommended several FAR revisions which were viewed to
have Government-wide benefit.
One area identified for clarification included the payment
provisions in FAR clauses 52.216-7, Allowable Cost and payment, and
52.232-7, Payment Under Time-and-Materials and Labor-Hour Contracts.
The SWAT Team concluded that these clauses did not clearly convey the
Government's intent that payments to subcontractors by large business
prime contractors were not billable to the Government until the
contractor had actually paid the subcontractors. The proposed rule
amends these payment clauses to clarify that, on cost-type
contracts,payments to subcontractors are not billable by large business
prime contractors until the subcontractors have been paid by the prime
contractor.
B. Regulatory Flexibility Act
This proposed rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule
only applies to large business entities who wish to be reimbursed under
cost-type contracts. An Initial Regulatory Flexibility Analysis has,
therefore, not been performed. Comments from small entities concerning
the affected FAR subpart will be considered in accordance with 5 U.S.C.
610 of the Act. Such comments must be submitted separately and cite
(FAR case 93-024), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 52
Government procurement.
Dated: December 15, 1995.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, it is proposed that 48 CFR Part 52 be amended as set
forth below:
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
1. The authority citation for 48 CFR Part 52 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 52.216-7 is amended by revising the clause date and
paragraph (b)(i)(iii) to read as follows:
52.216-7 Allowable cost and payment.
* * * * *
Allowable Cost and Payment (Date)
* * * * *
(b) * * *
(1) * * *
(iii) The amount of progress and other payments that have been
paid by cash, check or other form of payment to the Contractor's
subcontractors under similar cost standards.
* * * * *
3. Section 52.232-7 is amended by revising the clause date and the
second sentence of paragraph (b)(2) to read as follows:
52.232-7 Payments under time-and-materials and labor-hour contracts.
* * * * *
Payments Under Time-and-Materials and Labor-Hour Contracts (Date)
* * * * *
(b) * * *
(2) * * * Reimbursable costs in connection with subcontracts
shall be limited to the amounts paid to the subcontractor for items
and services purchased directly for the contract only when cash,
checks, or other form of payment has been made for such purchased
items or services; however, this requirement shall not apply to a
Contractor that is a small business concern. * * *
* * * * *
[FR Doc. 95-30996 Filed 12-20-95; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 95-30995 Federal Acquisition Regulation; Contractors' Purchasing Systems Reviews
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66472-66473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30995]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 44
[FAR Case 94-605]
[RIN 9000-AG75]
Federal Acquisition Regulation; Contractors' Purchasing Systems
Reviews
AGENCY: Department of Defense (DOD), General Services Administration
(GSA),and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing a revision to
the Federal Acquisition Regulation (FAR) concerning requirements under
Contractors' Purchasing Systems Reviews (CPSR's). This regulatory
action was not subject to Office of Management and Budget review under
[[Page 66473]]
Executive Order 12866, dated September 30, 1993.
DATES: Comments should be submitted on or before February 20, 1996 to
be considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (VRS), 18th & F
Streets, NW., Room 4037, Washington, DC 20405.
Please cite FAR case 94-605 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT:
Ms. Linda Klein at (202) 501-3775 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAR case 94-
605.
SUPPLEMENTARY INFORMATION:
A. Background
Concern has been expressed that FAR 44.302(a) includes contractors
in the CPSR process that will be severely inconvenienced by the review,
and allows for the review of systems even when there is no benefit to
the Government. Under the current FAR 44.302, a CPSR is to be conducted
for each contractor whose sales to the Government are expected to
exceed $10 million during the next 12 months. However, the Councils
have agreed to raise the $10 million threshold to $25 million and have
determined that contractors meeting the $25 million threshold should be
reviewed before conducting a CPSR, to decide if a CPSR is necessary.
The increased thresholds ($10 million to $25 million) that are
reflected in this proposed rule have previously been approved under FAR
case 94-40, Contractors' Purchasing Systems Reviews and Subcontractor
Consent, and is awaiting publication as a final rule. The need for a
CPSR will be determined based on volume, complexity, and dollar value
of subcontracting activity. The proposed revision is intended to
prevent unwarranted CPSR's from being conducted.
B. Regulatory Flexibility Act
This proposed rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule
will reduce the number of CPSR's being conducted by requiring a review
to determine if a CPSR is needed. An Initial Regulatory Flexibility
Analysis has, therefore, not been performed. Comments from small
entities concerning the affected FAR subpart will be considered in
accordance with 5 U.S.C. 610 of the Act. Such comments must be
submitted separately and should cite 5 U.S.C. 601, et seq. (FAR case
94-605), in correspondence.
C. Paperwork Reduction Act
The information collection requirements for CPSR's have been
previously approved under Office of Management and Budget Number 9000-
0132. This proposed rule does not contain any increased information
collection requirements.
List of Subjects in 48 CFR Part 44
Government procurement.
Dated: December 15, 1995.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, it is proposed that 48 CFR Part 44 be amended as set
forth below:
PART 44--SUBCONTRACTING POLICIES AND PROCEDURES
1. The authority citation for 48 CFR Part 44 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 44.302 is revised to read as follows:
Sec. 44.302 Requirements.
(a) Each contractor whose sales to the Government, using other than
sealed bid procedures, are expected to exceed $25 million during the
next 12 months, shall be reviewed to determine if Contractors'
Purchasing Systems Review (CPSR) is needed. Such sales include those
represented by prime contracts, subcontracts under Government prime
contracts, and modifications. The need for a CPSR will be determined
based on volume, complexity, and dollar value of subcontracting
activity. Generally, a CPSR is not performed for a specific contract.
The head of the agency responsible for contract administration may
raise or lower the $25 million review level if such action is
considered to be in the Government's best interest.
(b) Once an initial determination has been made under paragraph (a)
of this section, at least every 3 years the cognizant contract
administration activity will either: conduct a follow-up purchasing
review; or determine that a purchasing system review is not required
based on volume, complexity, and dollar value of subcontracting
activity.
[FR Doc. 95-30995 Filed 12-20-95; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 95-30994 Truth in Lending
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66179-66181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30994]
=======================================================================
-----------------------------------------------------------------------
FEDERAL RESERVE SYSTEM
12 CFR Part 226
[Reg. Z; Docket No. R-0908]
Truth in Lending
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Request for comments.
-----------------------------------------------------------------------
SUMMARY: The Board is soliciting comment on how the finance charge
could more accurately reflect the cost of consumer credit. In
particular, the Board is asking for the public's views on the
feasibility of treating as finance charges all costs imposed by the
creditor or payable by the consumer as an incident to the extension of
credit. The Truth in Lending Act Amendments of 1995 direct the Board to
submit a report to the Congress regarding these issues. Under present
law, costs such as interest are part of the finance charge; other
costs, including many associated with real estate-secured lending, are
excluded from the finance charge. The Board is also required to address
in its report abusive refinancing practices engaged in by creditors for
the purpose of avoiding a consumer's rescission rights.
DATES: Comments must be received on or before February 9, 1996.
ADDRESSES: Comments should refer to Docket No. R-0908, and may be
mailed to William W. Wiles, Secretary of the Board of Governors of the
Federal Reserve System, 20th Street and Constitution Avenue, NW.,
Washington, DC 20551. Comments also may be delivered to Room B-2222 of
the Eccles Building between 8:45 a.m. and 5:15 p.m. weekdays, or to the
guard station in the Eccles Building courtyard on 20th Street, NW.,
(between Constitution Avenue and C Street) at any time. Comments may be
inspected in Room MP-500 of the Martin Building between 9 a.m. and 5
p.m. weekdays, except as provided in 12 CFR 261.8 of the Board's rules
regarding the availability of information.
FOR FURTHER INFORMATION CONTACT: Jane E. Ahrens, Senior Attorney, or
Sheilah Goodman, or Kurt Schumacher, Staff Attorneys, Division of
Consumer and Community Affairs, Board of Governors of the Federal
Reserve System, at (202) 452-3667 or 452-2412. For users of
Telecommunications Devices for the Deaf, contact Dorothea Thompson, at
(202) 452-3544.
SUPPLEMENTARY INFORMATION:
I. Background
The Truth in Lending Act Amendments of 1995 (1995 Amendments Act),
Pub. L. 104-29, 109 Stat. 271, enacted into law on September 30, 1995,
direct the Board to submit a report to the Congress concerning the use
of finance charges to accurately reflect the cost of consumer credit.
The Board must consider the feasibility of including in the finance
charge all charges payable directly or indirectly by the consumer and
imposed directly or indirectly by the creditor as an incident to the
credit transaction--especially costs associated with real estate- or
home-secured lending that are currently excluded from the finance
charge under section 106 of the Truth in Lending Act. As contemplated
by the Congress, perhaps only charges payable in a comparable cash
transaction would continue to be excluded from the finance charge. The
report must also address abusive refinancing practices engaged in by a
creditor for the purpose of avoiding a consumer's rescission rights.
The Board will submit its report to the Congress in early spring 1996,
based on the comments of interested parties and on its own analysis.
[[Page 66180]]
II. Finance Charges
Definition
The Truth in Lending Act (15 U.S.C. 1601 et seq.) contains rules
governing the disclosure of finance charges (Section 106). The act is
implemented by the Board's Regulation Z (12 CFR part 226). Rules on
finance charges are contained in Regulation Z Sec. 226.4 and
accompanying official staff interpretations. The finance charge is
defined as the cost of consumer credit expressed as a dollar amount. It
includes any charge payable directly or indirectly by the consumer and
imposed directly or indirectly by the creditor as an incident to or a
condition of the extension of credit. The term ``imposed'' is
interpreted broadly, to include any cost charged by the creditor
(unless otherwise excluded), including charges for optional services
paid by the consumer. Examples of a finance charge include interest,
points, and service or transaction fees.
The act excludes certain costs from the finance charge, such as
charges payable in a comparable cash transaction and fees paid to
third-party closing agents (unless the creditor requires the services
provided or retains the fee). Many costs associated with loans secured
by real estate or a principal dwelling are specifically excluded;
examples are fees for appraisals, document preparation, title
insurance, and pest inspections prior to loan closing. The regulation
also excludes charges such as application fees (charged to all
applicants), late payment fees, and most taxes.
Still other costs that are generally included in the finance charge
may nevertheless be excluded. For example, the act provides that credit
report fees are finance charges, but provides an exception for credit
report fees associated with real estate- or home-secured loans. The act
also excludes optional credit life insurance premiums and fees to
record a security interest if the cost is disclosed to the consumer and
meets other conditions.
Annual percentage rate
In addition to requiring disclosure of finance charges as a dollar
amount, the act and regulation require creditors to disclose the cost
of consumer credit as an annual percentage rate (APR). Creditors must
disclose an APR for all types of consumer credit--installment loans
(closed-end credit) and credit card accounts or home equity lines of
credit (open-end plans). The APR for closed-end credit and open-end
plans reflect finance charges, but the distinct nature of these
products calls for differences in how the APR is calculated.
The APR for closed-end credit is based on the amounts borrowed by
the consumer in relation to the amount and timing of payments to the
creditor. It factors in interest and all other finance charges. Costs
such as recording fees or title insurance fees may be disclosed, but
are not a part of the finance charge and thus, are excluded from the
APR calculation.
Under open-end plans such as a home equity line of credit, the
creditor typically sets the maximum amount that can be borrowed at any
time. The amount that will actually be borrowed by the consumer,
however, is typically unknown when the credit plan is established. The
APR stated in advertisements and account-opening disclosures reflects
only the rate of interest that will be applied to any outstanding
balance the consumer may have in the future. Additional costs--whether
finance or other charges--are separately identified.
Consumers with outstanding balances receive an APR on periodic
statements. That APR is based on the outstanding balance and certain
finance charges imposed during the cycle. Some finance charges, such as
points charged in connection with establishing a home equity plan or
other fees to open or renew plans, would skew the APR for the billing
cycle in which they are imposed. These types of finance charges are
disclosed on periodic statements but are not figured in the APR.
Request for Comment
The Board requests comments on how the definition of the finance
charge could be modified, if at all, to reflect the cost of consumer
credit more accurately. The Congress directs the Board to make
recommendations on any necessary statutory and regulatory changes.
(1995 Amendments, Section 2(f).) The Board believes the scope of the
study is limited to possible modifications to the definition of the
finance charge.
The 1995 Amendments contain, for the most part, provisions
affecting closed-end credit that is real estate- or home-secured. The
Board believes that the scope of the report is intended to cover the
treatment of costs as finance charges for all types of consumer credit,
although a focus of the study will be on those fees associated with
real estate lending that are currently excluded from the finance
charge. For example, many costs associated with entering into home-
secured loans are the same whether the credit is an installment loan or
a line of credit. Similarly, certain application fees are excluded from
the finance charge for all types of credit transactions, not just those
affecting installment loans.
Comment is requested on the feasibility of including in the finance
charge all charges payable directly or indirectly by the consumer and
imposed directly or indirectly by the creditor as an incident to the
credit transaction (other than costs imposed in comparable cash
transactions), particularly costs associated with real estate- or home-
secured credit that are currently excluded from the finance charge. For
example, mortgage brokers fees are sometimes, but not always, a finance
charge under present law: A new statutory provision categorizes all
brokers fees paid by the consumer to the broker (or to the creditor for
delivery to the broker) as finance charges, and will go into effect
when the Board issues a final rule in 1996.
In assessing the feasibility of this approach, the Board must
consider the implications of including charges imposed by third
parties--settlement agents and others--that may not be within the
creditor's knowledge or control. Comment is requested on compliance
issues that would arise if the definition of the finance charge were
expanded to include charges by third parties.
Treating all costs as a finance charge would, of course, simplify
creditor compliance with the TILA and Regulation Z; it would reduce the
potential for disclosure errors. The Board believes the study is, in
part, a reaction to the spate of class action lawsuits that followed
the court decision of Rodash v. AIB Mortgage Company. (16 F.3d 1142
(11th Cir. 1994)). In Rodash, the court found, among other TILA
violations, that the creditor improperly excluded several fees from the
finance charge calculation--totalling about $225. The court awarded
civil money damages and allowed the consumer to rescind a $100,000
loan.
Including all costs in the finance charge, however, would also
increase the APR disclosed for closed-end credit transactions--
dramatically, in some cases. For example, the APR for home-secured
loans would reflect closing costs such as appraisal fees, title
insurance and the like. Including premiums for optional credit life
insurance or for property insurance in the finance charge could also
have a significant impact on the APR. The resulting APR for installment
loans may seem distorted, particularly in relation to the APR disclosed
for a comparable open-end product. For example, disclosures for a home-
secured open-
[[Page 66181]]
end plan would include closing costs and insurance premiums as finance
charges, but those fees would not be included in the APR stated in
advertisements or account-opening disclosures, unless the current rules
on calculating the APR are changed.
III. Abusive Refinancing Practices
The act and regulation allow consumers to cancel (or rescind)
certain credit transactions secured by the consumer's principal
dwelling. For example, the right of rescission applies if a consumer's
principal dwelling is used to secure a loan financing home improvements
or a child's education. Other loans secured by a consumer's principal
dwelling are not rescindable, such as a loan for a business purpose.
A consumer's right to rescind a refinanced loan depends on both the
creditor and amount of money involved. If the creditor refinancing the
loan is the same creditor that initially extended the credit, consumers
may rescind the refinancing only to the extent new monies are advanced.
For example, if a consumer's principal dwelling secures a loan with a
creditor and the consumer seeks to refinance an outstanding balance of
$100,000 with the same creditor, the transaction is not rescindable. If
the consumer obtains $25,000 in an additional advance, the refinancing
could be rescinded up to the new advance of $25,000. If the consumer
refinances the loan with a new creditor instead, the entire transaction
is rescindable, whether or not new monies are advanced.
The Board's report must include recommendations, if any, for
statutory or regulatory changes necessary to address abusive
refinancing practices engaged in by a creditor for the purpose of
avoiding a consumer's rescission rights. Comment is requested on the
issue.
IV. Form of Comment Letters
Comment letters should refer to Docket No. R-0908, and, when
possible, should use a standard courier typeface with a type size of 10
or 12 characters per inch. This will enable the Board to convert the
text to machine-readable form through electronic scanning, and will
facilitate automated retrieval of comments for review. Also, if
accompanied by an original document in paper form, comments may be
submitted on 3\1/2\ inch or 5\1/4\ inch computer diskettes in any IBM-
compatible DOS-based format.
By order of the Board of Governors of the Federal Reserve
System, December 15, 1995.
William W. Wiles,
Secretary of the Board.
[FR Doc. 95-30994 Filed 12-20-95; 8:45 am]
BILLING CODE 6210-01-P
Complete official Federal Register PDF
FR Doc. 95-30988 South Atlantic Fishery Management Council; Public Hearings
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66247-66249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30988]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 642 and 659
[I.D. 120695B]
South Atlantic Fishery Management Council; Public Hearings
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Public hearings.
-----------------------------------------------------------------------
SUMMARY: The South Atlantic Fishery Management Council (Council) will
hold 13 public hearings on Draft Amendment 8 to the Fishery Management
Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and
South Atlantic (FMP). In conjunction with these hearings, the Council
will also hold seven public hearings to solicit comments on management
measures for Draft Amendment 2 to the Fishery Management Plan for the
Shrimp Fishery of the South Atlantic Region (FMP). Both Draft Amendment
8 and
[[Page 66248]]
Draft Amendment 2 include Supplemental Environmental Impact Statements
(SEISs).
DATES: Written comments will be accepted until 5 p.m., January 19,
1996. The hearings will be held from January 1 to January 5, 1996, and
from January 8 to January 12, 1996. See SUPPLEMENTARY INFORMATION for
specific dates and times.
ADDRESSES: Copies of the draft amendments are available from Susan
Buchanan, Public Information Officer, at (803) 571-4366. Written
comments may be faxed or sent to Bob Mahood, Executive Director, South
Atlantic Fishery Management Council, One Southpark Circle, Suite 306,
Charleston, SC 29407. Fax: 813-225-7015. The draft amendments will be
available to the public at the hearings.
The hearings for draft Amendment 8 (Coastal Pelagics) will be held
in Florida, Georgia, South Carolina, North Carolina, Virginia,
Maryland, New Jersey, and New York. The hearings for draft Amendment 2
(Shrimp) will be held in South Carolina, Florida, Georgia, and North
Carolina. See SUPPLEMENTARY INFORMATION for locations of the hearings
and special accommodations.
FOR FURTHER INFORMATION CONTACT: Susan Buchanan, 803-571-4366.
SUPPLEMENTARY INFORMATION: The hearings are scheduled to begin at 7
p.m. and will end when all business is completed. The dates and
locations are scheduled as follows:
1. Tuesday, January 2, 1996, (Coastal Pelagics) Ft. Pierce--Holiday
Inn, 7151 Okeechobbe Road, Ft. Pierce, FL; telephone: (407) 464-5000;
2. Tuesday, January 2, 1996, (Coastal Pelagics & Shrimp) Murrell's
Inlet--Murrell's Inlet Community Center, 4450 Murrell's Inlet Road,
Murrell's Inlet, SC; telephone: (803) 651-7373;
3. Wednesday, January 3, 1996, (Coastal Pelagics & Shrimp)
Jacksonville--Sea Turtle Days Inn, 10 Ocean Blvd., Atlantic Beach, FL;
telephone: (904) 249-7402;
4. Wednesday, January 3, 1996, (Coastal Pelagics & Shrimp)
Wilmington--Holiday Inn, 1706 N. Lumina Avenue, Wrightsville Beach, NC;
telephone: (910) 256-2231;
5. Thursday, January 4, 1996, (Coastal Pelagics & Shrimp)
Brunswick--Comfort Inn--I95, 5308 New Jesup Highway,
Brunswick, GA; telephone: (912) 264-6540;
6. Thursday, January 4, 1996, (Coastal Pelagics & Shrimp) Morehead
City--Carteret Community College, 3505 Arendell Street, Morehead City,
NC; telephone: (919) 247-3094;
7. Friday, January 5, 1996, (Coastal Pelagics & Shrimp) Savannah--
Holiday Inn-Mid-Town, 7100 Abercorn Street,
Savannah, GA; telephone: (912) 352-7100;
8. Monday, January 8, 1996, (Coastal Pelagics & Shrimp)
Charleston--Town & Country Inn, 2008 Savannah Highway, Charleston, SC;
telephone: (803) 571-1000;
9. Monday, January 8, 1996, (Coastal Pelagics) Ronkonkoma--Holiday
Inn, 3845 Veterans Memorial Highway, Ronkonkoma, NY; telephone: (516)
585-9500;
10. Tuesday, January 9, 1996, (Coastal Pelagics) Tom's River--
Holiday Inn, 290 Route 37 East, Tom's River, NJ; telephone: (908) 244-
4000;
11. Wednesday, January 10, 1996, (Coastal Pelagics) Salisbury--
Holiday Inn, 2625 N. Salisbury Blvd., Salisbury, MD; telephone: (410)
742-7194;
12. Thursday, January 11, 1996, (Coastal Pelagics) Norfolk--Quality
Inn Lake Wright, 6280 Northampton Blvd, Norfolk, VA; telephone: (804)
461-6251;
13. Friday, January 12, 1996, (Coastal Pelagics) Manteo--North
Carolina Aquarium, Airport Road, Manteo, NC; telephone: (919) 473-3494;
Draft Amendment 8 to the Coastal Migratory Pelagic FMP
The South Atlantic, Gulf of Mexico and Mid-Atlantic Fishery
Management Councils will hold public hearings on draft Amendment 8 to
the FMP and the draft SEIS. Amendment 8 proposes management measures
for the fisheries for king and Spanish mackerel, cobia, and dolphin
(fish). Amendment 8 proposes measures that (1) apply only to the South
Atlantic and Mid-Atlantic Council's jurisdiction, (2) apply only to the
Gulf Council's jurisdiction, or (3) apply to the three Councils'
jurisdictions.
Proposed actions that would affect only the stocks and area under
the jurisdiction of the South Atlantic and Mid-Atlantic Council are as
follows: Harvest Spanish mackerel only with hook and line, run-around
nets and stab nets (nets shall not exceed 600 yd (549 m) in length),
and along Florida's east coast nets are limited to 1 hour soak time;
harvest king mackerel with hook and line only; allow the harvest of
other directed coastal pelagics with surface longline, hook and line
including manual, electric, or hydraulic rod and reels, and bandit gear
only; allow the use of cast nets and other nets with mesh sizes no
larger than 2 1/2-inch (6.35 cm) stretch mesh and no longer than 50 yd
(46 m) for the purpose of catching bait; allow the introduction of
experimental gear; provide that non-conforming gear be limited to the
bag limit for species with a bag limit; allow the transfer at sea of
Spanish mackerel between permitted vessels; establish a 5-year
moratorium beginning on October 16, 1995 on the issuance of commercial
vessel permits with a king mackerel endorsement; provide for the
transfer of vessel permits to other vessels; require that anyone
applying for a commercial vessel permit demonstrate that 25 percent of
annual income or $5,000 is from commercial fishing; require that as a
condition for a Federal commercial or charter vessel permit, the
applicant comply with the more restrictive of state or Federal rules
when fishing in state waters; extend the range of cobia management
through New York; establish the following commercial trip limits for
Atlantic king mackerel of 3,500 lb (1.6 mt) for Volusia/Flagler County,
FL to the New York/Connecticut border from April 1 - March 31, a 3,500
lb (1.6 mt) limit for Volusia/Flagler to Brevard/Volusia, FL from April
1 to October 31, and a 50-fish limit for Brevard/Volusia to Dade/
Monroe, FL from April 1 to October 31.
Amendment 8 also includes the following measures that apply to the
three Councils' jurisdictions: Require commercial dealer permits to buy
and sell coastal pelagic fish managed under the FMP and require that
dealers keep and make available records of purchase by vessel;
recreational bag and commercial trip limit alternatives for cobia and
dolphin (fish); retention of king mackerel damaged by barracuda bites
by vessels under commercial trip limits; an alternative trip limit for
Atlantic group king mackerel for Monroe County, FL of 125 fish from
April 1 to October 31; changes to procedures used to set total
allowable catch; and changes to definitions of overfishing and optimum
yield.
Proposed measures in Amendment 8 applying only to the area and
stocks under the jurisdiction of the Gulf of Mexico Council were
published in the Federal Register on December 5, 1995.
Draft Amendment 2 to the Shrimp FMP
At its meeting of August 21-25, 1995, the Council approved draft
Amendment 2 to the Shrimp FMP for public hearing. At its October 23-27
meeting, at the request of the Director, Southeast Region, NMFS
(Regional Director), the Council approved additional options concerning
a bycatch reduction device (BRD) certification protocol for inclusion
in Amendment 2.
The Council is holding public hearings to solicit views on certain
management measures in the draft amendment that are intended to reduce
[[Page 66249]]
bycatch in South Atlantic penaeid shrimp fisheries included in the
amendment.
Draft Amendment 2 would also modify the management unit to include
the populations of brown and pink shrimp occurring along the U.S.
Atlantic coast from the east coast of Florida, including the Atlantic
side of the Florida Keys, to the North Carolina/Virginia border. This
amendment includes measures to reduce bycatch only in the penaeid
shrimp fishery.
Shrimp trawls have a significant bycatch of non-target finfish and
invertebrates, most of which are discarded dead. This may reduce
ecosystem diversity, adversely impact other fauna, and significantly
reduce yield in other fisheries directed at these discarded species.
The Council is proposing regulations to address a mandate established
by the Atlantic States Marine Fishery Commission to minimize the impact
of bycatch on Spanish mackerel and weakfish resources.
Also, the South Atlantic states, North Carolina, South Carolina,
Georgia, and Florida are directed under the interjurisdictional
weakfish management plan to implement management measures that will
reduce bycatch of weakfish in shrimp trawls by 50 percent for the 1996
shrimp season. The Council, in order to create compatible regulations
with the South Atlantic states, is addressing bycatch in Federal waters
to ensure effective reduction of weakfish bycatch throughout the range
of the species.
Management Measures under Consideration
The following management measures are under consideration by the
Council for inclusion in Amendment 2 to the Shrimp FMP:
1. Add brown and pink shrimp to the management unit,
2. Define overfishing for brown and pink shrimp,
3. Define optimum yield for the pink and brown shrimp fisheries,
4. Require the use of certified BRDs in all penaeid shrimp trawls
in the South Atlantic Exclusive Economic Zone (EEZ). All shrimp nets
(any net with mesh less than 2 1/2 inches (6.35 cm) stretch mesh) and
all nets greater than 15 ft (4.6 m) in footrope length (or compatible
with Turtle Excluder Device requirements for try nets) that are used as
try (test) nets would be required to use a certified BRD.
A. Upon implementation of Amendment 2, BRDs that have passed the
operational testing phase of the NMFS cooperative bycatch research
program (fish eyes, extended funnels and large mesh) are de facto
certified for use in the EEZ.
B. Other BRDs will subsequently be certified according to
procedures and criteria specified in item 5.
5. Establish a BRD certification process and specify certification
criteria for new or modified BRDs. The Council is specifically
requesting input from industry members concerning protocol options for
future BRD certification of new or modified BRDs:
A. The following are options for BRD certification protocol being
considered by the Council:
Option 1: The Council makes final recommendations for certification
to the NMFS Regional Director;
Option 2: The Regional Director makes the decision based on direct
application to NMFS; and
Option 3: BRDs developed, tested and approved by state agencies,
meeting the criteria specified in the amendment, may be used in the EEZ
in lieu of BRDs certified by NMFS.
Three geographical sub-options are identified for Option 3 to
specify where state-approved BRDs would be allowed for use in the EEZ:
i: Adjacent to the state in which the BRD was approved,
ii: Throughout the EEZ in the South Atlantic region, or
iii: In the EEZ by vessels registered in the state where BRDs have
been approved.
B. The Amendment will also establish certification criteria for new
or modified BRDs. New or modified BRDs must be certified or approved by
NMFS for use in the South Atlantic penaeid shrimp fishery based on the
following criteria:
i. The BRD must reduce the bycatch component of fishing mortality
for Spanish mackerel and weakfish by 50 percent, and
ii. The shrimp loss rate (by weight) must be acceptable to
fishermen.
The Council intends to finalize both Amendments at its meeting in
St. Augustine, FL, from February 12-16, 1996. The public will have an
opportunity to comment at the full Council session before the Council
takes final action to adopt the amendment's management measures. Once
finalized, the amendment will be submitted to NMFS for review, approval
and implementation. NMFS will provide a 60-day public comment period on
the amendment and a 45-day public comment period on the proposed
implementing rule during its 110-day review period.
Special Accommodations
These hearings are physically accessible to people with
disabilities. Requests for sign language interpretation or other
auxiliary aids should be directed to the Council office (see ADDRESSES)
by December 27, 1995.
Authority: 16 U.S.C. 1801 et seq.
Dated: December 15, 1995.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 95-30988 Filed 12-20-95; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 95-30971 Fiduciary Activities of National Banks; Rules of Practice and Procedure
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66163-66179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30971]
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DEPARTMENT OF THE TREASURY
12 CFR Parts 9 and 19
[Docket No. 95-32]
RIN 1557-AB12
Fiduciary Activities of National Banks; Rules of Practice and
Procedure
AGENCY: Office of the Comptroller of the Currency, Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Office of the Comptroller of the Currency (OCC) proposes
to revise its rules that govern the fiduciary activities of national
banks. The OCC also proposes to relocate provisions concerning
disciplinary sanctions imposed by clearing agencies to its rules of
practice and procedure. This proposal is another component of the OCC's
Regulation Review Program, which is intended to update and streamline
OCC regulations and to reduce unnecessary regulatory costs and other
burdens.
DATES: Comments must be received by February 20, 1996.
ADDRESSES: Comments should be directed to: Communications Division,
Office of the Comptroller of the Currency, 250 E Street, SW,
Washington, DC 20219, Attention: Docket No. 95-32. Comments will be
available for public inspection and photocopying at the same location.
In addition, comments may be sent by facsimile transmission to FAX
number (202) 874-5274 or by electronic mail to
[email protected]
FOR FURTHER INFORMATION CONTACT: Andrew T. Gutierrez, Attorney,
Legislative and Regulatory Activities Division, (202) 874-5090; Donald
N. Lamson, Assistant Director, Securities and Corporate Practices
Division, (202) 874-5210; Lisa Lintecum, Director, Fiduciary
Activities, (202) 874-5419; Dean Miller, Special Advisor, Fiduciary
Activities, (202) 874-4852; Aida M. Plaza, Director for Compliance,
Multinational Banking, (202) 874-4610.
SUPPLEMENTARY INFORMATION:
Background
The OCC proposes to revise 12 CFR part 9, which governs the
fiduciary activities of national banks, as a component of its
Regulation Review Program. One goal of the Regulation Review Program is
to review all of the OCC's rules with a view toward eliminating
provisions that do not contribute significantly to maintaining the
safety and soundness of national banks or to accomplishing the OCC's
other statutory responsibilities, including the oversight of national
banks' fiduciary activities. Another goal of the Program is to improve
clarity of the OCC's regulations.
This rulemaking is the OCC's first comprehensive revision of the
rule since 1963.\1\ Much about national banks' fiduciary business has
changed since that time, including the nature and scope of the
fiduciary services that banks offer and the structures and operational
methods that banks use to deliver those services. The OCC's particular
goal in revising part 9 is to accommodate those changes by lifting
unnecessary regulatory burden and facilitating the continued
development of national banks' fiduciary business consistent with safe
and sound banking practices and national banks' fiduciary obligations.
Three principal themes have emerged from the OCC's review of part 9.
\1\ National banks have been authorized to exercise fiduciary
powers since 1913. In 1962, the responsibility for the oversight of
their fiduciary activities was transferred from the Board of
Governors of the Federal Reserve System to the OCC. See 12 U.S.C.
92a. Following the transfer of oversight responsibilities, the OCC
promulgated 12 CFR part 9 in 1962 (27 FR 9764), and revised it soon
thereafter in 1963 (28 FR 3309).
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First, bank organizational structures, particularly with respect to
the geographic structure of banking organizations, have changed
significantly since Congress created the basic framework for national
banks' fiduciary operations. These changes strongly suggest that part 9
should be adjusted so that its requirements are more workable for both
large, multistate fiduciary banking organizations and small banks that
conduct fiduciary activities primarily on a local basis.
Second, national banks' fiduciary activities, in many respects, are
subject to state law. In some cases, however, the OCC has the
flexibility either to prescribe a uniform Federal standard or to direct
national banks to follow state law.
Third, over the years, part 9 has been applied to a wide variety of
investment advisory activities and related services, not all of which
involve the bank's exercise of investment discretion. In some cases,
banks engaged in these activities are subject to different standards
than other types of entities that conduct the same type of business,
raising the question of whether the OCC should narrow the range of
investment advisory activities to which part 9 applies.
These three themes form the basis for requests for comment on
specific provisions and issues described in detail in the remainder of
this preamble discussion.
More generally, the proposal revises part 9 in its entirety. The
proposal updates, clarifies, and streamlines part 9, incorporates
significant interpretive positions, and eliminates unnecessary
regulatory burden wherever possible to promote more efficient operation
and supervision of national banks' fiduciary activities. The proposal
adds headings for ease of reference, but, for the most part, retains
the numbering system used in the current regulation. Commenters are
invited to address all aspects of the proposal, including recommending
further improvements to its organization, structure, and content.
Section-by-Section Description of the Proposal
Authority, Purpose, and Scope (Proposed Sec. 9.1)
The proposal adds a new provision that explicitly sets forth the
statutory authority for, and the purpose and scope of, part 9. In
addition to standards found in part 9, the OCC provides guidance
(including policies, procedures, precedents, circulars, and bulletins)
regarding the fiduciary activities of national banks in the
``Comptroller's Handbook for Fiduciary Activities.'' The OCC currently
is revising the guidance contained in the ``Comptroller's Handbook for
Fiduciary Activities.'' The OCC anticipates that the revised fiduciary
guidance will consist of a
[[Page 66164]]
series of booklets in a comprehensive ``Comptroller's Handbook,'' which
will replace the ``Comptroller's Handbook for Fiduciary Activities''
and other OCC guidance currently found in separate publications.
Definitions (Proposed Sec. 9.2)
The proposal moves the definitions currently found at Sec. 9.1 to
proposed Sec. 9.2. Some definitions are removed, and others are added.
Significant changes are noted below.
Affiliate (Proposed Sec. 9.2(a))
The proposal adds a definition of ``affiliate'' to part 9. This
definition cross-references the definition in the Federal Reserve Act
at 12 U.S.C. 221a(b), which is consistent with the way the OCC defines
the term ``affiliate'' in a number of its other regulations.
Applicable Law (Proposed Sec. 9.2(b))
The current regulation uses the term ``local law,'' as defined at
Sec. 9.1(g), to refer to the laws of the state or other jurisdiction
governing a fiduciary relationship. The proposal replaces ``local law''
with ``applicable law'' in order to streamline some of the operative
provisions of part 9 and to make clear that the bodies of authority
that govern a national bank's fiduciary relationships include Federal
law (including regulations), state law governing a national bank's
fiduciary relationships (that is, fiduciary duties and
responsibilities) the terms of the instrument governing a fiduciary
relationship, and any court order pertaining to the relationship. The
Federal law relevant to a national bank's fiduciary activities
includes, for example, provisions of the Federal banking laws (12
U.S.C. 1 et seq.), the Employee Retirement Income Security Act of 1974
(29 U.S.C. 1001 et seq.), the Securities Act of 1933 (15 U.S.C. 77a et
seq.), the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.), the
Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), the
Investment Advisers Act of 1940 (15 U.S.C. 80b-1 et seq.), the Trust
Indenture Act of 1939 (15 U.S.C. 77aaa et seq.), the Internal Revenue
Code of 1986 (26 U.S.C. 1 et seq.), and the rules issued pursuant to
those acts. The OCC does not intend the term ``applicable law'' to
incorporate any state law or other body of authority that would not
otherwise apply to a national bank's fiduciary relationships. The OCC
invites comment on the adequacy of this definition.
Fiduciary Capacity (Proposed Sec. 9.2(e))
Under the current regulation, the term ``fiduciary,'' defined at
Sec. 9.1(b), includes ``a bank undertaking to act alone or jointly with
others primarily for the benefit of another in all matters connected
with its undertaking'' and goes on to list the ``traditional''
fiduciary capacities enumerated by 12 U.S.C. 92a: Trustee, executor,
administrator, registrar of stocks and bonds, guardian of estates,
assignee, receiver, and committee of estates of lunatics. The proposed
definition of ``fiduciary capacity'' retains the current regulation's
list of traditional fiduciary capacities with minor modification. For
example, the phrase ``committee of estates of lunatics'' is removed
because it is outdated and because the definition of the term
``guardian'' is broad enough to encompass that capacity. The proposed
definition also clarifies that acting as registrar of stocks and bonds
includes acting as transfer agent.
The current regulation's definition of ``fiduciary'' also includes
fiduciary capacities that are not listed in the fiduciary powers
statute. These capacities include ``managing agent'' and, as a catch-
all category, ``any other similar capacity.''
The proposal attempts to establish a clearer and more objective
boundary for the coverage of part 9 while retaining the traditional
concept that acting on another's behalf is at the heart of serving in a
fiduciary capacity. Under the proposal, the term ``fiduciary capacity''
includes, in addition to the statutory fiduciary capacities, ``any
capacity involving investment discretion on behalf of another'' and
``any other similar capacity that the OCC authorizes pursuant to 12
U.S.C. 92a.'' 2 The proposal uses investment discretion as the
factor that distinguishes fiduciary from non-fiduciary investment
advisory activities. Thus, under the proposal, part 9 applies to (and,
accordingly, requires a national bank to obtain fiduciary powers for)
any investment advisory activity in which the bank manages the assets
of another. Conversely, a national bank is not subject to part 9 with
respect to an activity in which the bank does not have investment
discretion, unless, of course, the bank acts in one of the
``traditional'' fiduciary capacities. For example, part 9 does not
govern a directed custodian account (absent a ``traditional'' fiduciary
capacity) because the customer, and not the bank, has investment
discretion, although the bank may provide advice about investments
appropriate to the customer's objectives. The proposed investment
discretion test affects only those activities in which the bank does
not act in one of the enumerated ``traditional'' fiduciary capacities.
Part 9 continues to apply to activities in which the bank acts in a
``traditional'' fiduciary capacity regardless of whether the bank has
investment discretion, e.g., self-directed IRA accounts for which the
bank is a named trustee.
\2\ The term ``fiduciary capacity'' under the proposal also
includes acting as a custodian under a uniform gifts to minors act,
because a custodian under a uniform gifts to minors act is a
fiduciary under current part 9.
---------------------------------------------------------------------------
As an alternative to using investment discretion as the dividing
line between fiduciary and non-fiduciary investment advisory
activities, the OCC could adopt an approach that relies on state law.
Under a state law approach, for example, part 9 would apply to a
national bank's investment advisory activity if that activity, when
engaged in by competing state fiduciaries, requires state authorization
and is regulated as a fiduciary activity under state law. Thus, the
applicability of part 9 to a national bank's investment advisory
activities could differ among states. The OCC invites comment on this
and other alternative approaches to defining which investment advisory
activities to regulate under part 9.
Adopting an approach that excludes some types of investment
advisory activities from part 9's coverage raises the question of how
to oversee these ``non-fiduciary'' investment advisory activities. Some
of these activities already are subject to the Interagency Statement on
Retail Sales of Nondeposit Investment Products (February 14,
1994),3 the anti-fraud provisions of the Securities Exchange Act
of 1934, and the recordkeeping and confirmation requirements for
brokerage customers under the OCC's rules at 12 CFR part 12. In
addition, a national bank must conduct its investment advisory
activities (as with all its activities) in a manner consistent with
safe and sound banking practices. Furthermore, the national bank must
adhere to any conditions imposed by the OCC in writing in connection
with approval of an application or request. The OCC invites comment on
whether these existing regulatory safeguards are adequate to regulate
non-fiduciary investment advisory activities. If the existing
safeguards are not adequate, the OCC invites comment on what additional
safeguards are appropriate.
\3\ The four Federal banking agencies have recently issued a
clarification of the Interagency Statement. See ``Joint
Interpretation of the Interagency Statement on Retail Sales of
Nondeposit Investment Products (September 12, 1995).
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For example, even if the OCC adopts the investment discretion
approach, the OCC could continue to subject non-discretionary
investment advice to pertinent provisions of part 9 (e.g., those
[[Page 66165]]
governing self-dealing and conflicts of interest). Alternatively, the
OCC could use provisions of the Investment Advisers Act of 1940
(Advisers Act) 4 as a point of reference. Under the Advisers Act,
as implemented by the Securities and Exchange Commission (SEC),5
an investment adviser must, among other things: (1) Provide clients and
prospective clients with a written disclosure statement about the
adviser's business practices and educational and business background;
(2) comply with specific contractual requirements in their dealings
with clients, including a prohibition against assigning an advisory
contract without client consent and restrictions on performance fee
arrangements; (3) comply with prohibitions against misstatements or
misleading omissions of material facts and fraudulent acts or
practices; and (4) comply with anti-fraud provisions dealing with
advertising, solicitations, and custody or possession of client funds.
In addition, the Supreme Court has held that a registered investment
adviser owes its clients an affirmative duty of good faith and full and
fair disclosure of all material facts, especially where the adviser's
interests may conflict with those of its clients.6
\4\ 15 U.S.C. 80b-1-80b-21. Under the Advisers Act, investment
advisers generally must register with the Securities and Exchange
Commission if, for compensation, they engage in the business of
advising others, either directly or through certain types of
publications or writings, as to the value of securities or the
advisability of investing in, purchasing, or selling securities.
Banks and bank holding companies are, for the most part, exempt from
the requirements of the Advisers Act.
\5\ The SEC's rules governing investment advisers are found at
17 CFR part 275.
\6\ See SEC v. Capital Gains Research Bureau, 375 U.S. 180
(1963); Transamerica Mortgage Advisors, Inc., v. Lewis, 444 U.S. 11,
17 (1979).
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Fiduciary Officers and Employees (Proposed Sec. 9.2(f))
The proposal replaces the term ``trust department,'' defined at
Sec. 9.1(j), with the term ``fiduciary officers and employees,'' to
reflect the increasing diffusion of fiduciary functions throughout a
national bank.
Investment Discretion (Proposed Sec. 9.2(j))
As mentioned earlier, the proposal defines the term ``fiduciary
capacity'' to include any capacity involving investment discretion on
behalf of another. The new term ``investment discretion,'' in turn,
includes any account for which a national bank has the authority to
determine what securities or other assets to purchase or sell on behalf
of the account. The OCC considers this term to apply whether or not the
bank itself in fact exercises that discretion or delegates that
function to another.
Approval Requirements (Proposed Sec. 9.3)
Consistent with Sec. 9.2 of the current regulation, the proposal
directs a national bank seeking approval to exercise fiduciary powers
and a person seeking approval to organize a special-purpose national
bank limited to fiduciary powers, to appropriate provisions in 12 CFR
part 5 (rules, policies, and procedures for corporate activities).
Administration of Fiduciary Powers (Proposed Sec. 9.4)
The proposal relocates most of the substance of current Sec. 9.7 to
proposed Sec. 9.4, but relocates provisions in current Sec. 9.7
relating to policies and procedures, review of assets, and
recordkeeping, to other sections specifically addressing those topics
(proposed Secs. 9.5, 9.6, and 9.8, respectively). The proposal also
relocates a provision in current Sec. 9.7 relating to the need for
fiduciary counsel to proposed Sec. 9.5 (policies and procedures).
The proposal continues to place the primary responsibility for a
national bank's fiduciary activities on its directors. Under the
proposal, as under the current rule, the board may assign functions
related to the exercise of fiduciary powers to bank directors,
officers, employees, and committees thereof. The proposal allows a
national bank to use personnel and facilities of the bank to perform
services related to the exercise of its fiduciary powers, and to allow
any department of the bank to use fiduciary officers and employees and
facilities to perform services unrelated to the exercise of fiduciary
powers, to the extent not prohibited by applicable law. The proposal
retains the requirement that all fiduciary officers and employees must
be adequately bonded.
The proposal adds a new provision, at proposed Sec. 9.4(c), to
clarify that a national bank may enter into an agency agreement with
another entity to purchase or sell services related to the exercise of
fiduciary powers. This provision reflects the OCC position contained in
Fiduciary Precedent 9.1300 (found in the ``Comptroller's Handbook for
Fiduciary Activities'').7
7 See also 12 U.S.C. 1867 (regulation and examination of bank
service corporations); Fiduciary Precedent 9.1390 (fiduciary support
services rendered by agent); and Trust Interpretive Letter #168
(August 3, 1988) (use of an affiliate to perform trust
administrative and investment services).
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Policies and Procedures (Proposed Sec. 9.5)
Current Sec. 9.5 requires a national bank to adopt policies and
procedures with respect to brokerage placement practices but not with
respect to other areas of fiduciary practice. The proposal, on the
other hand, requires that a national bank have written policies and
procedures to ensure that its fiduciary practices comply with
applicable law. The proposal lists particular areas that a bank's
policies and procedures should address.
Several of the items on this list of required policies and
procedures stem from provisions located in other sections of the
current regulation, including methods for ensuring that fiduciary
officers and employees do not use material inside information in
connection with any decision or recommendation to purchase or sell any
security (current Sec. 9.7(d)); selection and retention of legal
counsel readily available to advise the bank and its fiduciary officers
and employees on fiduciary matters (current Sec. 9.7(c)); and
investment of funds held as fiduciary, including short-term investments
and the treatment of fiduciary funds awaiting investment or
distribution (current Sec. 9.10(a)).
Other items on the list are not based on requirements in the
current regulation, including methods for preventing self-dealing and
conflicts of interest, allocation to fiduciary accounts of any
financial incentives the bank may receive for investing fiduciary funds
in a particular investment,8 and disclosure to beneficiaries and
other interested parties of fees and expenses charged to fiduciary
accounts. The OCC believes that these new items are important to the
proper exercise of national bank fiduciary powers, and should be
addressed in a bank's policies and procedures.
8 See Fiduciary Precedent 9.3115 (acceptance of financial
benefits by bank fiduciaries).
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The OCC invites comment on whether to add any items to, or delete
any items from, the proposed list.
Review of Assets of Fiduciary Accounts (Proposed Sec. 9.6)
The proposal clarifies current Sec. 9.7(a)(2) by explicitly
requiring national banks to perform two distinct types of written asset
reviews with respect to fiduciary accounts: individual account reviews
and reviews of assets by issuer.9 Before accepting a fiduciary
account, a national bank must review the account to determine whether
it can administer the account properly. After accepting a fiduciary
account for which
[[Page 66166]]
a national bank has investment discretion, and each year thereafter,
the bank promptly must conduct an individual account review of the
account's assets to evaluate whether they are appropriate, individually
and collectively, for the account. In addition to the individual
account review, a bank must conduct an annual review of assets by
issuer to determine the investment merit of the assets (or potential
assets) in fiduciary accounts for which the bank has investment
discretion, to the extent appropriate for that asset. The OCC
anticipates that the scope of a bank's assets review will vary,
depending on the nature of the particular asset.
9 See Fiduciary Precedent 9.4102.
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To contrast the two types of review, a review of assets by issuer
determines what investments, by issuer, (e.g., common stock of
Corporation X) are potentially appropriate investments for the bank's
fiduciary accounts. In some banks, for example, the review of assets by
issuer results in a list of permissible fiduciary investments for the
bank's fiduciary accounts. The person or committee in charge of
investing for a particular fiduciary account chooses investments from
this list. An individual account review, on the other hand, determines
whether the investments chosen for that particular account are
appropriate, individually and collectively, given the objectives of the
account.
The OCC invites comment on whether these specific standards are
necessary or appropriate and, if not, what alternative approaches are
preferable. For example, commenters may wish to discuss approaches that
distinguish between large and small accounts or between large and small
institutions.
Recordkeeping (Proposed Sec. 9.8)
The proposal clarifies the recordkeeping requirements currently
found at Secs. 9.7(a)(2) and 9.8. In particular, a national bank must
document the establishment and termination of fiduciary accounts, must
maintain adequate records for fiduciary accounts, must retain records
for a specified period of time, and must make sure its fiduciary
records are distinguishable from other bank records.
Audit of Fiduciary Activities (Proposed Sec. 9.9)
The proposal retains the current Sec. 9.9 requirement that a
national bank perform suitable audits of its fiduciary activities
annually (specifically, at least once during each calendar year and not
later than 15 months after the last audit), and that the bank report
the results of the audit (including all actions taken as a result of
the audit) in the minutes of the board. The proposal removes as
redundant the requirement that the national bank ascertain compliance
with ``law, this part, and sound fiduciary principles.''
The proposal clarifies that if a bank adopts a continuous audit
system in lieu of performing annual audits, the bank may perform
discrete audits of each fiduciary activity, on an activity-by-activity
basis, at intervals appropriate for that activity. For example, a bank
may determine that it is appropriate to audit certain low-risk
fiduciary activities every 18 months. A bank that adopts a continuous
audit system must report the results of any discrete audits performed
since the last audit report (including all actions taken as a result of
the audits) in the minutes of the board of directors at least once
during each calendar year and not later than 15 months after the last
audit report.
The proposal also clarifies that a national bank's audit committee
may not include directors who are members of a fiduciary committee of
the bank.10 The proposal also modifies the current regulation's
position that active officers of the bank may not serve on the audit
committee. Under the proposal, only officers who participate
significantly in the administration of the bank's fiduciary activities
are barred from serving on the audit committee. This proposed position
provides some degree of flexibility to smaller banks, which may have a
limited number of outside directors.
10 See Fiduciary Precedent 9.2505 (a member of a
fiduciary committee may not serve on the trust audit committee).
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Finally, the proposal permits an audit committee of an affiliate of
the bank to conduct the required audit. This change allows a bank
holding company to audit the fiduciary activities of its subsidiary
national banks through a central audit committee. This approach
facilitates consolidation of functions, and the accompanying
efficiencies, within a bank holding company structure.
The OCC invites comment on these proposed changes and, in addition,
on the relationship between the audit requirement and the OCC's
fiduciary examination process (in particular, the extent to which OCC
examiners should rely on a bank's internal or external fiduciary
audits).
Fiduciary Funds Awaiting Investment or Distribution (Proposed
Sec. 9.10)
As mentioned earlier, the proposal relocates to proposed Sec. 9.5
the current regulation's requirement that a national bank adopt
policies and procedures regarding short-term investments. The proposal
retains the current regulation's general prohibition against allowing
fiduciary funds to remain uninvested and undistributed any longer than
reasonable for proper account management. The OCC invites comment on
whether reasonableness is a sufficiently clear standard and, if not, on
what standard is appropriate.
The proposal continues to allow a national bank to deposit idle
fiduciary funds (i.e., fiduciary funds awaiting investment or
distribution) in its commercial, savings, or another department,
provided that the bank secures the deposit with appropriate collateral.
Additionally, the proposal explicitly allows a national bank to use, as
collateral for self- deposits of idle fiduciary funds, assets
(including surety bonds) that qualify under state law as appropriate
security for deposits of fiduciary funds. The proposal also permits a
national bank to deposit idle fiduciary funds with affiliates.
Surety bonds as collateral. Under 12 U.S.C. 92a(d), a national bank
may deposit idle fiduciary funds with itself (e.g., in its commercial
or savings department) only if it pledges United States bonds or
``other securities'' approved by the OCC. Current Sec. 9.10(b)(3)
allows a bank to meet this requirement by pledging qualifying assets of
the bank to secure a deposit in compliance with local law.
Under the OCC's interpretation of Sec. 9.10(b)(3), a national bank
may pledge, as a qualifying asset, a surety bond as collateral for a
deposit of idle fiduciary funds if a surety bond is permissible
collateral under state law, unless the instrument governing the
fiduciary relationship prohibits the use of a surety bond. This
interpretation recognizes that a surety bond provides protection that
is functionally at least equivalent to the protection provided by other
types of assets that the OCC has approved under section 92a(d).
Moreover, this interpretation promotes Congress' policy objective of
protecting the interests of beneficiaries and ensures that national
banks are not disadvantaged in a state that permits its institutions to
use surety bonds to secure deposits of idle fiduciary funds.
The proposal explicitly incorporates this interpretation into part
9 by allowing a national bank to secure deposits of idle fiduciary
funds with assets, including surety bonds, that qualify under state law
as appropriate security for deposits of fiduciary funds. The theory
that a surety bond is comparable to other forms of security permitted
by the OCC could have a broader application, however. In particular,
the OCC invites comment on
[[Page 66167]]
whether to adopt a uniform standard allowing national banks in all
states to use surety bonds as collateral for these deposits.
Deposits with affiliates. Section 92a(d) authorizes a national bank
to pledge assets to secure self-deposits of idle fiduciary funds. Thus,
section 92a(d) accommodates a bank with a trust department and a
commercial or savings department, the bank organizational structure
prevalent when Congress enacted the statutory language in 1918.
However, the statutory language does not address other organizational
structures that have evolved since 1918. For example, some banks today
are special-purpose trust companies. These entities do not have
commercial or savings departments in which to deposit idle fiduciary
funds, but many are affiliated with banks that do. Other banks operate
as part of a large system of affiliated banks and wish, for reasons of
efficiency, to consolidate their fiduciary payment and disbursement
functions in a single bank. In these situations, a bank may want to
deposit idle fiduciary funds with an affiliated bank. However, the OCC
has previously applied 12 CFR 9.12(c) to restrict a national bank from
depositing idle fiduciary funds with an affiliated bank unless
authorized by the instrument governing the account, court order, or
state law.
Some states explicitly authorize their banks to deposit idle
fiduciary funds with affiliated banks, however. Thus, a national bank
in any of these states may deposit idle fiduciary funds in an
affiliated bank in accordance with current 12 CFR 9.12(c) (because the
deposit is authorized by state law). Additionally, however, many of
these states require that these deposits be secured with a pledge of
assets. The OCC previously took the position that neither a national
bank making a deposit of idle fiduciary funds with an affiliate, nor a
national bank accepting the deposit, can pledge assets to secure the
deposit, regardless of whether state banks can pledge in that
situation. Consequently, a national bank could not legitimately comply
with a state's pledging requirement and, thus, could not avail itself
of the state's authorization to deposit idle fiduciary funds with an
affiliate bank. The OCC believes that a prohibition on pledging assets
to secure idle fiduciary funds deposited by or with affiliates is not
legally required and may prevent a national bank from achieving
efficiencies in its fiduciary operations.
Consequently, the OCC proposes to allow a national bank to secure a
deposit of idle fiduciary funds by or with an affiliate if consistent
with applicable law. This change is consistent with a recent OCC
interpretative letter,11 and should facilitate more efficient
fiduciary operations in multi-bank holding companies.
11 Letter from Julie L. Williams, Chief Counsel (November
6, 1995).
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Investment of Fiduciary Funds (proposed Sec. 9.11)
The proposal condenses current Sec. 9.11 without changing its
substance. The proposal simply directs a national bank to invest
fiduciary funds in a manner consistent with applicable law. Applicable
law, as described earlier, includes Federal law, state law governing a
national bank's fiduciary relationships, the terms of the instrument
governing the relationships, and any court order pertaining to the
relationships.
Self-dealing and Conflicts of Interest (Proposed Sec. 9.12)
The proposal retains the substance of current Sec. 9.12, which
addresses fiduciary conflicts of interest. However, the proposal
clarifies a point concerning the general rule, found at current
Sec. 9.12(b), that a national bank may not lend, sell, or otherwise
transfer assets held in a fiduciary capacity to the bank or any of its
directors, officers, or employees, or to affiliates of the bank or any
of their directors, officers, or employees, or to individuals or
organizations with whom there exists an interest that might affect the
exercise of the best judgment of the bank. Current Sec. 9.12(b)
provides certain exceptions to this general rule, such as where local
law authorizes those loans. However, under 12 U.S.C. 92a(h), it is
unlawful for a national bank to lend to its directors, officers, or
employees any funds it holds in trust. A national bank cannot invoke
the exceptions in current Sec. 9.12(b) in contravention of section
92a(h). Thus, the proposal clarifies that despite the exceptions to the
general rule, a bank may not lend to any of its directors, officers, or
employees any funds it holds in trust, except with respect to bank's
own employee benefit plans in accordance with section 408(b)(1) of the
Employee Retirement Income Security Act of 1974 (29 U.S.C. 1108(b)(1)),
which specifically authorizes loans to participants and beneficiaries
of such plans under certain circumstances.
Custody of Fiduciary Assets (Proposed Sec. 9.13)
The proposal retains the substance of current Sec. 9.13, which
addresses custody of fiduciary assets. The proposal continues to
require joint custody or control of fiduciary assets, separation of
fiduciary assets from the assets of the bank, and separation or
identification of the assets of each fiduciary account from all other
accounts (except when assets are invested in collective investment
funds). The proposal also continues to allow a national bank to
maintain fiduciary assets off-premises.
Deposit of Securities With State Authorities (Proposed Sec. 9.14)
Under current Sec. 9.14, whenever state law requires institutions
acting as fiduciaries to deposit securities with state authorities for
the protection of trust accounts, a national bank in that state must
make a similar deposit before it can act in a fiduciary capacity.\12\
The proposal retains this general requirement.
\12\ This provision stems from the fiduciary powers statute. See
12 U.S.C. 92a(f).
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However, current Sec. 9.14 does not address how a bank should
calculate the amount of its required deposit when the bank administers
trust assets from offices located in more than one state--i.e., whether
the bank must compute the amount of deposit required by a particular
state on the basis of all of the bank's trust assets nationwide, or on
the basis of the bank's trust assets in that state. This issue will
become increasingly significant as interstate branching becomes more
common. Many states have laws requiring a state fiduciary to deposit an
amount of securities based on its total trust assets. These laws
apparently did not contemplate that state fiduciaries would expand
geographically and administer significant amounts of trust assets from
other states.
It is unnecessary to require a bank with multistate trust
operations to deposit in each state in which it administers trust
assets an amount based on its total trust assets nationwide. To do so
goes far beyond the deposit requirement's purpose of protecting trust
assets relating to a particular state, and unnecessarily burdens a bank
that conducts fiduciary operations in multiple states. Consequently,
the proposal allows a national bank to meet its deposit requirement in
each state based on the
[[Page 66168]]
amount of trust assets administered from offices located in that
state.\13\
\13\ See also Op. Chief Counsel, Office of Thrift Supervision
(December 24, 1992) (interpreting 12 U.S.C. 1464(n)(5) (the Federal
savings association equivalent of 12 U.S.C. 92a(f) with virtually
identical language) and concluding that a Federal savings
association should compute the amount of a required state deposit
based on the amount of trust assets administered from offices
located in that particular state, rather than on the basis of the
bank's total trust assets nationwide).
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Fiduciary Compensation (Proposed Sec. 9.15)
The proposal retains the substance of current Sec. 9.15, which
addresses fiduciary compensation. Under the proposal, a national bank
may charge a reasonable fee for its fiduciary services if the amount is
not set or governed by applicable law. Moreover, the proposal prohibits
an officer or an employee of a national bank from retaining any
compensation for acting as a co-fiduciary with the bank in the
administration of a fiduciary account, except with the specific
approval of its board of directors.
Receivership or Voluntary Liquidation of Bank (Proposed Sec. 9.16)
The proposal retains the substance of current Sec. 9.16, which
addresses receivership and voluntary liquidation. The proposal directs
a receiver or liquidating agent to close promptly all fiduciary
accounts to the extent practicable (in accordance with OCC instructions
and the orders of the court having jurisdiction) and to transfer all
remaining fiduciary accounts to substitute fiduciaries.
Surrender or Revocation of Fiduciary Powers (Proposed Sec. 9.17)
The proposal retains the substance of current Sec. 9.17, which
addresses surrender and revocation of fiduciary powers. The proposal
sets forth the standards and procedures that apply when a national bank
seeks to surrender its fiduciary powers. The proposal also describes
the standards that apply when the OCC seeks to revoke a bank's
fiduciary powers.
Collective Investment Funds (Proposed Sec. 9.18)
The proposal revises current Sec. 9.18, which governs the
establishment and operation of common trust funds and other collective
investment funds by national banks.\14\ The central purpose of this
proposed revision is to lift certain unnecessary regulatory burdens
currently imposed on institutions that administer collective investment
funds, while preserving appropriate protections to beneficiaries (and
other interested parties) of fiduciary accounts participating in those
funds.
\14\ Because the regulations of the Office of Thrift Supervision
incorporate Sec. 9.18, this revision also affects collective
investment funds administered by Federally-chartered savings and
loan associations. 12 CFR 550.13(b). Moreover, because common trust
funds must comply with Sec. 9.18 in order to qualify for tax-exempt
status under section 584 of the Internal Revenue Code of 1986, as
amended (26 U.S.C. 584), this revision affects state-chartered
banks, trust companies, and other financial institution fiduciaries
that administer collective investment funds.
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The OCC has not rewritten Sec. 9.18 since 1972. In 1982, the OCC
published an advance notice of proposed rulemaking requesting public
comment on Sec. 9.18 (47 FR 27833, June 25, 1982). The OCC specifically
solicited comments on several issues.\15\ Moreover, the OCC indicated
its intention to undertake a comprehensive review of its collective
investment fund regulation.
\15\ These issues included: (1) operations of guaranteed
insurance contract funds; (2) establishment of commingled agency
accounts; (3) commingling of Keogh trusts with corporate employee
benefit funds; (4) establishment of common trust funds for
individual retirement accounts; (5) advertising of common trust
funds; and (6) commingling of charitable trusts with employee
benefit trusts.
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The OCC received over 70 comments, most of which indicated that
technological advances and new customer needs rendered portions of
Sec. 9.18 obsolete or even counter-productive. In November 1984,
however, the OCC suspended its consideration of amendments to
Sec. 9.18, due to pending litigation stemming from the OCC's approval
of collective investment funds consisting of Individual Retirement
Accounts, Keogh Accounts, or other employee benefit accounts that are
exempt from taxation (collective IRA funds).\16\ The OCC determined
that it would be premature to pursue significant changes to Sec. 9.18
under the circumstances.
\16\ See, e.g., ``Decision of the Comptroller of the Currency on
the Application by Citibank, N.A., pursuant to 12 CFR 9.18(c)(5) to
Establish Common Trust Funds for the Collective Investment of
Individual Retirement Account Trusts Exempt from Taxation under
Section 408 of the Internal Revenue Code of 1954'' (Oct 31, 1982),
reprinted in 1 Comptroller of the Currency Q.J. No. 4 (1982), at 45;
and ``Decision of the Office of the Comptroller of the Currency on
the Application by Wells Fargo Bank, N.A. to Establish a Common
Trust Fund for the Collective Investment of Individual Retirement
Account Trust Assets Exempt From Taxation Under section 408(a) of
the Internal Revenue Code of 1954, as amended'' (Jan. 28, 1984)
(Wells Fargo Decision).
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In view of the disposition of the collective IRA fund
litigation,\17\ the OCC decided in 1990 to resume the rulemaking
process by publishing a proposal to amend Sec. 9.18 (55 FR 4184,
February 7, 1990) (1990 Proposal) based largely on the public comments
received in 1982.\18\ The OCC received 150 comment letters on the 1990
Proposal. In 1994, the OCC decided to revise Sec. 9.18 as part of the
comprehensive review of part 9 under its Regulation Review Program,
rather than proceed with Sec. 9.18 alone. This proposal incorporates
many of the elements of the 1990 Proposal. Readers seeking additional
background on these elements may refer to the 1990 Proposal.
\17\ See Investment Company Institute v. Clarke, 789 F.2d 175
(2d Cir. 1986), cert. denied, 479 U.S. 940 (1986); Investment
Company Institute v. Conover, 790 F.2d 925 (D.C. Cir. 1986), cert.
denied, 479 U.S. 939 (1986), Investment Company Institute v. Clarke,
No. 86-3725 (W.D.N.C. August 25, 1986, appeal withdrawn by
stipulation, Jan. 6, 1987).
\18\ The 1990 proposal included revisions that would: (1)
Eliminate the requirement for specific approval by an institution's
board of directors prior to establishing a collective investment
fund, and eliminate the requirement for national banks to file fund
plans of operation with the OCC; (2) clarify the participation in
collective investment funds by certain tax-exempt employee benefit
funds; (3) broaden the authority to establish ``closed-end''
collective investment funds, the assets of which are illiquid; (4)
eliminate the specific regulatory prohibition in Sec. 9.18(b)(5)(v)
on advertising the availability and performance of common trust
funds; (5) eliminate the fixed percentage limitation in
Secs. 9.18(b)(9)(i) and 9.18(c)(3) on the interest a single
participating account may have in a particular common trust fund;
(6) eliminate the fixed percentage limitation in Sec. 9.18(b)(9)(ii)
on the concentration of investment by a common trust fund in the
obligations of any one entity; (7) eliminate the liquidity
requirement in Sec. 9.18(b)(9)(iii) applicable to the assets of
common trust funds; (8) eliminate the limitations in
Sec. 9.18(b)(12) on fees and expenses incurred by an institution in
the administration of a collective investment fund, but require
appropriate disclosure; (9) eliminate the requirement in
Sec. 9.18(c)(2)(ii) that investments in variable-amount notes be
made on a short-term basis; (10) provide an expeditious procedure
for the review of new types of funds; and (11) codify the authority
to establish registered collective investment funds whose assets
consist solely of Individual Retirement Accounts, Keogh Accounts, or
other eligible employee benefit accounts.
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This current proposal retains the general structure of Sec. 9.18.
Paragraph (a) authorizes national banks to invest fiduciary assets in
two types of collective investment funds. Paragraph (b) sets forth the
requirements applicable to funds authorized under paragraph (a).
Paragraph (c) describes other types of collective investments available
to national bank fiduciaries. Significant changes to current Sec. 9.18
are noted below.
(a)(1) and (a)(2) Funds (Proposed Sec. 9.18(a)).
The proposal retains the substance of current Sec. 9.18(a), which
authorizes national banks to invest fiduciary assets in common trust
funds ((a)(1) funds) and funds consisting of employee benefit and other
tax-exempt trusts ((a)(2) funds). The proposal, however, relocates to
Sec. 9.18(a) the substance of current Sec. 9.18(b)(2), which provides
[[Page 66169]]
guidance on the circumstances under which a bank may place employee
benefit and other tax-exempt trust assets in either an (a)(1) or an
(a)(2) fund, and on the circumstances under which a bank may place
trusts for which the bank is not the trustee in an (a)(2) fund.\19\
\19\ Like the 1990 Proposal, this proposal eliminates from
current Sec. 9.18(b)(2) references to specific sections of the
Internal Revenue Code and to specific Internal Revenue Service
rulings to make clear that the OCC promulgates this regulation
solely on the authority of Federal banking law and not under
authority of the Internal Revenue Code.
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The proposal makes significant changes to current Sec. 9.18(b),
which sets forth the requirements for (a)(1) and (a)(2) funds. On
balance, these changes, described below, will reduce the Federal
regulatory burdens imposed on collective investment funds and enable
banks to operate collective investment funds more efficiently. The term
``collective investment fund,'' as used in Sec. 9.18, encompasses both
(a)(1) funds and (a)(2) funds.
Written Plan (Proposed Sec. 9.18(b)(1)).
Like the 1990 Proposal, this proposal eliminates as unnecessary
two requirements from current Sec. 9.18(b)(1). First, instead of
requiring the full board of directors to approve new collective
investment fund plans, the proposal allows a committee of the board to
perform this function. Second, the proposal removes the requirement
that the bank file (a)(1) and (a)(2) fund plans with the OCC.\20\
Additionally, the proposal relocates a provision on fund valuation from
current Sec. 9.18(b)(1) to proposed Sec. 9.18(b)(4), described below.
\20\ However, national banks must file written plans with the
OCC in order to establish special exemption funds (i.e., funds that
deviate from the requirements of Sec. 9.18(a) and (b)), in
accordance with proposed Sec. 9.18(c)(5).
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Fund Management (Proposed Sec. 9.18(b)(2))
The proposal provides an exception to the ``exclusive management''
requirement, found in current Sec. 9.18(b)(12), to allow prudent
delegation of responsibilities to others.\21\ This exception is
consistent with the modern prudent investor rule as set forth in the
American Law Institute's Restatement (Third) of Trusts (1992).\22\
\21\ In the past, the OCC recognized only limited exceptions to
the exclusive management requirement. See, e.g., Fiduciary Precedent
9.5320 (an affiliate may manage a bank's collective investment
fund).
\22\ See Rest. 3rd, Trusts (Prudent Investor Rule), section 171
(Duty with Respect to Delegation): ``A trustee has a duty personally
to perform the responsibilities of the trusteeship except as a
prudent person might delegate those responsibilities to others. In
deciding whether, to whom and in what manner to delegate fiduciary
authority in the administration of a trust, and thereafter in
supervising agents, the trustee is under a duty to the beneficiaries
to exercise fiduciary discretion and to act as a prudent person
would act in similar circumstances.''
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The proposal also provides an exception to the exclusive management
requirement for collective IRA funds registered under the Investment
Company Act of 1940. A bank with a collective IRA fund generally
registers that fund as an investment company under the Investment
Company Act because the SEC takes the position that IRA, Keogh, and
certain other similar trusts may not qualify for exemption from
registration. However, the exclusive management requirement of current
Sec. 9.18(b)(12) arguably conflicts with the Investment Company
Act.\23\ Currently, the OCC grants waivers of the exclusive management
requirement for collective IRA funds that register as investment
companies. The proposal obviates the need for these routine waivers.
\23\ See, e.g., Wells Fargo Decision, supra note 16, at 10.
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Proportionate Interests (Proposed Sec. 9.18(b)(3))
The proposal retains the requirement in current Sec. 9.18(b)(3)
that all participating accounts in a collective investment fund must
have a proportionate interest in all of the fund's assets. However, the
proposal eliminates the language concerning the propriety of investing
fiduciary assets in a collective investment fund. The permissibility of
investing the assets of a fiduciary account in a particular collective
investment fund is governed by proposed Sec. 9.11, which allows
investments consistent with applicable law.
Valuation (Proposed Sec. 9.18(b)(4))
The proposal consolidates existing provisions relating to valuation
of collective investment funds, including current Sec. 9.18(b)(1)
(method of valuation), current Sec. 9.18(b)(4) (frequency and date of
valuation), and current Sec. 9.18(b)(15) (valuation of short-term
investment funds). The OCC invites comment on the need to clarify
valuation issues in the regulatory text or an interpretive ruling
accompanying part 9.
The OCC also invites comment on the proposed exception to the
quarterly valuation requirement for collective investment funds that
are invested primarily in real estate or other assets that are not
readily marketable. Allowing banks to value these illiquid collective
investment funds annually rather than quarterly appears consistent with
the one-year prior notice allowance for withdrawals from these funds,
found at Sec. 9.18(b)(4).
Admission and Withdrawal of Accounts (Proposed Sec. 9.18(b)(5))
The proposal consolidates existing provisions relating to
admissions and withdrawals of accounts, including current
Sec. 9.18(b)(4) (prior request or notice), current Sec. 9.18(b)(6)
(method of distribution), and current Sec. 9.18(b)(7) (segregation of
investments).
The proposal also substantially revises the current regulation's
standard for distributions to an account withdrawing from a collective
investment fund. Current Sec. 9.18(b)(6) sets a Federal standard
requiring the bank to make distributions in cash, ratably in kind
(i.e., a proportional share in each of the assets held by the
collective investment fund), or a combination of the two. The OCC
believes that this Federal standard may not be sufficiently flexible to
address distribution problems that arise, particularly with respect to
collective investment funds that invest primarily in assets that are
not readily marketable (illiquid assets). Even with respect to these
collective investment funds that invest primarily in illiquid assets,
banks generally make distributions in cash only, either from the fund's
cash reserves or after selling some of the fund's assets within the
one-year prior notice period. However, if withdrawal requests exceed
the fund's cash reserves, and if the bank believes the market for the
fund's assets is depressed, a bank under the constraint of the one-year
time limit may have to resort to ratable in-kind distributions rather
than (1) sell fund assets at depressed prices, or (2) liquidate the
fund. With ratable in-kind distributions of certain assets, such as
readily marketable securities, a withdrawing participant may easily
convert the distribution into cash. However, that may not be the case
for ratable in-kind distributions of illiquid assets, where valuation
may be complicated and a recipient may have no practical avenue to
liquidate its proportionate share of an asset.
In response to these concerns, the proposal allows any
distributions consistent with applicable law. The OCC believes that
this approach will provide banks with sufficient flexibility to address
complex distribution problems that may arise (particularly with respect
to collective investment funds that invest primarily in illiquid
assets), while maintaining the basic
[[Page 66170]]
protections of state fiduciary law.\24\ The OCC invites comment on
whether to adopt this proposed state law-based approach instead of
retaining a Federal standard. In the event that the OCC does not adopt
the state law-based approach, the OCC also invites comment on what
Federal standard is appropriate.
\24\ Thus, for example, a bank with a collective investment fund
facing distribution problems, or beneficiaries (or interested
parties) of fiduciary accounts participating in that fund, could
seek from a court of competent jurisdiction an order authorizing an
equitable solution. Allowing a bank to make distributions in
accordance with a court order allows the bank to seek a solution
more flexible than what current OCC regulations prescribe. A court-
ordered solution also provides all interested parties with the
opportunity to present their concerns in a judicial forum, ensuring
that the distribution reflects a consideration of all relevant
interests.
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Moreover, the OCC invites comment on whether, if the OCC adopts a
state law-based standard, there is a need to retain the provision that
allows a prior notice period of up to one year for withdrawals from
funds with assets not readily marketable (proposed
Sec. 9.18(b)(5)(iii)).
Audits and Financial Reports (Proposed Sec. 9.18(b)(6))
The proposal retains the requirements in current
Sec. 9.18(b)(5)(i)-(iv) regarding collective investment fund annual
audits and financial reports. The proposal also adds a requirement that
a national bank disclose in the annual financial report fees and
expenses charged to the fund, consistent with OCC precedent.\25\
\25\ See, e.g., Fiduciary Precedent 9.5330 (requiring disclosure
of management fees).
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The proposal, however, provides an exception to this requirement
for collective IRA funds registered under the Investment Company Act.
As mentioned earlier, a bank generally registers a collective IRA fund
as an investment company under the Investment Company Act. The
requirement that the auditors are responsible only to the bank's board
of directors arguably conflicts with the Investment Company Act.\26\
Currently, the OCC grants waivers of this requirement for collective
IRA funds registered as investment companies. The proposal obviates the
need for these routine waivers.
\26\ See, e.g., Wells Fargo Decision, supra note 16, at 11-12.
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Advertising Prohibition for Common Trust Funds (Proposed
Sec. 9.18(b)(7))
The proposal retains and clarifies the current regulation's
prohibition on advertising (a)(1) funds. Current Sec. 9.18(b)(5)(v)
prohibits a national bank from advertising or publicizing (a)(1) funds
except as provided in the regulation. Current Sec. 9.18(b)(5)(iv)
allows a national bank to publicize the availability of financial
reports for (a)(1) funds in connection with the promotion of the
general fiduciary services of the bank. The OCC interprets these
provisions to allow a bank to advertise (a)(1) funds only in connection
with the advertisement of the general fiduciary services of the
bank.\27\
\27\ See, e.g., Fiduciary Precedent 9.5113.
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Self-dealing and Conflicts of Interest (Proposed Sec. 9.18(b)(8))
The proposal retains the substance of current Sec. 9.18(b)(8),
which addresses self-dealing and conflicts of interest specific to
collective investment funds. A national bank administering a collective
investment fund must comply with these provisions in addition to the
self-dealing and conflicts of interest provisions found in Sec. 9.12,
which apply to all fiduciary activities of national banks.
Mortgage Reserve Account (Proposed Sec. 9.18(b)(9))
The proposal retains the substance of current Sec. 9.18(b)(11),
which allows a bank administering a collective investment fund to
establish a mortgage reserve account for overdue interest payments on
mortgages in the fund. The OCC invites comment on the extent to which
banks use mortgage reserve accounts, and whether their experience
suggests the need for any modifications to this provision.
Fees and Expenses (Proposed Sec. 9.18(b)(10))
The proposal retains the quantitative management fee limitation,
found in current Sec. 9.18(b)(12). Under this limitation, a bank
administering a collective investment fund may charge a fund management
fee only if the total fees charged to a participating account
(including the fund management fee) does not exceed the total fees that
the bank would have charged if it had not invested assets of the
account in the fund. Moreover, the proposal retains the requirement
that the bank absorb fund establishment and reorganization expenses,
also found in current Sec. 9.18(b)(12).
The proposal, however, eliminates other provisions in Sec. 9.18(b)
that specifically permit or prohibit certain expenses, including
current Sec. 9.18(b)(5)(i) (expenses for audits performed by
independent public accountants), current Sec. 9.18(b)(5)(iv) (expenses
for printing and distributing financial reports), and current
Sec. 9.18(b)(10) (expenses incurred in servicing mortgages). Rather
than mandating the treatment of specific expenses (other than
establishment and reorganization expenses), the proposal defers to
state law, in effect, by allowing a bank to charge any reasonable
expenses incurred in operating the collective investment fund to the
extent not prohibited by applicable law. When expenses of a fund are
reasonable and permissible under state law, and are fully disclosed in
appropriate documentation,\28\ the OCC believes that it is not
necessary to micromanage the precise types of expenses charged directly
to collective investment funds.
\28\ See proposed Sec. 9.18(b)(1)(iii) (disclosure of
anticipated fees and expenses in the written plan) and proposed
Sec. 9.18(b)(6)(ii) (disclosure of fees and expenses in the annual
financial report).
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Additionally, the OCC invites comment on whether to defer to
applicable law instead of retaining the quantitative management fee
limitation.
Prohibition Against Certificates (Proposed Sec. 9.18(b)(11))
The proposal retains the substance of current Sec. 9.18(b)(13),
which prohibits a national bank administering a collective investment
fund from issuing certificates evidencing an interest in the fund.
Good Faith Mistakes (Proposed Sec. 9.18(b)(12))
The proposal retains the substance of current Sec. 9.18(b)(14),
which provides that if a bank, in good faith and in the exercise of due
care, makes a mistake in administering a collective investment fund,
the bank will not be in violation of this part if it takes prompt
action to remedy the mistake.
Elimination of Participation, Investment, and Liquidity Requirements
The proposal eliminates the 10 percent participation limitation,
the 10 percent investment limitation, and the liquidity requirement
applicable to common trust funds under current Sec. 9.18(b)(9), in
accordance with the 1990 Proposal. These Federal restrictions have at
times interfered with optimal management of common trust funds, and the
protections found in state fiduciary law adequately address the
concerns underlying these restrictions.
Other Collective Investments (Proposed Sec. 9.18(c))
In addition to (a)(1) and (a)(2) funds, current Sec. 9.18
authorizes other means by which a national bank may invest fiduciary
assets collectively. These other collective investments, described in
[[Page 66171]]
proposed Sec. 9.18(c), are not subject to the requirements of
Sec. 9.18(b).
The proposal eliminates the requirement in current
Sec. 9.18(c)(2)(ii) that investments in variable-amount notes be made
on a short-term basis, in accordance with the 1990 Proposal. The
proposal also eliminates the requirement applicable to mini-funds
(i.e., funds established for the collective investment of cash
balances) that no participating account's interest in the fund exceed
$10,000, again in accordance with the 1990 Proposal.\29\ Moreover, the
proposal expands the total amount of assets permitted in a mini-fund to
$1,000,000.
\29\ Under current Sec. 9.18(c)(3), a mini-fund may not exceed
$100,000. Limiting participation in this fund to $10,000 is
equivalent to limiting participation to 10 percent. Thus,
eliminating the $10,000 limitation is consistent with eliminating
the 10 percent participation limitation found in current
Sec. 9.18(b)(9).
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Finally, the proposal provides an expeditious procedure for the
review of new types of funds, in accordance with the 1990 Proposal. The
purpose of this new procedure is to encourage innovation by improving
the approval procedures for banks that wish to establish new types of
funds.
Transfer Agents (Proposed Sec. 9.20)
The proposal incorporates by means of cross-reference the SEC's
rules prescribing procedures for registration of transfer agents for
which the SEC is the appropriate regulatory agency (17 CFR 240.17Ac2-
1). Although section 17A(d)(1) of the Securities Exchange Act of 1934
(15 U.S.C. 78q-1(d)(1)) generally subjects all transfer agents to SEC
rules, section 17A(c) (15 U.S.C. 78q-1(c)) provides that transfer
agents shall register with their appropriate regulatory agencies.
Current 12 CFR 9.20 sets forth procedural requirements for national
banks that register as transfer agents that are virtually identical to
the SEC's registration rules. Thus, the OCC does not need to maintain
separate procedures, and the proposal simply incorporates the SEC's
rule instead.
The proposal also clarifies that a national bank transfer agent
must comply with rules adopted by the SEC pursuant to section 17A of
the Securities Exchange Act (15 U.S.C. 78q-1) prescribing operational
and reporting requirements that apply to all transfer agents (17 CFR
240.17Ac2-2, and 240.17Ad-1 through 240.17Ad-16).
The OCC's ``National Bank Transfer Agents' Guide'' provides
additional guidance regarding the transfer agent activities of national
banks, including the forms that national banks must file. The OCC sends
the Guide to all national bank transfer agents, and to any person who
requests it from the Communications Division, Office of the Comptroller
of the Currency, 250 E Street, SW, Washington, DC 20219.
Disciplinary Sanctions Imposed by Clearing Agencies (Proposed
Sec. 19.135)
The proposal relocates provisions concerning applications by
national banks for stay or review of disciplinary sanctions imposed by
registered clearing agencies from current Secs. 9.21 and 9.22 to 12 CFR
part 19, the OCC's rules of practice and procedure. Proposed
Sec. 19.135 incorporates by cross-reference the SEC's rules on this
subject, which are virtually identical to current Secs. 9.21 and 9.22.
Other Issues for Comment
The OCC has identified several other issues that relate to national
banks' fiduciary activities. The OCC is not proposing specific
regulatory text on these issues at this time, but invites comment on
whether and how to address these issues in part 9.
Multistate Fiduciary Operations
As noted at the outset of this preamble discussion, bank
organizational structures have changed significantly since 1913, when
Congress first enacted the national bank fiduciary powers statute. Many
bank holding companies currently conduct multistate fiduciary
operations through separate bank or trust company subsidiaries
chartered in different states. The Riegle-Neal Interstate Banking and
Branching Efficiency Act of 1994 (Interstate Act) facilitates the
consolidation of multistate fiduciary operations by permitting
interstate bank mergers. Moreover, the ability to branch interstate may
encourage some banks to expand the multistate fiduciary business they
already have, and others to enter the fiduciary business on a
multistate basis for the first time. However, the Interstate Act does
not define the scope of a national bank's multistate fiduciary
authority. For example, it does not address activities conducted at
places other than interstate branches.
In a recent letter, the OCC analyzed the authority of a national
bank to exercise fiduciary powers on an interstate basis under 12
U.S.C. 92a. See Letter from Julie L. Williams, Chief Counsel (December
8, 1995). The letter dealt with a proposal for a national bank to
establish non-branch trust offices in many states and to conduct
fiduciary business in each state. But the interstate considerations
discussed below also apply to fiduciary activities conducted at
interstate branches.
In brief, section 92a authorizes a national bank to conduct
fiduciary activities but imposes no limitations on the places where, or
the customers for whom, the bank may conduct those activities.30
Since an office that conducts only fiduciary activities and does not
engage in any of the so-called ``core banking functions'' in 12 U.S.C.
36(j) is not a branch for purposes of the McFadden Act (12 U.S.C.
36(c)), a bank may establish non-branch trust offices at any location,
without regard to branching limitations. Thus, a national bank may
conduct fiduciary activities at non-branch trust offices in states
other than the state in which it has its main office. A national bank
may also offer fiduciary services at its interstate branches.
\30\ The basic authority for national banks to exercise
fiduciary powers is found in 12 U.S.C. 92(a) and (b):
(a) Authority of the Comptroller of the Currency
The Comptroller of the Currency shall be authorized and
empowered to grant by special permit to national banks applying
therefor, when not in contravention of State or local law, the right
to act as trustee, executor, administrator, registrar of stocks and
bonds, guardian of estates, assignee, receiver, committee of estates
of lunatics, or in any other fiduciary capacity in which State
banks, trust companies, or other corporations which come into
competition with national banks are permitted to act under the laws
of the State in which the national bank is located.
(b) Grant and exercise of powers deemed not in contravention of
State or local law
Whenever the laws of such State authorize or permit the
exercise of any or all of the foregoing powers by State banks, trust
companies, or other corporations which compete with national banks,
the granting to and the exercise of such powers by national banks
shall not be deemed to be in contravention of State or local law
within the meaning of this section.
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The OCC believes that the effect of section 92a is that in any
specific state, the extent of fiduciary powers is the same for out-of-
state national banks as for in-state national banks and depends upon
what the state permits for its own state institutions. A state may
limit national banks from exercising any or all fiduciary powers in
that state, but only if it also bars its own institutions from
exercising the same powers. Therefore, a national bank with its main
office in one state may exercise fiduciary powers in that state and
other states, depending upon--with respect to each state--the powers
each state allows its own institutions to exercise. In essence, with
respect to national bank fiduciary powers in a given state, the OCC
believes that section 92a applies the same standards to all national
banks, regardless of where a national bank has its main office. Whether
state administrative requirements connected
[[Page 66172]]
with fiduciary activities apply to national banks (other than the
requirements specifically made applicable by sections 92a(f), (g), and
(h)), is determined by principles of federal preemption and must be
considered on a case-by-case basis.31
\31\ Some earlier OCC letters suggesting that all aspects of
state law governing fiduciary institutions apply to national banks
have generally dealt with substantive fiduciary law and have not
fully distinguished between state substantive fiduciary duties and
standards and state administrative requirements. See, e.g., OCC
Letter No. 525 (August 8, 1990), reprinted in Fed. Banking L. Rep.
(CCH) para. 83,236.
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The OCC invites comment on the legal framework under section 92a
for interstate fiduciary powers of national banks as discussed above
and in the Letter (December 8, 1995). The OCC also invites comment on
whether to add any new provisions to part 9, or modify any existing
provisions (in addition to the modification of Sec. 9.14(b)), to
address other issues presented by fiduciary activities conducted on an
interstate basis.
Investment Adviser to an Investment Company
When a bank or its operating subsidiary acts as an investment
adviser to an investment company (such as a mutual fund), that activity
raises conflicts of interest and other concerns that part 9 was not
designed to address. The OCC currently addresses these concerns by
imposing certain conditions on a case-by-case basis in connection with
operating subsidiary filings involving mutual fund advisory
activities.32 The OCC has generally imposed the following
conditions when a national bank's operating subsidiary acts as
investment adviser to an investment company:
\32\ See, e.g., Interpretive Letter No. 647 (April 15, 1994),
reprinted in, [1994 Transfer Binder] Fed. Banking L. Rep. (CCH)
para. 83,558 (Letter approving notification by First Union National
Bank of North Carolina to establish three wholly-owned operating
subsidiaries to acquire the partnership interests of Lieber and
Company and the assets and liabilities of Evergreen Management
Corporation); Interpretive Letter No. 648 (May 4, 1994), reprinted
in, [1994 Transfer Binder] Fed. Banking L. Rep. (CCH) para. 83,557
(Letter approving notification by Mellon Bank, N.A. and Mellon Bank
(DE), N.A. to establish certain operating subsidiaries to acquire
most of the assets, operations, and activities of The Dreyfus
Corporation).
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(1) The investment company is treated as an affiliate of the bank
and its operating subsidiary for purposes of Sections 23A and 23B of
the Federal Reserve Act (12 U.S.C. 371c and 371c-1) and thus is subject
to the restrictions on transactions between affiliates;
(2) The bank's aggregate direct and indirect investments in and
advances to the subsidiary may not exceed an amount equal to the bank's
legal lending limit under 12 CFR part 32;
(3) Neither the bank nor the subsidiary may purchase shares of the
investment company for its own account; and
(4) The bank and the subsidiary are subject to the Interagency
Statement on Retail Sales of Nondeposit Investment Products (February
15, 1994).
The OCC invites comment on whether these conditions are appropriate
in all situations where a national bank or its operating subsidiary
acts as investment adviser to an investment company, and, if so,
whether to include them in part 9.
Indenture Trustee Conflicts of Interest
A national bank that serves as an indenture trustee to an issue of
debt
FR Doc. 95-30971 Fiduciary Activities of National Banks; Rules of Practice and Procedure
securities and also provides additional banking services to, or
has additional relationships with, the securities issue or issuer, is
subject to potential conflicts of interest. An indenture trustee to a
debt securities issuance represents the security holders as their
fiduciary, seeking interest and principal payments from the securities
issuer on their behalf. If a bank provides a letter of credit to an
issuer while acting as the indenture trustee for the issuer's
securities, and the issuer fails to make a scheduled payment to the
security holders, the bank, as indenture trustee, must declare the
issuer in default and seek payment from itself as issuer of the letter
of credit. In this situation, the bank's role as trustee may conflict
with its own interest as issuer of the letter of credit. Upon default,
when the bank extends credit to the defaulted securities issuance, the
bank, as creditor, becomes a competing creditor with itself as trustee
for the security holders.
Before 1990, the Trust Indenture Act of 1939 contained conflict of
interest prohibitions that disqualified banks from serving as indenture
trustees to certain debt securities issuances if they provided credit
to the securities issuer. Given the provisions of the statute, the OCC
did not need to address conflicts of interest that a national bank
might face with respect to securities covered by the Trust Indenture
Act.
Some securities issuances, however, are exempt from the Trust
Indenture Act. Exempt securities include those exempt from registration
under the Securities Exchange Act of 1934, such as municipal industrial
revenue bond issuances. With respect to exempt securities issuances,
the OCC recommended, consistent with the pre-1990 policies articulated
in the Trust Indenture Act, that a national bank avoid acting both as
indenture trustee and as issuer of a letter of credit.33
\33\ See Interpretive Letter No. 293 (May 11, 1984), reprinted
in Fed. Banking L. Rep. (CCH) para. 85,463.
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In 1990, Congress amended the Trust Indenture Act to permit a bank
to serve as both creditor and indenture trustee.34 The Trust
Indenture Act now requires that, upon default of the issuance, the
indenture trustee must eliminate the conflict within 90 days or
disqualify itself from further service as indenture trustee. As a
result of the 1990 amendments, OCC precedent treats exempt securities
more stringently than the Trust Indenture Act treats covered
securities. These developments raise the issue of whether and how to
address conflicts that may arise when a national bank serves as
indenture trustee.
\34\ See Securities Act Amendments of 1990, Pub. L. 101-550.
---------------------------------------------------------------------------
The OCC is inclined to allow a national bank to act as creditor and
indenture trustee until 90 days after default, consistent with the
Trust Indenture Act, with the added condition that the banks maintain
adequate controls to manage the potential conflicts of interest.
Additionally, the OCC is inclined to apply this policy consistently to
all debt securities issuances, including debt securities issuances
exempt from the Trust Indenture Act.
Because many national banks already have adopted policies and
procedures to manage these potential conflicts of interest,35 the
OCC may not need to address this issue by regulation. It may be
sufficient for the OCC to develop guidance on what controls banks
should maintain in order to manage potential conflicts.
\35\ Among these policies and procedures are: (1) Favoring debt
issuers that have a low risk rating to minimize the possibility of
default; (2) ensuring that the credit is fully collateralized by
cash or cash equivalents to give the bank a lower credit and asset
quality risk and superior credit rights (compared to bondholders);
(3) participating out most of the credit to reduce the bank's total
credit risk; and (4) employing an independent, third party to become
trustee upon default.
---------------------------------------------------------------------------
The OCC invites comment on how banks are managing these conflicts,
and on the need to address this issue in part 9.
Waiver of Regulatory Requirements
The OCC also is considering whether to establish standards and
procedures for obtaining waivers of any of the requirements in part 9.
The OCC notes that a banking circular, BC-205 (dated July 26, 1985),
already provides general guidance to national banks, bank counsel, and
interested members of the public on requests for staff no-objection
positions. The banking circular
[[Page 66173]]
establishes procedures for obtaining the informal views of the OCC
legal staff regarding the applicability of national banking law
requirements to contemplated transactions or activities, including
fiduciary activities. The OCC invites comment on whether these
procedures are sufficient to accommodate meet banks that seek
clarification of, or relief from, requirements in part 9, or whether
the OCC should add a waiver provision specific to part 9.
This table directs readers to the provisions of the current 12 CFR
part 9, if any, on which the revised 12 CFR part 9 and the amended 12
CFR part 19 are based
DERIVATION TABLE FOR 12 CFR PART 9
------------------------------------------------------------------------
Revised Provision Current Provision Comments
------------------------------------------------------------------------
Sec. 9.1................. ..................... Added.
Sec. 9.2(a).............. ..................... Added.
(b)................... Sec. 9.1(g)......... Significantly
modified.
(c)................... Sec. 9.1(l)......... Modified.
(d)................... Sec. 9.1(a)......... Modified.
(e)................... Sec. 9.1(b) and (h). Significantly
modified.
(f)................... Sec. 9.1(j)......... Modified.
(g)................... Sec. 9.1(d)......... Modified.
(h)................... Sec. 9.1(c)......... Modified.
(i)................... Sec. 9.1(e)......... Modified.
(j)................... ..................... Added.
Sec. 9.3................. Sec. 9.2............ Modified.
Sec. 9.4................. Sec. 9.7(a)(1), (b), Significantly
and (d). modified.
Sec. 9.5................. Secs. 9.5, 9.7(c), Significantly
9.7(d), and 9.10(a). modified.
Sec. 9.6................. Sec. 9.7(a)(2)...... Significantly
modified.
Sec. 9.8................. Secs. 9.7(a)(2) and Modified.
9.8.
Sec. 9.9................. Sec. 9.9............ Significantly
modified.
Sec. 9.10................ Sec. 9.10........... Significantly
modified.
Sec. 9.11................ Sec. 9.11........... Modified.
Sec. 9.12................ Sec. 9.12........... Modified.
Sec. 9.13................ Sec. 9.13........... Modified.
Sec. 9.14................ Sec. 9.14........... Significantly
modified.
Sec. 9.15................ Sec. 9.15........... Modified.
Sec. 9.16................ Sec. 9.16........... Modified.
Sec. 9.17................ Sec. 9.17........... Modified.
Sec. 9.18(a)............. Sec. 9.18 (a) and Modified.
(b)(2).
(b)(1)................ (b)(1)........... Significantly
modified.
(b)(2)................ (b)(12).......... Significantly
modified.
(b)(3)................ (b)(3)........... Modified.
(b)(4)................ (b) (1), (4), and Significantly
(15). modified.
(b)(5)................ (b) (4), (6), and Significantly
(7). modified.
(b)(6)................ (b) (5)(i)-(iv).. Significantly
modified.
(b)(7)................ (b) (5)(iv) and Significantly
(v). modified.
(b)(8)................ (b)(8)........... Modified.
(b)(9)................ (b)(11).......... Modified.
(b)(10)............... (b)(12).......... Significantly
modified.
(b)(11)............... (b)(13).......... Modified.
(b)(12)............... (b)(14).......... Modified.
(c)(1)................ (c)(1)........... Modified.
(c)(2)................ (c)(2)........... Modified.
(c)(3)................ (c)(3)........... Significantly
modified.
(c)(4)................ (c)(4)........... Modified.
(c)(5)................ (c)(5)........... Significantly
modified.
Sec. 9.20............ Sec. 9.20........... Modified.
Sec. 19.135.......... Secs. 9.21 and 9.22. Modified.
------------------------------------------------------------------------
Regulatory Flexibility Act
It is hereby certified that this proposal will not have a
significant economic impact on a substantial number of small entities.
Accordingly, a regulatory flexibility analysis is not required. The
proposal's requirements, for the most part, are not new to the
regulation. The proposal liberalizes requirements and reduces burden
for all national banks that exercise fiduciary powers, regardless of
size.
Executive Order 12866
The OCC has determined that this proposal is not a significant
regulatory action under Executive Order 12866.
Paperwork Reduction Act of 1995
The OCC invites comment on:
(1) Whether the proposed information collection contained in this
proposal is necessary for the proper performance of the OCC's
functions, including whether the information has practical utility;
(2) The accuracy of the OCC's estimate of the burden of the
proposed information collection;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the information collection on
respondents, including through the use of automated collection
techniques or other forms of information technology.
Respondents/recordkeepers are not required to respond to this
collection of
[[Page 66174]]
information unless it displays a currently valid OMB control number.
The collection of information requirements contained in this
proposal have been submitted to the Office of Management and Budget for
review in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)). Comments on the collections of information should be
sent to the Office of Management and Budget, Paperwork Reduction
Project (1557-AB12), Washington, DC 20503, with copies to the
Legislative and Regulatory Activities Division (1557-AB12), Office of
the Comptroller of the Currency, 250 E Street, SW, Washington, DC
20219.
The collection of information requirements in this proposed rule
are found in 12 CFR 9.8, 9.9, 9.17, and 9.18. The OCC requires this
information for the proper supervision of national banks' fiduciary
activities. The likely respondents/recordkeepers are national banks.
Estimated average annual burden hours per respondent/recordkeeper:
15.01 hours.
Estimated number of respondents and/or recordkeepers: 1,000.
Estimated total annual reporting and recordkeeping burden: 15,010
hours.
Start-up costs to respondents: None.
Unfunded Mandates Act of 1995
The OCC has determined that this proposal will not result in
expenditures by state, local, and tribal governments, or by the private
sector, of more than $100 million in any one year. Accordingly, a
budgetary impact statement is not required under section 202 of the
Unfunded Mandates Act of 1995.
List of Subjects
12 CFR Part 9
Estates, Investments, National banks, Reporting and recordkeeping
requirements, Trusts and trustees.
12 CFR Part 19
Administrative practice and procedure, Crime, Investigations,
National banks, Penalties, Securities.
Authority and Issuance
For the reasons set out in the preamble, chapter I of title 12 of
the Code of Federal Regulations is proposed to be amended as follows:
1. Part 9 is revised to read as follows:
PART 9--FIDUCIARY ACTIVITIES OF NATIONAL BANKS
Sec.
9.1 Authority, purpose, and scope.
9.2 Definitions.
9.3 Approval requirements.
9.4 Administration of fiduciary powers.
9.5 Policies and procedures.
9.6 Review of assets of fiduciary accounts.
9.8 Recordkeeping.
9.9 Audit of fiduciary activities.
9.10 Fiduciary funds awaiting investment or distribution.
9.11 Investment of fiduciary funds.
9.12 Self-dealing and conflicts of interest.
9.13 Custody of fiduciary assets.
9.14 Deposit of securities with state authorities.
9.15 Fiduciary compensation.
9.16 Receivership or voluntary liquidation of bank.
9.17 Surrender or revocation of fiduciary powers.
9.18 Collective investment funds.
9.20 Transfer agents.
Authority: 12 U.S.C. 24(Seventh), 92a, and 93a; 15 U.S.C. 78q,
78q-1, and 78w.
Sec. 9.1 Authority, purpose, and scope.
(a) Authority. The OCC issues this part pursuant to its authority
under 12 U.S.C. 24 (Seventh), 92a, and 93a, and 15 U.S.C. 78q, 78q-1,
and 78w.
(b) Purpose. The purpose of this part is to set forth the standards
that apply to the fiduciary activities of national banks.
(c) Scope. This part applies to all national banks that act in a
fiduciary capacity, as defined in Sec. 9.2(e).
Sec. 9.2 Definitions.
For the purposes of this part, the following definitions apply:
(a) Affiliate has the same meaning as in 12 U.S.C. 221a(b).
(b) Applicable law means Federal law, state law governing a
national bank's fiduciary relationships, the terms of the instrument
governing a fiduciary relationship, or any court order pertaining to
the relationship.
(c) Custodian under a uniform gifts to minors act means a fiduciary
relationship established pursuant to a state law substantially similar
to the Uniform Gifts to Minors Act as published by the American Law
Institute.
(d) Fiduciary account means an account administered by a national
bank acting in a fiduciary capacity.
(e) Fiduciary capacity means: acting as trustee, executor,
administrator, registrar of stocks and bonds (including transfer
agent), guardian, assignee, receiver, or custodian under a uniform
gifts to minors act; any capacity involving investment discretion on
behalf of another; or any other similar capacity that the OCC
authorizes pursuant to 12 U.S.C. 92a.
(f) Fiduciary officers and employees means all officers and
employees of a national bank to whom the board of directors or its
designees has assigned functions involving the exercise of the bank's
fiduciary powers.
(g) Fiduciary records means all written or otherwise recorded
information that a national bank creates or receives relating to a
fiduciary account or the fiduciary activities of the bank.
(h) Fiduciary powers means the authority the OCC grants to a
national bank to act in a fiduciary capacity pursuant to 12 U.S.C. 92a.
(i) Guardian means the guardian or committee, by whatever name
employed by state law, of the estate of an infant, an incompetent
person, an absent person, or a person over whose estate a court has
taken jurisdiction, other than under bankruptcy or insolvency laws.
(j) Investment discretion means, with respect to an account, the
authority to determine what securities or other assets to purchase or
sell on behalf of the account.
Sec. 9.3 Approval requirements.
(a) A national bank may not exercise fiduciary powers unless it
obtains prior approval from the OCC to the extent required under 12 CFR
5.26.
(b) A person seeking approval to organize a special-purpose
national bank limited to fiduciary powers shall file an application
with the OCC pursuant to 12 CFR 5.20.
Sec. 9.4 Administration of fiduciary powers.
(a) Responsibilities of the board of directors. A national bank's
fiduciary activities shall be managed by or under the direction of its
board of directors. In discharging its responsibilities, the board may
assign any function related to the exercise of fiduciary powers to any
director, officer, employee, or committee thereof.
(b) Use of other personnel. The national bank may use any qualified
personnel and facilities of the bank to perform services related to the
exercise of its fiduciary powers, and any department of the bank may
use fiduciary officers and employees and facilities to perform services
unrelated to the exercise of fiduciary powers, to the extent not
prohibited by applicable law.
(c) Agency agreements. A national bank exercising fiduciary powers
may perform services related to the exercise of fiduciary powers for
another bank or other entity, and may purchase services related to the
exercise of fiduciary powers from another bank or other entity,
pursuant to a written agreement.
(d) Bond requirement. A national bank shall ensure that all
fiduciary officers and employees are adequately bonded.
[[Page 66175]]
Sec. 9.5 Policies and procedures.
A national bank exercising fiduciary powers shall adopt and follow
written policies and procedures adequate to ensure that its fiduciary
practices comply with applicable law. Among other relevant matters, the
policies and procedures should address, where appropriate, the bank's:
(a) Brokerage placement practices, including:
(1) Selection of persons to effect securities transactions and the
evaluation of the reasonableness of any brokerage commissions paid to
those persons;
(2) Acquisition of services or products, including research
services, in return for brokerage commissions;
(3) Allocation of research or other services among accounts,
including those that did not generate commissions to pay for that
research or other services; and
(4) Disclosure of information concerning these brokerage placement
policies and procedures to prospective and existing customers;
(b) Methods for ensuring that fiduciary officers and employees do
not use material inside information in connection with any decision or
recommendation to purchase or sell any security;
(c) Methods for preventing self-dealing and conflicts of interest;
(d) Selection and retention of legal counsel who is readily
available to advise the bank and its fiduciary officers and employees
on fiduciary matters;
(e) Investment of funds held as fiduciary, including short-term
investments and the treatment of fiduciary funds awaiting investment or
distribution;
(f) Allocation to fiduciary accounts of any financial incentives
the bank may receive for investing fiduciary funds in a particular
investment; and
(g) Disclosure to beneficiaries and other interested parties of
fees and expenses charged to fiduciary accounts.
Sec. 9.6 Review of assets of fiduciary accounts.
(a) Individual account review--(1) Pre-acceptance review. Before
accepting a fiduciary account, a national bank shall review the
prospective account to determine whether it can properly administer the
account.
(2) Initial post-acceptance review. Upon the acceptance of a
fiduciary account for which a national bank has investment discretion,
the bank shall conduct a prompt, written review of all assets of the
account to evaluate whether they are appropriate, individually and
collectively, for the account.
(3) Annual review. At least once during every calendar year, and
not later than 15 months after the last review, a bank shall conduct a
written review of all assets of each account for which the bank has
investment discretion to evaluate whether they are appropriate,
individually and collectively, for the account.
(b) Annual review of assets by issuer. At least once during every
calendar year, and not later than 15 months after the last review, a
bank shall conduct a written review of the investment merit of each
asset in fiduciary accounts for which the bank has investment
discretion, to the extent appropriate for that asset.
Sec. 9.8 Recordkeeping.
(a) Documentation of accounts. A national bank shall adequately
document the establishment and termination of each fiduciary account
and shall maintain adequate records for all fiduciary accounts,
including any records required under 12 CFR part 12.
(b) Retention of records. A national bank shall retain all
fiduciary records relating to an account for a period of three years
from the later of the termination of the account or the termination of
any litigation relating to the account.
(c) Separation of records. The bank shall ensure that its fiduciary
records are separate and distinct from other records of the bank.
Sec. 9.9 Audit of fiduciary activities.
(a) Annual audit. At least once during each calendar year and not
later than 15 months after the last audit, a national bank shall
perform, through its audit committee, a suitable audit of all of its
fiduciary activities, unless the bank adopts a continuous audit system
in accordance with paragraph (b) of this section. The bank shall note
the results of the audit (including all actions taken as a result of
the audit) in the minutes of the board of directors.
(b) Continuous audit. In lieu of performing annual audits under
paragraph (a) of this section, a national bank may adopt a continuous
audit system under which the bank performs, through its audit
committee, a discrete audit of each fiduciary activity (i.e., on an
activity-by-activity basis) at intervals appropriate for that activity.
Thus, a bank may audit certain fiduciary activities at intervals
greater or less than one year, as appropriate. A bank that adopts a
continuous audit system shall note the results of all discrete audits
performed since the last audit report (including all actions taken as a
result of the audits) in the minutes of the board of directors at least
once during each calendar year and not later than 15 months after the
last audit report.
(c) Audit committee. A national bank's audit committee may consist
of a committee of the bank's directors or an audit committee of an
affiliate of the bank. However, the national bank's audit committee
must not include:
(i) Any officers of the bank who participate significantly in the
administration of the bank's fiduciary activities or;
(ii) Any members of a fiduciary committee of the bank.
Sec. 9.10 Fiduciary funds awaiting investment or distribution.
(a) In general. A national bank shall not allow funds of a
fiduciary account that are awaiting investment or distribution to
remain uninvested and undistributed any longer than is reasonable for
the proper management of the account and consistent with applicable
law.
(b) Self-deposits--(1) In general. Unless prohibited by applicable
law, a national bank may deposit funds of a fiduciary account that are
awaiting investment or distribution in the commercial, savings, or
another department of the bank. To the extent that the funds are not
insured by the Federal Deposit Insurance Corporation, the bank shall
secure them by setting aside collateral, under the control of
appropriate fiduciary officers and employees, in accordance with
paragraph (b)(2) of this section. The market value of the collateral
set aside must at all times equal or exceed the amount of the uninsured
fiduciary funds.
(2) Acceptable collateral. A national bank may satisfy the
collateral requirement of paragraph (b)(1) of this section with any of
the following:
(i) Direct obligations of the United States, or other obligations
fully guaranteed by the United States as to principal and interest;
(ii) Readily marketable securities that qualify as investment
securities pursuant to 12 CFR part 1;
(iii) Readily marketable securities of the classes in which state
banks, trust companies, or other corporations exercising fiduciary
powers are permitted to invest fiduciary funds under state law; and
(iv) Assets, including surety bonds, that qualify under applicable
state law as appropriate security for deposits of fiduciary funds.
(c) Affiliate deposits. If consistent with applicable law, a
national bank may deposit funds of a fiduciary account that are
awaiting investment or
[[Page 66176]]
distribution with an affiliate insured depository institution. If
consistent with applicable law, a national bank may secure a deposit by
or with an affiliate of fiduciary funds awaiting investment or
distribution.
Sec. 9.11 Investment of fiduciary funds.
A national bank shall invest funds that it holds as fiduciary in a
manner consistent with applicable law.
Sec. 9.12 Self-dealing and conflicts of interest.
(a) Investments for fiduciary accounts--(1) In general. Unless
consistent with applicable law, a national bank shall not invest
fiduciary funds in the stock or obligations of, or in assets acquired
from: the bank or any of its directors, officers, or employees;
affiliates of the bank or any of their directors, officers, or
employees; or individuals or organizations with whom there exists an
interest that might affect the exercise of the best judgment of the
bank.
(2) Additional securities investments. If retention of stock or
obligations of the bank or its affiliates is consistent with applicable
law, the bank may:
(i) Exercise rights to purchase additional stock (or securities
convertible into additional stock) when offered pro rata to
stockholders; and
(ii) Purchase fractional shares to complement fractional shares
acquired through the exercise of rights or the receipt of a stock
dividend resulting in fractional share holdings.
(b) Loans, sales, or other transfers from fiduciary accounts--(1)
In general. A national bank shall not lend, sell, or otherwise transfer
assets held in a fiduciary capacity to the bank or any of its
directors, officers, or employees, or to affiliates of the bank or any
of their directors, officers, or employees, or to individuals or
organizations with whom there exists an interest that might affect the
exercise of the best judgment of the bank, unless:
(i) The transaction is consistent with applicable law;
(ii) Legal counsel advises the bank in writing that the bank has
incurred, in its fiduciary capacity, a contingent or potential
liability, in which case the bank, upon the sale or transfer of assets,
shall reimburse the fiduciary account in cash at the greater of book or
market value of the assets;
(iii) As provided in Sec. 9.18(b)(8)(iii) for defaulted fixed-
income investments; or
(iv) Required in writing by the OCC.
(2) Loans of funds held in trust. Notwithstanding paragraph (b)(1)
of this section, a national bank shall not lend to any of its
directors, officers, or employees any funds held in trust, except with
respect to the bank's own employee benefit plans in accordance with
section 408(b)(1) of the Employee Retirement Income Security Act of
1974 (29 U.S.C. 1108(b)(1)).
(c) Loans to fiduciary accounts. A national bank may make a loan to
a fiduciary account and may hold a security interest in assets of the
account if the transaction is fair to the account and is not prohibited
by applicable law.
(d) Sales between fiduciary accounts. A national bank may sell
assets between any of its fiduciary accounts if the transaction is fair
to both accounts and is not prohibited by applicable law.
(e) Loans between fiduciary accounts. A national bank may make a
loan between any of its fiduciary accounts if the transaction is
authorized by the instrument creating the account from which the loan
is made and is not prohibited by applicable law.
Sec. 9.13 Custody of fiduciary assets.
(a) Control of fiduciary assets. A national bank shall place assets
of fiduciary accounts in the joint custody or control of not fewer than
two of the fiduciary officers or employees designated for that purpose
by the board of directors. A national bank may maintain the investments
of a fiduciary account off-premises, if the bank maintains adequate
safeguards and controls.
(b) Separation of fiduciary assets. A national bank shall keep the
assets of fiduciary accounts separate from the assets of the bank. A
national bank shall keep the assets of each fiduciary account separate
from all other accounts or shall identify the investments as the
property of a particular account, except as provided in Sec. 9.18.
Sec. 9.14 Deposit of securities with state authorities.
(a) In general. If state law requires corporations acting in a
fiduciary capacity to deposit securities with state authorities for the
protection of private or court trusts, then before a national bank acts
as a private or court-appointed trustee in that state, it shall make a
similar deposit with state authorities. If the state authorities refuse
to accept the deposit, the bank shall deposit the securities with the
Federal Reserve Bank of the district in which the national bank is
located, to be held for the protection of private or court trusts to
the same extent as if the securities had been deposited with state
authorities.
(b) Assets held in more than one state. If a national bank
administers trust assets in more than one state, the bank may compute
the amount of deposit required for each state on the basis of trust
assets that the bank administers from offices located in that state.
Sec. 9.15 Fiduciary compensation.
(a) Compensation of bank. If the amount of a national bank's
compensation for acting in a fiduciary capacity is not set or governed
by applicable law, the bank may charge a reasonable fee for its
services.
(b) Compensation of co-fiduciary officers and employees. A national
bank shall not permit any officer or employee to retain any
compensation for acting as a co-fiduciary with the bank in the
administration of a fiduciary account, except with the specific
approval of the bank's board of directors.
Sec. 9.16 Receivership or voluntary liquidation of bank.
If the OCC appoints a receiver for a national bank, or if a
national bank places itself in voluntary liquidation, the receiver or
liquidating agent shall promptly close all fiduciary accounts to the
extent practicable, in accordance with OCC instructions and the orders
of the court having jurisdiction. The receiver or liquidating agent
shall transfer all remaining fiduciary accounts to substitute
fiduciaries.
Sec. 9.17 Surrender or revocation of fiduciary powers.
(a) Surrender. In accordance with 12 U.S.C. 92a(j), a national bank
seeking to surrender its fiduciary powers shall file with the OCC a
certified copy of the resolution of its board of directors evidencing
that intent. If satisfied that the bank has been discharged from all
fiduciary duties, the OCC will provide written notice that the bank is
no longer authorized to exercise fiduciary powers.
(b) Revocation. If the OCC determines that a national bank has
unlawfully or unsoundly exercised, or has failed for a period of five
consecutive years to exercise, its fiduciary powers, the Comptroller
may, in accordance with the provisions of 12 U.S.C. 92a(k), revoke the
bank's fiduciary powers.
Sec. 9.18 Collective investment funds.
(a) In general. Where consistent with applicable law, a national
bank may invest assets that it holds as fiduciary in the following
collective investment funds:
(1) A fund maintained by the bank, or by one or more affiliate
banks,1
[[Page 66177]]
exclusively for the collective investment and reinvestment of money
contributed to the fund by the bank, or by one or more affiliate banks,
in its capacity as trustee, executor, administrator, guardian, or
custodian under a uniform gifts to minors act.
1 A fund established pursuant to Sec. 9.18(a)(1) that
includes moneys contributed by entities that are affiliates under 12
U.S.C. 221a(b), but are not members of the same affiliated group, as
defined at 26 U.S.C. 1504, may fail to qualify for tax-exempt status
under the Internal Revenue Code. See 26 U.S.C. 584.
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(2) A fund consisting solely of assets of retirement, pension,
profit sharing, stock bonus or other trusts that are exempt from
Federal income taxation under the Internal Revenue Code.
(i) A national bank may invest assets of retirement, pension,
profit sharing, stock bonus or other trusts exempt from Federal income
taxation and that the bank holds in its capacity as trustee in a
collective investment fund established under paragraph (a)(1) or (a)(2)
of this section.
(ii) A national bank may invest assets of retirement, pension,
profit sharing, stock bonus or other employee benefit trusts exempt
from Federal income taxation and that the bank holds in any capacity
(including agent), in a collective investment fund established under
paragraph (a)(2) of this section if the fund itself qualifies for
exemption from Federal income taxation.
(b) Requirements. A national bank administering a collective
investments fund authorized under paragraph (a) of this section shall
comply with the following requirements:
(1) Written plan. The bank shall establish and maintain each
collective investment fund in accordance with a written plan approved
by a resolution of the bank's board of directors or by a committee
thereof (Plan). The bank shall make a copy of the Plan available for
public inspection at its main office during all banking hours, and
shall provide a copy of the Plan to any person who requests it. The
Plan must contain appropriate provisions, not inconsistent with this
part, regarding the manner in which the bank will operate the fund,
including provisions relating to:
(i) Investment powers and policies with respect to the fund;
(ii) Allocation of income, profits, and losses;
(iii) Fees and expenses that will be charged to the fund and to
participating accounts;
(iv) Terms and conditions governing the admission and withdrawal of
participating accounts;
(v) Audits of participating accounts;
(vi) Basis and method of valuing assets in the fund;
(vii) Expected frequency for income distribution to participating
accounts;
(viii) Minimum frequency for valuation of fund assets;
(ix) Period following each valuation date during which the
valuation must be made;
(x) Bases upon which the bank may terminate the fund; and
(xi) Any other matters necessary to define clearly the rights of
participating accounts.
(2) Fund management. A bank administering a collective investment
fund shall have exclusive management thereof, except as a prudent
person might delegate responsibilities to others.2
2 If a fund, the assets of which consist solely of Individual
Retirement Accounts, Keogh Accounts, or other employee benefit
accounts that are exempt from taxation, is registered under the
Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), the fund
will not be deemed in violation of paragraph (b)(2) of this section
as a result of its compliance with section 10(c) of the Investment
Company Act of 1940 (15 U.S.C. 80a-10(c)).
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(3) Proportionate interests. Each participating account in a
collective investment fund must have a proportionate interest in all
the fund's assets.
(4) Valuation--(i) Frequency of valuation. A bank administering a
collective investment fund shall determine the value of the fund's
assets at least once every three months. However, in the case of a fund
that is invested primarily in real estate or other assets that are not
readily marketable, the bank shall determine the value of the fund's
assets at least once each year.
(ii) Method of valuation--(A) In general. Except as provided in
paragraph (b)(4)(ii)(B) of this section, a bank shall value each fund
asset at market value as of the date set for valuation, unless the bank
cannot readily ascertain market value, in which case the bank shall use
a fair value determined in good faith.
(B) Short-term investment funds. A bank may value a fund's assets
on a cost, rather than market value, basis for purposes of admissions
and withdrawals, if the Plan requires the bank to:
(1) Invest at least 80 percent of the fund's assets in bonds,
notes, or other evidences of indebtedness that are payable on demand
(including variable amount notes), or that have a maturity date not
exceeding 91 days from the date of purchase;
(2) Accrue on a straight-line basis the difference between the cost
and anticipated principal receipt on maturity;
(3) Hold the fund's assets until maturity under usual
circumstances; and
(4) Ensure that, after effecting admissions and withdrawals, at
least 20 percent of the value of the remaining fund assets are cash,
demand obligations, or assets that will mature on the fund's next
business day.
(5) Admission and withdrawal of accounts--(i) In general. A bank
administering a collective investment fund shall admit an account to or
withdraw an account from the fund only on the basis of the valuation
described in paragraph (b)(4) of this section.
(ii) Prior request or notice. A bank administering a collective
investment fund may admit an account to or withdraw an account from a
collective investment fund only if the bank has approved a request for
or notice of intention of taking that action on or before the valuation
date on which the admission or withdrawal is based. No requests or
notices may be canceled or countermanded after the valuation date.
(iii) Prior notice period for withdrawals from funds with assets
not readily marketable. A bank administering a collective investment
fund described in paragraph (a)(2) of this section that is invested
primarily in real estate or other assets that are not readily
marketable, may require a prior notice period, not to exceed one year,
for withdrawals.
(iv) Method of distributions. A bank administering a collective
investment fund shall make distributions to accounts withdrawing from
the fund in a manner consistent with applicable law.
(v) Segregation of investments. If an investment is withdrawn in
kind from a collective investment fund for the benefit of all
participants in the fund at the time of the withdrawal but the
investment is not distributed ratably in kind, the bank shall segregate
and administer it for the benefit ratably of all participants in the
collective investment fund at the time of withdrawal.
(6) Audits and financial reports--(i) Annual audit. At least once
during each 12-month period, a bank administering a collective
investment fund shall arrange for an audit of the collective investment
fund by auditors responsible only to the board of directors of the
bank.3
3 If a fund, the assets of which consist solely of Individual
Retirement Accounts, Keogh Accounts, or other employee benefit
accounts that are exempt from taxation, is registered under the
Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), the fund
will not be deemed in violation of paragraph (b)(6)(i) of this
section as a result of its compliance with section 10(c) of the
Investment Company Act of 1940 (15 U.S.C. 80a-10(c)), if the bank
has access to the audit reports of the fund.
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(ii) Financial report. At least once during each 12-month period, a
bank administering a collective investment fund shall prepare a
financial report of
[[Page 66178]]
the fund based on the audit required by paragraph (b)(6)(i) of this
section. The report must disclose fees and expenses charged to the
fund. This report must contain a list of investments in the fund
showing the cost and current market value of each investment, and a
statement covering the period after the previous report showing the
following (organized by type of investment):
(A) Summaries of all purchases (with costs);
(B) Summaries of all sales (with profit or loss and any other
investment changes);
(C) Income and disbursements; and
(D) An appropriate notation as to any investments in default.
(iii) Limitation on representations. A bank may include in the
financial report a description of the fund's value on previous dates,
as well as its income and disbursements during previous accounting
periods. A bank shall not publish in the financial report any
predictions or representations as to future results. In addition, with
respect to funds described in paragraph (a)(1) of this section, a bank
shall not publish the performance of funds other than those
administered by the bank or its affiliates.
(iv) Availability of the report. A bank administering a collective
investment fund shall provide a copy of the financial report, or shall
provide notice that a copy of the report is available upon request
without charge, to each person who ordinarily would receive a regular
periodic accounting with respect to each participating account. The
bank may provide a copy of the financial report to prospective
customers. In addition, the bank shall provide a copy of the report
upon request to any person for a reasonable charge.
(7) Advertising prohibition for common trust funds. A bank shall
not advertise or publicize any fund authorized under paragraph (a)(1)
of this section, except in connection with the advertisement of the
general fiduciary services of the bank.
(8) Self-dealing and conflicts of interest--(i) Bank interests. A
bank administering a collective investment fund shall not have an
interest in that fund other than in its fiduciary capacity. Except for
temporary net cash overdrafts or as otherwise specifically provided in
this paragraph, the bank shall not lend to, sell assets to, or purchase
assets from a fund. The bank shall not invest fund assets in stock or
obligations, including time or savings deposits, of the bank or any of
its affiliates, except for funds awaiting investment or distribution.
If, because of a creditor relationship or otherwise, the bank acquires
an interest in a participating account, the participating account must
be withdrawn on the next withdrawal date. However, a bank may invest
assets that it holds as fiduciary for its own employees in a collective
investment fund.
(ii) Loans to participating accounts. A bank administering a
collective investment fund shall not make any loan on the security of a
participant's interest in the fund. An unsecured advance to a fiduciary
account participating in the fund until the time of the next valuation
date does not constitute the acquisition of an interest in a
participating account by the bank.
(iii) Purchase of defaulted fixed-income investments. A bank
administering a collective investment fund may purchase for its own
account any defaulted fixed-income investment held by the fund if, in
the judgment of the bank, the cost of segregation of the investment is
greater than the difference between its market value and its principal
amount plus interest and penalty charges due. If the bank elects to
purchase a defaulted fixed-income investment, it shall do so at the
greater of market value or the sum of cost, accrued unpaid interest,
and penalty charges.
(9) Mortgage reserve account--(i) In general. A bank administering
a collective investment fund may transfer to a reserve account up to 5
percent of the net income derived by the fund from mortgages held by
the fund during any regular accounting period. The amount held in the
reserve account must not exceed 1 percent of the outstanding principal
amount of all mortgages held in the fund. The bank shall deduct the
amount of the reserve account from the fund's assets in determining the
fair market value of the fund for the purposes of admissions and
withdrawals.
(ii) Charges against reserve account. At the end of each accounting
period, the bank shall charge all interest payments that are due but
unpaid with respect to mortgages in the fund against the reserve
account to the extent available, and shall credit the payments to
income distributed to participating accounts. In the event of
subsequent recovery of the payments by the fund, the bank shall credit
the reserve account with the amounts recovered.
(10) Fees and expenses--(i) Fund management fees. A bank
administering a collective investment fund may charge a fund management
fee if the total fees charged to a participating account (including the
fund management fee) does not exceed the total fees that the bank would
have charged had it not invested assets of the account in the fund.
(ii) Reasonable expenses. A bank administering a collective
investment fund may charge reasonable expenses incurred in operating
the collective investment fund, to the extent not prohibited by
applicable law. However, a bank shall absorb the expenses of
establishing or reorganizing a collective investment fund.
(11) Prohibition against certificates. A bank administering a
collective investment fund shall not issue any certificate or other
document evidencing a direct or indirect interest in the fund.
(12) Good faith mistakes. No mistake made in good faith and in the
exercise of due care in connection with the administration of a
collective investment fund will be deemed to be a violation of this
part if, promptly after the discovery of the mistake, the bank takes
whatever action is practicable under the circumstances to remedy the
mistake.
(c) Other collective investments. In addition to the collective
investment funds authorized under paragraph (a) of this section, a
national bank may invest assets that it holds as fiduciary, to the
extent not prohibited by applicable law, as follows:
(1) Bank fiduciary funds. In shares of a mutual trust investment
company, organized and operated pursuant to a statute that specifically
authorizes the organization of those companies exclusively for the
investment of funds held by corporate fiduciaries.
(2) Single loans or obligations. In the following loans or
obligations, if the bank's only interest in the loans or obligations is
its capacity as fiduciary:
(i) A single real estate loan, a direct obligation of the United
States, or an obligation fully guaranteed by the United States, or a
single fixed amount security, obligation, or other property, either
real, personal, or mixed, of a single issuer; or
(ii) A variable amount note of a borrower of prime credit, if the
bank uses the note solely for investment of funds held in its fiduciary
accounts.
(3) Mini-funds. In a fund maintained by the bank for the collective
investment of cash balances received or held by a bank in its capacity
as trustee, executor, administrator, or guardian, or custodian under a
uniform gifts to minors act, that the bank considers to be too small to
be invested separately to advantage. The total assets in the fund must
not exceed $1,000,000, and the number of participating accounts must
not exceed 100.
(4) Trust funds of corporations and closely-related settlors. In
any
[[Page 66179]]
investment specifically authorized by the instrument creating the
fiduciary account or a court order, in the case of trusts created by a
corporation, including its affiliates and subsidiaries, or by several
individual settlors who are closely related.
(5) Special exemption funds. In any other manner described by the
bank in a written plan approved by the OCC. The written plan is deemed
approved by the OCC 30 days after it receives the plan, unless the OCC
notifies the bank that the OCC has disapproved the plan or is extending
review beyond the 30-day period because the proposal raises issues that
require additional information or additional time for analysis. The
written plan must set forth:
(i) The reason that the proposed fund requires a special exemption;
(ii) The provisions of the proposed fund that are inconsistent with
paragraphs (a) and (b) of this section;
(iii) The provisions of paragraph (b) of this section for which the
bank seeks an exemption; and
(iv) The manner in which the proposed fund addresses the rights and
interests of participating accounts.
Sec. 9.20 Transfer agents.
(a) The rules adopted by the Securities and Exchange Commission
(SEC) pursuant section 17A of the Securities Exchange Act of 1934 (15
U.S.C. 78q-1) prescribing procedures for registration of transfer
agents for which the SEC is the appropriate regulatory agency (17 CFR
240.17Ac2-1) apply to national bank transfer agents. References to the
``Commission'' are deemed to refer to the ``OCC.''
(b) The rules adopted by the SEC pursuant section 17A of the
Securities Exchange Act of 1934 prescribing operational and reporting
requirements for transfer agents (17 CFR 240.17Ac2-2, and 240.17Ad-1
through 240.17Ad-16) apply to national bank transfer agents.
PART 19--RULES OF PRACTICE AND PROCEDURE
2. The authority citation for part 19 is revised to read as
follows:
Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505,
1817, 1818, 1820, 1831o, 1972, 3102, 3108(a), and 3909; 15 U.S.C.
78(h), 78(i), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 78u-2, 78u-3, and
78w; and 31 U.S.C. 330.
3. A new Sec. 19.135 is added to subpart E to read as follows:
Sec. 19.135 Applications for stay or review of disciplinary actions
imposed by registered clearing agencies.
(a) Stays. The rules adopted by the Securities and Exchange
Commission (SEC) pursuant to section 19 of the Securities Exchange Act
of 1934 (15 U.S.C. 78s) regarding applications by persons for whom the
SEC is the appropriate regulatory agency for stays of disciplinary
sanctions or summary suspensions imposed by registered clearing
agencies (17 CFR 240.19d-2) apply to applications by national banks.
References to the ``Commission'' are deemed to refer to the ``OCC.''
(b) Reviews. The regulations adopted by the SEC pursuant to section
19 of the Securities Exchange Act of 1934 (15 U.S.C. 78s) regarding
applications by persons for whom the SEC is the appropriate regulatory
agency for reviews of final disciplinary sanctions, denials of
participation, or prohibitions or limitations of access to services
imposed by registered clearing agencies (17 CFR 240.19d-3(a)-(f)) apply
to applications by national banks. References to the ``Commission'' are
deemed to refer to the ``OCC.''
Dated: December 11, 1995.
Eugene A. Ludwig,
Comptroller of the Currency.
[FR Doc. 95-30971 Filed 12-20-95; 8:45 am]
BILLING CODE 4810-33-P
Complete official Federal Register PDF
FR Doc. 95-30969 Investment Securities
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66152-66163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30969]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 /
Proposed Rules
[[Page 66152]]
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Parts 1 and 7
[Docket No. 95-34]
RIN 1557-AB37
Investment Securities
AGENCY: Office of the Comptroller of the Currency, Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Office of the Comptroller of the Currency (OCC) is
proposing to clarify and update its rules that prescribe the standards
under which national banks may purchase, sell, deal in, and underwrite
securities. This proposal is part of the OCC's Regulation Review
Program, a project designed to review comprehensively, modernize and
simplify OCC regulations and reduce unnecessary regulatory burdens. The
proposed revisions reorganize the regulation by placing related
subjects together, clarify areas where the rules are unclear and
confusing, and update various provisions to address market developments
and to incorporate significant OCC interpretations, judicial decisions
and statutory amendments.
DATES: Comments must be received by February 20, 1996.
ADDRESSES: Comments should be directed to: Communications Division, 250
E Street, SW., Washington, DC 20219, Attention: Docket No. 95-34.
Comments will be available for public inspection and photocopying at
the same location. In addition, comments may be sent by facsimile
transmission to FAX number 202/874-5274 or by electronic mail to
[email protected]
FOR FURTHER INFORMATION CONTACT: Kay Bondehagen, Special Assistant to
the Deputy Chief Counsel (202) 874-5200; Stuart Feldstein, Senior
Attorney, Legislative and Regulatory Activities Division (202) 874-
5090; Lee Walzer, Senior Attorney, Securities and Corporate Practices
Division, (202) 874-5210; Lisa Lintecum, Director, Fiduciary
Activities, (202) 874-5419.
SUPPLEMENTARY INFORMATION:
Background
OCC Regulation Review Program
The OCC is proposing to revise 12 CFR part 1 pursuant to its
Regulation Review Program. Pursuant to this Program, the OCC is
reviewing all its rules. Rules that are not necessary to protect
against unacceptable risks, that do not support equitable access to
banking services for all consumers or that are not needed to accomplish
other statutory responsibilities of the OCC will be revised or
eliminated.
Where risks are meaningful and regulation is appropriate, rules
will be examined to determine if they achieve their purpose at the
least possible cost. The OCC also recognizes that one source of
regulatory cost is the failure of regulations to provide clear guidance
because they are difficult to follow and understand. Therefore, an
important component of the Regulation Review Program is to revise
regulations, where appropriate, to improve clarity and better
communicate the standards that the rules are intended to convey.
Investment Securities Limitations
Most of the limitations on the ability of national banks to
purchase, sell, deal in, and underwrite securities trace to the Banking
Act of 1933, Section 16, Public Law 73-66, 48 Stat. 184 (codified as
amended at 12 U.S.C. 24 (Seventh) (1933)). More recently, the Secondary
Mortgage Market Enhancement Act of 1984 (SMMEA) 1 and the Riegle
Community Development and Regulatory Improvement Act of 1994 (RCDRI
Act) 2 removed quantitative limits on national banks' purchases of
certain types of mortgage- and small business-related securities,
subject to any regulations prescribed by the OCC.
\1\ Sec. 105(c), Pub. L. 98-440, Title I, 98 Stat. 1691
(codified as amended at 12 U.S.C. 24 (Seventh) (1984)).
\2\ Pub. L. 103-325, 108 Stat. 2160 (1994).
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Although the OCC has revised part 1 a number of times since the
early 1960s, the current version still contains many provisions dating
from 1963. See 28 FR 9916 (1963). The OCC revised part 1 in 1971,
adding the distinctions among ``Type I security,'' ``Type II security''
and ``Type III security.'' See 36 FR 6737 (1971). Guidelines were added
to the part in 1982. See 47 FR 5701 (1982). The OCC revised part 1
again in 1989 principally to reflect amendments to 12 U.S.C. 24
(Seventh) by adding obligations of the African Development Bank and
Inter-American Investment Corporation to the description of Type II
securities. See 54 FR 1333 (1989). To reduce regulatory burden, the OCC
also amended part 1 in 1993 to eliminate a requirement that a national
bank maintain certain information for a specified period of time to
demonstrate prudence in making determinations and carrying out
securities transactions. See 58 FR 27443 (1993). The OCC tended to
graft these changes onto the previous regulatory framework, resulting
in a sometimes confusing combination of definitions and restrictions.
The OCC did not amend part 1 to reflect the statutory change
resulting from the enactment of SMMEA in 1984. Nor have changes been
made to the rule to reflect significant judicial decisions and
interpretations of the OCC.
Proposal
This proposal modernizes the rules in part 1 and furthers the goals
of the OCC's Regulation Review Program. In order to make part 1 more
accessible and comprehensive, the proposal restructures many sections
of the rule. The proposal also updates the rule to incorporate
statutory changes to 12 U.S.C. 24 (Seventh), judicial decisions and
long-standing OCC interpretations. The following discussion identifies
and explains the significant proposed changes. The OCC requests
comments on all aspects of this proposal, and, in addition, requests
specific comments on certain changes that are highlighted. The OCC also
welcomes any additional comments relevant to this proposal. A table
summarizing the areas where changes are proposed is set forth at the
end of this preamble.
Authority, purpose, and scope (section 1.1)
The proposal consolidates the current ``Scope and application''
section (Sec. 1.2) with the ``Authority'' section (Sec. 1.1). The
sections are substantially condensed to eliminate redundant and
unnecessary language.
The limitations set forth in part 1 apply to national banks,
Federal branches of foreign banks, District of
[[Page 66153]]
Columbia banks and state banks that are members of the Federal Reserve
System.3 This section further clarifies that foreign branches of
national banks may be authorized to conduct additional international
activities pursuant to 12 CFR part 211.
\3\ State banks that are members of the Federal Reserve System
are subject to the same limitations and conditions with respect to
the purchasing, selling, underwriting and holding of investment
securities and stock applicable to national banks under 12 U.S.C. 24
(Seventh). 12 U.S.C. 335.
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Definitions (section 1.2)
The proposal substantially revises the definitions section to add
several definitions, updates others, and brings the definitions that
currently appear in various places in the regulation into a single
section. The following definitions have been added: ``investment
company,'' ``Type IV security,'' and ``Type V security.'' The
definitions of Type I, II, and III securities also have been
substantially revised so that these types of securities are defined by
their characteristics, not by the statutory limitations on the extent
to which national banks may deal in, underwrite, purchase, or sell
them. No substantive change in the authority of a national bank results
from these revisions. In addition, as indicated with various individual
definitions below, many definitions are revised to clarify their
meaning and to incorporate the results of statutory changes, judicial
decisions, and established OCC interpretations. Of particular note are
the following proposed revisions:
Capital and surplus (section 1.2(a))
The proposal defines ``capital and surplus'' as Tier 1 and Tier 2
capital includable in risk-based capital under the Minimum Capital
Ratios in 12 CFR part 3, plus the balance of a bank's allowance for
loan and lease losses that is not included in Tier 2 capital. This is
the same standard used in the OCC's recent revisions to its lending
limit regulation. See 60 FR 8526 (February 15, 1995). As stated in the
Preamble to the new lending limit rule, 60 FR 8528, the OCC's reasons
for revising the definition of ``capital and surplus'' are to reduce
the different definitions of capital currently used for various
regulatory purposes and to use a well-recognized standard that banks
are already required to calculate.
Investment grade (section 1.2(d))
``Investment grade'' means that a security is rated in one of the
top four rating categories by each nationally recognized statistical
rating organization that has rated the security. For example, if two
nationally recognized statistical rating organizations rate the
security in one of their top four categories, the security would
qualify as ``investment grade'' even if other nationally recognized
statistical rating organizations had not rated the security. However,
if one of the two organizations rating the security did not rate the
security in one of the top four categories, the security would not
qualify as ``investment grade.'' Thus, when a security is given
different ratings by different nationally recognized rating
organizations, the lowest rating governs for purposes of this
definition.
Investment security (section 1.2(e))
To be an ``investment security'' under the proposed definition, a
security must be an investment grade marketable debt obligation or, if
the security is not rated, it must be the credit equivalent of an
investment grade marketable debt obligation. These standards reflect
current OCC guidance and practice.
The OCC requests comments on whether the regulation should describe
more specifically the characteristics of securities that are the
``credit equivalent of investment grade'' securities, and, if so, what
description would be appropriate.
Commenters also are requested to address whether other securities
with characteristics functionally equivalent to a debt obligation might
be classified as an ``investment security.''
Marketable (section 1.2(f))
This proposed definition attempts to rely on more objective
standards than the current definition of ``marketable.'' Currently, a
marketable security is defined in Sec. 1.5(a) as one that ``may be sold
with reasonable promptness at a price which corresponds reasonably to
its fair value.'' The proposed definition places more emphasis on
indicators of a ready market for a security rather than a prediction of
whether the security can be sold quickly at a particular price. As
proposed, marketable securities include: (1) Securities registered
under the Securities Act of 1933 (the Securities Act), 15 U.S.C. 77a et
seq.; (2) certain government securities and municipal revenue bonds not
required to be registered under the Securities Act; and (3) investment
grade securities sold pursuant to SEC Rule 144A, 17 CFR 230.144A.
SEC Rule 144A provides a ``safe harbor'' exemption from the
registration requirements of the Securities Act for resales of
privately offered or ``restricted'' securities to qualified
institutional buyers. The rationale for treating securities that
qualify under SEC Rule 144A as readily marketable is that they may be
sold without the need to prepare and receive SEC clearance of a
registration statement used in connection with the sale. There may be a
situation, however, based upon the particular security, when the
security is not necessarily immediately sellable.
The OCC requests comments regarding whether this definition of
``marketable'' is sufficiently inclusive, particularly regarding other
exemptions under the Securities Act, such as the statutory nonpublic
offering exemption, that enable a seller to sell a security promptly at
market or fair value, and whether the definition is appropriately
inclusive of foreign sovereign debt.
The OCC also welcomes comments regarding alternative definitions of
``marketable'' that would address the OCC's concerns about liquidity.
Commenters may suggest adopting a more general standard, or retaining
the current standard whereby a security sold with reasonable promptness
for a price that reasonably corresponds to its fair value is
marketable. Commenters are asked to address how the OCC might
objectively measure such a standard.
Type I security (section 1.2(h))
As in the current rule, the proposal defines a ``Type I'' security
to mean specified government securities. The proposal also incorporates
into the definition the key elements of the interpretation now found in
Sec. 1.110 regarding securities backed by the full faith and credit of
the U.S. Government. The proposed definition is consistent with 12
U.S.C. 24 (Seventh), which does not require that government securities
be ``marketable'' or otherwise qualify as ``investment securities.''
Type II security (section 1.2(i))
The proposal redefines a ``Type II'' security to mean an investment
security that is issued by certain state, international or multilateral
organizations, or that is otherwise listed or described in the statute.
The definition differs from the current rule, which describes a Type II
security both by the investment limits that apply to it, and by
examples of qualifying types of issuers. The proposed definition also
includes the statutory requirement that this type of security must
qualify as an ``investment security,'' in addition to being issued by a
qualifying type of issuer.
Type III security (section 1.2(j))
Part 1 currently defines a ``Type III'' security to mean a security
that ``a bank may purchase and sell for its own
[[Page 66154]]
account, subject to a 10 percent limitation, but may neither deal in
nor underwrite.'' Sec. 1.3(e). Instead of defining a Type III security
in this manner, the proposal redefines a Type III security as an
investment security that does not qualify as a Type I, II, IV, or V
security. Examples of Type III securities include corporate bonds and
municipal revenue bonds.
Commenters are asked to address whether other examples of Type III
securities also should be specifically referenced in the regulation. In
particular, commenters are asked to address whether foreign securities
that are currently eligible for investment by foreign branches of U.S.
banks should be included as Type III securities.
Type IV security (section 1.2(k))
The substance of a ``Type IV'' security was established, although
not named ``Type IV,'' by amendments made to 12 U.S.C. 24 (Seventh) in
1984 by SMMEA and in 1994 by the RCDRI Act. The proposed definition
tracks the statutory changes. SMMEA amended 12 U.S.C. 24 (Seventh) to
permit national banks to purchase without limitation certain
residential and commercial mortgage-related securities offered and sold
pursuant to section 4(5) of the Securities Act, 15 U.S.C. 77d(5), or
residential mortgage-related securities as defined in section 3(a)(41)
of the Securities Exchange Act of 1934 (the Exchange Act), 15 U.S.C.
78c(a)(41). As previously noted, part 1 was never amended to
incorporate this 1984 statutory revision. The RCDRI Act defined a new
type of small business-related security in section 3(a)(53)(A) of the
Exchange Act, 15 U.S.C. 78c(a)(53)(A), and added a class of commercial
mortgage-related securities to section 3(a)(41) of the Exchange Act, 15
U.S.C. 78c(a)(41).
The amendments to 12 U.S.C. 24 (Seventh) made by the RCDRI Act
removed limitations on purchases by national banks of certain small
business-related and commercial mortgage-related securities. The
amendments provide the OCC authority to prescribe regulations to ensure
that acquisitions of such securities are conducted in a manner
consistent with safe and sound banking practices. The OCC has concerns
that undue concentration of risk could arise if a bank invested in a
security backed by a small number of loans or where one or a small
number of loans represented a large percentage of the assets in the
pool. This type of concentration of risk is more likely to arise with
respect to commercial mortgage- and small business-related securities
than with respect to residential mortgage-related securities. For this
reason, the proposal requires a Type IV security that is small
business- or commercial mortgage-related be fully secured by interests
in a pool of homogeneous loans of numerous obligors. The definitions of
a Type IV small business-related security and a commercial mortgage-
related security also require that the aggregate amount of collateral
from loans of any one obligor not exceed 5 percent of the total amount
of collateral for the security when the security is issued, in order to
assure diversification.
In some instances, such as the prepayment of underlying loans, an
issuer or trustee may have the legal right to substitute collateral. If
the issuer or trustee has the legal right to substitute collateral, the
diversification requirement applies whenever the issuer or trustee
substitutes collateral throughout the term of an issue, rather than
merely at issuance.
Where the issuer or trustee does not have the legal right to
substitute collateral or elects not to exercise the right, the
diversification requirement applies only at issuance. If the
diversification requirement applied throughout the term of an issue
without ongoing substitution of collateral, prepayment of loans in the
pool would reduce the number of loans that serve as collateral for the
security and, at some point, the aggregate amount of collateral from
loans of one obligor could exceed the proposed 5 percent limit and
result in a violation of the regulation. Such a result would have the
unintended consequence of deterring potential issuers from securitizing
existing collateral.
The OCC requests comments on whether the term ``homogeneous loans''
should be specifically defined. The OCC also welcomes comments on
whether the proposed requirement for certain Type IV and all Type V
securities, that the aggregate amount of collateral from loans of any
one obligor may not exceed 5 percent of the total amount of collateral
for that security, or some other standard, would be appropriate to
assure adequate diversification of the collateral.
Type V security (Section 1.2(l))
The proposal adds a definition of ``Type V security'' in order to
address separately investment grade securities that represent interests
in assets a national bank may invest in directly. The definition
reflects the OCC's long-standing interpretations that in addition to
the investments specifically described in 12 U.S.C. 24 (Seventh),
national banks may hold securitized forms of assets in which they may
invest directly.4 In order to assure the high quality of this type
of asset-backed security, however, the definition requires that Type V
securities be rated investment grade. The practical effect of the
definition is that Type V securities are recognized as high quality
indirect interests in assets in which a national bank could invest
directly.
\4\ Interpretive Letter No. 362 (May 22, 1986), reprinted in
[1985-1987 Transfer Binder] Fed. Banking L. Rep. (CCH) para. 85,532
(bonds collateralized by mortgages); Interpretive Letter No. 388
(June 16, 1987), reprinted in [1988-1989 Transfer Binder] Fed.
Banking L. Rep. (CCH) para. 85,612 (mortgage-backed pass-through
certificates); Interpretive Letter No. 416 (February 16, 1988),
reprinted in [1988-1989 Transfer Binder] Fed. Banking L. Rep. (CCH)
para. 85,640 (securitized automobile loans); Investment Securities
Letter No. 29 (August 3, 1988), reprinted in [1988-1989 Transfer
Binder] Fed. Banking L. Rep. (CCH) para. 85,899 (investment limits
for asset-backed securities consisting of GMAC receivables);
Interpretive Letter No. 514 (May 5, 1990), reprinted in [1990-1991
Transfer Binder] Fed. Banking L. Rep. (CCH) para. 83,218
(securitized mortgages); Interpretive Letter No. 540 (December 12,
1990), reprinted in [1990-1991 Transfer Binder] Fed. Banking L. Rep.
(CCH) para. 83,252 (securitized credit card receivables); Security
Pacific v. Clarke, 885 F.2d 1034 (2d Cir. 1989), cert. denied, 493
U.S. 1070 (1990) (national bank authority to securitize assets).
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A Type V security also must be fully secured by interests in a pool
of homogeneous loans to numerous obligors. The definition requires a
pool of loans homogeneous as to type of loan, term of loan, or other
distinguishing characteristics, in order to facilitate performance
projections based on the common features of loans in the pool. As an
added safeguard to assure diversification of the collateral supporting
the security, the definition requires that the aggregate amount of
collateral from loans of any one obligor not exceed 5 percent of the
total amount of collateral for the security. Like the similar
requirement for Type IV securities, this diversification requirement
applies throughout the term of the issue only if the issuer exercises a
legal right to substitute collateral.
Commenters are invited to address whether these standards, which
also apply to certain Type IV securities, are appropriate.
Limitations on dealing in, underwriting, and purchasing and selling
securities (Section 1.3)
The proposal consolidates into one section the provisions regarding
limitations on dealing in, underwriting, purchasing, and selling
different types of securities. Proposed Sec. 1.3 incorporates portions
of current Secs. 1.4, ``Type I securities; standards for authorized
transactions;'' 1.5(b), ``Judgment based predominantly upon
[[Page 66155]]
reliable estimates;'' 1.6, ``Type II securities; authority to deal in
and underwrite;'' and 1.7, ``Types II and III securities; limitations
on holdings.'' Current Sec. 1.7(c), ``Limitations prescribed in
eligibility rulings,'' has been removed as unnecessary. Current
references to ``prudent banking judgment'' have been changed to ``safe
and sound banking practices.'' The latter change is consistent with the
OCC's implementation of this requirement and is not intended to change
the applicable standard. Most of the limitations on Type I, II, III,
and IV securities reflected in this section are derived from 12 U.S.C.
24 (Seventh).
In the proposal, the limitations with respect to Types II, III, and
V securities are expressed in terms of ``the aggregate par value of the
obligations of any one obligor,'' which is essentially the current
approach. The OCC requests comments on whether this is an appropriate
measure and, if not, whether alternative measures would be preferable.
Type II and III securities; other investment securities limitations
(Section 1.3(d))
As in current Sec. 1.7, the proposal provides that a national bank
may not hold Type II and III securities of any one obligor that have a
combined aggregate par value exceeding 10 percent of the bank's capital
and surplus. However, aggregation is not required with respect to
industrial development bonds. Instead, the 10 percent limitation
applies separately to each security issue of a single obligor when the
proceeds of that issuance are to be used to acquire and lease real
estate and related facilities to economically and legally separate
industrial tenants, and the issuance is payable solely from and secured
by a first lien on the revenues to be derived from rentals paid by the
lessee under net noncancellable leases. This provision incorporates the
substance of the interpretation that currently appears at 12 CFR
7.7570. The OCC proposes to remove Sec. 7.7570 in conjunction with this
change.
Type IV securities (Section 1.3.(e))
The new section describing eligible Type IV securities confirms the
authority granted to national banks by SMMEA and the RCDRI Act to
purchase and sell certain mortgage- and small business-related
securities. The section also reflects OCC interpretations concerning
the authority of a national bank to deal in obligations that are fully
secured by Type I securities, in which national banks may deal.5
These interpretations reflect the OCC's consistent approach of looking
to the substance of an instrument, and not just its form, to determine
the activities a bank may conduct in connection with the instrument. In
the case of Type IV securities that are fully secured by Type I
securities, the ultimate source of repayment is Type I securities. The
proposal does not limit the categories of Type IV securities in which
banks may deal, provided that the securities are collateralized by Type
I securities. Thus, a bank's authority to deal in the securities under
this part would be determined with reference to the standards that
apply to Type I securities. (The ability of a bank to securitize and
sell its loans, including loans that qualify as collateral for Type IV
securities, is addressed in Sec. 1.3(g).)
\5\ See Interpretive Letter No. 514 (May 5, 1990), reprinted in
[1990-1991 Transfer Binder] Fed. Banking L. Rep. (CCH) para. 83,218;
Interpretive Letter No. 362 (May 22, 1986), reprinted in [1985-1987
Transfer Binder] Fed. Banking L. Rep. (CCH) para. 85,532.
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Type V securities (Section 1.3(f))
The proposal establishes a quantitative concentration limitation of
15 percent of a bank's capital and surplus for purchases and sales of
Type V securities of any one obligor (or certain related obligors),
rather than the 10 percent limit that the OCC currently applies to
asset-backed securities that qualify as Type III securities. The OCC
believes this approach is appropriate because: (1) The 15 percent
standard is the same level used for the basic lending limit threshold;
(2) the qualitative standards for a Type V security have been
tightened, so that Type V securities are a high quality type of asset-
backed security; and (3) under certain circumstances set forth in
Sec. 1.4(c), holdings of Type V securities of different issuers will be
aggregated for purposes of calculating compliance with the 15 percent
limitation. Therefore, the OCC believes an investment limitation of 15
percent of a bank's capital and surplus should not present undue
investment or concentration risk.
The OCC solicits comments on whether a higher investment
limitation, such as 25 percent of a bank's capital and surplus, would
be sufficient to prevent excessive concentration.
Asset securitization (Section 1.3(g))
This new section reflects the OCC's established position that
national banks may securitize and sell their loan assets. The ability
of banks to sell conventional bank assets through the issuance and sale
of certificates evidencing interests in pools of the assets provides
flexibility that can enhance banks' safety and soundness.6 Asset
securitization provides an important source of liquidity by allowing
banks to convert relatively illiquid assets into instruments with
maturities and other features that investors are readily willing to
purchase. Another important benefit is the increased credit available,
due to the fact that a bank may make more loans with a given level of
capital (when the assets are removed from the bank's balance sheet) and
may diversify its lending into new markets without incurring undue
risk. Also, a bank is less dependent on deposits to fund its loans,
improving bank profitability, with positive implications for reducing
bank failure rates and minimizing draws on the deposit insurance funds.
The treatment described in the proposal reflects the OCC's long-
standing treatment of national banks' asset sales activities as
affirmed by case law.7
6 See, e.g., Remarks by Alan Greenspan, Chairman, Board of
Governors of the Federal Reserve System before the American Bankers
Association (October 8, 1994). See also Statement by Donald G.
Coonley, Chief National Bank Examiner, OCC, Asset Securitization and
Secondary Markets: Hearings Before the Subcomm. on Policy, Research,
and Insurance of the Comm. on Banking, Finance and Urban Affairs,
102d Cong., 1st Sess. 2-4 (1991), reprinted in OCC Quarterly Journal
(December 1991); and Joint Statement by Richard Spillenkothen,
Director, Division of Banking Supervision and Regulation, Board of
Governors of the Federal Reserve System, and Donald H. Wilson,
Financial Markets Officer, Federal Reserve Bank of Chicago,
Secondary Market for Commercial Real Estate Loans: Hearings Before
the Subcomm. on Policy, Research, and Insurance of the Comm. on
Banking, Finance and Urban Affairs, 102d Cong., 2d Sess. 16-19
(1992), reprinted in 78 Fed. Res. Bull. 492 (1992).
7 See, e.g., Interpretive Letter No. 585 (June 8, 1992),
reprinted in [1992-1993 Transfer Binder] Fed. Banking L. Rep. (CCH)
para. 83,406 (securitized motor vehicle retail installment sales
contracts purchased from automobile dealers); Interpretive Letter
No. 540 (December 12, 1990), reprinted in [1990-1991 Transfer
Binder] Fed. Banking L. Rep. (CCH) para. 83,252 (securitized credit
card receivables originated by bank or purchased from others);
Interpretive Letter No. 514 (May 5, 1990), reprinted in [1990-1991
Transfer Binder] Fed. Banking L. Rep. (CCH) para. 83,218
(securitized mortgages); Interpretive Letter No. 416 (February 16,
1988), reprinted in [1988-1989 Transfer Binder] Fed. Banking L. Rep.
(CCH) para. 85,640 (securitized automobile loans); Interpretive
Letter No. 388 (June 16, 1987), reprinted in [1988-1989 Transfer
Binder] Fed. Banking L. Rep. (CCH) para. 85,612 (sale of mortgage-
backed pass-through certificates); No Objection Letter No. 87-9
(December 16, 1987), reprinted in [1988-1989 Transfer Binder] Fed.
Banking L. Rep. (CCH) para. 84,038(securitization of commercial
loans originated by the bank); Interpretive Letter No. 362 (May 22,
1986), reprinted in [1985-1987 Transfer Binder] Fed. Banking L. Rep.
(CCH) para. 85,532 (sales of bonds collateralized by mortgages).
Regarding sales of participations in pools of loans, see Letter from
Billy C. Wood, Deputy Comptroller, Multinational Banking (May 29,
1981), reprinted in [1981-82 Transfer Binder] Fed. Banking L. Rep.
(CCH) para. 85,275; Letter from Paul M. Homan, Senior Deputy
Comptroller for Bank Supervision (February 1, 1980), reprinted in
[1981-82 Transfer Binder] Fed. Banking L. Rep. (CCH) para. 85,213;
Letter from John M. Miller, Deputy Chief Counsel (July 31, 1979),
reprinted in [1978-79 Transfer Binder] Fed. Banking L. Rep. (CCH)
para. 85,182; Letter from Paul M. Homan, Senior Deputy Comptroller
for Bank Supervision (April 20, 1979), reprinted in [1978-79
Transfer Binder] Fed. Banking L. Rep. (CCH) para. 85,167; Letter
from H. Joe Selby, Deputy Comptroller for Operations (October 17,
1978), reprinted in [1978-79 Transfer Binder] Fed. Banking L. Rep.
(CCH) para. 85,144; Letter from John G. Heimann, Comptroller of the
Currency (May 18, 1978), reprinted in [1978-79 Transfer Binder] Fed.
Banking L. Rep. (CCH) para. 85,116; Letter from Charles B. Hall,
Deputy Comptroller for Banking Operations (February 14, 1978),
reprinted in [1978-79 Transfer Binder] Fed. Banking L. Rep. (CCH)
para. 85,100; Letter from Robert Bloom, Acting Comptroller of the
Currency (March 30, 1977), reprinted in [1973-78 Transfer Binder]
Fed. Banking L. Rep. (CCH) para. 97,093. Regarding national bank
authority to securitize assets, see Security Pacific v. Clarke, 885
F.2d 1034 (2d Cir. 1989), cert. denied, 493 U.S. 1070 (1990).
[[Page 66156]]
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Investment company shares (Section 1.3(h))
The proposal permits a national bank to purchase and sell for its
own account shares of a registered investment company, subject to two
requirements: First, the investment company's portfolio must be
comprised entirely of assets in which the bank could invest directly.
Second, the amount of the bank's investment in shares of any one
investment company is subject to the most stringent investment
limitations applicable to the underlying securities and loans that
comprise that investment company's portfolio. This provision
incorporates OCC interpretations concerning the authority of a national
bank to hold instruments representing indirect interests in assets that
the bank could invest in directly. See Banking Circular 220 (November
21, 1986); An Examiner's Guide to Investment Products and Practices at
23 (December 1992).8
8 The Federal Reserve Board has adopted a similar
interpretation relating to state member banks' investments in mutual
funds that invest only in eligible securities. See 12 CFR 208.124.
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The OCC seeks comments on whether the definition of ``investment
company'' should be revised to include limited partnerships with
fewer than 100 investors, i.e., a partnership that would not qualify
as an investment company within the meaning of section 3(c)(1) of
the Investment Company Act of 1940, 15 U.S.C. 80a-3(c)(1), provided
that the partnerships' portfolios consist solely of Type I
securities that the bank may purchase and sell for its own account.
Securities held based on estimates of obligor's performance (Section
1.3(i))
Notwithstanding the general definition of an investment security
(Sec. 1.2(e)), the proposal retains the flexibility contained in the
current rule, for a bank to treat certain debt securities as investment
securities when the bank concludes, on the basis of estimates that the
bank reasonably believes are reliable, that the obligor will be able to
meet its obligations under that security. The bank may not hold
securities classified as investment securities solely in reliance on
projections of an obligor's future performance that in the aggregate
exceed 5 percent of the bank's capital and surplus. The bank must also
believe that the security may be sold with reasonable promptness at a
price which corresponds reasonably to its fair value. This approach is
modeled upon the OCC's current rule, which allows banks an additional
degree of flexibility to determine the quality of debt obligations, for
a limited portion of the bank's investment portfolio. The OCC notes
that securities representing interests in loans made for community
development purposes are one type of security that could, depending
upon their characteristics, be eligible for investment by national
banks under this standard.
The OCC requests comments as to whether it should provide further
clarification of the standards applicable to securities held based on
estimates of obligor's performance and, if so, in what respects
clarification is needed.
Calculation of limits (Section1.4)
Proposed Sec. 1.4 is new. Paragraphs (a) and (b), relating to the
calculation date and authority to require more frequent calculations,
are modeled on provisions contained in the OCC's new lending limit
regulation. As explained in connection with the lending limit rule, the
provision reduces regulatory burden by allowing banks to rely on
information they already collect for their Call Reports to calculate
compliance with their lending limits. The same reasoning applies to
calculating limits of banks' securities holdings, and the proposal
achieves a consistent approach in those two areas.
Calculation of Type III and Type V securities holdings (Section 1.4(c))
This proposed paragraph is a new approach to investment securities
limitations designed to address situations where a bank's investments
in securities of different issuers present similar sources of risk,
and, therefore, warrant aggregation. In calculating the amount of its
investment in Type III or Type V securities, the proposal requires a
bank to combine obligations of issuers that are related directly or
indirectly through common control and securities that are credit-
enhanced by the same entity. These aggregation rules, which result in a
bank being treated as if it has a greater investment in the securities
of one obligor than would otherwise be the case, apply separately to
Type III and Type V securities held by a bank. Current OCC policies
already apply comparable standards for aggregation of Type III
securities. As applied to Type V securities, the aggregation rules
provide important safeguards in connection with the 15 percent limit
provided for investments in Type V securities. Thus, banks are given
more investment flexibility with Type V securities, but the increased
investment authority is subject to explicit safeguards to address risk
concentrations.
Comment is invited regarding other bases upon which a bank should
combine its holdings when calculating its investment in Type III or
Type V securities of any one obligor. Specifically, the OCC seeks
comments as to whether a bank should combine obligations that are
predominately collateralized by loans made by the same originator or by
originators that are related directly or indirectly through common
control. In addition, commenters are asked to address whether and under
what circumstances an issuer or affiliate of the issuer would provide a
guarantee or other form of credit enhancement for Type V securities
that could be a source of credit exposure of the investing bank to the
issuer or its affiliate. Comment is also invited on whether the 15
percent investment limitation or a lower limitation is appropriate
under these circumstances.
The OCC is not at this time proposing to apply an aggregate limit
to a bank's combined holdings of Type III and Type V securities, but
requests commenters to address whether some form of an aggregate
limitation should apply to a bank's exposure to a single obligor,
regardless of the type of the obligation. For example, under the
proposal, a bank could invest in Type V securities of any one obligor
in an amount not exceeding 15 percent of the bank's capital and
surplus, and Type III securities of the same obligor in an amount not
exceeding 10 percent of the bank's capital and surplus. In addition,
under the lending limit rules, the bank could also make loans to the
same obligor in an amount up to 15 percent--or 25 percent depending
upon the collateral--of the bank's capital and surplus. Of course, the
OCC retains the ability to take action in connection with
concentrations inconsistent with safe and sound banking practices.
[[Page 66157]]
Calculation of investment company holdings (section 1.4(d))
In calculating the amount of its investment in investment company
shares under this proposal, a bank must use reasonable efforts to
calculate and combine its pro rata share of a particular security in
the portfolios of each investment company with the bank's direct
holdings of securities of that issuer.
Safe and sound banking practices; credit information required (Section
1.5)
The requirement of ``prudent banking judgment'' in current Sec. 1.8
is moved to Sec. 1.5 and changed to require banks to adhere to ``safe
and sound banking practices,'' in addition to any specific requirements
of part 1. The OCC will continue its supervision of national bank
investment securities activities, including those activities covered by
the changes to part 1, to ensure that these investments are effected in
a safe and sound manner. In recognition of the different types of risks
that may affect the quality of a security, the proposal reflects the
OCC position that safe and sound banking practices entail appropriate
consideration of the market, interest rate, liquidity, legal, and
operations and systems risks, as well as credit risk, posed by certain
types of securities investments.9 These standards are made clearly
applicable to all types of permissible securities activities and
holdings described in Sec. 1.3. This change also makes the language of
part 1 consistent with the authority of a federal banking agency to
institute a cease-and-desist proceeding against an insured depository
institution that has engaged or is about to engage in an ``unsafe and
unsound practice.'' 12 U.S.C. 1818(b). The ``unsafe and unsound
practice'' standard is well recognized by the courts. See, e.g.,
Northwest National Bank, Fayetteville, Arkansas v. U.S. Department of
the Treasury, Office of the Comptroller of the Currency, 917 F.2d 1111
(8th Cir. 1990); Gulf Federal Savings and Loan v. Federal Home Loan
Bank Board, 651 F.2d 259 (5th Cir.. 1981), cert. denied, 458 U.S. 1121
(1982); Groos National Bank v. Comptroller of the Currency, 573 F.2d
889 (5th Cir. 1978). The proposed section also gives banks additional
flexibility in maintenance of records for examination purposes.
9 See OCC Banking Circular 277, reprinted in 5 Fed.
Banking L. Rep. (CCH) para. 58,717 (October 27, 1993).
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Convertible securities (section 1.6)
Proposed Sec. 1.6 revises current Sec. 1.9 to clarify the
restrictions on investment in certain convertible securities and how
banks must account for securities that are convertible into stock or
have stock purchase warrants attached.
Securities held in satisfaction of debts previously contracted; holding
period; disposal; accounting treatment; non-speculative purpose
(section 1.7)
Proposed Sec. 1.7 contains new information in paragraphs (b)
``holding period,'' (c) ``accounting treatment,'' and (d) ``non-
speculative purpose,'' which embody standards consistent with OCC's
Other Real Estate Owned regulation, see 58 FR 46529 (September 2,
1993), and the OCC's related interpretation, see Interpretive Letter
No. 604 (October 8, 1992). A national bank holding securities in
satisfaction of debts previously contracted may do so for a period of
five years from the date that ownership of the securities was
originally transferred to the bank, plus an additional five years, if
permitted by the OCC.
Nonconforming investments (section 1.8)
This new section clarifies that a bank does not violate an
applicable investment limitation when an investment in securities that
was legal when made becomes nonconforming as a result of any of certain
enumerated events, provided the bank exercises reasonable efforts to
bring the investment into conformity with applicable limitations. The
events included in the regulation are: A decline in the bank's capital;
a merger of obligors, issuers, or credit-enhancers; issuers becoming
related directly or indirectly related through common control;
deterioration in the quality of a security so that the security is no
longer an investment security; the substitution of collateral by an
issuer or trustee that causes a Type IV or Type V security no longer to
conform to the diversification requirements of Secs. 1.2(k)(1) and (2)
and 1.2(l); a change in the investment securities limitations rules; or
other events identified by the OCC. This approach to nonconforming
holdings is based upon the approach contained in the OCC's new lending
limit regulation.
Commenters are specifically asked to address whether: (1) The
phrase ``reasonable efforts'' needs additional clarification, and if
so, how it might be defined or should be documented for the purposes of
this section; (2) the OCC should require a bank to make ``reasonable
efforts'' to bring into conformity an investment where the quality of a
security deteriorates so that the security is no longer an investment
security; and (3) any other events should be added to the list of
circumstances that may cause an investment in securities to become
nonconforming.
Amortization of premiums (current section 1.10)
Current Sec. 1.10 is removed. The OCC believes the section is no
longer necessary because generally accepted accounting principles
(GAAP) appropriately govern the treatment of premiums. GAAP requires
that a bank defer recognition of a premium paid for an investment
security and amortize the premium over the period to maturity of the
security. In contrast, current Sec. 1.10 permits a bank to charge off
the entire premium at the time of purchase or to amortize the premium
in any manner the bank considers appropriate as long as the premium is
extinguished entirely at or before the maturity of the security.
Interpretations
Indirect general obligations (section 1.100)
Proposed Sec. 1.100 is derived from current Sec. 1.120, but
clarifies and shortens the text. Current paragraphs (f) ``Tax
anticipation notes,'' and (g) ``Bond anticipation notes'' of Sec. 1.120
are removed as unnecessary.
Eligibility of securities for purchase, dealing in, and underwriting by
national banks; general guidelines (current section 1.100)
The proposal removes current Sec. 1.100, which contains
introductory and explanatory comments that the OCC believes are
unnecessary in light of other proposed changes to part 1.
Taxing powers of a State or a political subdivision (section 1.110)
Section 1.110 is a shortened version of current Sec. 1.130, with
portions removed that are no longer necessary. New text is added to
provide standards for determining when obligations that are expressly
or implicitly dependent upon voter or legislative authorization of
appropriations are considered supported by the full faith and credit of
a State or political subdivision.
Prerefunded or escrowed bonds and obligations secured by Type I
securities (section 1.120)
Proposed Sec. 1.120 is derived from current Sec. 1.120(e).
Type II securities; guidelines for obligations issued for university
and housing purposes (section 1.130)
Proposed Sec. 1.130 is a streamlined version of current Sec. 1.140,
and also clarifies the types of issuers whose
[[Page 66158]]
obligations qualify as Type II securities. Current Sec. 1.140(c)(1) and
portions of (c)(2) have been removed. See Proposed Sec. 1.130(c).
The OCC welcomes comments on any aspect of the proposed regulation,
particularly, those issues specifically noted in this preamble.
Derivation Table
[Only Substantive Modifications, Additions and Changes are Indicated]
------------------------------------------------------------------------
Revised provision Original provision Comments
------------------------------------------------------------------------
Sec. 1.1................. Secs. 1.1, 1.2...... Modified.
Sec. 1.2(a).............. ................... Added.
Sec. 1.2(b).............. Sec. 1.3(g)......... Modified.
Sec. 1.2(c).............. ................... Added.
Sec. 1.2(d).............. ................... Added.
Sec. 1.2(e).............. Sec. 1.3(b)......... Modified.
Sec. 1.2(f).............. Sec. 1.5(a)......... Significant change.
Sec. 1.2(g).............. Sec. 1.3(f).........
Sec. 1.2(h).............. Secs. 1.3(c), 1.110. Modified.
Sec. 1.2(i).............. 1.3(d)............... Modified.
Sec. 1.2(j).............. Sec. 1.3(e)......... Modified.
Sec. 1.2(k).............. ................... Added.
Sec. 1.2(l).............. ................... Added.
Sec. 1.3(a)......... Removed.
Sec. 1.3(a).............. Sec. 1.4............ Modified.
Sec. 1.3(b).............. Secs. 1.3(d), 1.6, Modified.
1.7(a).
Sec. 1.3(c).............. Secs. 1.3(e), 1.7(a) Modified.
Sec. 1.3(d).............. Sec. 1.7(a), 12 CFR Modified.
7.7570.
Sec. 1.3(e).............. ................... Added.
Sec. 1.3(f).............. ................... Added.
Sec. 1.3(g).............. ................... Added.
Sec. 1.3(h).............. ................... Added.
Sec. 1.3(i).............. Secs. 1.5(b), 1.7(b) Modified.
Sec. 1.4................. ................... Added.
Sec. 1.5................. Sec. 1.8............ Significant change.
Sec. 1.6................. Sec. 1.9............ Modified.
Sec. 1.7(a).............. Sec. 1.11...........
Sec. 1.7(b).............. ................... Added.
Sec. 1.7(c)......... Removed.
Sec. 1.7(d)......... Added.
Sec. 1.7(c).............. ................... Added.
Sec. 1.8................. ................... Added.
Sec. 1.10........... Removed.
Sec. 1.100.......... Removed.
Sec. 1.100(a)............ Sec. 1.120..........
Sec. 1.100(b)(1)......... Sec. 1.120(a).......
Sec. 1.100(b)(2)......... Sec. 1.120(b).......
Sec. 1.100(b)(3)......... Sec. 1.120(c).......
Sec. 1.100(b)(4)......... Sec. 1.120(d).......
Sec. 1.110............... Sec. 1.130.......... Modified.
Sec. 1.120(f)....... Removed.
Sec. 1.120(g)....... Removed.
Sec. 1.120............... Sec. 1.120(e).......
Sec. 1.130(a)............ Sec. 1.140(a)....... Modified.
Sec. 1.130(b)............ Sec. 1.140(b).......
Sec. 1.130(c)............ Sec. 1.140(c)....... Modified.
------------------------------------------------------------------------
Regulatory Flexibility Act
It is hereby certified that this regulation will not have a
significant economic impact on a substantial number of small entities.
Accordingly, a regulatory flexibility analysis is not required. This
regulation will reduce the regulatory burden on national banks,
regardless of size, by simplifying and clarifying existing regulatory
requirements.
Paperwork Reduction Act of 1995
The OCC invites comment on:
(1) Whether the proposed collection of information contained in
this notice of proposed rulemaking is necessary for the proper
performance of OCC functions, including whether the information has
practical utility;
(2) The accuracy of the estimate of the burden of the proposed
information collection;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the information collection on
respondents, including through the use of automated collection
techniques or other forms of information technology.
Respondents/recordkeepers are not required to respond to this
collection of information unless it displays a currently valid OMB
control number.
The collection of information requirements contained in this notice
of proposed rulemaking have been submitted to the Office of Management
and Budget for review in accordance with the Paperwork Reduction Act of
1995 (44 U.S.C. 3507(d)). Comments on
[[Page 66159]]
the collections of information should be sent to the Office of
Management and Budget, Paperwork Reduction Project (1557), Washington,
DC 20503, with copies to the Legislative and Regulatory Activities
Division (1557), Office of the Comptroller of the Currency, 250 E
Street, SW., Washington, DC 20219.
The collection of information requirements in this proposed rule
are found in 12 CFR 1.6 and 1.7. This information is required to
evidence compliance with statutory limitations on the quantity and type
of investments by national banks. The likely respondents/recordkeepers
are national banks.
Estimated average annual burden hours per respondent/recordkeeper:
2 hours.
Estimated number of respondents and/or recordkeepers: 3,000.
Estimated total annual reporting and recordkeeping burden: 6,000
hours.
Start-up costs to respondents: None.
Records are to be maintained for life of the investment.
Executive Order 12866
The OCC has determined that this proposal is not a significant
regulatory action.
Unfunded Mandates Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded
Mandates Act) (signed into law on March 22, 1995) requires that an
agency prepare a budgetary impact statement before promulgating a rule
that includes a Federal mandate that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year. If a budgetary
impact statement is required, Section 205 of the Unfunded Mandates Act
also requires an agency to identify and consider a reasonable number of
regulatory alternatives before promulgating a rule. Because the OCC has
determined that the proposed rule will not result in expenditures by
State, local, and tribal governments or by the private sector of $100
million or more in any one year, the OCC has not prepared a budgetary
impact statement or specifically addressed the regulatory alternatives
considered. Nevertheless, as discussed in the preamble, the rule has
the effect of reducing burden and increasing the discretion of national
banks regarding their sound investment activities.
List of Subjects
12 CFR Part 1
Banks, banking, National banks, Reporting and recordkeeping
requirements, Securities.
12 CFR Part 7
Credit, Insurance, Investments, National banks, Reporting and
recordkeeping requirements, Securities, Surety bonds.
Authority and Issuance
For the reasons set out in the preamble, chapter I of title 12 of
the Code of Federal Regulations is proposed to be amended as set forth
below:
1. Part 1 is revised to read as follows:
PART 1--INVESTMENT SECURITIES REGULATION
Sec.
1.1 Authority, purpose, and scope.
1.2 Definitions.
1.3 Limitations on dealing in, underwriting, and purchase and sale
of securities.
1.4 Calculation of limits.
1.5 Safe and sound banking practices; credit information required.
1.6 Convertible securities.
1.7 Securities held in satisfaction of debts previously contracted;
holding period; disposal; accounting treatment; non-speculative
purpose.
1.8 Nonconforming investments.
Interpretations
1.100 Indirect general obligations.
1.110 Taxing powers of a State or political subdivision.
1.120 Prerefunded or escrowed bonds and obligations secured by Type
I securities.
1.130 Type II securities; guidelines for obligations issued for
university and housing purposes.
Authority: 12 U.S.C. 1 et seq., 24 (Seventh), and 93a.
Sec. 1.1 Authority, purpose, and scope.
(a) Authority. This part is issued pursuant to 12 U.S.C. 1 et seq.,
12 U.S.C. 24 (Seventh), and 12 U.S.C. 93a.
(b) Purpose. This part prescribes standards under which national
banks may purchase, sell, deal in, underwrite, and hold securities,
consistent with the authority contained in 12 U.S.C. 24 (Seventh) and
safe and sound banking practices.
(c) Scope. The standards set forth in this part apply to national
banks, District of Columbia banks, and federal branches of foreign
banks. Further, pursuant to 12 U.S.C. 335, State banks that are members
of the Federal Reserve System are subject to the same limitations and
conditions that apply to national banks in connection with purchasing,
selling, dealing in, and underwriting securities and stock. In addition
to activities authorized under this part, foreign branches of national
banks also may be authorized to conduct international activities
pursuant to part 211 of this title.
Sec. 1.2 Definitions.
(a) Capital and surplus means:
(1) A bank's Tier 1 and Tier 2 capital included in the bank's risk-
based capital under the OCC's Minimum Capital Ratios in Appendix A to
part 3 of this chapter based upon the bank's Consolidated Report of
Condition and Income filed under 12 U.S.C. 1817(a)(3); plus
(2) The balance of a bank's allowance for loan and lease losses not
included in the bank's Tier 2 capital, for purposes of the calculation
of risk-based capital under 12 CFR part 3, based upon the bank's
Consolidated Report of Condition and Income filed under 12 U.S.C.
1817(a)(3).
(b) General obligation of a State or political subdivision means:
(1) An obligation supported by the full faith and credit of an
obligor possessing general powers of taxation, including property
taxation; or
(2) An obligation payable from a special fund or by an obligor not
possessing general powers of taxation, when an obligor possessing
general powers of taxation, including property taxation, has
unconditionally promised to make payments into the fund or otherwise
provide funds to cover all required payments on the obligation.
(c) Investment company means an investment company, including a
mutual fund, registered under section 8 of the Investment Company Act
of 1940, 15 U.S.C. 80a-8.
(d) Investment grade means a security rated investment grade (in
one of the top four rating categories) by each nationally recognized
statistical rating organization that has rated the security.
(e) Investment security means a marketable debt obligation that is
not predominantly speculative in nature. A security is not
predominantly speculative in nature if it is rated investment grade.
When a security is not rated, the security must be the credit
equivalent of securities rated investment grade.
(f) Marketable means that the security is:
(1) Registered under the Securities Act of 1933, 15 U.S.C. 77a et
seq.;
(2) Exempt from registration under the Securities Act of 1933, 15
U.S.C. 77c, and authorized under 12 U.S.C. 24 (Seventh) as eligible for
investment without limitation by a national bank, such as a security
issued or guaranteed by:
[[Page 66160]]
(i) The United States or a territory thereof;
(ii) The District of Columbia;
(iii) A State of the United States;
(iv) A political subdivision of a State or territory;
(v) A public instrumentality of one or more States or territories;
or
(vi) A person controlled or supervised by and acting as an
instrumentality of the Government of the United States pursuant to
authority granted by the Congress of the United States;
(3) A municipal revenue bond exempt from registration under the
Securities Act of 1933, 15 U.S.C. 77c(a)(2); or
(4) Offered and sold pursuant to Securities and Exchange Commission
Rule 144A, 17 CFR 230.144A, and rated investment grade.
(g) Political subdivision means a county, city, town, or other
municipal corporation, a public authority, and generally any publicly-
owned entity that is an instrumentality of a State or of a municipal
corporation.
(h) Type I security means:
(1) Obligations of the United States;
(2) Obligations issued, insured, or guaranteed by a department or
an agency of the United States Government, if the obligation, insurance
or guarantee commits the full faith and credit of the United States for
the repayment of the obligation;
(3) Obligations issued by a department or agency of the United
States, or an agency or political subdivision of a State of the United
States, that represent an interest in a loan or a pool of loans made to
third parties, if the full faith and credit of the United States has
been validly pledged for the full and timely payment of interest on,
and principal of, the loans in the event of non-payment by the third
party obligor(s);
(4) General obligations of a State of the United States or any
political subdivision;
(5) Obligations authorized under 12 U.S.C. 24 (Seventh) as
permissible for a national bank to deal in, underwrite, purchase, and
sell for the bank's own account; and
(6) Other securities the OCC deems eligible as Type I securities in
accordance with 12 U.S.C. 24 (Seventh).
(i) Type II security means an investment security that represents:
(1) Obligations issued by a State, or a political subdivision or
agency of a State, for housing, university, or dormitory purposes;
(2) Obligations of international and multilateral development banks
and organizations listed in 12 U.S.C. 24 (Seventh);
(3) Other obligations listed in 12 U.S.C. 24 (Seventh) as
permissible for a bank to deal in, underwrite, purchase, and sell for
the bank's own account, subject to a limitation of 10 percent of the
bank's capital and surplus; and
(4) Other securities the OCC deems eligible as Type II securities
in accordance with 12 U.S.C. 24 (Seventh).
(j) Type III security means an investment security that does not
qualify as a Type I, II, IV, or V security, such as corporate bonds and
municipal revenue bonds.
(k) Type IV security means:
(1) A small business-related security as defined in section
3(a)(53)(A) of the Securities Exchange Act of 1934, 15 U.S.C.
78c(a)(53)(A), that is fully secured by interests in a pool of
homogeneous loans to numerous obligors. The aggregate amount of
collateral from loans of any one obligor may not exceed 5 percent of
the total amount of collateral for the security;
(2) A commercial mortgage-related security that is offered or sold
pursuant to section 4(5) of the Securities Act of 1933, 15 U.S.C.
77d(5), or a commercial mortgage-related security as defined in section
3(a)(41) of the Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(41),
that represents ownership of a promissory note or certificate of
interest or participation that is directly secured by a first lien on
one or more parcels of real estate upon which one or more commercial
structures are located and that is fully secured by interests in a pool
of homogeneous loans to numerous obligors. The aggregate amount of
collateral from loans of any one obligor may not exceed 5 percent of
the total amount of collateral for the security.
(3) A residential mortgage-related security that is offered and
sold pursuant to section 4(5) of the Securities Act of 1933, 15 U.S.C.
77d(5), or a residential mortgage-related security as defined in
section 3(a)(41) of the Securities Exchange Act of 1934, 15 U.S.C.
78c(a)(41)), and that does not otherwise qualify as a Type I security.
(l) Type V security means a security that:
(1) Is rated investment grade;
(2) Is not a Type IV security; and
(3) Is fully secured by interests in a pool of homogeneous loans
(that a national bank could invest in directly) to numerous obligors.
The aggregate amount of collateral from loans of any one obligor may
not exceed 5 percent of the total amount of collateral for the
security.
Sec. 1.3 Limitations on dealing in, underwriting, and purchase and
sale of securities.
(a) Type I securities. A national bank may deal in, underwrite,
purchase, and sell Type I securities for its own account. The amount of
Type I securities that the bank may deal in, underwrite, purchase, and
sell is not limited to a specified percentage of the bank's capital and
surplus.
(b) Type II securities. A national bank may deal in, underwrite,
purchase, and sell Type II securities for its own account, provided the
aggregate par value of the obligations of any one obligor held by the
bank does not exceed 10 percent of the bank's capital and surplus. This
limitation applies to obligations that the bank is legally committed to
purchase and sell in addition to existing holdings.
(c) Type III securities. A national bank may purchase and sell Type
III securities for its own account, provided the aggregate par value of
the obligations of any one obligor held by the bank does not exceed 10
percent of the bank's capital and surplus. This limitation applies to
obligations that the bank is legally committed to purchase and sell in
addition to existing holdings.
(d) Type II and III securities; other investment securities
limitations. A national bank may not hold Type II and III securities of
any one obligor with an aggregate par value exceeding 10 percent of the
bank's capital and surplus. However, if the proceeds of each issue are
to be used to acquire and lease real estate and related facilities to
economically and legally separate industrial tenants, and if each issue
is payable solely from and secured by a first lien on the revenues to
be derived from rentals paid by the lessee under net noncancellable
leases, the bank may apply the 10 percent investment limitation
separately to each security issue of a single issuer of such
securities.
(e) Type IV securities. A national bank may purchase and sell Type
IV securities for its own account. The amount of the Type IV securities
that a bank may purchase and sell is not limited to a specified
percentage of the bank's capital and surplus. A national bank also may
deal in Type IV securities that are fully secured by Type I securities.
(f) Type V securities. A national bank may purchase and sell Type V
securities for its own account provided the aggregate par value of the
obligations of any one obligor does not exceed 15 percent of the bank's
capital and surplus. This limitation includes obligations the bank is
legally committed to purchase and sell in addition to existing
holdings.
(g) Asset securitization. A national bank may securitize and sell
its loan assets as a part of its banking business.
[[Page 66161]]
The amount of securitized loans that a bank may sell is not limited to
a specified percentage of the bank's capital and surplus.
(h) Investment company shares. A national bank may purchase and
sell for its own account investment company shares, provided that the
portfolio of the investment company consists wholly of securities and
loans that the national bank may purchase and sell for its own account
under this part, subject to the most stringent investment and/or
lending limitation that would apply to the underlying securities or
loans that comprise such company's portfolio.
(i) Securities held based on estimates of obligor's performance.
(1) Notwithstanding Sec. 1.2(e) of this part, a national bank may treat
a debt security as an investment security for purposes of this part if
the bank concludes, on the basis of estimates that the bank reasonably
believes are reliable, that the obligor will be able to satisfy its
obligations under that security, and the bank believes that the
security may be sold with reasonable promptness at a price which
corresponds reasonably to its fair value.
(2) The aggregate value of securities treated as investment
securities under paragraph (i)(1) of this section may not exceed 5
percent of the bank's capital and surplus.
Sec. 1.4 Calculation of limits.
(a) Calculation date. For purposes of determining compliance with
12 U.S.C. 24 (Seventh) and this part, a bank's limitations shall be
determined as of the most recent of the following dates:
(1) The date on which the bank's Consolidated Report of Condition
and Income is properly signed and submitted;
(2) The date on which the bank's Consolidated Report of Condition
and Income is required to be submitted; or
(3) When there is a change in the bank's capital category for
purposes of 12 U.S.C. 1831o and 12 CFR 6.3.
(b) Authority of OCC to require more frequent calculations. If the
OCC determines for safety and soundness reasons that a bank should
calculate its investment limits more frequently than required by
paragraph (a) of this section, the OCC may provide written notice to
the bank directing the bank to calculate its investment limitations at
a more frequent interval. The bank shall thereafter calculate its
investment limits at that interval until further notice.
(c) Calculation of Type III and Type V securities holdings. In
calculating the amount of its investment in Type III or Type V
securities of any one obligor, a bank shall combine:
(1) Obligations of issuers that are related directly or indirectly
through common control; and
(2) Securities that are credit-enhanced by the same entity.
(d) Calculation of investment company holdings. In calculating the
amount of its investment in investment company shares under this part,
a bank shall use reasonable efforts to calculate and combine its pro
rata share of a particular security in the portfolios of each
investment company with the bank's direct holdings of securities of
that issuer.
Sec. 1.5 Safe and sound banking practices; credit information
required.
(a) A national bank shall adhere to safe and sound banking
practices and the specific requirements of this part in conducting the
activities described in Sec. 1.3. This includes appropriate
consideration of the market, interest rate, credit, liquidity, legal,
and operations and systems risks presented by a proposed activity. The
bank's particular activities must be appropriate for that bank.
(b) In conducting these activities, the bank shall determine that
there is adequate evidence that an obligor possesses resources
sufficient to provide for all required payments on its obligations, or,
in the case of securities deemed to be investment securities on the
basis of reliable estimates of an obligor's performance, that the bank
reasonably believes that the obligor will be able to satisfy the
obligation.
(c) Each bank shall maintain records available for examination
purposes adequate to demonstrate that it meets the requirements of this
section. The bank may store the information in any manner that can be
readily retrieved and reproduced in a readable form.
Sec. 1.6 Convertible securities.
(a) When a national bank purchases an investment security
convertible into stock, or with a stock purchase warrant attached, the
bank shall write down the carrying value of the security to an amount
that represents the value of the security considered independently of
the conversion feature or attached stock purchase warrant.
(b) A national bank may not purchase securities convertible into
stock at the option of the issuer.
Sec. 1.7 Securities held in satisfaction of debts previously
contracted; holding period; disposal; accounting treatment; non-
speculative purpose.
(a) Securities held in satisfaction of debts previously contracted.
The restrictions and limitations of this part, other than those set
forth in paragraphs (b),(c), and (d) of this section, do not apply to
securities acquired:
(1) Through foreclosure on collateral;
(2) In good faith by way of compromise of a doubtful claim; or
(3) To avoid loss in connection with a debt previously contracted.
(b) Holding period. A national bank holding securities pursuant to
paragraph (a) of this section may do so for a period not to exceed five
years from the date that ownership of the securities was originally
transferred to the bank. The OCC may extend the holding period for up
to an additional five years.
(c) Accounting treatment. A bank shall mark-to-market securities
held pursuant to paragraph (a) of this section.
(d) Non-speculative purpose. A bank may not hold securities
pursuant to paragraph (a) of this section for speculative purposes.
Sec. 1.8 Nonconforming investments.
(a) An investment in securities, which conforms to this part when
made, will not be deemed a violation, but will be treated as
nonconforming if the investment no longer conforms to this part
because;
(1) The bank's capital declines;
(2) Issuers, obligors, or credit-enhancers merge;
(3) Issuers become related directly or indirectly through common
control;
(4) The investment securities rules change;
(5) The security no longer qualifies as an investment security;
(6) The substitution of collateral by an issuer or trustee causes a
Type IV or Type V security no longer to conform to the diversification
requirements of Secs. 1.2(k)(1) and (2) and 1.2(l)(3); or
(7) Other events identified by the OCC occur;
(b) A bank shall exercise reasonable efforts to bring an investment
that is nonconforming as a result of events described in paragraph (a)
of this section into conformity with this part unless to do so would be
inconsistent with safe and sound banking practices.
Interpretations
Sec. 1.100 Indirect general obligations.
(a) Obligation issued by an obligor not possessing general powers
of taxation. Pursuant to Sec. 1.2(c) of this part, an obligation issued
by an obligor not possessing general powers of taxation qualifies as a
general obligation of a State or political subdivision for the purposes
of 12 U.S.C. 24 (Seventh), if a party possessing general powers of
taxation unconditionally promises to make sufficient funds available
for all required payments in connection with the obligation.
[[Page 66162]]
(b) Indirect commitment of full faith and credit. The indirect
commitment of the full faith and credit of a State or political
subdivision (that possesses general powers of taxation) in support of
an obligation may be demonstrated by any of the following methods,
alone or in combination, when the State or political subdivision
pledges its full faith and credit in support of the obligation.
(1) Lease/rental agreement. The lease agreement must be valid and
binding on the State or the political subdivision, and the State or
political subdivision must unconditionally promise to pay rentals that,
together with any other available funds, are sufficient for the timely
payment of interest on, and principal of, the obligation. These lease/
rental agreements may, for instance, provide support for obligations
financing the acquisition or operation of public projects in the areas
of education, medical care, transportation, recreation, public
buildings, and facilities.
(2) Service/purchase agreement. The agreement must be valid and
binding on the State or the political subdivision, and the State or
political subdivision must unconditionally promise in the agreement to
make payments for services or resources provided through or by the
issuer of the obligation. These payments, together with any other
available funds, must be sufficient for the timely payment of interest
on, and principal of, the obligation. An agreement to purchase
municipal sewer, water, waste disposal, or electric services may, for
instance, provide support for obligations financing the construction or
acquisition of facilities supplying those services.
(3) Refillable debt service reserve fund. The reserve fund must at
least equal the amount necessary to meet the annual payment of interest
on, and principal of, the obligation as required by the applicable law.
The maintenance of a refillable reserve fund may be provided, for
instance, by statutory direction for an appropriation, or by statutory
automatic apportionment and payment from the State funds of amounts
necessary to restore the fund to the required level.
(4) Other grants or support. A statutory provision or agreement
must unconditionally commit the State or the political subdivision to
provide funds which, together with other available funds, are
sufficient for the timely payment of interest on, and principal of, the
obligation. Those funds may, for instance, be supplied in the form of
annual grants or may be advanced whenever the other available revenues
are not sufficient for the payment of principal and interest.
Sec. 1.110 Taxing powers of a State or political subdivision.
(a) An obligation is considered supported by the full faith and
credit of a State or political subdivision possessing general powers of
taxation when the promise or other commitment of the State or the
political subdivision will produce funds, which (together with any
other funds available for the purpose) will be sufficient to provide
for all required payments on the obligation. In order to evaluate
whether a commitment of a State or political subdivision is likely to
generate sufficient funds, a bank shall consider the impact of any
possible limitations regarding the State's or political subdivision's
taxing powers, as well as the availability of funds in view of the
projected revenues and expenditures. Quantitative restrictions on the
general powers of taxation of the State or political subdivision do not
necessarily mean that an obligation is not supported by the full faith
and credit of the State or political subdivision. In such case, the
bank shall determine the eligibility of obligations by reviewing, on a
case-by-case basis, whether tax revenues available under the limited
taxing powers are sufficient for the full and timely payment of
interest on, and principal of, the obligation. The bank shall use
current and reasonable financial projections in calculating the
availability of the revenues. An obligation expressly or implicitly
dependent upon voter or legislative authorization of appropriations may
be considered supported by the full faith and credit of a State or
political subdivision if the bank determines, on the basis of past
actions by the voters or legislative body in similar situations
involving similar types of projects, that it is reasonably probable
that the obligor will obtain all necessary appropriations.
(b) An obligation supported exclusively by excise taxes or license
fees is not a general obligation for the purposes of 12 U.S.C. 24
(Seventh). Nevertheless, an obligation that is primarily payable from a
fund consisting of excise taxes or other pledged revenues qualifies as
a ``general obligation,'' if, in the event of a deficiency of those
revenues, the obligation is also supported by the general revenues of a
State or a political subdivision possessing general powers of taxation.
Sec. 1.120 Prerefunded or escrowed bonds and obligations secured by
Type I securities.
(a) An obligation qualifies as a Type I security if it is secured
by an escrow fund consisting of obligations of the United States or
general obligations of a State or a political subdivision, and the
escrowed obligations produce interest earnings sufficient for the full
and timely payment of interest on, and principal of, the obligation.
(b) If the interest earnings from the escrowed Type I securities
alone are not sufficient to guarantee the full repayment of an
obligation, a promise of a State or a political subdivision possessing
general powers of taxation to maintain a reserve fund for the timely
payment of interest on, and principal of, the obligation may further
support a guarantee of the full repayment of an obligation.
(c) An obligation issued to refund an indirect general obligation
may be supported in a number of ways that, in combination, are
sufficient at all times to support the obligation with the full faith
and credit of the United States or a State or a political subdivision
possessing general powers of taxation. During the period following its
issuance, the proceeds of the refunding obligation may be invested in
U.S. obligations or municipal general obligations that will produce
sufficient interest income for payment of principal and interest. Upon
the retirement of the outstanding indirect general obligation bonds,
the same indirect commitment, such as a lease agreement or a reserve
fund, that supported the prior issue, may support the refunding
obligation.
Sec. 1.130 Type II securities; guidelines for obligations issued for
university and housing purposes.
(a) Investment quality. An obligation issued for housing,
university, or dormitory purposes is a Type II security only if it:
(1) Qualifies as an investment security, as defined in Sec. 1.2(e);
and
(2) Is issued for the appropriate purpose and by a qualifying
issuer.
(b) Obligation issued for university purposes. (1) An obligation
issued by a State or political subdivision or agency of a State or
political subdivision for the purpose of financing the construction or
improvement of facilities at or used by a university or a degree-
granting college- level institution, or financing loans for studies at
such institutions, qualifies as a Type II security. Facilities financed
in this manner may include student buildings, classrooms, university
utility buildings, cafeterias, stadiums, and university parking lots.
[[Page 66163]]
(2) An obligation that finances the construction or improvement of
facilities used by a hospital may be eligible as a Type II security, if
the hospital is a department or a division of a university, or
otherwise provides a nexus with university purposes, such as an
affiliation agreement between the university and the hospital, faculty
positions of the hospital staff, and training of medical students,
interns, residents, and nurses (e.g., a ``teaching hospital'').
(c) Obligation issued for housing purposes. An obligation issued
for housing purposes may qualify as a Type II security if the security
otherwise meets the criteria for a Type II security.
PART 7--INTERPRETIVE RULINGS
3. The authority citation for part 7 continues to read as follows:
Authority: 12 U.S.C. 1 et seq., 93a.
Sec. 7.7570 [Removed]
4. Section 7.7570 is removed.
Dated: December 14, 1995.
Eugene A. Ludwig,
Comptroller of the Currency.
[FR Doc. 95-30969 Filed 12-20-95; 8:45 am]
BILLING CODE 4810-33-P
Complete official Federal Register PDF
FR Doc. 95-30884 Real-Time Information Networks and Standards of Conduct; Notice of Proposed Rulemaking
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66182-66203]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30884]
=======================================================================
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DEPARTMENT OF ENERGY
Federal Energy Rregulatory Commission
18 CFR Part 37
[Docket No. RM95-9-000]
Real-Time Information Networks and Standards of Conduct; Notice
of Proposed Rulemaking
December 13, 1995
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of Proposed Rulemaking.
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[[Page 66183]]
SUMMARY: The Federal Energy Regulatory Commission proposes to amend its
regulations to add Part 37 containing rules establishing and governing
real-time information networks (RINs) and prescribing standards of
conduct. Under this proposal, each public utility (or its agent) that
owns and/or controls facilities used for the transmission of electric
energy in interstate commerce would be required to create and/or
participate in a RIN that would provide wholesale transmission
customers and potential wholesale transmission customers with
electronically provided information on available wholesale transmission
capacity, prices, and other information that will enable them to obtain
open access non-discriminatory transmission service.
DATES: Written comments (an original and 14 paper copies and one copy
on a computer diskette) must be received by the Commission by February
5, 1996.
ADDRESSES: Office of the Secretary, Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426.
FOR FURTHER INFORMATION CONTACT:
Marvin Rosenberg (Technical Information), Office of Economic Policy,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426 (202) 208-1283
William C. Booth (Technical Information), Office of Electric Power
Regulation, Federal Energy Regulatory Commission, 888 First Street, NE.
, Washington, DC 20426 (202) 208-0849
Gary D. Cohen (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street, NE. ,
Washington, DC 20426 (202) 208-0321
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission also provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in the Public Reference Room
at 888 First Street, NE., Washington, DC 20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing 202-208-1397 if dialing locally or 1-800-856-3920 if dialing
long distance. To access CIPS, set your communications software to
19200, 14400, 12000, 9600, 7200, 4800, 2400, or 1200 bps, full duplex,
no parity, 8 data bits and 1 stop bit. The full text of this order will
be available on CIPS indefinitely in ASCII and Wordperfect 5.1 format.
The complete text on diskette in WordPerfect format may also be
purchased from the Commission's copy contractor, La Dorn Systems
Corporation, also located in the Public Reference Room at 888 First
Street, NE., Washington, DC 20426.
Real-time Information Networks and Standards of Conduct, Docket
No. RM95-9-000, Notice of Proposed Rulemaking Table of Contents.
I. Introduction
II. Public Reporting Burden
III. Discussion
A. Background
B. Overview
C. What Types of Information Need to Be Posted on a RIN
1. Summary of the ``What'' Working Group Report
a. Introduction
b. Scope and Definitions
c. Posting Transaction Information
2. Discussion
a. RIN Objectives
b. ATC for Network Integration Service
c. ATC Calculation Methodology
d. Provisions for Unscheduled Flows
e. Paths for which ATC is not Posted
f. Differences in ATCs
g. Format for Transmission Tariffs
h. Posting Requirements for Recallability and Curtailability
i. Communicating Curtailments and Denials of Requests for
Service
j. Posting Information about Ancillary Services
k. Must Transmission Customers Resell Unused Capability?
l. Posting Information about Resales
m. Mechanism for Discounting Transmission Service Rates
n. Discussion of Generation Information Related to Redispatch/
Opportunity Costs
o. Discussion of Providing Additional Information Beyond ATC
p. Requested Start and End Times/Dates
q. Transaction Anonymity
r. Auditing Transmission Service Information
D. Technical Issues Concerning the Development and
Implementation of RINS
1. Summary of the ``How'' Working Group Report
a. Phase I Recommendations
b. Phase II Requirements
2. Discussion
a. Phasing
b. Standards Issues
i. Phase I Data Definitions for HTML Pages and File Transfers
ii. Internet Browsers
iii. Bandwidth of Node Connections to the Internet
iv. Common Codes
v. Data Compression Standards
vi. Templates for Upload and Download Header Information
c. Costs
d. Access to RIN Information by the Public
e. The Number of RIN Nodes
f. Connections to Third Party Networks
g. Unresolved Issues
i. Price Discrimination Issues
ii. Transmission Services Information Timing Requirements
iii.The Posting of Capacity Available for Resale
E. Standards of Conduct
F. Applicability
1. Non-Public Utility Transmission Providers
2. Public Utilities having no Transmission Facilities with
Commercial Value
IV. Regulatory Flexibility Act
V. Environmental Statement
VI. Information Collection Statement
VII. Public Comment Procedure
Regulatory Text
Attachment 1
I. Introduction
The Federal Energy Regulatory Commission (Commission) proposes to
amend 18 CFR to add Part 37 containing rules establishing and governing
real-time information networks (RINs) and standards of conduct. We are
issuing this notice of proposed rulemaking in conjunction with our
previously proposed Open Access rule.1
\1\ See Promoting Wholesale Competition Through Open Access Non-
Discriminatory Transmission Services by Public Utilities and
Recovery of Stranded Costs by Public Utilities and Transmitting
Utilities, Notice and Supplemental Notice of Proposed Rulemaking, 60
FR 17662 (April 7, 1995), IV FERC Stats. & Regs. para. 32,514 (March
29, 1995) (hereinafter Open Access NOPR).
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Under the proposed Open Access rule, public utilities that own and/
or control facilities used for the transmission of electric energy in
interstate commerce would be required to provide open access, non-
discriminatory wholesale transmission services. To ensure non-
discriminatory service, the proposed Open Access rule requires the
functional unbundling of wholesale services. A public utility's uses of
its own transmission system for the purpose of engaging in wholesale
sales and purchases of electric energy must be separated from other
activities and transmission services (including ancillary services)
must be taken under filed transmission tariffs of general
applicability.
To ensure this separation of service, the public utility must
provide customers with timely access to transmission-related
information. As we stated in the Open Access NOPR, ``functional
unbundling means that the public utility, in order to provide non-
discriminatory open access to transmission and ancillary services
information, must rely upon the same electronic network that its
transmission customers rely upon to obtain transmission information
about its
[[Page 66184]]
system when buying or selling power.'' 2 The rule we propose today
is designed to begin the process of achieving this objective.
\2\ Open Access NOPR at pp. 95-96.
---------------------------------------------------------------------------
Under the proposed rule, each public utility as defined in section
201(e) of the Federal Power Act, 16 U.S.C. 824(e) (1994), (or its
agent) that owns and/or controls facilities used for the transmission
of electric energy in interstate commerce would be required to develop
and/or participate in a RIN. The proposed regulations, relying heavily
on work already done by representatives of all segments of the electric
power industry, describe what information must be provided on the RIN
and how RINs are to be implemented and used.
The Commission also proposes a code of conduct that would apply to
all public utility transmission providers. This code of conduct would
require, among other matters, a separation of the utilities'
transmission system operations and wholesale marketing functions, and
would define permissible and impermissible contacts between employees
that conduct wholesale generation marketing functions and employees
that handle transmission system operations and reliability in the
system control center or at other facilities or locations.
Within 60 days of publication of a final rule in the Federal
Register, public utilities would be required to file with the
Commission procedures that would enable customers and the Commission to
determine that public utilities are in compliance with the RINs and
code of conduct requirements.
II. Public Reporting Burden
The proposed rule would require transmission providers to establish
and/or participate in a RIN, which would provide wholesale transmission
users and potential wholesale transmission users with information by
electronic means about transmission capacity and prices.
The following collection of information contained in this Notice of
Proposed Rulemaking has been submitted to the Office of Management and
Budget for review under section 3507(d) of the Paperwork Reduction Act
of 1995, 44 U.S.C. 3507(d). For copies of the OMB submission, contact
Michael Miller at 202-208-1415. Comments are solicited on the
Commission's need for this information, whether the information will
have practical utility, the accuracy of the provided burden estimates,
ways to enhance the quality, utility, and clarity of the information to
be collected, and any suggested methods for minimizing respondents'
burden, including the use of automated information techniques. Persons
wishing to comment on the collections of information should direct
their comments to the Desk Officer FERC, Office of Management and
Budget, Room 3019NEOB, Washington, D.C. 20503, phone 202-395-3087,
facsimile: 202-395-7285 or via the Internet at [email protected].
Comments must be filed with the Office of Management and Budget within
60 days of publication of this document in the Federal Register. 3
A copy of any comments filed with the Office of Management and Budget
also should be sent to the following address at the Commission: Federal
Energy Regulatory Commission, Information Services Division, Room 41-
l7, Washington, DC 20426. For further information, contact Michael
Miller, 202-208-1415.
\3\ Although the full text of this document and Attachment 1
will be published in the Federal Register, the three appendices
attached to this document (Appendix ``A''--the report of the
``what'' working group, Appendix ``B''--the report of the ``how''
working group, and Appendix ``C''--templates for upload and download
of files and HTML displays) will not. The complete NOPR, including
these appendices, is available for inspection and copying in the
Commission's Public Reference Room and is accessible through the
Commission Issuance Posting System (CIPS), an electronic bulletin
board service providing access to Commission documents.
Estimated Annual Burden
----------------------------------------------------------------------------------------------------------------
Total
Data Collection No. of No. of Hours per annual
Respondents Responses Response hours
----------------------------------------------------------------------------------------------------------------
Reporting........................................................ 84 1 8352 701,568
Recordkeeping.................................................... 84 1 1670 140,280
Total Annual Hours for Collection (Reporting + Recordkeeping, (if
appropriate))=841,848...........................................
----------------------------------------------------------------------------------------------------------------
Data collection costs: The Commission seeks comments on the costs
to comply with these requirements. It has projected the average
annualized cost per respondent to be the following:
Annualized Capital/Startup Costs............................. $190,000
Annualized Costs (Operations & Maintenance).................. $620,000
Total Annualized Costs..................................... $810,000
Internal Review
The Commission has reviewed the proposed collection of information
and has determined that the collection of information is necessary and
conforms to the Commission's plan, as described in this notice of
proposed rulemaking, for the collection, efficient management, and use
of the required information. The Commission has assured itself, by
means of its internal review, that there is specific, objective support
for the information burden estimate set forth above.4
\4\ See 44 U.S.C. 3506 (c).
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III. Discussion
A. Background
On March 29, 1995, the Commission issued the Open Access NOPR
(referenced above). In the Open Access NOPR, the Commission proposed
rules that would require public utilities that own and/or control
facilities used for the transmission of electric energy in interstate
commerce to provide wholesale customers with transmission services
comparable to those that they provide to themselves. The goal of the
Open Access NOPR is to eliminate unduly discriminatory practices in the
provision of wholesale transmission services in interstate commerce,
and to facilitate the development of a competitive bulk power market.
The Open Access NOPR includes minimum terms and conditions that a
public utility would have to include in its wholesale transmission
tariffs, the types of transmission and related ancillary services it
must offer to its customers, and a requirement that each public utility
purchase wholesale transmission services for its new wholesale sales
and purchases under the same transmission tariffs applicable to its
wholesale customers. The Open Access NOPR also proposes that public
utilities be allowed to recover certain
[[Page 66185]]
legitimate and verifiable stranded costs associated with certain
requirements contracts entered into prior to July 11, 1994.
We do not believe that open access non-discriminatory transmission
services can be completely realized until we remove real-world
obstacles that prevent transmission customers from competing
effectively with the Transmission Provider. One of these obstacles is
unequal access to transmission information. In the Commission's view,
transmission customers must have simultaneous access to the same
information available to the Transmission Provider if truly non-
discriminatory transmission services are to be a reality.
For this reason, when we issued the Open Access NOPR we also issued
a notice of technical conference and request for comments (RIN Notice)
that initiated this proceeding.5 In the RIN Notice, the Commission
announced that we were considering establishing RIN rules to effectuate
the non-discrimination goals of the Open Access NOPR, and that we
expected to require a RIN or other options to ensure that potential and
actual transmission service customers will receive access to
information.6
\5\ Real-Time Information Networks, 60 FR 17726 (April 7, 1995),
IV FERC Stats. & Regs. para. 35,028 (March 29, 1995).
\6\ In the RIN Notice, we chose the term ``Real-Time Information
Network'' to describe the electronic information system envisioned
by that notice. We chose that term because we wanted to distinguish
the RIN from the electronic bulletin board (EBB) rules developed for
the natural gas industry and because we wanted to emphasize that
information would not be distributed to different users at different
times. However, we did not mean to suggest that transmission
providers would be precluded from taking adequate time to evaluate
requests for service before responding to them. Perhaps a more
precise term would have been a same-time information network.
In the two working group reports (discussed below) we are urged
to change the name ``RIN'' to ``electronic information network'', by
the ``what'' working group, and to ``transmission services
information network'', by the ``how'' working group. Either of these
designations would be equally acceptable. In the meantime, however,
we are retaining the title ``RIN'' to make clear that this NOPR is
proposing rules consistent with the ideas expressed in the RIN
Notice.
---------------------------------------------------------------------------
The Commission also announced its goal to establish uniform
requirements for a RIN or other communications device at the same time
that it adopts a rule requiring open access non-discriminatory
transmission services. To accomplish this objective, the Commission
invited interested persons to file comments and to participate in a
technical conference, where they could make presentations on their
positions. As a starting point, the Commission attached to the RIN
Notice a Commission Staff paper identifying various RIN-related issues,
and directed commenters to respond to the specific issues identified in
the Staff paper and to provide their general comments on the RIN
concept. The RIN Notice stated that the Commission expected to hold
informal conferences, enlisting working groups to discuss any remaining
issues, and that input from the technical conference and informal
conferences would be the basis for subsequent procedures. The RIN
Notice set a timetable to be followed, so that RIN requirements could
be in place no later than the effective date of a final rule on open
access.
Question 1. We seek comment on whether to continue to call the
information network a ``RIN'' and, if not, what name should be used
in its place.
In response to the RIN Notice, Kansas City Power & Light Company
and Continental Power Exchange, Inc. sponsored a forum on EBBs held on
March 31, 1995 in Kansas City. That forum was attended by more than 50
representatives of the 17 entities with open access filings (at that
time) at the Commission, along with state regulators from Kansas and
Missouri, and the Edison Electric Institute (EEI). A follow-up workshop
on EBBs and RINs, sponsored by EEI, was held in Kansas City on April
19, 1995, and was attended by more than 150 people from all segments of
the electric industry.
The North American Electric Reliability Council (NERC) and its nine
regional councils offered to act as sponsor and neutral facilitator for
the electric industry regarding electronic information systems to:
Determine the information requirements of transmission
users;
Develop industry wide standards for reporting and using
this information;
Ensure that any information systems developed can build
upon and be compatible with existing information systems in the
industry; and
Meet the Commission's goal of ensuring that potential
purchasers of transmission services would receive access to
information to enable them to obtain open access transmission
service on a non-discriminatory basis.
The EEI workshop participants accepted NERC's offer to facilitate
industry discussions on RINs. They also decided that, rather than
awaiting Commission-drafted standards, they would try to develop an
industry wide consensus, for submittal to the Commission, that would
ensure fair and equal participation by both transmission customers and
transmission providers and that would define the necessary information
requirements and standards for a RIN.
Accordingly, on May 3-4, 1995, NERC called together a sub-group of
workshop participants, representing all categories of transmission
users and providers, to draft a model or ``straw man'' document that
would outline a preliminary list of minimum information requirements
for transmission users (i.e., what information should be included on a
RIN) and to reach agreement on what would constitute a fair and
inclusive process for reaching consensus among transmission user groups
on information requirements for a RIN. The resulting consensus document
(Strawman 1) set the agenda for subsequent discussions at five regional
workshops, held across the country, with participation by over 500
individuals from all segments of the electric power industry. The
strawman group issued a revised document (Strawman 2), on June 2, 1995,
based on those discussions. Strawman 2 was distributed to the
participants in the regional workshops and to Commission Staff and
served as the discussion point for a NERC-sponsored workshop held in
Washington, DC on June 26-28, 1995. Although participants at this
workshop were not able to reach consensus on numerous issues, they were
able to identify the important unresolved issues and where efforts
would need to be made to reach consensus.
Other groups also got involved early on with RIN-related issues.
For example, the Western Group 7 began working in February 1995
(prior to issuance of the RIN Notice) on standards for the electronic
information systems needed for implementation of comparable
transmission service. WRTA members were joined in their discussions by
members of the Southwest Regional Transmission Association (SWRTA), and
the Northwest Regional Transmission Association (NWRTA). Together,
WRTA, SWRTA, and NWRTA held a series of informal workshops to discuss
tariff issues. Representatives of the Western Group also attended the
April 19, 1995 meeting sponsored by EEI on national RIN standards and
participated in the NERC process.
\7\ This group is composed of 17 major transmitting utilities, 3
non-utility suppliers, 10 transmission dependent utilities (or
groups of utilities), and two state commissions, all located in the
western United States and western Canada (the geographic area
covered by the interconnected systems of the Western Systems
Coordinating Council).
---------------------------------------------------------------------------
In all, 108 sets of comments were submitted to the Commission in
response to the RIN Notice. Although the comments were nearly uniformly
favorable to the RIN concept, the
[[Page 66186]]
comments exposed many disagreements about what information should be
contained on a RIN, what kind of a RIN system or systems should be
required, what transactions should be covered, how terms should be
defined, etc. However, most commenters understood that access to
transmission information--by all parties at the same time--is essential
to ensuring non-discriminatory open access transmission services.
The comments led to a technical conference on RINs (Technical
Conference) held in Washington, DC on July 27 and 28, 1995. Panels at
the Technical Conference discussed the status of industry efforts to
date, industry standards for information systems, what information is
needed on a RIN, how a RIN should be structured, what issues need to be
resolved, and what steps should be taken next. In addition,
demonstrations were presented on different transmission information
systems and energy trading systems.
The participants in the July 27, 1995 conference agreed that the
NERC-sponsored process, seeking to reach consensus and make
recommendations to the Commission on what information should be
included on a RIN, should continue, with NERC acting as a facilitator
to promote participants reaching consensus and to prepare a ``what''
report to the Commission describing areas of consensus and non-
consensus. The participants also agreed that another industry-sponsored
working group should be created, with the Electric Power Research
Institute (EPRI) acting as a facilitator to promote consensus on
``how'' to implement a system that would accomplish these objectives,
and to prepare a ``how'' report to the Commission.
The NERC and EPRI representatives pledged to conduct an open
process that would keep all interested persons informed of developments
by the working groups and that would provide input from interested
persons to working group members. Interested persons also were invited
to attend open workshops sponsored by both working groups.
The ``what'' industry working group consisted of 26 members
providing balanced representation from all segments of the electric
power industry and included liaisons from the Commission, the ``how''
working group, NARUC, and Canadian utilities. Major industry trade
groups sent observers. On October 9, 1995, the ``what'' working group
made a draft report available for public review. On October 16, 1995,
it submitted a final report to the Commission.
Following the Technical Conference, the ``how'' working group used
a similar open and representative process that included participation
by all industry and customer segments. On October 16, 1995, the ``how''
working group submitted to the Commission its report on how a RIN
should be implemented.
The two working group reports address both the issues on which the
participants were able to reach consensus and the issues on which no
consensus was reached. Additionally, nine sets of comments were filed
by working group participants who wished to provide a fuller
explanation of their views on particular issues. We will address the
issues raised by the working group reports below.
B. Overview
In what follows we discuss first, in section C below, what types of
information must be posted on the RIN. The Commission proposes to adopt
most of the technical parameters agreed to by the ``what'' working
group. Our final rule would include general regulations governing who
must develop and maintain RINs and what information must be posted on
the RIN. Next, in section D below, we discuss the technical issues
surrounding the implementation and use of RINs. We propose to set out
the details of these requirements in a publication that would be
entitled Standardized Data Sets and Communication Protocols and that
would be issued as part of our final RIN rule. We propose to implement
the RINS in two phases, with the first phase (Phase I) being completed
when the Open Access rule goes into effect. In the discussion below, we
address the specific, and at times very technical, issues considered
respectively by the ``what'' and ``how'' working groups.
In section E below, we consider proposed standards of conduct
governing the separation of transmission and generation functions.
These standards are, we believe, a necessary adjunct to the RINs to
ensure non-discriminatory access. The proposed standards are drawn from
those that have been developed in our regulation of the natural gas
industry. Last, in section F, we discuss issues of applicability for
the proposed RINS and standards of conduct.
In setting out proposed requirements for implementing RINs, our
primary objective is to establish regulations that ensure the
accessibility of all information necessary to the full and fair
implementation of the requirements of the Open Access NOPR. The
problem, of course, is that we do not now know the specifics of the
final Open Access rule. Yet, the information that will be required to
be posted depends upon what is required or permitted under the final
Open Access rule. For example, what must be posted on the RIN regarding
the resale of transmission depends upon whether, in the final Open
Access Rule, resales are permitted and, if so, under what conditions.
Similarly, what information must be posted regarding transmission
pricing discounting will depend upon whether, in the final Open Access
Rule, discounting is permitted and, if so, under what conditions. These
are just two examples, and are not inclusive, of RINs information that
may change depending on what is in the final open access rule.
The final RIN rule will be designed to accommodate whatever final
open access rules the Commission adopts and whatever industry
structures evolve to meet those rules. In the interim, the RIN proposal
follows the Proposed Open Access Rule. For example, it assumes that
resales will be permitted 8 Similarly, the proposed RIN standards
are designed to accommodate the so called ``contract path'' approach
presently used in today's electricity markets. However, the Commission
is open to other approaches that may develop in the future under an
Open Access regime. Consequently, commenters should consider how the
proposed RINS and standards of conduct regulations can be designed to
meet these needs.
\8\ In designing proposed RINs regulations dealing with what may
be required in the Final Open Access rule, our assumptions should in
no way be taken as prejudging the various issues involved in the
Open Access rulemaking.
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Question 2. What issues associated with RIN standards would have
to be addressed if in an open access transmission environment the
electric power industry moves to regional pricing, flow-based
pricing, or other pricing models that depart from the ``contract
path'' approach presently used for pricing electric transmission
service? How in structuring RIN standards can the Commission provide
for this contingency?
C. What Types of Information Need To Be Posted on a RIN
1. Summary of the ``What'' Working Group Report
The ``what'' working group report (What Report), represents a broad
consensus of all segments of the electric utility industry. It
summarizes the functional requirements for Real-Time Information
Networks to facilitate open access to the transmission system.
[[Page 66187]]
a. Introduction
The What Report starts with a number of general assumptions and
definitions. They include phasing of RIN implementation (Phases I and
II), functional separation, accessibility to the RIN and definitions
for ``transmission provider'', ``transmission customer'', and
``transmission provider's tariff.'' The What Report for the most part
only addresses recommended Phase I requirements.
The What Report states that the RIN will include viewing tools
enabling equivalent, basic access to the data base for all RIN users.
However, many users will desire to customize their access to the data
base and have the information presented in a variety of ways tailored
to their individual needs. The RIN itself will not seek to satisfy this
need. Instead, private software developers will be permitted and
encouraged to develop and market customized viewing tools for the RIN.
The What Report lists five objectives of the RIN which are
discussed in section C.2.(a) below. It recommends that, at least
initially, the RIN be used as a transmission service reservation
system, and not as a transmission scheduling system. Scheduling
involves actually implementing a service on control area computers.
Thus, the RIN is separate from system operations, and system
reliability is handled separately. The decision to include transmission
service scheduling on the RIN is left to later development.
Finally, the report discusses the requirement that information
posted on the RIN will be date and time stamped and automatically
stored in downloadable log files so that audits can be performed as
required.
b. Scope and Definitions
The second section of the report deals with scope and definitions.
The What Report makes a distinction between ``near-term'' and ``far-
term'' transmission service requests. ``Near-term'' requests can be
responded to quickly without additional work. ``Far-term'' requests
require off-line studies to determine if the request for service can be
accommodated.
The What Report also states that it does not seem possible to post
availability for Network Integration Service Transmission on the RIN.
Therefore, only the available transmission capability (ATC) for point-
to-point transmission service would be posted on the RIN.
The What Report discusses the concept of ATC and gives some
consideration to calculating it. Although the What Report recognizes
that a consistent methodology is needed, no such methodology is
proposed in the report.
The What Report discusses the concept of ``transmission paths'' for
which ATC is to be reported and provides some guidelines for
calculating ATC. It appears from the discussion in the What Report that
ATC calculations over transmission paths would reflect the impacts of
parallel flows. Although a contract path can be the basis for a
commercial transmission transaction, such a transaction will use a
combination of one or more transmission paths. A transmission path may
be a single path or sequence of contiguous paths that form a continuous
electrical connection. In alternating current systems, electricity will
not flow solely on the contract path, but will flow on the entire
transmission system of the interconnection in accordance with the laws
of physics. Transmission Providers are urged to develop regionally
accepted methods of attributing all contributions of loading to each
transmission path including the effects of the real flow contribution
of all transactions.
A major concern for the ``what'' working group (What Group) is over
potential differences between the ATC posted on the RIN and the
capability actually available when requested. The What Report points
out that ATC calculations are only engineering estimates. There is no
guarantee that they are correct. It states that ``[t]he amount of ATC
posted shall be that amount that the Responsible Party expects, in good
faith, to be available on a specific interface or Path in a specific
direction, based on engineering analysis and other information that is
available to the Responsible Party at the time of the posting.'' 9
Also, conditions may change between the time the ATC is calculated and
when service is requested.
\9\ What Report at 8.
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Under the What Group's proposal, the posting of ATC is not to be
required until a business need arises for a transmission path. ``A
`business need' is signified by a request from a Transmission Customer
concerning information or a reservation on a Path which has the
potential to be constrained.'' 10 The What Report proposes two new
attributes for transmission service to replace the terms ``firm'' and
``non-firm'' that are believed to be causing confusion as to the basic
nature of transmission services. The new attributes are recallability
and curtailability. All transmission service is curtailable.
Curtailment is made only in cases ``where system reliability is
threatened and/or emergency conditions exist.'' 11 Recallability
is ``the right of a Transmission Provider to interrupt all or part of a
transmission service for any reason that is not unduly discriminatory *
* * .'' 12 The What Report states that recallability distinguishes
between firm and non-firm service. According to the What Report, firm
service is not recallable.
\10\ What Report at 10.
\11\ What Report at 15.
\12\ What Report at 14.
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The What Report defines a standard set of attributes for describing
transmission products on the RIN.
The scope and definitions section concludes with discussions of
several areas of non-consensus. The What Group could not agree on the
following: whether and how to post information about ancillary services
on the RIN; whether transmission customers not using transmission
capability that they reserve must make it available to others; whether
to post all discounts or only those provided to affiliates; and whether
generator cost and status information to verify redispatch/opportunity
cost charges must be available on the RIN.
c. Posting Transaction Information
The Posting Transaction Information section discusses four major
types of information that are to be posted on the RIN:
1. Available Transmission Capability Information;
2. Transmission Providers' Product Offerings and Prices;
3. Specific Transmission Service Requests; and
4. Informal Transmission Communications.
The What Report itemizes the information that should be posted in
each of these areas. A table identifies who is responsible for posting
what on the RIN. The What Group was unable to reach consensus on
whether to require the posting of additional information beyond ATC.
Some believe that additional information is needed as a safeguard
against anti-competitive behavior and provides valuable information
about transmission constraints. This information includes the run
status of generators that have a significant impact on ATC, information
about constrained transmission lines, and the identity and status of
facilities causing curtailments. Others believe that this additional
information is unnecessary and burdensome. This
[[Page 66188]]
information also is believed to be commercially sensitive.
A second area of non-consensus was whether individual transmission
requests and responses should be made known only to the Transmission
Customer making the request, the Transmission Provider to whom the
request was made and, to the extent necessary, the affected control
area operators and/or security centers or to all users of the RIN on a
same-time basis. Some argue that this information is commercially
sensitive and should be limited just to the parties in a transaction.
Others believe that full disclosure is important to safeguard against
potential anti-competitive behavior. A compromise was proposed, but not
agreed to, to delay release of this information for a certain time.
2. Discussion
The What Group assumed the task of developing recommended
requirements for the information to be posted on a RIN that would meet
the industry's need for customer access to information about wholesale
transmission services. In the text that follows, we will discuss these
recommendations and will identify those recommendations that at this
stage we reject (as previously noted, further background is provided by
the complete What Report, attached to this NOPR as Appendix ``A''). We
also will discuss certain issues not addressed by the What Group.
a. RIN Objectives
The Commission proposes to modify slightly the five objectives
listed in the What Report. The changes are intended to expand and
better define the objectives. The revised objectives are:
1. Allow Transmission Customers to make requests for
transmission services offered by Transmission Providers and the
secondary market;
2. Allow Transmission Customers to view and download in standard
formats, using standard protocols, necessary information regarding
the transmission system to enable prudent business decision making;
3. Provide a mechanism for posting, viewing, uploading and
downloading of information between customers and providers regarding
available products and desired services;
4. Enable all Transmission Customers to clearly identify the
extent to which their transmission service requests and/or schedules
were denied or curtailed and how their treatment compares to that of
their competitors; and
5. Allow Transmission Customers to access in electronic format
information supporting ATC calculations and historical transmission
service requests and schedules for various audit purposes.
The What Report states that ``[i]n instances where requests are
denied or transactions are curtailed, the RIN should provide a
mechanism for Transmission Providers to communicate to Transmission
Customers (1) the reason those transactions could not be accommodated
and (2) the options, if any, for adjusting operation of the system to
increase transfer capability in order to accommodate those
transactions.'' 13 The Commission wishes to clarify that since
scheduling and the curtailment of schedules will not be done through
the RIN initially, this curtailment information would be for
information purposes only.
\13\ What Report at 6.
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b. ATC for Network Integration Service
The What Report states that it is not possible to post the
availability of Network Integration Service Transmission on a RIN. The
Commission recognizes that before-the-fact measurement of the
availability of network transmission service is difficult. Nonetheless,
the Commission believes that it is important to give potential network
customers an easy-to-understand indicator of service availability
(e.g., in MWs), in addition to power flow data and other studies used
by utilities to support the calculation of ATC.
Question 3. The Commission requests comments on how best to post
the availability of network transmission service on the RIN. Should
Transmission Providers be required to post conservative estimates as
a preliminary matter that could be improved with additional study?
Is there an alternative service concept that is more suitable to
measurement than the current version of network service?
As discussed in section C.2.(o) below, information supporting
``point-to-point'' service ATC calculations is required to be available
for download. This information should help potential network customers
assess the availability of network service capability.
c. ATC Calculation Methodology
The What Group notes that the proposed Open Access rule requires
that the utility ``describe the method used to estimate ATC in
sufficient detail to allow others to do the same analysis.'' 14
However, the proposed Open Access rule does not propose a methodology
for calculating ATC. The What Report contains some useful guidelines
for calculating ATC/Total Transmission Capability (TTC), but does not
present specific methodologies.
\14\ What Report at 121.
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In calculating ATC, public utilities will need to reserve enough
capacity to ensure the reliable operation of the transmission system.
Thus, the Transmission Provider (or its designated agent) will need to
calculate the additional transfer capability that is available without
violating reliability limits. Because of uncertainties in system
conditions and utilities' reliance on interconnections to provide
generation reserves during emergencies, the Transmission Provider must
calculate an appropriate transmission margin. Transmission margin
calculations should be based on the published standards, criteria and
guides, and operating experience of the individual Transmission
Provider (as filed with FERC as part of FERC Form 715 and as filed in
transmission tariffs). These calculations must be consistent with
industry standards, and these standards must be available for review on
the RIN.
The Commission expects that an ATC/TTC calculation methodology can
be developed on a consistent, industry-wide basis and encourages
efforts to do so. We understand that some of the details may need to
differ to reflect regional or utility- specific situations.
Transmission Providers are expected to use prudent utility practice to
determine ATC. The Commission understands that utilities have
historically responded to requests for transmission service using
prudent utility practice to determine if sufficient capacity is
available to accommodate the request. These practices vary by region
and even by utility. Determination of ATC has been made with computer
software with a level of complexity that varies from one Transmission
Provider to another or with simple formulas or graphical tools
(nomograms) created with a mixture of engineering analysis and
engineering judgment. The Commission requires the use of the best tools
for determining ATC available to the Transmission Provider at the time.
Our requirement to provide data and methods on the RIN is to be
understood in this context; it may require, for example, posting of the
nomograms, the data applied to them, a description of the procedure for
applying the data to the nomogram, and an explanation of how the
nomogram is derived.
However, the Transmission Provider must strictly adhere to the
limits imposed by the resulting ATC determination in its own use of
transmission. It must also provide adequate data for the Commission and
other industry participants to monitor
[[Page 66189]]
any potential violations of the ATC limit by the Transmission Provider.
Further, if the Transmission Provider revises its ATC calculation for
any time period, the new availability of transmission capacity must be
posted on the RIN in a manner that allows all transmission customers an
equal opportunity to apply for its use.
The Commission urges Transmission Providers to improve and
coordinate methods of estimating ATC. This will improve the efficiency
of capacity utilization by all parties, including the Transmission
Provider itself, while maintaining system reliability. We expect that
such improved methods and prudent utility practice in the future will
require cooperative regional calculation of ATC by all Transmission
Providers in a region. We believe that all Transmission Providers
should take the same approach to calculating ATC/TTC and use the same
basic methodology.
Question 4. The Commission requests comment on how to develop a
consistent, industry-wide method of calculating ATC/TTC.
d. Provisions for Unscheduled Flows
The What Report states that ``[a]ppropriate provision must be made
to properly account for ``unscheduled flow'' through each Path
resulting from each known transaction.'' 15 This should not be
interpreted as making the requirements in this proposed rulemaking
depend on resolution of this issue.
\15\ What Report at 8.
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e. Paths for Which ATC Is Not Posted
The What Report states that ATC should be posted for paths as
business needs arise. Some Paths are minor ties between utilities or
control areas for which transfer capability calculations have not yet
been performed and on which no constraint is anticipated because of the
lack of commercial activity. A ``business need'' is defined, in part,
by a transmission customer requesting information about a path.
The business need limitation is intended to limit the number of
paths for which ATC must be posted. However, it is not clear that it
does. For example, the Open Access rulemaking proposes that
Transmission Providers must take wholesale transmission service under
their own tariff. This makes them transmission customers. Any wholesale
trade they do over these minor ties would appear to trigger the
``business need'' requirement for ATC posting.
Another approach to limiting the burden of ATC calculations is to
allow Transmission Providers to adjust the amount of effort put into
calculating ATC and the frequency of recalculating ATC based on the
level of commercial interest in a path and how constrained the path is
over time. For paths that are never constrained because of the lack of
commercial activity, a rough estimate of capability could be posted and
could be updated rarely. For constrained paths, a much more accurate
calculation of capability is needed and it should be updated
frequently.
Question 5. The Commission requests comments on ways to minimize
the burden of ATC calculations, while ensuring that wholesale
transmission customers have the information they need.
f. Differences in ATCs
Because parties on either side of an interface each may use
different engineering assumptions, they may calculate different ATC
values. The What Report says that the lower ATC must be used. The
Commission expects that differences in ATCs will be small and will
narrow over time as Transmission Providers work to develop consistent
methods of calculating ATC.
g. Format for Transmission Tariffs
The Commission agrees with the recommendation of the What Group
that providers must provide downloadable files of their complete
tariffs on the RIN. However, the What Report says that the format of
these files should be one generally accepted by all utilities in the
region. The issue of the format for the transmission tariffs will be
addressed in the Open Access rule. This format would also be the format
for tariffs available on the RIN.
Question 6. The Commission requests comment on a standard format
for electronic submission of transmission tariffs to the Commission.
h. Posting Requirements for Recallability and Curtailability
The What Report states that ``[o]ther elements of Recallable
service which will be posted on an EIN include: permissible reasons for
recall, recall procedures, reinstatement provisions and placement in
the request queue as applicable.'' 16 Because the permissible
reasons for recall, recall procedures, and reinstatement provisions are
defined in the tariff and the tariff is available for download on the
RIN, they do not need to be posted separately.
\16\ What Report at 14.
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Similarly, the report says ``curtailment information which will be
posted on the RIN as part of the product definition includes:
permissible reasons for curtailment, notice required, curtailment
procedures, and curtailment priority relative to other classes and
other customers in the same class if necessary due to FERC curtailment
queuing policy.'' 17 The Commission proposes that if the
permissible reasons for curtailment, notice required, curtailment
procedures, and curtailment priority are defined in the tariff and the
tariff is available for download on the RIN, they do not need to be
posted separately.
\17\ What Report at 15.
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i. Communicating Curtailments and Denials of Requests for Service
The Commission proposes that when requests for service are denied,
or when transactions are curtailed, Transmission Providers must
communicate to transmission customers, through a mechanism that they
must install into the RIN: (1) The reason(s) that the transaction(s)
could not be accommodated; and (2) the available options, if any, for
adjusting the operation of the Transmission Provider's system to
increase transfer capability in order to accommodate the
transaction(s).
Question 7. The Commission requests comments on what information
about curtailments and denials of requests for service should be
communicated on a RIN.
Question 8. What specifications would be needed for information
about curtailments and denials of requests for service to be posted
in HTML displays and what specifications and formats would be needed
to standardize downloadable files? 18
\18\ HTLM stands for Hyper Text Markup Language.
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j. Posting Information About Ancillary Services
The What Group was unable to define requirements for the posting of
information about ancillary services. Ancillary services are those
services necessary to support the transmission of electric power from
seller to purchaser at wholesale given the obligations of control areas
and transmitting utilities within those control areas to maintain
reliable operations of the interconnected transmission system. Basic
wholesale transmission service without ancillary services may be of
little or no value to prospective customers. A variety of ancillary
services is needed in conjunction with providing basic wholesale
transmission service to a customer. The following six ancillary
services are identified in the Open Access NOPR: 19
\19\ 60 FR at 17683-85.
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1. Loss Compensation Service;
2. Load Following Service;
3. System Protection Service;
[[Page 66190]]
4. Energy Imbalance Service;
5. Reactive Power/Voltage Control Service; and
6. Scheduling and Dispatching Service.
The Commission proposes that the Transmission Provider post offers
for ancillary services on the RIN. Other entities offering the same
ancillary services shall have a comparable right to post offers on the
RIN.
Question 9. The Commission requests comment on where on the RIN
offers by other entities to provide ancillary service should be
placed. The What Report states that these offers should be posted in
the ``Informal Transmission Communications'' section of the RIN.
Would this place third-party providers at a disadvantage relative to
the Transmission Provider?
The Commission proposes that entities that post offers to provide
ancillary services on the RIN should pay the costs associated with
posting this information.
Question 10. The Commission requests comments on how to
determine the costs associated with posting ancillary services on
the RIN.
Question 11. With regard to information about offers to provide
ancillary services provided by an entity other than the Transmission
Provider, what specifications would be needed for this information
to be posted in HTML displays and what specifications and formats
would be needed to standardize downloadable files?
The following information about ancillary services is important to
wholesale transmission users and should be posted on the RIN:
Ancillary services that are available from the
Transmission Provider;
Ancillary services that may be provided by the
transmission customer or third parties;
Price of each ancillary service;
Which ancillary services, if any, are bundled with
transmission service;
Paths that the ancillary services information pertains
to;
Deviation band, if any;
Whether the rates for any specific ancillary service
would change if taken in combination with any other ancillary
service, such as operating reserve and load following;
Whether any technical limitations exist on who could
provide specific ancillary services;
Whether the rights of ancillary services are
reassignable; and
Identity of third party if ancillary services are being
procured from a third party.
Question 12. The Commission requests comment on whether there is
any additional information needed about ancillary services that is
not included in the list. Is any information on the list not needed?
Although the ancillary service information on the RIN should be the
most current information available to the Transmission Provider, the
information on ancillary services will not change as frequently as the
information on the capability availability. However, there is
definitely a need to update ancillary services information on RIN on an
ongoing basis.
Question 13. The Commission requests comment on how often
ancillary services information should be updated.
Ancillary services information should be posted for each
transmission path of the Transmission Provider for which ATC is posted.
If there are exceptions to the general applicability of the ancillary
services posting requirements because of technical limitations on a
specific interface, it should be so stated.
k. Must Transmission Customers Resell Unused Capability?
The What Report raised the question of whether Transmission
Customers should be required to make available to other wholesale
customers unused transmission capability to which they have rights.
This issue is not a RINs issue and will be addressed in the Open Access
rule.
l. Posting Information About Resales
Although the What Report states that a Transmission Customer should
be able to post its transmission capability rights for resale, it does
not say where resale offers are to be posted on the RIN. This issue is
addressed in section D.2(g)iv below.
m. Mechanism for Discounting Transmission Service Rates
The What Report raises a question about whether all transmission
rate discounts should be posted on the RIN on the basis that a
competitive market can be achieved only through non-discriminatory
discounting. An alternative posed in the What Report is to post only
discounts that a Transmission Provider provides to itself or its
affiliates. This is to police self-dealing and affiliate favoritism
which are not an issue in other transactions. It is important to
distinguish between an offer of a discount and a discount already
given. The Commission is proposing, in the proposed standards of
conduct, to require a Transmission Provider that offers any discount to
itself or to its merchant function or an affiliate to offer, at the
same time, on the RIN, comparable discounts for similar service to all
Transmission Customers. As to discounts that the Transmission Provider
has agreed to give to any Transmission Customer (affiliated or
unaffiliated), the Commission is proposing that these discounts must be
posted on the RIN within 24 hours after the agreement is entered into
(measured from when ATC is adjusted in response to the agreement), and
that they remain posted for 30 days.
Question 14. The Commission seeks comment on whether all
transmission discounts should be posted on the RIN, or only those
provided to the Transmission Provider or its affiliates. If
discounts are to be posted, when should this be done? Also,
commenters should address whether requiring the Transmission
Provider to offer ``comparable discounts for similar service to all
transmission customers'' is necessary and/or sufficient to prevent
unduly discriminatory pricing practices.
The Commission proposes that the information about discounts to
affiliates should be posted on the RIN using HTML displays and as files
that are available for download.
Question 15. Regarding information on affiliate discounts, what
specifications are needed for the information to be posted in HTML
displays and what specifications and formats are needed for the
downloadable files?
n. Discussion of Generation Information Related To Redispatch/
Opportunity Costs
Opportunity or redispatch costs are meant to compensate a party
that gives up its right to wholesale transmission service so that
another party can take service. The opportunity/redispatch costs
associated with increasing the ATC of a constrained Transmission Path
will depend upon the time, duration and nature of the requested
transmission use because of the dynamics of system loads, economic
dispatch, outages, loop flow, the types of generation resources
involved, the availability and cost of energy storage, and other
operating conditions expected during the time of use. The What Report
raises the issue of whether the ability of the Transmission Provider to
impose these costs on the Transmission Customer requires the posting of
generator run status and cost information on the RIN.
Transmission Providers may charge only for legitimate and
verifiable opportunity/redispatch costs. Information needed to verify
these costs is required to be provided to the Transmission Customer
charged on request. This information is not required to be posted on
the RIN.
o. Discussion of Providing Additional Information Beyond ATC
The proposed rules on Open Access state that ``[t]he utility must
make all data used in calculating the ATC
[[Page 66191]]
publicly available.'' 20 This information must be available for
download on the RIN.
\20\ What Report at 121.
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Question 16. The Commission requests comments on how the data
used in calculating ATC should be formatted. Should it be in free
form text, predefined tables, or comma delimited ASCII files? If in
free form text, should it be in plain ASCII text or in a word
processor format, such as WordPerfect or Word?
Question 17. The Commission requests comments on what is the
appropriate time delay for making supporting information on ATC
available. Should the Commission require specific formats for ATC
supporting data? If so, what should the formats be?
Near-Term Transmission Information
The What Report provides arguments for and against providing
additional information beyond ATC on the RIN. Those entities who are
against providing additional information argue that this information is
of little practical use, sufficiently voluminous to substantially
reduce performance of the RIN, and burdensome to provide. They further
argue that some of this information is competitive data. Those entities
who are in favor of providing additional information beyond ATC on the
RIN argue that the additional information will increase the confidence
of transmission customers in the validity of the posted ATC and that
this information will help the transmission customers anticipate with
greater certainty whether to attempt to request and schedule resources
that may be subject to curtailment due to projected loading trends on
certain system components.
The Commission believes that the issue of customer confidence can
be addressed through audits of posted ATC values or by raising the
issue at regional forums or filing a complaint with the Commission.
However, the Commission also believes that transmission customers
should have as much pertinent information available as will enable them
to make informed decisions about the relative quality of wholesale
transmission services they intend to request and purchase.
The Commission therefore proposes to require that Transmission
Providers post information about those system elements that have a
direct and significant impact on ATC. Such elements could include
generators, transmission lines, phase shifters, series and shunt
capacitors, static VAR compensators, special protection systems or
remedial action schemes, etc. In addition, the Commission proposes to
require the posting of actual path loadings in addition to the path
schedules.
Question 18. To keep the amount of information on the RIN
manageable, the Commission requests comment on whether it is
sufficient to provide information only about planned outages and
return dates (for both planned and forced outages) for those system
elements deemed to have a direct and significant impact on ATC and
whether posting this information on the RIN would cause any
confidentiality concerns.
Question 19. Since many system elements can impact the ATC of a
path, how should ``significant and direct impact'' be defined? Is it
acceptable to limit the additional information to those system
elements for which nomograms, derating tables, and operating guides
have been developed?
Question 20. Are there any difficulties, technical or otherwise,
associated with posting actual path flows on the RIN?
The ATC of some transmission paths is a function of run status and/
or megawatt output of certain generators. For example, the Southern
California Import Transmission Nomogram is affected by the run status
of units in the Palo Verde Generation Complex. When one or more of the
Palo Verde units are not on line, the nomogram is reduced by several
hundred megawatts.21
\21\ A nomogram defines the interactive relationship of the
transfer capability of a transmission path to other system
conditions, especially power flows on one or more other transmission
paths.
---------------------------------------------------------------------------
Question 21. In cases where ATC of a path is a function of run
status of one or more generators, is it sufficient to post the
expected amount and date of changes to ATC on the RIN, corresponding
to the planned outage or return dates of generators?
Question 22. If operating guides, nomograms, operating studies,
and similar information are to be made available on the RIN for
download, would it be logical to expect that transmission customers
will be able to deduce the run status of those generators which
significantly and directly impact ATC by observing the changes to
ATC?
Far-Term Transmission Information
The What Report proposes that for ``far-term'' transmission service
(over one year), firm service (non-recallable) ATC should be posted
``seasonal[ly], by year, for years 1-10 (as available).'' 22 The
caveat ``as available'' suggests that the What Group does not want
utilities to have to perform additional transmission studies to
calculate ``far-term'' ATCs beyond those done for normal planning and
special requests.
\22\ What Report at 24.
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The Commission agrees with this. However, we find the ``as
available'' requirement vague. It appears to leave the posting of this
information to the discretion of the Transmission Provider. For
clarity, the Commission proposes to require that any planning or
specifically requested studies of the transmission network performed by
the Transmission Provider be provided on the RIN on a same-time basis.
This would include only those parts of customer-specific
interconnection studies that relate to network impacts.
Question 23. The Commission requests comments on how
transmission studies should be formatted for download from the RIN.
Should they be in free form ASCII text, or in a word processor
format, such as WordPerfect or Word?
p. Requested Start and End Times/Dates
In the section in the What Report on ``Information Provided by
Transmission Customer in Requesting Service'', under ``duration'' the
report states that ``[t]his must correspond to full clock hour
periods.'' 23 The Commission proposes to enhance flexibility by
requiring instead that the duration must be a specific time as stated
in the Transmission Provider's tariff.
\23\ What Report at 26.
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q. Transaction Anonymity
The What Report raises a question about whether individual
transmission requests and responses should be made known only to the
Transmission Customer making the request, the Transmission Provider to
whom the request is made and, to the extent necessary, the affected
control area operators and/or security centers, or to all users of the
RIN on a same-time basis. The Commission proposes to restrict
information about the request and response process, while it is
ongoing, to those parties directly involved.
We believe that this procedure will be adequate because we are
proposing standards of conduct that would require Transmission
Providers to separate the functions of their marketing employees and
their system operations employees and that would restrict access by
wholesale marketing employees to information available on the RIN.
Information about a completed request and response process should be
recorded in the audit file.
r. Auditing Transmission Service Information
The Commission proposes that RIN audit log files \24\ must be
downloadable from the RIN in a standard format and must be retained on
a rolling basis for three years from entry on the RIN.
\24\ See What Report at 31.
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The Commission notes that transmission transaction prices are to be
[[Page 66192]]
included in the information in the audit file proposed in the What
Report.\25\ We do not consider price information concerning cost-based
transmission services to be commercially sensitive. With respect to
information concerning negotiations on transmission requests, we
propose that such information not be posted unless an agreement to
provide the transmission is reached.\26\ This information is to be
available only in the audit file. In addition, if an agreement is
reached, we propose that the identity of parties to transmission
transactions be masked until a standard release period elapses. This
release period should be a standard period after which it is commonly
recognized that most information is no longer commercially sensitive.
The Commission proposes that a reasonable standard release period is 30
days after the date when the Transmission Provider's ATC was adjusted
in response to the transaction; after that date all transaction data
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will be made available.
\25\ See What Report at 31-32.
\26\ An exception would be where the Transmission Provider
offers discounts to its merchant function or an affiliate. As noted
elsewhere, such information would need to be posted regardless of
whether an agreement to provide transmission was reached.
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Question 24. The Commission requests comment on what information
should be considered commercially sensitive, the 30-day release
period proposal, and on how and when commercially sensitive
information should be released to concerned parties before the
standard release period. Should affiliated transactions be treated
differently?
D. Technical Issues Concerning the Development and Implementation of
RINS
1. Summary of the ``How'' Working Group Report
After a review of the process used by the ``how'' working group
(How Group) in formulating its views, and after consideration of the
Group's efforts to invite input from a broad spectrum of industry
segments, the Commission is satisfied that the How Group conducted its
process in an inclusive and open manner. The How Group report (How
Report) represents a broad agreement among all segments of the electric
power industry. It presents the agreed minimum requirements for
computer systems and associated communications facilities needed by
public utilities to provide comparable access to transmission and
ancillary services information by all wholesale transmission users.\27\
\27\ The version of this report attached to this proposal
intentionally omits Appendix C (Workshop Participants), Appendix D
(Survey Questionnaire and Results), and Appendix F (Correspondence
with ``What'' Working Group). The How Report, in its entirety, is
posted on CIPS.
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The How Group proposes a two-phase approach. It believes that the
Phase I implementation provides the information needed for the
Commission's open access program and works well enough to communicate
this information to customers. Under the How Group proposal, RINs would
become fully functional in Phase II. The How Report recommends that
Phase II requirements be implemented 24 months after the effective date
of the final rule establishing Phase I RIN requirements.
a. Phase I Recommendations
The How Group proposes that the required transmission service
information be posted on RINs operated by the transmission-owning
public utility, jointly with other utilities, or by a third party.\28\
Each RIN implementation, whether on behalf of a single entity or a
group of utilities, is referred to as a Node. A RIN operated jointly by
several utilities would be considered one Node. RIN Nodes must be
accessible through the Internet. By connecting each Node through the
Internet, transmission service information from each utility becomes
part of a network. With a single Internet connection, customers would
be able to access information from any utility and would even be able
to display information from several Nodes at the same time.\29\
\28\ How Report at Sec. 2.4.1 (a).
\29\ How Report at Sec. 2.4.1 (f).
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Nodes must support the use of Internet tools. These inexpensive,
widely available, and well-tested tools will permit customers to access
RIN information easily and to download \30\ it to available desk-top
database programs, spreadsheets, and other applications.\31\ Customers
would also be able to upload \32\ information to RIN Nodes. The
specific tools for doing so are described in Appendix B.
\30\ Download refers to the transfer of a file from a RIN Node
to the user's computer system.
\31\ How Report at Sec. 2.4.1 (c).
\32\ This is accomplished by transferring a file from the user's
computer system to a RIN Node.
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RIN users would access Nodes using World Wide Web (WWW)
browsers.\33\ Each Node would display information using the HTML
protocol required by World Wide Web browsers. Screen displays would
consist of a series of pages that may be viewed by customers without
requiring them to download the pages.\34\ Under the standards that will
accompany issuance of a final rule on RINs, the information on each
page, but not the actual displays, must be standardized. Information
would also be required to be made available for downloading, in a
standardized ASCII \35\ format, using the Internet's File Transfer
Protocol (FTP).
\33\ The World Wide Web is a system of computer resources that
are accessed through the Internet.
A
FR Doc. 95-30884 Real-Time Information Networks and Standards of Conduct; Notice of Proposed Rulemaking
Browser is a computer program for retrieving and reading
hypermedia documents from the WWW. A hypermedia document can
contain, text, graphics, video, sound or data. These documents are
often linked to other documents.
\34\ How Report at Sec. 3.2.3
\35\ ASCII refers to the American Standard Code for Information
Interchange, a code for character representation.
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In Phase I, customers would be able to use the RIN to purchase
transmission from public utilities. They would be able to request
capacity either by completing a standardized form contained in an on-
line HTML page or by uploading a filled-out form using FTP.\36\
Customers who want to resell transmission capacity would upload (post)
the relevant information to the same RIN Node used by the primary
provider from whom they purchased the ATC.\37\ Customers would also be
able to upload Want Ads containing such information as requests to
purchase transmission capacity.\38\
\36\ How Report at Sec. 3.2.6.
\37\ How Report at Sec. 3.2.4
\38\ How Report at Sec. 3.2.3 (e).
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In Phase I, transmission-owning public utilities may, but would not
be required to, provide private connections at the request of a
customer. These connections could include leased-lines or connections
to a private network. These connections would have to use the same
Internet tools as are required for the Internet connection.\39\
Customers would pay for the cost of the connections. If a connection is
made for one customer, the same type of private connection must be made
available to all customers in a comparable manner. In Phase II,
utilities would be required to provide these connections.
\39\ How Report at Sec. 2.4.1 (g).
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The How Report proposes that utilities may provide value-added
services for a fee on a fair and non-discriminatory basis. Such
services would include notifying customers of changes in available
capacity, beyond simply posting a notice of the change.\40\
\40\ How Report at Secs. 3.1.2 (c) and 3.2.2.
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The How Group developed a model of the information requirements
that the What Group identified as needed for comparable access. For
Phase I, the model specifies the information that must be available at
each RIN Node, how the information may be requested and the layout of
the information received by customers. Customers would be limited to
obtaining
[[Page 66193]]
information from HTML text displays and selecting from menus of
downloadable files. Customers would receive the information either as
HTML pages or as ASCII files in a predetermined form and layout.
The information model for Phase II, while not fully specified,
would provide customers with much more flexibility in requesting and
receiving information. Customers would be able to make complex queries
of a data base and specify the order in which the information will be
received.
For security purposes, and as an aid in auditing performance and
transactions, customers would be required to register with the
transmission-owning utility or its agent before they are permitted
access to the utility's transmission service information on the
RIN.\41\
\41\ How Report at Sec. 3.2.1.
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The How Report provides a number of performance standards and a
limited set of security precautions. Performance requirements include
sizing RIN Nodes to handle the loading of registered subscribers,
responding to subscriber requests, backing up the system, and other
areas that are necessary for the system to function as desired.
Security precautions include firewalls \42\ between computer systems
and the Internet, the use of passwords, the use of data encryption for
uploads of sensitive or confidential information, and the use of ASCII
text for uploads of other information.
\42\ A firewall increases security by blocking access to certain
services on a private network from the Internet.
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b. Phase II Requirements
The specifications for Phase II are less detailed than those for
Phase I, but the How Group anticipates that Phase II RINs would be an
upgrade of Phase I and would not make Phase I investments obsolete.
Phase I is envisioned as a prototype for Phase II. Once Phase I becomes
operational, the full information and functional requirements needed to
support open access transmission service will become clearer. The How
Report recommends the formation of a RIN Management Organization to
develop Phase II standards for submission to the Commission. The How
Group proposes that Phase II be implemented two years after issuance of
the final rule on Phase I RIN requirements.
The How Group foresees the need for several key additional
requirements in Phase II.\43\ In Phase II, they foresee that RIN Nodes
must provide connections to private networks if requested by a
customer, for a negotiated cost-based fee, whereas in Phase I public
utilities would not be required to make these connections. In Phase II,
RIN Nodes would have to offer the capability of informing customers
immediately when information of interest to them is changed by the
provider. RIN Nodes would be required to support search and select
tools to access information in RIN Node data bases, and to meet a more
complete set of performance requirements.
\43\ How Report at Sec. 2.4.2.
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In Phase II, the information model would change, although the
information in the data base would be the same. Customers would be able
to receive information by querying a data base. The information would
no longer be received in a predetermined fixed layout. Customers would
be able to specify the exact information they want to receive and the
layout they want to receive it in. For example, customers would be able
to request available capacity by quantity of capacity, point of
delivery, date of availability, and have it sorted by the name of the
transmission-owning public utility. The customer also would be able to
define the order in which the information is received in the file.
2. Discussion
The How Group assumed the task of specifying, in a very short
period of time, a RIN that would meet the Commission's requirement for
customer access to information about transmission services. It
developed a proposed solution that places the RIN of each transmission-
owning public utility on a network that can be accessed by all
customers, using inexpensive tools with a single connection, with what
the group believes to be a reasonable cost to both utilities and
customers, sufficient security, and sufficient response time. The
proposal to use the Internet to tie RIN Nodes together appears to be an
inexpensive way for customers to access transmission services
information and for transmission-owning public utilities to provide it
to them.
The Commission proposes to adopt the proposals contained in the How
Report, with the exceptions discussed below.\44\ Except where noted,
the issues discussed are Phase I issues.
\44\ The Report refers to Buy/Sell transactions. As used in the
Report, the term refers to a request to purchase transmission
capacity and the response to the request. The reader of the How
Report should substitute Purchase request/Response for buy/sell
whenever it is encountered.
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a. Phasing
Because of the complexity of building RINs, and the need to begin
the Commission's transmission open access program promptly, the
Commission agrees with the How Report that a phased approach to
implementation is warranted. The Commission proposes to require Phase I
implementation as of the effective date of a final rule on non-
discriminatory open access transmission and stranded costs.
At How Group meetings, many transmission-owning public utilities
expressed the view that implementing Phase I within 90 days of the date
of a final RIN Rule may not allow sufficient time to design, build, and
test RINs. The How Report notes that a large risk exists that many RINs
will not be fully functioning at that time. These transmission-owning
public utilities request that the Commission permit a six-month
implementation period.
Question 25. The Commission requests comments on how long the
implementation schedule should be for Phase I.
Phase I would provide a good first step toward ensuring that
sufficient information is available to utility customers to achieve the
Commission's goal of comparable access to transmission information. It
would not, however, provide all of the performance requirements or
information needed for a long-term open access RIN.
Phase II would provide for more expanded services. The How Report
addresses Phase II issues, but does not fully specify them. It proposes
that Phase II be implemented within two years of a final rule on RINs.
The Commission believes that the need for the additional functions and
performance requirements proposed for Phase II requires expeditious
implementation. Accordingly, the Commission requests that the industry
continue the process of developing standards, and provide a consensus
report to the Commission on Phase II recommendations by no later than
January 1, 1997. We anticipate that this report would be the basis of
supplemental RIN proceedings to implement Phase II RIN requirements.
b. Standards Issues
Based on our experience with implementing standards for natural gas
pipeline electronic bulletin boards,45 a
[[Page 66194]]
major concern of the Commission is that the proposed standards be
sufficiently unambiguous to provide consistent implementation of the
standards on every RIN Node. Customers and other users of RINs should
be able to use the same software to access all RIN Nodes and should be
able to expect that procedures and data definitions will be the same on
all Nodes. The Commission must ensure that every RIN Node would be
presenting information that would be clearly understood.
\45\ See Order No. 563, Standards for Electronic Bulletin Boards
Required Under Part 284 of the Commission's Regulations, Final Rule,
III FERC Stats. & Regs. para. 30,988 (1993); Order 563-A, Order on
Reh'g, III FERC Stats. & Regs. para. 30,994 (1994); Order 563-B,
Order Denying Reh'g, 68 FERC para. 61,002 (1994); Order 563-C, Order
Accepting Modifications, 68 FERC para. 61,362 (1994); Order 563-D,
Order Accepting Modifications, 69 FERC para. 61,418 (1994); Order
563-E, Order Granting Clarification, 70 FERC para. 61,188 (1995).
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i. Phase I Data Definitions for HTML Pages and File Transfers
The information model, data dictionary and various templates
appearing in the How Report specify the name, definition and format of
the data items to be communicated on the RIN. They are intended to be
the basis for the standards specifying file uploads and downloads and
HTML displays. Because of the importance of these standards to the
usability and uniformity of RINs, the Commission must ensure that
downloadable and uploadable files will have the same unambiguous
structure, field formats, units and definitions, etc., no matter which
RIN Node they come from or go to. The Commission is similarly concerned
that all WWW page displays, while not necessarily having the same
appearance, contain the same information and use the same definitions,
etc.
Question 26. Does the How Report define HTML displays and
downloadable files with sufficient clarity to permit public
utilities to implement Phase I such that the downloaded files and
HTML displays received by customers from each RIN have the same
definitions, etc.? If not, what clarifications are needed?
Similarly, are uploaded files sufficiently defined in the How
Report?
With these goals in mind, the Commission has compiled a series of
templates (tables) that show in one place the specifications that
appear in various sections of the How Report. The templates contained
in Appendix ``C,'' are intended to help produce a consistent
implementation of RIN requirements and highlight problems that could
hinder consistent implementation of RIN standards.
In Appendix ``C'', the Commission proposes to make changes to
certain definitions, data formats, and specifications appearing in the
How Report.
Question 27. The Commission invites comment on the issues
discussed in Appendix ``C''.
The Commission proposes to add a price field to the templates that
would specify available capacity and those templates associated with
the purchase of capacity. The price field would allow primary providers
to offer capacity to buyers at a discount. The price field in the
available capacity templates would contain the initially offered price,
whether this is the tariff price or a discount. Adding the price field
to the templates for the purchase of capacity would allow buyers to
offer a price for capacity below the posted price. Further discounts
from any posted offered price could be negotiated. The price field in
the purchase of capacity templates would permit customers to offer a
price different than the offering price.
ii. Internet Browsers
There are a large number of Internet browsers available
commercially and in the public domain. The How Report proposes that
browsers support ``at least'' HTML version 3 and ``optionally'' support
Secure Sockets Layer. The HTML standards used by browsers change from
time to time, and, in addition, various browsers can support different
extensions to the standards. The Commission does not want to stifle
innovation, but at the same time it does not want chaos on the RIN. The
Commission does not want customers to be forced to use different
browsers for different RIN Nodes. The Commission wants to ensure that a
customer will be able to choose a browser and use it to access all RIN
Nodes.
Question 28. The Commission requests comments on how to ensure
that a customer will be able to choose a browser and use it to
access all RIN Nodes.
iii. Bandwidth of Node Connections to the Internet
The How Report proposes a formula to calculate the minimum
bandwidth connection between a RIN Node and the Internet using the
criteria of customers receiving data at the rate of 8,000 bits per
second.46 This speed may be adequate for customers reading HTML
pages, which are about 8,000 bits in size, but it might be too slow for
customers downloading many 100,000 byte files.47 Eight thousand
bits per second is much slower than the 28,800 bit per second telephone
connections many private individuals use to connect to the Internet.
Electric utilities will likely have even faster direct connections to
the Internet. The Commission is concerned that the basis for the
calculation in the Report will lead to connections that are too slow
and proposes to use 28,800 bits per second instead of 8,000 bits per
second in the bandwidth formula.
\46\ How Report at Sec. 3.4.3.
\47\ A bit is the smallest unit of computer data and can have a
value of zero or one. A byte is eight bits and is often used to
represent a character of text.
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Question 29. The Commission requests comments on the use of
28,800 bits per second in the calculation of the minimum bandwidth
connection between a RIN Node and the Internet in the formula
appearing in the How Report.
iv. Common Codes
The How Report does not address a standardized method of uniquely
identifying transmission-owning public utilities and customers, nor
does it address a standardized method of identifying facilities.
(1) Company Codes
The Commission's experience with implementing standards for file
transfers and electronic bulletin boards in the natural gas industry
shows that the use of a common system of identifying companies enhances
the efficiency of data transfers. The Commission is satisfied with the
results of using DUNS numbers 48 as the standard to uniquely
identify pipelines and shippers in the natural gas transactions.49
The Commission proposes to require the use of DUNS numbers to identify
transmission-owning utilities and customers on RIN Nodes.
\48\ DUNS numbers refer to the Data Universal Numbering System,
maintained by Dun and Bradstreet.
\49\ See Standardized Data Sets and Communication Protocols for
Electronic Bulletin Boards in Docket No. RM93-4, Order 563(a), supra
n.45, Reg. Preambles at 31,034.
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Question 30. The Commission requests comments on the use of DUNs
numbers to identify RIN participants.
(2) Common Location Codes
The Commission's experience in the natural gas industry also
demonstrates that a common method of uniquely identifying location
points will be needed to facilitate movement of power across the grid.
The natural gas industry uses a sophisticated system of ``smart'' codes
(PI-GRID Codes), developed by the Petroleum Information Corporation.
This coding system uses ``smart'' codes, which identify each
transaction point by such items as state, county, latitude, longitude
and type of facility.50 Thus, the code will tell RIN users where a
posted receipt, delivery point or path is
[[Page 66195]]
located, the function it performs, and whether there are multiple
facilities at that location. The Commission proposes to use a smart
code system to identify location, including paths, on the electric
transmission grid.
\50\ See Order 563(c), supra n.45, 68 FERC at 62,462-65.
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Question 31. The Commission requests comments on how to develop
common location codes for the electric power industry.
v. Data Compression Standards
The How Report recommends that RINs support data compression of
downloadable and uploaded files, using standard, commonly available
compression applications.51 The Commission believes that data
compression will speed up the transmission of files. However, it
believes communication of the RIN information would be enhanced if
every RIN Node used the same compression techniques.
\51\ How Report at Sec. 3.3.8 (c).
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Question 32. The Commission requests comments on what data
compression technique or techniques should be made standard for all
RIN Nodes.
vi. Templates for Upload and Download Header Information
The How Report does not completely specify how to use the upload
and download header templates in Phase I.52 The templates require
a series of header fields specifying such information as: (1) who is
sending the data; (2) the kind of data, such as Provider Hourly
Capacity Available for Purchase; (3) the column headings of the data;
and (4) the number of rows of data. This header information is followed
by rows of actual data. The discussion of the template does not specify
delimiters between rows of data. The result would be that an entire
file of Provider Hourly Capacity Available for Purchase downloaded from
a RIN Node would be received as one long record. However, customers
downloading data into personal computer spreadsheets may have trouble
using the information since spreadsheets cannot handle very long
records. To remedy the problem the Commission proposes to require, at
least for Phase I, the sending RIN Node to separate each row of data
with carriage return and line feed characters. Similarly, customers
uploading data to a RIN node would separate each row of data with
carriage return and line feed characters.
\52\ How Report at Sec. 3.3.8.
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Question 33. The Commission requests comments on whether the
upload and download templates are sufficiently specified to be
functional and whether they are sufficiently specified to permit all
RIN Nodes to implement them in the same way.
c. Costs
Transmission-owning public utilities will be entitled to recover
reasonable expenses associated with developing and running RINs. The
costs of developing and operating the system will generally be fixed
and not attributable to individual users. The Commission, therefore,
proposes to roll these costs into wholesale transmission rates. The
Commission also proposes to permit costs that can be identified as
dependent on usage to be charged as usage fees to individual customers.
Question 34. The Commission requests comments on whether it
should allow the recovery of reasonable expenses associated with
developing and running RINs by rolling these costs into wholesale
transmission rates. How should fees associated with RIN usage be
calculated and recovered?
d. Access to RIN Information by the Public
The Commission believes that the registration procedures described
in the How Report are useful security tools.53 The Commission also
believes that the Commission, state regulators, and the public should
have access to transmission services information consistent with the
need to maintain the security of the system.54 The Commission,
therefore, proposes that once Commission Staff and members of the
general public have complied with the requisite registration
procedures, they be granted ``read only'' access to RINs.
\53\ How Report at Secs. 3.2.1 (b)-(f).
\54\ cf. 16 U.S.C. 824l.
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e. The Number of RIN Nodes
The How Report does not put a limit on the number of RIN Nodes, but
raises the issue of how many RIN Nodes there should be.55 Public
utilities would be permitted to combine the function of their RINs into
a single Node. Consequently, there could be as many Nodes as there are
transmission-owning public utilities or only a very small number of
Nodes. The How Group sees merit in a small number of Nodes and goes on
to suggest a small number of Nodes be actively encouraged in order to
minimize the networking management requirements for the RIN and to help
ensure seamlessness of access. On the other hand, it recognizes that
the advantages of a small number of separate Nodes must be weighed
against the complexity and size that each Node would have to be to
handle the correspondingly large number of transmission-owning
utilities.
\55\ How Report at Sec. 3.1.2 (f).
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Question 35. The Commission requests comments on whether it
should encourage a small number of RIN Nodes.
f. Connections to Third Party Networks
The How Group proposes, in Phase I, to permit transmission owning
utilities to provide connections to private networks, if requested to
do so. In Phase II, the How Group proposes that public utilities be
required to provide these connections. It proposes that customers be
required to pay the cost of the connections and the connections would
be required to use the same Internet tools as are required for the
Internet connections.
The Commission believes that private networks and third party
services can provide valuable contributions to the successful operation
of RINs. The Commission, therefore, proposes to require utilities to
provide private connections in Phase I. As proposed by the How Group,
the cost of the connections would be paid for by the customers making
the requests and the networks would be required to use Internet tools.
Question 36. The Commission requests comments on whether
transmission owning utilities should be required, in Phase I, to
provide connections to private networks.
g. Unresolved Issues
The How Group was unable to resolve a number of issues. Many of
them concern issues covered by the What Group and are discussed
elsewhere.56 The Commission requests comments on the following
unresolved issues.
\56\ Supra at 40-60.
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i. Price Discrimination Issues
The How Report would permit public utilities to offer value-added
RIN services above the basic level of service. The Commission proposes
to allow these services. However, such services would remain cost based
until the Commission is satisfied that market-based (value added) rates
should be allowed for such services. Requests for market-based rates
for such services will be addressed, initially, on a case-by-case
basis.
Some customers are concerned that price could be used to
discriminate between customers if public utilities are permitted to
charge for different optional services, such as higher speed
connections, value-added services, and automatic notification of
changed data. If public utilities charge relatively high prices for
these additional services, then some customers may not be able to
afford them. These customers fear, for example, that they could be
effectively
[[Page 66196]]
locked out of the transmission market if they could rarely get timely
access to the queue for purchasing transmission access.
These customers felt that the Commission should monitor and
possibly regulate the prices charged for the services to ensure that
they were non-discriminatory.
ii. Transmission Services Information Timing Requirements
The How Group proposes several timing requirements for posting
transmission service information and suggests that the requirements be
reviewed for reasonableness, possibly during Phase I. The Commission
believes that some timing requirements should be operative during Phase
I.
Question 37. The Commission requests comments on whether the
following How Group Proposals are adequate:
(1) Transmission Service Information Availability: The most
recent Provider transmission service information, including updates
reflecting power system changes, shall be available to all Customers
within 5 minutes of its scheduled posting time at least 98 percent
of the time. The remaining 2 percent of the time the transmission
service information shall be available within 10 minutes of its
scheduled posting time;
(2) Notification of Posted or Changed Transmission Service
Information: Notification of transmission service information posted
or changed by a Provider shall be made available within 60 seconds
to all subscribed Customers who are currently connected; and
(3) Acknowledgment by the Transmission Service Information
Provider: Acknowledgment by the transmission service information
provider of the receipt of Customer purchase request/response
requests shall occur within 1 minute for Phase I. The actual
negotiations and agreements on purchase request/response requests do
not have time constraints. For Phase II, acknowledgment shall occur
within 30 seconds.
iii. The Posting of Capacity Available for Resale
The How Report also raises issues concerning posting of capacity to
be resold.57 The report requires the reseller to post the relevant
information on the Node of the facility owner.58
\57\ How Report at Sec. 6.6.
\58\ How Report at Sec. 3.2.4.
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The Commission is concerned that unless primary capacity and
secondary capacity appear in the same location on the Node and require
the same forms to be filled out and the same procedures followed, the
capacity for sale by the facility owner will be easier to find and
purchase, thereby giving the facility owner a competitive advantage.
Therefore, the Commission proposes that secondary capacity be posted on
the same page, using the same tables as similar capacity being sold by
the facility owner.
Question 38. The Commission requests comments on how to redesign
the download templates in Appendix C so that primary and secondary
capacity can be offered through downloadable files that have the
same format. The Commission also requests comments on how primary
and secondary capacity can be displayed in the same tables on a RIN
Node.
Question 39. What is the best way to handle the purchase request
and response process when primary and secondary capacity appear in
the same RIN displays and files?
The Commission proposes that resellers pay the costs associated
with posting this information on the RIN.
Question 40. The Commission requests comments on how to
determine the costs associated with posting resales on the RIN?
E. Standards of Conduct
The What Group and the How Group both focused on the specific
issues that the participants at the Technical Conference agreed that
they should address. Nevertheless, other important RINS-related issues
must also be decided. One such issue is whether the Commission needs to
promulgate generic standards of conduct for jurisdictional utilities in
the electric industry akin to the ones that we promulgated for the
natural gas industry,59 or whether this issue should be decided on
a case-by case basis. For the reasons explained below, we propose to
address this issue on a generic basis by issuing Standards of Conduct
patterned on those we promulgated for the natural gas industry.
\59\ See 18 CFR Part 161. See also the primary Commission orders
addressing natural gas pipeline marketing affiliate regulation, and
the other cases cited therein: Order No. 497, 53 FR 22,139 (June 14,
1988), III FERC Stats. & Regs. para. 30,820 (1988); Order No. 497-A,
order on rehearing, 54 FR 52,781 (December 22, 1989), III FERC
Stats. & Regs. para. 30,868 (1989); Order Nos. 566, 59 FR 32,885
(June 27, 1994), III FERC Stats. & Regs. para. 30,997 (1994); Order
No. 566-A, order on rehearing, 59 FR 52,896 (October 20, 1994), 69
FERC para. 61,044 (1994); Order No. 566-B, order on rehearing, 59 FR
65,707 (December 21, 1994), 69 FERC para. 61,334 (1994); appeal
docketed, Conoco, Inc. v. FERC, D.C. Cir. No. 94-1745 (December 13,
1994).
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As we stated in the RIN Notice,
Any requirement we establish must have safeguards to ensure that
public utilities owning and/or controlling transmission facilities
use the same procedures and meet the same substantive requirements
when they arrange transmission to support their wholesale sales and
purchases as are required for third parties. Further, we expect that
each public utility (or a control area operator acting as its agent)
that provides transmission service must, at a minimum, give its
customers electronic access in real time to information on
transmission capacity availability, ancillary services, scheduling
of power transfers, economic dispatch, current operating and
economic conditions, system reliability, and responses to system
conditions * * *
This means that public utilities or their agents must give
competitors and other users of the transmission system access to the
same information available to the public utility personnel who trade
(sell or purchase) power in the wholesale market, and at the same
time. Moreover, this information cannot be declared privileged (and
kept from competitors) if it is available to the company's own
employees who trade wholesale power. Thus, if a utility wishes to
keep this information confidential, it must assign control over this
information to employees whose duties do not involve trading in
wholesale power, and it must implement procedures to ensure that the
traders do not get access to the information unless and until that
information becomes public. The Commission invites parties to
comment on the best way to implement these requirements * * *
In response to this discussion and the accompanying request for
comments, the comments (in preparation for the technical conference)
debated how the control room could be functionally unbundled.
Currently, marketing and transmission functions are performed in the
same control room and sometimes these functions are performed by the
same people. However, same-time access to transmission information
means that, somehow, these functions must be separated. A related
matter that we are concerned about is the potential for informal
communication among colleagues if utility traders have preferred access
to limited access control rooms and buildings.
In discussing this issue, the commenters asked--how much separation
is enough? They wondered whether the Commission would set requirements
for separating marketing and transmission functions and, if so, what
those requirements would be. Commenters came down on both sides of this
issue. The East Texas Cooperatives and the Ohio PUC believe that
separation is essential. American Electric Power points out that
requiring the transmitting utility's marketing personnel to use only
that transmission information posted on a RIN would be a powerful
incentive for utilities to provide adequate disclosure on the RINs (or
else the marketing employees couldn't properly do their jobs). El Paso
Electric and Houston L&P are concerned about the reliability
consequences of separating control room functions. NYSEG and Sierra
Pacific do not believe
[[Page 66197]]
that separating control room functions is needed.
Additionally, this issue was renewed by the power marketers, in the
discussion of non-consensus issues in the What Report and in separate
comments, where they argued that a lack of organizational separation
and the absence of formal standards of conduct similar to those the
Commission imposed on natural gas pipelines undermines their confidence
in functional unbundling and the RIN. In the absence of such standards,
the marketers request that voluminous supplemental information about
transactions be posted on the RINs.
To help ensure non-discriminatory access to information, the
Commission believes it is appropriate to impose standards of conduct
for Transmission Providers. Therefore, we are proposing standards that
would require Transmission Providers to separate their wholesale
merchant functions (i.e., purchases or sales for resale of electric
energy in interstate commerce) from their wholesale transmission system
operations and reliability functions, and that would further require
employees performing merchant functions to obtain access to information
on wholesale transmission services through the RIN, on the same basis
available to all other RIN users.
In deciding this issue, we have been influenced by the differing
views expressed by interested persons as to what conduct should be
deemed proper or improper, our experience in the gas industry, and the
generic nature of these issues. We have concluded that the industry
needs explicit guidelines on separating transmission and power trading
functions. In formulating proposed standards of conduct, our goal is to
prevent employees of the Transmission Provider that perform merchant
functions from having preferential access to any relevant information
about the Transmission Provider's wholesale transmission availability
and costs. In other words, those employees should not have access to
any relevant information that is not also available to all wholesale
transmission customers and potential wholesale transmission customers,
regardless of whether this information is obtained through access to
the control center, access to other locations or files, or through
informal communications.
Question 41. Are the standards of conduct proposed herein
sufficient? Should they be modified in any way?
Question 42. In particular, if the Commission in its final rule
requires functional unbundling of all transmission from generation,
how would these standards of conduct need to be modified? Would any
other organizational changes need to be made? Would any
modifications be needed with regard to ancillary services?
We note that, although formal rules prescribing standards of
conduct were deemed necessary in the natural gas industry, the
potential for improper communications between transmission and trading
personnel is even more of a concern for electric utilities than for gas
pipelines. Absent divestiture, transmission and power trading jobs will
be performed by individuals working for the same company (or corporate
group). These tasks have traditionally been done in the same control
room and, in some cases, are now being performed by the same person.
We believe that explicit guidance would be helpful to all
concerned. Transmission Providers will have a better idea of what
conduct is permissible and what is impermissible. Customer complaints
on preferential access should be minimized. Enforcement efforts by the
Commission will be easier when specific guidelines are available.
Additionally, to the extent this standard of conduct allays concerns
about improper conduct, it could reduce what information needs to be
posted on the RIN.
In the event that Transmission Providers are concerned that this
proposal somehow will impede system reliability, we invite them to
articulate their concerns in their comments by addressing the question
below.
Question 43. Would the Commission's proposed separation of
functions jeopardize system reliability? If so, what other mechanism
would provide wholesale transmission customers and potential
customers with assurance that they would be obtaining access to the
same information, at the same time, as that used by transmission
providers in making their own wholesale transmission purchasing
decisions?
F. Applicability
1. Non-Public Utility Transmission Providers
As with the requirements in the Open Access NOPR, the RINs
requirement applies only to public utilities. Issues relating to
potential gaps in the provision of comparable open access to wholesale
transmission services or access to transmission information due to the
fact that the requirements do not apply to non-public utilities will be
addressed in the Open Access rulemaking proceeding. Although the RINs
requirements would not apply to non-public utilities, the Commission
expects non-public utilities to provide comparable access to wholesale
transmission information under the reciprocity provision in the Open
Access rule pro forma tariffs.
In this regard, we also note our general authority under section
311 of the Federal Power Act, 16 USC Sec. 825j (1994), to secure
information (and conduct appropriate investigations) concerning, among
other things, the transmission of electric energy throughout the United
States, regardless of whether such transmission is otherwise subject to
our jurisdiction.
Question 45. The Commission requests comments on whether and to
what extent the Commission should exercise this statutory authority
to extend the RINs requirements to non-public utilities that own
and/or control facilities used for the transmission of electric
energy in interstate commerce.
Question 46. Should reciprocity require that a non-public
utility (such as a co-op or publicly-owned utility) have a RIN?
2. Public Utilities Having No Transmission Facilities With Commercial
Value
Some public utilities claim that none of their transmission
facilities that could be used to provide wholesale service has
commercial value that would justify the burden and expense of
developing and maintaining a RIN. Although the Commission would still
require same-time access to wholesale transmission and ancillary
service information, simpler means of satisfying this requirement may
be considered for utilities with wholesale transmission of little
commercial value.
Question 47. In light of the proposal in the How Report to use a
low cost Internet-based approach, the Commission requests specific
comments on circumstances in which the RINs requirements are
believed to be an unnecessary burden. Are there less burdensome ways
to meet the same-time access requirement in circumstances where the
utility's wholesale transmission facilities have little commercial
value? What criteria should the Commission use in determining
whether and when to relax the RINs requirements?
IV. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA),60 requires the
Commission to describe the impact a proposed rule would have on small
entities or to certify that the rule will not have a significant
economic impact on a substantial number of small entities. The entities
that would have to comply with the proposed rule are public utilities
and transmitting utilities that do not fall within RFA's definition of
[[Page 66198]]
small entities.61 Therefore, under section 605(b) of RFA, the
Commission hereby certifies that this proposed rule will not, if
promulgated, have a significant economic impact on small entities
within the meaning of RFA. Accordingly, no regulatory flexibility
analysis is required pursuant to section 603 of RFA.
\60\ 5 U.S.C. 601-612.
\61\ See 5 U.S.C. 601(3) and 601(6) and 15 U.S.C. 632(a).
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V. Environmental Statement
Commission regulations require that an environmental assessment or
an environmental impact statement be prepared for a Commission action
that may have a significant effect on the human environment.62
Although this regulation does not directly affect any physical
transmission facilities, but merely proposes the electronic posting by
computers of certain information about transmission availability and
prices, it nevertheless is being covered by the environmental impact
statement being prepared in the Open Access NOPR proceeding in Docket
Nos. RM95-8-000 and RM94-7-001. Thus, no separate environmental
assessment or environmental impact statement is being prepared for this
proposed rule.
\62\ Regulations Implementing National Environmental Policy Act,
Order No. 486, 52 FR 47897 (Dec. 17, 1987); 1986-90 Regs. Preambles
FERC Stats. & Regs. para. 30,783 (Dec. 10, 1987) (codified at 18 CFR
Part 380).
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VI. Information Collection Statement
There are approximately 328 public utilities, including marketers
and wholesale generation entities. The Commission estimates that
approximately 166 of these utilities own and/or control facilities used
for the transmission of electric energy in interstate commerce and thus
are subject to this proposal. However, since the operation of a RIN
will be closely associated with control areas, we assume that RINs will
be developed at the control area level and not by each public utility
that owns and/or controls interstate transmission facilities. We
estimate, therefore, that 84 respondents will be required to collect
information. We believe that this estimate is conservative because some
regions are likely to develop a region-wide RIN that will cover more
than one control area.
Information Collection Statement
Title: FERC-717, Real-Time Information Network Standards.
Action: Proposed Collection.
OMB Control No: None.
Respondents: Business or other for profit, including small
business.
Frequency of Responses: On Occasion.
Necessity of the information: The Notice of Proposed rulemaking
solicits public comments to respond to the uniform requirements for a
Real-time information network (RIN) established by the Commission to
ensure simultaneous access to information on transmission service. The
proposed requirements were developed after technical conferences with
industry to ensure that safeguards are installed to provide procedures
and substantive requirements for all parties seeking transmission
service. These requirements would support arrangements made for
wholesale sales and purchases for third parties. Public utilities and/
or their agents would give competitors and other users of the
transmission system access to same information available to the public
utility personnel who initiate the acquisition or disposition of power
in the wholesale market and at the same time. The Commission would use
the information to monitor the networks to ensure that potential
purchasers of transmission services obtain the services on a non-
discriminatory basis.
The Office of Management and Budget's (OMB) regulations,63
require OMB to approve certain information collection requirements
imposed by agency rule. The information collection requirements in the
proposed rule will be reported directly to transmission users and will
be subject to subsequent audit by the Commission. The distribution of
these data will help the Commission carry out its responsibilities
under Part II of the FPA.
\63\ 5 CFR 1320.11.
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The Commission is submitting notification of this proposed rule to
OMB. Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission,
888 First Street, NE., Washington, DC 20426 [Attention Michael Miller,
Information Services Division, (202) 208-1415], and to the Office of
Management and Budget [Attention: Desk Officer for the Federal Energy
Regulatory Commission (202) 395-3087].
VII. Public Comment Procedure
This NOPR gives notice of our intention to add Part 37 to the
Commission's Regulations. As described in the discussion above, under
this proposal each Transmission Provider would be required to create
and participate in a RIN, to ensure that potential purchasers of
transmission services have access to information to enable them to
obtain open access transmission services on a non-discriminatory basis
from the Transmission Provider. Additionally, the proposal would
require public utilities to comply with standards of conduct designed
to prevent discriminatory practices and affiliate abuse.
Prior to taking final action on this proposed rulemaking, we are
inviting comments from interested persons on 47 specific questions
enumerated in the body of this order (and compiled in Attachment
``1''), on the proposed templates in Appendix ``C'' and, more
generally, on whether the Commission should proceed to promulgate this
proposal as a final rule. Additionally, the Commission invites comments
on any suggested changes or modifications to the proposal that would,
in the view of the commenter, improve the proposal, and if so, why.
Moreover, the Commission is not intending to allow the filing of reply
comments in this proceeding and, therefore, we also invite parties to
discuss why policy options advocated by other parties (as described in
the comments in preparation for the Technical Conference, the working
group reports, and in comments in response to the working group
reports), should not be adopted by the Commission.
The Commission invites interested persons to submit written
comments or other information concerning this proposed rulemaking and
the issues identified above. All comments in response to this notice
should be submitted to the Office of Secretary, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426, and
should refer to Docket No. RM95-9-000. An original and fourteen (14)
copies of such comments should be filed with the Commission on or
before [insert date 45 days from the date of publication in the Federal
Register]. Additionally, a copy of the comments also should be
submitted to the Commission on computer diskette in Wordperfect 5.1 or
ASCII format.
All written submissions to this NOPR will be placed in the public
file and will be available for public inspection in the Commission's
Public Reference Room, 888 First Street, NE., Washington, DC 20426,
during regular business hours.
List of Subjects in 18 CFR Part 37
Real-Time Information Networks.
By direction of the Commission.
Lois D. Cashell,
Secretary.
In consideration of the foregoing, the Commission proposes to amend
Title
[[Page 66199]]
18, Code of Federal Regulations, to add a new Part 37, as set forth
below.
PART 37--REAL-TIME INFORMATION NETWORKS AND STANDARDS OF CONDUCT
FOR PUBLIC UTILITIES
Sec.
37.1 Applicability.
37.2 Purpose.
37.3 Definitions.
37.4 Standardization of data sets and communication protocols.
37.5 Obligations of transmission providers.
37.6 Standards of conduct.
37.7 RIN uses.
37.8 Information requirements for transmission service.
37.9 Information to be posted on a RIN.
37.10 Posting and updating information on a RIN.
37.11 Posting of discounts.
37.12 Procedure for transmission providers to respond to customer
requests for transmission service.
37.13 Communicating denials of requests for service and
curtailments.
37.14 Auditing transmission service information.
37.15 Implementation schedule for rin requirements; phases.
Authority: 16 U.S.C. 791-825r, 2601-2645; 31 U.S.C. 9701; 42
U.S.C. 7101-7352.
Sec. 37.1 Applicability.
This part applies to any public utility that owns and/or controls
facilities used for the transmission of electric energy in interstate
commerce.
Sec. 37.2 Purpose.
The purpose of this part is to ensure that potential customers of
transmission service receive access to information that will enable
them to obtain open access transmission service on a non-discriminatory
basis from public utilities that own and/or control facilities used for
the transmission of wholesale electric energy in interstate commerce.
These rules require public utilities (or their agents) to create and
operate a real-time information network (RIN) that gives competitors
and other users of the transmission system access to the same
information available to the public utility personnel who trade (sell
or purchase) power in the wholesale market, and at the same time, so
that potential customers may obtain open access transmission service
that is comparable to that provided by transmission owning public
utilities to themselves.
Sec. 37.3 Definitions.
(a) Transmission Provider means any public utility that owns and/or
controls facilities used for the transmission of electric energy in
interstate commerce.
(b) Transmission Customer means any eligible customer (or its
designated agent) that executes a service agreement and/or receives
transmission service.
(c) Responsible Party means the Transmission Provider or a third
party to whom the Transmission Provider has delegated the
responsibility of meeting the requirements of this Part.
(d) Resellers means Transmission Customers who offer to sell
transmission capability they have purchased to other Transmission
Customers.
(e) Wholesale Merchant Function means the sale for resale or
purchase of electric energy in interstate commerce.
(f) Affiliate means:
(1) for any non-exempt wholesale generator public utility, another
person which controls, is controlled by, or is under common control
with such person;
(2) for any public utility that is an exempt wholesale generator,
as defined in section 2(a)(11) of the Public Utility Holding Company
Act of 1935, as amended.
Sec. 37.4 Standardization of data sets and communication protocols.
(a) A public utility subject to this Part must provide access on a
RIN to standardized information relevant to the availability of
transmission capability, prices, and other information (as described
elsewhere in this Part) pertaining to its transmission system; it must
also provide the ability to display, download and upload the
standardized information in compliance with standardized procedures and
protocols.
(b) The standardized information, procedures and protocols are
found in ``Standardized Data Sets and Communication Protocols,'' which
can be obtained from the Office of Public Information, Federal Energy
Regulatory Commission, 888 North Capitol Street NE, Washington, DC
20426.
Sec. 37.5 Obligations of Transmission Providers.
Each Transmission Provider is required to provide for the operation
of a RIN, either individually or jointly with other Transmission
Providers, in accordance with the requirements of this Part.
Sec. 37.6 Standards of conduct.
A public utility subject to this Part must conduct its business to
conform with the following standards:
(a) The employees of the public utility that are engaged in
wholesale merchant functions (i.e., wholesale purchases and sales for
resale of electric energy in interstate commerce) are prohibited from
also conducting transmission system operations and/or reliability
functions. The employees of the public utility that are engaged in
merchant functions also are prohibited from having preferential access
to the system control center and other facilities of the public utility
that differs from the access available to other wholesale transmission
customers or potential wholesale transmission customers. To the maximum
extent practicable, the employees of the public utility engaged in
transmission system operations must function independently of the
employees engaged in wholesale merchant functions and of the employees
of any affiliate of the public utility. Employees are not precluded
from transferring between departments as long as they do not conduct
both transmission system operations functions and wholesale merchant
functions or functions on behalf of any affiliate, and as long as these
standards of conduct are observed. Notices of any employee transfers to
or from transmission system operations must be posted on the RIN.
(b) When buying or selling power, employees of the public utility
that are engaged in wholesale merchant functions and employees of any
affiliate of the public utility must rely upon the same information
relied upon by the public utility's wholesale transmission customers
(i.e., the information posted on the RIN), and must not have
preferential access to any information about the public utility's
transmission system that is not available to all users of the RIN.
(c) Employees of the public utility that are engaged in wholesale
merchant functions and employees of any affiliate of the public utility
are prohibited from obtaining information about the public utility's
transmission system (including information about available transmission
capability, price, curtailments, ancillary services, etc.) through
communications conducted off the RIN or through access to information
not posted on the RIN.
(d) Employees of the public utility that are engaged in
transmission system operations or reliability functions may not
disclose to employees engaged in the wholesale merchant function or to
employees of any affiliate of the public utility any information
concerning the public utility's transmission system (including
information received from non-affiliates or information about available
transmission capability, price, curtailments, ancillary services, etc.)
through communications conducted off the RIN or through access to
information not posted on the RIN.
(e) If a public utility employee that is engaged in transmission
system
[[Page 66200]]
operations or reliability functions provides information not contained
on the RIN to an employee of the public utility that is engaged in the
merchant function or to an employee of an affiliate of the public
utility, the public utility must immediately post such information on
the RIN.
(f)(1) The employees of the public utility that are engaged in
transmission system operations must apply all tariff provisions
relating to the sale or purchase of wholesale transmission service in a
fair and impartial manner that treats all customers (including the
public utility's employees conducting wholesale merchant functions and
employees of any affiliate) alike, if these provisions involve
discretion.
(2) The public utility must keep a log, available for after-the-
fact Commission audit, detailing the circumstances and manner in which
it exercised its discretion under any terms of the tariff.
(g) The employees of the public utility that are engaged in
transmission system operations must strictly enforce all tariff
provisions relating to the sale or purchase of wholesale transmission
service, if these provisions do not provide for the use of discretion.
(h) The public utility may not, through its tariffs or otherwise,
give preference to wholesale purchases or sales made for itself or any
affiliate over the interests of any other wholesale customer in matters
relating to the sale or purchase of transmission service (including
issues of price, curtailments, scheduling, priority, etc.).
(i) If the public utility offers discounts to purchases made for
itself or for any affiliate, then it must, at the same time, offer on
the RIN comparable discounts for similar service to all transmission
customers.
(j) A public utility must maintain its books of account and records
separately from those of its affiliates.
(k) Within 60 days of publication of the final rule in the Federal
Register, the public utility must file with the Commission procedures
that will enable customers and the Commission to determine that the
public utility is in compliance with the requirements in this section.
Sec. 37.7 RIN uses.
The information posted on the RIN must allow transmission customers
to:
(a) make requests for transmission services offered by Transmission
Providers and the secondary market;
(b) view and download in standard formats, using standard
protocols, necessary information regarding the transmission system to
enable prudent business decision making;
(c) post, view, upload and download information regarding available
products and desired services;
(d) clearly identify the degree to which their transmission service
requests and/or schedules were denied or curtailed relative to those of
their competitors; and
(e) obtain access in electronic format information to support
available transmission capability calculations and historical
transmission service requests and schedules for various audit purposes.
Sec. 37.8 Information requirements for transmission service.
(a) The RIN must support the posting of available transmission
capability and the processing of requests electronically.
(b) The RIN must provide a mechanism to enable Transmission
Providers and Customers to promptly communicate requests and responses
to buy and sell available transmission capability offered under the
Transmission Providers' tariffs.
(c) For requests for transmission service to begin more than one
year from the date of the request, transmission studies need not be
performed to calculate ATCs, see Sec. 37.9(a)(1), until a request for
service is made. However, any planning or specifically requested
studies of the transmission network performed by the Transmission
Provider are to be available for download on the RIN. (This applies
only to those parts of customer-specific interconnection studies that
relate to network impacts).
Sec. 37.9 Information to be posted on a RIN.
(a) Five major types of information must be posted on the RIN: (1)
Available Transfer Capability (ATC) and Total Transfer Capability
(TTC);
(2) Transmission Providers' and Resellers' Transmission Service
Product Offerings and Prices;
(3) Transmission Providers' and Third Parties' Ancillary Service
Product Offerings and Prices;
(4) Specific Transmission Service Requests/Responses; and
(5) Informal Transmission Communications.
(b) Information on ATC and TTC shall be posted on the RIN in
accordance with the following: (1) The Transmission Provider must
inform all participants simultaneously in the wholesale market of the
transfer capability that is expected to be available on transmission
paths of the Transmission Provider's system and each paths' total
transfer capability. The Transmission Provider may delegate this
responsibility to a suitable third party who maintains that
Transmission Providers' RIN, such as an Independent System Operator, a
Regional Transmission Group, or a Regional Reliability Council.
(2) The ATC/TTC shall be calculated by the Responsible Party (the
Transmission Provider or its designated agent) according to
consistently applied industry practices, standards and criteria, or
criteria referenced in the Transmission Provider's transmission tariff.
(3) The amount of ATC posted shall be that amount that the
Responsible Party expects, in good faith, to be available on a specific
interface or Path in a specific direction, based on engineering
analysis and other information that is available to the Responsible
Party at the time of the posting. ATCs and TTCs as required in the
Posting Schedule must be posted in megawatts.
(4) Curtailment provisions associated with ATC must be incorporated
in the posting and must be made available to all Transmission
Customers.
(5) Transmission tariffs provide an application procedure for
Transmission Customers to request transmission service. At the time of
the application, and in accordance with the provisions of those
tariffs, the Transmission Provider (or its designated agent) must
inform the requester if the Transmission Provider can honor the
request. If not, the Transmission Provider must provide an explanation
of additional information that is needed to evaluate the request, or
identify prior pending requests that prevent acceptance of the full
request, regardless of the posted ATC/TTC values.
(6) The public utility must make all data used to calculate ATC/TTC
publicly available. This information must be available for download on
the RIN. The Transmission Provider must identify in its information
supporting its ATC calculations the limiting element and the cause of
the limit (e.g., thermal, voltage, stability). Whatever method is used
to determine capability must be applied consistently.
(c) Information on Transmission Providers' and Resellers'
Transmission Service Product Offerings and Prices must be posted on the
RIN in accordance with the following: (1) Transmission Providers and
Resellers must post the prices, terms and conditions associated with
the transmission products that they offer to Transmission Customers.
Transmission Providers must also provide a downloadable file of their
complete tariff in the format required in the Open Access rule.
[[Page 66201]]
(2) Customers who desire to resell capability must post the
relevant information to the same RIN node used by the primary provider
from whom the customer purchased the transmission capability.
(3) If the Transmission Customer resells its rights, in whole or in
part, it must promptly notify the Transmission Provider, or the
Transmission Provider's agent, of the new owner of the rights, any
subdivision of these rights that may have occurred, and any changes in
the terms and conditions of these rights, subject to the terms and
conditions of the tariff.
(d) Information on Transmission Providers' and Third Parties'
Ancillary Service Product Offerings and Prices must be posted on the
RIN in accordance with the following: (1) To the extent that the final
Open Access rule requires that a Transmission Provider offer ancillary
services, the Transmission Provider will post such offers on the RIN.
(2) Other entities offering the same ancillary services shall have
a comparable right to post offers on the RIN.
(e) All requests for transmission service must be made on the RIN.
Requests for transmission service and the responses to such requests
must be consistent with the Transmission Provider's tariff, the Federal
Power Act, and FERC regulations.
(f) RINs must permit the posting of informal communications related
to transmission services. Postings made in this section carry no
obligation to respond on the part of any market participant. These
communications include ``want ads'' and ``other communications''
(including using the RIN as a conference space or to provide messaging
services between RIN users).
Sec. 37.10 Posting and Updating Information on the RIN.
(a) Information about ATC/TTC posted on the RIN must be updated
when transactions are scheduled or end or as other system conditions
change that significantly affect TTC/ATC.
(b) Information must be posted in accordance with the following
procedures:
(1) All information will be date/time stamped;
(2) Firm (Non-Recallable) ATC/TTC must be posted:
(i) 24 hours per day for the next seven days, updating the next six
days and adding day seven at a reasonable pre-specified time daily;
(ii) On-peak and off-peak each day, for days 8-30, updating the
next 29 days and adding day 30 at a reasonable pre-specified time
daily;
(iii) By month, both on and off peak, for next 12 months updating
the next 11 months and adding month 12 on the 15th of each month;
(iv) Seasonal, by year, for years 1-10 (when planning and specially
requested transmission planning studies have been done).
(3) Non-Firm (Recallable) ATC/TTC must be posted:
(i) 24 hours per day for the next seven days, updating the next six
days and adding day seven at a reasonable pre-specified time daily;
(ii) On-peak and off-peak each day, for days 8-30, updating the
next 29 days and adding day 30 at a reasonable pre-specified time
daily;
(iii) Longer term by request.
(4) Daily updates must be posted at the same universal time for
each RIN.
Sec. 37.11 Posting of discounts.
A public utility, within 24 hours of agreeing to a discount (as
measured from when ATC must be adjusted in response to the
transaction), must post on the RIN and make available for download,
information describing the transaction (including price, quantity, and
any other relevant terms and conditions) and shall keep such
information posted on the RIN for at least 30 days. Thereafter, records
of the transaction must be retained and kept available for after-the-
fact Commission audit as part of the audit log required in section
37.14(e).
Sec. 37.12 Procedure for transmission providers to respond to customer
requests for transmission service.
The following steps must be followed in processing a transmission
service request, with the time for each step specified in the service
tariff:
(a) Requester: Submits request, including all information, as
required by the tariff.
(b) Provider: Places request in queue and posts applicable
information to the RIN. Posts request status and provides time/date
stamps throughout the process.
(c) Provider: Approves or denies request and provides reason, if
denied. Posts result to the RIN. Tenders service offer.
(d) Requester: Accepts service or withdraws request.
(e) Provider: If service accepted by Customer, adjusts ATC on the
RIN.
(f) Requester: Holds for scheduling, arranges scheduling, or
arranges for resale.
Sec. 37.13 Communicating denials of requests for service and
curtailments.
When requests for service are denied or transactions are curtailed,
the RIN must provide a mechanism for Transmission Providers to
communicate to transmission customers:
(a) the reason those transactions could not be accommodated; and
(b) the options, if any, for adjusting operation of the system to
increase transfer capability in order to accommodate those
transactions.
Sec. 37.14 Auditing Transmission Service Information.
(a) All RIN database transactions must be automatically copied,
recorded in a log file, and date/time stamped. If there is a question
concerning a transmission transaction, the log file may be downloaded
to identify the sequence of events concerning the transaction.
(b) Information on scheduling transmission service must be recorded
in a log file by the entity scheduling the transmission service and
must be available for download on the RIN by interested parties.
(c) Transmission Service Schedules must be posted to the RIN within
one week of the start of the transmission service schedule agreed upon
by the parties, unless otherwise reasonably requested by a party with a
legitimate concern.
(d) With the exception of discounted prices to its merchant
functions or to its affiliates, information about negotiations for
transmission do not have to be posted on the RIN unless an agreement
for transmission is reached. If an agreement is reached, the identity
of the parties, to a transmission transaction may be masked for 30 days
from the date when the transaction was agreed upon by the parties.
(e) Audit logs must be available for download on RINs for 90 days
and retained and available upon request for three years from the date
when they are first posted on a RIN.
Sec. 37.15 Implementation schedule for RIN requirements; phases.
The RIN(s) established under this part may be constructed in
phases, with the initial phase consisting of core requirements and
later phases increasing the number of functions, efficiency, and/or
effectiveness of the RIN. The first phase requirements must be
implemented as of the effective date of the Open Access rule.
Note: The following attachment will not appear in the Code of
Federal Regulations.
Attachment 1--(Questions for Comment)
Question 1. We seek comment on whether to continue to call the
information network
[[Page 66202]]
a ``RIN'' and, if not, what name should be used in its place.
Question 2. What issues associated with RIN standards would have
to be addressed if in an open access transmission environment the
electric power industry transitions to regional pricing, flow-based
pricing, or other pricing models that depart from the ``contract
path'' approach presently used for pricing electric transmission
service? How in structuring RIN standards can the Commission provide
for this contingency?
Question 3. The Commission requests comments on how best to post
the availability of network transmission service on the RIN. Should
Transmission Providers be required to post conservative estimates as
a preliminary matter that could be improved with additional study?
Is there an alternative service concept that is more suitable to
measurement than the current version of network service?
Question 4. The Commission requests comment on how to develop a
consistent, industry-wide method of calculating ATC/TTC.
Question 5. The Commission requests comments on ways to minimize
the burden of ATC calculations, while ensuring that wholesale
transmission customers have the information they need.
Question 6. The Commission requests comment on a standard format
for electronic submission of transmission tariffs to the Commission.
Question 7. The Commission requests comments on what information
about curtailments and denials of requests for service should be
communicated on a RIN.
Question 8. What specifications would be needed for information
about curtailments and denials of requests for service to be posted
in HTML displays and what specifications and formats would be needed
to standardize downloadable files?
Question 9. The Commission requests comment on where on the RIN
offers by other entities to provide ancillary service should be
placed. The What Report states that these offers should be posted in
the ``Informal Transmission Communications'' section of the RIN.
Would this place third party providers at a disadvantage relative to
the Transmission Provider?
Question 10. The Commission requests comments on how to
determine the costs associated with posting ancillary services on
the RIN.
Question 11. With regard to information about offers to provide
ancillary services provided by an entity other than the Transmission
Provider, what specifications would be needed for this information
to be posted in HTML displays and what specifications and formats
would be needed to standardize downloadable files?
Question 12. The Commission requests comment on whether there is
any additional information needed about ancillary services that is
not included in the list. Is any information on the list not needed?
Question 13. The Commission requests comment on how often
ancillary services information should be updated.
Question 14. The Commission seeks comment on whether all
transmission discounts should be posted on the RIN, or only those
provided to the Transmission Provider or its affiliates. Also, if
discounts are to be posted, when should this be done?
Question 15. Regarding information on affiliate discounts, what
specifications are needed for the information to be posted in HTML
displays and what specifications and formats are needed for the
downloadable files?
Question 16. The Commission requests comments on how the data
used in calculating ATC should be formatted. Should it be in free
form text, predefined tables, or comma delimited ASCII files? If in
free form text, should it be in plain ASCII text or in a word
processor format, such as WordPerfect or Word?
Question 17. The Commission requests comments on what is the
appropriate time delay for making supporting information on ATC
available. Should the Commission require specific formats for ATC
supporting data? If so, what should the formats be?
Question 18. To keep the amount of information on the RIN
manageable, the Commission requests comment on whether it is
sufficient to provide information only about planned outages and
return dates (for both planned and forced outages) for those system
elements deemed to have a direct and significant impact on ATC and
whether posting this information on the RIN would cause any
confidentiality concerns.
Question 19. Since many system elements can impact the ATC of a
path, how should ``significant and direct impact'' be defined? Is it
acceptable to limit the additional information to those system
elements for which nomograms, derating tables, and operating guides
have been developed?
Question 20. Are there any difficulties, technical or otherwise,
associated with posting actual path flows on the RIN?
Question 21. In cases where ATC of a path is a function of run
status of one or more generators, is it sufficient to post the
expected amount and date of changes to ATC on the RIN, corresponding
to the planned outage or return dates of generators.
Question 22. If operating guides, nomograms, operating studies,
and similar information are to be made available on the RIN for
download, would it be logical to expect that transmission customers
will be able to deduce the run status of those generators which
significantly and directly impact ATC by observing the changes to
ATC?
Question 23. The Commission requests comments on how
transmission studies should be formatted for download from the RIN.
Should they be in free form ASCII text, or in a word processor
format, such as WordPerfect or Word?
Question 24. The Commission requests comment on what information
should be considered commercially sensitive, the 30-day release
period proposal, and on how and when commercially sensitive
information should be released to concerned parties before the
standard release period? Should affiliated transactions be treated
differently?
Question 25. The Commission requests comments on how long the
implementation schedule should be for Phase I.
Question 26. Does the How Report define HTML displays and
downloadable files with sufficient clarity to permit public
utilities to implement Phase I such that the downloaded files and
HTML displays received by customers from each RIN have the same
definitions, etc.? If not, what clarifications are needed?
Similarly, are uploaded files sufficiently defined in the How
Report?
Question 27. The Commission invites comment generally, on the
issues discussed in Appendix ``C''.
Question 28. The Commission requests comments on how to ensure
that a customer will be able to choose a browser and use it to
access all RIN Nodes.
Question 29. The Commission requests comments on the use of
28,800 bits per second in the calculation of the minimum bandwidth
connection between a RIN Node and the Internet in the formula
appearing in the How Report.
Question 30. The Commission requests comments on the use of DUNs
numbers to identify RIN participants.
Question 31. The Commission requests comments on how to develop
common location codes for the electric power industry.
Question 32. The Commission requests comments on what data
compression technique or techniques should be made standard for all
RIN Nodes.
Question 33. The Commission requests comments on whether the
upload and download templates are sufficiently specified to be
functional and whether they are sufficiently specified to permit all
RIN Nodes to implement them in the same way.
Question 34. The Commission requests comments on whether it
should allow the recovery of reasonable expenses associated with
developing and running RINs by rolling these costs into wholesale
transmission rates. How should fees associated with RIN usage be
calculated and recovered?
Question 35. The Commission requests comments on whether it
should encourage a small number of RIN Nodes.
Question 36. The Commission requests comments on whether
transmission owning utilities should be required, in Phase I, to
provide connections to private networks.
Question 37. The Commission requests comments on whether the
following How Group Proposals are adequate:
(1) Transmission Service Information Availability: The most
recent Provider transmission service information, including updates
reflecting power system changes, shall be available to all Customers
within 5 minutes of its scheduled posting time at least 98 percent
of the time. The remaining 2 percent of the time the transmission
service information shall be available within 10 minutes of its
scheduled posting time;
(2) Notification of Posted or Changed Transmission Service
Information: Notification of transmission service information posted
or changed by a Provider shall be made available within 60 seconds
to all subscribed Customers who are currently connected; and
(3) Acknowledgment by the Transmission Service Information
Provider: Acknowledgment by the transmission service
[[Page 66203]]
information provider of the receipt of Customer purchase request/
response requests shall occur within 1 minute for Phase I. The
actual negotiations and agreements on purchase request/response
requests do not have time constraints. For Phase II, acknowledgment
shall occur within 30 seconds.
Question 38. The Commission requests comments on how to redesign
the download templates in Appeat primary and secondary capacity can
be offered through downloadable files that have the same format. The
Commission also requests comments on how primary and secondary
capacity can be displayed in the same tables on a RIN Node.
Question 39. What is the best way to handle the purchase request
and response process when primary and secondary capacity appear in
the same RIN displays and files?
Question 40. The Commission requests comments on how to
determine the costs associated with posting resales on the RIN?
Question 41. Are the standards of conduct proposed herein
sufficient? Should they be modified in any way?
Question 42. In particular, if the Commission in its final rule
requires functional unbundling of all transmission from generation,
how would these standards of conduct need to be modified? Would any
other organizational changes need to be made? Would any
modifications be needed with regard to ancillary services?
Question 43. Would the Commission's proposed separation of
functions jeopardize system reliability? If so, what other mechanism
would provide wholesale transmission customers and potential
customers with assurance that they would be obtaining access to the
same information, at the same time, as that used by Transmission
Providers in making their own wholesale transmission purchasing
decisions?
Question 44. Regarding information on affiliate discounts, what
specifications are needed for the information to be posted in HTML
displays and what specifications and formats are needed for the
downloadable files?
Question 45. The Commission requests comments on whether and to
what extent the Commission should exercise this statutory authority
to extend the RINs requirements to non-public utilities' that own
and/or control facilities used for the transmission of electric
energy in interstate commerce.
Question 46. Should reciprocity require that a non-public
utility (such as a co-op or publicly owned utility) have a RIN?
Question 47. In light of the proposal in the How Report to use a
low cost Internet-based approach, the Commission requests specific
comments on circumstances in which the RINs requirements are
believed to be an unnecessary burden. Are there less burdensome ways
to meet the same-time access requirement in circumstances where the
utility's wholesale transmission facilities have little commercial
value? What criteria should the Commission use in determining
whether and when to relax the RINs requirements?
[FR Doc. 95-30884 Filed 12-20-95; 8:45 am]
BILLING CODE 6717-01-P
Complete official Federal Register PDF
FR Doc. 95-30874 Loans to plan participants
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66233-66237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30874]
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DEPARTMENT OF THE TREASURY
26 CFR Part 1
[EE-106-82]
RIN 1545-AE45
Loans to plan participants
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document contains proposed Income Tax Regulations under
section 72(p) of the Internal Revenue Code relating to loans made from
a qualified employer plan to plan participants or beneficiaries.
Section 72(p) was added by section 236 of the Tax Equity and Fiscal
Responsibility Act of 1982, and amended by the Technical Corrections
Act of 1982, the Deficit Reduction Act of 1984, the Tax Reform Act of
1986 and the Technical and Miscellaneous Revenue Act of 1988. These
regulations provide guidance to the public with respect to this
provision, and affect any plan participant or beneficiary who receives
a loan from a qualified employer plan.
DATES: Written comments and requests for a public hearing must be
received by March 20, 1996.
ADDRESSES: Send submissions to: CC:DOM:CORP:R (EE-106-82), Attention:
Plan Loans Guidance, room 5228, Internal Revenue Service, POB 7604, Ben
Franklin Station, Washington, DC 20044. In the alternative, submissions
may be hand delivered between the hours of 8 a.m. and 5 p.m. to:
CC:DOM:CORP:R (EE-106-82), Courier's Desk, Internal Revenue Service,
1111 Constitution Avenue, NW, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Vernon S. Carter, of the Office of the
Associate Chief Counsel (Employee Benefits and Exempt Organizations),
IRS, at (202) 622-6070 (not a toll free number).
SUPPLEMENTARY INFORMATION:
Background
This document contains proposed amendments to the Income Tax
Regulations (26 CFR Part 1) under section 72 of the Internal Revenue
Code of 1986 (Code). These amendments are proposed to conform the
regulations to section 236 of the Tax Equity and Fiscal Responsibility
Act of 1982 (TEFRA), which added section 72(p) to the Code, and to the
amendments to section 72(p) made by the Technical Corrections Act of
1982, the Deficit Reduction Act of 1984, the Tax Reform Act of 1986 and
the Technical and Miscellaneous Revenue Act of 1988.
Explanation of Provisions
Section 72(p) of the Code generally provides that an amount
received as a loan from a qualified employer plan by a participant or
beneficiary is treated as received as a distribution from the plan for
purposes of section 72 (a deemed distribution), except to the extent
certain conditions are satisfied. For purposes of section 72, a
qualified employer plan includes a plan that qualifies under section
401 (relating to qualified trusts), 403(a) (relating to qualified
annuities) or 403(b) (relating to tax sheltered annuities), as well as
a plan (whether or not qualified) maintained by the United States, a
State or a political subdivision thereof, or an agency or
instrumentality thereof. A qualified employer plan also includes a plan
which was (or was determined to be) a qualified plan or a government
plan. A loan from a contract purchased under a qualified employer plan
is also treated as a loan from the plan. Section 72(p) also provides
that an assignment or pledge of (or an agreement to assign or pledge)
any portion of a participant's or beneficiary's interest in a qualified
employer plan is to be treated as a loan from the plan.
Under section 72(p), a loan from a qualified employer plan to a
participant or beneficiary is not treated as a distribution from the
plan if the loan satisfies certain requirements relating to the terms
of the loan and the repayment schedule, and to the extent the loan
satisfies certain limitations on the amount loaned. The proposed
regulations require that the loan be evidenced by an enforceable
agreement, set forth in writing or in another form that is approved by
the Commissioner of Internal Revenue, that includes terms that satisfy
the statutory requirements. Thus, the agreement must specify the amount
of the loan, the term of the loan, and the repayment schedule. The
agreement may be set forth in more than one document.
If a loan fails to satisfy the repayment requirements or the
enforceable agreement requirement, the proposed regulations provide for
the balance then due under the loan to be treated as a distribution
from the plan. This may occur at the time the loan is made or at a
later date if the loan is not repaid in accordance with the repayment
schedule. If the loan satisfies the repayment requirements and the
enforceable agreement requirement, but at the time the loan is made the
amount of the loan exceeds the statutory limitation on the amount that
is permitted to be loaned, the proposed regulations provide that only
the excess amount is a deemed distribution.
One of the repayment requirements is that the loan be repaid within
five years, unless the loan is used to acquire a dwelling unit which
within a reasonable time is used as the principal residence of the
participant. The proposed regulations provide that a principal
residence has the same meaning as under section 1034 (relating to the
taxation of a sale of a residence) and that tracing rules established
under section 163(h)(3)(B) (relating to interest deductions for
indebtedness incurred with respect to the acquisition of a principal
residence) will be used to determine whether the section
72(p)(2)(B)(ii) exception to the five-year repayment requirement
applies. (Notice 88-74 (1988-2 C.B. 385), sets forth certain standards
applicable under section 163(h)(3).)
The Tax Reform Act of 1986 amended section 72(p) to require that,
in order for a loan to not be treated as a distribution, the loan must
be repaid in substantially level installments (not less frequently than
quarterly) over the term of the loan. Section 72(p) authorizes
regulations to allow exceptions from this requirement. Pursuant to this
authorization, the proposed regulations permit loan repayments to be
suspended during a leave of absence of up to one year, if the
participant's pay from the employer is insufficient to service the
debt, but only if the loan is repaid by the latest date permitted under
section 72(p)(2)(B).
If the repayment terms of a loan are not satisfied after the loan
has been made due to a failure to make a scheduled loan repayment, the
proposed regulations provide for the balance then due under the loan to
be deemed to be distributed. The proposed regulations permit a grace
period, to the extent the grace period does not extend beyond the end
of the calendar quarter next following the calendar quarter in which
the repayment was scheduled to be made.
If a loan is treated as a distribution under section 72(p), the
proposed regulations state that the amount so distributed is to be
treated as a taxable distribution, subject to the normal rules of
section 72 if the participant's interest in the plan includes after-tax
contributions (or other tax basis). A deemed distribution would also be
a distribution for purposes of the 10
[[Page 66234]]
percent tax in section 72(t) and the excise tax on excess distributions
under section 4980A. However, a deemed distribution under section 72(p)
is not treated as an actual distribution for purposes of the
qualification requirements of section 401, the rollover and income
averaging provisions of section 402 and the distribution restrictions
of section 403(b).
By contrast, if a participant's accrued benefit is reduced (offset)
in order to repay a loan, an actual distribution occurs for purposes of
the provisions in sections 401, 402 and 403(b) referred to above. Thus,
for example, a plan is prohibited from enforcing its security interest
in a participant's account balance attributable to amounts contributed
pursuant to an election under section 401(k) until a date on which
distribution is permitted under section 401(k).
The proposed regulations do not address all issues arising under
section 72(p). Comments are requested on whether further guidance
should be provided on issues that are not addressed and how the issues
should be resolved, including the effect of a deemed distribution on
the tax treatment of subsequent distributions from the plan and the
application of the $50,000 limitation and the five year repayment
requirement to a refinancing and to multiple loan arrangements.
Taxpayers may rely on these proposed regulations for guidance
pending the issuance of final regulations. If, and to the extent,
future guidance is more restrictive than the guidance in these proposed
regulations, the future guidance will be applied without retroactive
effect.
Special Analysis
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in EO 12866. Therefore,
a regulatory assessment is not required. It also has been determined
that section 553(b) of the Administrative Procedure Act (5 U.S.C.
chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do
not apply to these regulations, and, therefore, a Regulatory
Flexibility Analysis is not required. Pursuant to section 7805(f), this
notice of proposed rulemaking will be submitted to the Chief Counsel
for Advocacy of the Small Business Administration for comment on its
impact on small business.
Comments and Request for Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written comments (a signed original
and eight (8) copies) that are submitted timely to the following
address: CC:DOM:CORP:R (EE-106-82), Attention: Plan Loans Guidance,
room 5228, Internal Revenue Service, POB 7604, Ben Franklin Station,
Washington, DC 20044. All comments will be available for public
inspection and copying. A public hearing may be scheduled if requested
in writing by any person that timely submits written comments. If a
public hearing is scheduled, notice of the date, time, and place for
the hearing will be published in the Federal Register.
Drafting Information
The principal author of these proposed regulations is Vernon S.
Carter, Office of the Associate Chief Counsel (Employee Benefits and
Exempt Organizations). However, other personnel from the IRS and
Treasury Department participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read,
in part, as follows:
Authority: 26 U.S.C. 7805. * * *
Par. 2. Section 1.72-17A is amended as follows:
1. Paragraphs (d)(1), (d)(2) and (d)(3) are redesignated as
paragraphs (d)(2), (d)(3) and (d)(4), respectively.
2. New paragraph (d)(1) is added to read as follows:
Sec. 1.72-17A Special rules applicable to employee annuities and
distributions under deferred compensation plans to self-employed
individuals and owner-employees.
* * * * *
(d) * * * (1) The references in this paragraph (d) to section
72(m)(4) are to that section as in effect on August 13, 1982. Section
236(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982
repealed section 72(m)(4), generally effective for assignments, pledges
and loans made after August 13, 1982, and added section 72(p). See
section 72(p) and Sec. 1.72(p)-1 for rules governing the income tax
treatment of certain assignments, pledges and loans from qualified
employer plans made after August 13, 1982.
* * * * *
Par. 3. Section 1.72(p)-1 is added to read as follows:
Sec. 1.72(p)-1 Loans treated as distributions.
The questions and answers in this section provide guidance under
section 72(p) pertaining to loans from qualified employer plans
(including government plans and tax-sheltered annuities and employer
plans that were formerly qualified). The examples included in the
questions and answers in this section are based on the assumption that
a bona fide loan is made to a participant from a qualified defined
contribution plan pursuant to an enforceable agreement (in accordance
with Q&A-3(b) of this section), with adequate security and with an
interest rate and repayment terms that are commercially reasonable.
(The particular interest rate used for illustration in this section is
8.75 percent compounded annually.) In addition, unless the contrary is
specified, it is assumed in the examples that the amount of the loan
does not exceed 50 percent of the participant's nonforfeitable account
balance, the participant has no other outstanding loan (and had no
prior loan) from the plan or any other plan maintained by the
participant's employer or any other person required to be aggregated
with the employer under section 414(b), (c) or (m), and the loan is not
excluded from section 72(p) as a loan made in the ordinary course of an
investment program as described in Q&A-18 of this section. No inference
should be drawn from these regulations or the examples therein that a
loan would not result in a prohibited transaction under section 4975 or
would be consistent with the fiduciary standards of Title I of the
Employee Retirement Income Security Act of 1974, as amended. See, for
example, 29 CFR Sec. 2550.408b-1 (interpreting the statutory prohibited
transaction exemption for loans to participants and beneficiaries).
Questions and Answers
Q-1: In general, what does section 72(p) provide with respect to
loans from a qualified employer plan?
A-1: (a) Loans. Under section 72(p), an amount received by a
participant or beneficiary as a loan from a qualified employer plan is
treated as having been received as a distribution from the plan (a
deemed distribution), unless the loan satisfies the requirements of
Q&A-3 of this section. For purposes of section 72(p), a loan made from
a contract that has been purchased under a qualified employer plan
(including a contract that
[[Page 66235]]
has been distributed to the participant or beneficiary) shall be
considered a loan made under a qualified employer plan.
(b) Pledges and assignments. Under section 72(p), if a participant
or beneficiary assigns or pledges (or agrees to assign or pledge) any
portion of his or her interest in a qualified employer plan as security
for a loan, the portion of the individual's interest assigned or
pledged (or subject to an agreement to assign or pledge) is treated as
a loan from the plan to the individual, with the result that such
portion is subject to the deemed distribution rule described in
paragraph (a) of this Q&A-1. For purposes of section 72(p), any
assignment or pledge of (or agreement to assign or to pledge) by a
participant or beneficiary of any portion of his or her interest in a
contract that has been purchased under a qualified employer plan
(including a contract that has been distributed) shall be considered an
assignment or pledge of (or agreement to assign or pledge) an interest
in a qualified employer plan. However, if all or a portion of a
participant's or beneficiary's interest in a qualified employer plan is
pledged or assigned as security for a loan from the plan to the
participant or the beneficiary, only the amount of the loan received by
the participant or the beneficiary, not the amount pledged or assigned,
is treated as a loan.
Q-2: What is a qualified employer plan for purposes of section
72(p)?
A-2: For purposes of section 72(p), a qualified employer plan
means--
(a) A plan described in section 401(a) which includes a trust
exempt from tax under section 501(a);
(b) An annuity plan described in section 403(a);
(c) A plan under which amounts are contributed by an individual's
employer for an annuity contract described in section 403(b);
(d) Any plan, whether or not qualified, established and maintained
for its employees by the United States, by a State or political
subdivision thereof, or by an agency or instrumentality of the United
States, a State or a political subdivision of a State; or
(e) Any plan which was (or was determined to be) described in
paragraph (a), (b), (c), or (d) of this Q&A-2.
Q-3: What requirements must be satisfied in order for a loan to a
participant or beneficiary from a qualified employer plan not to be a
deemed distribution?
A-3: (a) In general. A loan to a participant or beneficiary from a
qualified employer plan will not be a deemed distribution to the
participant or beneficiary if the loan satisfies the repayment term
requirement of section 72(p)(2)(B), the level amortization requirement
of section 72(p)(2)(C), and the enforceable agreement requirement of
paragraph (b) of this Q&A-3, but only to the extent the loan satisfies
the amount limitations of section 72(p)(2)(A).
(b) Enforceable agreement requirement. A loan does not satisfy the
requirements of this paragraph unless the loan is evidenced by a
legally enforceable agreement (which may include more than one
document) set forth in writing or in such other form as may be approved
by the Commissioner, and the terms of the agreement demonstrate
compliance with the requirements of section 72(p)(2) and this section.
Thus, the agreement must specify the amount of the loan, the term of
the loan, and the repayment schedule.
Q-4: If a loan from a qualified employer plan to a participant or
beneficiary fails to satisfy the requirements of Q&A-3 of this section,
when does a deemed distribution occur?
A-4: (a) Deemed distribution. For purposes of section 72, a deemed
distribution occurs at the first time that the requirements of Q&A-3 of
this section are not satisfied, in form or in operation, with respect
to that amount. This may occur at the time the loan is made or at a
later date. If the terms of the loan do not require repayments that
satisfy the repayment term requirement of section 72(p)(2)(B) or the
level amortization requirement of section 72(p)(2)(C), or the loan is
not evidenced by an enforceable agreement satisfying the requirements
of Q&A-3(b) of this section, the entire amount of the loan is a deemed
distribution under section 72(p) at the time the loan is made. If the
loan satisfies the requirements of Q&A-3 of this section except that
the amount loaned exceeds the limitations of 72(p)(2)(A), the amount of
the loan in excess of the applicable limitation is a deemed
distribution under section 72(p) at the time the loan is made. If the
loan initially satisfies the requirements of section 72(p)(2)(A), (B)
and (C) and the enforceable agreement requirement of Q&A-3(b) of this
section, but payments are not made in accordance with the terms
applicable to the loan, a deemed distribution occurs as a result of the
failure to make such payments. See Q&A-10 of this section regarding
when such a deemed distribution occurs and the amount thereof and Q&A-
11 of this section regarding the tax treatment of a deemed
distribution.
(b) Examples. The following examples illustrate the rules in
paragraph (a) of this Q&A-4 and are based upon the assumptions
described in ASSUMPTIONS FOR EXAMPLES:
Example 1. (a) A participant has a nonforfeitable account balance
of $200,000 and receives $70,000 as a loan repayable in level quarterly
installments over five years.
(b) Under section 72(p), the participant has a deemed distribution
of $20,000 (the excess of $70,000 over $50,000) at the time of the
loan, because the loan exceeds the $50,000 limit in section
72(p)(2)(A)(i). The remaining $50,000 is not a deemed distribution.
Example 2. (a) A participant with a nonforfeitable account balance
of $30,000 borrows $20,000 as a loan repayable in level monthly
installments over five years.
(b) Because the amount of the loan is $5,000 more than 50% of the
participant's nonforfeitable account balance, the participant has a
deemed distribution of $5,000 at the time of the loan. The remaining
$15,000 is not a deemed distribution. (Note also that, if the loan is
secured solely by the participant's account balance, the loan may be a
prohibited transaction under section 4975 because the loan may not
satisfy 29 CFR Sec. 2550.408b-1(f)(2)).
Example 3. (a) The nonforfeitable account balance of a participant
is $100,000 and a $50,000 loan is made to the participant repayable in
level quarterly installments over seven years. The loan is not eligible
for the section 72(p)(2)(B)(ii) exception for loans used to acquire
certain dwelling units.
(b) Because the repayment period exceeds the maximum five-year
period in section 72(p)(2)(B)(i), the participant has a deemed
distribution of $50,000 at the time the loan is made.
Example 4. (a) On August 1, 1998, a participant has a
nonforfeitable account balance of $45,000 and borrows $20,000 from a
plan to be repaid over five years in level monthly installments due at
the end of each month. After making monthly payments through July 1999,
the participant fails to make any of the payments due thereafter.
(b) As a result of the failure to satisfy the requirement that the
loan be repaid in level monthly installments, the participant has a
deemed distribution. See Q&A-10(c) Example of this section regarding
when such a deemed distribution occurs and the amount thereof.
Q-5: What is a principal residence for purposes of the exception in
section 72(p)(2)(B)(ii) from the requirement that a loan be repaid in
five years?
[[Page 66236]]
A-5: Section 72(p)(2)(B)(ii) provides that the requirement in
section 72(p)(2)(B)(i) that a plan loan be repaid within five years
does not apply to a loan used to acquire a dwelling unit which will
within a reasonable time be used as the principal residence of the
participant (a principal residence plan loan). For this purpose, a
principal residence has the same meaning as a principal residence under
section 1034.
Q-6: In order to satisfy the requirements for a principal residence
plan loan, is a loan required to be secured by the dwelling unit that
will within a reasonable time be used as the principal residence of the
participant?
A-6: A loan is not required to be secured by the dwelling unit that
will within a reasonable time be used as the participant's principal
residence in order to satisfy the requirements for a principal
residence plan loan.
Q-7: What tracing rules apply in determining whether a loan
qualifies as a principal residence plan loan?
A-7: The tracing rules established under section 163(h)(3)(B) apply
in determining whether a loan is treated as for the acquisition of a
principal residence in order to qualify as a principal residence plan
loan.
Q-8: Can a refinancing qualify as a principal residence plan loan?
A-8: (a) Refinancings. In general, no. However, a loan from a
qualified employer plan used to repay a loan from a third party will
qualify as a principal residence plan loan if the plan loan qualifies
as a principal residence plan loan without regard to the loan from the
third party.
(b) Example. The following example illustrates the rules in
paragraph (a) of this Q&A-8 and is based upon the assumptions described
in ASSUMPTIONS FOR EXAMPLES:
Example. (a) On July 1, 1999, a participant requests a $50,000 plan
loan to be repaid in level monthly installments over 15 years. On
August 1, 1999, the participant acquires a principal residence and pays
a portion of the purchase price with a $50,000 bank loan. On September
1, 1999, the plan loans $50,000 to the participant, which the
participant uses to pay the bank loan.
(b) Because the plan loan satisfies the requirements to qualify as
a principal residence plan loan (taking into account the tracing rules
of section 163(h)(3)(B)), such plan loan qualifies for the exception in
section 72(p)(2)(B)(ii).
Q-9: Does the level amortization requirement of section 72(p)(2)(C)
apply when a participant is on a leave of absence without pay?
A-9: (a) Leave of absence. The level amortization requirement of
section 72(p)(2)(C) does not apply for a period, not longer than one
year, that a participant is on a leave of absence, either without pay
from the employer or at a rate of pay (after income and employment tax
withholding) that is less than the amount of the installment payments
required under the terms of the loan. However, the loan must be repaid
by the latest date permitted under section 72(p)(2)(B) and the
installments due after the leave ends (or, if earlier, after the first
year of the leave) must not be less than those required under the terms
of the original loan.
(b) Example. The following example illustrates the rules of
paragraph (a) of this Q&A-9 and is based upon the assumptions described
in ASSUMPTIONS FOR EXAMPLES:
Example. (a) On July 1, 1997, a participant with a nonforfeitable
account balance of $80,000, borrows $40,000 to be repaid in level
monthly installments of $825 each over five years. The loan is not a
principal residence plan loan. The participant makes nine monthly
payments and commences an unpaid leave of absence that lasts for 12
months. Thereafter, the participant resumes active employment and
resumes making repayments on the loan until the loan is repaid. The
amount of each monthly installment is increased to $1,130 in order to
repay the loan by June 30, 2002.
(b) Because the loan satisfies the requirements of section
72(p)(2), the participant does not have a deemed distribution.
Alternatively, section 72(p)(2) would be satisfied if the participant
continued the monthly installments of $825 after resuming active
employment and on June 30, 2002 repaid the full balance remaining due.
Q-10: If a participant fails to make the installment payments
required under the terms of a loan that satisfied the requirements of
Q&A-3 of this section when made, when does a deemed distribution occur
and what is the amount of the deemed distribution?
A-10: (a) Timing of deemed distribution. Failure to make any
installment payment when due in accordance with the terms of the loan
violates section 72(p)(2)(C) and, accordingly, results in a deemed
distribution at the time of such failure. However, the plan
administrator may allow a grace period, and section 72(p)(2)(C) will
not be considered to have been violated until the last day of the grace
period. Any such grace period shall be given effect for purposes of
section 72(p)(2)(C) only to the extent it does not continue beyond the
last day of the calendar quarter following the calendar quarter in
which the required installment payment was due.
(b) Amount of deemed distribution. If a loan satisfies Q&A-3 of
this section when made, but there is a failure to pay the installment
payments required under the terms of the loan (taking into account any
grace period allowed under the preceding paragraph (a) of this Q&A-10),
then the amount of the deemed distribution equals the entire
outstanding balance of the loan at the time of such failure.
(c) Example. The following example illustrates the rules in Q&A-
10(a) and (b) of this section and is based upon the assumptions
described in ASSUMPTIONS FOR EXAMPLES:
Example. (1) On August 1, 1998, a participant has a nonforfeitable
account balance of $45,000 and borrows $20,000 from a plan to be repaid
over five years in level monthly installments due at the end of each
month. After making all monthly payments due through July 31, 1999, the
participant fails to make the payment due on August 31, 1999 or any
other monthly payments due thereafter. The plan administrator allows a
three-month grace period.
(2) As a result of the failure to satisfy the requirement that the
loan be repaid in level installments pursuant to section 72(p)(2)(C),
the participant has a deemed distribution on November 30, 1999, which
is the last day of the three-month grace period for the August 31, 1999
installment. The amount of the deemed distribution is $17,157, which is
the outstanding balance on the loan at November 30, 1999.
Alternatively, if the plan administrator had allowed a grace period
through the end of the next calendar quarter, there would be a deemed
distribution on December 31, 1999 equal to $17,282, which is the
outstanding balance of the loan at December 31, 1999.
Q-11: Do sections 72 and 4980A apply to a deemed distribution as if
it were an actual distribution?
A-11: (a) Tax Basis. If the employee's account includes after-tax
contributions or other investment in the contract under section 72(e),
section 72 applies to a deemed distribution as if it were an actual
distribution, with the result that all or a portion of the deemed
distribution may not be taxable.
(b) Sections 72(t) and (m). Section 72(t) (which imposes a 10
percent tax on certain early distributions) and section 72(m)(5) (which
imposes a separate 10 percent tax on certain amounts received by a 5-
percent owner) apply to a deemed distribution under section 72(p)
[[Page 66237]]
in the same manner as if the deemed distribution were an actual
distribution.
(c) Section 4980A. For purposes of section 4980A, a deemed
distribution under section 72(p) is taken into account in determining
an individual's excess distributions, as provided in Sec. 54.4981A-1T,
Q&A a-8.
Q-12: Is a deemed distribution under section 72(p) treated as an
actual distribution for purposes of the qualification requirements of
section 401, the distribution provisions of section 402, or the
distribution restrictions of section 401(k)(2)(B) or 403(b)(11)?
A-12: No. Thus, for example, if a participant in a money purchase
plan who is an active employee has a deemed distribution under section
72(p), the plan will not be considered to have made an in-service
distribution to the participant in violation of the qualification
requirements applicable to money purchase plans. Similarly, the deemed
distribution is not eligible to be rolled over to an eligible
retirement plan and the participant is not eligible to elect income
averaging with respect to the deemed distribution. See also
Secs. 1.402(c)-2, Q&A-4(d) and Sec. 1.401(k)-1(d)(6)(ii).
Q-13: How does a reduction (offset) of an account balance in order
to repay a plan loan differ from a deemed distribution?
A-13: (a) Difference between deemed distribution and plan loan
offset amount. (1) Loans to a participant from a qualified employer
plan can give rise to two types of taxable distributions--
(i) A deemed distribution pursuant to section 72(p); and
(ii) A distribution of an offset amount.
(2) As described in Q&A-4 of this section, a deemed distribution
occurs when the requirements of Q&A-3 of this section are not
satisfied, either when the loan is made or at a later time. A deemed
distribution is treated as a distribution to the participant or
beneficiary only for certain tax purposes and is not a distribution of
the accrued benefit. A distribution of a plan loan offset amount (as
defined in Sec. 1.402(c)-2, Q&A-9(b)) occurs when, under the terms
governing a plan loan, the accrued benefit of the participant or
beneficiary is reduced (offset) in order to repay the loan (including
the enforcement of the plan's security interest in the accrued
benefit). A distribution of a plan loan offset amount could occur in a
variety of circumstances, such as where the terms governing the plan
loan require that, in the event of the participant's request for a
distribution, a loan be repaid immediately or treated as in default.
(b) Plan loan offset. In the event of a plan loan offset, the
amount of the account balance that is offset against the loan is an
actual distribution for purposes of the Internal Revenue Code, not a
deemed distribution under section 72(p). Accordingly, a plan may be
prohibited from making such an offset under the provisions of section
401(a), 401(k)(2)(B) or 403(b)(11) prohibiting or limiting
distributions to an active employee. See Sec. 1.402(c)-2, Q&A-9(c)
Example 6.
Q-14: How is the amount includible in income as a result of a
deemed distribution under section 72(p) required to be reported?
A-14: The amount includible in income as a result of a deemed
distribution under section 72(p) is required to be reported on Form
1099-R (or any other form prescribed by the Commissioner).
Q-15: What withholding rules apply to plan loans?
A-15: To the extent that a loan, when made, is a deemed
distribution or an account balance is reduced (offset) to repay a loan,
the amount includible in income is subject to withholding. If a deemed
distribution of a loan or a loan repayment by benefit offset results in
income at a date after the date the loan is made, withholding is
required only if a transfer of cash or property (excluding employer
securities) is made to the participant or beneficiary from the plan at
the same time. See Secs. 35.3405-1(f)(4) and 31.3405(c)-1, Q&A-9 and
Q&A-11 of this chapter for further guidance on withholding rules.
Q-16: If a loan fails to satisfy the requirements of Q&A-3 of this
section and is a prohibited transaction under section 4975, is the
deemed distribution of the loan under section 72(p) a correction of the
prohibited transaction?
A-16: A deemed distribution is not a correction of a prohibited
transaction under section 4975. See Secs. 141.4975-13 and 53.4941(e)-
1(c)(1) of this chapter for guidance concerning correction of a
prohibited transaction.
Q-17: What are the income tax consequences if an amount is
transferred from a qualified employer plan to a participant or
beneficiary as a loan, but there is an express or tacit understanding
that the loan will not be repaid?
A-17: If there is an express or tacit understanding that the loan
will not be repaid, or, for any reason, the transaction does not create
a debtor-creditor relationship, then the amount transferred is treated
as an actual distribution from the plan for purposes of the Internal
Revenue Code, and is not treated as a loan or as a deemed distribution
under section 72(p).
Q-18: If a qualified employer plan maintains a program to invest in
residential mortgages, are loans made pursuant to the investment
program subject to section 72(p)?
A-18: Residential mortgage loans made by a plan in the ordinary
course of an investment program are not subject to section 72(p) if the
property acquired with the loans is the primary security for such loans
and the amount loaned does not exceed the fair market value of the
property. An investment program exists only if the plan has
established, in advance of a specific investment under the program,
that a certain percentage or amount of plan assets will be invested in
residential mortgages available to persons purchasing the property who
satisfy commercially customary financial criteria. Loans will not be
considered as made under an investment program if the loans are only
made available to, or any loan is earmarked for, any person or persons
who are participants or beneficiaries in the plan, or if such loans
mature upon a participant's termination from employment. In addition,
no loan that benefits an officer, director, or owner of the employer
maintaining the plan, or his or her beneficiaries, will be treated as
made under an investment program. No inference should be drawn that a
transaction under such an investment program is not a prohibited
transaction under section 503 or 4975 or is not a violation of the
applicable fiduciary standards for an employee benefit plan, so that
such a loan could be a prohibited transaction if it does not satisfy
the requirements of 29 CFR 2550.408b-1.
Q-19: When is the effective date of these regulations?
A-19: This section applies to assignments, pledges, and loans made
on or after the date that is three months after the date of publication
of the final regulations in the Federal Register.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 95-30874 Filed 12-20-95; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 95-30832 Treatment of Gain From the Disposition of Interest in Certain Natural Resource Recapture Property by S Corporations and Their Shareholders
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66237-66243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30832]
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[[Page 66238]]
DEPARTMENT OF THE TREASURY
26 CFR Part 1
[PS-7-89]
RIN 1545-AM98
Treatment of Gain From the Disposition of Interest in Certain
Natural Resource Recapture Property by S Corporations and Their
Shareholders
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document contains proposed regulations under section 1254
of the Internal Revenue Code relating to the tax treatment by S
corporations and their shareholders of gain from the disposition by an
S corporation (and a former S corporation) of certain natural resource
recapture property (section 1254 property after enactment of the Tax
Reform Act of 1986 and oil, gas, or geothermal property before
enactment of the Tax Reform Act of 1986), and also rules relating to
the disposition of stock in an S corporation that holds certain natural
resource recapture property. Changes to the applicable tax law were
made by the Tax Reform Act of 1986, and the Subchapter S Revision Act
of 1982. The regulations provide the public with guidance in complying
with the changed tax laws.
DATES: Written comments and requests for a public hearing must be
received by February 20, 1996.
ADDRESSES: Send comments and requests for a public hearing to:
CC:DOM:CORP:R (PS-7-89), room 5228, Internal Revenue Service, P.O. Box
7604, Ben Franklin Station, Washington, DC 20044. In the alternative,
submissions may be hand-delivered to CC:DOM:CORP:R (PS-7-89), Room
5228, Internal Revenue Service Building, 1111 Constitution Avenue, NW.,
Washington, DC 20224.
FOR FURTHER INFORMATION CONTACT: James A. Quinn, 202-622-3060 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information contained in this notice of proposed
rulemaking has been submitted to the Office of Management and Budget
(OMB) for review in accordance with the Paperwork Reduction Act of 1995
(44 U.S.C. 3507).
Comments on the collection of information should be sent to the
Office of Management and Budget, Attn: Desk Officer for the Department
of the Treasury, Office of Information and Regulatory Affairs,
Washington, DC 20503, with copies to the Internal Revenue Service,
Attn: IRS Reports Clearance Officer PC:FP, Washington, DC 20224.
Comments on the collection of information should be received by January
22, 1996.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless the collection of
information displays a valid control number.
The collection of information is contained in Sec. 1.1254-4(c) of
the proposed regulations. This information is required by the Internal
Revenue Service to verify that taxpayers have reported the appropriate
amount of gain as ordinary income under section 1254 when a shareholder
sells stock in an S corporation that holds natural resource recapture
property. The likely respondents are individuals and businesses and
other for-profit institutions.
Books or records relating to a collection of information must be
retained as long as their contents may become material in the
administration of any internal revenue law. Generally, tax returns and
tax return information are confidential, as required by 26 U.S.C. 6103.
Estimated total annual reporting burden: 1,000 hours. The estimated
annual burden per respondent varies from .5 hours to 1.5 hours,
depending on individual circumstances, with an estimated average of 1
hour.
Estimated number of respondents: 1,000.
Estimated annual frequency of responses: On occasion.
Background
On June 11, 1980, proposed amendments to the Income Tax
Regulations, 26 CFR part 1, under sections 170, 301, 312, 341, 453,
751, 1254, and 1502 of the Internal Revenue Code of 1954 (Code) were
published in the Federal Register (45 FR 39512). These amendments were
proposed to conform the regulations to section 205(a), (b), (c)(1) and
(2) of the Tax Reform Act of 1976, Public Law 94-455, 90 Stat. 1533,
and section 402(c) of the Energy Tax Act of 1978, Public Law 95-618, 92
Stat. 3202, and to make certain other technical amendments to the
regulations to conform them to section 1(c) of the Act of September 12,
1966, Public Law 89-570, 80 Stat. 762, section 211(b)(6) of the Tax
Reform Act of 1969, Public Law 91-172, 83 Stat. 570, and sections
1042(c)(2), 1101(d)(2), 1901(a)(93), and 2110(a) of the Tax Reform Act
of 1976, 90 Stat. 1637, 1658, 1780, 1905. Section 1.1254-3 of the
proposed regulations provided rules relating to the sale or exchange of
stock in an electing small business corporation (hereinafter referred
to as an S corporation). Because of the substantial changes in the tax
treatment of S corporations since the proposed regulations were issued,
the proposed regulations contained in Sec. 1.1254-3 needed to be
completely revised.
This document revises and reproposes Sec. 1.1254-3 of the above-
referenced notice of proposed rulemaking as amendments to the Income
Tax Regulations, 26 CFR part 1, under section 1254 of the Code,
relating to S corporations (redesignated as Sec. 1.1254-4). These
amendments are proposed to conform the regulations to section 5(a)(37)
of the Subchapter S Revision Act of 1982, Public Law 97-354, 96 Stat.
1669, and sections 411 and 413 of the Tax Reform Act of 1986, Public
Law 99-514, 100 Stat. 2225, 2227. The amendments are to be issued under
the authority contained in sections 1254(b) and 7805 of the Code.
Explanation of Provisions
These proposed regulations contain rules for applying the
provisions of section 1254 to the disposition of natural resource
recapture property by an S corporation (and a former S corporation) and
the disposition of S corporation stock.
The proposed regulations provide that the recognition of ordinary
income under section 1254 upon the disposition of natural resource
recapture property by an S corporation is generally computed at the
shareholder level. Determining the amount of ordinary income to be
recognized under section 1254 at the shareholder level is appropriate
because the determination of section 1254 costs can be affected by
shareholder elections and characteristics. See, for example, sections
59(e) and 1363(c)(2)(A). Similarly, in the case of oil and gas
properties, gain on the disposition of the property and depletion with
respect to the property are computed at the shareholder level. See
section 613A(c)(11).
The proposed regulations also contain rules relating to the
recognition of ordinary income under section 1254 upon a sale or
exchange of S corporation stock. Under section 1254(b)(2), rules
similar to the rules of section 751 are to be applied to that portion
of the excess of the amount realized over the adjusted basis of the
stock that is attributable to section 1254 costs. Pursuant to section
1254(b)(2), the proposed regulations provide that, as a general rule, a
[[Page 66239]]
shareholder must treat any gain recognized on a sale or exchange of S
corporation stock as ordinary income to the extent of the shareholder's
section 1254 costs with respect to the shares sold or exchanged.
The proposed regulations provide two exceptions to the general rule
for determining the amount treated as ordinary income under section
1254 upon a sale or exchange of stock. The first exception is that the
general rule does not apply to the extent that the shareholder
establishes that the gain is not attributable to the section 1254
costs. The portion of the gain recognized that is not attributable to
section 1254 costs is that portion of the gain recognized that exceeds
the amount of ordinary income that the shareholder would have
recognized under section 1254 (with respect to the shares sold or
exchanged) if, immediately prior to the sale or exchange of the stock,
the corporation had sold at fair market value all of the corporation's
property the disposition of which would result in the recognition by
the shareholder of ordinary income under section 1254. To establish
that a portion of the gain recognized is not attributable to a
shareholder's section 1254 costs, the shareholder must attach to the
shareholder's tax return a statement detailing the shareholder's share
of the fair market value and basis, and the shareholder's section 1254
costs, for each of the S corporation's natural resource recapture
properties held immediately before the sale or exchange of stock.
The second exception to the general rule for sales or exchanges of
stock is that, in the case of a contribution of property to the S
corporation prior to a stock sale or exchange pursuant to a plan a
principal purpose of which is to avoid the recognition of ordinary
income under section 1254, the selling or exchanging shareholder must
recognize as ordinary income under section 1254 the amount of ordinary
income the shareholder would have recognized under section 1254 (with
respect to the shares sold or exchanged) had the S corporation sold all
of its natural resource recapture property the disposition of which
would result in ordinary income under section 1254. Section 1.1254-
4(c)(3) Example 3 of the proposed regulations illustrates this
exception. The proposed regulations also provide rules for determining
an S corporation shareholder's section 1254 costs. Generally, an S
corporation shareholder's section 1254 costs with respect to any
natural resource recapture property held by the corporation include all
of the shareholder's section 1254 costs with respect to the property
while in the hands of the S corporation. In the case of a person
(acquiring shareholder) who acquires stock from another shareholder,
the proposed regulations provide that the acquiring shareholder's
section 1254 costs are zero if the acquiring shareholder's basis for
the stock transferred is determined by reference to its cost (within
the meaning of section 1012) or by reference to the fair market value
of the stock on the date of the decedent's death or on the applicable
date provided in section 2032 (relating to alternate valuation date).
However, an acquiring shareholder's section 1254 costs include any
section 1254 costs paid or incurred before the decedent's death, to the
extent that the basis of the stock is reduced under section 1014(b)(9)
(relating to adjustments to basis if the property is acquired from a
decedent prior to death). For stock that is acquired in a transfer that
is a gift, in a transfer that is part sale or exchange and part gift,
or a transfer described in section 1041, the acquiring shareholder
generally acquires the section 1254 costs of the transferor but reduces
the section 1254 costs by the amount of any gain treated as ordinary
income under section 1254 by the transferor on the transfer.
The proposed regulations provide rules for applying section 1254 to
the shareholders of an S corporation that incurred section 1254 costs
while it was a C corporation (former C corporation). In the case of a C
corporation that holds natural resource recapture property and that
elects to be an S corporation, each shareholder's section 1254 costs as
of the beginning of the corporation's first taxable year as an S
corporation include a pro rata share of the section 1254 costs of the
corporation as of the close of the last taxable year that the
corporation was a C corporation.
The proposed regulations also provide rules for applying section
1254 to a corporation that holds natural resource recapture property
after the termination of its S corporation election (former S
corporation). In the case of an S corporation that becomes a C
corporation, the C corporation's section 1254 costs with respect to any
natural resource recapture property held by the corporation as of the
beginning of the corporation's first taxable year as a C corporation
include the sum of its shareholders' section 1254 costs with respect to
the property as of the close of the last taxable year for which the
corporation was an S corporation. In the case of an S termination year
as defined in section 1362(e)(4), the shareholders' section 1254 costs
are determined as of the close of the S short year as defined in
section 1362(e)(1)(A).
Because certain transactions will change the allocation to the
shareholders of gain or amount realized from the natural resource
recapture property if the S corporation disposes of it subsequent to
these transactions, the proposed regulations require that section 1254
costs be reallocated to reflect the effects of these transactions.
Transactions requiring reallocation of the section 1254 costs are
transactions involving the issuance of stock by an S corporation in a
reorganization or otherwise, and transfers of natural resource
recapture property to the S corporation in exchange for stock of the S
corporation (for example, in a section 351 transaction or in a
reorganization).
The rules for former S corporations and the rules for allocating
section 1254 costs upon certain transfers require the S corporation to
determine the aggregate of its shareholders' section 1254 costs. The
proposed regulations provide rules for the S corporation to apply in
determining a shareholder's section 1254 costs with respect to natural
resource recapture property held by the S corporation. In general, the
S corporation may determine a shareholder's section 1254 costs by using
written data provided by the shareholder or by applying certain
assumptions.
These regulations are proposed to apply to dispositions of natural
resource recapture property by an S corporation (and a former S
corporation) and dispositions of S corporation stock occurring after
publication of these regulations as final regulations in the Federal
Register.
Comments and Requests for a Public Hearing
Before the adoption of these proposed regulations, consideration
will be given to any written comments that are timely submitted
(preferably an original and eight copies) to the IRS. All comments will
be available for public inspection and copying. A public hearing will
be held upon written request to the Internal Revenue Service by any
person who also submits written comments. If a public hearing is held,
notice of the time and place will be published in the Federal Register.
Special Analyses
It has been determined that this proposed regulation is not a
significant regulatory action as defined in Executive Order 12866.
Therefore, a regulatory assessment is not required. It also has been
determined that section
[[Page 66240]]
553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) and the
Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to these
regulations, and, therefore, a Regulatory Flexibility Analysis is not
required. Pursuant to section 7805(f) of the Internal Revenue Code,
this notice of proposed rulemaking will be submitted to the Chief
Counsel for Advocacy of the Small Business Administration for comment
on its impact on small business.
Drafting Information
The principal author of these regulations is James A. Quinn of the
Office of Assistant Chief Counsel (Passthroughs and Special
Industries), IRS. However, other personnel from the IRS and Treasury
Department participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in
part as follows:
Authority: 26 U.S.C. 7805. * * *
Section 1.1254-4 also issued under 26 U.S.C. 1254(b). * * *
Par. 2. Section 1.1254-0 is amended by revising the entry for
Sec. 1.1254-4 to read as follows:
Sec. 1.1254-0 Table of contents for section 1254 recapture rules.
* * * * *
Sec. 1.1254-4 Special rules for S corporations and their shareholders.
(a) In general.
(b) Determination of gain treated as ordinary income under section
1254 upon a disposition of natural resource recapture property by an S
corporation.
(1) General rule.
(2) Examples.
(c) Character of gain recognized by a shareholder upon a sale or
exchange of S corporation stock.
(1) General rule.
(2) Exceptions.
(3) Examples.
(d) Section 1254 costs of a shareholder.
(e) Section 1254 costs of an acquiring shareholder after certain
acquisitions.
(1) Basis determined under section 1012.
(2) Basis determined by reason of the application of section
1014(a).
(3) Basis determined by reason of the application of section
1014(b)(9).
(4) Gifts and section 1041 transfers.
(f) Special rules for former S corporations and former C
corporations.
(1) Section 1254 costs of an S corporation that was formerly a C
corporation.
(2) Examples.
(3) Section 1254 costs of a C corporation that was formerly an S
corporation.
(g) Determination of a shareholder's section 1254 costs upon
certain stock transactions.
(1) Issuance of stock.
(2) Natural resource recapture property acquired in exchange for
stock.
(3) Treatment of nonvested stock.
(4) Exception.
(5) Aggregate of S corporation shareholders' section 1254 costs
with respect to natural resource recapture property held by the S
corporation
(6) Examples.
(h) Effective date.
* * * * *
Par. 3. Section 1.1254-4 is amended by adding text to read as
follows:
Sec. 1.1254-4 Special rules for S corporations and their
shareholders.
(a) In general. This section provides rules for applying the
provisions of section 1254 to S corporations and their shareholders
upon the disposition by an S corporation (or a former S corporation) of
natural resource recapture property and upon the disposition by a
shareholder of stock of an S corporation that holds natural resource
recapture property.
(b) Determination of gain treated as ordinary income under section
1254 upon a disposition of natural resource recapture property by an S
corporation--(1) General rule. Upon a disposition of natural resource
recapture property by an S corporation, the amount of gain treated as
ordinary income under section 1254 is determined at the shareholder
level. Each shareholder must recognize as ordinary income under section
1254 the lesser of--
(i) The shareholder's section 1254 costs with respect to the
property disposed of; or
(ii) The shareholder's share of the amount, if any, by which the
amount realized on the sale, exchange, or involuntary conversion, or
the fair market value of the property upon any other disposition
(including a distribution), exceeds the adjusted basis of the property.
(2) Examples. The following examples illustrate the provisions of
paragraph (b)(1) of this section:
Example 1. Disposition of natural resource recapture property
other than oil and gas property. A and B are equal shareholders in
X, an S corporation. On January 1, 1995, X acquires for $90,000 an
undeveloped mineral property, its sole property. During 1995, X
expends and deducts $100,000 in developing the property. On January
15, 1996, X sells the property for $250,000 when X's basis in the
property is $90,000. Thus, X recognizes gain of $160,000 on the
sale. A and B's share of the $160,000 gain recognized is $80,000
each. Each shareholder has $50,000 of section 1254 costs with
respect to the property. Under these circumstances, A and B each are
required to recognize $50,000 of the $80,000 of gain on the sale of
the property as ordinary income under section 1254.
Example 2. Disposition of oil and gas property the adjusted
basis of which is allocated to the shareholders under section
613A(c)(11). C and D are equal shareholders in Y, an S corporation.
On January 1, 1995, Y acquires for $150,000 an undeveloped oil and
gas property, its sole property. During 1995, Y expends in
developing the property $40,000 in intangible drilling costs which
it elects to expense under section 263(c). On January 15, 1996, Y
sells the property for $200,000. C and D's share of the $200,000
amount realized on the sale is $100,000 each. C and D each have a
basis of $75,000 in the property and $20,000 of section 1254 costs
with respect to the property. Under these circumstances, C and D
each are required to recognize $20,000 of the $25,000 gain on the
sale of the property as ordinary income under section 1254.
(c) Character of gain recognized by a shareholder upon a sale or
exchange of S corporation stock--(1) General rule. Except as provided
in paragraph (c)(2) of this section, if an S corporation shareholder
recognizes gain upon a sale or exchange of stock in the S corporation
(determined without regard to section 1254), the gain is treated as
ordinary income under section 1254 to the extent of the shareholder's
section 1254 costs (with respect to the shares sold or exchanged).
(2) Exceptions--(i) Gain not attributable to section 1254 costs--
(A) General rule. Paragraph (c)(1) of this section does not apply to
any portion of the gain recognized on the sale or exchange of the stock
that the taxpayer establishes is not attributable to section 1254
costs. The portion of the gain recognized that is not attributable to
section 1254 costs is that portion of the gain recognized that exceeds
the amount of ordinary income that the shareholder would have
recognized under section 1254 (with respect to the shares sold or
exchanged) if, immediately prior to the sale or exchange of the stock,
the corporation had sold at fair market value all of the corporation's
property the disposition of which would result in the recognition by
the shareholder of ordinary income under section 1254.
[[Page 66241]]
(B) Substantiation. To establish that a portion of the gain
recognized is not attributable to a shareholder's section 1254 costs so
as to qualify for the exception contained in paragraph (c)(2)(i)(A) of
this section, the shareholder must attach to the shareholder's tax
return a statement detailing the shareholder's share of the fair market
value and basis, and the shareholder's section 1254 costs, for each of
the S corporation's natural resource recapture properties held
immediately before the sale or exchange of stock.
(ii) Transactions entered into as part of a plan to avoid
recognition of ordinary income under section 1254. In the case of a
contribution of property prior to a sale or exchange of stock pursuant
to a plan a principal purpose of which is to avoid recognition of
ordinary income under section 1254, paragraph (c)(1) of this section
does not apply. Instead, the amount recognized as ordinary income under
section 1254 is the amount of ordinary income the selling or exchanging
shareholder would have recognized under section 1254 (with respect to
the shares sold or exchanged) had the S corporation sold its natural
resource recapture property the disposition of which would have
resulted in the recognition of ordinary income under section 1254. The
amount recognized as ordinary income under the preceding sentence
reduces the amount realized on the sale or exchange of the stock. This
reduced amount realized is used in determining any gain or loss on the
sale or exchange.
(3) Examples. The following examples illustrate the provisions of
this paragraph (c):
Example 1. Application of general rule upon a sale of S
corporation stock. C and D are equal shareholders in Y, an S
corporation. As of January 1, 1995, Y holds two mining properties:
Blackacre, with an adjusted basis of $5,000 and a fair market value
of $35,000, and Whiteacre, with an adjusted basis of $20,000 and a
fair market value of $15,000. Y also holds securities with a basis
of $5,000 and a fair market value of $10,000. On January 1, 1995, D
sells 50 percent of D's Y stock to E for $15,000. As of the date of
the sale, D's adjusted basis in the Y stock sold is $7,500, and D
has $18,000 of section 1254 costs with respect to Blackacre and
$12,000 of section 1254 costs with respect to Whiteacre. Under this
paragraph (c), the gain recognized by D upon the sale of Y stock is
treated as ordinary income to the extent of D's section 1254 costs
with respect to the stock sold, unless D establishes that a portion
of such excess is not attributable to D's section 1254 costs.
However, because D would recognize $7,500 in ordinary income under
section 1254 with respect to the stock sold if Y sold Blackacre (the
only asset the disposition of which would result in ordinary income
to D under section 1254), the $7,500 of gain recognized by D upon
the sale of D's Y stock is attributable to D's section 1254 costs.
Therefore, upon the sale of stock to E, D recognizes $7,500 of
ordinary income under this paragraph (c).
Example 2. Sale of S corporation stock where gain is not
entirely attributable to section 1254 costs. Assume the same facts
as in Example 1, except that Blackacre has a fair market value of
$25,000, and the securities have a fair market value of $20,000.
Immediately prior to the sale of stock to E, if Y had sold Blackacre
(its only asset the disposition of which would result in the
recognition of ordinary income to D under section 1254), D would
recognize $5,000 in ordinary income with respect to the stock sold
under section 1254. D attaches a statement to D's tax return for
1995 detailing D's share of the fair market values and bases, and
D's section 1254 costs with respect to Blackacre and Whiteacre.
Therefore, upon the sale of stock to E, of the $7,500 gain
recognized by D, $5,000 is ordinary income under this paragraph (c).
Example 3. Contribution of property prior to sale of S
corporation stock as part of a plan to avoid recognition of ordinary
income under section 1254. H owns all of the stock of Z, an S
corporation. As of January 1, 1995, H has $3,000 of section 1254
costs with respect to property P, which is natural resource
recapture property and Z's only asset. Property P has an adjusted
basis of $5,000 and a fair market value of $8,000. H has a basis of
$5,000 in Z stock, which has a fair market value of $8,000. On
January 1, 1995, H contributes securities to Z which have a basis of
$7,000 and a fair market value of $4,000. On April 15, 1995, H sells
all of the Z stock to J for $12,000. On that date, H's adjusted
basis in the Z stock is also $12,000. Based on all the facts and
circumstances, the sale of stock is part of a plan (along with the
contribution by H of the securities to Z) that has a principal
purpose to avoid recognition of ordinary income under section 1254.
Consequently, under paragraph (c)(2)(ii) of this section, H must
recognize $3,000 as ordinary income under section 1254, the amount
of ordinary income that H would recognize as ordinary income under
section 1254 if property P were sold at fair market value. In
addition, H reduces the amount realized on the sale of the stock
($12,000) by $3,000. As a result, H also recognizes a $3,000 capital
loss on the sale of the stock ($9,000 amount realized less $12,000
adjusted basis).
(d) Section 1254 costs of a shareholder. An S corporation
shareholder's section 1254 costs with respect to any natural resource
recapture property held by the corporation include all of the
shareholder's section 1254 costs with respect to the property in the
hands of the S corporation. See Sec. 1.1254-1(b)(1) for the definition
of section 1254 costs.
(e) Section 1254 costs of an acquiring shareholder after certain
acquisitions--(1) Basis determined under section 1012. If stock in an S
corporation that holds natural resource recapture property is acquired
and the acquiring shareholder's basis for the stock is determined
solely by reference to its cost (within the meaning of section 1012),
the amount of section 1254 costs with respect to the property held by
the corporation in the acquiring shareholder's hands is zero on the
acquisition date.
(2) Basis determined by reason of the application of section
1014(a). If stock in an S corporation that holds natural resource
recapture property is acquired from a decedent and the acquiring
shareholder's basis is determined, by reason of the application of
section 1014(a), solely by reference to the fair market value of the
stock on the date of the decedent's death or on the applicable date
provided in section 2032 (relating to alternate valuation date), the
amount of section 1254 costs with respect to the property held by the
corporation in the acquiring shareholder's hands is zero on the
acquisition date.
(3) Basis determined by reason of the application of section
1014(b)(9). If stock in an S corporation that holds natural resource
recapture property is acquired before the death of the decedent, the
amount of section 1254 costs with respect to the property held by the
corporation in the acquiring shareholder's hands includes the amount,
if any, of the section 1254 costs deducted by the acquiring shareholder
before the decedent's death, to the extent that the basis of the stock
(determined under section 1014(a)) is required to be reduced under
section 1014(b)(9) (relating to adjustments to basis when the property
is acquired before the death of the decedent).
(4) Gifts and section 1041 transfers. If stock is acquired in a
transfer that is a gift, in a transfer that is a part sale or exchange
and part gift, or in a transfer that is described in section 1041(a),
the amount of section 1254 costs with respect to the property held by
the corporation in the acquiring shareholder's hands immediately after
the transfer is an amount equal to--
(i) The amount of section 1254 costs with respect to the property
held by the corporation in the hands of the transferor immediately
before the transfer; minus
(ii) The amount of any gain recognized as ordinary income under
section 1254 by the transferor upon the transfer.
(f) Special rules for former S corporations and former C
corporations--(1) Section 1254 costs of an S corporation that was
formerly a C corporation. In the case of a C
[[Page 66242]]
corporation that holds natural resource recapture property and that
elects to be an S corporation, each shareholder's section 1254 costs as
of the beginning of the corporation's first taxable year as an S
corporation include a pro rata share of the section 1254 costs of the
corporation as of the close of the last taxable year that the
corporation was a C corporation.
(2) Examples. The following examples illustrate the application of
the provisions of paragraph (f)(1) of this section:
Example 1. Sale of natural resource recapture property held by
an S corporation that was formerly a C corporation--(i) Y is a C
corporation that elects to be an S corporation effective January 1,
1996. On that date, Y owns Oil Well, which is natural resource
recapture property and a capital asset. Y has section 1254 costs of
$20,000 as of the close of the last taxable year that it was a C
corporation. On January 1, 1996, Oil Well has a value of $200,000
and a basis of $100,000. Thus, under section 1374, Y's net
unrealized built-in gain is $100,000. Also on that date, Y's basis
in Oil Well is allocated to A, Y's sole shareholder, under section
613A(c)(11) and the section 1254 costs are allocated to A under
Sec. 1.1254-4(f)(1). In addition, A has a basis in A's Y stock of
$100,000.
(ii) On November 1, 1996, Y sells Oil Well for $250,000. During
1996, Y has taxable income greater than $100,000, and no other
transactions or items treated as recognized built-in gain or loss.
Under section 1374, Y has net recognized built-in gain of $100,000.
Assuming a tax rate of 35 percent on capital gain, Y has a tax of
$35,000 under section 1374. The tax of $35,000 is treated as a
capital loss under section 1366(f)(2). A has a realized gain on the
sale of $150,000 ($250,000 minus $100,000) of which $20,000 is
recognized as ordinary income under section 1254, and $130,000 is
recognized as capital gain. Consequently, A recognizes ordinary
income of $20,000 and net capital gain of $95,000 ($130,000 minus
$35,000) on the sale.
Example 2. Sale of stock followed by sale of natural resource
recapture property held by an S corporation that was formerly a C
corporation--(i) Assume the same facts as in Example 1(i). On
November 1, 1996, A sells all of A's Y stock to P for $250,000. A
has a realized gain on the sale of $150,000 ($250,000 minus
$100,000) of which $20,000 is recognized as ordinary income under
section 1254, and $130,000 is recognized as capital gain.
(ii) On November 2, 1996, Y sells Oil Well for $250,000. During
1996, Y has taxable income greater than $100,000, and no other
transactions or items treated as recognized built-in gain or loss.
Under section 1374, Y has net recognized built-in gain of $100,000.
Assuming a tax rate of 35 percent on capital gain, Y has a tax of
$35,000 under section 1374. The tax of $35,000 is treated as a
capital loss under section 1366(f)(2). P has a realized gain on the
sale of $150,000 ($250,000 minus $100,000), which is recognized as
capital gain. Consequently, P recognizes net capital gain of
$115,000 ($150,000 minus $35,000) on the sale.
(3) Section 1254 costs of a C corporation that was formerly an S
corporation. In the case of an S corporation that becomes a C
corporation, the C corporation's section 1254 costs with respect to any
natural resource recapture property held by the corporation as of the
beginning of the corporation's first taxable year as a C corporation
include the sum of its shareholders' section 1254 costs with respect to
the property as of the close of the last taxable year that the
corporation was an S corporation. In the case of an S termination year
as defined in section 1362(e)(4), the shareholders' section 1254 costs
are determined as of the close of the S short year as defined in
section 1362(e)(1)(A). See paragraph (g)(5) of this section for rules
on determining the aggregate amount of the shareholders' section 1254
costs.
(g) Determination of a shareholder's section 1254 costs upon
certain stock transactions--(1) Issuance of stock. Upon an issuance of
stock (whether such stock is newly-issued or had been held as treasury
stock) by an S corporation in a reorganization or otherwise--
(i) Each recipient of shares must be allocated a pro rata share
(determined solely with respect to the shares issued in the
transaction) of the aggregate of the S corporation shareholders'
section 1254 costs with respect to natural resource recapture property
held by the S corporation immediately before the issuance (as
determined pursuant to paragraph (g)(5) of this section); and
(ii) Each pre-existing shareholder must reduce his or her section
1254 costs with respect to natural resource recapture property held by
the S corporation immediately before the issuance by an amount equal to
the pre-existing shareholder's section 1254 costs immediately before
the issuance multiplied by the percentage of stock of the corporation
issued in the transaction.
(2) Natural resource recapture property acquired in exchange for
stock. If natural resource recapture property is transferred to an S
corporation in exchange for stock of the S corporation (for example, in
a section 351 transaction, or in a reorganization described in section
368), the S corporation must allocate to its shareholders a pro rata
share of the S corporation's section 1254 costs with respect to the
property immediately after the transaction (as determined under
Sec. 1.1254-3(b)(1)).
(3) Treatment of nonvested stock. Stock issued in connection with
the performance of services that is substantially nonvested (within the
meaning of Sec. 1.83-3(b)) is treated as issued for purposes of this
section at the first time it is treated as outstanding stock of the S
corporation for purposes of section 1361.
(4) Exception. Paragraph (g)(1) of this section does not apply to
stock issued in exchange for stock of the same S corporation (as for
example, in a recapitalization described in section 368(a)(1)(E)).
(5) Aggregate of S corporation shareholders' section 1254 costs
with respect to natural resource recapture property held by the S
corporation--(i) In general. The aggregate of S corporation
shareholders' section 1254 costs is equal to the sum of each
shareholder's section 1254 costs. The S corporation must determine each
shareholder's section 1254 costs under either paragraph (g)(5)(i)(A)
(written data) or paragraph (g)(5)(i)(B) (assumptions) of this section.
The S corporation may determine the section 1254 costs of some
shareholders under paragraph (g)(5)(i)(A) of this section and of others
under paragraph (g)(5)(i)(B) of this section.
(A) Written data. An S corporation may determine a shareholder's
section 1254 costs by using written data provided by a shareholder
showing the shareholder's section 1254 costs with respect to natural
resource recapture property held by the S corporation unless the S
corporation knows or has reason to know that the written data is
inaccurate. If an S corporation does not receive written data upon
which it may rely, the S corporation must use the assumptions provided
in paragraph (g)(5)(i)(B) of this section in determining a
shareholder's section 1254 costs.
(B) Assumptions. An S corporation that does not use written data
pursuant to paragraph (g)(5)(i)(A) of this section to determine a
shareholder's section 1254 costs must use the following assumptions to
determine the shareholder's section 1254 costs.
(1) The shareholder deducted his or her share of the amount of
deductions under sections 263(c), 616, and 617 in the first year in
which the shareholder could claim a deduction for such amounts, unless
in the case of expenditures under sections 263(c) or 616 the S
corporation elected to capitalize such amounts;
(2) The shareholder was not subject to the following limitations
with respect to the shareholder's depletion allowance under section
611, except to the extent a limitation applied at the corporate
[[Page 66243]]
level: the taxable income limitation of section 613(a); the depletable
quantity limitations of section 613A(c); or the limitations of sections
613A(d)(2), (3), and (4) (exclusion of retailers and refiners).
(6) Examples. The following examples illustrate the provisions of
this paragraph (g):
Example 1. Transfer of natural resource recapture property to an
S corporation in a section 351 transaction. As of January 1, 1996, A
owns all the stock (20 shares) in X, an S corporation. X holds
property that is not natural resource recapture property that has a
fair market value of $2,000 and an adjusted basis of $2,000. On
January 1, 1996, B transfers natural resource recapture property,
Property P, to X in exchange for 80 shares of X stock in a
transaction that qualifies under section 351. Property P has a fair
market value of $8,000 and an adjusted basis of $5,000. Pursuant to
section 351, B does not recognize gain on the transaction.
Immediately prior to the transaction, B's section 1254 costs with
respect to Property P equaled $6,000. Under Sec. 1.1254-2(c)(1), B
does not recognize any gain under section 1254 on the section 351
transaction and, under Sec. 1.1254-3(b)(1), X's section 1254 costs
with respect to Property P immediately after the contribution equal
$6,000. Under paragraph (g)(2) of this section, each shareholder is
allocated a pro rata share of X's section 1254 costs. The pro rata
share of X's section 1254 costs that is allocated to A equals $1,200
(20 percent interest in X multiplied by X's $6,000 of section 1254
costs). The pro rata share of X's section 1254 costs that is
allocated to B equals $4,800 (80 percent interest in X multiplied by
X's $6,000 of section 1254 costs).
Example 2. Contribution of money in exchange for stock of an S
corporation holding natural resource recapture property. As of
January 1, 1996, A and B each own 50 percent of the stock (50 shares
each) in X, an S corporation. X holds natural resource recapture
property, Property P, which has a fair market value of $20,000 and
an adjusted basis of $14,000. A's and B's section 1254 costs with
respect to Property P are $4,000 and $1,500, respectively. On
January 1, 1996, C contributes $20,000 to X in exchange for 100
shares of X's stock. Under paragraph (g)(1)(i) of this section, X
must allocate to C a pro rata share of its shareholders' section
1254 costs. Using the assumptions set forth in paragraph
(g)(5)(i)(B) of this section, X determines that A's section 1254
costs with respect to natural resource recapture property held by X
equal $4,500. Using written data provided by B, X determines that
B's section 1254 costs with respect to Property P equal $1,500.
Thus, the aggregate of X's shareholders' section 1254 costs equals
$6,000. C's pro rata share of the $6,000 of section 1254 costs
equals $3,000 (C's 50 percent interest in X multiplied by $6,000).
Under paragraph (g)(1)(ii) of this section, A's section 1254 costs
are reduced by $2,000 (A's actual section 1254 costs ($4,000)
multiplied by 50 percent). B's section 1254 costs are reduced by
$750 (B's actual section 1254 costs ($1,500) multiplied by 50
percent).
Example 3. Merger involving an S corporation that holds natural
resource recapture property. X, an S corporation with one
shareholder, A, holds as its sole asset natural resource recapture
property that has a fair market value of $120,000 and an adjusted
basis of $40,000. A has section 1254 costs with respect to the
property of $60,000. For valid business reasons, X merges into Y, an
S corporation with one shareholder, B, in a reorganization described
in section 368(a)(1)(A). Y holds property that is not natural
resource recapture property that has a fair market value of $120,000
and basis of $120,000. Under paragraph (c) of this section, A does
not recognize ordinary income under section 1254 upon the exchange
of stock in the merger because A did not otherwise recognize gain on
the merger. Under paragraph (g)(2) of this section, Y must allocate
to A and B a pro rata share of its $60,000 of section 1254 costs.
Thus, A and B are each allocated $30,000 of section 1254 costs (50
percent interest in X, each, multiplied by $60,000).
(h) Effective date. This section applies to dispositions of natural
resource recapture property by an S corporation (and a former S
corporation) and dispositions of S corporation stock occurring after
publication of these regulations as final regulations in the Federal
Register.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 95-30832 Filed 12-20-95; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 95-30830 Requirements for Tax Exempt Section 501(c)(5) Organizations
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66228-66229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30830]
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DEPARTMENT OF THE TREASURY
26 CFR Part 1
[EE-53-95]
RIN 1545-AT95
Requirements for Tax Exempt Section 501(c)(5) Organizations
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: This document contains proposed regulations clarifying certain
requirements of section 501(c)(5). The requirements are being clarified
to provide needed guidance to organizations as to the requirements an
organization must meet in order to be exempt from tax as an
organization described in section 501(c)(5).
DATES: Written comments and requests for a public hearing must be
received by March 20, 1996.
ADDRESSES: Send submissions to: CC:DOM:CORP:T:R (EE-53-95), room 5228,
Internal Revenue Service, POB 7604, Ben Franklin Station, Washington,
DC 20044. In the alternative, submissions may be hand delivered between
the hours of 8 a.m. and 5 p.m. to: CC:DOM:CORP:T:R (EE-53-95),
Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW.,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Robin Ehrenberg, (202) 622-6080 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background
This notice of proposed rulemaking clarifies the scope of the
exemption provided in section 501(c)(5) of the Internal Revenue Code
for labor, agricultural and horticultural organizations.
An income tax exemption for labor organizations was first provided
in the Corporation Excise Tax Act of 1909, Public Law No. 61-5, 36
Stat. 11, 112-118, and has been in effect continuously since that time.
A labor organization is an entity that is organized ``to protect and
promote the interests of labor.'' Portland Cooperative Labor Temple
Association v. Commissioner, 39 B.T.A. 450 (1939), acq., 1939-1 C.B.
28. The principal purpose of the organization must be to better the
working conditions of people engaged in a common pursuit. See, Treas.
Reg. Sec. 1.501(c)(5)-1. Organizations meeting this requirement have
traditionally engaged in collective action directed toward the workers'
common objective of improving working conditions. They include labor
unions that negotiate with employers on behalf of workers for improved
wages, fringe benefits, hours and similar working conditions, and
certain union-controlled organizations, like strike funds, that provide
benefits to workers that enhance the union's ability to bargain
effectively. See Rev. Rul. 67-7 (1967-1 C.B. 137). They do not include
strike funds that provide income to union members but are not
controlled by unions. See Rev. Rul. 76-420 (1976-2 C.B. 153). Such an
organization will not pay the strike benefits ``with the objective of
bettering conditions of employment, but by reason of its contractual
agreements with the workers.''
Labor organizations may also meet the requirements of section
501(c)(5) by providing benefits that directly improve working
conditions or compensate for unpredictable hazards that interrupt work.
Examples of such benefits include operating a dispatch hall to match
union members with work assignments and providing industry stewards who
represent employees with grievances against management. See Rev. Rul.
75-473 (1975-2 C.B. 213); Rev. Rul. 77-5 (1977-1 C.B. 148). On the
other hand, managing saving and investment plans for workers, including
retirement plans, does not bear directly on working conditions. See
Rev. Rul. 77-46 (1977-1 C.B. 147). Accordingly, section 501(c)(5) has
not been applied to organizations that manage retirement savings plans
as their principal activity.
Nevertheless, in Morganbesser v. United States, 984 F.2d 560 (2d
Cir. 1993), the court held that a trust managing a pension benefit plan
pursuant to a collective bargaining agreement qualified as a labor
organization described in section 501(c)(5). The IRS and the Treasury
Department believe that this decision is contrary to existing law, and
the IRS is issuing an action on decision reflecting its view that the
Morganbesser court erred in its holding. These proposed regulations are
a clarification of the existing legal standard.
Like labor organizations, agricultural and horticultural
organizations must also better the conditions of those engaged in a
common pursuit in order to be described in section 501(c)(5). See
Sec. 1.501(c)(5)-1. There is no authority indicating that the law is to
be interpreted differently for agricultural and horticultural
organizations than for labor organizations. Accordingly, the proposed
regulations clarify the law as it applies to all section 501(c)(5)
organizations.
Certain organizations have taken the position in refund actions
that they are labor organizations described in section 501(c)(5) even
though their principal activity was to manage retirement savings plans
for workers. In addition, some such foreign organizations have claimed
exemption from withholding on dividend, interest and similar income
that they have earned. The IRS will continue to oppose these claims for
refund and exemption from withholding.
A health plan is not a retirement savings plan. Thus, the IRS will
continue to follow Rev. Rul. 62-17 (1962-1 C.B. 87) (regarding a labor
organization providing health benefits) even in circumstances where a
majority of the organization's members are retired. Furthermore, the
IRS will continue to recognize that negotiating the terms of a
retirement plan and other postretirement benefits and designating one
or more representatives to the board of a multiemployer pension trust
are proper activities for a labor organization. The proposed
regulations are not intended to apply to or affect
[[Page 66229]]
any other provision of federal law, including provisions of the
Employee Retirement Income Security Act of 1974 (ERISA) administered by
the Secretary of Labor.
Explanation of Provisions
The proposed regulations add a new paragraph to Sec. 1.501(c)(5)-1
providing that an organization is not an organization within the
meaning of section 501(c)(5) if the organization's principal activity
is to manage savings or investment plans or programs, including
retirement savings plans.
Proposed Effective Date
These regulations are proposed to be effective December 21, 1995.
Special Analyses
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in EO 12866. Therefore,
a regulatory assessment is not required. It also has been determined
that section 553(b) of the Administrative Procedure Act (5 U.S.C.
chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do
not apply to these regulations, and, therefore, a Regulatory
Flexibility Analysis is not required. Pursuant to section 7805(f) of
the Internal Revenue Code, this notice of proposed rulemaking will be
submitted to the Chief Counsel for Advocacy of the Small Business
Administration for comment on its impact on small business.
Comments and Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written comments (a signed original
and eight (8) copies) that are submitted timely to the IRS. All
comments will be available for public inspection and copying. A public
hearing may be scheduled if requested in writing by a person that
timely submits written comments. If a public hearing is scheduled,
notice of the date, time, and place for the hearing will be published
in the Federal Register.
Drafting Information
The principal author of these regulations is Robin Ehrenberg,
Office of Associate Chief Counsel (Employee Benefits and Exempt
Organizations). However, other personnel from the IRS and Treasury
Department participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 1.501(c)(5)-1 is amended by:
1. Redesignating paragraph (b) as paragraph (c).
2. Adding a new paragraph (b) to read as follows:
Sec. 1.501(c)(5)-1 Labor, agricultural, and horticultural
organizations.
* * * * *
(b)(1) An organization is not an organization described in section
501(c)(5) if the principal activity of the organization is to receive,
hold, invest, disburse, or otherwise manage funds associated with
savings or investment plans or programs, including pension or other
retirement savings plans or programs.
(2) Example. Trust A is organized in accordance with a
collective bargaining agreement between a labor union and multiple
employers. Representatives of both the employers and the union serve
as trustees. Trust A receives funds from the employers who are
subject to the agreement, invests the funds and uses the funds and
accumulated earnings to pay pension benefits to union members as
specified in the agreement. It also provides information to union
members about their retirement benefits and assists them with
administrative tasks associated with the benefits. Most of Trust A's
activities are devoted to these functions. From time to time, Trust
A also participates in the renegotiation of the collective
bargaining agreement. Because Trust A's principal activity is to
manage funds associated with a pension plan, it is not an
organization described in section 501(c)(5).
* * * * *
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 95-30830 Filed 12-20-95; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 95-30741 Tramroads and Logging RoadsSubpart 2812Over O. and C. and Coos Bay Revested Lands
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Page 66246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30741]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 2810
[WO-420-6310-00]
Tramroads and Logging Roads--Subpart 2812--Over O. and C. and
Coos Bay Revested Lands
AGENCY: Bureau of Land Management, Interior.
ACTION: Notice of extension of comment period.
-----------------------------------------------------------------------
SUMMARY: On November 16, 1995, the Bureau of Land Management (BLM)
published an advance notice of proposed rulemaking in the Federal
Register (60 FR 57561). The notice announced BLM's plans to revise
regulations governing logging roads over revested Oregon and California
Railroad grant lands and reconveyed Coos Bay Wagon Road grant lands
(collectively known as the O&C lands). The changes will bring the
existing cost-sharing road program under the regulatory framework of
Section 502 of the Federal Land Policy and Management Act of 1976
(FLPMA) and incorporate environmental protection and other requirements
for rights-of-way over public lands found in Title V of FLPMA. The
notice allowed 30 days for public comment. In response to a request
from a representative of interested parties, the comment period is
being extended until January 15, 1996.
DATES: Comments on this advance notice of proposed rulemaking must be
received by January 15, 1996. Comments postmarked after this date may
not be considered in the preparation of the proposed rule.
ADDRESSES: Comments may be mailed to: Regulatory Management Team (420),
Bureau of Land Management, 1849 C Street NW., Room 401LS, Washington,
DC 20240.
Comments may be sent via Internet to: WO[email protected]. Please
include ``ATTN: O&C'' and your name and return address in your Internet
message.
Comments may be hand-delivered to the Bureau of Land Management
Administrative Record, Room 401, 1620 L Street, NW., Washington, DC.
Comments will be available for public review at the L Street
address during regular business hours (7:45 a.m. to 4:15 p.m.), Monday
through Friday.
FOR FURTHER INFORMATION CONTACT: John Styduhar, Oregon State Office,
Bureau of Land Management, (503) 952-6454.
Dated: December 13, 1995.
Patrick W. Boyd,
Regulatory Management Team.
[FR Doc. 95-30741 Filed 12-20-95; 8:45 am]
BILLING CODE 4310-84-M
Complete official Federal Register PDF
FR Doc. 95-30735 Statements to Recipients of Dividends and Patronage Dividends
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66227-66228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30735]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[INTL-52-86]
RIN 1545-AL99
Statements to Recipients of Dividends and Patronage Dividends
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Partial withdrawal of a notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This document withdraws a portion of the notice of proposed
rulemaking under sections 6042 and 6044 of the Internal Revenue Code
that was published in the Federal Register on February 29, 1988, as
proposed to be amended on September 27, 1990. The proposed regulations
prescribed rules for official statements to recipients of dividends and
patronage dividends paid after December 31, 1983.
DATES: This withdrawal is effective on December 21, 1995.
FOR FURTHER INFORMATION CONTACT: Renay France, (202)622-4910 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background
On February 29, 1988, the IRS issued proposed regulations on backup
withholding (INTL-52-86, 53 FR 5991). The proposed regulations related,
in part, to official statements to recipients of dividends and
patronage dividends under sections 6042 and 6044, respectively
(proposed Secs. 1.6042-5 and 1.6044-6). On September 27, 1990, the IRS
issued additional proposed regulations on backup withholding (IA-224-
82, 55 FR 39427). Those proposed
[[Page 66228]]
regulations contained amendments to the regulations previously proposed
under sections 6042 and 6044.
In the Rules and Regulations section of this issue of the Federal
Register, the IRS is issuing final regulations relating to backup
withholding that were proposed in INTL-52-86 and IA- 224-82. Those
final regulations do not include proposed Secs. 1.6042-5 and 1.6044-6.
Further, when the IRS issues additional final regulations that were
proposed under INTL-52-86, those additional final regulations will not
include proposed Secs. 1.6042- 5 and 1.6044-6. Accordingly, this
document withdraws those proposed regulations sections. See
Secs. 1.6042-4 and 1.6044-5 of the final regulations for substantive
rules proposed under the withdrawn sections.
List of Subjects 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Withdrawal of Portion of Notice of Proposed Rulemaking
Accordingly, under the authority of 26 U.S.C. 7805, proposed
Secs. 1.6042-5 and 1.6044-6 that were published in the Federal Register
on February 29, 1988 (53 FR 5991) and amended in the Federal Register
on September 27, 1990 (55 FR 39427) are withdrawn.
Margaret Milner Richardson,
Commissioner of Internal Revenue
[FR Doc. 95-30735 Filed 12-20-95; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 95-30734 Effective Date of Temporary Backup Withholding Regulations
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66243-66244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30734]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
26 CFR Part 31
[IA-33-95]
RIN 1545-AT77
Effective Date of Temporary Backup Withholding Regulations
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking by cross-reference to temporary
regulations.
-----------------------------------------------------------------------
SUMMARY: In the Rules and Regulations section of this issue of the
Federal Register, the IRS is issuing temporary regulations relating to
the effective date of the Temporary Employment Tax Regulations under
the Interest and Dividend Tax Compliance Act of 1983, relating to
backup withholding, statement mailing requirements, and due diligence.
The text of those temporary regulations also serves as the text of
these proposed regulations.
DATES: Written comments and requests for a public hearing must be
received by March 20, 1996.
ADDRESSES: Send submissions to: CC:DOM:CORP:R (IA-33-95), room 5228,
Internal Revenue Service, POB 7604, Ben Franklin Station, Washington,
DC 20044. In the alternative, submissions may be hand delivered between
the hours of 8 a.m. and 5 p.m. to: CC:DOM:CORP:R (IA-33-95), Courier's
Desk, Internal Revenue Service, 1111 Constitution Avenue, NW,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Renay
France, (202) 622-4910; concerning submissions, Michael Slaughter,
(202) 622-7190 (not toll-free numbers).
SUPPLEMENTARY INFORMATION:
Background
Temporary regulations in the Rules and Regulations section of this
issue of the Federal Register amend the Temporary Employment Tax
Regulations under the Interest and Dividend Tax Compliance Act of 1983
(26 CFR part 35a). The temporary regulations contain rules relating to
the effective date of Secs. 35a.9999-1, 35a.9999-2, 35a.9999-3,
35a.9999-3A, 35a.9999-4T, and 35a.9999-5.
The text of those temporary regulations also serves as the text of
these proposed regulations. The preamble to the temporary regulations
explains the temporary regulations.
Special Analyses
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in EO 12866. Therefore,
a regulatory assessment is not required. It has also been determined
that section 553(b) of the Administrative Procedure Act (5 U.S.C.
chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do
not apply to these regulations, and therefore, a Regulatory Flexibility
Analysis is not required. Pursuant to section 7805(f) of the Internal
Revenue Code, this notice of proposed rulemaking will be submitted to
the Chief Counsel for Advocacy of the Small Business Administration for
comment on its impact on small business.
Comments and Requests for a Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written comments (a signed original
and eight (8) copies) that are submitted timely to the IRS. All
comments will be available for public inspection and copying. A public
hearing may be scheduled if requested in writing by any person that
timely submits written comments. If a public hearing is scheduled,
notice of the date, time, and
[[Page 66244]]
place for the hearing will be published in the Federal Register.
Drafting Information
The principal author of the regulations is Renay France, Office of
Assistant Chief Counsel (Income Tax and Accounting), IRS. However,
other personnel from IRS and Treasury Department participated in their
development.
List of Subjects in 26 CFR Part 31
Employment taxes, Income taxes, Penalties, Pensions, Railroad
retirement, Reporting and recordkeeping requirements, Social security,
Unemployment compensation.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 31 is proposed to be amended as follows:
PART 31--EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE
Paragraph 1. The authority citation for part 31 continues to read
in part as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 31.9999-0 is added to read as follows:
Sec. 31.9999-0 Effective date.
[The text of this proposed section is the same as the text of
Sec. 35a.9999-0T published elsewhere is this issue of the Federal
Register].
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 95-30734 Filed 12-20-95; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 95-30681 Effect of the Family and Medical Leave Act on the Operation of Cafeteria Plans
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66229-66233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30681]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
26 CFR Part 1
[EE-20-95]
RIN 1545-AT47
Effect of the Family and Medical Leave Act on the Operation of
Cafeteria Plans
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This document contains proposed regulations relating to
cafeteria plans that reflect changes made by the Family and Medical
Leave Act of 1993. The proposed regulations provide the public with
guidance needed to comply with the Act and affect employees who
participate in cafeteria plans.
DATES: Written comments and requests for a public hearing must be
received by March 20, 1996.
ADDRESSES: Send submissions to: CC:DOM:CORP:R (EE-20-95), room 5228,
Internal Revenue Service, POB 7604, Ben Franklin Station, Washington,
DC 20044. In the alternative, submissions may be hand delivered between
the hours of 8 a.m. and 5 p.m. to: CC:DOM:CORP:R (EE-20-95), Courier's
Desk, Internal Revenue Service, 1111 Constitution Avenue NW.,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Catherine
Fuller, (202) 622-6080; concerning submissions and the hearing, Mike
Slaughter, (202) 622-8452 (not toll-free numbers).
SUPPLEMENTARY INFORMATION:
Background
This document contains proposed additions to the Income Tax
Regulations (26 CFR Part 1) under section 125 of the Internal Revenue
Code of 1986 (Code). These additions are proposed to conform the
regulations to the Family and Medical Leave Act of 1993 (FMLA), Public
Law 103-3. FMLA imposes certain requirements on employers regarding
coverage, including family coverage, under group health plans for
employees taking FMLA leave, and regarding the restoration of benefits
to employees who return from FMLA leave. This notice of proposed
rulemaking addresses a number of the principle questions that have been
raised about how these FMLA requirements affect the operation of
cafeteria plans (including flexible spending arrangements) maintained
under section 125 of the Code. The rules in this notice of proposed
rulemaking supplement the proposed Income Tax Regulations under section
125 of the Code. Except as otherwise provided in this notice of
proposed rulemaking, all of the existing rules governing cafeteria
plans, including the nondiscrimination rules, continue to apply.
The requirements pertaining to FMLA leave, including the employer's
obligation to maintain coverage under a group health plan during FMLA
leave and to restore benefits upon return from FMLA leave, are
established by FMLA,
[[Page 66230]]
not the Code. The U.S. Department of Labor, in 29 CFR part 825, has
published rules interpreting the requirements of FMLA, and the
Department of Labor has jurisdiction relating to those rights or
obligations. This notice of proposed rulemaking does not interpret
FMLA; it provides guidance on the cafeteria plan rules that apply to an
employee in circumstances to which FMLA and the Labor Regulations
thereunder also apply. The Department of Labor has advised the
Department of the Treasury, including the Internal Revenue Service
(IRS), that the provisions of this notice of proposed rulemaking do not
conflict with, and are not inconsistent with, the provisions of FMLA or
the Labor Regulations thereunder.
Special Analyses
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in EO 12866. Therefore,
a regulatory assessment is not required. It also has been determined
that section 553(b) of the Administrative Procedure Act (5 U.S.C.
chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do
not apply to these regulations, and, therefore, a Regulatory
Flexibility Analysis is not required. Pursuant to section 7805(f) of
the Code, this notice of proposed rulemaking will be submitted to the
Chief Counsel for Advocacy of the Small Business Administration for
comment on its impact on small business.
Comments and Requests for a Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written comments (a signed original
and eight (8) copies) that are submitted timely to the IRS. All
comments will be available for public inspection and copying. A public
hearing may be scheduled if requested in writing by a person that
timely submits written comments. If a public hearing is scheduled,
notice of the date, time, and place for the hearing will be published
in the Federal Register.
Drafting Information
The principal author of these regulations is Catherine Fuller,
Office of Associate Chief Counsel (Employee Benefits and Exempt
Organizations). However, other personnel from the IRS and Department of
the Treasury participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority for part 1 continues to read in part as
follows:
Authority: 26 U.S.C. 7805 * * *
Par.Section 1.125-3 is added to read as follows:
Sec. 1.125-3 Effect of the Family and Medical Leave Act (FMLA) on the
operation of cafeteria plans.
Q-1: May an employee taking FMLA leave revoke an existing election
of group health plan coverage under a cafeteria plan?
A-1: Yes. An employee taking FMLA leave may revoke an existing
election of group health plan coverage (including a health flexible
spending arrangement (FSA)) under a cafeteria plan for the remaining
portion of the coverage period. See 29 CFR 825.209(e). FMLA also
requires that an employee be permitted to choose to be reinstated in
the group health plan coverage (including a health FSA) provided under
a cafeteria plan upon returning from FMLA leave if the employee's group
health plan coverage terminated while on FMLA leave (either by
revocation or nonpayment of premiums). Such an employee is entitled,
under FMLA, to be reinstated on the same terms as prior to taking FMLA
leave (including family or dependent coverage). See 29 CFR 825.209(e)
and 825.215(d). However, the employee has no greater right to benefits
for the remainder of the plan year than an employee who has been
continuously working during the plan year. In addition to the rights
granted under FMLA, such an employee has the right to revoke or change
elections (e.g., because of changes in family status or significant
cost or coverage changes imposed by a third-party provider) under the
same terms and conditions as are available to employees participating
in the cafeteria plan who are not on FMLA leave.
Q-2: Who is responsible for making premium payments under a
cafeteria plan when an employee on FMLA leave continues group health
plan coverage?
A-2: An employee is entitled to continue group health plan coverage
(including a health FSA) during FMLA leave whether or not provided
under a health FSA or other component of a cafeteria plan. See 29 CFR
825.209(b). An employee making premium payments under a cafeteria plan
who chooses to continue group health plan coverage (including a health
FSA) while on FMLA leave is responsible for the share of group health
premiums that the employee was paying while working, such as amounts
paid pursuant to a salary reduction agreement. The employer must
continue to contribute the share of the cost of the employee's coverage
that the employer was paying before the employee commenced FMLA leave.
See 29 CFR 825.100(b) and 825.210(a).
Q-3: What payment options are required or permitted to be offered
under a cafeteria plan to an employee who continues group health plan
coverage (including a health FSA) while on unpaid FMLA leave, and what
is the tax treatment of these payments?
A-3: (a) In general A cafeteria plan may, on a nondiscriminatory
basis, offer one or more of the following payment options (subject to
the limitations described in paragraph (b) of this Q&A-3) to an
employee who continues group health plan coverage (including a health
FSA) while on unpaid FMLA leave. These options are referred to in this
section as pre-pay, pay-as-you-go and catch-up.
(1) Pre-pay. (i) Under the pre-pay option, a cafeteria plan may
permit an employee to pay, prior to commencement of the FMLA leave
period, the amounts due for the FMLA leave period. However, the Labor
Regulations under FMLA provide that under no circumstances may the
employer mandate that an employee pre-pay the amounts due for the leave
period. See 29 CFR 825.210(c)(3) and (4).
(ii) Contributions under the pre-pay option may be made on a pre-
tax salary reduction basis from any taxable compensation (including the
cashing out of unused sick days or vacation days). These contributions
will not be included in the employee's gross income, provided that all
cafeteria plan requirements are satisfied. For example, see Q&A-5 of
this section regarding restrictions on pre-tax salary reduction
contributions when an employee's FMLA leave spans two cafeteria plan
years.
(iii) Contributions under the pre-pay option may also be made on an
after-tax basis. See Prop. Treas. Reg. Sec. 1.125-1, Q&A-5.\1\
\1\ Published as a proposed rule at 49 FR 19321 (May 7, 1984).
[[Page 66231]]
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(2) Pay-as-you-go. (i) Under the pay-as-you-go option, employees
may pay their share of the premium payments on the same schedule as
payments would be made if the employee were not on leave or under any
other payment schedule permitted by the Labor Regulations at 29 CFR
825.210(c) (i.e., on the same schedule as payments are made under the
Consolidated Omnibus Reconciliation Act of 1985, Public Law 99-272;
under the employer's existing rules for payment by employees on leave
without pay; or under any other system voluntarily agreed to between
the employer and the employee that is not inconsistent with this
section or with 29 CFR 825.210(c)).
(ii) Contributions under the pay-as-you-go option are generally
made by the employee on an after-tax basis. However, contributions may
be made on a pre-tax basis to the extent that the contributions are
made from taxable compensation (e.g., cashing out unused sick or
vacation days) that is due the employee during the leave period, and
provided that all cafeteria plan requirements are satisfied.
(iii) An employer is not required to continue the health coverage
of an employee who fails to make required premium payments while on
FMLA leave. See 29 CFR 825.212. However, if the employer chooses to
continue the health coverage of an employee who fails to make required
premium payments while on FMLA leave, the employer is entitled to
recoup those payments as set forth in paragraph (a)(3)(i) of this Q&A-
3. See also Q&A-6 of this section regarding coverage under a health FSA
when an employee fails to make the required premium payments while on
FMLA leave.
(3) Catch-up. (i) An employer that continues providing group health
coverage to an employee who does not pay premiums on FMLA leave is, to
the extent provided under the Labor Regulations, permitted to utilize
the catch-up option to recoup the employee's share of premium payments.
See, e.g., 29 CFR 825.212(b).
(ii) Where an employee is electing to use the catch-up option, the
employer and the employee must agree in advance of the coverage period
that: the employee elects to continue health coverage while on unpaid
FMLA leave; the employer will assume responsibility for advancing
payment of the premiums on the employee's behalf during the FMLA leave;
and these advance amounts must be paid by the employee when the
employee returns from FMLA leave.
(iii) Contributions under the catch-up option may be made on a pre-
tax salary reduction basis when the employee returns from FMLA leave
from any available taxable compensation (including the cashing out of
unused sick days and vacation days). These contributions will not be
included in the employee's gross income, provided that all cafeteria
plan requirements are satisfied.
(iv) Contributions under the catch-up option may also be made on an
after-tax basis. See Prop. Treas. Reg. Sec. 1.125-1, Q&A-5.\2\
\2\ Published as a proposed rule at 49 FR 19321 (May 7, 1984).
---------------------------------------------------------------------------
(b) Exceptions. Cafeteria plans may offer (pursuant to 29 CFR
825.210(c)) one or more of the payment options described in paragraph
(a) of this Q&A-3, with the following exceptions:
(1) The pre-pay option cannot be the sole option offered to
employees on FMLA leave. However, the cafeteria plan may include pre-
payment as an option for employees on FMLA leave, even if such option
is not offered to employees on non-FMLA leave- without-pay.
(2) The catch-up option can be the sole option offered to employees
on FMLA leave if and only if the catch-up option is the sole option
offered to employees on non-FMLA leave-without-pay.
(3) A cafeteria plan cannot offer employees on FMLA leave a choice
of either the pre-pay option or the catch-up option without also
offering the pay-as-you-go option, if the pay-as-you- go option is
offered to employees on non-FMLA leave-without-pay.
(c) Voluntary waiver of employee payments. In addition to the
foregoing payment options, an employer may voluntarily waive, on a
nondiscriminatory basis, the requirement that employees who elect to
continue health coverage while on FMLA leave pay the amounts the
employees would otherwise be required to pay for the leave period.
Q-4: Do the special FMLA requirements concerning an employee who
continues group health plan coverage under a cafeteria plan apply if
the employee is on paid FMLA leave?
A-4: No. The Labor Regulations provide that, if an employee's FMLA
leave is substituted paid leave as described at 29 CFR 825.207 and the
employee continues group health plan coverage while on FMLA leave, the
employee's share of the premiums must be paid by the method normally
used during any paid leave (i.e., salary reduction). See 29 CFR
825.210(b).
Q-5: What restrictions apply to contributions when an employee's
FMLA leave spans two cafeteria plan years?
A-5: (a) Contributions to a cafeteria plan during FMLA leave will
not be included in an employee's gross income, provided that the plan
complies with all cafeteria plan requirements. Among other
requirements, a plan may not operate in a manner that enables employees
on FMLA leave to defer compensation from one cafeteria plan year to a
subsequent cafeteria plan year. See Prop. Treas. Reg. Sec. 1.125-2,
Q&A-5.\3\
\3\ Published as a proposed rule at 54 FR 9460 (March 7, 1989).
---------------------------------------------------------------------------
(b) The following example illustrates this Q&A-5:
Example. Employee A elects health coverage under a calendar year
cafeteria plan maintained by Employer X. A's premium for health
coverage is $100 per month throughout the 12-month period of
coverage. A takes FMLA leave for 12 weeks beginning on October 31
after making 10 months worth of premiums totalling $1000 (10 months
x $100 = $1000). A maintains health coverage while on FMLA leave. A
utilizes the pre-pay option by cashing-out A's unused sick days in
order to make the required premium payments due while A is on FMLA
leave. Because A cannot defer compensation from one plan year to a
subsequent plan year, A may pre-pay the premiums due in November and
December (i.e., $100 per month) on a pre-tax basis, but A cannot
pre-pay the premium payment due in January on a pre-tax basis. If A
participates in the cafeteria plan in the subsequent plan year, A
must use another option (e.g., pay-as-you-go or catch-up) to make
the premium payment due in January.
Q-6: Are there special rules concerning employees taking FMLA leave
who participate in health FSAs offered under a cafeteria plan?
A-6: (a) In general. (1) A health plan that is a flexible spending
arrangement (FSA) offered under a cafeteria plan must conform to the
generally applicable rules in this section concerning employees who
take FMLA leave. Thus, FMLA requires that an employee taking FMLA leave
be permitted to--
(i) Continue coverage under a health FSA while on FMLA leave; or
(ii) Revoke an existing health FSA election under the cafeteria
plan for the remainder of the coverage period. See 29 CFR 825.209(e).
(2) FMLA also requires the plan to permit the employee to be
reinstated in the health FSA upon return from FMLA leave on the same
terms as prior to taking FMLA leave. See 29 CFR 825.215(d) and
paragraph (b)(2) of this Q&A-6. However, reinstatement is at the
employee's election and under no circumstances may an employer require
[[Page 66232]]
an employee whose coverage has terminated while on FMLA leave to
reinstate coverage under a health FSA upon return from FMLA leave. See
29 CFR 825.214(a).
(b) Uniform Coverage Rule (1) Q&A-7(b)(2) of Sec. 1.125-2\4\ (the
uniform coverage rule) applies during the FMLA leave period as long as
the employee continues health coverage. Therefore, regardless of the
payment option selected under Q&A-3 of this section, for so long as the
employee continues coverage (or for so long as the employer continues
the coverage of an employee who fails to make the required
contributions as described in Q&A-3(a)(2)(iii) of this section), the
full amount of the elected coverage, less any prior reimbursements,
must be available to the employee at all times, including the FMLA
leave period.
\4\ Published as a proposed rule at 54 FR 9460 (March 7, 1989).
---------------------------------------------------------------------------
(2)(i) If an employee's coverage under the health FSA terminates
while the employee is on FMLA leave, the employee is not entitled to
receive reimbursements for claims incurred during the period when the
coverage is terminated. If that employee subsequently elects to be
reinstated in the health FSA upon return from FMLA leave for the
remainder of the plan year, the employee may not retroactively elect
health FSA coverage for claims incurred during the period when the
coverage was terminated. Further, the employee is not entitled to
greater FSA benefits relative to premiums paid than an employee who has
been continuously working during the plan year. See 29 CFR 825.216.
Therefore, if an employee elects to be reinstated in a health FSA upon
return from FMLA leave, the employee's coverage for the remainder of
the plan year is equal to the employee's election for the 12-month
period of coverage (or such shorter period as provided under
Sec. 1.125-2 \5\), prorated for the period during the FMLA leave for
which no premiums were paid, and reduced by prior reimbursements.
\5\ Published as a proposed rule at 54 FR 9460 (March 7, 1989).
---------------------------------------------------------------------------
(ii) An employee on FMLA leave has the right to revoke or change
elections (e.g., because of changes in family status) under the same
terms and conditions that apply to employees participating in the
cafeteria plan who are not on FMLA leave. Thus, notwithstanding the
rules described in paragraph (b)(2)(i) of this Q&A-6, an employee who
returns from FMLA leave may make a new health FSA election for the
remainder of the plan year if return from leave without pay constitutes
a change of family status under the employer's cafeteria plan.
(3) The following examples illustrate the rules in this Q&A-6:
Example 1: (a) Employee A elects $1200 worth of coverage under a
calendar year health FSA provided under a cafeteria plan, with an
annual premium of $1200. A is permitted to pay the $1200 through
pre-tax salary reduction amounts of $100 per month throughout the
12-month period of coverage. A incurs no medical expenses prior to
April 1. On April 1, A takes FMLA leave after making three months
worth of contributions totalling $300 (3 months x $100 = $300).
The plan does not permit a revocation of election on account of a
change in family status. However, pursuant to A's rights under FMLA,
A elects to terminate coverage upon going on FMLA leave.
Consequently, A makes no premium payments for the months of April,
May, and June, and A is not entitled to submit claims or receive
reimbursements for expenses incurred during this period. A returns
from FMLA leave and elects to be reinstated in the health FSA on
July 1.
(b) Under FMLA, A has no greater right to benefits upon
reinstatement than if A had been continuously working during the
plan year. Therefore, A is reinstated to A's annual election (i.e.,
$1200) prorated for the period during the FMLA leave for which no
premiums were paid (i.e., reduced for 3 months or \1/4\ of the plan
year) less prior reimbursements (i.e., $0). Consequently, A's
coverage for the remainder of the plan year equals $900. A must also
begin making premium payments of $100 per month for the remainder of
the plan year.
Example 2: Assume the same facts as Example 1 except that A
incurs medical expenses totaling $200 in February and obtains
reimbursement of these expenses. The results are the same as in
Example 1, except that A's coverage for the remainder of the plan
year equals $700.
Example 3: Assume the same facts as Example 1 except that prior
to taking FMLA leave, A elects to continue health FSA coverage
during the FMLA leave. The plan permits A (and A elects) to use the
catch-up payment option described in Q&A-3 of this section, and as
further permitted under the plan, A chooses to repay the $300 in
missed payments on a ratable basis over the remaining six-month
period of coverage (i.e., $50 per month). Thus, A's monthly premium
payments for the remainder of the plan year will be $150 ($100 +
$50).
Q-7: Are employees entitled to non-health benefits while taking
FMLA leave?
A-7: FMLA does not require an employer to maintain an employee's
non-health benefits (e.g., life insurance) during FMLA leave. An
employee's entitlement to benefits other than group health benefits
under a cafeteria plan during a period of FMLA leave is to be
determined by the employer's established policy for providing such
benefits when the employee is on non-FMLA leave (paid or unpaid). See
29 CFR 825.209(h). Therefore, an employee who takes FMLA leave is
entitled to revoke an election of non-health benefits under a cafeteria
plan to the same extent employees taking non-FMLA leave are permitted
to revoke elections of non-health benefits under a cafeteria plan. For
example, election changes are permitted due to changes of family status
or upon enrollment for a new plan year. See Sec. 1.125-2, Q&A-6(c) \6\
and Sec. 1.125-1, Q&A-8.\7\ However, the FMLA regulations provide that,
in certain cases, an employer may continue an employee's non-health
benefits under the employer's cafeteria plan while the employee is on
FMLA leave to ensure that the employer can meet its responsibility to
provide equivalent benefits to the employee upon return from unpaid
FMLA. If the employer continues an employee's non-health benefits
during FMLA leave, the employer is entitled to recoup the costs
incurred for paying the employee's share of the premiums during the
FMLA leave period. See 29 CFR 825.213(b). In addition, a cafeteria plan
must, as required by FMLA, permit an employee whose coverage terminated
while on FMLA leave (either by revocation or nonpayment of premiums) to
be reinstated in the cafeteria plan on return from FMLA leave. See 29
CFR 825.214(a) and 825.215(d).
\6\ Published as a proposed rule at 54 FR 9460 (March 7, 1989).
\7\ Published as a proposed rule at 49 FR 19321 (May 7, 1984).
---------------------------------------------------------------------------
Q-8: How may taxpayers rely on these proposed regulations?
A-8: (a) The guidance provided by the questions and answers in this
section may be relied upon to comply with provisions of section 125 and
will be applied by the Internal Revenue Service in resolving issues
arising under cafeteria plans and related Internal Revenue Code
sections. If final regulations are more restrictive than the guidance
in this section, the regulations will not be applied retroactively. No
inference, however, should be drawn regarding issues not expressly
raised that may be suggested by a particular question or answer or by
the inclusion or exclusion of certain questions.
(b) The Department of Labor has advised the Department of the
Treasury, including the Internal Revenue Service, that the provisions
of this section are not inconsistent with the provisions of
[[Page 66233]]
FMLA and the Labor Regulations thereunder.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 95-30681 Filed 12-20-95; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
[Federal Register Volume 60, Number 245 (Thursday, December 21, 1995)]
[Proposed Rules]
[Pages 66344-66469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29458]
[[Page 66343]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 260, 261, 266, and 268
_______________________________________________________________________
Hazardous Waste: Identification and Listing; Proposed Rule
Federal Register / Vol. 60, No. 245 / Thursday, December 21, 1995 /
Proposed Rules
[[Page 66344]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 266, and 268
[FRL-5337-9]
RIN 2050-AE07
Hazardous Waste Management System: Identification and Listing of
Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule, tentative response to Chemical Manufacturers
Association petition and the Hazardous Waste Identification Dialogue
Committee recommendations, and request for comments.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) today is proposing
to amend its regulations under the Resource Conservation and Recovery
Act (RCRA) by establishing constituent-specific exit levels for low-
risk solid wastes that are designated as hazardous because they are
listed, or have been mixed with, derived from, or contain listed
hazardous wastes. Under this proposal, generators of listed hazardous
wastes that meet the self-implementing exit levels would no longer be
subject to the hazardous waste management system under Subtitle C of
RCRA as listed hazardous wastes. Today's Notice, commonly referred to
as the Hazardous Waste Identification Rule (HWIR), establishes a risk-
based ``floor'' to hazardous waste listings that will encourage
pollution prevention, waste minimization, and the development of
innovative waste treatment technologies.
Many of the exit levels are established using an innovative risk
assessment which evaluates potential exposure pathways, both direct and
indirect, from a variety of sources, such as waste piles and surface
impoundments. This assessment focuses on both human and environmental
receptors and is presented for comment in today's Notice. The remaining
exit levels are based on an alternative risk analysis.
The Agency is also proposing to modify some of the land disposal
restriction (LDR) numerical treatment standards listed in subpart D of
40 CFR part 268. This notice proposes to cap technology-based treatment
standards with the risk-based exit levels which minimize threats to
human health and the environment. This notice also takes comment on
several general approaches and one specific approach for conditional
exemptions from subtitle C management. Today's notice also contains the
Agency's tentative response to a petition for rulemaking submitted by
the Chemical Manufacturers Association and the Agency's tentative
response to the recommendations made by the Dialogue Committee on
Hazardous Waste Identification. This committee was formally chartered
in July 1993 in accordance with the Federal Advisory Committee Act
(FACA).
DATES: EPA will accept public comments on this proposed rule until
February 20, 1996. Comments postmarked after this date may not be
considered. However, the Agency recognizes that, because of the
complexity of this proposed rulemaking, some commenters may want to
request additional time for comment submittal. In anticipation of these
requests, EPA will be communicating with the litigants and the court
regarding the implications on our rulemaking schedule of a possible
extension of the comment period for this proposal. If the comment
period is extended, the Agency will provide notice of such in the
Federal Register.
Any person may request a public hearing on this amendment by filing
a request with Mr. David Bussard, whose address appears below, by
January 5, 1996.
ADDRESSES: The public must send an original, two copies, and whenever
possible, a 3.5 inch computer disk containing the comments in a common
word processing format such as WordPerfect version 5.1 1. to: EPA
RCRA Docket (5305W), 401 M Street, SW., Washington, DC 20460.
\1\ This will greatly facilitate EPA's preparation of the
comment responses and will significantly reduce the cost associated
with responding to the comments.
---------------------------------------------------------------------------
Place ``Docket number F-95-WHWP-FFFFF'' on your comments. The RCRA
docket is located at: EPA's Crystal Gateway Office, 1235 Jefferson
Davis Highway, Arlington, Virginia, and is open from 9 a.m. to 4 p.m.,
Monday through Friday, excluding Federal holidays. The public must make
an appointment to review docket materials by calling (703) 603-9230.
The public may copy material from any regulatory docket at a cost of
$0.15 per page. Copies of the background documents, Integrated Risk
Information System (IRIS) chemical files, and other references (which
are not readily available) are available for viewing and copying only
in the RCRA docket.
Requests for a public hearing should be addressed to Mr. David
Bussard, Director, Characterization and Assessment Division, Office of
Solid Waste (OS-330), U.S. Environmental Protection Agency, 401 M
Street, SW., Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: The RCRA/Superfund Hotline at (800)
424-9346 or at (703) 412-9810. For technical information contact Mr.
William A. Collins, Jr., Mr. Greg Helms, or Ms. Pamela McMains, Office
of Solid Waste (5304), U.S. Environmental Protection Agency, 401 M
Street, S.W., Washington, DC 20460, (202) 260-4770.
Preamble Outline
I. Authority
II. Background
A. Overview of Hazardous Waste Identification Program
B. The Mixture and Derived-From Rules and the Contained-In
Policy
C. Overview of Expected Impacts of the Exit Rule
III. Scope of Revisions to the Mixture and Derived-From Rules
A. Rationale for Retention of the Mixture and Derived-From Rules
B. Revision to Derived-from Rule for Wastes Listed Because They
Exhibit the Characteristics of Ignitability, Corrosivity, or
Reactivity
IV. Development of Exit Levels and Minimize Threat Levels
A. Need for an Exit
B. Overview of the Exit
C. Selection of Constituents of Concern
1. Development of the Master List
2. Development of the Exit Constituent List
3. Constituents of Ecological Concern
D. Risk-Based Information
1. Human Health Benchmarks
a. Non-carcinogens
b. Carcinogens
c. Consideration of MCLs
2. Ecological Benchmarks
3. Sources of Data
a. Human
b. Ecological
E. Risk Assessment
1. The Risk Analysis
a. Introduction
b. How the Analysis was Structured
c. How Uncertainty is Addressed
d. Linkage of the Risk Analysis to the Groundwater Fate and
Transport
e. Risk Targets Used
2. Detailed Overview of the Non-Groundwater Risk Analysis
a. Waste Management Units
1. Use of Subtitle D Survey
2. Fate and Transport
3. Ash Monofill
i. Particle Size Distribution for Air Dispersion Modeling
ii. Monofill Characterization
iii. Vehicle Traffic
iv. Emission Equations for Ash Blown from Trucks and Spreading
and Compacting
4. Land Application Unit
i. Particle Size Distribution for Air Dispersion Modeling
ii. Area of Land Application Unit Relative to Agricultural Field
iii. Application Rate
iv. Waste Characteristics
[[Page 66345]]
v. Depth of Contamination
vi. Partitioning
5. Waste Pile
i. Waste Pile Height
ii. Particle Size Distribution for Air Dispersion Modeling
iii. Waste Characteristics
iv. Vehicle Traffic
v. Emission Equation for Ash Blown from Trucks
6. Surface Impoundments
i. Two-Phase Sludge Formation Model
ii. Dilution of Waste During a Spill
7. Tank
i. Unit Characterization
ii. Volatilization
8. Combustors
b. Fate and Transport
1. Pathways
2. Equations
3. Specific Issues on Pathways and Equations
i. Chemical Transformation
ii. Biodegradation
iii. Meteorological Data
iv. Soil Data
v. Soil Pathways
vi. Surface Water Pathways
vii. Food-Chain Pathways
c. Receptors
1. Human Receptors
2. Ecological Receptors
3. Groundwater Fate and Transport Modeling
a. Fate and Transport Processes
1. Effects of groundwater mounding
2. Transformation products
3. Fate and transport of metals
b. Enhanced solution algorithms
1. Linkage between unsaturated zone and saturated zone modules
2. Numerical transport solution
3. Solution for metals transport
4. Elimination of biases in determination of receptor well
concentrations
c. Revision of Monte Carlo methodology for nationwide
assessments
1. Data sources
2. Finite-source methodology
3. Site-based regional analysis
d. Implementation of EPACMTP
e. Waste management scenarios
1. Landfills
2. Surface impoundments
3. Waste piles
4. Land application units
f. Determination of regulatory limits
g. Chemical specific fate and transport processes
1. Organic constituents
2. Metals
4. Other Risk Assessment Issues
a. Difference between groundwater and nongroundwater pathways
1. Infiltration
2. Density of waste applied to land application unit
3. Unsaturated zone characteristics
4. Hydrolysis rates
b. Other groundwater pathway analysis issues
1. Use of 1000 years versus 10,000 years exposure time horizon
2. Implementation of parameter bounds in Monte Carlo procedure
3. Hydraulic conductivity of surface impoundment bottom layer
4. Waste pile infiltration rates
5. Land application unit infiltration rates
6. Aggregate effects of alternative groundwater modeling
procedures
F. Additional Eco-Receptor Consideration
G. Background Concentrations in Soils and other Issues Relating
to Results
H. Constituents with Extrapolated Risk-based Levels
I. Analytical Considerations
1. Development of Exemption Quantitation Criteria (EQC)
2. EQCs and LDR Requirements as Exemption Criteria
a. EQCs as exit levels
b. LDR Requirements in combination with EQC Exit Levels
3. Exemption for Constituents Without EQCs
V. Presentation of Exit Levels
A. Constituents with Modeled or Extrapolated Risk-based Exit
Levels
B. Constituents with Quantitation-based Exit Levels
C. How to Read the Exit Level Tables
VI. Minimize Threat Levels
A. Background
1. Summary of the Hazardous and Solid Waste Amendments of 1984
2. EPA's Interpretation of Standard for Treatment Requirements
B. Risk Assessment and Minimize Threat Levels
1. Rationale
2. Public Policy Considerations
C. Minimize threat levels
1. List of Constituents and Minimize Threat Concentrations
2. Constituents for which Exit Levels are not Minimize Threat
Levels
D. Meeting LDR requirements
1. Wastes Below Exit Levels as Generated
2. Wastes Above Exit Levels as Generated
VII. Dilution
VIII. Implementation of Exit
A. Implementation Requirements
1. Testing Requirements
a. Data Evaluation
i. Compliance with the Exit Levels
ii. Wastewater and Nonwastewater Categories
iii. Totals and TCLP Analyses
iv. Oily Wastes
b. Initial Test
2. Notification Requirements
B. Implementation Conditions
1. Records Maintained on Site
2. Testing Conditions
3. Testing Frequency and Process Change
C. Public Participation
IX. Request for Comment on Options for Conditional Exemptions
A. Legal Basis for Conditional Exemptions
B. Improvements in Management of Non-Hazardous Waste and in Risk
Assessment Methodology
C. Overview of Options for Conditional Exemptions
1. National Approach
a. Eliminate Disposal in Land Application Units
b. Unit-Specific Exit Levels for Each Disposal
c. Consideration of Additional Management Unit Design or
Management Practices
2. State Program Approach
3. Establish Exit Levels that Consider Regional or Site-Specific
Factors that might Affect Constituent Fate and Transport
4. Relief from Land Disposal Restrictions
D. Land Disposal Restrictions for Contingent Management Options
E. Contingent Management of Mixed Waste
X. Implementation of Conditional Exemption Option 1
A. Introduction and Overview
B. When Contingent Management Exemptions Become Effective
1. Placement of the waste in a qualifying unit
2. Point of generation
C. Requirements for Obtaining an Exemption
1. Sampling and Testing Requirements for Contingent Management
Exemptions
2. Requirements for Public Participation in contingent
Management Exemptions
3. Notification Requirements for Contingent Management
D. Implementation Conditions
1. Tracking conditions
2. Qualifying Unit
3. Claimant's Duty to Ensure Compliance with all Conditions
E. Retesting and Recordkeeping Conditions for Contingent
Management Exemptions
F. Compliance Monitoring and Enforcement for Contingent
Management Exemptions
1. Compliance Monitoring
2. Enforcement
G. Exports of Wastes Eligible for Contingent Management
Exemptions
H. Land Disposal Restrictions
XI. Relationship to Other RCRA Regulatory Programs
A. Hazardous Waste Determination
B. Characteristic Hazardous Waste
C. Toxicity Characteristic Level for Lead
D. Hazardous Waste Listings
E. Delisting
F. Requirements for Treatment, Storage, and Disposal Facilities
and Interim Status Facilities
G. Closure
H. HWIR-Media Rule/Subtitle C Corrective Action
I. Land Disposal Restriction Program
J. RCRA Air Emission Standards
K. Hazardous Debris
L. Hazardous Wastes Used in a Manner Constituting Disposal
XII. CERCLA Impact
XIII. State Authority
A. Applicability of Rules in Authorized States
B. Effect of State Authorizations
C. Streamlining Issues
XIV. Regulatory Requirements
XV. References
Appendix A: Background Tables for Risk Analysis Receptors and
Pathways
Appendix B: Table Comparing Groundwater Modeling Effects of 1000 vs.
10,000 years
Appendix C: Tables Comparing the Modeled or Extrapolated Risk Levels
vs. the EQCs for Each Constituent
Appendix D: Tables Comparing the Exit Levels and the UTS Levels
Regulatory Language
[[Page 66346]]
I. Authority
These regulations are proposed 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), as amended by the Hazardous and Solid Waste Amendments of 1984
(HSWA), 42 U.S.C. 6912(a), 6921, 6922, 6924 and 6926.
II. Background
A. Overview of the Hazardous Waste Identification Program
Section 1004(5) of the Resource Conservation and Recovery Act
(RCRA) as amended by the Hazardous and Solid Waste Amendments (HSWA) of
1984, defines ``hazardous waste'' as ``a solid waste, or combination of
solid waste, which because of its quantity, concentration, or physical,
chemical, or infectious characteristics may (A) cause, or significantly
contribute to an increase in the mortality or an increase in serious
irreversible, or incapacitating reversible, illness; or (B) pose a
substantial present or potential hazard to human health or the
environment when improperly treated, stored, transported, or disposed
of, or otherwise managed.''
Section 3001 of RCRA requires EPA to identify those wastes that
should be classified as ``hazardous.'' The Agency's hazardous waste
identification rules designate wastes as hazardous in one of two ways.
First, the Agency has established four hazardous waste characteristics
which identify properties or attributes of wastes which would pose a
potential hazard if the waste is improperly managed. See 40 CFR 261.21-
261.24. Any generator of a solid waste is responsible for determining
whether a solid waste exhibits any of these characteristics. See 40 CFR
262.11. Any solid waste that exhibits any of the characteristics
remains hazardous until it no longer exhibits the characteristics. See
40 CFR 261.4(d)(1).
The other mechanism EPA uses to designate wastes as hazardous is
``listing.'' The Agency has reviewed data on specific waste streams
generated from a number of industrial processes and has determined that
these wastes would pose hazards if mismanaged for one or more reasons,
including the presence of significant levels of hazardous constituents
listed in appendix VIII to 40 CFR part 261, the manifestation of one or
more of the hazardous waste characteristics, or the potential to impose
detrimental effects on the environment. (See generally 40 CFR 261.11).
As discussed in detail in the preambles and in associated dockets
accompanying the listings, EPA has generally determined that these
wastes contain toxic constituents at concentrations which pose risks
which are unacceptable for human or environmental exposure and that
these constituents are mobile and persistent to the degree that they
can reach environmental or human receptors.
On May 19, 1980, as part of the final and interim final regulations
implementing section 3001 of RCRA, EPA published two lists of hazardous
wastes: One composed of wastes generated from non-specific sources
(e.g., spent solvents) and one composed of wastes generated from
specific sources (e.g., distillation bottoms from the production of
benzyl chloride). The Agency also published two lists of discarded
commercial chemical products, off-specification species, container
residues, and spill residues thereof which are hazardous wastes under
specific circumstances. These four lists have been amended several
times, and are currently published in 40 CFR 261.31, 261.32, 261.33(e)
and (f), respectively.
B. The Mixture and Derived-From Rules and the Contained-In Policy
1. Mixture and Derived-From Rules
a. Scope and Purpose of the Rules
In 1980 EPA promulgated its first comprehensive regulatory program
for the management of hazardous waste under RCRA. 45 FR 33066 (May 19,
1980). As part of that rulemaking EPA promulgated several rules to
identify hazardous wastes. Two of these rules clarify the scope of the
hazardous waste listings. Under the mixture rule, a solid waste is a
hazardous waste if it is mixed with one or more listed hazardous
wastes. 40 CFR 261.3(a)(2)(iv). Under the derived-from rule a solid
waste generated from the treatment, storage or disposal of a listed
hazardous waste is also a hazardous waste. 40 CFR 261.3(c)(2)(i).
EPA promulgated the mixture and derived-from rules to close
potentially major loopholes in the subtitle C management system.
Without a ``mixture'' rule, generators of hazardous wastes could
potentially evade regulatory requirements by mixing listed hazardous
wastes with other hazardous wastes or non-hazardous solid wastes to
create a ``new'' waste that arguably no longer met the listing
description, but continued to pose a serious hazard. Such a waste also
might not exhibit any of the hazardous waste characteristics.
Similarly, without a ``derived-from'' rule, hazardous waste generators
and owners and operators of hazardous waste treatment, storage, and
disposal facilities (TSDFs) could potentially evade regulation by
minimally processing or managing a hazardous waste and claiming that
resulting residue was no longer the listed waste, despite the continued
hazards that could be posed by the residue even though it does not
exhibit a characteristic. (See 57 FR 7628).
It is for these reasons that the Agency continues to believe that
the mixture and derived-from rules are extremely important in
regulating hazardous wastes and reducing risk to human health and the
environment. However, EPA acknowledges that the mixture and derived-
from rules apply regardless of the concentrations and mobilities of
hazardous constituents in the waste. The purpose of this rulemaking is
to reduce any overregulation of low-risk wastes captured by the mixture
and derived-from rule.
b. Subsequent History
Numerous industries that generate hazardous wastes challenged the
1980 mixture and derived-from rules in Shell Oil v. EPA, 950 F. 2d 741
(D.C. Cir. 1991). In December 1991 the D.C. circuit vacated the rules
because they had been promulgated without adequate notice and
opportunity to comment. The court, however, suggested that EPA might
want to consider reinstating the rules pending full notice and comment
in order to ensure continued protection of human health and the
environment.
In response to this decision, EPA promulgated an emergency rule
reinstating the mixture and derived-from rules as interim final rules
without providing notice and opportunity to comment. 57 FR 7628 (Mar.3,
1992). EPA also promulgated a ``sunset provision'' which provided that
the mixture and derived-from rules would remain in effect only until
April 28, 1993. Shortly after, EPA published the proposal containing
several options for revising the mixture and derived-from rules. See 57
FR 21450 (May 20, 1992). This proposal also included options for
exempting media contaminated with listed hazardous wastes that are
regulated under the ``contained in'' policy.
The May 1992 proposal and the time pressure created by the ``sunset
provision'' generated significant controversy. In response, Congress
included in EPA's 1992 appropriations bill several provisions
addressing the mixture and derived-from rules. Pub. L. No. 102-389, 106
Stat. 1571. First, Congress nullified the sunset provision by providing
that EPA could not promulgate any revisions to the rules
[[Page 66347]]
before October 1, 1993 and by providing that the reinstated regulations
could not be ``terminated or withdrawn'' until revisions took effect.
However, to ensure that EPA could not postpone the issue of revisions
indefinitely, Congress also established a deadline of October 1, 1994
for the promulgation of revisions to the mixture and derived-from
rules. Congress made this deadline enforceable under RCRA's citizen
suit provision.
On October 30, 1992 EPA published two notices, one removing the
sunset provision, and the other withdrawing the May 1992 proposal. See
57 FR 49278, 49280. EPA had received many comments criticizing the May
1992 proposal. The criticisms were due, in a large part, to the very
short schedule imposed on the regulation development process itself.
Commenters also feared that the proposal would result in a
``patchwork'' of differing State programs because some states might not
adopt the revisions. This fear was based on the belief that States
would react in a negative manner to the proposal and refuse to
incorporate it into their programs. Finally, many commenters also
argued that the risk assessment used to support the proposed exemption
levels failed to provide adequate protection of human health and the
environment because it evaluated only the risks of human consumption of
contaminated groundwater ignoring other pathways that could pose
greater risks. Based on these concerns, and based on the Agency's
desire to work through the individual elements of the proposal more
carefully, the proposal was withdrawn.
Meanwhile, a group of waste generating industries challenged the
March 1992 action that reinstated the mixture and derived-from rules
without change. Mobil Oil Corp. v. EPA, 35 F.3d 579 (D.C. Cir. 1994).
EPA argued that the 1992 appropriations act made the challenge moot
because it prevented both EPA and the courts from terminating or
withdrawing the interim rules before EPA revised them, even if EPA
failed to meet the statutory deadline for the revisions. In September,
1994 the D.C. Circuit issued an opinion that dismissed the challenges
as moot under the rationale that the Agency had offered.
In early October 1994 several groups of waste generating and waste
managing industries filed citizen suits to enforce the October 1
deadline for revising the mixture and derived-from rules. The U.S.
District Court for the District of Columbia Circuit entered a consent
decree resolving the consolidated cases on May 3, 1993. Environmental
Technology Council v. Browner, C.A. No. 94-2119 (TFH) (D.D.C. 1994)
Under this decree the Administrator must sign a proposal to amend the
mixture and derived-from rules by November 13, 1995 and a notice of
final rulemaking by December 15, 1996. The decree also specifies that
the deadlines in the 1992 appropriations act do not apply to any rule
revising the separate regulations that establish jurisdiction over
media contaminated with hazardous wastes.
c. Federal Advisory Committees Act (FACA) and Outreach
After the withdrawal of the HWIR proposal, the Agency initiated a
series of public meetings with invited representatives from industry,
environmental groups, hazardous waste treaters, and States. These
meetings focused on three major issues: --RCRA regulation of low hazard
wastes with a particular interest in addressing issues raised regarding
the mixture and derived-from rules; concerns that full RCRA
requirements for contaminated media may unnecessarily impede clean-ups;
and need to regulate additional high-risk wastes outside the scope of
the current listings and characteristics.
A strong and successful effort was made to encourage all the
interested parties to participate in the public meetings. EPA forged a
solid partnership with the States (both ASTSWMO and Environmental
Commissioners under the National Governors Association) and the state
representatives worked closely with EPA as co-regulators in our
analyses of options.
In July of 1993, EPA chartered this group as an advisory committee
under the Federal Advisory Committee Act (Pub. L. 92-463)(58 FR 36200).
The committee rather quickly formed two sub-committees to allow
separate discussion of the low risk waste problem associated with the
mixture and derived-from rules and the rules for managing contaminated
media and other wastes during remediation.
By September of 1994 the low risk waste group had made significant
progress in identifying options for creating exemptions for low risk
wastes. Despite significant investment of time and effort, however, the
group was unable to reach consensus on many key issues.
With the statutory deadline for revisions to the mixture and
derived-from rules approaching, EPA requested that group to present a
final report in late September of 1994. EPA and representatives from
several state environmental agencies then took up the task of selecting
options for creating an exit rule, crafting regulatory language, and
developing necessary supporting materials. The FACA subcommittee's
final report was taken into consideration during the development of
today's proposal.
2. Contained-In Policy
The Agency also has interpreted its regulatory definition of
hazardous waste to extend to mixtures of hazardous wastes and
environmental media (such as contaminated soil and groundwater).2
See 40 CFR 261.3(c)(1) and (d)(2). Media that are contaminated with
listed or characteristically hazardous waste must be managed as
hazardous wastes until they no longer contain such wastes. To date, the
Agency has not issued any general rules as to when, or at what levels,
environmental media contaminated with hazardous wastes are no longer
considered to ``contain'' those hazardous wastes. Media that contain
hazardous wastes with constituent concentrations below the levels
proposed today will be eligible for exemption under the procedures
proposed today. In addition, in a separate rulemaking, the Agency plans
to propose additional rules reducing regulation of contaminated media
during remediation activities.
\2\ EPA's ``contained in'' policy was upheld as a reasonable
interpretation of 40 CFR 261.3(c)(1) and (d)(2) by the D.C. Circuit
in Chemical Waste Management, Inc v. U.S. EPA, No. 869 F.2d 1526
(D.C. Cir. 1989).
---------------------------------------------------------------------------
C. Overview of Expected Impacts of the Exit Rule
1. Listed Wastes
The purpose of this rule is to exempt from hazardous waste
regulation those solid wastes currently designated as hazardous waste
even though they contain constituent concentrations at levels that pose
very low risk to human health and the environment. While facilities
generating such wastes can petition for delisting by rulemaking under
the provisions of 40 CFR Sec. 260.20 and 260.22, EPA believes that the
detailed waste-stream specific review required under delisting is not
necessary for the low risk wastes that are identified by today's
proposal. The alternative, generic exit rule proposed today will be
faster and less resource-intensive for both the Agency and the
regulated community. By providing an opportunity for a more self-
implementing exemption, the Agency intends to create incentives for
effective and innovative waste minimization and waste treatment and to
reduce unnecessary demand for Subtitle C disposal capacity, without
[[Page 66348]]
compromising needed environmental protection.3
\3\ As will be discussed further in this notice, the Agency
believes that the delisting process will continue to be valuable for
certain types of wastes which are not eligible for an exemption
under this proposal. Thus the Agency is not proposing to eliminate
or modify the delisting program as a result of this proposal.
---------------------------------------------------------------------------
By proposing a risk-based ``floor'' to listed wastes, today's
proposal should give a very strong incentive to generators of listed
hazardous waste to apply pollution prevention to their processes to
avoid Subtitle C control. This action should also give incentive for
the development of innovative treatment technologies to render wastes
less risky.
Today's proposed rule specifies sampling and analysis requirements,
public participation, reporting and record keeping requirements. Most
of these provisions are alternatives to the safeguard of waste-specific
review provided under the delisting program. The exit levels are risk-
based concentrations at which a human or wildlife species could be
directly or indirectly exposed to the exempted waste, and would be
unlikely to suffer adverse health effects. The exposure scenario used
to develop these levels assume that the exempted waste will no longer
be subject to Subtitle C control, but will be managed as a solid waste
in one of a variety of non-hazardous waste management units regulated
under Subtitle D.
2. Characteristic Wastes
Listed hazardous wastes exempted under today's proposed rule which
exhibit any of the characteristics will continue to be regulated as
hazardous wastes until the characteristic is removed. In a number of
cases, wastes were listed on the basis of containing both toxic
hazardous constituents and exhibiting one or more of the hazardous
waste characteristics that do not relate to chemical toxicity (e.g.,
ignitability, corrosivity, or reactivity). If such a waste still
exhibits any characteristic after complying with the exemption criteria
proposed in today's proposed rule, it must continue to be managed as a
characteristically hazardous waste.
III. Scope of Revisions to the Mixture and Derived-From Rules
The mixture and derived-from rules promulgated in 1980 and
reinstated in 1992 require Subtitle C regulation of all mixtures of
listed hazardous wastes and solid wastes and all residuals from
treatment of hazardous wastes. The rules proposed today, however, allow
rapid exemptions for mixtures and derived-from wastes that present no
significant threats to human health and the environment. Those wastes
that would remain subject to the mixture and derived-from rules
typically will pose risks that warrant regulation under Subtitle C. To
the extent that this is not true for a particular mixture or treatment
residual, the delisting process remains available (at least at the
state level) to exempt wastes with constituents at more site- and
waste-specific levels. Consequently, EPA has tentatively determined
that further revisions of the mixture and derived-from rules, with the
exception of the one minor change to the derived-from rule discussed
later in this section, are not warranted in this rulemaking. However,
EPA requests comment on this conclusion.
A. Rationale for Retention of the Mixture and Derived-From Rules
EPA continues to believe that it had ample statutory and regulatory
authority to promulgate the original rules and that it also has ample
authority to maintain the rules without further revisions. The mixture
and derived-from rules, particularly with the revisions proposed today,
ensure that hazardous wastes that are mixed with other wastes or
treated in some fashion do not escape regulation so long as they are
reasonably likely to continue to pose threats to human health and the
environment. They thus retain jurisdiction over listed hazardous wastes
and clarify that such wastes are not automatically eligible for exit
when they are mixed or treated. Although RCRA sets out criteria for the
identification of hazardous wastes to enter the subtitle C system, it
is silent on the question of how to determine that a waste is eligible
to exit the system. EPA's interpretation of the statute is thus
entitled to deference so long as it is reasonable and consistent with
RCRA's purposes.
EPA believes that its decision to retain jurisdiction over major
portions of the universe of waste mixtures and treatment residues is
consistent with its authorities under sections 3002-3004 of RCRA to
impose requirements on waste handlers until wastes have ``cease[d] to
pose a hazard to the public''. Shell Oil Corp. v. EPA, 959 F.2d 741,
754 (D.C. Cir. 1991). See also Chemical Manufacturers Assoc. v. EPA,
919 F.2d 158, 162-65 (EPA may regulate the disposal of nonhazardous
wastes in a hazardous waste impoundment under section 3004) and
Chemical Waste Management, Inc. v. EPA, 976 F.2d 2, 8, 13-14 (D.C. Cir.
1992) (EPA may require further treatment of wastes under section 3004
even though they cease to exhibit a hazardous characteristic).
The mixture and derived-from rules are also valid exercises of
EPA's authority to list hazardous wastes under section 3001. That
provision gives EPA broad authority to promulgate listing criteria.
EPA's 1980 criteria authorize the listing of classes of hazardous
wastes when it has reason to believe that wastes in the class are
typically or frequently hazardous. See 40 CFR 261.11(b). Such class
listings are permissible even if some members of the class do not
actually pose hazards. Nothing in the section 1004(5) definition of
hazardous waste, in section 3001, or in EPA's listing criteria require
EPA to prove that every member of a class poses a hazard. In fact, many
waste listings describe ``classes'' of hazardous wastes because they
cover a range of materials that are not identical in composition. The
mixture and derived-from rules thus are fully authorized as class
``listings'' under section 3001.
EPA has also made a reasonable factual determination that these
classes of waste warrant regulation under sections 3002-3004 and
section 3001. In 1980 EPA determined that the hazardous constituents
contained in these wastes are not generally eliminated or rendered
nontoxic simply because a waste is mixed with other wastes or managed
in some fashion. In 1992, when EPA repromulgated the mixture and
derived-from rules, it documented numerous instances of mixed and
derived-from wastes that continued to pose hazards. See 57 FR 7629
(March 3, 1992). Today, EPA is proposing that members of this class of
wastes that pose low risks will be eligible for an expedited, self-
implementing exemption from Subtitle C regulation. Accordingly, EPA has
an even better basis for believing that wastes which remain within the
scope of the mixture and derived-from rules pose threats warranting
regulation.
Additionally, EPA continues to believe, as it did in 1980, that it
would be virtually impossible to try to identify all possible waste
mixtures and treated wastes and assess their hazards individually.
EPA's rule reasonably retains jurisdiction over both broad classes and
places the burden of proof on the regulated community to show that a
particular waste has ceased to present a hazard. Today's self-
implementing exit proposal will reduce that burden significantly,
ensuring that the mixture and derived-from rules represent a reasonable
approach to regulating these classes of wastes.
[[Page 66349]]
B. Revision to Derived-from Rule for Wastes Listed Because They Exhibit
the Characteristics of Ignitability, Corrosivity, or Reactivity
In 1981 EPA responded to a number of comments on the scope of the
original 1980 mixture rule by promulgating a number of exemptions for
mixtures of solid wastes and listed hazardous wastes which, according
to information submitted by commenters, posed no significant risk to
human health and the environment. See 46 FR 56582 (Nov. 17, 1981). The
1981 rule included an exemption for mixtures of solid wastes and
hazardous wastes listed solely because they exhibited one or more of
the hazardous waste characteristics, if the resultant mixtures no
longer exhibited a characteristic. The exemption was based on a finding
that such mixtures did not pose threats to human health and the
environment warranting Subtitle C regulation. See 46 FR 56568 and the
current text of the exemption at Sec. 261.3(a)(2)(iii). EPA notes that
it has never promulgated any listings for wastes solely on the basis
that they exhibit either the 1980 EP toxicity characteristic or the
1990 toxicity characteristic; consequently, only mixtures containing
wastes listed because they exhibit the characteristics of ignitability,
corrosivity, or reactivity have been eligible to exit Subtitle C when
they no longer exhibit the characteristic.
The 1981 notice focused exclusively on issues concerning the
mixture rule. Consequently, EPA did not propose any parallel exemption
for such wastes for the separate derived-from rule (codified at
Sec. 261.3(c)(2)(i)), even though the derived-from wastes would appear
to present similarly low risks if they no longer exhibited a
characteristic and were treated to meet LDR standards before land
disposal. Recent inquiries from the public have highlighted the
discrepancy in the scope of the mixture rule and the derived-from rule
for wastes listed solely because they exhibit characteristics. EPA
believes it has no reason to treat derivatives of wastes listed solely
because they exhibit the characteristic of ignitability, corrosivity,
or reactivity any differently from the way it treats mixtures of such
wastes because both present similar low risks to human health and the
environment.
Consequently, EPA is today proposing a revision to the derived-from
rule that will closely resemble the 1981 revision to the mixture rule.
Since no listings to date have been based on the toxicity
characteristic, EPA is proposing to limit the new revision to the
derived-from rule to wastes listed because they exhibit only the
characteristics of ignitability, corrosivity, or reactivity. EPA is
also not proposing to exempt wastes that might in the future be listed
only because of the toxicity characteristic because (as this rule
proposal indicates) there can be risk concerns with the TC constituents
below TC levels. EPA requests comment on this proposal to create a new
exemption to the derived-from rule for this limited category of listed
wastes.
The proposed exemption will also remind the regulated community of
the separate duty to comply with requirements imposed by the part 268
regulations implementing the LDR program. In CWM v. EPA, 976 F.2d 2
(D.C. Cir. 1992), the U.S Court of Appeals for the D.C. Circuit
interpreted RCRA section 3004(m) as requiring treatment of de-
characterized hazardous wastes to meet LDR treatment standards even
after the wastes cease exhibiting a characteristic. EPA believes that
de-characterized derived-from residues from wastes listed because they
exhibit characteristics also must meet LDR requirements, unless they
are either delisted or are exempt at the point of generation pursuant
to other provisions proposed in this rule (e.g., meeting HWIR levels at
the point of generation).
In 1992 EPA amended the 1981 exemption to mixture rule to provide a
similar cross-reference and clarification for mixtures containing de-
characterized listed wastes. See 57 FR 37194, 37210-11 (Aug. 18, 1992).
That 1992 clarification, however, only covers nonwastewater mixtures.
As explained in that mixture rule preamble, EPA then regulated de-
characterized wastewaters much less stringently under the LDR program.
Consequently, EPA did not believe it was necessary to remind the
regulated community to comply with LDR requirements for wastewater
mixtures.
Later in 1992 the CWM v. EPA decision invalidated most of the
distinctions between the LDR rules for wastewaters and nonwastewaters.
EPA is now revising the LDR program to comply with that decision in the
LDR Phase III and Phase IV rulemakings. To reflect the changes in LDR
regulation of wastewaters, the derived-from rule exemption proposed
today reminds the regulated community of the need to comply with part
268 LDR requirements for all types of derived-from residues. EPA
requests comment on this clarifying language. EPA also requests comment
on whether it should revise the LDR clarification for the mixture rule
as well.
IV. Development of Exit Levels and ``Minimize Threat'' Levels
A. Need for the Exit
The primary purpose of this rule is to address listed hazardous
wastes, mixtures of listed hazardous wastes and solid wastes, and
residues derived-from managing listed hazardous waste that, under
current rules, continue to be designated as ``hazardous waste''
although they are either generated with constituent concentrations that
pose low risks or treated in a manner that reduces constituent
concentrations to low levels of risk.
EPA notes that there are currently exemptions, both codified and
contained in policy directives, from the hazardous waste identification
system, particularly the mixture and derived-from rules, for certain
types of wastes or wastes with certain constituent concentrations. See
e.g. 40 CFR 261.3(a)(2)(iv)(A) through (E) and policy memorandums such
as the ``Skinner Memorandum'' dated August 23, 1995. EPA is not
proposing to modify or replace any of these exemptions and policy
statements.
B. Overview of the Exit
For 191 of the 376 constituents of concern, EPA conducted a
detailed human health risk analysis to develop risk-based levels for
either the wastewater or nonwastewater form of a constituent (or both).
To conduct this analysis, EPA identified five types of units actually
and rather frequently used to manage nonhazardous wastes that covered
the full range of environmental releases needing analysis. The May 1992
proposal of exit levels for listed wastes, like many previous RCRA
rules, assessed only risks from releases to groundwater. In response to
complaints that such an assessment would not protect human health and
the environment from other types of releases, EPA also assessed
potential releases to air, surface water and soil in this proposal.
For each category of releases, EPA evaluated both relatively simple
pathways (such direct human ingestion of contaminated groundwater) and
more complex pathways (such as the deposition of windblown waste
particles on agricultural land, followed by crop uptake, consumption of
the crop by cattle, and consumption of contaminated beef or milk by
humans). EPA assessed approximately 8 to 27 release pathways depending
on the type of waste management unit.
Additionally, EPA screened the same group of 191 constituents to
identify the highest priorities for assessment of
[[Page 66350]]
ecological receptors. In addition, EPA considered for its assessment
the toxicological effects of silver on ecological receptors. EPA
conducted a specific assessment of ecological risks for 47 constituents
using the same five units and the same pathways (modified to reflect
ecological exposures) for each unit. This risk assessment is described
in more detail in sections V.B. and C.
Data limitations and resource constraints prevented EPA from
conducting a risk analysis for the remaining constituents of concern.
For each of these constituents, EPA extrapolated exit levels from
levels derived-from the risk assessment for similar chemicals. EPA's
extrapolation methodology is described in section IV.F.
The current capabilities of analytical chemistry constrain EPA's
ability to use some of concentrations as exit levels. For approximately
one-fourth of the constituents, EPA found that available methods could
not routinely measure the constituent at the modeled or extrapolated
risk-based exit level.
C. Selection of Constituents of Concern
1. Development of the Master List
EPA developed an initial ``Master List'' of 506 constituents to be
evaluated for purposes of establishing exit criteria. This master list
was developed by combining the constituents specifically listed in the
following appendices of 40 CFR part 261: Appendix VII, Basis for
Listing Hazardous Waste; Appendix VIII, Hazardous Constituents; and
appendix IX of part 264, the Ground-Water Monitoring List. The master
list includes the full list of constituents referenced in appendix VII,
including the F039 constituents.
Appendix VII to part 261, which was originally promulgated on May
19, 1980 (45 FR 33084) sets out the chemical constituents found to pose
threats to human health and the environment that served as the actual
basis for each of EPA's original hazardous waste listings. Appendix
VIII to Part 261, also promulgated in 1980, is a more general listing
of chemicals found to pose potential threats to human health and the
environment. (45 FR 33084). EPA considers wastes containing appendix
VIII constituents to be candidates for listing determinations. EPA
amends appendix VII from time to time as EPA identifies additional
potentially toxic constituents.
EPA later promulgated appendix IX to part 264 to identify those
appendix VIII constituents which it could routinely expect owners and
operators of permitted hazardous waste treatment, storage and disposal
facilities to monitor in groundwater. EPA also included in this
appendix 17 additional constituents found to pose significant risks
that the Superfund program routinely monitored in groundwater. (52 FR
25942, July 9, 1987).
EPA established in these rulemakings that each of these
constituents had significant potential to threaten human health, and,
by implication, potential to threaten the environment. (Most of the
data EPA utilized predicted toxic effects on humans.) EPA finds it
reasonable to include each of these constituents on the list of
chemicals of concern.
Further, EPA believes that, with the exception of the six chemicals
identified below, the three appendices identify the chemicals of
current concern to EPA that are likely to be found in listed wastes.
The Agency requests comment on whether the master list should also
include six constituents that are not listed in any of the above
sources. These six constituents, which are listed in Table 1, are found
in six ``U'' listed wastes (commercial chemical products that become
hazardous wastes when discarded). See 40 CFR 261.33(f). EPA originally
listed these wastes because they routinely exhibited the characteristic
of ignitability. Since the original listings, however, sufficient
toxicity data have become available for these constituents. (The risk
number for dimethylamine was recently withdrawn; however, EPA
understands that it will shortly be replaced). Because of the toxicity
data associated with these constituents, the Agency is taking comment
on whether exit levels should be established for these six constituents
in today's rulemaking. The Agency also requests comment on whether
these six constituents should be added to Appendix VIII.
Table 1.--Constituents Not on Appendices VII, VIII, or IX
----------------------------------------------------------------------------------------------------------------
Nonwastewater
CAS # Constituent Wastewater -------------------------
Totals Leach
----------------------------------------------------------------------------------------------------------------
75-07-0............................. Acetaldehyde (ethanal)............ ........... ........... ...........
98-82-8............................. Cumene............................ .67 18,000 2.5
124-40-3............................. Dimethylamine..................... ........... ........... ...........
110-00-9............................. Furan............................. .16 1300 .06
79-10-7............................. Acrylic acid...................... (\1\) (\1\) (\1\)
98-01-1............................. 2-Furancarbox- aldehyde (furfural) (\1\) (\1\) (\1\)
----------------------------------------------------------------------------------------------------------------
\1\ No exit levels because no EQC is available for this constituent. The criteria for exit would be to meet LDR
treatment standards in Sec. 268.
Full documentation concerning the selection of constituents of
concern is available in the docket under The Background Document to
Support Development of the Final Constituent List under the Waste Exit
Rule.
2. Development of the Exit Constituent List
The Agency narrowed the list of 506 constituents to consist of 376
constituents that are included in the exemption list. 130 constituents
were deleted from the master list. Criteria for constituent deletions
from the master list include: Reactivity in air, analysis as a
different constituent, reactivity in water, hydrolysis in soil or
water, or is part of a chemical class with a specific constituent
represented on the list. Because different methods and quantitation
limits are necessary for solid and liquid matrices, two separate
analyses were conducted. The Background Document to Support Development
of the Final Constituent List under the Waste Exit Rule in the docket
further justifies deletions of constituents from the master list and
lists the deleted constituents.
Molybdenum is not on the Appendices VII, VIII, or IX, which
provided the scope of today's master list of constituents. In
anticipation of the Petroleum listing, due to a Drinking Water Sewage
Sludge regulatory level, and due to available toxicity information, the
Agency has included molybdenum on the exemption list. Due to modeling
time constraints, Molybdenum was not modeled for groundwater risk. The
groundwater
[[Page 66351]]
leach level was estimated by assuming a DAF of 10 and using the RfD.
The Agency requests comment on whether molybdenum should be on the
list.
Two modeled constituents do not have estimated quantitation
criteria (EQCs--see section IV.G.) and therefore do not have associated
exit levels. These constituents are ethylene thiourea and phenyl
mercuric acetate. The Agency requests comment on how to deal with these
two constituents. The following table represents modeled results for
these constituents for comment.
Table 2.--Modeled Constituents Without EQCs
----------------------------------------------------------------------------------------------------------------
CASNUM Constituent NWW totals NWW leach WW totals
----------------------------------------------------------------------------------------------------------------
96-45-7............................... Ethylene thiourea............. 0.51 0.00017 .00053
62-38-4............................... Phenyl mercuric acetate....... 0.0093 0.0045 0.012
----------------------------------------------------------------------------------------------------------------
EPA modeled chromium VI in the risk assessment. However, totals
chromium appears on the exit tables based on the exit levels calculated
from modeling chromium VI. This approach is consistent with the
Toxicity Characteristic approach to chromium. The Agency asks for
comment on this approach.
The cyanide exit level was extrapolated. It is meant to be totals
cyanide. The Agency requests comment on whether testing for totals
cyanide is appropriate.
The values in the exit tables for silver do not represent results
of human toxicity data for silver, rather they represent ecological
results from the risk assessment. The Agency has determined that the
effect of silver on humans is not a human health problem, rather it is
an aesthetic problem. The groundwater model did not model ecological
exposure, therefore, there is no groundwater risk level for silver.
3. Constituents of Ecological Concern
As explained above, EPA established in previous RCRA rulemakings
that the constituents on the exit list (376) present significant
threats to human health. Numerous comments submitted on EPA's May 1992
proposal to establish exit levels urged EPA to conduct a more specific
and detailed analysis of threats to non-human species. Consequently, in
this rulemaking EPA determined the constituents it believed to also be
reasonably likely to pose risks to ecological receptors.
EPA has not set benchmarks for ecological impacts for a large
number of constituents under any of its programs. Establishing such
benchmarks for this proposal would be a resource-intensive and time-
consuming task. Accordingly, EPA narrowed the list of exit constituents
for which ecological receptors would be evaluated. First, EPA decided
to consider only the 191 constituents which it had already targeted for
analysis to protect human health. Second, the Agency developed a
methodology for screening the 191 constituents to identify those most
likely to pose significant risks to ecological receptors.
Based on an extensive review of available literature, EPA developed
five criteria to indicate the potential for ecological risks:
(1) Constituents that bioaccumulate (and possibly biomagnify) in
the food chain that can present elevated exposures to certain
predators;
(2) Persistent constituents that are likely to increase long-term
multi-generational exposures in wildlife;
(3) Constituents that cause reproductive and developmental effects
that can elicit adverse effects at sensitive life stages;
(4) Constituents that may cause ecological effects that have no
human analog (e.g., eggshell thinning); and
(5) Constituents that may cause effects to ecological receptors
continuously exposed.
EPA also developed operational definitions for each criterion. The
definitions were quantitative where possible. Further details can be
found in appendix B of the Technical Support Document for the Risk
Assessment for Human and Ecological Receptors.
EPA decided to designate as constituents of ecological concern the
47 constituents that exhibited at least two of the five criteria. The
Agency believes these constituents present the highest priorities in
terms of environmental risk. An additional 36 constituents exhibited
only one criterion. EPA, however, chose not to designate them as
constituents of concern because time and resource constraints would
prevent the Agency from completing an analysis with these constituents.
EPA, nevertheless, believes it has identified and analyzed sufficient
constituents of concern to ensure that the exit levels proposed today
provide for reasonable protection of the environment. Only 83 of 191
screened constituents showed any significant potential to pose threats
to the environment at levels protective of human health. Further, as
discussed in more detail below, of the 47 constituents that EPA
actually assessed for ecological impacts, only 6 wastewater
constituents and 18 nonwastewater constituents required exit levels to
protect environmental receptors lower than those necessary to protect
human health under the baseline proposal. Consequently, EPA believes it
is unlikely that all of the remaining constituents will present
significant threats to ecological receptors at levels that would
adequately protect human health.
D. Risk-Based Information
The Agency's proposed option for establishing exit values is based
on risk modeling to a hazard quotient of 1 and a 1 x 10-6 cancer
risk. The Agency chose a hazard quotient of 1 as its toxicity benchmark
value for non-carcinogens because evaluation of these compounds
presumes there is a threshold exposure above which individuals would be
at significant risk of suffering the adverse effects attributable to
the compound. The HQ is the Agency's best attempt to estimate that
level. Therefore, the Agency believes all exposures should remain below
HQ 1. Some Agency programs rely on HQ values less than 1 in standard
setting (the drinking water program uses an HQ of 0.20 to provide a
safety factor which allows for exposure to the constituent from sources
other than drinking water).
The Agency chose a toxicity benchmark of 1 x 10-6 cancer
risk for carcinogens for several reasons. A cancer risk level of 1 x
10-5 risk was used as a clearly hazardous level in establishing
the toxicity characteristic. Second, in the listings program, a 1 x
10-4 cancer risk is used as the presumptive listing risk, and a 1
x 10-6 as the presumptive no-list level. A cancer risk of 1 x
10-5 represents a level of initial concern about risk. Therefore,
in allowing listed hazardous waste to exit the requirements of Subtitle
C, the Agency was targeting waste that is clearly not hazardous. Thus,
the Agency believes the risk level should be at the
[[Page 66352]]
low end of the risk range used to bring waste into the hazardous waste
system.
Similarly, the Agency sought to be protective of public health in
developing its fate and exposure modeling. For the groundwater
evaluation, the Agency used a DAF 10 (which represents an approximate
90th percentile protection level) for infinite source type
constituents. (Constituent-specific DAFs were developed using the same
input assumptions, and different DAFs result from modeling of
degradation or retardation factors in the environment). This is the
generic DAF used in the delisting program for large volume wastes.
Since this is a national program which will largely benefit the largest
volume generators, the DAF 10 assumption is consistent with delisting
practice. Also, the toxicity characteristic used a DAF of 100
(representing an approximate 85th percentile protection level) for
identifying clearly hazardous waste (for infinite source type
constituents; regulation of hydrolysers was deferred). Again the policy
goal of exits was to strive to be well below clearly hazardous levels.
The Agency also modeled exposure at the nearest downgradient well. The
TC rule restricted well placement to within the plume. Today's proposal
attempts to balance the protectiveness level and well placement by
requiring a more protective level than the TC rule, but is less
restrictive in well location, e.g., wells outside of the plume, at
significantly lower risk, are averaged in.
For modeling of the non-groundwater pathways, the Agency used four
high-end parameter values for which the modeling outcome is most
sensitive as inputs to the analysis to be protective of public health
and the environment. These include: Two high-end parameters in the
waste management unit characterization and fate portions and two high-
end parameters in the exposure portions of the model. The remaining
input parameters were evaluated at typical values or central tendency
values. The Agency sought to be protective of a high percentile exposed
population (at least 90th percentile).
1. Human Health Benchmarks
For each constituent on the master list, the Agency evaluated the
existing toxicity information to determine whether there were
sufficient toxicity data to establish a benchmark. For those
constituents with adequate data, the data were evaluated either by the
Agency's CRAVE (Carcinogen Risk Assessment Verification Endeavor)
Workgroup, Reference Dose/Reference Concentration (RfD/RfC) Workgroup,
or the Office of Research and Development. This approach is consistent
with the approach used in the Agency's other risk-based RCRA programs
such as the Toxicity Characteristic, delisting petition evaluations,
listings, as well as the CERCLA program. See Section 4, ``Benchmarks,''
of the Technical Support Document for the Hazardous Waste
Identification Rule: Risk Assessment for Human and Ecological Receptors
for more details.
a. Non-carcinogens
The Agency proposes to use oral reference doses (RfDs) and
inhalation reference concentrations (RfCs) as the basis for developing
the exit criteria for non-carcinogenic constituents. An RfD or RfC is
an estimate (with uncertainty spanning perhaps an order of magnitude)
of a daily exposure to a constituent for the human population
(including sensitive subgroups) that is likely to be without an
appreciable risk of deleterious effects during a lifetime.
The approach used to derive an RfD or RfC is to identify the
highest test dose of a constituent associated with no effects or
effects that are not considered adverse in an appropriate animal
bioassay test. These experimental no-observed-adverse-effect-levels
(NOAELs) or no-observed-effect-levels (NOELs) are considered to be an
estimate of the animal population's physiological threshold for adverse
effects. The RfD or RfC is derived by dividing the NOAEL or other
toxicity benchmark by suitable uncertainty and modifying factors. In
the event that an appropriate NOAEL or NOEL is not available, the
lowest-observed-adverse-effect level (LOAEL) may be used with
additional uncertainty factors.
It is important to note that the contributions of the constituent
from various sources in the environment (e.g., air, food, water) are
not considered in the development of an RfD or RfC. Rather, the RfD or
RfC reflects the estimated total permissible daily human exposure from
all sources of exposure. RfDs and RfCs have been calculated for many,
but not all, of the non-carcinogenic constituents for which the Agency
is establishing exit criteria.
The Agency prefers to use only RfDs and RfCs that have been
evaluated and verified by the RfD/RfC Workgroup as the basis for
setting regulatory levels. However, for some constituents, the Agency
has not yet completed its verification process; thus, RfDs and RfCs
under development are being used for purposes of this proposal for
those constituents. If the final verified RfDs and RfCs differ from the
RfDs and RfCs under development proposed in today's notice, the Agency
will adopt the new (i.e., verified) values for the final rule after
noticing the data in the Federal Register.
b. Carcinogens
The Agency proposes to use the oral cancer slope factor and
inhalation cancer unit risk as the basis for developing exit levels for
carcinogenic constituents unless the non-carcinogenic effects occur at
lower levels. EPA's CRAVE Workgroup and Office of Research and
Development have estimated the carcinogenic slope factor (CSF) (i.e.,
the slope of the ``dose-response'' curve) and inhalation unit risks for
humans exposed to low-dose levels of carcinogens in the environment.
The slope factors indicate the upper-bound confidence limit estimate of
excess cancer risk for individuals experiencing a given exposure over a
70-year lifetime. In practice, a given dose multiplied by the slope
factor gives an upper estimate of the lifetime risk to an individual of
developing cancer. By specifying a level of lifetime risk (no matter
how small), one can also estimate the corresponding dose using the
slope factor.
EPA proposes to quantify on a weight-of-evidence basis, as
described below. EPA promulgated ``Guidelines for Carcinogen Risk
Assessment'' on September 24, 1986 (51 FR 33992), which defined a
scheme to characterize substances based on experimental data and the
kinds of responses induced by a suspect carcinogen. These guidelines
specify the following five classifications:
Group A--Human carcinogen (sufficient evidence from epidemiologic
studies)
Group B--Probable human carcinogen
Group B1--Limited evidence of carcinogenicity in humans
Group B2--A combination of sufficient evidence in animals and
inadequate or no evidence in humans
Group C--Possible human carcinogen (limited evidence of carcinogenicity
in the absence of human data)
Group D--Not classifiable as to human carcinogenicity (inadequate human
and animal evidence of carcinogenicity or no data available)
Group E--Evidence of non-carcinogenicity for humans (no evidence of
carcinogenicity in at least two adequate animal tests in different
species or in both adequate epidemiologic and animal studies).
The weight-of-evidence basis was used to eliminate Group D and E
constituents from further consideration as carcinogens.
[[Page 66353]]
Under each of the regulatory options presented in today's proposal,
the Agency is using the same risk level for Groups A, B, and C
carcinogens. This approach is consistent with the way carcinogens were
treated in the 1990 Toxicity Characteristic rule, hazardous waste
listing determinations, and the delisting program. The rationale for
this approach is that while the classifications indicate the type
(human or animal) and strength of the studies available which reflects
upon the uncertainty about the carcinogenic potential, the severity of
the effect, cancer, warrants equal treatment. It is important to note
that a few Group C carcinogens do not have slope factors or unit risks.
In these cases the Agency used the benchmark developed for the non-
cancer endpoint.
c. Consideration of MCLs
The Agency is proposing two approaches for setting human health-
based levels for carcinogens and non-carcinogens in routes of exposure
involving water ingestion. For the first approach, the Agency is
proposing to use Maximum Contaminant Levels (MCLs) promulgated under
the Safe Drinking Water Act (SDWA) of 1974, as amended in 1986, as the
human health-based levels for the constituents for which they have been
established. In general, MCLs for non-carcinogens are derived from the
Reference Doses (RfDs), while MCLs for most carcinogens are set as
close to zero as technically and economically feasible; this normally
corresponds to risk levels that range from 10-4 to 10-6.
(Note that, although the derivation of MCLs considers feasibility of
treatment, analytic chemistry, and cost factors in addition to health
effects, it also considers other routes of exposure. The Agency's
policy has been to use MCLs, when available, in other similar
concentration-based programs.) For those constituents which do not yet
have MCLs, the Agency is proposing to use oral reference doses (RfDs)
for non-carcinogens and oral slope factors for carcinogens as described
above. However, if new MCLs are finalized under the SDWA prior to the
promulgation of today's rule, the Agency proposes to substitute the new
MCLs for the RfDs and slope factor-derived human health-based levels
for water ingestion presented in today's notice.
For the second approach, the Agency intends to propose to use only
RfDs and slope factors in deriving human health-based levels for water
ingestion. The Agency requests comment on these two approaches.
2. Ecological Benchmarks
Ecological benchmarks were developed for a variety of ecological
receptors based on the availability of data. Benchmarks were needed for
mammals, birds, plants, soil fauna, fish, aquatic invertebrates,
aquatic plants, and benthos (sediment-dwelling organisms). A much
smaller number of constituents have been evaluated by the Agency for
ecological effects than have been for human health effects, as
discussed under V.A. In general, measurement endpoints were selected:
(1) For consistency with the Agency's Framework for Ecological Risk
Assessment (U.S. EPA 1992x), the Great Lakes Initiative, and other
ecological efforts within the Agency, and (2) relevance to the
ecological receptor. As discussed in ``Section D--Risk Assessment'' the
ecological assessment focussed on inferring the sustainability of
populations and communities within ecosystems. Therefore, benchmarks
were derived from measurement endpoints (i.e., reproductive,
developmental, growth, survival, and mortality) from which such
inferences could be made. Reproductive studies (e.g., number of viable
young per female) were preferred over other endpoints. For some
constituents, acute or mortality studies were used, however, this
occurred only for developing benchmarks for fish, aquatic
invertebrates, and benthos where protocol exists (AWQC development) for
using such data. The Agency seeks comment on the measurement endpoints
selected for each ecological receptor.
The toxicological benchmarks were established using the more
conservative no effects level (or concentration) approach for
ecological receptors as compared to a 20% effects level. The 20%
effects level is the lowest level for ecological effects that can be
detected in field population analyses (Suter et al., 1992). Although
the 20% effects level may indeed be the lower limit that could be
reliably confirmed in field studies, this level reflects our current
analytical abilities and not necessarily the ecological significance of
the effects level. The no effects approach was taken because the
ecological analysis infers the sustainability of various populations
under the assumption that if a sufficient number of populations within
an ecosystem is protected, then the likelihood of adverse effects that
are causally related to the chemical stressor will be reduced at the
ecosystem level. The Agency was concerned that if an effects approach
was taken, then the assumption underlying the ecological analysis would
no longer be valid. The Agency seeks comment on the approach taken for
setting toxicological benchmarks.
Given the number and variety of ecological receptors included in
the analysis (predatory birds to soil fauna) as well as the variety of
effects and endpoints considered, the benchmark development process
required an approach that was internally consistent and acknowledged,
at least qualitatively, the uncertainty involved in estimating
ecological benchmarks. The Agency, therefore, developed a benchmark
classification scheme to incorporate both the relationship of the
benchmark to the entire toxicity data set and the adequacy of the
database used to derive the benchmark. Three classifications were
established: Adequate, provisional, and interim. These classifications
were developed on a receptor group-specific basis (i.e., fish and
aquatic invertebrates, benthos, mammals, birds, soil fauna, and
terrestrial plants) and represent a weight-of-evidence designation for
the toxicological benchmark. In many respects, this classification
scheme is similar in meaning to the human carcinogen weight-of-evidence
groups and the difference between ``verified'' values on IRIS and
``unverified'' values in HEAST. The classifications relate to the
certainty assigned to a given ecological benchmark. The benchmarks were
treated the same in the analysis regardless of classification. See
Section 4 in the ``Technical Support Document for the Hazardous Waste
Identification Rule: Risk Assessment for Human and Ecological
Receptors'' for details on each classification and how they were used
for each ecological receptor group. The Agency seeks comment on the
classification developed for the analysis.
Below is a discussion of how benchmarks were developed for each of
the receptor groups. For a detailed discussion of each of their
developments, see Section 4, ``Benchmarks,'' and Appendix B,
``Toxicological Profiles for Ecological Receptors,'' of the ``Technical
Support Document for the Hazardous Waste Identification Rule: Risk
Assessment for Human and Ecological Receptors.'' The Agency seeks
comment on the overall development of each of the ecological benchmarks
generated for this proposed rule.
For populations of birds and mammals, the overall approach used to
establish toxicological benchmarks was similar to the methods used to
establish RfDs for humans as described in IRIS. Each method uses a
hierarchy for the selection of toxicity data (e.g., no effects
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levels are generally preferred to lowest effects levels) and
extrapolates from a toxicity benchmark for the test species to a
toxicity benchmark for the desired species. However, the procedures
used to develop benchmarks (i.e., RfDs) for the protection for human
health establish an acceptable daily dose for all individuals
(including sensitive sub-populations) while the development of
ecological benchmarks for this analysis establish a level that will
sustain the reproductive fitness in a local population. Consequently,
benchmarks for birds and mammals were established using three key
guidelines. First, because the reproducing population was selected as
the assessment endpoint, the benchmarks were d
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
eveloped from measures of
reproductive success or, if unavailable, other effects that could
conceivably impair the maintenance of the population.
Second, the taxon of the test species was matched to the taxon of
the wildlife species to the greatest extent possible. The evolutionary
processes that result in obvious differences in taxa (e.g., morphology)
also result in differences in the physiological processes that govern
chemical response. Moreover, taxonomic similarities are generally
associated with similarities in feeding habits, physiology, and
chemical sensitivity at the family classification and, to a lesser
extent, the order classification. For example, herbivores are generally
more resistant to toxicants than predators because they are exposed to
plant toxins, and the enzymatic system that detoxifies plant toxins
also detoxifies pesticides and other organic chemicals.
Third, a default safety factor of 10 was adopted only for
extrapolating from an lowest-observed-effects level (LOEL) to a no-
effects level (NOEL). A ten-fold safety factor was not applied to sub-
chronic studies since reproductive and developmental toxicity studies
are frequently short-term. Even among target organ toxicity studies,
there are many instances where sub-chronic studies are actually more
sensitive than chronic studies carried out on the same substance. Also,
for mammals and birds, differences in interspecies uncertainty were
indirectly addressed through the use of the species-scaling equation
described in Section 4 of the ``Technical Support Document for the
Hazardous Waste Identification Rule: Risk Assessment for Human and
Ecological Receptors.'' The Agency requests comment on the use a safety
factor of 10 when extrapolating from a LOEL to a NOEL. The Agency also
requests comment on the use of a scaling approach to address
interspecies uncertainty as described above. Furthermore, the Agency
seeks comment on the inability of the Risk Assessment to evaluate the
inhalation and dermal routes of exposure for birds and mammals.
For the terrestrial plants, the approach used to establish
toxicological benchmarks was adapted from the Effects Range Low (ER-L)
approach developed by the National Oceanographic and Atmospheric
Administration (NOAA). The NOAA ER-L approach estimates a percentile of
the distribution of various toxic effects thresholds. The measurement
endpoints were generally limited to growth and yield parameters because
(1) they are the most common class of response reported in
phytotoxicity studies and, therefore, will allow for benchmark
calculations for a large number of constituents, and (2) they are
ecologically significant responses both in terms of plant populations
and, by extension, the ability of producers to support higher trophic
levels. It should be noted that these benchmarks were limited to soil
concentrations and do not explicitly consider the adverse impacts on
plants from ambient contaminant concentrations in the air. Further
details can be found in section 4.3.3 of the ``Technical Support
Document for the Hazardous Waste Identification Rule: Risk Assessment
for Human and Ecological Receptors.'' The Agency solicits comment on
the overall approach taken to develop benchmarks for the terrestrial
plant community.
For the soil fauna, the toxicological benchmarks were established
based on methods developed by the Dutch National Institute of Public
Health and Environmental Protection (RIVM). The RIVM approach estimates
a confidence interval containing the concentration at which the no
observed effects concentration (NOEC) for p percent (95th percentile
was selected) of the species within the community is not exceeded 50%
of the time. A minimum data set was established in which key structural
and functional components of the soil community (e.g., decomposer and
grazing organisms) encompassing different sizes of organisms (i.e.,
microfauna, mesofauna, macrofauna) were represented. As with the
Ambient Water Quality Criteria, measurement endpoints included
reproductive effects as well as measures of growth, survival,
mortality. The Agency requests comment on the use of the RIVM
methodology, and protecting 95 percent of the community 50 percent of
the time. The Agency also requests comment on its inability to fully
quantify the effect of soil characteristics on toxicity of constituents
to soil organisms.
For populations of fish and aquatic invertebrates (represented by
daphnids), a hierarchical approach was taken for use of data sources in
deriving benchmarks. The first choice was final chronic values (FCVs)
from the Sediment Quality Criteria effort by the EPA Office of Water,
followed by values from the Great Lakes Initiative (GLI) effort, and
finally, the Ambient Water Quality Criteria (AWQC). If these benchmarks
were not available, then a benchmark was developed using AWQC
procedures or, if data were inadequate, the GLI Tier II procedures for
establishing chronic values (termed secondary chronic values--SCVs).
The AWQC ranked third since many years have passed since their
establishment and the SQC and GLI efforts re-evaluated the toxicity
data sets of several of these. The Agency solicits comment on the
hierarchical approach described above for deriving toxicity benchmarks.
For aquatic plants, the approach used to establish toxicological
benchmarks was adapted from the ER-L approach developed by NOAA. The
NOAA ER-L approach estimates a percentile of the distribution of
various toxic effects thresholds. However, due to the general lack of
toxicity data, the default ER-L approach was used wherein the lowest
LOEC for either vascular plants or algae was used. The Agency solicits
comment on the overall approach taken to develop benchmarks for aquatic
plants.
For the sediment organisms, the approach used to establish
toxicological benchmarks for non-ionic, hydrophobic organic chemicals
was based on sediment quality criteria methods for non-ionic
constituents. Two key assumptions form the basis for the proposed
sediment quality criteria. First, benthic species, defined as either
epibenthic or infaunal species, have a similar toxicological
sensitivity as water column species. As a result, FCVs (or SCVs)
developed for the fish and aquatic invertebrates can be used for the
benthic community. Second, pore water and sediment carbon are assumed
to be in equilibrium and the concentrations are related by a partition
coefficient, Koc. This assumption, described as equilibrium
partitioning (EqP), provides the rationale for the equality of water-
only and sediment-exposure-effects concentrations on a pore water
basis: The sediment-pore water equilibrium system results in the same
effects as a water-only exposure. The Agency requests comment on the
use of this approach in support of today's proposal. In some cases,
protecting these
[[Page 66355]]
ecological receptors represents the critical pathway that limits the
projected exit level for management of a waste stream outside of the
Subtitle C hazardous waste program. These ecological receptors serve as
the basis for the proposed exit levels for 18 constituents, including 6
metals. To the extent that contaminants from these waste streams reach
off site areas, the Agency based its proposal on modeling the
ecological receptors on a neighboring land area of 500 acres or an
adjacent stream (with a total length of 12 miles). This approach as
currently modeled, may only serve as an indicator of a potential nearby
threat to ecological receptors (e.g., the soil fauna and plant life),
rather than serving as a measure or indicator of a broader threat to
the environment. The Agency solicits comment on the appropriateness and
relevance of these receptors as the basis for exit levels under the
HWIR program.
3. Sources of Data
a. Human
The two primary sources used to identify human health benchmarks
were the Integrated Risk Information System (IRIS) and the Health
Effects Assessment Summary Tables (HEAST). Both of these sources were
developed and are maintained by the USEPA. For a few constituents,
other Agency sources such as Carcinogen Assessment Group (CAG)
profiles, Health Effect Assessments (HEAs), and Health Assessment
Documents (HADs) were used to fill data gaps.
IRIS is the Agency's official repository of Agency-wide consensus
chronic human health risk information. IRIS evaluation are conducted by
the Agency's Work Group review process that leads to internal Agency
scientific consensus regarding risk assessment information on a
chemical. This information is recorded on IRIS and is considered to be
``Work Group Verified.''
The HEAST is prepared by EPA's Office of Research and Development.
They contain risk assessment information on chemicals that have
undergone a more limited review and have the concurrence of individual
Agency program offices; each is supported by an Agency reference. The
information has not, however, had enough review to be recognized as
Agency-wide consensus information.
b. Ecological
A thorough literature review was conducted to identify
toxicological data from laboratory and field studies for each of the
constituents of ecological concern. The review included secondary
sources such as the Synoptic Review Series published by the U.S. Fish
and Wildlife Service, the Ambient Water Quality Criteria documents, and
other Federal compendia of toxicity data (e.g. HEAs, the Derivation of
Proposed Human Health and Wildlife Bioaccumulation Factors for the
Great Lakes Initiative, Agency for Toxic Substances and Disease
Registry documents, PHYTOTOX, GRIN, TERRETOX, and AQUIRE). Toxicity
data on soil organisms were obtained for several constituents from van
de Meent et al. (1990). In addition to AQUIRE, the other primary data
source for toxicity data on aquatic plants were the Toxicological
Benchmarks for Screening Potential Contaminants of Concern for Effects
on Aquatic Biota:1994 Revision (Suter and Mabrey, 1994). On-line
literature searches were conducted to identify primary sources of
toxicity data on constituents lacking sufficient data in the secondary
sources. Additional studies were identified in conventional literature
reviews.
E. Risk Assessment
1. The Non-groundwater Risk Assessment
a. Introduction
The risk assessment underlying today's proposed rule is based upon
a comprehensive approach to evaluating the movement of many different
waste constituents from their waste management units, through different
routes of exposure or pathways, to the points where human and
ecological receptors are potentially exposed to these constituents.
This risk assessment is being used in today's proposed rule to
determine which listed hazardous wastes can be defined as ``low-risk''
wastes, able to exit the Subtitle C system and be managed in non-
Subtitle C units. The previous approach taken in the May 20, 1992,
proposed HWIR rule also addressed the risks associated with the
management of wastes containing hazardous constituents with very
diverse physical and chemical properties; however, only groundwater
ingestion exposures from landfill units were evaluated. That approach
led to a concern by the Agency, as well as commenters on the proposed
rule, that leachate from landfills contaminating groundwater and
subsequent consumption of the contaminated groundwater by humans may
not be the only exposure pathway important to evaluate. Although the
ingestion of contaminated groundwater pathway may be appropriate to
propose exit levels for some wastes and constituents, it may be under-
protective for others, depending on the physical and chemical
properties of each waste constituent. (For example, some constituents
have a high potential to bioaccumulate or bioconcentrate in living
organisms. Pathways in which these constituents come in contact with
fish, grazing livestock, wildlife, or edible plants would be important
to evaluate.) In addition, over the past 14 years of implementing the
RCRA program, the Agency has learned more about potential routes of
release to the environment from various management practices.
Therefore, for today's proposal the Agency undertook an extensive
risk assessment that examines numerous exposure pathways, rather than
just the groundwater ingestion pathway. In selecting the exposure
pathways, previous rulemakings were used as a guide, as well as other
special studies by the Agency that implement analyses examining
numerous pathways. (Tables A-1 and A-2 contain the human and ecological
pathways, respectively, evaluated in the assessment, and are presented
in appendix A to today's preamble.) With regard to waste management
units considered in the assessment, it is important to note that
because today's proposal establishes criteria for waste to exit the
Subtitle C system, the assessment evaluated exposures associated with
managing wastes in non-Subtitle C units. The human and ecological
receptors considered in the assessment were selected to represent a
range of behaviors, activities, dietary habits, and trophic levels that
influence exposure levels.
The risk assessment supporting this proposal is currently
undergoing review by the Science Advisory Board and EPA's Office of
Research and Development. As a result of these reviews, and of comments
received during the public comment period, it is likely that EPA would
make changes to the risk assessment or other parts of the rule. Topics
on which the Agency has received informal comment include the use of
ecological benchmarks for regulation and the overland transport of
waste constituents. The Agency, to the extent consistent with the
schedule negotiated in the consent decree for this rulemaking, would
publish a supplemental notice proposing any significant changes before
finalizing the rule.
b. How the Assessment is Structured
The non-groundwater assessment acknowledges that not all human and
ecological pathways arise from each
[[Page 66356]]
source; for example, movement of particles from an active surface
impoundment is not expected to occur. To account for this, the
assessment matched the environmental transport pathways with both the
releases from various types of waste management units and the various
receptors for the nearly 200 constituents examined. All constituents
were assessed in all pathways deemed plausible for a given waste
management unit, if the data permitted. Tables A-3, A-4, and A-5 of
appendix A show the pathways assessed for each waste management unit,
human receptors assessed for each pathway, and ecological receptors
assessed for each pathway, respectively. The assessment estimated the
constituent-specific concentrations in a waste at the management unit
that could be expected to result in an acceptable exposure for a human
or ecological receptor (determined through using the toxicity
benchmarks discussed in section V.B.), taking into account the various
pathways by which the constituent may move through the environment from
the waste management unit to the receptor.
The waste management units considered in the assessment are not
all-inclusive but were selected to reflect those that might be commonly
associated with the management of exited hazardous wastes (from
wastewaters to nonwastewaters) in non-Subtitle C waste management
units. These units were identified as commonly used in the management
of solid wastes in the 1988 Report to Congress entitled Solid Waste
Disposal in the United States Report. The Agency believes that risks
posed by other types of management of these exited wastes will be no
greater than those from the units assessed.
There is a high degree of variability in the physical and chemical
properties of the approximately 200 constituents evaluated. An
understanding of those properties and how they interact with the
physical and chemical properties that control persistence and mobility
in the environment is an essential element of the assessment. The
management units could potentially be located in the range of
environments that exist across the United States. These environments
have differing characteristics (e.g., meteorological conditions, soil
type) that are more conducive for the movement of certain constituents
in certain pathways than others. For example, an environment with a
high precipitation and high organic soil content may result in
significant exposures to fishers by constituents that readily adsorb to
soils (i.e., have a high log Kow) through erosion of contaminated
soil and uptake in the food chain. For other pathways, however, an
environment with these characteristics may result in relatively low
exposures. The assessment was designed to determine what conditions
would need to exist to cause higher exposures for each pathway rather
than developing a scenario and determining all the types of exposures
and receptors for that scenario. By determining the appropriate
conditions for which higher exposures from a given pathway will occur,
the Agency believes that environments where the conditions are not as
likely for a constituent to move through a pathway are protected.
The assessment was structured using a deterministic approach. A
deterministic approach uses a single, point estimate of the value of
each input or parameter and calculates a single result based on those
point estimates. The assessment used the best data available to select
typical (i.e., approximately 50th percentile) and high-end (i.e.,
approximately 90th percentile) values for each parameter or parameter
group as discussed in Section E.2. below. Sometimes full distributions
were available but, more commonly, ranges of values or point values
were available with no description of distributions or variability. If
there was not a sufficient distribution for the parameter, best
professional judgement was used in determining typical and high-end
values (which sometimes would be the maximum).
The assessment is constructed as a set of calculations that begin
with an acceptable exposure level for a constituent at a receptor, and
back-calculates to a concentration in a waste in a management unit that
corresponds to the acceptable exposure level. For the human receptors,
the assessment was designed to determine constituent concentrations in
waste for each waste management unit that would correspond to
protecting receptors at the high-end of exposure (i.e., above the 90th
percentile of each of the receptor populations and types of exposures
being assessed). The Agency estimated waste concentrations
corresponding to the high-end exposure by identifying four critical or
sensitive parameters in the source/pathway/receptor equations and using
high-end input values for those parameters and using central tendency
values for the remaining parameters. The Agency also estimated central
tendency (approximately the 50th percentile) and bounding estimates
(worst-case) of constituent concentrations in waste for each of the
receptor populations and types of exposures being assessed. For
ecological receptors, the approximate percentile level of protection is
difficult to discern. The Agency believes the ecological analysis is
conservative with respect to the overall assessment endpoint (e.g.,
sustainability of the reproducing populations) because of the way the
source, fate and transport parameters are set, the dietary habits
assumed, and how the toxicity benchmarks are developed. However, the
degree to which this conservativeness transfers to ecosystems is not
known.
The steps of the assessment which provide estimates of acceptable
constituent-specific concentrations in waste include the following:
Step 1--Specify acceptable risk levels for each constituent and
each receptor. See Section V.B. in today's preamble for a discussion of
how benchmarks are set for both human and ecological receptors.
Step 2--Specify the exposure medium. Using the toxicity benchmarks
as a starting point and the exposure equations, the assessment back-
calculates the concentration of contaminant in the medium (e.g., beef,
milk, plant, air, water, soil) that corresponds to the ``acceptable''
exposure level. The exposure equations include a quantitative
description of how a receptor comes into contact with the contaminant
and how much the receptor takes in through specific mechanisms (e.g.,
ingestion, inhalation, dermal adsorption) over some specified period of
time. Thus, for the subsistence farmer eating contaminated beef, the
exposure specifies the amount of beef eaten on a daily basis, the
period of time over which the contaminated beef is eaten, and
descriptions for the individual such as body weight and lifetime. For
this example, the concentration in the beef is what is back-calculated.
Step 3--Calculate the point of release concentration from the
exposure concentration. Based on the back-calculated concentration in
the exposure medium (from Step 2), the concentration in the medium to
which the contaminant is released to the environment (i.e., air, soil,
groundwater) for each pathway/receptor was modeled. The end result of
this calculation is a medium concentration at the point of release from
the waste management unit.
Step 4--Calculate the concentration in the waste that corresponds
to the medium concentration at the point of release. This step depends
on the characteristics (e.g., area, cover practices, waste consistency)
of the waste management unit.
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The output of the assessment is a range of constituent
concentrations, reflecting the range of pathway-receptor combinations
considered for each waste management unit. The lowest concentration
(per constituent) of this range represents the highest exposure
pathway-receptor combination for that waste management unit.
c. How Uncertainty is Addressed
Any analysis of the magnitude used in this rule-making will have
uncertainty associated with the outputs generated. The uncertainty can
be associated with the models or equations used and the data relied on
for the model parameters. In addition, policy assumptions, such as
waste management units assessed and receptors assessed, may also affect
the degree of representativeness of the assessment. In order to be
consistent with Agency policy on the characterization of risk,
stochastic and deterministic approaches were considered. A stochastic
approach, such as Monte Carlo analysis, which produces a distribution
of constituent concentrations, was initially considered due to the
tremendous interest in, and use of, these techniques in risk
assessment. However, after evaluation of the models and data available
for use, the Agency decided to use a deterministic approach for the
non-groundwater assessment.
The Agency's deterministic approach used for this assessment, like
most such approaches, uses point values in all calculations and
produced point estimates of constituent concentrations for waste in
each management unit-exposure pathway-receptor combination. However, in
selecting and developing point values for parameters, EPA considered
all available data. Wherever possible, the Agency developed both a
central-tendency and high-end value for each parameter used in the
assessment. This was not possible in all cases because some parameters
were a property, such as density of water, and because some values were
fixed by Agency-wide policy decisions. (For example, EPA used standard
Agency-wide human toxicity benchmarks and body weights.) EPA then
calculated constituent concentrations based on a mixture of central-
tendency and high-end values.
EPA believes that the deterministic approach described above (based
on identifying critical parameters and using higher-end values only for
those parameters and central-tendency values for the other parameters)
allowed it to derive constituent concentrations in waste for each waste
management unit that are reasonably protective across a range of
conditions and for a range of receptors. EPA also believes that this
approach is consistent with EPA's risk assessment policy.
EPA further believes that the approach chosen allows both the
Agency and the public to determine more easily which parameters played
the most critical roles in determining the constituent concentrations
in waste for each waste management unit. This furthers general
understanding of the assessment and helps commenters effectively target
their resources for reviewing what EPA is proposing. It has also helped
EPA target its own data collection and input selection efforts. It is
often more difficult to identify critical parameters in a stochastic
assessment because of the greater number of iterations and because
results are reported as probability distributions. This is particularly
true for an analysis with a large number of parameters such as the
assessment used for this proposed rule.
EPA notes that stochastic approaches are also consistent with
Agency risk assessment policy. In fact, EPA applied a stochastic
``Monte Carlo'' approach to the separate analysis of dilution and
attenuation of groundwater performed for this proposal. That analysis,
however, has been under development for many years and EPA is more
familiar with the underlying data and the relationships between various
parameters. In addition, the public has had a chance to comment on
aspects of that analysis in previous rule-makings. EPA was more
comfortable applying a stochastic analysis for the groundwater analysis
than a stochastic approach to the non-groundwater analysis.
EPA believes that it is not necessary to resolve all issues
relating to the relative merits of the two approaches or to determine
which approach would be ideal for each of the assessments described
above. Rather, the debate should focus on whether the approaches chosen
allowed EPA to reach reasonable regulatory decisions.
The Agency solicits comment on the use of a deterministic approach
as described above. Specifically, the Agency seeks comment on whether
the approach proposed is a reasonable approach for setting protective
levels across a set of types of management units and exposure pathways.
d. Linkage of the Non-groundwater Risk Assessment to the Groundwater
Risk Assessment
In the non-groundwater risk assessment, the pathways involving
potentially contaminated groundwater (e.g., bathing) are back-
calculated from the receptor to the wellhead (i.e., the assessment
provides constituent concentrations in the groundwater at the well). In
order to determine the concentration of a constituent in leachate
coming from a waste management unit that would result in the estimated
constituent concentration at the water well, the Agency used a separate
groundwater fate and transport risk analysis. That analysis is
described in detail in Section D.8. elsewhere in today's proposal. The
well concentrations estimated from the pathways involving bathing are
used as input to the groundwater fate and transport modeling from which
a leachate concentration is determined.
e. Risk Targets Used
As previously discussed in Section V.B. of today's proposed rule,
the Agency used existing toxicity benchmarks when available. However,
many ecological benchmarks were developed for this rule-making, as
discussed in Section V.B. of today's proposed rule. As described in
that section, the Agency used a cancer risk target of 1 x 10-6,
and a hazard quotient equal to 1 for non-carcinogens. For ecological
benchmarks, a hazard quotient equal to 1 was used. The Agency solicits
comment on the risk targets being used for today's proposed rule.
2. Detailed Overview of the Non-groundwater Risk Analysis
The assessment can be broken down into six components:
Constituents; toxicity benchmarks; receptors; exposure; fate and
transport; and waste management units. Each of these components is
discussed in turn below, except the constituents and toxicity
benchmarks which were discussed earlier in section V.A and V.B. It is
important to recognize that the assessment was not able to evaluate all
constituents in all receptor-pathway-waste management unit combinations
because of data gaps in either toxicity or chemical properties, or
inadequate methodologies. Many of these gaps have been identified in
different sections of the Technical Support Document for the Hazardous
Waste Identification Rule: Risk Assessment for Human and Ecological
Receptors'' (denoted ``Uncertainties and Issues of Concern''). The
Agency requests additional data or other information that would assist
in filling these gaps.
a. Waste Management Units
The manner in which constituents are released to environmental
media and the relative quantity released to each
[[Page 66358]]
medium will affect the pathways of most concern for a particular
constituent. The pathway presenting the highest risk to human or
ecological receptors is not always easily determined because of the
complex interactions of the waste management unit and its types of
releases, the physical and chemical properties of the constituent, and
the properties that control mobility and persistence in a particular
environmental medium. For some constituents, the management practice
will determine which exposure pathway is of most concern. For example,
benzene tends to migrate to both air and groundwater. Upon examining
the risks from exposure to these two media arising from releases from a
quiescent surface impoundment, the groundwater ingestion pathway may
pose the highest risks. But, when examining the risks from these two
media for releases from an aerated tank, the air inhalation pathway may
pose the higher risks. Further, the air inhalation risks may even be
higher than groundwater ingestion risks from the quiescent surface
impoundment.
Therefore, and as stated earlier, the selection of non-Subtitle C
waste management units examined in the assessment attempted to reflect
both the influence of the type of unit on pathways and those that might
be commonly associated with the management of exited hazardous wastes
in non-Subtitle C waste management units. Again, the Agency believes
that risks posed by other types of management of these exited wastes
will be no greater than those from the units assessed. The management
units examined include the following:
Aerated treatment tanks. Relative to all other types of
management, aerated tanks containing wastewaters can potentially have
the most significant releases of volatile organics to air.
Quiescent surface impoundments. This type of unit
containing wastewaters also can potentially result in significant
releases of volatile organic constituents to air. These units also have
a potential to affect surface water bodies if the unit is not well
maintained or constructed. The sludges generated, which may contain
high concentrations of metals and hydrophobic constituents, may impact
groundwater. (As discussed above, the groundwater fate and transport
analysis was conducted in a separate analysis.)
Land application. This type of unit, when used for non-
wastewaters can potentially have significant releases of certain
constituents to nearby land and surface water bodies through erosion
and runoff, particularly if run-on and run-off control measures are not
practiced. In addition, significant releases of volatile organics
constituents to air are possible. Further, after the unit is closed,
significant on-site exposures to some persistent and relatively
immobile constituents may occur as well as continued long-term releases
to the nearby land and surface water bodies. The Agency believes such
units will pose higher exposures relative to landfills in all pathways
except those arising from groundwater. Therefore, the non-groundwater
assessment did not examine landfills, but they were examined in the
groundwater fate and transport analysis.
Ash monofill. This type of unit used for ash disposal can
potentially have significant releases of particulates to air which may
be inhaled or may deposit on land and plants, and result in exposure
through food and soil ingestion.
Wastepiles. This type of unit used for nonwastewaters can
have significant releases of particulates to air as well as significant
releases of particulates through erosion and runoff.
Each of the pathways that evaluates a receptor using contaminated
groundwater other than as a source of drinking water (i.e., bathing)
are back-calculated to a concentration in a drinking water well. The
pathways are applicable to all of the waste management units modeled
(except tanks). All of the waste management unit and chemical-specific
portions of the groundwater fate and transport analysis and subsequent
estimated leachate concentrations are contained in the Agency's
separate groundwater fate and transport analysis (see Section E.3
below).
One exception to the above discussion of the types of waste
management units evaluated involves the combustion of wastes. Although
the Agency attempted to include this type of management in the
assessment, it became clear that the emissions from combustion are not
easily predicted from the waste inputs to the units. The combustion
process both destroys and creates constituents. Although destruction of
constituents can be predicted based on certain operating
characteristics of combustion units, the creation of other
constituents, referred to as products of incomplete combustion (PICs),
is not easy to predict. It may be possible to make such predictions for
a specific waste and a specific combustion unit; however, the extensive
data (e.g., on the variety of combustion units, waste types,
constituent combinations) needed for the assessment used in this
rulemaking relating wastes with emissions are not available. Therefore,
acceptable constituent levels in waste going to a combustion unit could
not be established. However, the Agency is developing emission
standards for various types of combustion units and those emission
standards may be a more appropriate vehicle for addressing combustion.
In addition, the assessment does not address accidental or
catastrophic releases, such as transportation accidents or tank
failures. The Agency determined that, although such releases are
possible, they are of low probability and non-routine and, therefore,
are not appropriate for developing exit criteria that apply to all
wastes.
The Agency has identified several specific areas giving rise to
uncertainty in the characterization of the waste management units and
for which the Agency seeks comment:
(1) Use of Subtitle D Survey.
The Agency relied upon data from a 1987 survey of Subtitle
D facilities to characterize waste management units. That survey, used
in the 1988 Report to Congress on Solid Waste Disposal in the United
States, was designed primarily to collect estimates of the following
parameters:
Number of establishments that manage Subtitle D wastes on
site;
Number of establishments that manage Subtitle D wastes on
site in land application units, wastepiles, surface impoundments, or
landfills;
Number of land application units, wastepiles, surface
impoundments, or landfills used to manage Subtitle D wastes;
Amount of Subtitle D wastes managed on site in land
application units, wastepiles, surface impoundments, or landfills.
In addition to these parameters, data were also collected for some
other parameters, such as the area of the waste management units.
Although the survey was not designed to collect accurate estimates for
these other parameters, it is the most comprehensive date available to
characterize these other parameters. One difficulty encountered in
using these data is that the survey requested information on total area
or waste quantity for all of each type of units at a facility. The
total area or waste quantity was divided by the number of each type of
unit at the facility (number of each unit being one of the primary
parameters the survey was designed to estimate) to estimate average
unit area. Further, it is not certain how well the on-site units (which
are used routinely for wastes generated on-site) reflect the
characteristics of off-site units. Uncertainty related to the
[[Page 66359]]
representativeness of the data is important because exited wastes could
be managed in units off-site as well as on-site. The Agency seeks
comment on the use of the Subtitle D survey to characterize the waste
management units.
In evaluating the waste management unit components of the risk
assessment, the Agency made certain assumptions when data were not
available or were incomplete. A description of the waste management
unit parameters for which there was little to no data is described
below. The rationale behind these assumptions is presented (e.g.,
results of any sensitivity analyses, references to other work, etc.).
The Agency requests comment on the specific issues raised for each
management unit.
(2) Fate and Transport
Fate processes, particularly biodegradation and hydrolysis, were
accounted for only in the land application unit since that unit had
wastes applied intermittently and that unit was being examined for on-
site risks after closure (assuming human occupation of the site begins
10 years after closure occurs). Because waste is continuously applied
to the other waste management units, biodegradation and hydrolysis were
presumed to have minimal influence on the subsequent availability of
constituents to the above ground pathways. The Agency requests comment
on not considering biodegradation and hydrolysis in waste management
units other than the land application unit. The Agency also requests
comment on the appropriateness of the data and methods used to account
for the fate and transport of constituents in waste management units,
with particular emphasis on data and methods of determining
biodegradation and hydrolysis of constituents in land application
units.
(3) Ash Monofill
(i) Particle Size Distribution for Air Dispersion Modeling
A size distribution of ash particles that become airborne from an
ash monofill was not available. Therefore, a sensitivity analysis was
performed to assess the importance of the particle size distribution in
the calculation of air concentrations and deposition rates. Different
distributions were modeled reflecting a variety of assumptions for
particle size distributions between PM10 and PM30 classes. The greatest
deviation among the modeled conditions in the estimated air
concentration of PM10 was 12 percent; for the estimated deposition rate
for PM30 the greatest deviation was 59 percent. Given the uncertainties
and variabilities inherent in the assessment, these variations were
considered minor, therefore, the Agency assumed an equal distribution
of particle sizes between the two size classes used in the assessment.
(ii) Monofill Characterization
Because limited data were available to characterize hazardous waste
ash monofills, data from municipal waste ash monofills were used.
However, because ash generation rates for municipal waste incinerators
ere more than 100 times greater than ash generation rates for hazardous
waste incinerators and reuse-as-fuel combustors resulting in
significantly larger municipal monofills, EPA calculated an ash
monofill volume for this analysis based on generation rates reported in
the 1988 National Survey of Hazardous Waste Treatment, Storage,
Disposal, and Recycling Facilities, assumed bulk density of the ash,
and assumed lifetime of the monofill. The Agency is not certain that
hazardous waste monofills should be sized in the same manner as
municipal waste monofills. The Agency also assumed that each waste
monofill would accept ash from only a single combustor. Accepting
wastes from more than one combustor may underestimate monofill size.
(iii) Vehicle Traffic
The estimates of number of ash trucks per day are dependent on the
size of truck. Limited data were available on the sizes of trucks
hauling ash. These data were used to characterize a range of truck
sizes. The truck sizes may either under- or overestimate the size of
trucks actually used at hazardous waste ash monofills depending on the
representativeness of municipal waste ash truck sizes.
No data were available on other vehicular traffic; therefore, these
values were estimated, introducing additional uncertainty into the
overall amount of traffic at the ash monofill.
(iv) Emission Equations for Ash Blown From Trucks and During Spreading
and Compacting
The emission equation used for ash blown from trucks was developed
for windblown emissions from storage piles. This was adapted to trucks
by using the truck speed to estimate frequency of wind greater than 5.4
m/s. Because this equation was not derived for windblown emissions from
moving trucks, the results of its application to such emissions are
uncertain. It may over- or underestimate actual emissions of
particulates blown from trucks.
Similarly, the emission equation used for spreading and compacting
was developed for agricultural tilling. Agricultural tilling was
thought to approximate the process of spreading and compacting;
however, the use of this equation may under- or overestimate emissions
due to spreading and compacting.
(4) Land Application Unit
(i) Particle Size Distribution for Air Dispersion Modeling
A size distribution of soil particles that become airborne was not
available. The same assumption was made for soil particles as was done
for ash particles when modelling the monofill (see above). As described
above for ash particles, the Agency assumed an equal distribution of
particle sizes between the two size classes.
(ii) Area of Land Application Unit Relative to Agricultural Field
The assessment examined the impact of subsistence farming on the
land application unit beginning 10 years after closure. Based on the
distribution of sizes for land application units and agricultural
fields, the Agency selected a combination of fields such that the
central tendency land application unit (61,000 m2) is smaller in
area than the central tendency agricultural field (2,000,000 m2).
The significantly larger size of the agricultural field suggests that
the model may inappropriately average the constituent concentration
over the agricultural field. However, the Agency does not believe this
to be a significant impact on the analysis because: (1) The area of the
agricultural field is not an explicit input to the model; (2) the size
of the land application unit is large enough to support a subsistence
farmer; and (3) this pathway is driven by the assumptions for the high-
end analysis. The Agency requests comment on the relationship between
the land application unit and the agricultural field.
(iii) Application Rate
The waste application rate is an important parameter in determining
the constituent's soil concentration after application. In practice,
this rate is a function of the characteristics of the waste being
applied, the characteristics of the receiving soil, the environmental
conditions, and the purposes for which the waste is being applied.
Information from the Subtitle D survey was used to calculate the rates,
since those rates
[[Page 66360]]
were not expressly requested in the survey. The rates were calculated
from the area receiving the wastes and the waste quantity applied. This
introduces uncertainty for it combines rates applicable to both
treatment of wastes and rates for specific uses (e.g., farming, mine
reclamation). To account for the potential of having application rates
be much too high for the site they are being applied to, the data on
receiving area and waste quantity applied were linked.
(iv) Waste Characteristics
Limited data were available on the characteristics of wastes being
land applied. As a result, soil values for most parameters (e.g.,
hydraulic conductivity, moisture retention index) were used to
characterize nonwastewaters. It is not known to what extent these soil
values differ from the waste properties.
(v) Depth of Contamination
Depth of contamination affects the amount of constituent available
for exposure. For the non-groundwater pathways, only constituents at
the soil surface were assumed available for each exposure pathway. The
Agency selected tilling depth as the depth of contamination available
to the non-groundwater pathways as over time, the depth of the waste
layer would increase and a portion of the mass of waste would move out
of the zone available for the surface pathways. The model kept the
depth of contaminated soil constant that was available for the surface
pathways. The Agency recognizes that the use of the tilling depth may
underestimate the depth of contamination in some cases and overestimate
it in others. Thus, the Agency requests comment on the use of tilling
depth as a surrogate for depth of contamination.
(vi) Partitioning
Releases from the land application unit were partitioned among
volatilization, evaporative losses, hydrolysis, erosion, runoff, and
leaching. Periodic application of waste was factored into the
partitioning model during the active life of the unit. Biodegradation
was factored in during both the active life and closed period. The
finite source Jury model was used to estimate volatilization emissions.
The Jury model, which models the convection of constituents caused by
the flux of water in soil, was used for evaporative losses. Runoff and
leaching losses were calculated using the soil-water partition
coefficient (Kd) to determine constituent concentration in the
soil water and multiplying that by the land application unit area and
runoff rate for run-off losses or recharge rate for leaching losses.
(See Technical Support Document for the Hazardous Waste Identification
Rule: Risk Assessment for Human and Ecological Receptors, Section 7,
Land Application for full description.)
(5) Waste Pile
(i) Waste Pile Height
No data were available on this parameter; therefore, the value is
an estimate based on heights attainable by a front-end loader. This
parameter is important in the air dispersion modeling, which is
sensitive to the height of the pile. The Agency requests suggestions
for alternatives to determining waste pile height and any data which
would support those determinations.
(ii) Particle Size Distribution for Air Dispersion Modeling
The same sensitivity analysis and assumptions discussed above for
ash monofills were used for waste piles. Given that the air dispersion
analysis is not very sensitive to particle size distribution, the
simple assumption described above was believed to be an adequate
approximation for the assessment.
(iii) Waste Characteristics
Limited data were available on the characteristics of wastes in
waste piles. As a result, soil values for most parameters (e.g.,
hydraulic conductivity, moisture retention index) were used to
characterize the nonwastewaters disposed in piles. It is not known to
what extent these soil values differ from the waste properties. The
soil values, however, were not used for the ash waste pile. The ash
disposed in the piles had the same properties as that disposed of in a
monofill.
(iv) Vehicle Traffic
The estimates of number of trucks per day are dependent on the size
of truck and waste quantity. Limited data were available on truck
sizes. These data were used to characterize a range of truck sizes.
These truck sizes may either under- or overestimate the size of trucks
actually used around waste piles.
(v) Emission Equation for Ash Blown from Trucks
As described in the section above on ash monofills, the emission
equation used for ash blown from trucks was developed for windblown
emissions from waste piles. It may over- or underestimate actual
emissions of particulates blown from trucks.
(6) Surface Impoundment
(i) Two-Phase Sludge Formation Model
The two-phase sludge formation model simplifies the solids
concentration gradient in a surface impoundment into two distinct and
homogeneous layers, a liquid layer with the same average solids content
as the inflow and a sediment or sludge layer with a much higher solids
concentration.
(ii) Dilution of Waste During a Spill
Overflows or breaches associated with surface impoundments are a
waste release examined in the assessment. The algorithm used for spills
does not account for dilution of the wastewater caused by excess run-
on. Such run-on is presumably relatively uncontaminated; thus the spill
volume, consisting partly of contaminated wastewater from the
impoundment and partly of uncontaminated run-on would have a lower
concentration than the wastewater in the impoundment. By using the
concentration in the impoundment, the mass of contaminant released to
surface water is overestimated. This effect could be considerable for
the central tendency impoundment, as the quantity of run-on is
significant compared to the capacity of the central tendency
impoundment. However, to determine the extent of such dilution, the
degree to which such run-on becomes mixed with the wastewater would
need to be estimated. No model has been found to assist in this
estimation.
(7) Tank
(i) Unit characterization
Limited data were available on Subtitle D tanks. The assessment
used the profiles (specifies design and operating parameters) for
uncovered aerated treatment tanks developed in the Hazardous Waste
TSDF--Background Information for Proposed RCRA Air Emission Standards
(TSDF--BID, U.S. EPA, 1991)
(ii) Volatilization
The Agency used the well-mixed flow model. This model assumes that
the contents of the system are well mixed and that the equilibrium
concentration in the system is equal to the effluent concentration. The
equilibrium concentration is the average concentration throughout the
unit and the driving force for volatile emissions.
(8) Combustors
For the reasons stated below, EPA did not modelled a combustion
unit in the risk analysis for this regulation. EPA,
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however, asks for comments on that decision.
In initial analyses (see Multipathway Analysis Background Document
available through the docket), EPA modeled potential risks from several
types of combustion units, using engineering judgment to make a best
estimate for destruction and removal efficiencies for non-hazardous
waste combustors. Early comments suggested that the assumptions might
have overstated or understated the estimated risks by not reflecting
actual practice in industrial boilers or other likely combustion
facilities not regulated by Subtitle C. However, initial comparisons
indicated that the combustion risk estimates back-calculated to the
combustion unit were not often the most significant risk and,
therefore, would not be the basis for the limiting exit criteria.
EPA also recognized that there are many issues related to organics
that are produced during the combustion process, but are not
necessarily originally in the waste. The amount and type of these
``products of incomplete combustion'' are generally believed to be
dependent on a number of aspects of the design and operation of a
facility, and not easily related to the composition of the wastes fed
into the combustion unit. For purposes of this proposal, EPA decided
that because of the high degree of uncertainty associated with
developing waste concentrations from combustion units, it was not
appropriate to use risks from combustion as a factor in deciding what
wastes remain under the hazardous waste regulations. Rather, EPA
believes there are more appropriate ways to regulate emissions from
combustion units through various regulatory authorities, including
regulation of a range of units under the Clean Air Act.
EPA, however, asks comment on the appropriateness of this approach.
In particular, there may be some constituents (e.g., certain metals
that are difficult to capture in pollution control equipment) where a
better correlation exists between waste input and potential risk from
combustor emissions than for organics that are in the waste and also
created as PICs during the combustion process.
b. Fate and Transport
(1) Pathways
In selecting environmental fate and transport pathways to include
in the assessment, EPA used as a guide previous rulemakings and other
special studies by the Agency that examine numerous pathways. For
example, the Agency has used similar risk assessment methodologies in
several recent rules including: Wastes from Wood Surface Protection,
Final Rule (59 FR 458, January 4, 1994); Standards for Use or Disposal
of Sewage Sludge, Final Rule (58 FR 32, February 19, 1993); Corrective
Action Management Units, Final Rule (58 FR 29, February 16, 1993); and
rulemaking efforts on the Pulp and Paper Industry (56 FR 21802, May 10,
1991 and 58 FR 66078, December 17, 1993).
The sewage sludge and pulp and paper rulemakings in particular
examined both human and ecological risk. Other rulemakings under
development within the Office of Solid Waste also use non-groundwater
risk assessment methodologies including various hazardous waste listing
determinations and the dioxin emission rules for hazardous waste
combustion units. Most of these assessments rely on several Agency
guidance documents issued in recent years. In January 1990, the Agency
issued an interim report, Methodology for Assessing Health Risks
Associated with Indirect Exposure to Combustor Emissions (EPA/600/6-90/
003 and referred to as the Indirect Exposure Document). This document
served as the basis for further development of non-groundwater pathway
assessments by the Agency. In November 1993, the Agency issued an
Addendum to the Indirect Exposure Document that updated and revised
portions of the methodology presented in the Indirect Exposure
document. In April 1994, OSW issued a draft implementation guidance
entitled Implementation Guidance for Conducting Indirect Exposure
Analysis at RCRA Combustion Units. In June 1994, the Agency released a
review draft of Estimating Exposure to Dioxin-Like Compounds: Volumes
I-III (EPA/600/6-88/005C), which presents an extensive and expanded
version of the Agency's previous multiple pathway exposure assessments.
Finally on November 16, 1994, the Agency issued Draft Soil Screening
Guidance (59 FR 59225), which presents a multiple pathway assessment
using air, groundwater, and soil pathways for soil screening levels at
Superfund sites. The risk assessment presented relies on the
methodologies presented in these Agency guidance documents to maintain
consistency with previous Agency efforts.
Based on these efforts by the Agency in conducting non-groundwater
pathway assessments, comments by reviewers on previous draft versions
of the risk assessment, and some screening analyses to identify
pathways that are either very similar or unimportant compared to other
pathways, the Agency selected the human and ecological exposure
pathways presented in Table A-1 (human exposure pathways) of appendix A
and Table A-2 (ecological exposure pathway) of appendix A. These
exposure pathways are described in greater detail in the Technical
Support Document for the Hazardous Waste Identification Rule: Risk
Assessment for Human and Ecological Receptors.
Tables A-1 and A-2 presents four columns: column 1 (exposure
media), identifies the medium, such as air or soil, to which the
receptor is exposed; column 2 (route of exposure), identifies the
route, such as inhalation or ingestion, by which a receptor is exposed
to the exposure medium; column 3 (type of fate and transport),
classifies the pathway by the primary mode of fate and transport of the
contaminant to the exposure medium, including direct air, air
deposition, air diffusion, groundwater, overland, and soil; and column
4 (exposure scenario), identifies the compartments in the pathway
(e.g., source to air to humans), and describes the exposure scenario
(e.g., inhalation of volatiles).
The fate and transport pathways examined can be grouped into six
types of initial release and movement away from a waste management
unit, as follows:
Direct air pathways--air emissions of volatiles and
respirable (PM10) particulates;
Air deposition pathways--air emissions of particulates
that deposit on soil or plant surfaces;
Air diffusion pathways--air emissions that, while in the
vapor phase, diffuse directly into surface water or plants;
Groundwater--groundwater releases (These are the pathways
that link to the separate groundwater fate and transport analysis that
then links to the waste management units.);
Overland pathways--overland transport (i.e., surface
runoff and soil erosion) to surface water or transport by soil erosion
to off-site fields;
Soil pathways--on-site soil exposures.
There are three types of pathways not included in the analysis.
Pathways involving the use of contaminated water (groundwater and
surface water) for irrigation were removed due to modeling difficulties
that could not be resolved, however early results indicated these are
not the most significant pathways for any of the waste management
units. Pathways involving the deposition of contaminated particles
directly onto
[[Page 66362]]
surface water bodies were not included because previous efforts by the
Agency have shown these pathways not to be as significant when compared
to particle deposition onto the watershed and subsequent erosion to the
surface water body. Pathways involving wet deposition were not
examined. An air model recently developed evaluates the impact of wet
deposition and was not available to use at the time of this proposed
rule. This new model also was addressing problems with the area
component of earlier models. When the model is available, the Agency
will determine whether its use will have an impact on the proposed exit
criteria. If the Agency determines that there will be an impact, it
will provide an opportunity for public comment on use of the updated
model.
As stated earlier, not all exposure pathways were evaluated for all
waste management units. Constituents may be released from each waste
management unit by a variety of mechanisms. Each release mechanism may
be associated with certain exposure pathways. By examining the release
mechanisms assumed for each waste management unit and identifying the
exposure pathways associated with those release mechanisms, the
appropriate pathways to be modeled for each waste management unit were
identified. The exposure pathways modeled for each waste management
unit are presented in Table A-5 of appendix A.
b. Equations
Since the objective of the assessment was to generate acceptable
levels in waste rather than determining risks posed by waste, the
equations, which are designed to calculate risks, had to be turned
around or run in reverse. The assessment began with a target risk (or
acceptable risk to the receptor) that was used to back-calculate what
constituent concentration in a waste would not exceed the target risk.
Wherever appropriate, the equations used in the back-calculation
were taken from Methodology for Assessing Health Risks Associated with
Indirect Exposure to Combustor Emissions (U.S. EPA, 1990x; hereafter,
the Indirect Exposure document, or IED) as modified by the November 10,
1993, draft of Addendum: Methodology for Assessing Health Risks
Associated with Indirect Exposure to Combustor Emissions, Working Group
Recommendations (U.S. EPA, 1993x; hereafter, the Addendum). The
Addendum is currently being revised based on comments from the Science
Advisory Board and is being combined with the IED to generate a single
methodology guidance document. Therefore, the equations may change
after that revision is completed. If this occurs, the assessment used
for this rule-making will be revised. If such a revision is needed and
occurs, the Agency will provide an opportunity for public comment on
those changes. For convenience, the methodology presented in the IED as
modified by the Addendum will be referred to as the Indirect Exposure
Methodology, or IEM.
The equations presented in the IEM were modified to estimate the
soil concentration for constituents eroding to an off-site field. The
IEM did not address this pathway because it was developed for stack
emissions from combustors rather than releases from land-based units.
However, because soil erosion is a critical release pathway for this
analysis, the Agency applied the Universal Soil Loss Equation (USLE)
and other equations presented in the IEM to calculate soil erosion to
the off-site field. However, the application of these equations
resulted in concentrations greater at the receptor than in the waste
management unit. This phenomenon, first noted in the Dioxin
reassessment, occurred because the equations assumed that the amount of
uncontaminated soil that was eroded into the field was negligible in
comparison to the total mass of soil in the field. Therefore, the
Agency modified these equations to reflect erosion of uncontaminated
soil together with the constituents.
Certain modifications to the equations used in the assessment were
made for dioxin-like compounds to reflect the different behavior of
these constituents in the environment. These modifications were based
on Estimating Exposure to Dioxin-like Compounds, Volume III: Site-
Specific Assessment Procedures (U.S. EPA, 1994x), hereafter referred to
as the Dioxin document. The Dioxin document defines dioxin-like
compounds as ``* * * compounds with nonzero Toxicity Equivalency Factor
(TEF) values as defined in the 1989 International scheme * * * [which]
assigns nonzero values to all chlorinated dibenzodioxins (CDDs) and
chlorinated dibenzofurans (CDFs) with chlorines substituted in the
2,3,7,8 positions. Additionally, the analogous brominated compounds
(BDDs and BDFs) and certain polychlorinated biphenyls (PCBs) have
recently been identified as having dioxin-like toxicity * * * and thus
are also included in the definition of dioxin-like compounds.''
Although the modifications presented in the Dioxin document may be
applicable to other highly lipophilic compounds, in keeping with this
definition, the modifications for dioxin-like compounds were made only
for 2,3,7,8-TCDDioxin Toxicity Equivalents (TEQs), and PCBs. Other
dioxin congeners are addressed through the 2,3,7,8-TCDDioxin TEQ. The
Agency solicits comment on not using these modifications for other
highly lipophilic compounds.
(3) Specific Issues on Pathways and Equations
Below are specific issues of the risk assessment related to the
modeling of the fate and transport pathways on which the Agency is
requesting comment on their use, improvements to them, or alternative
ways to model them. A detailed discussion of these aspects is in
Section 6, Fate and Transport Modeling, of the Technical Support
Document for the Hazardous Waste Identification Rule: Risk Assessment
for Human and Ecological Receptors. (Air emission and dispersion
modeling is discussed in Section 7, Waste Management Units, in the
technical support document. To be consistent, issues related to that
modeling were presented earlier in this preamble in Section D.2.a.)
(i) Hydrolysis
The Agency accounted for fate processes (e.g., biodegradation,
hydrolysis) and transport processes (e.g., volatilization) for
constituents throughout their movement from the point at which the
constituent leaves the waste management unit until it reaches the
location at which contact with the receptor occurs. During an initial
screen, the Agency identified four constituents that were known to
hydrolyze completely or rapidly. These constituents were not included
in the detailed assessment and include: Benzotrichloride (98-07-7);
maleic anhydride (108-31-6); phthalic anhydride (85-44-9); and 1,2-
diphenylhydrazine (122-66-7). In addition, 16 inorganic salts known to
dissociate completely were also not assessed. These included: Calcium
cyanide (592-01-8); copper cyanide (544-92-3); potassium cyanide (151-
50-8); potassium silver cyanide (506-61-6); silver cyanide (506-64-9);
sodium cyanide (143-33-9); thallium (I) carbonate (6533-73-9); thallium
(I) chloride (7791-12-0); thallium (I) nitrate (10102-45-1); thallium
(I) sulfate (7446-18-6); zinc cyanide (557-21-1); zinc phosphide (1314-
84-7); cyanogen bromide (506-68-3); cyanogen chloride (506-77-4);
hydrogen cyanide (74-90-8); and thallium acetate (563-68-8). The Agency
solicits comment on not assessing these constituents.
[[Page 66363]]
Of the 192 constituents evaluated in the non-groundwater analysis,
the Agency directly accounted for chemical hydrolysis for 18
constituents. For the remaining constituents, hydrolysis was not
considered for the following reasons: The constituent has no
hydrolyzable chemical group; hydrolysis is not expected to be important
or significant; the degradation half-life of the chemical, which
includes hydrolysis, is greater than one year; or, there was no data
available for the constituent.
The extent to which fate and transport processes play a role in the
removal of a constituent from a pathway, or its movement from one
environmental compartment to another is determined by site-specific
environmental conditions as well as chemical-specific parameters. To
simplify the analysis, the Agency used fate and transport data based on
one set of environmental conditions to represent all possible spatial
and temporal environments encountered in any given exposure pathway.
The Agency solicits comments on this simplification for modeling fate
and transport processes throughout the exposure pathways considered in
the MPA.
(ii) Other Fate and Transport Processes
Fate and transport processes other than hydrolysis may be important
in determining the concentration of a constituent reaching a receptor.
The Agency's approach to incorporate consideration for these other
processes involved the use of biodegradation and volatilization rates
into the fate and transport pathways, when applicable. The Agency
recognizes that the rate for many chemical-specific fate and transport
processes (in particular, biodegradation) varies with characteristics
of the environment (e.g., temperature, soil type). However, the Agency
simplified the non-groundwater analysis by applying chemical-specific
fate and transport rates generically across environmental settings
found in the various exposure pathways. This simplification may
overestimate the exit level in some instances and underestimate the
exit level in other instances. The Agency solicits comments on this
simplification for modeling fate and transport processes throughout the
exposure pathways considered in the non-groundwater analysis.
(iii) Bioavailability
With regard to the metals examined in the risk assessment, there is
considerable uncertainty about their bioavailability that affects their
fate, transport, and uptake in various media (e.g., plant tissue,
animal tissue) and receptors. Speciation and associated solubility of
metal species in wastes which contain metals are key factors that
influence the bioavailability of metals. The Agency had no information
on the speciation, solubility, or availability of the metals in the
wastes in which they are disposed or how they may transform in the
environment. The Agency assumed that the metals were in a soluble form,
mobile, and available. In the absence of this information, the Agency
assumed that metals are soluble, mobile, and bioavailable. The Agency
seeks comment on this approach, and requests data on the speciation and
solubility of metals in wastes, together with the conditions of the
waste (e.g., pH) that could be disposed by the methods considered in
this rulemaking and methodologies that account for the transformation
of the metals through changing environmental conditions.
(iv) Meteorological Data
The approach for setting central-tendency and high-end
meteorological conditions in the risk assessment was to evaluate sets
of meteorological data from a variety of locations, and then select
locations that reflect central tendency or high-end conditions for a
given exposure pathway.
The Agency used the set of 29 meteorological stations identified
during its efforts to develop soil screening levels for Superfund
sites. These are considered representative of the United States.
Central-tendency and high-end locations were then selected from these
29 locations for the exposure pathways where meteorological conditions
were required as input to the models; these were the air pathways and
overland pathways. The meteorological data were evaluated as location
sets as opposed to individual parameters. Once locations were selected,
the annual average values for those locations were used.
For air pathways, which required data on wind speed, wind
direction, temperature, sunshine, cloud cover, and air mixing height,
selection of meteorological data was waste management unit-specific and
based on extensive sensitivity analysis. EPA considered only the effect
of meteorological data on emissions and dispersion in selecting
locations for air pathways. However, for consistency, once a pair of
high-end and central tendency locations were selected for a pathway,
any meteorological data used in that pathway were selected to
correspond to the locations chosen, even in any overland transport
component of the pathway.
Overland pathways were driven by soil erosion, for which the
critical meteorological input is the Universal Soil Loss Equation
(USLE) rainfall factor (R). Therefore, to select central tendency and
high-end locations for overland pathways, the 29 locations were ranked
based on the rainfall factor, and the 50th and 90th percentile
locations chosen for all overland pathways.
See Section 6.8, Fate and Transport Inputs and Section 7.1.5. Air
Modeling, of the Technical Support Document for the Hazardous waste
Identification Rule: Risk Assessment for Human and Ecological Receptors
for a detailed discussion of how meteorological data were selected and
used. The Agency solicits comment on how meteorological data was
selected and used in the risk assessment.
(v) Soil Data
A variety of soil parameters were required for the modeling. These
parameters are interdependent and vary with the type of soil (e.g.,
loam, clay). However, values for these parameters also vary within a
soil type. Due to the interdependence of the parameter, the Agency
chose to maintain them as a set and determine a central-tendency
property set and a high-end property set.
The Agency used loam type soils to characterize all soils simulated
in the risk assessment because these types of soils are fairly
prevalent in the United States. All soils are composed of varying
percentages of sand, silt, and clay. Loam, by definition, is composed
of equal proportions of sand, silt, and clay; therefore, it represents
a combination of each of the physical properties of the individual soil
textures. Central tendency and high-end values were selected from the
range of values for loam soil so that each individual soil parameter
required by the model is consistent with a loam soil. (Sec Section 6.8,
Fate and Transport Inputs, in the Technical Support Document for the
Hazardous Waste Identification Rule: Risk Assessment for Human and
Ecological Receptors for more detail.) The Agency solicits comments its
approach for characterizing soil in the assessment.
(vi) Soil Pathways
The Agency seeks comment on the following issues related to the
modeling of soil pathways:
Use of the Universal Soil Loss Equation to predict soil
erosion in a generic application - This is a widely-used model intended
for site-specific
[[Page 66364]]
applications where specific input data can be used for relatively small
fields. Its use in a generic application, and for fairly large waste
management units, may overestimate quantities of soil eroded.
Handling of the Soil Loss Constant - This term is the sum
of loss rates for leaching, erosion, runoff, biodegradation,
hydrolysis, and volatilization. Possible uncertainties may arise
because: the assessment assumes that these terms are first-order decay
rates and therefore can be added together; loss processes are
calculated independently, even though they may occur simultaneously.
Use of the Soil Water Content Equation to predict soil
water content in a generic application - The equation is from the
Superfund Exposure Assessment Manual (U.S. EPA, 1988x), and was
developed for site-specific applications.
Area of garden and agricultural field - No data were
available on the size of home gardens, gardens on subsistence farms, or
yards of residential lots (for soil ingestion). Therefore, a single set
of central tendency and high-end values was estimated for these, based
on best professional judgment; this set is referred to as garden area,
even though it might also apply to a yard. Because a larger area leads
to greater dilution of deposited or eroded contaminant, a high-end
garden would be one that was relatively small.
Areas for agricultural fields were estimated from data in
the 1992 Census of Agriculture (U.S. Department of Commerce, 1992). The
Census gives average farm acreage by State for 48 States (the data are
not yet complete for the two missing States). No percentile data were
available. These data do not distinguish between commercial and
subsistence farms.
Mixing Depth--Mixing depth reflects the depth of soil to
which deposited or eroded contaminant is mixed. It is important to
distinguish between soil that is tilled for agricultural purposes and
soil that is untilled in determining appropriate mixing depth values. A
smaller mixing depth results in less dilution of a constituent, and
therefore higher soil concentrations; therefore, a high-end mixing
depth would be smaller than a central tendency mixing depth.
(vii) Surface Water Pathways
Water column as well as benthic sediment concentrations were
estimated. Water column concentr
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
ations include dissolved, sorbed to
suspended sediments, and total (sorbed plus dissolved, or total
contaminant divided by total water volume). Benthic sediment
concentrations included: Dissolved in pore water, sorbed to benthic
sediments, and total. The model accounts for three routes of
constituent entry into the water-body were examined: Sorbed to soils
eroding into the water-body; dissolved in runoff water; and diffusion
of vapor phase contaminants into the water-body. Air deposition of
constituents bound to particles into a water-body was not examined
because earlier analysis demonstrated that its contribution would be
negligible when compared to that of eroding particles. Volatilization
of dissolved constituents and removal of constituents through burial in
bed sediments were modeled as loss processes.
Important assumptions made for the surface water modeling included:
Water-body sufficiently large to support certain ecological receptors;
sufficient fish to support a subsistence fisher; uniform mixing within
the water-body (this tends to be more realistic for smaller water-
bodies as compared to large river systems); and equilibrium is
established between constituents within the water column, bed
sediments, and air.
The Agency seeks comment on the following issues related to the
modeling of surface water pathways:
Water-body/Watershed Characterization--The water-body
characterization parameters are another example of a set of parameters
that are interdependent and therefore were used as a group. Watershed
characterization relates to the water-body (in the case of the
assessment, a stream) characterization. Streams are characterized
(flow, water-body area, watershed area, depth, and various other
parameters) by their ``order.'' A first-order stream has no tributary
channels; a second-order stream forms when two first-order streams
converge, and so on through stream order 10. The Agency used a stream
order 4 as the high-end estimate because EPA believes this stream order
would be among the smallest stream orders that would support sufficient
fish or a subsistence fisher and the receptors assessed. A stream order
5 was used as the central-tendency estimate based on the number of
streams within each stream order. (See Section 6.8 in the Technical
Support Document for the Hazardous Waste Identification Rule: Risk
Assessment for Human and Ecological Receptors for more detail.)
Total Suspended Solids--Total suspended solids (TSS) can
range from 1 to 100 mg/L with a typical value being 10 mg/L for streams
and rivers. This value is used as the central tendency value. No data
on frequency of values in actual streams was available to estimate a
90th percentile value. Since 80 mg/L is believed to be the maximum
tolerable value for aquatic life; this value was used as the high-end
value.
Bed Sediment Concentration--The bed sediment concentration
term is analogous to the bulk density for soil in that it describes the
concentration of solids in terms of a mass per unit volume. A single
value of 1 kg/L was used in the assessment given that this is
considered a reasonable value in most situations and the range is quite
narrow, 0.5 to 1.5 kg/L.
Gas-Phase Transfer Coefficient--The gas-phase transfer
coefficient is used to estimate volatile losses from the water-body.
Volatile losses are calculated using a two-layer resistance model that
incorporates a gas-phase transfer coefficient and a liquid-phase
transfer coefficient. Both transfer coefficients are controlled by flow
induced turbulence in flowing systems. The liquid-phase transfer
coefficient is calculated based on chemical-specific properties. A
single value of 36,500 m/yr. was used. There is some uncertainty
related to setting this parameter to a single value that is not
chemical specific. It is reasonable to assume that chemical properties
affecting volatility would have some effect on this value, although it
is not known how large such an effect would be.
Fraction Organic Carbon in Bottom Sediment--The fraction
organic carbon in bottom sediment is derived from the fraction organic
carbon in watershed soils. For a fraction organic carbon of about 0.01
in the watershed, the fraction organic carbon for bottom sediments is
typically 0.03 to 0.05. The midpoint of this range, 0.04, divided by
the fraction organic carbon of the watershed (0.01) derives a
multiplier of 4 for calculating fraction organic carbon in bottom
sediments from fraction organic carbon in watershed soils. The fraction
organic carbon values used of 0.024 and 0.008 correspond to the central
tendency and high-end values for soil fraction organic carbon of 0.006
and 0.002, respectively. The fraction organic carbon in the bottom
sediments was varied with the fraction organic carbon in soil.
(viii) Food-Chain Pathways
The Agency seeks comment on the following issues related to the
modeling of food-chain pathways: (Please note the fish uptake
methodology is described below in Section D.2.c.2), Ecological
Receptors and Exposure; the littoral methodology is used for humans):
[[Page 66365]]
Use of regression equations based on Kow to derive
biotransfer factors for plants--The biotransfer factors are based upon
empirical relationships with Kow defined by studies on relatively few
chemicals.
The lack of accounting for translocation of contaminants
within plants--The plant uptake models do not account for translocation
of contaminants (should such a translocation occur) from one part of a
plant to another. The Agency is considering two models developed by
Stephan Trapp, plantx and plantE, and solicits comment on their use.
Use of regression equations based on Kow to derive
biotransfer factors for beef and milk--The biotransfer factors for beef
and milk are based upon empirical relationships with Kow defined by
studies on relatively few chemicals.
c. Receptors
Both human and ecological receptors are considered in the
assessment. The human receptors evaluated were selected to represent a
range of behaviors and activities that influence exposure levels. The
Agency believes that these represent typical and more exposed types of
behaviors and activities that might exist around waste management units
or media contaminated by releases from waste management units. Each
receptor was evaluated for individual exposure pathways (i.e., exposure
to multiple pathways was not included). For ecological receptors,
populations or communities were selected for the generic terrestrial
and freshwater ecosystems based on behavior patterns such as dietary
habits (plant-eater vs. meat-eater) as well as qualities such as
significance and representativeness with respect to trophic structure
in the ecosystem (bald eagle). The selection of ecological receptors
was limited by the level of characterization available such as food
intake and body weight. Again, the Agency believes that these represent
the types of organisms that might exist around waste management units
or media contaminated by releases from waste management units.
(1) Human Receptors and Exposure
Human receptors assessed in the assessment included the following:
Adult resident living in the vicinity of a management
unit--This individual is representative of the general population in
the United States and is evaluated independently through the following
potential exposure pathways: Inhalation, ingestion of contaminated
soil, ingestion of contaminated drinking water, dermal contact with
contaminated soil, and dermal contact during bathing. In addition, the
analysis evaluates exposures to an adult resident living on-site of a
land application unit begining 10 years after closure of the unit.
Child resident living in the vicinity of a management
unit--Children are a special population considered in certain pathways
because of their low body weight compared to high intake rates or
surface area. A child is evaluated through the following potential
exposure pathways: ingestion of contaminated soil, dermal contact with
contaminated soil, and dermal contact during bathing.
Home Gardener--This individual represents a sub-population
that supplements their fruit and vegetable consumption with fruits and
vegetables they grow on contaminated land.
Subsistence Fisher--This individual represents a sub-
population that subsists on contaminated fish.
General Fish Consumer--This individual represents a sub-
population that consumes contaminated fish and supplements their intake
with other non-contaminated foods.
Subsistence Farmer--This individual represents a sub-
population that grows or raises most of their own food on contaminated
land. This individual is evaluated independently through the following
exposure pathways: beef ingestion, milk ingestion, and fruit and
vegetable ingestion.
On-site Worker--This individual represents the working
population that may be found at the waste management units. This
individual is evaluated during the active phase of the unit for the
following on-site exposures: Inhalation and dermal contact with
contaminated soil.
Each of the receptors has been matched with the most relevant
exposure routes. Table A-3 in appendix A shows the pathways were
modeled for each receptor.
As previously discussed, the assessment begins with a target human
toxicity benchmark and exposure assumptions tailored to each receptor,
and back-calculates to constituent-specific concentrations in each
media. In characterizing the exposure, two exposure parameters are set
to high-end values and the rest of the exposure parameters are set to
central tendency or default values. The two high-end exposure values
were typically exposure duration and a parameter affecting intake of,
or exposure to, a contaminant (e.g., fraction contaminated, consumption
rate, inhalation rate).
The exposure equations used for back-calculating media
concentrations are based on standard risk equations used in most Agency
risk assessments. For all inhalation and ingestion pathways, these
equations were adapted from Risk Assessment Guidance for Superfund
(RAGS): Volume I--Human Health Evaluation Manual (Part B, Development
of Risk-based Preliminary Remediation Goals) (U.S. EPA, 1991x;
hereafter, RAGS Part B) and subsequent modifications. For dermal
pathways, which are not covered in RAGS Part B, the equations presented
in Dermal Exposure Assessment: Principles and Applications, Interim
Report (U.S. EPA 1992x; hereafter, the Dermal document) were used; this
document reflects the current techniques for assessing dermal exposure.
The Agency requests comment on the data sources and assumptions used in
the human exposure portion of the risk assessment, described in detail
in Section 5.0 of the Technical Support Document for the Hazardous
Waste Identification Rule: Risk Assessment for Human and Ecological
Receptors.
The Agency seeks comment on the following types of human exposure
that were not examined:
Ingestion of contaminated water by humans while bathing or
swimming--The ingestion rate of water while swimming or bathing is 30
times smaller than the normal consumption rate of water used in the
drinking water ingestion pathways; therefore, the drinking water
ingestion pathways should be protective of the incidental water
ingestion pathways.
Inhalation of volatiles while bathing--No appropriate,
chemical-specific equations could be found to address this pathway.
Ingestion of airborne particulates--The ingestion rate of
soil used in the soil ingestion pathways is many times larger than the
ingestion rate from airborne particulates; therefore, the soil
ingestion pathways should be protective of the ingestion of airborne
particulates. Also, given the way the soil ingestion rates were
empirically derived, ingestion of airborne particulates should, in
effect, be accounted for in the estimated soil ingestion rates.
Ingestion of contaminated soil by resident on active
site--While the waste management units are active, it is assumed that
access is limited to workers.
(2) Ecological Receptors and Exposure
In addition to the human receptors, ecological receptors were
evaluated in the assessment. Lacking an Agency precedent for the
selection of ecological
[[Page 66366]]
receptors for a generic analysis, a simple framework was developed for
ecological receptor identification based on EPA's Framework for
Ecological Risk Assessment (U.S. EPA, 1992x). During the problem
formulation phase, a suite of ecological receptors was selected to
include species that represent each of the trophic levels or feeding
habits within an ecosystem. At best, one can only infer that an
ecosystem is protected from chemical stressors. In addition, the
toxicological data support the evaluation of individuals, populations,
and occasionally communities, but are inadequate to address the
complexities of an ecosystem in most cases. Thus, the approach taken in
the assessment was to estimate protective levels for the populations
and communities (inferred from the measurement endpoints used) found in
generic ecosystems. The species included in the ecological assessment
encompass a wide range of dietary preferences, sizes, and trophic
levels.
In selecting ecological receptors for the assessment, a number of
ecosystem types (e.g., lakes, streams, estuaries, deserts, forests,
grasslands) were considered because the waste could be disposed
anywhere once it has exited the Subtitle C system. Two generic
ecosystems were designed: A freshwater-based ecosystem and a
terrestrial-based ecosystem. Specific details of these ecosystems are
described in Section 3, Receptors, in the Technical Support Document
for the Hazardous Waste Identification Rule: Risk Assessment of Human
and Ecological Receptors. The Agency solicits comment on both the
adequacy of the design of the ecosystems used in the assessment and the
use of generic ecosystems to assess potential ecological hazards.
Generally, ecological receptors were identified at different
trophic levels as well as at different levels of biological
organization and included species of relatively low ecological
significance but high societal relevance (e.g., American kestrel). The
final selection of receptors was based primarily on the availability of
data with which to assess the risks to that receptor. As suggested in
the Framework for Ecological Risk Assessment (1992x), the process of
selecting appropriate assessment endpoints was iterative, including
information from the other activities included in the assessment
phase--the characterization of ecological effects. The ecological
receptors included in the assessment were:
Mammals--Mammals were evaluated for both generic
ecosystems and include upper trophic level predators such as the mink
or red fox, lower trophic level consumers such as the whitetail deer,
and insectivores such as the meadow mole; species were selected to
represent a variety of body sizes, habitats, and dietary habits for
which data on body weight, food intake, etc., are available. Mammals
may be exposed by eating contaminated prey items (e.g., fish, other
vertebrates, insects) or plants, through incidental ingestion of
contaminated soil while eating or preening, or through lactation or
placental transfer.
Birds--Birds were also evaluated for both generic
ecosystems and include upper trophic level predators such as the red-
tailed hawk and lower trophic level consumers such as the American
robin; species were selected to represent a variety of body sizes,
habitats, and dietary preferences for which input parameters (e.g.,
body weight, diet, ingestion rates) are available. Birds are exposed
through the ingestion of contaminated prey items (e.g., fish, worms),
through incidental ingestion that occurs while eating or preening, or
through maternal transfer to eggs.
Terrestrial Plants--Vascular plants that might be common
in a generic terrestrial ecosystem were evaluated. The species of
plants used to represent plants within the terrestrial ecosystem were
determined by the availability of data and included primarily forage
grasses and food crops. Plants are exposed through soil-to-root uptake,
deposition on the surface of leaves or bark, and during air-to-leaf
transport of volatile or semi-volatile constituents.
Soil Community--Representative species for the soil
community were based on six metrics for measuring ecological function:
(1) Location, (2) size, (3) abundance, (4) taxon richness, (5) trophic
structure, and (6) energy metabolism. Organisms living in or on the
soil are exposed through direct contact (e.g., insects), through the
ingestion of contaminated soil (e.g., earthworms), and through the
ingestion of other soil dwellers (e.g., centipedes). The Agency
solicits comment on the representative species selected to comprise the
soil community.
Fish--Given the small percentage of freshwater species for
which toxicological data are available, all species of freshwater fish
were considered as potential receptors, regardless of size or dietary
habits. Fish are subject to continuous exposure to contaminated water
via gill exchange and may be exposed to bioaccumulative chemicals
through the food chain.
Aquatic Invertebrates (Daphnids)--Aquatic invertebrates
are believed to be among the most sensitive aquatic species (Suter,
1993x), daphnids were selected to represent free living aquatic
invertebrates. Continuous exposure to contaminated water is considered
the primary route of exposure.
Aquatic Plants--Vascular aquatic plants and algae typical
of aquatic ecosystems were evaluated. Aquatic plants are exposed during
sediment-to-root uptake and through water-to-leaf transport.
Benthic Community--Representative species include
organisms that fall within any of the eight taxonomic genera used in
the development of the Ambient Water Quality Criteria for the
protection of aquatic life. Because these organisms spend most (if not
all) of their lives in the sediment, they are exposed through direct
contact and ingestion of contaminated sediments as well as through the
ingestion of other sediment dwellers.
Each of these receptors has been matched with the exposure pathways
and waste management units likely to result in exposure. Table A-4 of
appendix A shows which pathways were modeled for each receptor. The
Agency solicits comment on the use of a single species to represent
major trophic elements.
The development of medium-specific concentrations for the
protection of ecological receptors was based on ingestion of
contaminated vegetation, water, soil, or prey or through continual
contact with a contaminated medium (e.g., aquatic invertebrates with
water or soil fauna with soil).
Numerous studies have demonstrated the capacity of hydrophobic
organic chemicals to bioaccumulate in the food chain that are orders of
magnitude above the concentration in the contaminated medium (e.g.,
Oliver and Niimi, 1988x). However, it is important to recognize that
food-chain pathways may be significant even for constituents that do
not bioaccumulate appreciably. Dietary exposure to constituents that
concentrate weakly in fish tissue (e.g., bioconcentration factor below
10) may be more significant than exposure to contaminated drinking
water simply because a particular animal may ingest relatively more
fish than water.
For constituents that bioaccumulate, particularly those that
biomagnify, benchmarks should account for exposure through the
ingestion of contaminated prey as well as contact with or ingestion of
contaminated media. The majority of toxicological studies examined a
single route of exposure and seldom considered the potential increase
in exposure concentrations through successive
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trophic levels. As a result, toxicity benchmarks for bioaccumulative
constituents cannot be used as acceptable medium exposure
concentrations; exposure estimates must incorporate the bioaccumulation
potential in the food chain. For nonbioaccumulating constituents, where
toxicity benchmarks that are medium specific (i.e., concentration
units--mg/kg or mg/L)) can be used as acceptable medium concentrations
for ecological receptors (e.g., Ambient Water Quality Criteria).
In the aquatic ecosystem, for bioaccumulative chemicals (log
Kow>4), bioaccumulation factors (BAFs) were estimated using models
developed by Thomann (1989x) for the limnetic (or pelagic) food chain
and Thomann et al. (1992x) for the littoral food chain (i.e., sediment-
based). However, for constituents with log Kow above 6.5, only
measured values were used. The Agency is considering using the Gobas
model since it can be used for constituents with log Kow above
6.5. Further, switching to the Gobas model would be consistent with the
Great Lakes Initiative which recently switched to that model. The
results produced by either the Thomann models or the Gobas model are
very similar. The tissue concentration (TC) was estimated for prey
based on the intake, body weight, and dietary preference (i.e., trophic
level of fish consumed) of the representative predator species.
Protective surface water concentration was calculated by dividing the
tissue concentration (TC) by the bioaccumulation factor for the
appropriate trophic level. For nonbioaccumulative chemicals, the
protective surface water concentration for fish and aquatic organisms
was the Final Chronic Value (FCV) or Secondary Chronic Value (SCV) as
described in Section 4 of the Technical Support Document for the
Hazardous Waste Identification Rule: Risk Assessment for Human and
Ecological Receptors. For upper trophic level aquatic wildlife such as
mink and osprey, protective surface water concentrations were
calculated based on the consumption of contaminated fish and water. The
benthic community was included in the littoral ecosystem. Protective
sediment concentrations were estimated using the equilibrium
partitioning (Eqp) methods developed by Di Toro et al. (1991x). As
explained in Section 4 of the Technical Support Document for the
Hazardous Waste Identification Rule: Risk Assessment for Human and
Ecological Receptors, the sediment benchmark was calculated by
multiplying the FCV (or SCV) by the octanol/carbon partition
coefficient (Koc) and adjusting for the fraction organic carbon
(foc) in the sediment. EPA requests comment on the selection of
the bioaccumulation model, the potential switch to the Gobas model,
BAFs used, dietary assumptions, and how tissue concentrations were
calculated.
For receptors in the generic terrestrial ecosystem, methods used
represented a range of dietary habits across trophic levels for
wildlife, including plants and organisms that live in the soil (i.e.,
soil fauna). (See the discussion on the development of soil and plant
benchmarks elsewhere in today's rule.) For higher trophic level
wildlife, dietary preferences, daily intake, and bioconcentration
factors for prey items were identified or estimated to calculate
protective soil concentrations. The key equation used to back-calculate
soil concentrations as a function of dietary exposure (including soil
ingestion), and the exposure inputs (e.g., body weights, daily intake)
for ecological receptors are discussed in Section 5.3 of the Risk
Assessment. The Agency requests comment on the equations and inputs
used in the generic terrestrial ecosystem modeling.
The following types of exposure were not assessed in the
assessment:
Inhalation by ecological receptors--No suitable
methodology was available.
Dermal contact with soil--No suitable methodology or
sufficient toxicity data were available.
Dermal contact with water--No suitable methodology or
sufficient toxicity data were available.
3. Groundwater Fate and Transport Modeling
In the risk analysis previously described in the section, the
pathways involving groundwater are only modeled (back-calculated) to
the wellhead, i.e., to the point of exposure at a water well. For
groundwater modeling from the waste management unit (i.e., surface
impoundment) to the water well, the Agency used a separate fate and
transport analysis. This section describes the groundwater model and
the modeling procedures for the various waste management scenarios for
the groundwater path. The details of the model and the modeling
procedures are presented in the background documents (USEPA, 1995 a-f).
The Agency has developed specialized subsurface fate and transport
modeling for four waste management options: (1) Landfills; (2) surface
impoundments; (3) waste piles; and (4) land application units. All four
waste management scenarios assume that the waste if exempted could be
managed in the respective RCRA Subtitle D units. In deriving the
exemption levels, the Agency needs to evaluate the fate and transport
of constituents from the waste unit to the nearby drinking water wells.
The potential migration of constituents from a waste unit to the
leachate at the bottom of the waste unit can be simulated by the
laboratory test, the Toxicity Leaching Procedure (TCLP), or the
Synthetic Precipitation Leaching Procedure (SPLP), Method 1312.
Although one procedure may be more applicable for some wastes than the
other procedure, as described on page 21483 of the Federal Register
Notice of May 20, 1992 (57 FR 21450), the Agency is soliciting comments
on the applicability and use of one test over the other for this
proposal.
The fate and transport of constituents in leachate from the bottom
of the waste unit through the unsaturated zone and to a drinking water
well in the saturated zone is estimated using a fate and transport
model. The Agency proposes to use EPACMTP (EPA's Composite Model for
leachate migration with Transformation Products) for this purpose. The
EPACMTP considers not only the subsurface fate and transport of
chemical constituents, but also the formation and the fate and
transport of transformation (daughter) products. The Agency also
solicits comments on the technical correctness and applicability of the
model and the data for this proposal.
The Agency proposed the use of a subsurface fate and transport
model (EPASMOD) on June 13,1986 (51 FR 21648) in the Toxicity
Characteristic (TC) Rule. However, after receiving numerous comments,
the Agency revised the model and the data used in the model (53 FR
28692) and the enhanced model (EPACML) was used in the TC Final Rule
(55 FR 11798). The EPACMTP replaces the EPACML for use in this
proposal. The EPACMTP was recently published in a refereed journal
(Kool, Sudicky and Saleem, Journal of Contaminant Hydrology 17(1994)
69-90) and has been reviewed by the EPA's Science Advisory Board (SAB).
The SAB commended the Agency for making for its significant
improvements to the model. They also stated that it represents the
state of the art for such analyses. However, they also recommended
additional testing of the model.
The modeling approach used for this proposed rulemaking includes
three major categories of enhancements over the EPACML and the approach
for the TC rule. The enhancements fall into the
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following categories: (1) Incorporation of additional fate and
transport processes (e.g., degradation of chemical constituents); (2)
Use of enhanced flow and transport solution algorithms and techniques
(e.g., three-dimensional transport); and (3) Revision of the Monte
Carlo methodology (e.g., site-based implementation of available input
data). A discussion of the key enhancements which have been implemented
in the EPACMTP is presented here and the details are provided in the
background documents (USEPA, 1995a-g). The Agency is soliciting
comments on the modeling enhancements and the modeling methodology as
well as on the values derived for individual chemical constituents:
(1) Fate and Transport Processes
Effects of groundwater mounding underneath waste unit.--The EPACML
was limited to conditions of uniform groundwater flow. It could not
handle accurately the conditions of significant groundwater mounding
and non-uniform groundwater flow due to a high rate of infiltration
from the waste units. These conditions increase the transverse
horizontal as well as the vertical spreading of a contaminant plume.
The EPACMTP accounts for these effects directly by simulating
groundwater flow in the vertical as well as horizontal directions
(USEPA, 1995 a).
Transformation products.--The EPACMTP model has capability to
simulate the formation and fate of multiple transformation products (up
to seven) in the unsaturated as well as in the saturated zones. For
constituents which have toxic transformation products, the EPACMTP can
provide an assessment of the groundwater impact of the transformation
products, along with that of the parent constituent. This methodology
has been implemented for hydrolyzing organic constituents included in
this proposal.
Fate and transport of metals.--The EPACMTP can simulate fate and
transport of metals, taking into account geochemical influences on the
mobility of metals. The EPA's MINTEQA2 (USEPA, 1995 f) metals
speciation model is used to generate effective sorption isotherms for
individual metals, corresponding to a range of geochemical conditions.
The transport modules in EPACMTP have been enhanced to incorporate the
nonlinear MINTEQ sorption isotherms. This enhancement provides the
model with capability to simulate, in the unsaturated and in the
saturated zones, the impact of Ph, leachate organic matter, natural
organic matter, iron hydroxide and the presence of other ions in the
groundwater on the mobility of metals.
(2) Enhanced Solution Algorithms and Techniques
Linkage between unsaturated zone and saturated zone modules.--The
saturated zone module implemented in the EPACML was based on a Gaussian
distribution of concentration of a chemical constituent in the
saturated zone. The module also used an approximation to account for
the initial mixing of the contaminant entering at the water table
underneath the waste unit. The approximate nature of this mixing factor
could sometimes lead to unrealistic values of contaminant concentration
in the groundwater close to the waste unit, especially in cases of a
high infiltration rate from the waste unit. The enhanced model
incorporates a direct linkage between the unsaturated zone and
saturated zone modules which overcomes these limitations of the EPACML.
Numerical transport solution modules.--To enable a greater
flexibility and range of conditions that can be modeled, the analytical
saturated zone transport module has been replaced with a numerical
module, based on the highly efficient state-of-the-art Laplace
Transform Galerkin (LTG) technique. The enhanced module can simulate
the anisotropic, non-uniform groundwater flow, and transient, finite
source, conditions. The latter requires the model to calculate a
maximum receptor well concentration over a finite time horizon, rather
than just the steady state concentration which was calculated by the
EPACML. The saturated zone modules have been implemented to provide
either a fully three-dimensional solution, or a highly efficient quasi-
3D solution. The latter has been implemented for Monte Carlo
applications and provides nearly the same accuracy as the fully three-
dimensional option, but is more computationally efficient. Both the
unsaturated zone and the saturated zone transport modules can
accommodate the formation and the transport of parent as well as of the
transformation products.
Solution for nonlinear metals transport.--A highly efficient semi-
analytical unsaturated zone transport module has been incorporated to
handle the transport of metals in the unsaturated zone and can use
MINTEQA2 derived linear or nonlinear sorption isotherms. Conventional
numerical solution techniques are inadequate to handle extremely
nonlinear isotherms. An enhanced method-of-characteristic based
solution has been implemented which overcomes these problems and
thereby enables the simulation of metals transport in the Monte Carlo
framework. Non-linearity in the metals sorption isotherms is primarily
of concern at higher concentration values; for low concentrations, the
isotherms are linear or close to linear. Because of the attenuation in
the unsaturated zone, and the subsequent dilution in the saturated
zone, concentrations in the saturated zone are usually low enough so
that properly linearized isotherms are used by the model in the
saturated zone without significant errors.
Elimination of biases in determination of receptor well location.--
The internal routines in the model which determine placement of the
receptor well relative to the areal extent of the contaminant plume
have been revised and enhanced to eliminate bias which was present in
the implementation in the EPACML. The calculation of the areal extent
of the plume has been revised to take into consideration the dimensions
of the waste unit. The logic for placing a receptor well inside the
plume limits has been improved to eliminate a bias towards larger waste
unit areas and to ensure that the placement of the well inside these
limits, for a given radial distance from the unit, is truly randomly
uniform. However, for this proposal, the closest drinking water well is
located anywhere on the downgradient side of the waste unit and the
Agency is soliciting any comments on this procedure.
(3) Revisions of Monte Carlo methodology for nationwide assessment
Data sources.--The data sources from which parameter distributions
for nationwide Monte Carlo assessments are obtained have been
evaluated, and where appropriate, have been revised to make use of the
latest data available for modeling. Leachate rates for Subtitle D waste
units have been revised using the latest version of the HELP model with
the revised data inputs. Source specific input parameters (e.g., waste
unit area and volume) have been developed for various different types
of industrial waste units besides landfills. Input values for the
groundwater related parameters have been revised to utilize information
from a nationwide industry survey of actual contaminated sites.
Finite-source methodology.--The original version of the model was
implemented for Monte Carlo assessments assuming continuous source
(infinite source) conditions only. This methodology did not take into
account the finite volume and/or operational life of waste units. The
EPACMTP model has been
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implemented for Monte Carlo assessments of either continuous source or
finite source scenarios. In the latter scenario, predicted groundwater
impact is not only based on the concentrations of contaminants in the
leachate, but also on the amount of constituent in the waste unit and/
or the operational life of the unit. The Monte Carlo methodology was
enhanced to allow determination of regulatory threshold levels for
these two waste characteristics USEPA, 1995.
Site-based regional analysis.--The Monte Carlo methodology has been
fundamentally revised and enhanced to account for the interdependency
among the various model input parameters based on regional
distributions. The original methodology simply assumed that a waste
site could be located anywhere in the US, and that the probability
distributions of individual model parameters (e.g., infiltration rate,
depth to groundwater, etc.) at any waste site were mutually independent
and given by their nationwide frequency distributions. The model
therefore only had limited capability to account for correlations and
dependencies among the model parameters. To address this limitation, a
site-based methodology has been implemented, based on the OSW's surveys
of existing waste facilities in the US, and their geographical
locations. The information of geographical location is used in this
enhanced approach to select the other model parameters, such as
infiltration rate and hydrogeological characteristics. A number of
different sources were reviewed for the development of the site-based
approach. Four of these sets were selected to derive the regional
characteristics of the more important parameters for each sampled site:
The OSW's survey of industrial waste management units (EPA, 1986); the
infiltration and recharge analysis performed for U.S. climatic regions;
the U.S. Geological Survey inventory of groundwater resources; and the
API's (American Petroleum Institute) survey of hydrogeologic parameters
for the different groundwater environments in the U.S.
(4) Implementation of EPACMTP
The specific modeling options selected for the modeling analyses
are summarized in Table 3 below. All modeling analyses were conducted
in the finite source, Monte Carlo mode, for four industrial Subtitle D
waste management scenarios. The groundwater fate and transport model
was used to predict the maximum concentration at a receptor well placed
down gradient from the waste unit. A 10,000 years time limit was
imposed on the exposure time period, i.e., the calculated concentration
is the highest exposure concentration occurring within 10,000 years
following the initial release from the waste unit. The Monte Carlo fate
and transport simulation provides a probability distribution of
receptor well exposure concentrations as a function of waste and
leachate concentrations. For this proposal, the groundwater modeling
results were used to derive leachate concentration thresholds. For
carcinogenic constituents, the exposure concentration calculated by the
model corresponds to the maximum 30-year average receptor well
concentration. For non-carcinogenic constituents, the peak receptor
well concentration is used. The regulatory threshold leachate
concentration limits were determined using a back-calculation
procedure, to correspond to an approximate 90th percentile protection
level. This means that the closest downgradient drinking-water wells at
90% of the industrial Subtitle D waste management units would have
water concentrations below the HBN/MCL. The wells further away at 90%
of the sites would be protected at higher protection levels. The wells
at the other 10% of the sites would be protected at lower protection
levels.
The Agency uses a 95th percentile protection level in the RCRA
Delisting program and the 85th percentile for the toxicity
characteristic program. These two programs have slightly different
goals from the exemption proposed today. The recently developed
Superfund soil-screening levels use a 90th percentile protection level
to identify sites at which no additional investigation for possible
remediation is required. The exit proposed today is similar to the
soil-screening levels program. Today's proposed exit is intended to
identify wastes no longer needing Subtitle C management. Finally, the
90th percentile was chosen because it is nearly consistent with the
protectiveness level in the other pathways of the multipath risk
assessment performed for today's proposal as far as could be
identified.
Table 3 provides a summary of the methodology and/or data sources
used to obtain values for the source-specific parameters, chemical-
specific parameters, unsaturated zone parameters, saturated zone
parameters, and receptor well location parameters. Because the
groundwater pathway analysis was performed in Monte Carlo mode, all
parameters are in principle described by their probability
distributions. Details on the actual distributions used are provided in
the background documents (USEPA, 1995a-g). Probability distributions
used for the unsaturated zone parameters, the saturated zone
parameters, and receptor well location parameters were the same for all
waste management scenarios and individual constituents that were
analyzed for today's exit.
(5) Waste Management Scenarios
The waste management unit represents the source term in the fate
and transport model for the waste management scenarios evaluated for
groundwater contamination. In the modeling framework, the source is
defined in terms of four key parameters: (i) Waste unit area, (ii)
Leachate flux (infiltration) rate, (iii) Leachate concentration, and
(iv) Duration of leachate pulse. The first of these parameters, waste
unit area, was determined from the nationwide OSW survey of industrial
Subtitle D waste management facilities (USEPA, 1995 a-b). After
screening out records with unreliable waste site area and/or volume,
the OSW Industrial Subtitle D survey provides data on location, area
and volume of 790 landfills, 1655 surface impoundments, 774 waste
piles, and 311 land application sites nationwide. The weighted
distributions of waste unit characteristics used as input to the model
are based on the results of the survey.
The leachate flux, or infiltration rate, and duration of the
leachate pulse are determined from the design and operational
characteristics of the waste management scenario being modeled.
Consideration of a leachate pulse of finite duration is a fundamental
aspect of the present analysis and distinguishes it from the continuous
source (infinite source) assumption used for the 1990 Toxicity
Characteristic (TC) Rule (55 FR 11798). It should be emphasized though
that the results of the finite source analysis are not necessarily
different from those of the continuous source analysis. If the source
leaching duration is long enough to drive the maximum receptor well
concentration to its steady state value, the finite source and
continuous source analyses are in fact the same. In practice, the
distinction between continuous source and finite source analysis is the
most important for chemicals which are subjects to sorption,
speciation, and/or degradation, including hydrolyzing organics and
metals.
The leachate concentration of specific constituents in the waste
forms the basis for regulating the wastes. The leachate concentration
is not specified a-priori, but rather it is back-calculated at the end
of the Monte Carlo analysis to satisfy the regulatory criterion that
the
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maximum groundwater exposure concentration should be at, or below, the
constituent-specific health-based drinking water standard, in at least
90 % of the cases.
The following sections present background on the determination of
the source parameters for each waste management scenario.
Landfills.--The key characteristic of the landfill scenario is that
the duration of the leachate pulse is independent of the operational
life of the waste management unit, i.e., the period of time required to
fill the landfill. The landfill is taken to be filled to capacity and
covered when leaching begins. The time period during which the landfill
is filled-up, usually on the order of 20 years, is considered to be
small relative to the time required to leach all of the constituent
mass out of the landfill. The model simulation results indicate that
this assumption is not unreasonable; the model calculated leaching
duration (see below) is typically on the order of several hundred
years.
The leachate flux, or infiltration rate, is determined using the
HELP model. The net infiltration rate is calculated using a water
balance approach, which considers precipitation, evapo-transpiration,
and surface run-off. The HELP model was used to calculate landfill
infiltration rates for a representative subtitle D landfill with 2-foot
earthen cover, and no liner or leachate collection system, using
climatic data from 97 climatic stations located throughout the US.
These correspond to the reasonable worst case assumptions as explained
in the Risk Assessment Background Document (USEPA, 1995b). The model
calculates the daily water balance for the total period for which
climatic data are available. For each waste site in the OSW survey, an
infiltration rate was calculated using the data from the closest
climate station (USEPA, 1995b).
In the landfill scenario, the duration of the leaching period is
not prescribed. Instead it is calculated as part of the Monte Carlo
simulation from the total mass of constituent in the landfill, and the
rate of leaching. This relationship is derived from a straight-forward
mass balance principles. The methodology is documented in the
Background Document for the Finite Source Procedure (USEPA, 1995-c);
only the most salient aspects are presented here.
The duration of the leachate pulse, Tp, is determined by the
total mass of constituent that is initially present in the landfill,
and the rate at which the constituent is removed by leaching:
Aw . d . Fh . Phw . CW=Aw . I . CL .
TP
or
TP={d . Fh . Phw} over {I} CW over CL where
Aw=Area of the waste unit (m\2\),
d=Depth of waste unit (m),
Fh=Fraction of waste unit volume occupied by this waste,
Phw=Density of the waste (g/cm\3\),
I=Leachate flux (Infiltration) rate (m/y),
CW=Constituent waste concentration (mg/kg), and
CL=Constituent leachate concentration (mg/L).
The determination of Tp according to (2) tacitly assumes that
the constituent does not degrade inside the waste unit, does not
consider removal by mechanisms other than leaching (e.g.,
volatilization), and assumes that all of the constituent mass will
eventually leach out. The formulation given above also assumes that the
leachate concentration, CL, remains constant until all of the
constituent mass has leached out. The methodology was adapted to handle
a time-varying leachate concentration, e.g., a gradually diminishing
leachate concentration to represent the depletion of the contaminant
mass in the landfill over time. If it is assumed that the leaching of
the constituent from the waste into the water phase is controlled by a
linear equilibrium partitioning process, the reduction of the leachate
concentration with time can be modeled as a first-order decay process
(EPA, 1995c):
CL(t)=CL0e{-t}
where
CL0=Initial leaching concentration (mg/L)
=Apparent decay constant (y-1)
t=Time (y)
The rate at which the leachate concentration is reduced is determined
by the coefficient , which is given by:
={I} over [{d FhwPhw}{CW over CL0}]
Using (3), the leachate concentration will gradually and asymptotically
be reduced to zero. The total amount of constituent that is released
into the subsurface will be the same whether a constant leachate
concentration of finite duration, or a gradually diminishing leachate
concentration is assumed. In the latter case, the duration of the
release period is longer, but the average leachate concentration lower,
as compared to the former case.
It can be seen from either (2) or (4) that the duration of the
leachate pulse, or the rate of depletion, respectively, can be
expressed as a function of the initial leachate concentration, CL.
For the modeling analyses, equation (3) was used for organic
constituents. The underlying assumption that the concentration is
controlled by linear equilibrium partitioning is reasonable for organic
constituents. For metals, the pulse release option (equation 2) with
constant leaching concentration was used.
The calculation of Tp (or ) requires a number of
ancillary source and waste parameters. These are the depth of the waste
unit (d), the fraction of the waste unit occupied by the waste
(Fh), and the waste density (Phw). The waste unit depth is
obtained directly from the OSW waste site survey. The survey provides
data on both landfill areas and volumes, which allows the depth to be
calculated for any landfill selected during the Monte Carlo simulation.
The fraction of waste in the landfill is assigned a uniform
distribution with lower and upper limits of 0.036 and 1.0,
respectively, based on analysis of waste composition in Subtitle D
landfills (EPA, 1995). The lower bound assures that the waste unit will
always contains a minimum amount of the waste of concern. The waste
density is assigned a value based on reported densities of hazardous
waste, and varies between 0.7 and 2.1 g/cm\3\ (EPA, 1995c).
Surface Impoundment.--The surface impoundment waste management
scenario is that of a non-hazardous waste industrial impoundment. The
area of the impoundment is obtained from the OSW Subtitle D Industrial
Survey (USEPA 1995 b). No direct data is available on the rate of
infiltration from surface impoundments. The rate of infiltration from
the impoundment is calculated inside the EPACMTP fate and transport
model. The rate of infiltration is calculated, using Darcy's Law, as a
function of surface impoundment depth, and hydraulic conductivity and
thickness of a low-permeability sediment layer at the base of the
impoundment.
Impoundment depth is obtained from the OSW survey, for each
impoundment site in the survey, in the same way as the landfill depth
is obtained (see above). The sediment layer at the base of the
impoundment is taken to be 2 feet thick, and have an effective
equivalent saturated conductivity of 10-7 cm/s . These values were
selected in recognition of the fact that most non-hazardous waste
surface impoundments do have some kind of liners in place (USEPA,
1995b). During the Monte Carlo fate and transport simulation, the
infiltration rate is calculated using the impoundment depth value for
the specific unit selected for each Monte Carlo realization.
The leachate concentration again is not determined a priori, but is
determined after the analysis, based on
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the desired regulatory protection level (90th percentile). The surface
impoundment is taken to have a 20-year operational life. After this
period, the impoundment may be filled in, or simply abandoned. In the
latter case, the waste in the impoundment will drain and/or evaporate
relatively quickly. In the modeling analysis, the duration of the
leaching period is therefore set equal to 20-years.
Waste Pile.--The waste pile management scenario is conceptually
similar to that of the landfill, but differs in a number of key
aspects. In contrast to landfills which represent a long-term waste
management scenario, waste piles represent a more temporary management
scenario. During the operational life of the waste pile, it may be
regarded as an uncovered landfill. Typically at the end of the active
life of a waste pile, the waste material is either removed for land
filling, or the waste pile is covered and left in place. If the waste
is removed, there is no longer a source of potential contamination. If
a waste pile is covered and left in place, it then becomes equivalent
to a landfill, and consequently is to be regulated as a landfill. For
the analyses, therefore, only the groundwater impacts associated with
the period that the waste pile is active, are considered.
Data on the waste pile area are obtained from the OSW Subtitle D
survey. Infiltration rates for the waste pile are obtained by treating
the waste pile as an uncovered landfill. HELP model derived landfill
infiltration rates assuming a sandy loam soil cover were used to assign
infiltration rates for waste piles. A sandy loam cover represents the
most permeable cover considered for the landfill scenario, and most
closely resembles a situation in which no cover is present. The
methodology for assigning an infiltration rate to any specific waste
pile in the OSW survey follows that used for landfills (see above).
An active life of 20 years is assumed for the waste pile. This also
determines the duration of the leaching period. As with the landfill
and surface impoundment scenario, the leachate concentration is
determined at the end of the analysis, to satisfy the regulatory
protection level.
Land Application Units.--Data on the location, area and waste
application rates at industrial land application sites were obtained
from the OSW survey of industrial Subtitle D sites. Location-specific
infiltration rates were estimated for each land application site by
applying the HELP model, using climatic data from the nearest climate
station. Because wastes applied at land application sites typically
have a high liquid content, this factor was accounted for in the water
balance calculations. An annual waste application rate of six inches of
waste, containing 85% water was assumed. This is typical of sludges
which constitute a large fraction of waste at land application sites.
Therefore, an additional 5.1 inches of water were added to the natural
precipitation for the water balance evaluation at each land application
site.
The leaching duration for the land application unit was set to 40
years, consistent with the release period modeled for the air pathway.
No reliable data were available for the active life of land application
units. Using a longer value than for surface impoundments and waste
piles is warranted because part of the applied waste material may
remain in the soil at the end of the active life of a land application
unit, and may continue as a source of contaminant leaching.
(6) Determination of Regulatory Waste and Leachate Concentration Limits
The objective of the Monte Carlo fate and transport analysis is the
determination of regulatory limits for the concentration of individual
toxic constituents in the leachate, CL. These limits are
determined so as to satisfy the regulatory criterion that disposal of a
waste in a subtitle D waste management unit should not lead to an
exceedance of the health-based value or the drinking water standard, at
a receptor well placed down gradient from the waste unit, in at least
90% of the cases.
The CL limits are specific to each waste management scenario,
and are also constituent specific. CL limits are constituent
specific because of their dependence on constituent specific health-
based standards, as well as on constituent specific fate and transport
characteristics that affect the concentration received at the receptor
well. The latter factors are discussed in the following section; this
section discusses the determination of regulatory CL thresholds.
Using Equation (2) or (3) and (4), the groundwater exposure
concentration calculated by the fate and transport model can be
expressed as a function CL. All other parameters used in the
modeling analysis are obtained from prescribed probability
distributions. Consequently, by comparing the predicted exposure
concentration to the appropriate regulatory standard, e.g., health-
based value or a drinking-water standard, threshold levels of CL,
can be calculated. Wastes for which the leachate concentration exceeds
the CL threshold would not be exempted. Because the Monte Carlo
analysis produces a probability distribution of exposure
concentrations, the back-calculation of CL threshold levels can be
performed for any desired level of protection.
For those constituents that degrade (see next subsection) and
produce toxic degradation products, the development of regulatory
threshold values for CL considers not only the exposure
concentration and toxicity of the parent constituent, but also the
exposure concentration and toxicity of toxic transformation products.
For instance, consider two waste constituents that have similar
toxicity values, i.e., similar health-based levels, as well as similar
fate and transport characteristics, so that they show comparable values
for the model simulated receptor well exposure concentration. However,
if one of the two chemicals produces toxic off-spring, but the other
chemical does not, the chemical which has toxic daughter products will
have more stringent limits for CL.
(7) Chemical--Specific Fate and Transport Processes
The Monte Carlo fate and transport analysis considers chemical-
specific sorption and hydrolysis (degradation) characteristics. These
characteristics directly affect the model-predicted groundwater
exposure concentration. Chemicals which are subject to sorption and/or
hydrolysis will exhibit lower exposure concentration as compared to
non-sorbing, non-degrading chemicals. This translates into higher
regulatory waste and concentration limits. Two broad groups of
chemicals are considered under today's proposal. They are organic
constituents and metals.
Organic Constituents.--Organic constituents account for the largest
group of chemicals addressed under today's proposal. The groundwater
pathway analyses were performed for a total of 222 organic
constituents. The fate and transport analysis accounts for sorption of
organics onto soil and aquifer organic matter, as expressed by a
chemical-specific organic-carbon partition coefficient (Koc), and
degradation due to hydrolysis reactions, as expressed by chemical-
specific hydrolysis constants. Sorption is modeled as a reversible,
linear equilibrium process. Degradation due to hydrolysis is modeled as
a first-order kinetic process. The groundwater pathway analysis
utilizes a comprehensive set of Koc values and hydrolysis rate
constants compiled by the EPA-ORD (Environmental Fate
[[Page 66372]]
Constants for Organic Chemicals Under Consideration for EPA's Hazardous
Waste Identification Projects , EPA/600/R-93/132). Chemicals with
identical Koc values and hydrolysis constants will exhibit the same
fate and transport behavior, and given the same leachate concentration
and leaching period, they will result in the same exposure
concentration. Note, however, that they may still have different
regulatory leachate concentration limits, if they have different
health-based drinking water standards and/or produce toxic
transformation products.
For the groundwater pathway analysis, organic constituents with a
hydrolysis half-life of 6,900 years or less (first-order degradation
rate of 10-4 or greater) were classified as degraders, the
remainder were classified as non-degraders. The EPACMTP can simulate
the formation and subsequent fate and transport of transformation
daughter products, enabling the groundwater exposure concentrations of
any toxic transformation products to be determined and, therefore,
included in the determination of leachate concentration thresholds.
It has been established, by analyzing modeling results for
different constituents with a range of sorption and degradation
characteristics that, after normalizing the results against the
chemical-specific HBN/MCL, the effect of sorption and degradation on
the regulatory values can be expressed as a function of the Koc and
hydrolysis rate coefficients, using a straight-forward scaling
relationship. After these relationships have been established, it is
not actually necessary to conduct the Monte Carlo fate and transport
computer simulations for each individual constituent. Instead, for each
waste management scenario of concern, a set of reference CL values
are generated by running the Monte Carlo model for a selected range of
values of Koc and hydrolysis rate coefficients using a normalized HBN/
MCL of 1 mg/L. Constituent-specific CLMIN values are then
determined in two steps: First, the reference curves are scaled to the
constituent specific Koc value, and (for degraders) hydrolysis rate
coefficients. Secondly, an adjustment is made for the constituent-
specific value of the drinking water standard. The final values of
CLMIN are obtained by multiplying the concentration limits
based on the normalized drinking water standard, by the actual value of
the drinking water standard of that particular constituent. For
constituents with toxic transformation products, this procedure is
repeated for the transformation products, to find the minimum values of
CL (CLMIN) which ensure that the exposure concentrations
of the parent constituent and any daughter products will not be
exceeded. The benefit of this approach is that if additional
constituents are to be regulated, or a different value of the drinking
water standard HBN/MCL, the appropriate CLMIN can be
determined with less effort, because it is not necessary to repeat the
time-consuming complete Monte Carlo simulation.
Metals.--Fate and transport of metals in the subsurface may be
controlled by complex geochemical interactions. To account for these
processes, the OSW has developed and implemented a modeling approach
which utilizes the MINTEQA2 metals speciation model in conjunction with
the EPACMTP subsurface fate and transport model. The MINTEQ model has
been applied to generate effective sorption isotherms reflecting
variations in four geochemical master variables affecting metals fate
and transport. These factors are: Ph, leachate organic matter natural
organic matter in the soil or aquifer, and ironhydroxide content. Each
of these parameters has a range of values, reflecting their nationwide
probability.
Table 3.--EPACMTP Modeling Options
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Management Scenarios.......................................................... Industrial Subtitle D: (i)
Landfill; (ii) Surface
Impoundment; (iii) Waste Pile;
and (iv) Land Application Unit.
Modeling Scenario............................................................. Finite Source Monte Carlo.
Regulatory Protection Level................................................... 90% (yields an approximate DAF
of 10 for a continuous source
landfill).
Source Parameters:
Waste Unit Area........................................................... Site based, form OSW Industrial
Subtitle D Survey.
Waste Unit Volume......................................................... Site based, from OSW Industrial
Subtitle D Survey.
Infiltration Rate:
Landfill.............................................................. Site-based, derived from water
balance using HELP model.
Surface Impoundment................................................... Site-based, derived from
impoundment depth using Darcy's
law.
Waste Pile............................................................ Site-based derived from water
balance using HELP model.
Land Application Unit................................................. Site-based, derived from water
balance using HELP model.
Leaching Duration:
Landfill.............................................................. Derived, continues until all
constituent has leached out.
Surface Impoundment................................................... 20 years (operational life of
waste unit).
Waste Pile Land....................................................... 20 years (operational life of
waste unit).
Application Unit...................................................... 40 years.
Chemical Specific Parameters:
Decay Rate:
Organics.............................................................. Hydrolysis rates based on
measurements or based on
appropriate structure-activity
relationships.
Metals................................................................ No decay.
Sorption:
Organics.............................................................. Koc estimated from Kow, which is
based on measurements or based
on appropriate structure-
activity relationships.
Metals................................................................ MINTEQ sorption isotherms (Pb,
Hg, Ni, Cr (III), Ba, Cd).
pH dependent isotherms (As, Cr
(VI), Se (VI), Th)
Unsaturated Zone Parameters:
Depth to groundwater...................................................... Site-based, from API/USGS
hydrogeologic database.
Soil Hydraulic Parameters................................................. National distribution for the
main soil types.
Fraction Organic Carbon................................................... National distribution for the
main soil types.
Bulk Density.............................................................. National distribution for the
main soil types.
Saturated Zone Parameters:
Recharge Rate............................................................. Site-based, derived from
precipitation/evaporation and
soil type.
[[Page 66373]]
Saturated Thickness....................................................... Site-based, from API/USGS
hydrogeologic database.
Hydraulic Conductivity.................................................... Site-based, from API/USGS
hydrogeologic database.
Porosity.................................................................. Effective porosity derived from
national distribution of
aquifer particle diameter.
Bulk Density.............................................................. Derived from porosity.
Dispersivity.............................................................. Derived from a national
distribution and is based on
distance to the receptor well.
Groundwater Temperature................................................... Site-based, from USGS regional
temperature map.
Fraction Organic Carbon................................................... National distribution, from EPA
STORET database.
pH........................................................................ National distribution, from EPA
STORET database.
Receptor Well Location:
Radial Distance........................................................... Nationwide distribution based
the survey.
Angle Off-Center.......................................................... Uniform within 90
deg. from plume centerline.
Depth of Intake Point..................................................... (No restriction to be within
plume) Uniform throughout
saturated thickness of aquifer.
----------------------------------------------------------------------------------------------------------------
4. Other Risk Assessment Issues
a. Differences Between the Groundwater and Non-groundwater Analyses
As mentioned previously, the Agency conducted separate analyses for
the evaluation of risks from groundwater and non-groundwater pathways.
The groundwater pathways relied on a full Monte Carlo analysis; whereas
the non-groundwater pathway analyses were performed using high-end and
central tendency parameters, consistent EPA's risk characterization
guidance (EPA 1995).
Although the approaches to the modeling differed, the Agency used
the same data for parameter inputs (i.e., OSW's Industrial Subtitle D
Survey, U.S. EPA 1986) to describe the waste management units common to
both analyses (i.e, surface impoundments, waste piles, and land
application units). However, even though the same data were used, some
differences exist based on the different modeling approaches. These
differences are discussed below.
(1) Infiltration
For the groundwater pathway analysis, the Agency used the HELP
model to calculate the net infiltration rate for landfills, land
application units and waste piles, as a function of regional climatic
conditions and waste unit design characteristics (see EPACMTP
background Document). The analysis used the meteorological data from 93
meteorological stations located throughout the United States to develop
infiltration rate distributions using the HELP model.
For the non-groundwater analysis, the Agency used rainfall to
calculate the recharge rate. The rainfall was selected from 29
meteorological stations distributed among 9 climate regions. However,
the method for selecting the rainfall factor differed between the air
release pathways and the overland release pathways.
For the air release pathways, the Agency conducted a
sensitivity analysis for each waste management unit type to rank the 29
meteorological stations with respect to several air modeling outputs,
including maximum air concentration of pollutants, average air
concentrations over the agricultural field and water body, and average
deposition over the agricultural field and water body. Based on these
sensitivity analyses, the Agency selected a central tendency location
and high-end location for the air pathway for each of the waste
management units. Thus, locations with meteorologic data, including the
rainfall factor, approaching the central tendency and high-end values
were selected for each waste management unit.
For the overland release pathways, the Agency ranked the
rainfall factors from the 29 meteorological stations and selected the
50th and 90th percentile based on the distribution of the 29
meteorological stations.
(2) Density of Waste Applied to the Land Application Unit
The approach used in the groundwater analysis assumed the bulk
density of the applied waste to be 1 gram per cubic centimeter (g/cc)
because the waste was assumed to be comprised predominantly of water.
However, changes in the density of applied waste do not significantly
affect the results of the groundwater modeling results.
The approach used in the non-groundwater analysis assumed the bulk
density of waste to be analogous to the density of sewage sludge (i.e.,
1
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
.4 g/cc). The waste in the LAU is a mixture of industrial waste and
soil. The central tendency bulk density for soil (i.e., 1.5 g/cc) is
similar to the bulk density assumed for industrial waste. Because the
waste is incorporated into soil, the properties of the waste/soil
mixture are needed. There is little variability in bulk density for the
type of soil used in the analysis (i.e., loam), thus, the same value
was used for central tendency and high-end estimates of the waste/soil
mixture bulk density.
(3) Unsaturated Zone Characteristics
The groundwater pathway analysis used the characteristics (e.g.,
percent organic matter, saturated hydraulic conductivity) of the entire
unsaturated zone as input into the modeling analysis. The non-
groundwater pathway analysis used as input the characteristics of only
the upper portions of the unsaturated zone because these
characteristics were those significant for the surface exposure
pathways.
(4) Hydrolysis Rates
The hydrolysis rate for a chemical constituent is used in the Monte
Carlo groundwater pathway analysis as a function of temperature and pH
of the groundwater at the Monte Carlo realized site. The Agency used
hydrolysis rates for constituents that have been measured through
appropriate structure activity relationships. They have been reviewed
by a panel of experts from the Agency's Office of Research and
Development (USEPA, 1993). The non-groundwater pathway analysis used
hydrolysis rates from the ``Handbook of Environmental Fate and Exposure
Data for Organic Chemicals'' (Howard et. al, 1993).
b. Other Groundwater Pathway Analysis Issues
(1) Use of 1,000 Year Versus 10,000 Year Exposure Time Horizon
The Agency's proposal is based on a 10,000 year time horizon for
the groundwater pathway. This means that the determination of leachate
concentration limits is based on the highest (30-year average)
concentration that occurs within 10,000 years from the start of the
release. Although this longer time horizon has been used in other
programs (U.S. Nuclear Regulatory
[[Page 66374]]
Commission and U.S. Department of Energy), the Agency is considering
using 1,000 years as an alternative time horizon. The Agency requests
comment on this issue which is described in more detail below.
Using this shorter time horizon results in an increase of the
leachate concentration limit for a number of constituents. The
constituents affected are those which are strongly sorbed in the
subsurface, and which therefore tend to migrate slowly. These
constituents include organics with retardation factors (R)
significantly greater than one. The organic carbon partition
coefficient (koc) values for these constituents are about 3,500 g/
cm3 or greater, and certain metals such as lead and chromium(III).
For organic constituents with koc values less than about 3,500 g/
cm3, the highest receptor well exposure concentration is generally
reached in less than 1,000 years. Reducing the modeling time horizon
from 10,000 to 1,000 years therefore does not affect the results of the
pathway analysis for these constituents. The effect of using a 1,000
year versus a 10,000 year time horizon is illustrated in Table 4. The
constituent-specific differences are shown in Table B-1 of appendix B
to the preamble. The table is based on a landfill waste management
scenario, and all constituents are assumed to have identical toxicity
values and not be subject to hydrolysis. For reference, the leachate
concentration limit for constituents with koc=0 (no sorption,
R=1), and a 10,000 year time horizon is equal to 1.0 mg/L. This table
shows that the increase in leachate concentration limit for organic
constituents is affected for a shorter modeling horizon (1,000 years)
only when koc values (or R values) are very large. (About fifteen
percent, out of a total of approximately 200, including eight metals,
fall into this category.) The effect of hydrolysis rate is not
considered in results shown in the table. While hydrolysis influences
the magnitude of the exposure concentration at a receptor well, the
time that it takes for a contaminant to reach the receptor well is
independent from the chemical-specific hydrolysis rate. It is, however,
strongly influenced by chemical-specific sorption characteristics,
which for organics are expressed in terms of koc or R values.
Table 4.--Effect of 1,000 Year Versus 10,000 Year Modeling Time Horizon
on Leachate Concentration Limit
------------------------------------------------------------------------
10,000 1,000
koc (cm3/) years years
------------------------------------------------------------------------
0.0............................................... 1.0 1.0
3,384............................................. 1.0 1.0
(R=10)
37,224............................................ 1.0 60
(R=100)...........................................
------------------------------------------------------------------------
(2) Implementation of Parameter Bounds in Monte Carlo Procedure
The Monte Carlo modeling procedure used in the groundwater pathway
analysis uses data on waste site location from the EPA's Industrial
Subtitle D Survey (USEPA, 1986). These data are combined with other
data sets for climatic and hydrogeological parameters. Auxiliary
parameters for which no direct data is available are calculated
internally in the model. For instance, ground-water velocity is
calculated from hydraulic conductivity, gradient and effective
porosity, and the dispersivity is calculated from the receptor well
distance (See EPACMTP Background Document and User's Manual). Each
parameter furthermore can have specified upper and lower bounds to
guard against the possibility that physically infeasible parameters
and/or parameter combinations are not used. When the latter condition
occurs, the particular Monte Carlo realization is rejected, and another
realization is generated. The Agency is considering an alternative
procedure in which only the offending parameter is regenerated, or, if
necessary, set equal to its upper or lower bound to avoid selection of
values beyond the minimum to the maximum values range. In first case,
the frequency distribution of parameter values generated by the Monte
Carlo module, may be different from its input distribution. The Agency
has determined that the two alternative procedures have little impact
on the overall modeling results in the case of landfills and land
application units, but that the default procedure tends to favor the
selection of sites with larger waste unit area in the case of waste
piles and surface impoundments. Therefore it produces more conservative
(lower) values for the final leachate concentration limits. The
analysis results show that for the two alternative Monte Carlo
procedures for surface impoundments, the default procedure results in a
leachate concentration limit of 1.0 mg/L, the alternative procedure
results in a concentration limit of about 31 mg/L for a chemical with
R=1. The effect of changes in the hydrolysis rate or the R value on the
resultant regulatory leachate concentration do not impact the results
obtained by using the alternative Monte Carlo procedure described in
this subsection. The Agency is also soliciting comments on the Monte
Carlo parameter rejection procedure used for the results presented in
this subsection.
(3) Hydraulic Conductivity of Surface Impoundment Bottom Layer
The surface impoundment scenario modeled in the groundwater pathway
analysis incorporates a 2 feet thick layer at the base of the
impoundment. In the base case for this proposal, the layer is assigned
a hydraulic conductivity of 10-7 cm/sec. The Agency recognizes that
this value may or may not be appropriate value for bottom sediments as
a nationwide typical for industrial Subtitle D surface impoundments. To
evaluate the impact of varying this parameter, the Agency has compared
modeling results obtained using a 10 times higher conductivity of 10-6
cm/sec. A higher conductivity value corresponds to a greater leachate
flux from the impoundment, and generally higher receptor well
concentrations, which translates into a more conservative (lower)
regulatory leachate concentration limit. The regulatory limit
calculated for a conductivity value of 10-7 cm/sec is 1.0 mg/L,
the corresponding value for a conductivity of 10-6 cm/sec would be
0.35 mg/L. The effect of changes in hydraulic conductivity on the
results is believed to be independent of the sorption or the hydrolysis
characteristics of the chemical. The Agency is inviting comments on the
appropriate value for the hydraulic conductivity of the bottom sediment
layer for industrial D surface impoundments. In addition, the Agency
requests the submission of hydraulic conductivity data for industrial
Subtitle D surface impoundment bottom sludges.
(4) Waste Pile Infiltration Rates
The Agency used the HELP model to calculate the net infiltration
rate for landfills, land application units and waste piles, as a
function of regional climatic conditions and waste unit design
characteristics (see EPACMTP background Document). For waste piles, the
Agency considered two alternatives. The procedure used in the base case
considered a waste pile, for the purpose of estimating infiltration
rates, to be similar to an uncovered landfill. The Monte Carlo modeling
analysis therefore used landfill infiltration rates corresponding to
the most permeable (sandy loam) of the three cover types
[[Page 66375]]
used for landfill modeling. As an alternative, the Agency has used the
HELP model to calculate infiltration rates for waste piles directly. In
the initial evaluation, the runoff used in the water balance
calculation was computed by the HELP model as a function of soil
texture and vegetative cover (bare ground).The Agency has evaluated the
impact of representative bare, but unevenly surfaced, waste piles on
simulated runoff using the HELP model. A comparison of the impact of
using this alternative procedure against the values used in this
proposal for the base case, on the regulatory leachate concentration
limit, was conducted. The comparison of regulatory leachate
concentration limits is based on a non-degrading, non-sorbing
constituent, which has a concentration limit of 1.0 mg/L in the
proposal. Using the alternative procedure, the corresponding leachate
concentration level changes to 0.77. The Agency is inviting comments on
the two methods for the waste piles for the estimation of infiltration
rates through them. If you have any data and other information to
support your comment, send it along with your comments to the Docket.
(5) Land Application Unit Infiltration Rates
In the calculation of infiltration rates for land application units
for the base case in the proposal, it was assumed that land application
units receive, on average, 1,295.4 m\3\ha (5.1 inches) of water
annually through the application of the waste. This amount of water was
included in the HELP model water balance calculation, resulting in an
increased net infiltration as compared to ambient conditions. The waste
application rate may or may not represent true field situations. As an
alternative to the modeling procedure used for the base case of this
proposal, the Agency evaluated the effect of using ambient recharge
rates, i.e., the application of waste does not significantly alter the
water balance, on the calculated leachate concentration limits. The
comparison of this alternative with the procedure used for the base
case shows that the regulatory leachate concentration limits for a non-
degrading, non-sorbing constituent in land application units changes to
1.12 mg/L from 1.0 mg/L for the procedure used in the base case.
(6) Aggregate Effects of Alternative Groundwater Modeling
Procedures and Data
The preceding sections have presented the effect of alternative
modeling options and data sources that have been considered by the
Agency. A consequence of the Monte Carlo exposure modeling approach is
that the effects of changes in model parameters are not always linearly
additive; rather the aggregate effect of changing multiple parameters
or options may be to either magnify or reduce the effect of the
individual changes. The Agency, therefore, has conducted modeling
analyses of the aggregate effect of the alternatives discussed above
for each of the four waste management scenarios. In addition to the
alternatives presented in the preceding subsections, a modification was
also made in the procedure for modeling waste sites for which the
corresponding hydrogeological region was initially assigned as ``not
classifiable''. Rather than ignoring the small fraction of sites
involved, they were incorporated into the analysis by assigning them
nationwide average values for the groundwater parameters. Table 5
presents the aggregate effect of all changes for each of the four waste
management scenarios modeled. The modeling results correspond to a non-
degrading, non-sorbing constituent. The leachate concentration limits
are normalized with respect to a value of 1.0 mg/L for the landfill
scenario, under the modeling procedure for the base case of this
proposal. The results are presented for a 1,000 year time horizon;
however for a non-sorbing constituent, these same results also hold for
the 10,000 year time horizon.
Table 5.--Aggregate Effect of Modeling Alternatives on Leachate
Concentration Limits for Non-Degrading, Non-Sorbing Constituents for
Four Waste Management Scenarios
------------------------------------------------------------------------
HWIR Alternative
Waste management scenario proposal Options
------------------------------------------------------------------------
Landfill........................................ 1.0 0.71
Surface Impoundment............................. 0.22 0.27
Waste Pile...................................... 0.29 484
Land Application Unit........................... 0.08 0.22
------------------------------------------------------------------------
Table 5 shows that, except for landfills, the aggregate effect of
the combined alternative options is a less conservative (higher)
leachate concentration limit. For landfills, adoption of the
alternative modeling options would have resulted in a 30 % less
stringent regulatory leachate limit for the groundwater pathway for
non-sorbing and non-degrading constituents. For surface impoundments,
there is little overall impact because the opposing effects of
increasing the impeding layer hydraulic conductivity, and the
alternative Monte Carlo procedure for handling parameter bound
exceedances, nearly cancel out. For waste piles on the other hand, the
procedure used for the base case, results in a significantly more
conservative leachate concentration limit as compared to the
alternative modeling options. This is due to the handling of parameter
exceedances in the Monte Carlo simulation. Because many waste piles
have very small sizes (surface areas), the alternative Monte Carlo
procedure has a large impact. For land application units, the
procedures used in the proposal for the base case also result in a more
conservative regulatory limit as compared to the alternative modeling
options. The contributing factors are much the same as for waste piles,
but the overall impact is much smaller, primarily because there are
only few land application units with very small areas.
F. Additional Eco-Receptor Considerations
EPA considered two different policy goals with respect to
protection of terrestrial ecological receptors (i.e., soil fauna,
birds, mammals, and plants). One goal protected terrestrial ecological
receptors outside the boundaries of the waste management site, thus,
the constituent had to travel off-site before exposures would be
assessed. The alternative goal protected terrestrial ecological
receptors on the closed land application site.
The Agency chose to propose exit levels based on off-site impacts
for several reasons. One reason is that there are many land use
decisions that significantly affect terrestrial ecological receptors on
the property of a party making those decisions (e.g., a decision to
pave a portion of land as a parking lot). EPA does not generally
regulate those sort of decisions. However, many impacts are judged
through local zoning regulations. Congress has typically asked EPA or
other Federal entities to regulate activities on a property when there
are significant off-site impacts, such as a groundwater plume that
migrates, an air release that moves beyond the property, a wetland
(located on the property) that is a significant resource for migratory
birds and has broader ecological significance, or an endangered species
with social values beyond the impact on a specific landowners purview.
EPA asks for comment, however, on the alternative of protecting
terrestrial ecological receptors on-site. The rationale for this
alternative approach would relate to protection from impacts on bird
and mammal populations, and
[[Page 66376]]
other ecological receptors, and to the regulation of certain
constituents that could potentially result in environmental
consequences that go significantly beyond the bounds of a current waste
management unit.
G. Background Concentrations in Soils and Other Issues Relating to
Results
EPA has compared the exit levels for nonwastewaters to data on the
variation in mean background concentrations found in soils. For some
metals, the exit levels calculated based on risks at land application
units are below 4 mean soil concentrations. One reason exit
criteria may be below soil concentrations is that these metals
bioaccumulate, causing greater exposure for higher trophic levels.
Also, the acceptable levels for some of the metals that would be
calculated for practices other than land application are significantly
higher and not below mean soil concentrations.
\4\ When compared with mean soil background levels provided by
the USGS, the exit levels are not more that 1 order of magnitude
more restrictive.
---------------------------------------------------------------------------
If the final exit levels are below typical soil levels, EPA would
consider promulgating levels based on concentrations that are either
typical soil concentrations (national mean levels) or some percentile
or portion of the naturally-occurring range such as the 10th
percentile. If the effect of concern is an ecological impact, the
rationale for using the 10th percentile (or similar figure if the data
available does not allow that precision) would be that in 90 percent of
locations, if the soil already contains those or greater levels, the
ecological receptors existing in the area should already reflect the
toxicity of the waste material; the rational for using the 10th
percentile (or similar value) value is that human behavioral practices
(e.g., treatment of groundwater prior to use) may already reflect
protection from the potential toxicity of concern. EPA asks for comment
on whether these are reasonable arguments.
EPA is concerned, however, that there are also issues of the
chemical and physical form in which compound or chemicals exist, in
both natural conditions and in the waste and that a simple comparison
of total concentrations in soils and in wastes might be misleading
about potential ecological or human impacts. EPA requests comment on
these issues. EPA's first preference will be to reexamine the risk
modeling to identify any inappropriate assumptions or modeling issues
that may explain the low proposed exit level, and to look more
carefully at those constituents where this issue only arises from the
modeling of risks from land application units, to identify potential
contingent management solutions to this problem.
Finally, EPA requests comment on whether these arguments could be
extended to site-specific determinations where information on local
background constituent concentrations and form in soil are available
and have been reviewed by a State regulatory authority. EPA assumes
that such an approach would only apply if the background concentrations
were more than very localized and the concentrations were naturally-
occurring rather than due to past contamination. If a site-specific
determination were adopted, two approaches are available that have been
used in other contexts. One statistical technique for determining
whether background data conform to a normal distribution assumption
includes combining the Student-t difference of means test, presented in
the Permit Guidance Manual on Unsaturated Zone Monitoring for Hazardous
Waste Land Treatment Units, (EPA, 1986) with the normal tolerance
interval approach found in Statistical Analysis of Ground Water at RCRA
Facilities-Interim Final Guidance, (EPA, April 1989). The Student-t
test compares averaged waste/media concentrations to background
concentrations, and is used to determine if the waste/media as a whole
is within a specified criteria. However, even if the waste/media passes
the Student-t test, individual sample concentrations may still exceed
the tolerance interval limit. The normal tolerance interval approach is
used to compare sample concentrations to an upper tolerance value based
on the background mean, standard deviation, and sample size.
If such an approach is incorporated into the final rule, it would
include criteria for defining and collecting adequate background
samples. More specifically, the facility would be required to identify
background locations, sample size, soil depth, etc. for at least four
samples in a ``difference of means'' demonstration, and six to eight
samples for a ``tolerance of means'' demonstration. The facility would
also need to demonstrate the normalcy of the sample distribution. The
Agency would require that this information be included as part of the
facility's sampling and analysis plan and subject to review by the
appropriate overseeing authority.
A more simplified approach would be to establish exit levels at \1/
10\ of the naturally occurring background level. The rationale for
using \1/10\ is that these levels would not appreciably contribute to
the overall risk posed by elevated levels in the environmental media.
EPA requests comment of this approach as well as the rationale.
Alternatively, the rule could defer any background level
demonstrations to an omnibus authority for the overseeing agency. Under
this concept, a claimant could submit information on naturally
occurring background level and a request for modified exit levels to
the agency overseeing the exemption process, which would have
discretion to grant modifications where they are clearly justified.
Comment is requested on the need for this authority.
The Agency solicits comments on other appropriate and generic ways
(1) to identify background levels in soils, and (2) to incorporate the
existing 40 CFR part 264, subpart F standards for establishing
background levels for groundwater. Other suggestions that address the
Agency's intent to promulgate a simplified exemption with little
reliance on site-specific considerations but also allow for
consideration of elevated background levels will be considered.
EPA also observed that some of the exit levels for organic
chemicals appear relatively high (see, for example, the level for
xylene). EPA believes that these results occurred primarily because
these chemicals either are toxic only at relatively high concentrations
or undergo high dilution during transport. EPA, however, requests
comment on whether these chemicals are frequently co-disposed and, if
so, whether they might pose cumulative risks not assessed by the risk
analysis. EPA is interested in information on issues such as whether a
waste containing one or more of these constituents at concentrations
near exit levels would be ignitable or threaten the integrity of
control measures such as liners.
H. Constituents with Extrapolated Risk-based Levels
EPA was unable to conduct the risk assessment for 187 of the 376
constituents on the exit list. In most of these cases, EPA was unable
to find acceptable human health benchmarks to serve as the starting
place for the assessment. In a few cases, EPA could not find values for
critical physical or chemical properties, such as log Kows. Based
on its past experience, EPA believes it would need at least a year to
develop a new human health benchmark value for any constituent. EPA has
less experience with the type of research and peer review needed to
develop values for physical and chemical properties, but it believes
that this process also would be time-consuming.
[[Page 66377]]
Rather than not consider the 187 constituents for which EPA was
unable to conduct the risk assessment as potential candidate
constituents for exit criteria, EPA developed an approach for
establishing exit criteria for these constituents. The Agency grouped
the constituents on the exit list into classes, based on chemical
structure. EPA selected the 50th percentile value from the range of
modeled risk levels for each chemical class. This 50th percentile value
serves as the extrapolated risk-based level for the un-modeled
constituents in the corresponding chemical class. The constituents and
their 50th percentile extrapolated risk-based levels are presented in a
background document Background Document to Support the Methodology used
in Extrapolating Exit Levels to Constituents with no Health-Based
Benchmarks. EPA is proposing the 50th percentile level to avoid adding
another conservative assumption to the derivation of exit levels for
these constituents. EPA believes that the multipathway approach is
already sufficiently conservative to protect human health and the
environment even for these chemicals. EPA, however, requests comment on
the alternative of using the 10th percentile or a different percentile
from the modeled exit levels from each class. Such an approach would
reduce the chances that the actual health benchmark for a particular
level was lower than the extrapolated estimate. However, it would also
increase the odds that the extrapolated level was higher than needed
for many constituents. A complete list of extrapolated constituents and
associated risk levels may be found in appendix C to today's preamble.
EPA recognizes that this approach to generating exit levels is much
less sophisticated and precise than the multipathway analysis.
Nonetheless, EPA prefers it to any of the available alternatives. If
EPA set no exit levels and made wastes containing any of these
constituents ineligible for exit, a significant number of waste streams
would probably be ineligible, even though they may pose no significant
threat to human health and the environment. EPA's RIA data shows that
some of these constituents, such as Cyanide and Anthracene, are fairly
prevalent. Although other constituents, such as those found in the
commercial chemical products on the P and U lists of hazardous wastes,
are not very prevalent, they may be significant for generators that
manage multiple waste streams in centralized wastewater treatment
plants. In the absence of extrapolated exit criteria, a generator would
lose its opportunity to claim an exit for an entire combined stream if
any of these constituents is found in the waste stream. Furthermore, it
would take a long time to complete the work necessary to conduct
exposure pathway assessments for any significant number of these 187
constituents.
Alternatively, EPA could propose to allow wastes to exit without
testing for constituents lacking modeled exit levels. EPA, however,
finds this approach insufficiently protective, especially when it can
at least approximate likely risk levels as described above.
Finally, EPA considered the alternative of basing exit levels for
these constituents on quantitation limits. As explained below, EPA is
proposing to use EQCs as exit levels where they are higher than a
constituent's multipathway or extrapolated exit level. (EPA is also
proposing that wastes with such constituents meet the technology-based
LDR standards for those constituents prior to exit.) EPA considered
using this EQC and LDR approach for constituents lacking multipathway
levels. Such an approach would actually produce more conservative exit
levels, because EPA would not use extrapolated levels that are higher
than EQCs. EQCs (and technology-based LDRs), however, are not based on
risk. EPA prefers the extrapolated approach because it takes into
account the toxicity and fate and transport of structurally similar
chemicals. EPA believes it would be unreasonable to continue to
regulate a chemical because chemistry can detect it, where the
extrapolation described above suggests that the chemical poses no
significant risks at the EQC level.
EPA finds the option of basing exit levels on the extrapolation
procedure described above to strike a reasonable balance between the
goals of protecting human health and the environment and eliminating
regulation of low-risk wastes. EPA, however, requests comment on all of
the alternatives described in this section.
I. Analytical Considerations
Some of the proposed exit levels established by the risk assessment
and the extrapolation methodology are low. In some cases, existing
analytical methods cannot routinely detect the constituents at those
levels. EPA is proposing to cap these potential exit levels with
reasonable analytical quantitation limits. The Agency is proposing
quantitation limits that represent the lowest levels that can be
reliably measured within acceptable limits of precision and accuracy
during routine laboratory operating conditions using appropriate
methods. These concentrations are referred to as ``exemption
quantitation criteria,'' or EQCs. It is necessary to specify EQCs
because a number of the constituents on the exemption list have either
modeled or extrapolated risk-based levels that are not analytically
achievable in all matrices. Appendix C to today's preamble lays out the
comparison between the modeled or extrapolated risk level and the EQC
for every constituent. Approximately one-quarter of the constituents
have proposed modeled or extrapolated risk-based levels lower than EQC.
1. Development of Exemption Quantitation Criteria (EQC)
To develop the EQCs proposed in today's notice, EPA compiled a
master list of the quantitation limits published for the identified
constituents in the Third Edition of Test Methods for Evaluating Solid
Waste, (SW-846), including the first and second updates (both of which
are widely distributed throughout the regulated community). The Agency
believes that the resultant EQCs present achievable quantitation limits
for the proposed exemption constituents in most matrices. The Agency
requests comment on the proposed quantitation limits as well as any
data supporting those comments.
A regulatory action level (e.g., exit levels) must provide a clear
distinction between those wastes subject to the regulation and those
excluded. Action levels based on analytical determinations within a
methods quantitative range can be used to determine regulatory status
with a high degree of confidence. On the other hand, when an analyte is
present at a concentration equal to the detection limit (DL) it will be
detected only half the time. In other words there is a 50% risk of a
false negative result when the analyte is present at the DL
concentration. There is, however, a less than 1% risk of false positive
results at this level. Therefore, regulations set at the detection
limit would not identify non-compliance reliably.
The Agency is in the process of re-evaluating EQCs for some
constituents. Preliminary updated EQCs could not be incorporated into
today's proposed rule, but have been included in the docket for
comment.
2. EQCs and LDR Requirements as Exit Levels
A comparison of the modeled or extrapolated risk-based levels with
the EQCs reveals a number of cases where
[[Page 66378]]
quantitative measurement of analyte concentration at the modeled or
extrapolated risk-based level cannot be reliably achieved, using
standardized analytical methods. In today's proposed rule, for wastes
containing constituents with a modeled or extrapolated risk-based level
lower than the EQC, exit criteria include meeting the EQC along with an
additional requirement that the waste meet Land Disposal Restrictions
(LDR) treatment standards from part 268, regardless of whether or not
the waste is to be land disposed. The exit table for constituents with
EQCs as exit levels is proposed appendix X of 40 CFR part 261, Table B.
a. EQCs as exit levels
Only when the comparison between the modeled or extrapolated risk-
based level with that constituent's EQC level reveals that the
constituent cannot be quantitated at the modeled or extrapolated risk-
based level, does the EQC become the exit level. For example, the
modeled risk-based level for 2-nitropropane in wastewaters is 0.00019
g/L. The EQC for 2-nitropropane in wastewaters is 0.0058
g/L. 2-nitropropane is listed in appendix X, Table B, with an
exemption level of 0.0058 g/L. In other words, the exemption
level for 2-nitropropane has been met if the claimant demonstrates that
the method used can achieve the EQC of 0.0058 g/L in the waste
matrix, and the level detected by the method does not exceed 0.0058
g/L.
The Agency believes that, for those constituents that have a
modeled or extrapolated risk-based level lower than the achievable
quantitation limit, demonstration that the constituent is not present
above the EQC is the most reasonable approach to setting a national
exemption level. The Agency is proposing that quantitation limits cap
the modeled or extrapolated risk-based levels because a reliable,
consistent measure of the constituent below the quantitation limit is
not achievable. By establishing EQCs as benchmarks (or maximum
allowable quantitation limits), the Agency is ensuring that all
exemption demonstrations will achieve acceptable analytical
sensitivity, and that wastes with high levels of contamination that
tend to confound analytical protocols are not exempted.
The Agency requests comments on whether an exemption demonstration
should be considered adequate if all proper method selection and QC
procedures are followed and the constituents are not detected, even
though the EQC level has not been analytically attained. This situation
could arise even in relatively clean matrices if the constituents bind
strongly to the matrix or if the constituents degrade rapidly during
the analysis. However, the Agency would not want the exemption to be
allowed if the EQC could not be achieved because of interference from
other contaminants in the matrix, or if inappropriate methodology,
i.e., sample preparation, cleanup (if necessary), or determinative, was
used.
EPA is not proposing that any exit level based on an EQC can serve
as a ``minimize threat'' level capping current 40 CFR part 268
treatment standards. Such levels are not sufficiently related to a
constituent's risk.
b. LDR Requirements for Constituents With EQC Exit Levels
EPA considered the option of setting exit levels for all
constituents at their modeled or extrapolated levels, regardless of
analytical considerations. EPA also considered the alternative of
making wastes containing constituents with analytical limitations
ineligible for exit. Both of these options, however, are likely to
constrain significantly the number of waste streams eligible for exit.
Approximately one-quarter of the constituents on the exit list have
EQCs above risk-based or extrapolated levels. Some of these
constituents, such as Beryllium and Arsenic, are fairly prevalent. For
less prevalent constituents, EPA has the same concerns about limiting
exit for wastes managed in centralized wastewater treatment systems
that it described above in the section on extrapolated risk levels.
Further, this approach would overregulate wastes where constituents
were in fact below risk levels. EPA prefers options which would not
prohibit all wastes with these constituents from exiting.
The most promising alternative EPA found was setting exit levels
for these constituents at EQC levels, and also requiring all wastes
containing these constituents to comply with LDR treatment standards,
even where such waste are not destined for land disposal. This
alternative offers the possibility of additional risk reductions and,
therefore, reduces the possibility that wastes posing significant
threats will escape Subtitle C control.
EPA is unable to characterize the amount of additional risk
reduction for a number of reasons. First, as explained in more detail
in the Minimize Threat section of the preamble, compliance with LDRs
already will be required after exit before land disposal for all wastes
(except those that are below exit levels at their point of generation).
The LDR requirement for constituents with EQC exit levels may provide
additional risk reduction, even for those constituents that are not
managed in land disposal units. EPA currently does not know how
frequently nonhazardous wastes are burned as fuel, incinerated, or
otherwise managed outside of land disposal.
Additionally, the Universal Treatment Standards (UTS) for
nonwastewaters, were developed based on similar analytical chemistry
considerations of detection limits. The majority of the UTS limits for
nonwastewaters were based, however, on analysis of residuals from the
treatment of what EPA determined to be the most difficult to treat
wastes and, as a result, this often represented the most difficult to
analyze treated matrix (i.e., higher detection limits than those
represented by the EQCs). The majority of the UTS limits for
wastewaters, on the other hand, were not developed based on limits of
detection but rather they were based on analysis of treated effluents
regulated under EPA's National Pollution Discharge Elimination System
(NPDES).
LDR requirements for all wastes subject to the UTS would be equal
to or higher than the EQC exit levels themselves. However, for wastes
subject to treatment standards based on application of specified
treatment methods under Sec. 268.40, extending LDR requirements may
provide additional risk reduction.
EPA believes that the combined approach of requiring non-detection
at EQC levels and compliance with LDR standards for all waste streams,
regardless of whether or not the waste will be land disposal, offers a
reasonable balance between the goals of reducing overregulation and
ensuring that wastes with significant risks remain subject to Subtitle
C. EPA, however, requests comment on all of the alternatives described
above. EPA also requests comment on the option of basing exit levels
for these constituents on EQCs alone and relying on continued,
independent applicability of LDR requirements for wastes that exit and
are destined for land disposal.
3. Exemption for Constituents Without EQCs
There are several constituents covered in today's notice for which
EQCs could not be developed. The universe of these constituents
includes 78 constituents, most of which are not widely prevalent in
wastes. Most are also found only in P and U listed wastes. These
constituents are listed in table B to appendix X without associated
exemption levels. The background document Background Document to
Support the Development of Exemption
[[Page 66379]]
Quantitation Criteria (EQCs) and Description of Analytical Methods
under the Waste Exit Rule explains why EQCs could not be created.
EPA is proposing that wastes containing these constituents (i.e.,
where an applicant has not documented that these constituents are not
present--see section VIII.A.1.b.,) may remain eligible for an exemption
under today's proposed rule by complying fully with LDR treatment
standards applicable to the waste, as codified in 40 CFR part 268,
regardless of whether the waste is to be land disposed. The Agency
believes that any potential risks posed by these constituents are
likely to be further reduced by applying LDR standards from part 268 to
the waste, before the waste may be exempt, regardless of whether or not
the waste is destined for land disposal. The Agency asks for comment on
this approach.
An alternative approach would be to allow wastes with these
constituents to exit without additional LDR obligations, but relying on
continued, independent applicability of LDR treatment requirements to
wastes destined for land disposal only. Another approach would be to
prohibit wastes containing these constituents from being eligible for
exemption under today's proposed rule. An additional approach would be
that these constituents could be deleted from the exit table. The
Agency requests comment on each of these alternatives.
EPA is not willing to propose to use LDR standards as exit levels
for any other group of constituents. The technology-based LDR standards
are not based on any risk assessment. A comparison of these standards
with the multipathway risk levels that EPA produced shows that the LDR
standards are sometimes more stringent and sometimes less stringent
than risk-based levels. EPA believes that it is more prudent to base
exit levels on risk assessment where possible because this better
assures protection of human health and the environment. EPA views use
of the LDR standards as the option of least preference, but necessary
for exit for this group of constituents. EPA is willing to consider it
only where there is no alternative to prohibiting a constituent from
being eligible for exit.
V. Presentation of Exit Levels
Today's proposed exemption criteria involves setting exemption
levels for toxicants in listed waste, and in some cases requiring
additional compliance with the requirements set forth at 40 CFR part
268. To exit Subtitle C regulation as a listed hazardous waste, all the
hazardous constituents listed in appendix X of part 261 would be
required to be in concentrations less than or equal to the numeric exit
levels and when specified, the waste would have to meet the applicable
requirements at 40 CFR part 268. Appendix C to the preamble presents
constituents, distinguishes between modeled and extrapolated
constituents, and includes EQCs for each constituent.
A. Constituents With Modeled or Extrapolated Risk-Based Exit Levels
The Table A of proposed appendix X to part 261 presents exit levels
for constituents with modeled or extrapolated risk-based levels which
can be reliably quantified. See section IV.H. for a description of how
this was determined. Listed hazardous waste would be required to
contain concentrations at or below the specified exit levels to be
eligible to be exempted from Subtitle C requirements other than LDR. In
some cases we are proposing to change the land disposal restriction
requirements at 40 CFR part 268 as well. A totals analysis would be
required for both wastewaters and nonwastewaters to show that the
constituent does not exist in the wastestream at levels above the
exemption level.
For nonwastewaters, the Agency is also proposing that generators
either use the TCLP test or a calculational screen to measure or
calculate constituents' leachate from wastes. If the TCLP test shows
leachate concentration in the waste is below the leach exit level, the
waste would be considered to not pose a hazard to groundwater.
The Agency has in the past experienced difficulty in using the TCLP
test for some types of waste. The Agency solicits comment on how to
consider oily wastes and other wastes that are difficult to filter in
the TCLP test or whose impact on groundwater is believed to be
underestimated by the TCLP (such as materials subject to non-aqueous
phase transport). Comment on alternative tests for these wastes, as
well as comment on how to define such wastes for regulatory purposes is
sought. A more complete discussion of oily waste can be found in
VIII.A.1.a.iv.
Table A of appendix X of 40 CFR part 261 presents results of two
alternatives for establishing the exit levels. These alternatives
differ only in the benchmark used to calculate the modeled risk-based
levels. For certain constituents there exists both a risk-based
toxicity benchmark and a maximum concentration level (MCL) established
under the Safe Drinking Water Act (SDWA). These numbers may differ
because the MCLs are established using some non-risk considerations
such as the cost of treatment and the availability of technology and
consider exposure contributions from other sources for non-carcinogens.
See section IV.D. of today's proposal for a complete discussion of
toxicity benchmarks and MCLs.
B. Constituents With Quantitation-Based Exit Levels; Table B to
Appendix X
Table B of proposed appendix X to part 261 presents quantitation-
based exit levels for constituents with methods that cannot reliably
quantify the modeled or extrapolated risk-based levels. All exit levels
on Table B of appendix X to 40 CFR part 261 are based on EQCs. (See
section IV.I.) Wastes containing any of these constituents must also
comply with the applicable treatment standards set forth at 40 CFR part
268, the Land Disposal Restrictions (LDR) in order to meet today's
proposed exemption, regardless of whether or not the waste is to be
land disposed.
Some constituents on Table B of appendix X of 40 CFR part 261 do
not have associated exit levels. Waste with these constituents may exit
only after complying with the LDR treatment standards for the waste.
(See section IV.I.2.b.)
C. How To Read the Exit Level Tables
For a waste to be eligible to exit Subtitle C under the exit
proposed in today's rulemaking, every constituent in the waste must be
below its exit level. Proposed appendix X of 40 CFR part 261, Tables A
and B are the exit constituents and the exit levels. The following is a
description of how to read the tables.
The constituent list is derived from constituents listed
in appendix VII, Basis for Listing Hazardous Waste; Appendix VIII,
Hazardous Constituents; and appendix IX of part 264, the Ground-Water
Monitoring List. (See section IV.C.)
Table A represents constituents and their risk exit
values--where the risk values can be measured analytically. (See
sections IV.E., and IV.I.)
Table B represents constituents with quantitation limits
(EQCs) as exit levels--where the constituent cannot be measured at the
modeled or extrapolated risk value. An additional condition of exit,
compliance with treatment standards in 40 CFR part 268, exists for any
waste becoming exempt under today's rulemaking by using a constituent
exit level on Table B. (See section IV.I.2.b.)
There will be overlap for some constituents between Tables
A & B. For
[[Page 66380]]
example, the wastewater exit level for a constituent may be on Table A,
whereas the nonwastewater exit level may be on Table B.
Where an exit level does not exist on Table A or B for a
particular constituent, the waste need not be tested for that
constituent. For example, some constituents that are hydrolyzers have
exit levels for nonwastewaters, but not for wastewaters. A complete
discussion of deletions to the master constituent list can be found in
section IV.C.
The tables' columns:
Columns 1 and 2 are the CAS numbers & constituent names.
There are two proposed options for the development of
today's proposed exit levels. Option 1 is the option whereby Maximum
Contaminant Levels (MCLs) from the Drinking Water program are used as
an acceptable toxicity exposure for human drinking water exposure and
toxicity benchmarks are used for other exposures. Option 2 is the
option whereby toxicity benchmarks are used as acceptable exposure
levels for all exposures. A more complete discussion of these two
options is found in section IV.D. of today's proposed rule. The effect
of co-proposing these two options is that there are two independent
sets of proposed exit levels.
--Columns 3, 4, and 5 represent the exit levels that were derived by
using an MCL benchmark for drinking water ingestion & using toxicity
benchmarks for all other routes of exposure.
--Columns 6, 7, and 8 represent the exit levels that were derived by
using toxicity benchmarks for all routes of exposure.
The definitions of wastewater and nonwastewater are
discussed in VIII.A.1.a.ii.
Columns 3 & 6 represent wastewater exit values. If a
generator determines he/she has a wastewater, if each constituent in
the waste meets these wastewater exit levels, it is eligible for
exemption.
--Values in columns 3 & 6 were derived from the most limiting of non-
groundwater-ecological receptor, non-groundwater-human receptor, and
groundwater pathway values from surface impoundments and tanks (the
risk assessment's wastewater units).
Columns (4 and 5) and (7 and 8) represent nonwastewater
exit values. If a generator determines he/she has a non-wastewater, if
each constituent in the waste meets both of these nonwastewater values,
it is eligible for exemption. The totals level must be met by a totals
analysis. The leach level must be met by a TCLP test or the
calculational screen.
--Values in columns 4 & 7 were derived from the most limiting of the
non-groundwater-ecological receptor and non-groundwater-human receptor
pathway values from land application units, ash monofills, and waste
piles (the risk assessment's nonwastewater units).
--Values in columns 5 & 8 were derived from the most limiting of the
groundwater pathway values from land application units, landfills, and
waste piles (the risk assessment's nonwastewater units).
VI. Minimize Threat Levels
A. Background
1. Summary of the Hazardous and Solid Waste Amendments of 1984
The Hazardous and Solid Waste Amendments (HSWA), enacted on
November 8, 1984, allow hazardous wastes to be land disposed of only if
they satisfy either of two conditions: (1) They can either be treated
or otherwise satisfy the requirements of section 3004(m), which
requires EPA to set levels or methods of treatment, if any, which
substantially diminish the toxicity of the water or substantially
reduce the likelihood of migration of hazardous constituents from the
water so that short term and long term threats to human health and the
environment are minimized; or (2) they can be land disposed in units
satisfying the so-called no migration standards in sections 3004(d)(1),
(e)(1), and (g)(5). Land disposal includes any placement of hazardous
waste in a landfill, surface impoundment, water pile, injection well,
land treatment facility, salt dome formation, underground mine or cave.
See RCRA section 3004(k).
EPA was required to promulgate land disposal prohibitions and
treatments standards by May 8, 1990 for all wastes that were either
listed or identified hazardous at the time of the 1984 amendments, a
task EPA completed within the statutory time frames. See RCRA section
3004(d), (e), and (g). EPA is also required to promulgate prohibitions
and treatment standards for wastes identified or listed after the date
of the 1984 amendments within six months after the listing or
identification takes effect. See RCRA section 3004(g)(4).
The land disposal restrictions are effective on promulgation. See
RCRA section 3004(h)(1). However, the Administrator may grant a
national capacity variance from the effective date and establish a
later effective date (not to exceed two years) based on the earliest
date on which adequate alternative treatment, recovery, or disposal
capacity that protects human health and the environment will be
available. (RCRA section 3004(h)(2).) The Administrator may also grant
a case-by-case extension of the effective date for up to one year,
renewable once for up to one additional year when an applicant(s)
successfully makes certain demonstrations. (RCRA section 3004(h)(3).)
See 55 FR 22526 (June 1, 1990) for a more detailed discussion on
national capacity variances and case-by-case extensions.
As explained in the legislative history, the purpose of the land
disposal restrictions is to reduce the risks associated with land
disposal. Congress also intended the restrictions to reduce reliance on
land disposal and promote waste minimization since land disposal was
its least favored method of managing hazardous wastes.
2. EPA's Interpretation of Standard for Treatment Requirements
The heart of the LDRs are the standards for treatment prior to land
disposal, which must meet the statutory requirement to ``substantially
diminish the toxicity of the water or substantially reduce the toxicity
of the waste so that short term and long term threats to human health
and the environment are minimized.'' RCRA Section 3004(m): EPA's
interpretation of this ``minimize threat'' requirement has evolved
through a long series of rulemakings.
When EPA proposed its first set of LDR treatment standards it took
the position that the most effective way to minimize threats was to
base standards on the capabilities of generally available treatment
technologies. (51 FR 16011 (January 14, 1986).) To avoid unnecessary
treatment, however, EPA also proposed to ``cap'' the technology based
standards with risk-based screening levels based on human health
toxicity thresholds for individual hazardous constituents and modeling
of the groundwater route for exposure. (51 FR 16011-13.)
In the final rule EPA promulgated only the technology based
standards. EPA explained that although it believed it had authority to
promulgate risk-based standards, it was not promulgating the proposed
risk-based caps because of extensive comments raising concerns about
the scientific uncertainties of risk analysis. (52 FR 40578 (November
7, 1986).) Industry challenged the final standards, claiming that they
required treatment to concentrations below ``minimize threat'' levels.
On review, the Court held that section 3004(m) authorized both
[[Page 66381]]
technology based and risk-based standards, but remanded the rule to EPA
for a fuller explanation of its decision to rely on technology-based
standards alone. (Hazardous Waste Treatment Council v. EPA, 886 F. 2d
355 (D.C. Circ. 1989). (``HWTC III'').) The court also held that EPA
was not obligated to adopt either the RCRA characteristic test levels
or the Safe Drinking Water Act Maximum Contaminant levels (MCLs) as
``minimize threat'' levels because neither ``purports to establish a
level at which safety is assured or `threats to human health and the
environment are minimized'.'' (886 F. 2d at 363.)
In its response to the remand, EPA stated that the best way to
fulfill the requirements of section 3004(m) would be to ensure that no
technology-based treatment standard required treatment of hazardous
waste containing levels of hazardous constituents posing insignificant
risks. (55 FR 6641 (Feb. 26, 1990).) EPA, however, explained that it
was not yet able to promulgate such levels. EPA believed that it lacked
a reliable predictive model for ground- water exposure, needed to
assess exposure scenarios for air pathways, needed to consider impacts
on ecological receptors, needed to develop additional analytic methods
for hazardous constituents, and needed to develop an approach for
constituents with threshold effect levels lower than detection limits.
(Id. at 6642.)
In the same notice, EPA noted that the ``minimize threat'' language
of section 3004(m) could reasonably be interpreted to require more
protection than the ``normal subtitle C command that standards be those
necessary to protect human health and the environment.'' (Id. at 6641.)
EPA found that the many portions of the 1984 amendments stressing the
inherent uncertainties of land disposal buttressed this interpretation.
See, e.g., RCRA sections 1002(b)(7), 3004(d)(1)(A), 3004(e)(i)(A),
3004(g)(5). EPA also found support in the legislative history. For
example, the Senate amendment containing the ``minimize threat''
standards replaced a committee bill that only would have required
treatment to be ``protective of human health and the environment.'' See
S. 757, section 3004(b)(7), printed at S. Pep. No. 284, 98th Cong., 2nd
Session 86. Further, EPA noted that the ``no threat'' levels it had
been using in site-specific and waste stream specific contexts, such as
clean closures, delistings, and no-migration petitions, would not
necessarily be appropriate for generally applicable standards required
to minimize threats to health and the environment. (55 FR 6641, note
1.)
At the same time, EPA took the position that section 30004(m) does
not require the elimination of every conceivable threat posed by land
disposal of hazardous waste, citing a statement by Senator Chafee that
``[i]t is not intended that every waste receive repetitive levels of
treatment, nor must all inorganic constituents be reclaimed.'' 130
Cong. Rec. S.9179 (daily ed., July 25, 1984). (55 FR 6641, note 1.)
Clearly EPA did not interpret the minimize threat language to require
the elimination of all threats.
Today, the Agency is proposing to re-evaluate the basis for some of
the existing performance standards established for listed wastes. Since
EPA's response to the HWTC III remand in 1990, the state-of-the-art in
making quantitative determinations of risk has advanced and available
methods have improved significantly. In addition, the increased
sensitivity of analytical methods has lowered achievable detection
limits, better bioassays exist than in the past, and more extensive
biological data is available for extrapolation. As a result, the
universe of available health-based and ecological data has grown
significantly, and the reliability of this information has improved.
The Agency now believes that these data can be used to establish levels
that minimize threats to human health and the environment.
B. Risk Assessment and Minimize Threat Levels
1. Rationale
a. Overview
Today the Agency is proposing to establish risk-based LDR treatment
requirements for some of the hazardous constituents for which exit
levels are being proposed. These risk-based LDR requirements will
minimize the short-term and long-term threats to human health and the
environment posed by the hazardous waste constituents. The risk-based
LDR levels (or ``minimize threat'' levels) would have the effect of
capping, or limiting, treatment of those waste constituents where the
current technology-based UTS standards require lower concentrations.
EPA also hoped to propose most of these constituent-specific levels as
``minimize threat'' levels under section 3004(m) of RCRA that would cap
current technology-based treatment standards under at these levels the
LDR program. However, EPA is proposing ``minimize threat'' levels only
for those constituents that were evaluated under the multipathway risk
analysis and are not capped by quantitation (EQC) limitations. EPA is
proposing to promulgate such levels as replacements for the
constituent-specific treatment levels in the LDR Universal Treatment
Standards (UTS). (As explained in more detail in Section VI, EPA is not
proposing to cap any LDR standards requiring the use of specified
technologies.) As shown on Table 1, Sec. 268.60, EPA is proposing
``minimize threat'' levels to cap UTS treatment requirements for either
the wastewater or nonwastewater (or both) for approximately 70
wastewater constituents and 90 nonwastewater constituents.
EPA, however, is not proposing that any extrapolated levels serve
as ``minimize threat'' levels for LDR purposes. EPA does not have as
much confidence that this alternative methodology provides enough
information on risks to human health and the environment to enable EPA
to determine that risks have been minimized. Similarly, EPA is not
proposing that any levels based on quantitation limits serve as
``minimize threat'' levels. Such levels are not based on any analysis
of risks to human health and the environment. In fact, as explained
above, EPA is proposing to require compliance with technology-based LDR
standards for all wastes which contain such constituents.
If a claimant finds that all constituents in a waste are below exit
levels at the waste's point of generation and if the claimant meets all
of the requirements for filing an exit claim, EPA will not require
compliance with the LDR treatment standards for the waste. EPA will
take the position that such as waste never became subject to subtitle C
regulations, so that LDR standards never applied to the waste. EPA is
proposing to take this position for all exit levels, regardless of
whether they were generated by the multipathway analysis, the
extrapolation method, or EQC limitations. For further explanation, see
section VI.D.
EPA, however, is proposing that all listed wastes which as
generated contain constituents exceeding exit levels must meet LDR
requirements (current or as modified by this proposal), even if the
waste subsequently becomes exempt from hazardous waste regulation under
this rule. This requirement resembles EPA's current rules for ``de-
characterized'' wastes, which must meet LDR requirements even after
they cease to exhibit the hazardous characteristic that made them
subject to Subtitle C in the first place.
[[Page 66382]]
b. ``Minimize Threat'' requirement of Section 3004(m)
EPA continues to believe that the minimize threat language of
section 3004(m) does not require the elimination of every conceivable
threat posed by land disposal of a hazardous waste. The legislative
history of LDR indicates that Congress did not intend to require wastes
to undergo repetitive or ultimate levels of treatment. Rather, Congress
wanted to require use of effective, but widely available treatment
technologies. See 130 Cong. Rec. S 9178 (daily ed. July 25, 1984)
(statement of Senator Chafee introducing the amendment that became
section 3004(m).)). Requiring elimination of all conceivable threats
would almost certainly require use of the most effective treatment
methods available, and this appears to conflict with Congresses'
treatment goals. Moreover, although the DC Circuit has cited the
dictionary definition of ``minimize'' to uphold technology-based
treatment standards below EPA standards such as MCLs and TC levels, EPA
does not believe that the court meant that EPA literally must reduce
threats to the maximum extent possible. (See Hazardous Waste Treatment
Council III, 886 F.2d at 361; Chemical Waste Management II, 976 F 2d.
at 14.) EPA notes that the court indicated that risk-based treatment
standards would satisfy section 30004(m). Hazardous Waste Treatment
Council III, 866 F.2d at 364-65. Further, in his concurring opinion,
Judge Silberman stated that Congress would allow EPA to exercise
reasonable amounts of discretion in determining the level of risk
reduction needed to meet the minimize threat requirement. Id. at 372.
The Agency believes that today's exit concentrations can serve as
risk-based land disposal restriction levels for several reasons. First,
the risk assessment, described in Section IV of today's proposal,
significantly expands beyond the scope of past Agency risk assessment
for wastes and waste constituents. Where adequate data are available,
the analysis can evaluate the potential for waste constituent migration
through almost all significant environmental fate and transport
pathways leading to exposure for human and ecological receptors. As
explained in more detail below, the Agency is also relying on
reasonable conservative risk targets for both humans and ecological
receptors in developing this risk assessment. The Agency believes that
the proposed exit levels represent levels below which further treatment
would not be needed to minimize threats to human health and the
environment.
c. Scope of Risk Assessment
The broad scope of the risk analysis is a critical factor in the
Agency's conclusion that proposed exit levels minimize both short term
and long-term threats to human health and the environment, for those
constituents where data are relatively complete.
The risk analysis evaluates all of the most common non-Subtitle C
disposal options available to waste generators and treaters. These
include disposal in landfills/monofills and by land farming, and
management in surface impoundments, tanks and waste piles. The risk
analysis assumes no minimum level of regulation of these facilities,
and relies on available data to characterize them. As described in
detail in Section IV and in the risk analysis report (EPA 1995), EPA
modeled each disposal alternative using median values for most inputs,
and high-end or conservative values for the two fate and transport and
two exposure parameters for which the modeling outcome is most
sensitive. The Agency believes that the modeling will also protect
against exposures from similar disposal alternatives not specifically
modeled.
The risk analysis evaluates the movement of waste constituents from
each of these disposal options through numerous environmental fate and
transport pathways. These include pathways involving volatiles and
respirable (PM10) particulates, particulate deposition on soil and
plant surfaces, vapor phase diffusion into surface water and plants,
and surface run-off and soil erosion. Many of these pathways can result
in waste constituent movement through the food-chains. Therefore, human
exposures resulting from these fate and transport pathways include
inhalation, soil or groundwater ingestion, and dermal contact, as well
as exposure through consumption of contaminated foods such as fish,
beef or vegetables.
EPA screened all multipathway constituents for potential to pose
threats to ecological receptors. For 45 constituents, EPA
quantitatively assessed likely risk to selected ecological receptors.
Risks to both fresh water aquatic and terrestrial organisms were
evaluated, representing different trophic levels and feeding habits of
the ecosystem. Fish, daphnids, and benthic organisms, mammals, birds,
plants, and soil organisms (nematodes, insects, etc.) were evaluated.
The sustainability of the ecosystem and reproducing populations within
the aquatic and terrestrial ecosystems was selected as an assessment
endpoint, as described in Section IV of this Notice and in detail in
Chapter 3 of the risk analysis support document (EPA 1995).
In addition, as part of this overall risk assessment effort, the
Agency has reviewed and reevaluated its modeling of waste and waste
constituent movement through groundwater. As described in Section IV
above, this responds to comments by interested parties on the original
HWIR proposal, as well as incorporates additional data submitted to the
Agency (API data base), and updated modeling of leaching from wastes
(new HELP model; get Cite).
In evaluating groundwater, the Agency examined both wells located
on the landfill edge and closest wells anywhere down-gradient. Also,
both finite source type and infinite-source type constituents (which
behave as though there is an infinite supply of the constituent in the
landfill, and will continue to leach forever) were evaluated. For
finite source type constituents, the available constituent was not
apportioned over the groundwater and other pathways, i.e., groundwater
was modeled separately. Adsorption to soil and degradation of waste
constituents (but not biodegradation) is modeled, and the toxicity of
constituent daughter products (either more or less toxic than the
parent compounds) is included. (There is a biodegradation module to the
model; however, data to run that module for national conditions are not
adequate at this time, although data were available for some sites. The
Agency will continue to evaluate biodegradation data as they become
available, and assess in the future whether national biodegradation
estimates can be defensibly made). Leaching and groundwater migration
from disposal in unregulated industrial landfills, surface
impoundments, and waste piles have been modeled.
In evaluating the results of this series of groundwater modeling
exercises, the Agency selected the approximate 90th percentile from a
distribution of wells closest to modelled sites. This means that there
is about a 90% probability that the drinking water well closest to the
landfill would be protected at the target concentration (MCL or HBN).
All wells more distant would be protected to a greater extent.
As described in section VI.E. above, the Agency then reviewed the
risk assessment for groundwater and the pathways for each constituent,
and selected as the exit level the concentration, back-calculated to
the waste, from the most limiting (or highest risk) pathway. By using
the most
[[Page 66383]]
limiting pathway as the basis for the risk criterion, the Agency
believes it has accounted for all significant risks resulting from
disposal and management of the waste outside of Subtitle C.
The agency believes it is also important to identify and discuss
some of the limitations of the risk assessment, especially as they
relate to determining whether short term and long-term threats to human
health and the environment have been minimized.
The analysis does not account for additivity of risk for exposure
to multiple constituents. Evaluation of risk additivity can be a
complex analysis when even a few constituents are included. In the case
of multiple waste constituents, potentially occurring in one or more
waste streams that might be considered for exit, the complexity of
conducting and analysis of additivity of risk quickly becomes
overwhelming. However, EPA believes it will often be the case that one
constituent typically drives determinations of whether waste streams
exit and additivity would often make little difference with respect to
the calculated exit levels.
Exposures to the same constituent from several pathways also are
not added together, even though the risk analysis does apportion the
available quantity of waste constituents over the different pathways
evaluated. Again, EPA believes that often one result (in this case, one
pathway) would contribute most of the risk and little would be gained
from adding across pathways. EPA requests comment on this issue.
Data also were not available for all human exposure routes for all
constituents, although data for high-risk pathways were usually
available. Nonetheless, the Agency believes the exit levels can be
considered to represent levels that minimize threats to human health
and the environment because of the comprehensive evaluation of possible
exposure routes, consideration of both human and ecologic risk,
selection of the most restrictive pathway overall, and the relatively
conservative risk target, 10-6, used in setting the exit levels
derived from cancer risk estimates.
As mentioned above, EPA conducted a screening analysis to identify
47 high priority constituents for ecological assessment. EPA did not
model the ecological impacts for 36 additional constituents that
displayed one characteristic indicating potential ecological impacts.
EPA is proposing to set minimize threat levels for 19 of these
constituents.
EPA believes that it has adequately assured that the caps to BDAT
treatment standards proposed today minimize threats to the environment.
The specific ecological risk assessment conducted for 45 constituents
(19 of which have minimize threat levels under this proposal) is the
most extensive EPA has ever conducted under the RCRA program to date.
EPA did not find threshold effects data for all seven groups of
ecological receptors for any constituent evaluated for ecological
risks. Rather, EPA typically had benchmarks for three to five groups.
Nevertheless, its consideration of a broad range of species and use of
reasonably conservative endpoints ensures that threats to ecological
receptors are minimized.
With regard to chemicals that did not undergo this detailed
assessment, EPA has conducted an extensive review of risks to human
health, including a thorough review of risks posed by indirect pathways
and risks posed by constituents that bioaccumulate in plants and
animals consumed by humans. (Bioaccumulation is a key concern for
protection of many ecological species.) EPA believes that it is
reasonable to assume that the exit levels identified by this analysis
also minimize threats to ecological receptors unless it has some
definite data indicating that additional protection is warranted.
Reliance on these levels is particularly appropriate for those
chemicals that did not display one of EPA's ecological screening
characteristics. EPA finds it also appropriate for the 15 ``minimize
threat'' chemicals which exhibited one ecological screening
characteristic. EPA acknowledges that conducting a specific assessment
of ecological risks for these 15 constituents would have provided
additional assurance that threat to ecological receptors were
minimized. EPA solicits comment on the option of declining to set
minimize threat levels for these 15 constituents until it can complete
an ecological assessment for them.
d. Risk Targets Minimize Threats
The Agency believes that the risk targets used in the risk analysis
to back calculate to waste concentrations minimize threats to human
health and the environment. For cancer risks to human, a risk target of
one in one million, over a lifetime is the risk target. For non-
carcinogens, a
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
hazard quotient (HQ) based on a reference dose or other
comparable value from the literature could not exceed one (hazard
quotient (HQ)=1). Reference doses or comparable values are based on
studies of toxicity and no-effect levels in test animals and
extrapolated, using safety factors, to humans. For ecological
receptors, population effects inferred from individual effects and
effects on a substantial number of both aquatic and terrestrial species
were evaluated.
Other risk targets may be considered in establishing minimize
threat levels. The Agency solicits comment on whether apportionment of
the RfD ought to be used in establishing minimize threat levels (i.e.,
HQ<1). The Agency uses 20% of the Rfd in setting drinking water
standards; a similar approach might be appropriate in establishing
minimize threat levels and in establishing exit levels. EPA requests
comment on this issue.
2. Public Policy Considerations
Finally, the Agency believes that it represents good public policy
to reduce or eliminate unneeded or duplicative regulatory requirements.
In this case, the Agency believes that for the initial list of
constituents listed in Table 1 of 40 CFR 268.60, treatment to the UTS/
LDR standard is no longer required beyond waste constituent
concentrations where risks to human health and the environment are
insignificant. Because there is no purpose in terms of protecting human
health and the environment for retaining the more stringent LDR
requirements, the Agency is proposing to revise them to the risk-based
levels. This would reduce the overall number of different and distinct
regulatory requirements on waste generators and treaters, would
rationalize the RCRA regulations, and will provide significant
pollution prevention opportunities and incentives. Waste generators
would have only one target level to direct their pollution prevention
effort toward. If generators met the LDR/exit levels, the waste would
not be considered hazardous, and no additional treatment would be
required before disposal in a subtitle D facility. Where waste
continues to exceed one or more exit levels after LDR requirements are
met, subtitle C disposal would be required.
C. Risk-based LDR Levels
1. List of Constituents and Minimize Threat Concentrations
As was mentioned earlier in this section, only modeled
constituents' risk-level results are eligible to serve as risk-based
LDR levels meeting the statutory requirement of minimize threat. In
addition, minimize threat levels are only proposed for those
constituents where the risk level is higher (less stringent) than the
associated
[[Page 66384]]
technology-based treatment standard in Sec. 268.40 or the UTS level in
Sec. 268.48.
First, the Agency repeats that it is not proposing to set any
alternative risk-based LDR standards expressed as specified
technologies (rather than constituent concentrations.) Consequently,
the option of complying with minimize threat levels in lieu of levels
specified in part 268 will be available only for wastes with treatment
standards expressed as constituent concentrations. This includes both
wastes subject to waste-specific treatment requirements under the table
to Sec. 268.40 and wastes subject to the Universal Treatment Standard
levels in the table to Sec. 268.48
The Agency proposes that for purposes of establishing nonwastewater
and wastewater minimize threat values for wastes with BDAT treatment
standards expressed as constituent concentrations, the levels proposed
would utilize the LDR definitions of nonwastewater and wastewater from
40 CFR 268.2(d) and (f). Therefore, any exit levels that are considered
nonwastewater for purposes of exit will also be considered
nonwastewater for purposes of minimize threat. Likewise, wastewater
exit levels will be considered wastewater LDR levels. The Agency
believes that consistent definitions of nonwastewater and wastewater is
the only practical means to establish minimize threat levels. The
Agency realizes, however, that the modeling and subsequent development
of exit levels for today's proposed exit did not use the part 268
definition of nonwastewater and wastewater. (A complete discussion of
this may be found in section VIII.A.1.a.ii.) The effect of this would
be that some wastes that would be defined as wastewaters under today's
proposed exit scheme would be considered LDR non-wastewaters. The
Agency requests comment on whether the definition in Part 268 should be
adopted for purposes of establishing minimize threat levels.
The Agency compared the exit levels to the current LDR treatment
levels to determine whether a constituent's risk level should be
proposed as a minimize threat level. For wastewater values, the LDR
wastewater value was directly compared to the wastewater exit value.
Where the UTS nonwastewater level is a total level, the comparison was
made to the nonwastewater totals exit level. Where the LDR
nonwastewater level is a leach level, the comparison was made to the
nonwastewater leach exit level. However, for the reasons explained
below, the nonwastewater minimize threat level would contain both a
leach level and a totals level. For both wastewater and nonwastewater,
where the most comparable exit level is higher (less stringent) than
the current LDR level, the constituent's risk level is proposed as an
optional minimize threat level. The Agency requests comment on this
approach to determining which exit levels are higher than current LDR
levels.
The Agency is proposing that testing requirements when using
minimize threat levels would be consistent with the current LDR testing
requirements found in Sec. 268.7. The Agency proposes that if a
claimant wishes to meet LDR requirements by complying with a minimize
threat level, the claimant must meet the minimize threat levels with a
totals analysis, and where specified, the waste must meet the leach
level with a leachate analysis. The Agency believes that a totals
analysis is preferable to a leach analysis for establishing minimize
threat levels, as it more directly pertains to all pathways, not only
the groundwater pathway.
Today's proposed exit levels for nonwastewaters consist of two risk
levels for each constituent. The totals (mg/kg) nonwastewater risk
level is the result of the most limiting non-groundwater pathway. The
leach (mg/L) nonwastewater risk level is the result of the most
limiting groundwater pathway. The Agency believes it would be
preferable to have one exit level, but the groundwater model results
are a leach (mg/l), whereas the results from the multipathway analysis
are a totals (mg/kg), and the science to extrapolate from a leach to
totals is highly variable. Using only the leach or only the total risk
level would reflect only a portion of the risks presented by the waste.
A waste must meet both of these limits before it minimizes threats to
human health and the environment. Consequently, EPA is proposing to
include both levels in the minimize threat standards for
nonwastewaters. The Agency proposes to allow generators to either use a
calculational screen or perform the TCLP to make a determination that
constituent concentrations do not exceed nonwastewater leach minimize
threat levels. A full discussion and explanation of the calculational
screen can be found in section VIII.A.1.a.iii. of today's proposal.
Because extrapolating from a leach to a total varies with each
constituent and is not easily measured, EPA has not directly compared
both of the minimize threat levels with the LDR standard. The Agency
requests data on specific constituents where the second, less easily-
compared nonwastewater minimize threat level may be harder to achieve
than the current LDR standard. If such results occur, waste handlers
will not be required to use the new minimize threat levels. The levels
in the tables to Sec. 268.40 and Sec. 268.48 will continue to satisfy
LDR requirements as they always have. The minimize threat levels will
be located in Table 1 of Sec. 268.60, are optional, and are intended to
be used to provide treatment relief. The Agency believes that minimize
threat levels will only be used where they are less stringent than
current LDR levels. The Agency requests comment on the proposed
revisions to part 268 with respect to minimize threat levels.
Table D-1 of appendix D to the preamble presents for comparison
current LDR UTS standards and proposed minimize threat levels. The
Agency is proposing that for the constituents listed below, the risk
levels may substitute for current UTS treatment levels in 40 CFR 268.48
or for treatment standards for these constituents in 40 CFR 268.40. A
table of the proposed minimize threat levels can be found at proposed
40 CFR 268.60 subpart F in the regulatory text following this preamble.
2. Constituents for Which Exit Levels Are Not Minimize Threat Levels
As an alternative to the approach described in C.1 above, the
Agency solicits comment on the background data underlying the risk
evaluations for these constituents. The Agency believes, in general,
that the constituents evaluated in the risk analysis have relatively
complete assessments of risk. The Agency recognizes, however, that data
quality and completeness can vary among constituents, even for those
for which risk can be assessed. The Agency solicits comment on both
general criteria for assessing completeness of data, and also specific
constituents for which use as minimize threat levels to cap LDR
requirements may be inappropriate.
D. Meeting LDR Requirements
1. Wastes Below Exit Levels as Generated
EPA proposes that, if a generator samples a listed waste stream at
its point of generation and analysis of the sample shows all
constituents to be below exit levels, LDR requirements would not apply
to the waste. EPA is proposing this result both for constituents with
exit levels based on multipathway analysis (where, since exit levels
can serve as LDR ``minimize threat'' levels that cap current treatment
requirements, the LDR program will never require treatment to levels
lower than exit levels) and constituents with
[[Page 66385]]
exit levels based on extrapolation from the multipath analysis or
quantitation levels (where, since EPA has not proposed to make exit
levels into LDR minimize threat levels,the LDR programs may require
treatment to levels lower than exit levels).
To claim this relief generators would have to certify that they
sampled their wastes at the point of generation. In the interim between
sampling and receipt of analytical results, the generator would be
required to manage the waste as hazardous. However, EPA would take the
position that this brief period of Subtitle C regulation would not
subject the waste to LDR requirements.
EPA believes that position is consistent with its prior
interpretations of LDR provisions and the D.C. Circuit's opinion in
Chemical Waste Management II. At issue in that case was EPA's
determination that LDR treatment standards apply to wastes that are
characteristically hazardous at the point of generation but that
subsequently cease to exhibit characteristics and become nonhazardous
wastes. EPA took that position to ensure that characteristic wastes
receive effective treatment. Without this requirement, for example, it
would be possible to dilute characteristic wastes and evade LDR
treatment requirements. The Court held that EPA must apply this
interpretation consistently to characteristic wastes.
It is not necessary, however, to follow this interpretation for
wastes that are generated with all constituent concentrations below
exit levels. EPA can reasonably distinguish between wastes that are
below exit levels at the point of generation and wastes which achieved
such levels at some subsequent time. Only wastes which exceed exit
levels at the point of generation need continued LDR applicability to
ensure that they reduce constituent concentration or constituent
mobility by complying with LDR standards rather than using dilution or
some other inferior form of treatment. A generator of wastes that meet
exit levels as generated would not use waste treatment to evade LDR
requirements. Rather, he or she might use waste minimization techniques
to reduce concentration or mobility of constituents in the precursor to
his waste.
EPA notes that it is proposing to require listed wastes which
exceed exit levels at the point of generation to meet LDR treatment
requirements, even if the waste later meets exit levels. EPA believes
that this requirement carries out the LDR requirements set out in the
Third Third rule and the Chemical Waste decision.
Finally, EPA notes that it would be possible to articulate
alternative rationales for exempting from LDR requirements wastes which
meet today's exit levels as generated. For exit levels based on
extrapolations from the multipathway analysis, EPA could argue that
extrapolated levels are LDR ``minimize threat'' levels. EPA, however,
thinks protection of the environment is better served by refraining
from such a step and requiring wastes which exceed such levels at the
point of generation to meet current technology-based LDR standards. (As
explained above, EPA is not entirely certain that these extrapolated
levels actually minimize risks for all constituents.) For exit levels
based on quantitation limits, imposing LDR requirements would not have
any practical impact. LDR treatment standards are limited by the same
quantitation limits proposed for this rule. Consequently, treatment
standards for constituents limited by analytical capabilities are not
lower than the exit levels.
2. Wastes Above Exit Levels as Generated
Listed wastes that are above exit levels as generated would be
required to be treated to the LDR standards in force at the time if
they are placed on the land.
VII. Dilution
The 1984 RCRA Amendments (HSWA) established a vigorous national
policy for minimizing the generation of hazardous wastes. Section 1003
of RCRA, as amended in 1984, established a national waste minimization
policy stating that ``wherever feasible, the generation of hazardous
waste is to be reduced or eliminated as expeditiously as possible''.
The policy also cited the need to reduce the volume and toxicity of
hazardous wastes which is nevertheless generated. Similarly, section
3005(h) prescribed that effective September 1, 1985, all RCRA
permittees who generate waste disposed of, treated, or stored on-site
certify, on an annual basis, that the facility has waste minimization
programs in place. In addition, section 3002(b) mandates that hazardous
waste generators include a certification with their hazardous waste
manifests that the generator has a waste minimization program in place
and that the proposed method of off-site management minimizes threats
to human health and the environment. In concert with these HSWA
mandates, it is the Agency's policy to encourage source reduction
(i.e., waste minimization) and waste treatment as preferable to
disposal and dilution.
EPA has recognized that successful implementation of the land
disposal restrictions requires that, in general, dilution be prohibited
as a partial or complete substitute for adequate treatment of
restricted wastes. The legislative history indicates that such a
prohibition ``is particularly important where regulations are based on
concentrations of hazardous constituents'' (H.R. Rep. no. 198, Part I,
98th Congress, 1st Session 38 (1983)).
The Agency also opposes the dilution of hazardous wastes for
several technical reasons. Most importantly, dilution is an
environmentally inappropriate means to reduce toxicant concentrations
because it does not reduce toxicant loadings to the environment. The
same mass of toxicant is released to the environment when a diluted
waste is disposed as would be if that same waste, prior to dilution,
were to be disposed. While mass loading of the environment is itself a
serious concern, the potential for environmental damage is magnified
when toxicants (for example, pesticides and metals) bioaccumulate in
the food chain. In addition, diluted wastes can create an unnecessary
demand for scarce solid waste disposal capacity.
For these reasons, dilution is generally prohibited as a means to
achieve the exemption levels under today's proposal. Because today's
rule proposes to amend the some of the current LDR levels by
establishing minimize threat levels, allowing dilution as a means of
achieving exemptions would be inconsistent with the ban on dilution
included in the land disposal restrictions rule (40 CFR 268.3). In
addition, dilution would be inconsistent with the Congressional purpose
of encouraging waste minimization. Thus, today's proposed rule
specifically prohibits dilution as a means of attaining the exemption
levels except as provided under the LDR program under 40 CFR 268.3(b).
VIII. Implementation
Today's proposed rulemaking would establish a generic set of
constituent-specific exemption levels for listed hazardous wastes.
Wastes with hazardous constituent concentrations below the generic
exemption levels would be conditionally exempt from Subtitle C.5
Today's proposed
[[Page 66386]]
rulemaking would be self-implementing; that is, no prior governmental
approval or review of documentation would be required before wastes are
eligible to exit. Claimants of an exemption, however, would be required
to meet certain prerequisites in addition to the generic constituent
concentration levels before the wastes would be considered non-
hazardous. These testing and notification requirements are necessary to
ensure that only those hazardous wastes which truly meet the exemption
criteria exit the subtitle C system. In addition, certain testing and
record-keeping conditions would be imposed to maintain the exemption to
ensure that the waste continued to be eligible for the exemption.
Failure to satisfy the conditions would void the exemption.
\5\ Exempted wastes would continue to be solid wastes, and as
such would require proper management under subtitle D and other
applicable state laws.
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A. Implementation Requirements
To make an effective claim, persons would need to comply with the
following requirements:
--The waste must be sampled and tested in accordance with a
comprehensive sampling and analysis plan prepared prior to conducting
sampling and analysis (EPA recommends, as guidance, using the basic
elements of sampling and analysis plans described in Chapters One and
Nine of SW-846);
--Representative samples collected in support of an exemption proposed
in today's notice must consist of a sufficient number of samples to
represent the spatial and temporal variability of the waste
characteristics;
--The waste must be tested for all hazardous constituents except those
that should not be present in the waste as defined by this rule, with
documentation supporting determination not to test any constituent
available on-site at the time of the notification;
--If the claimant must test for any hazardous constituents on table B
of appendix X of 40 CFR part 261, the waste must also meet treatment
standards for those constituents listed on UTS table of 40 CFR 268.48;
--A notification must be submitted to the Regional Administrator (or
authorized State) (hereafter referred to as the implementation
authority), along with
--A certification signed by the claimant's authorized representative
attesting to the completeness and accuracy of the notification, and
--Verification that a notice of the exemption claim has been placed in
a major local newspaper of general circulation.
Any deficiencies in compliance with these requirements would
prevent the exemption from being valid; that is, the waste would not
exit the subtitle C system. Claimants would not be able to use their
knowledge of the waste alone to make a determination. Furthermore, in
order to defend a claim that a waste was exempt under today's proposed
rule and thus exempt from hazardous waste regulation, claimants would
bear the burden in an enforcement action of establishing that the waste
in question met the exit levels and the other requirements for the
exemption.
1. Testing Requirements
In today's notice, the Agency is proposing concentration-based
exemption criteria below which a listed hazardous waste would be
conditionally exempt from subtitle C compliance. To best ensure
accurate characterizations of constituent concentrations in these
wastes, the Agency is also proposing sampling and analysis requirements
for the exemption determination proposed today. Adherence to these
requirements, however, does not ensure that the characterization is
accurate and representative of a waste on a continual basis. It is the
generator's responsibility to ensure that a waste always meets the
exemption requirements proposed today for all appendix X of 40 CFR part
261 constituents, regardless of which constituents the facility is
required to test and how often testing is performed.
To be eligible for an exemption, EPA is proposing that facilities
must (1) demonstrate that each constituent of concern is not present
above the specified exemption level in the waste, (2) demonstrate that
the analysis could have detected the presence of the constituent at or
below the specified exemption level, and, (3) where specified, comply
with the LDR standards applicable to the waste. Today's proposed rule
allows that any reliable analytical method may be used to demonstrate
that no constituent of concern is present at concentrations above the
exemption levels. It is the responsibility of the generator to ensure
that the sampling and analysis is unbiased, precise, and representative
of the waste.
The Agency will consider that the exemption level was achieved in
the waste matrix if an analysis in which the constituent is spiked at
the exemption level indicates that the analyte is present at that level
within analytical method performance limits (e.g., bias and precision).
The Agency prefers this empirical demonstration of method performance
through the successful analysis at the exemption level. The Agency
requests comment on this and any other approaches to demonstrate method
performance.
In general, the Agency is proposing testing requirements that would
consist of an initial test to characterize the waste as exempt,
followed by subsequent testing to ensure ongoing compliance with
constituents of concern. A generator of a listed waste on a one-time
basis will only be required to comply with initial testing
requirements. Wastes produced on an infrequent (batch) or continuous
basis will have to comply with initial testing requirements and
subsequent testing requirements as appropriate based on the volume of
the waste. The Agency asks for comment on this general approach to
testing requirements.
a. Data Evaluation
i. Compliance With the Exit Levels
The Agency is requesting comment on three approaches of data
evaluation.
First, the Agency is proposing that, for exemptions under today's
proposed rule, generators would be required to evaluate their waste
based on the maximum detected concentrations of the exemption
constituents. If any constituent concentration is greater than its
specified exit level, then the waste would be ineligible for exemption
under today's proposed rule. One advantage of this approach is that
facilities can use process and waste knowledge to determine the
appropriate number of representative samples without relying on a
complex, potentially costly statistical approach to determine an
appropriate number of samples. However, generators will need to be
sufficiently knowledgeable about their waste and process to make an
unbiased determination regarding the appropriate number of samples.
Actual sample representativeness might be difficult to verify or
otherwise assess (on a statistical basis). Finally, the level of
uncertainty associated with the results cannot be defined. Because of
this, under this approach, a single composite sample that validly
exceeds the HWIR exit levels would indicate that the waste is hazardous
and must be handled in Subtitle C.
Second, the Agency requests comment on also allowing a second data
evaluation method whereby the analytical results are evaluated in terms
of an upper confidence limit around an average concentration. An
example of one method for determining an upper confidence limit is
presented in the statistical approach found in Chapter Nine of SW-846
(Third Edition, as amended by Updates I, II, IIA, and IIB),
[[Page 66387]]
where, for the purpose of evaluating solid wastes, the probability
level (confidence interval) of 80 percent is used. Sample measurements
for which the upper limit of the 80 percent confidence interval about
the sample mean is below the regulatory level for the chemical
contaminant are not considered to be present at levels of regulatory
concern. One main advantage of this approach is that the number of
samples is statistically determined and thus it eliminates any bias
that might otherwise be introduced when using knowledge to determine
the appropriate number of samples. In addition, the level of
uncertainty associated with the results can be determined. However, the
main disadvantage of this approach is that it could be more costly for
some facilities than the proposed approach. For example, it might
require multiple rounds of sampling to determine the mean and variance.
Highly variable wastes may require the collection of many more
additional samples than might otherwise be determined to be necessary
using the first approach. However, this statistical approach allows
occasional samples to be above exemption level, as long as the upper
confidence limit of the data overall is below the exit level.
The Agency also requests comment on a third data evaluation method
that would allow facilities to use long-term average data to
demonstrate compliance without consideration of the upper confidence
limit. A rolling average of samples would be taken over the course of a
year on a schedule determined by the initial sampling and analysis
plan. As long as the average of the samples was below the HWIR exit
level, the waste stream would be considered non-hazardous. This
approach would have the advantage of being simpler than the second
option, while allowing occasional exceedences of the exit levels by
single samples, as long as the average concentration is below exit
levels.
EPA has modelled risk with the assumption that the constituents of
concern are uniformly distributed within the waste at the exit
concentrations. In discussion with the Hazardous Waste Identification
Dialogue Group, some representatives noted that actual levels might
need to average significantly below the exit levels if the exit
criteria are to be consistently met. The second and third data
evaluation methods discussed above help address this issue.
However, EPA and the States have noted that the only practical
approach for enforcement purposes is to independently collect samples
for analysis (which may represent a composite of materials spatially or
over a short time span) and to set up the regulation so that an
exceedence by any single composite sample during an inspection could
constitute a violation. It would then be the responsibility of the
generator to refute this, using historic sampling data and possibly
additional samples to show that the sample exceedence does not
constitute an overall violation of the HWIR levels.
EPA believes it is important to retain the practical approach
whereby a single composite sample of a waste at some arbitrary point in
time or space during a short visit is considered sufficient for
enforcement purposes. However, because the exit numbers were modeled
based on long-term average concentrations, the Agency requests comment
on allowing occasional exceedences as long as the average concentration
meets the exit level.
In addition to the concern about enforceability, however, EPA has
identified two additional concerns about using average concentration to
determine compliance. First, not all waste streams would be disposed of
in the same place. Thus the wastes may on average be in compliance when
they are generated, but the wastes arriving at the disposal site
(possibly from multiple sources) may not be, on average, below the exit
levels. Second, EPA has not modeled the constituents for acute risk.
While the average concentration of constituents may be below the exit
levels, the occasional ``high'' concentration may be of concern due to
acute health or ecological effects.
One possible way to address some of these concerns is, in addition
to requiring that the average meet the exit levels (as in the second
and third data evaluation methods), EPA could require that all samples
be below some ``peak'' concentration.
Under this approach, if the average concentrations are below the
exit levels, and all individual samples are below the higher peak
level, then the generator would be in compliance and need take no
further action to support the exemption. EPA or a State would then be
able to confirm waste status without total reliance on the generator's
data and without the expense of periodic sampling by EPA or the State.
EPA requests comment on this issue, including any information on
setting peak levels.
For any of the three data evaluation approaches, representative
samples must be collected in support of exemption under today's
proposed rule, consisting of a sufficient number of samples to
represent the spatial and temporal variability of the waste
characteristics, regardless of how the sample number is determined.
For the identification and handling of ``outliers'', the Agency is
recommending that testing for outliers should be done if an observation
seems particularly high or low compared to the rest of the data set. If
an outlier is identified, the result should not be treated as such
until a specific reason for the abnormal measurement can be determined
(e.g. contaminated sampling equipment, laboratory contamination, data
transcription error). If a specific reason is documented, the result
should be excluded from further data evaluation. If a plausible reason
cannot be found, the observations should be treated as a true, albeit
extreme, value and not excluded from the data evaluation, as waste
composition can vary. The Agency solicits comments on implementable
techniques for the identification of analytical outliers.
The results of the tests of all of the constituents on the
exemption list would be required to show the constituent concentration
to be at or below the exit level in order for the claimant to be
eligible for an exemption. In the case where a constituent's exit level
is based on the quantitation criteria (EQC, as described in section
IV.E.), in addition to showing a non-detect at the exit level, the
waste would be required to meet applicable requirements set forth at 40
CFR part 268. Certain facilities may have difficulty quantifying a
constituent at the exit level due to matrix interference effects, but
the Agency expects exempted wastes to have relatively clean matrices
such that exit levels should be able to be achieved. The Agency
believes that the exit level must be met in order for a waste to exit
Subtitle C; therefore, waste streams that cannot meet exit levels would
not exit under today's rule. The Agency asks for comment on this
approach.
ii. Wastewater and Nonwastewater Categories
Throughout today's proposal and background documentation, all of
the exit levels have been described as being applicable to two
categories of wastes using the terms wastewater and non-wastewater
6. EPA used these terms as an initial means of distinguishing two
waste categories that are inherent to how the exit levels were
developed, by taking into account how these wastes
[[Page 66388]]
will be managed (i.e., stored, treated, and disposed), and also how the
wastes would be expected to behave in the environment. In the
development of the exit levels, several waste management units were
evaluated in the underlying risk analysis. The units chosen for
evaluation were those that are considered most likely to manage the
types of wastes that would be expected to exit Subtitle C regulation
under today's exemption. Although these units will likely receive to
some degree both forms of waste, in general there are technical,
physical, and sometimes legal constraints on what types of waste are
managed in each. The Agency considered ash monofills, waste piles, and
land application units as typically managing waste materials that can
be considered ``solid'' or ``non-wastewater,'' while tanks and surface
impoundments typically manage ``liquid'' or ``wastewater.'' Based on
these assumptions, results from the analysis of risk from these
specific waste management units were then used to generate the
corresponding exit levels for non-wastewater and wastewater.
\6\ The terms ``wastewater'' and ``non-wastewater'' are used
generically in today's preamble and rule, and do not represent the
land disposal restriction definitions in 40 CFR 268.2(d) and (f),
although one option EPA is requesting comment on in this section is
the use of those definitions.
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In considering how to develop final definitions and terms for these
two waste categories, the Agency's goal is to establish definitions
that are clear, concise, and easily distinguishable from other similar
terms such that a generator can readily determine which set of exit
levels to apply to the waste being evaluated for the exemption. EPA
requests comment on three options for defining these two waste
categories to determine which set of exit levels to apply to a listed
waste eligible for today's proposed exemption. EPA emphasizes that
these definitions will only apply in the context of today's exit rule.
The Agency also requests comment on whether it is reasonable in all
three options to allow a generator the alternative options of
separating in the laboratory the solid (or nonwastewater) portion of
the waste from the liquid (or wastewater) portion of the waste,
analyzing the resultant portions, comparing the results to the
corresponding exit levels, and treating the waste as exempt if all exit
levels are met in both portions.
Option 1: Using Percent Solids--EPA prefers the option of defining
the two categories of exit levels as ``solid'' and ``liquid'' exit
levels, where the distinction between solids and liquids is based upon
the percent solids content of the waste, as determined using Section
7.1 of the Toxicity Characteristic Leach Procedure (TCLP) in SW-846.
Specifically, the option would define wastes containing 15 percent
solids by weight or greater as solids,7, while wastes with less
than 15 percent solids by weight be defined as liquids. EPA believes
that the 15 percent cutoff is a reasonable distinction between the two
categories of exit levels, for the following reasons. Because there are
general prohibitions on liquids or wastes containing free liquids in
non-hazardous waste landfills accepting municipal wastes, the Agency
does not envision wastes containing less than 15 percent solids being
managed in these units. Similarly, it is unlikely that waste containing
less than 15 percent solids will be stored in waste piles due to
obvious physical limitations. For land application units, EPA believes
that 15 percent solids content by weight is a reasonable lower limit
for the types of wastes typically managed in these units; indeed, this
was the value used in the land application unit scenario in the
groundwater modeling portion of the risk assessment underlying today's
exit levels.
\7\ EPA will avoid use of the term ``solid waste'' when
describing the category of exit levels that are defined as solids
under this option in today's proposal. This is to avoid confusion
with the existing term ``solid waste'' in the RCRA program, which
has specific statutory and regulatory definitions, which have no
relationship to whether a waste is a physically a solid or a liquid.
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Because of these limitations, EPA believes that wastes containing
less than 15 percent solids will more frequently be managed in the
types of units associated with wastewater treatment, such as tanks and
surface impoundments. In fact, EPA believes that many wastes falling
into the liquid category under this definition, that can realistically
exit under today's proposed exit rule, will likely be wastewaters that
have undergone treatment and that contain much less than 15 percent
solids. EPA presumes that in many cases the separation of water from
solids will be occurring as part of routine wastewater treatment, and
generators will be either be evaluating the solid residues (which would
clearly meet our solid definition), or the treated water, much of which
is currently discharged under the Clean Water Act and therefore likely
has limits on the amount of solids present.
EPA also requests comment on alternative ways of determining
percent solids content, including generator knowledge of the waste or
results of previous analyses. The Agency believes that in many cases,
particularly for fairly dry or fairly wet wastes, the generator can
immediately ascertain from a visual inspection that the percent solids
content is well above or well below the 15 percent solids value.
Option 2: Using LDR Definitions--EPA also requests comment on the
use of the same terms and definitions currently used under the land
disposal restrictions. Wastewater is defined as waste containing less
than 1 percent total suspended solids (TSS) and less than 1 percent
total organic carbon, or TOC (40 CFR 268.2(f)). Non-wastewater is
defined as any waste that is not a wastewater (40 CFR 268.2(d)). The
principle advantage of this approach is it allows the use of consistent
definitions for wastewater and nonwastewater in both today's exit
system for listed wastes, and the LDR program. The advantage of this
consistency is particularly apparent for those cases where LDR
treatment standards are conditions of exit under today's rule. One
disadvantage of this approach is that it defines wastes containing
greater than 1 percent TSS as non-wastewater, even though these wastes
will likely be managed in wastewater treatment systems using tanks and
surface impoundments, which is inconsistent with the way in which the
results from the risk analysis were used in developing exit levels. The
Agency requests comment on this approach as an alternative to Option 1.
Option 3: Using the Paint Filter Liquids Test--The third option is
to use the terms ``liquid'' and ``solid'' as in Option 1, but to use
EPA Method 9095 from SW-846, the Paint Filter Liquids Test, to
determine whether the waste being evaluated for exit is a liquid or a
solid. Under this option, any waste determined to contain free liquids
using Method 9095 would be considered a liquid, and the exit numbers
currently in the wastewater category would apply to that waste.
Conversely, a waste would be defined as a solid, and the nonwastewater
exit levels would apply, if the waste does not contain free liquids
using Method 9095. Under this option, EPA realizes that many wastes
appearing like solid materials would actually be defined as liquids.
Method 9095 is presently used in defining the term ``liquid waste''
in the solid waste disposal facility criteria, for determining
compliance with the prohibition on disposing of bulk or containerized
liquid in municipal solid waste landfills (see 40 CFR 258.28). Method
9095 is also used in determining compliance with the prohibition on
bulk or containerized liquids in hazardous waste landfills
(264.314(c)).
iii. Totals and TCLP Analyses
Today's rule proposes that the claimant would be required to test
the waste for which today's exemption is
[[Page 66389]]
being claimed to prove that constituent concentrations in the waste do
not exceed the exit level(s) for each constituent that should be
present in the waste.
The claimant would determine which category of exit levels would
apply (e.g., wastewater or nonwastewater) to his waste. In a previous
section of today's rule, the Agency requests comment on several options
to define these two categories. For a wastewater waste to be eligible
for exit, every constituent in the waste must comply with the
wastewater total constituent exit concentration. For a nonwastewater
waste to be eligible for exit, every constituent in the waste must
comply with the nonwastewater total constituent exit level as well as
the nonwastewater leach exit level.
A test for total concentration would be required for each
constituent in the waste regardless of whether the waste is a
wastewater or a nonwastewater to determine that the total constituent
exit concentration has not been exceeded. For non-wastewaters, a
claimant must also prove that the measurable leachate concentrations do
not exceed the nonwastewater leach exit levels. The Agency proposes to
allow claimants to either use a calculational screen or to use the
Toxicity Characteristic Leaching Procedure (TCLP, Test Method 1311 in
``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,''
EPA Publication SW-846) to make a determination that constituent
concentrations do not exceed nonwastewater leach exit levels.
Discussion concerning the methodology of a calculational screen is
described below.
Section 1.2 of the TCLP allows for a compositional (total) analysis
in lieu of the TCLP when the constituent of concern is absent from the
waste, or if present, is at such a low concentration that the
appropriate regulatory level could not be exceeded.
For wastes that are 100% solid as defined by the TCLP, the maximum
theoretical leachate concentration can be calculated by dividing the
total concentration of the constituent by 20. The dilution factor of 20
reflects the liquid to solid ratio employed in the extraction
procedure. This value then can be compared to the appropriate
regulatory concentration. If this value is below the regulatory
concentration, the TCLP need not be performed. If the value is above
the regulatory concentration, the waste may then be subjected to the
TCLP to determine its regulatory status.
The same principal applies to wastes that are less than 100% solid.
In this case, however, both the liquid and solid portion of the waste
are analyzed for total constituency and the results are combined to
determine the maximum leachable concentration of the waste. The
following may be used to calculate the maximum theoretical
concentration in the leachate.
[GRAPHIC][TIFF OMITTED]TP21DE95.000
where:
A = Concentration of the analyte in liquid portion of the sample (mg/L)
B = Volume of the liquid portion of the sample (L)
C = Concentration of the analyte in the solid portion of the sample
(mg/kg)
D = Weight of the solid portion of the sample (kg)
E = Maximum theoretical concentration in leachate (mg/L)
If:
Eleach
Then: A TCLP need not be performed for this constituent because, even
if 100% of the constituent leaches, the TCLP results would be less than
the regulatory leach standard. This calculation is adequate proof that
this waste is at or below its leach exit level.
The above calculational screen may be used by a claimant in order
not to perform the TCLP. The screen may be used to determine that a
total analysis of the waste demonstrates that individual contaminants
are at such low concentrations that the nonwastewater leach exit level
could not possibly be exceeded, thus eliminating the need to run the
TCLP.
Example: To illustrate the calculational screen, the following
example is provided: An analyst wishes to determine if a leach
processing sludge could fail the nonwastewater leach exit level for
lead. The sludge is reported to have a low concentration of lead, and
the analyst decides to perform a compositional analysis (totals test).
A representative sample of waste is subjected to a preliminary percent
solids determination as described in the TCLP. The percent solids is
found to be 90%. Thus, for each 100 grams of this waste filtered, 10
grams of liquid and 90 grams of solid are obtained. It is assumed for
the purpose of this calculation that the density of the filterable
liquid is equal to one. The liquid and solid portion of the sample are
then analyzed for total lead. The following data are generated:
Percent solids = 90%
Concentration of lead in the liquid phase = 0.023 mg/l
Volume of filtered liquid = 0.010 L
Concentration of lead in the solid phase = 85 mg/kg (wet weight)
Weight of the solid phase = 0.090 kg.
The calculated concentration is as follows:
[GRAPHIC][TIFF OMITTED]TP21DE95.001
In this case, the maximum leachable concentration is below the 10
mg/L regulatory concentration for lead, and the TCLP need not be
performed.
iv. Oily Wastes
In this proposed rulemaking, the Agency has modelled the transport
of solutes in groundwater as well as movement along other environmental
pathways. This groundwater modeling involves predicting rates of
constituent leaching from wastes in land-based waste disposal units. In
using this fate and transport modeling to develop regulatory exit
levels, the Agency is proposing to rely on the use of leach tests to
ensure that groundwater is not contaminated. Among the test methods
that have been developed and employed to identify wastes which might
pose an unacceptable hazard are: Methods 1310 (Extraction Procedure),
1311 (Toxicity Characteristic Leaching Procedure, TCLP), 1320 (Multiple
Extraction Procedure, MEP), and 1330 (Oily Waste Extraction Procedure,
OWEP).
However, these leach test procedures all have deficiencies in
predicting the mobility of toxic chemicals from oily
[[Page 66390]]
wastes. Method 1311 underestimates the mobility of constituents from
many oily wastes due to filter clogging problems, can be imprecise for
oily wastes, and has several operational problems. Conversely, Method
1330 is believed to overestimate mobility of constituents from oily
wastes since it emulates a worst case scenario by using solvents to
extract contaminants from the oil. None of the available laboratory
procedures is fully satisfactory. Rather, they bracket the range of
possible leaching for oily wastes.
In addition, EPA does not have a good definition for what
constitutes an oily waste. EPA originally defined oily wastes as those
materials that clogged the filter during Method 1311 (TCLP) extraction.
EPA requests comment on how to better define what an oily waste is.
EPA also requests comment on which of the two tests methods (1311
or 1330) should be used and why should one test be chosen over the
other for predicting the concentrations of contaminants in leachate
from wastes being managed in landfills. EPA also requests comment on
whether there are any alternative test methods or models that could be
used for predicting the mobility of oily materials. Such procedures
need to be both scientifically credible and environmentally protective.
Methods need to identify material that might be released from the waste
and enter the soil. Release is defined as movement of either the liquid
phase of the waste or leached contaminants through the bottom of the
waste unit to the subsurface soil immediately underlying the disposal
point. Once contaminants pass this point their ultimate fate in terms
of impact on down-gradient water supplies can be estimated by the
ground-water fate and transport model (EPACMOW model).
EPA also requests comment on any additional problems with oily
waste leachability not covered here, and whether the volatilization or
other attributes of constituents should be considered in the
development of a test.
Oily wastes also pose modeling challenges in groundwater because
they do not disperse in the same pattern as aqueous liquids. This
affects the movement of the constituents in the material. In the event
of a release of waste at or near the soil surface, the waste will
migrate downward until it reaches the water table. Light non-aqueous
phase liquids (LNAPLs) will then tend to migrate laterally, forming a
pancake on top of the water table. Dense non-aqueous phase liquids
(DNAPLs) on the other hand will sink to the base of an aquifer and not
show much lateral spreading until an impermeable layer is reached. EPA
is requesting comment on what sort of wastes or what constituents
exhibit these behaviors and how to define that set of wastes.
Constituents that have been associated with DNAPLs include
dichlorobenzenes, PCBs, napthalenes, chloroform, carbon tetrachloride
pentachlorophenol, cresols, and several PAHs. However, trace amounts of
these constituents are unlikely to pose a DNAPL problem. A DNAPL
problem is likely to occur when there is sufficient concentration to
flow as undissolved liquid that would then form the sort of complex
reservoirs that subsequently slowly dissolve into groundwater. The
Agency requests comment on concentrations of these or similar chemicals
that are likely to pose DNAPL problems and whether the proposed exit
levels in totals or, for nonwastewaters in leach levels, are sufficient
to limit wastes exiting for which a DNAPL or LNAPL problem would need
to be explicitly evaluated.
The Agency is continuing to work on developing tests and models for
determining the leaching potential of oily materials and may propose
them in future rulemaking. In the meantime, EPA is today proposing to
apply the levels as proposed in this rule to oily wastes, but seeks
comment on whether instead there is a definable class of wastes for
which these levels cannot reasonably be concluded to be protective.
b. Initial Test
The Agency is proposing in today's rule that there would be an
initial test before a facility would be eligible for an exemption. The
initial test would be the primary tool to characterize the waste as
exempt. Results from this initial test would be sent to the
implementing agency. The public could request the implementing agency
to make the results available.
EPA is proposing to require initial testing of all of the 386
constituents on appendix X of 40 CFR part 261 except those that the
claimant determines should not be present in the waste. EPA would
require the claimant to document the basis of each determination that a
constituent should not be present. The claimant must submit the
documentation to the implementing agency and retain a copy on site for
three years. No claimant may determine that any of the following
categories of constituents should not be present:
--Constituents set out in appendix VII to part 261 as the basis for
listing the wastestream for which exemption is sought;
--Constituents listed in the table to 40 CFR 268.40 as regulated
hazardous constituents for LDR treatment of the waste stream ;
--Constituents detected in any previous analysis of the same
wastestream conducted by or on behalf of the claimant;
-- Constituents introduced into the process which generates the
wastestream; and
--Constituents which the claimant knows or has reason to believe are
byproducts or side reactions to the process that generates the
wastestream.
The Agency requests comment on whether these are the appropriate
criteria to be used to determine what should not be present in the
waste. The Agency also requests comment on requiring claimants who are
not waste generators to consult the generator prior to determining that
a constituent is not introduced into the process or that a constituent
is not a byproduct or side product of the process. EPA believes that it
is unlikely that a non-generator claimant would have sufficient
knowledge of the production process to make adequate determinations on
these issues. EPA requests comment on the type of documentation that it
should require. The generator could co-sign the document that sets out
the reasons for determining that the claimant need not test for a
constituent, or the generator could prepare a separate supporting
document that would be attached to the document for submission to the
implementing agency and retention in the claimant's files.
The Agency is soliciting comment on whether the absence of
constituents in the following documents could constitute sufficient
justification for not analyzing all of the constituents listed in 40
CFR part 261 appendix X.
--40 CFR part 261 appendix VII highlighted to show which constituents
are listed for each waste code applicable to that waste;
--40 CFR 268.40 highlighted to show which constituents are regulated
under the land disposal restrictions for each waste code applicable to
that waste;
--EPCRA Toxic Release Inventory reports highlighted to show which
constituents are reported as being ``used'' in the manufacturing
process from which that waste is generated (based on the EPCRA
definition of ``use'');
--NPDES discharge permits highlighted to show which constituents are
required to be monitored in wastewaters with which that waste is
commingled or will be commingled;
[[Page 66391]]
--State or Local emissions monitoring permits or documents (e.g., stack
emissions, fugitive emissions, groundwater monitoring, wastewater
discharges, etc.,) highlighted to indicate which constituents are
required to be monitored as potential emissions from units in which
that waste is managed or will be managed;
--Responses to government and/or trade group data collection efforts
(e.g., biennial reports, TSD surveys) that require submission of waste-
specific constituent information;
--Published literature (e.g., journals, presentations, chemical and
engineering reference documents, health and safety handbooks, material
safety data sheets, etc.,) highlighted to indicate constituents that
are formed or potentially formed from side reactions, degradation, or
reactivity of the products, reactants, or solvents used in the
manufacturing process generating that waste;
--Plant-specific process flow diagrams or process descriptions
highlighted to indicate constituents that are formed or potentially
formed from side reactions, degradation, or reactivity of the products,
reactants, or solvents used in the manufacturing process generating
that waste;
--Product specifications or constituent-specific labeling requirements
under federal regulations, state regulations, or non-governmental
standards (i.e, per product-grade) that identify constituents that are
expected to be present in the products from which the waste was
generated, highlighted to indicate those constituents identified as
part of these specifications or standards (excluding chemical additives
or preservatives that are placed in the products subsequent to the
generation of the waste for which exit is claimed);
--Waste profile data sheets, such as those submitted to commercial
waste handlers, highlighted to show the constituents that were found or
expected to be present in that waste; and/or
--A certified, third party engineering analysis of the process
generating that waste that provides qualitative verification of the
theories behind the anticipated absence of certain chemical classes or
groups of Appendix X of 40 CFR 261 constituents such as pesticides,
pharmaceutical, halogenated solvents, carbamate, organo-sulfur
compounds, known gases, cyanides, etc.;
--Any other available quantitative or qualitative constituent
information specific to that waste
Relevant information includes not only those document sections that
indicate which constituents are present, but also cover pages that
indicate the source of the document segments and signature pages to
verify authenticity of government-approved documents (where
appropriate). For the verification purposes, page numbers should also
be clearly identified for each document. EPA is also soliciting
information on additional readily available documentation that could be
added to this list that would not impose an unreasonable records burden
on both the generator and enforcement officials (for example, the
Agency believes that requiring highlighted copies of copious amounts of
monitoring data would be redundant and would significantly impede
enforcement review). EPA believes that requiring copies of only
relevant portions of these documents, highlighted to indicate the
chemicals present, should minimize the burden associated with this
documentation requirement significantly.
Regardless of which constituents a facility tests, the facility is
responsible for ensuring that each constituent in the waste meets its
applicable exit level.
The Agency believes that the tailored initial test described above
will ensure accurate waste characterizations of the waste streams while
focusing testing requirements to those constituents that are of
concern. A facility could determine whether a constituent would be
present. A facility would not be authorized to determine that the
constituents in the waste meet the exemption levels based on knowledge
of the waste or material. This approach both reduces unnecessary
testing costs and allows for more frequent monitoring of those
constituents that are of concern.
The Agency is soliciting comment on whether this proposed approach
to an initial test is appropriate.
The Agency asks for comment on taking the opposite approach:
requiring each claimant to test only for those constituents that the
claimant determines ``could be present'' for that waste. This would be
a systematic way for facilities to focus the list of hazardous
constituents to those that are mostly to be present in the waste. EPA
requests comment on requiring at a minimum testing of the following
categories of constituents:
--Constituents set out in appendix VII to part 261 as the basis for
listing the wastestream for which exemption is sought;
--Constituents listed in the table to 40 CFR 268.40 as regulated
hazardous constituents for LDR treatment of the waste stream ;
--Constituents detected in any previous analysis of the same
wastestream conducted by or on behalf of the claimant;
--Constituents introduced into the process which generates the
wastestream; and
--Constituents which the claimant knows or has reason to believe are
byproducts or side reactions to the process that generates the
wastestream.
The Agency asks for comment on the completeness of the proposed
mandatory testing criteria. In addition, the Agency requests comment on
whether testing should be required for those constituents that do not
meet any of the criteria of ``could be present.'' The Agency also
requests comment on whether documentation should be required to
demonstrate that those constituents that were not tested did not meet
any of the ``could be present'' criteria.
EPA requests comment on another approach to determining which
constituents need to be analyzed by a claimant. The approach would be
that the claimant needs to provide data on all additional constituents
listed in appendix X of 40 CFR part 261 of today's rulemaking for which
a method used by the generator to detect other constituents which the
claimant is required to test can easily determine concentrations. Thus,
for example, if a waste was listed for a constituent for which GC/MS is
an appropriate method used by the claimant, the claimant would also be
required to ask the laboratory to provide information on all other
constituents listed in appendix X of 40 CFR part 261 of today's
proposed rulemaking for which the GC/MS is also an appropriate method.
EPA did not use this in its primary proposal because the Agency
realized that implementation of this concept become more complex than
it appears. For example, even when using GC/MS, there may be sample
preparation techniques, dilutions, and similar issues that determine
which constituents can be measured in the appropriate concentration
ranges using the method.
However, there is something intuitively reasonable and attractive
in asking claimant to gather and provide information that is easily
obtainable and would provide additional confidence and certainty. EPA
solicits comments on this idea and ways to implement it.
The Agency requests comment on whether there is some other way to
focus the scope of testing requirements or if the only way to ensure
accurate waste characterizations would be to require testing for all
386 constituents.
[[Page 66392]]
The FACA suggested EPA should define, for major waste streams, a
set of constituents that it believes would fairly characterize those
waste streams. The Agency believes such an approach may be desirable.
However, the Agency notes that this could require it to expend
significant resources. The Agency requests comments on the feasibility
or need for this approach in the long term.
EPA recognizes that some generators may wish to assert claims for
protection of confidential business information (CBI) for some to the
information that supports an exit claim. Material that is classified as
CBI may be reviewed by EPA, but may not be released to the public.
States may have similar provisions under state law. EPA requests
comments on two options for addressing CBI information.
First, EPA requests comment on the option of prohibiting any person
from asserting a claim of exit under this rule if that person wishes to
claim CBI protection for any data or information used to support the
exit claim, including all information submitted to the implementing
agency in the notification package and all information required to be
maintained by the claimant on site and furnished to the agency on
request. A generator who wished to rely on CBI data to support an
exemption claim for a listed hazardous waste would need to file a
delisting petition with EPA or a state authorized for delisting.
EPA believes such an approach may be necessary because the exits
proposed today are self-implementing. The public would not have the
assurance of knowing that EPA or a state agency had reviewed the
claimant's data and determined that it showed that the claimant's waste
posed low risks to human health and the environment. Members of the
public may not feel that they are adequately protected by the fact that
EPA and authorized states could obtain the CBI data and use it (with
appropriate precautions against disclosure) in an enforcement action if
warranted. They may feel that the number of claims will strain agency
inspection and enforcement resources, making it important for them to
be able to bring their own citizen enforcement actions under section
7002 of RCRA.
At the same time EPA is sensitive to potentially legitimate
business needs to protect information supporting an exit claim. Some
firms may not wish to release detailed information about the chemical
composition of their process waste streams. EPA also recognizes that
the federal delisting process is considerably slower and imposes more
procedural burdens than the self-implementing exit scheme. EPA requests
comment on the alternative of creating a limited prior approval process
for exit claims involving CBI claims. EPA anticipates that rulemaking
would not be required. However, states that wish to obtain
authorization for today's exit program might not be required to adopt
this feature because they could argue that failure to provide a review
process for CBI claims would not make their programs less stringent
than the federal program.
EPA also notes that CBI protection is not absolute. EPA has
authority under RCRA to release CBI information to the public as
necessary to support rulemaking proceedings. (In fact, EPA could try to
support the first option above by arguing that it was exercising in
this proceeding its authority to waive protection for all of the
individual exit claims that ``implement'' the rule.) Also, a citizen
that has sufficient evidence of a violation to file a complaint in
court may be able to persuade the court to order a limited release of
the data for use in the enforcement proceedings.
2. Notification Requirements
The Agency is proposing that the required notification to the
implementing authority would include the following information:
--The name, address, and RCRA ID number of the person claiming the
exemption;
--The applicable EPA Hazardous Waste Codes;
--A brief description of the process that generated the waste;
--An estimate of the average and maximum monthly and annual quantities
of each waste claimed to be exempt;
--Documentation for any claim that a constituent is not present;
--The results of all analyses and estimates of constituent
concentrations and all quantitation limits achieved;
--Documentation that any constituents on Table B to appendix X of 40
CFR part 261 have met the applicable treatment standards in
Sec. 268.48, unless the claimant is claiming the exemption under
Sec. 261.36(e);
--Evidence that the public notification requirements have been
satisfied; and
--A certification signed by the person claiming the exemption or his
authorized representative.
The Agency is taking comment on whether the following additional
information should also be sent to the implementing authority:
--The name and address of the laboratory which performed the analysis;
--A copy of the sampling and analysis plan used for making the
exemption determination;
--A description of any chain-of-custody procedures;
--Whether the identity of the disposal facility should be included in
the notification package;
--Dates of sampling and analysis; and
--A description of the (temporal and) spatial locations of the
demonstration samples.
Also, the Agency is taking comment on whether, if the disposal facility
is different than the claimant's facility, the claimant should also
include as part of the notification package documentation that the
claimant informed the disposal facility of the exempt status of the
waste.
A complete notification package would include all required
information in the notification and all required certifications signed
by the appropriate individual, as identified in the regulations.
Failure to submit a notification package if the exemption is being
claimed or submission of an incomplete notification package would be a
violation of RCRA requirements and thus subject to penalties and
injunctive relief under section 3008(a) of RCRA and possible criminal
liability under section 3008(d) of RCRA. As a necessary prerequisite to
claiming an exemption, the burden would be on the claimant to establish
that a complete notification package was submitted to the implementing
authority to assert in an enforcement action that the waste is exempt.
It should be noted that, regardless of whether the sampling and
analysis plan must be included with the notification to the
implementing agency, a current sampling and analysis plan must be
developed and used to establish the waste's eligibility for exemption,
and must be available upon request to the implementing authority at the
time the notification package is submitted and at least for three
years. The sampling and analysis plan must demonstrate that the samples
to be taken and analyzed will be representative of any spatial and
temporal variations in the subject waste.
Furthermore, it should be noted that submission of sampling and
analysis plans with the notification to the implementing authority does
not change the self-implementing nature of the exemption. Submission of
such plans would not be for review or approval of exemption claims
prior to the exemption becoming effective. The implementing agency
would be under no obligation to undertake such review or approval prior
to the exemption
[[Page 66393]]
becoming effective, and failure to undertake such prior review would
not preclude a subsequent enforcement action should the exemption claim
later be determined to be inaccurate or otherwise invalid.
As proposed, the certification required to accompany the
notification must attest that the waste in question meets all relevant
constituent concentration exit levels and that the information in the
notification package is true, accurate, and complete. The Agency is
taking comment on whether this certification is sufficient assurance
that the claimant has made best efforts to accurately characterize the
waste or if additional certification language or additional
certifications (e.g., from an analytical laboratory) are necessary.
The notification package would be required to be submitted by
certified mail with return receipt requested, or other commercial
carrier that provided written confirmation of delivery. No claim would
be effective until the claimant received the return notification
indicating that the package had been delivered.
Submission of the notification package to the implementing
authority, however, is not equivalent to approval or verification of
the exemption claim. Submission of a notification package would not
preclude or in any way limit the implementing authority's ability to
take a subsequent enforcement action should it determine that the
initial requirements of exemption were never met or that the conditions
for maintaining the exemption are not satisfied.
The Agency is taking comment on whether, instead of the exemption
becoming effective upon confirmation of delivery of the notification
package, there should be some brief waiting period prior to the
exemption becoming effective.
Such a period (e.g., 30 or 60 days) could be used by the
implementing authority to review notification packages for completeness
or for indicia of concerns that would lead to prioritized enforcement,
although the exemption would still become automatic after the period
regardless of whether any action was taken by the implementing
authority. As an alternative, the period could be designed to provide
the implementing authority an opportunity to determine that a claimant
should not be able to avail itself of the exemption without some
further review and to notify the claimant of its views.
Under either approach, governmental review would be discretionary
and the lack of such review would not be an indication of governmental
approval of the exemption claim. To ensure that there would be no
confusion on this point, the certification could include a statement of
recognition that expiration of the delay period without comment by the
overseeing agency is not the equivalent of agency approval that the
claim is accurate. The Agency has not chosen to propose a delayed
implementation approach because it believes a short time frame,
particularly combined with an automatic effective date, would not
provide an opportunity for thorough prior review and would, at best,
provide only marginal benefits as a screening device for potentially
problematic claims. The Agency, however, requests comment on whether
such a delay would be beneficial to monitoring claims and if there are
procedural or other concerns relating to such a delay.
B. Implementation Conditions
After the exit claim has become effective, the claimant would have
to continue to meet certain conditions to maintain the exemption.
Failure to satisfy any of the conditions would void the exemption and
subject the waste to applicable subtitle C requirements.
Under this proposal, wastes must continue to meet the generic
exemption levels established for exit to remain non-hazardous. Separate
and distinct from any requirement or condition that might be
established under this rulemaking, all generators--including claimants
of today's proposed exemption--would have a continuing obligation to
identify whether they are generating a hazardous waste and to notify
the appropriate governmental official if they are generating a
hazardous waste. Section 3010; 40 CFR 261.11. If wastes claimed as
exempt under today's proposed rule test above exit levels at any time,
that waste and subsequently generated waste would have to be managed as
hazardous waste--including compliance with all notification
requirements--until testing demonstrated that the waste was below exit
levels.8
\8\ Compliance with HWIR exemption levels will be measured from
the last available test data or from the latest representative
samples taken from the waste in question. Testing which shows
constituent concentration levels above exemption levels will not
affect wastes previously generated under a valid claim of exemption
based upon representative samples. Similarly, testing, which shows
that a waste which tested above exit levels once again tested below
all relevant exit levels will exempt all waste generated on or after
the date the samples were taken. Waste which exceeded the exit
levels would not be able to requalify for the exemption.
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1. Records Maintained on Site
In addition to the information described in the Notification
Section above, the Agency is also proposing that the following
information concerning the initial testing and retesting be maintained
in the files on site at the facility making the exemption claim for at
least three years:
--All information required to be submitted to the implementing
authority as part of the notification of the claim;
--The dates and times waste samples were obtained, and the dates the
samples were analyzed;
--The names and qualifications of the person(s) who obtained the
samples;
--A description of the (temporal and) spatial locations of the samples;
--The name and address of the laboratory facility at which analyses of
the samples were performed;
--A description of the analytical methods used, including any clean-up
and extraction methods;
--All quantitation limits achieved and all othe
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
r quality control
results for the analyses (including method blanks, duplicate analyses,
matrix spikes, etc.), laboratory quality assurance data, and a
description of any deviations from published analytical methods or from
the plan which occurred;
--All laboratory documentation that support the analytical results,
unless a contract between the claimant and the laboratory provides for
the documentation to be maintained by the laboratory for the period
specified in Sec. 261.36(b)(2) and also provides for the availability
of the documentation to the claimant upon request;
--If the generator claims a waste is exempt from part 268 requirements
pursuant to Sec. 261.36(e), documentation to substantiate such a claim.
The Agency requests comment on the proposed information maintenance
requirements and comment on additional information that may be
necessary.
In addition, claimants will be required to retain certain
information concerning retesting of wastes as described below and set
out in the text of proposed 40 CFR 261.36(d)(6)(ii).
2. Testing Conditions
Claimants would continue to periodically test their wastes as a
condition of the exemption.9 Failure to test and maintain
documentation of the
[[Page 66394]]
testing in accordance with the requirements of proposed 40 CFR
261.36(d) would void the exemption. The Agency believes that required
subsequent testing is necessary to maintain accurate waste
characterizations. Subsequent testing would be an ongoing exemption
condition and would be the minimum testing required to maintain an
exemption. A tailored constituent list setting out minimum requirements
for testing purposes should not be confused with the facility's ongoing
requirement to maintain constituent concentrations below exit levels
for all constituents on appendix X of 40 CFR part 261. Results from
subsequent testing would be required to be maintained on-site.
\9\ Wastes generated on a one-time basis would not be subject
to this requirement.
---------------------------------------------------------------------------
The scope of subsequent testing would focus primarily on those
constituents from appendix X of 40 CFR part 261 that are of concern
based on the initial test. The list of constituents for which a
claimant would be required to test would, at a minimum, include each
constituent that was detected in the initial test within an order of
magnitude below the exit level for that constituent, and any
constituent listed in Table B of appendix X of 40 CFR part 261 that is
also identified as a basis for listing the waste or appendix VII to
part 261 or listed as a regulated hazardous constituent for the waste
in the table to 40 CFR 268.40. The claimant would also be required to
test for any other constituent which the claimant had reason to believe
was newly present in the waste since the most recent previous test.
The Agency proposes that the frequency with which a facility would
be required to perform subsequent testing would be determined based on
the volume of waste which the facility is declaring exempt. Those
facilities with large-volume waste streams would perform subsequent
testing more often than those facilities with low- or medium- volume
waste streams. The claimant would be responsible for determining the
volume of annual exempt waste. The Agency asks for ideas and comments
on whether guidance should be made available for claimants on how to
measure annual volumes. Justification of annual volumes would be sent
to the Director in the notification package. The Agency believes that
accurate waste characterizations are important for waste volumes of all
sizes; however, inaccurately characterized large-volume wastes have
greater potential to harm the environment than do smaller-volume
wastes. In today's rule, the Agency is proposing the following
requirements for the first three years of subsequent testing:
--Wastes generated at the time of exemption is initially claimed in
volumes greater than 10,000 tons/year would be tested four times a year
for the first three years of the exemption.
--Wastes generated at the time of exemption is initially claimed in
volumes greater than 1000 tons/year but less than 10,000 tons/year
would be tested twice a year for the first three years of the
exemption.
--Wastes generated at the time of exemption is initially claimed in
volumes less than 1000 tons/year would be tested once a year for the
first three years of the exemption.
EPA requests comment on whether it should allow the Agency proposes
that if a waste maintains exempt status for three years, the frequency
of subsequent testing would then be reduced to once a year, regardless
of the volume produced. The Agency believes that three years of
subsequent testing should provide a facility with adequate data to
assess the potential for variability in the waste. The Agency requests
comment on the frequency of subsequent testing.
The Agency requests comment on an approach that the FACA suggested.
The approach consisted of a comprehensive test, similar to an initial
test, that is required every 3 or 5 years of an exemption because of
the strong reliance on the initial test's results in determining the
scope of subsequent testing.
The Agency also requests comment on whether follow-up testing
should be eliminated entirely after the first three year period. In
addition, the Agency asks if a certification of compliance with all
relevant exit levels could suffice in lieu of testing at the end of
three years.
3. Testing Frequency and Process Change
Under today's proposal, the claimant has a continuing obligation to
verify that the waste continues to meet the exemption criteria,
including meeting the exemption constituent concentration levels.
Process changes that may either increase the number of hazardous
constituents in the exempted waste or increase the concentration of
hazardous constituents already present, should put a claimant on notice
that there may be changes in the waste that may affect its continued
eligibility for exemption. The Agency, however, is not proposing to
require new sampling and analysis whenever there is a process change
that may affect the exempt status of the waste.
The Agency is taking comment on whether it is necessary to require
as a condition of maintaining the exemption that wastes be re-tested
after a process change and, if so, what the scope of such re-testing
should be. The Agency would like to know if the testing frequency
proposed or more frequent testing would provide a clearer indicator of
waste changes of concern than triggering re-testing through a narrative
description of a process change. Another alternative is to require the
claimant to notify the implementing authority that a process change has
occurred and to certify that the exemption criteria continue to be met
if the claimant determines that the waste still maintains its exempt
status. The Agency is taking comment on how process change should be
defined in the event one of the alternatives is chosen. It should be
noted that if waste for which an exemption has been claimed at any time
tests above exemption levels, that waste and all subsequently generated
waste is hazardous. The claimant could not assert a new exit claim
until a new batch of waste tests below the exit levels. The exemption
proposed today would not relieve generators of their responsibility
under Sec. 262.11, nor would any test data previously obtained prevent
a claimant from failing to satisfy the exemption criteria should an
inspector conduct waste sampling that establishes hazardous
constituents at concentrations above exit levels.
C. Public Participation
As a self-implementing exemption effective upon receipt of the
notification by the implementing authority, there is no decision prior
to exit being made by the implementing authority regarding the waste.
The opportunity for public participation in an exemption claim is the
opportunity that exists at all times for the public to bring to the
implementing authority's attention any circumstance that might aid that
authority in its monitoring and enforcement efforts. The public,
furthermore, would have the ability to bring a citizen suit for a
claimant's failure to comply with any requirement of the exemption.
The Agency is proposing to require that the public be notified by
the claimant that an exemption claim is being asserted. This
notification would be accomplished by publication of a notice in a
major newspaper, local to the claimant and of general circulation, that
contains the information required by the regulations. Evidence that the
notice has been submitted for publication must be part of the
notification package submitted to the implementing facility.
[[Page 66395]]
The Agency is requesting comment on whether such a notice should be
placed in a newspaper local to the claimant's facility or to the
disposal facility or both, should those facilities be located in
different areas not served by the same newspaper.
Requiring notification of facilities receiving exiting wastes has
also been raised to the Agency in discussions. The Agency solicits
public comment on the need for and possible approaches to requiring
that waste generators that are exiting their listed waste, notify
receiving facilities that wastes are HWIR exited wastes. Additional
discussion of this issue appears in the docket under ``Receiving
Facility Notification Process.''
As discussed above, the Agency is also taking comment on whether
providing a ``delay'' in the effective date when the exemption attaches
(e.g., 30 or 60 days) would provide a significant and meaningful
opportunity for public comment prior to the waste having exited the
subtitle C system. Possible benefits of a waiting period before
effectiveness of the exit could include greater opportunity for State
review or citizen comment before waste is actually disposed outside of
Subtitle C. Under such an approach, the waiting period would begin with
receipt by the State of a complete certification package, and would run
for the designated time (30 or 60 calendar days).
The Agency is taking comment on whether access to claim
documentation through the appropriate implementing agency will be
sufficient to provide public access to documentation. One alternative
would be to require the claimant to provide access to the information.
If that option is selected, the Agency requests comment on how, and for
how long, the claimant should be required to provide access to the
documentation, and on what kind of protection for CBI would be
appropriate.
IX. Request for Comment on Options for Conditional Exemptions
The Agency has at different times considered contingent management
approaches to disposal of hazardous wastes. Under such approaches,
wastes that would be considered hazardous if managed in an uncontrolled
manner, could be considered non-hazardous if managed in a sufficiently
controlled manner. The following section discusses and requests public
comment on several approaches to setting higher exit levels tied to
meeting certain management requirements. These approaches would allow
wastes with higher concentrations of hazardous constituents to be
managed safely outside of Subtitle C.
Many Subtitle C requirements were written generically to address
all hazardous wastes and, consequently, provide protection for those
wastes that pose the greatest risks. Others are either explicitly or
implicitly technology-based rather than risk-based. Some of these
requirements are statutory and cannot easily be adjusted to take risk
into account. Nevertheless, EPA generally believes that it would be
desirable to tailor waste management requirements to more closely
coincide with risks. The exit levels proposed today take an initial
significant step in this process by allowing very low-risk hazardous
wastes to be exempt from Subtitle C requirements, leaving them subject
only to less prescriptive federal and state controls for nonhazardous
wastes. They also take an initial step towards setting different exit
levels for different situations by recognizing that wastewater and non-
wastewaters are typically handled in different ways and pose different
risks, hence today's notice proposes different exit levels for
wastewaters and non-wastewaters.
Within the time constraints imposed by the court-ordered deadline
for this proposal, EPA has begun exploring whether it would be possible
to create additional exemptions to allow more flexible management of
additional wastes now classified as hazardous without compromising
protection of human health and the environment. These options are
premised on the theory that a waste's risk is due not only to its
chemical composition, but also the manner in which it is managed, which
can greatly affect the amount of chemical constituents that ultimately
reach a human or environmental receptor. The multipathway analysis
prepared to support the exit levels shows that the concentration at
which a hazardous constituent threatens human health or the environment
varies significantly with the type of management that a waste
receives--some forms of management appear to present greater risks than
others. The following discussion presents the legal framework for
management-based exemptions, and outlines in some detail the options
which EPA finds to be most promising for rapid promulgation.
A. Legal Basis for Conditional Exemptions
EPA originally interpreted RCRA's definition of hazardous waste to
focus on the inherent chemical composition of the waste and to assume
that mismanagement would occur so that people or organisms would come
into contact with the waste's constituents. See 45 FR 33113 (May 19,
1980). However, EPA even in the past tried to consider ``reasonable''
mismanagement scenarios, scenarios that where reasonably likely or
plausible even if not proven to necessarily have occurred or be typical
for a specific waste. However, after more than a decade of experience
with waste management, EPA believes that it may no longer be accurate
or necessary to assume that worst-case mismanagement will occur. In
recent hazardous waste listing decisions, for example, EPA has
identified some likely ``mismanagement'' scenarios that are reasonable
for almost all wastewaters or non-wastewaters, and looked hard at
available data to then determine if any of these are for some reason
very unlikely for the specific wastes being considered, or if other
scenarios are likely given available information about current waste
management practices. As a further extension of that logic, EPA now
believes it may be appropriate to find that, where mismanagement is not
likely or has been adequately addressed by other programs, EPA need not
classify a waste as hazardous and that there may be ways to recognize
situations where the limitations on likely ``mismanagement'' are
specific to a State, a type of waste, or a facility-specific condition
on how a waste is managed.
EPA believes that it can interpret the definition of ``hazardous
waste'' in RCRA section 1004(5) to authorize this approach to
classifying wastes as hazardous. Section 1004(5)(B) defines as
``hazardous'' any waste which may present a substantial present or
potential hazard ``when mismanaged''. EPA reads this provision to allow
it to determine the circumstances under which a waste may present a
hazard and to regulate the waste only when those conditions occur.
Support for this reading can be found by contrasting section 1004(5)(B)
with section 1004(5)(A), which defines certain inherently dangerous
wastes as ``hazardous'' no matter how they are managed. The legislative
history of Subtitle C of RCRA also appears to support this
interpretation, stating that ``the basic thrust of this hazardous waste
title is to identify what wastes are hazardous in what quantities,
qualities and concentrations, and the methods of disposal which may
make such wastes hazardous.'' H.Rep. No. 94-1491, 94th Cong., 2d Sess.6
(1976), reprinted in A Legislative History of the Solid Waste Disposal
Act, as Amended, Congressional Research Service, Vol.1, 567 (1991)
(emphasis added).
EPA also believes that section 3001 provides it with flexibility to
consider
[[Page 66396]]
the need to regulate wastes as hazardous. Section 3001 requires that
EPA, in determining whether to list or otherwise identify a waste as
hazardous waste, decide whether a waste ``should'' be subject to the
requirements of Subtitle C. Hence, section 3001 authorizes EPA to
determine that Subtitle C regulation is not appropriate where a waste
is not likely to be managed in such a way that it will threaten human
health or the environment. Moreover, regulation of such waste under
Subtitle C would not appear ``necessary to protect human health or the
environment'' under RCRA sections 3002(a), 3003(a) and 3004(a). As
noted elsewhere in this proposal, EPA interprets these provisions to
give it broad flexibility in fashioning criteria to allow hazardous
wastes to exit the Subtitle C regulatory system. EPA's existing
regulatory standards for listing hazardous wastes also allow
consideration of a waste's potential for mismanagement. See
Sec. 261.11(a)(3) (incorporating the language of RCRA section
1004(5)(B)) and Sec. 261.11(c)(3)(vii) (requiring EPA to consider
plausible types of mismanagement). Where mismanagement of a waste is
implausible, the listing regulations do not require EPA to classify a
waste as hazardous.
Two decisions by the U.S. Court of Appeals for the District of
Columbia Circuit provide potential support for this approach to
defining hazardous waste. In Edison Electric Institute v. EPA, 2 F.3d
438, (D.C. Cir. 1993) the Court remanded EPA's RCRA Toxicity
Characteristic (``TC'') as applied to certain mineral processing wastes
because the TC was based on modeling of disposal in a municipal solid
waste landfill, yet EPA provided no evidence that such wastes were ever
placed in municipal landfills or similar units. This suggests that the
Court might approve a decision to exempt a waste from Subtitle C
regulation if EPA were to find that mismanagement was unlikely to
occur. In the same decision the Court upheld a temporary exemption from
Subtitle C for petroleum-contaminated media because such materials are
also subject to Underground Storage Tanks regulations under RCRA
Subtitle I. The court considered the fact that the Subtitle I standards
could prevent threats to human health and the environment to be an
important factor supporting the exemption. Id. at 466. In NRDC v. EPA,
25 F.3d 1063 (D.C. Cir. 1994) the Court upheld EPA's finding that
alternative management standards for used oil promulgated under section
3014 of RCRA reduced the risks of mismanagement and eliminated the need
to list used oil destined for recycling. (The Court, however, did not
consider arguments that taking management standards into account
violated the statute because petitioners failed to raise that issue
during the comment period.)
B. Improvements in Management of Non-Hazardous Waste and in Risk
Assessment Methodology
EPA's early regulations defining hazardous waste reached broadly to
ensure that wastes presenting hazards were quickly brought into the
system. When EPA promulgated its first listings and characteristic
rules in 1980, its knowledge of toxic constituents, constituent
transport pathways, and waste management options was more limited than
it is today.
In addition, significant changes and improvements in waste
management have occurred since the early 1980's. Many states have
established or strengthened industrial nonhazardous waste programs
since that time. For example, currently 26 states require liners and 28
states require ground-water monitoring for at least some surface
impoundments. Up to 45 states require ground-water monitoring and 38
states require liners for at least some landfills. It is important to
recognize however, that within a state, applicable requirements may
vary according to a number of factors, including unit type, waste
source, and location. See ``State Requirements for Industrial Non-
Hazardous Waste Management Facilities'' EPA 1994. At the same time,
industries have gained experience in managing wastes and many have
improved waste management practices under incentives such as public
access pursuant to the Emergency Preparedness and Community Right to
Know Act, and avoiding liabilities under Superfund, RCRA corrective
action and state cleanup programs.
EPA's ability to predict the risks that a waste may pose has also
improved significantly. EPA has collected much more data on a variety
of waste management units and other factors that impact the ability of
waste constituents to reach a receptor. Models such as the EPACMTP and
the models used in the multipathway analysis provide more sophisticated
means of assessing the risks of a range of waste management options. As
a result of all these changes, EPA is now in a position to begin to
implement a more carefully tailored risk-based approach to regulating
hazardous wastes.
C. Overview of Options for Conditional Exemptions
The Agency has identified several different approaches to providing
conditional exemptions that would allow more wastes to exit the
Subtitle C system. These options fall into two broad categories: (1)
Establishing national conditional exemptions based on unit type either
with or without assuming additional management controls; and (2)
granting conditional exemptions to qualified state programs that ensure
additional management controls.
1. National Approach: EPA Would Establish National Exit Levels for
Contingently Managed Waste
The contingent management program could be adopted by any state
that wants to implement it, without consideration of state programs for
non-hazardous waste. The contingent exit levels would differ according
to the degree of management/disposal restrictions imposed as a
condition of exit. The possible options would include progressively
more restrictive requirements, and allow progressively higher exit
levels as disposal options are further restricted. The options under
this approach are:
a. Distinguish Between Disposal in Land Application Units and Other
Units
The multipathway risk assessment methodology used for this
rulemaking takes into account management scenarios (such as land
treatment of a waste), or exposure pathways (such as wind transport
from an uncovered pile or volatilization from an open tank), resulting
in calculated exit levels based on the riskiest scenario. In some cases
this exit level may be significantly lower than the next most risky
exposure pathway. The riskiest exposure pathway may not be applicable
to some management situations. On review of the risk analysis results,
the Agency determined that disposal in a land application unit is
frequently the highest risk disposal option in both the multipath and
groundwater modeling.
As described in detail in Section X. below, the Agency has
developed for proposal an approach to contingent management relying on
the multipathway exposure analysis, risk level of 10-6 and HQ of 1, and
using the base case uncontrolled management scenarios, but with land
application units removed from the analysis. Exit concentrations would
still be protective across a wide variety of conditions nationally, for
all non-land application unit disposal. The Agency is proposing
[[Page 66397]]
one national exit level for each constituent based on the next riskiest
pathway, on condition that wastes are not disposed in land application
units.
This option was considered by the Agency to be the simplest
approach to contingent management. It would be somewhat easier to
enforce than other options described below, since there would still be
only one conditional exit level for each constituent. Implementation
mechanisms to assure that the wastes go only to allowable unit types
are described below.
b. Unit-Specific Exit Levels for Each Disposal
Another approach to contingent management considered by the Agency
would be to establish a set of exit levels for each waste management
unit evaluated based on risks at unregulated units of that type. Units
that would be evaluated, at HQ 1 and 1 E-6 risk, would be land
application units, waste piles, landfills, surface impoundments and
tanks. Base case assumptions would be used to describe the units. The
Agency has not included specific exit levels for this approach here,
but solicits comment on its potential benefits, and potentially greater
complexity of implementation and compliance assurance.
Under option 2 the Agency would set separate exit levels for each
type of waste management unit. Generators would be allowed to choose
the type of non-subtitle C waste management unit in which to manage
their waste, and would be required to meet the unit-specific exit
levels for all constituents in order to manage the waste in that unit.
Testing and implementation would be similar to the requirements for
exit based on the most limiting pathway. However, the Agency believes
this option would increase the complexity of tracking wastes that met
the varying concentration exit levels tied to specific allowable units.
The Agency believes allowing use of exit levels tailored to waste
management can be a practical and appropriate way to allow greater
volumes of waste to exit Subtitle C without increasing risks to above
the toxicity benchmarks described in Section IV.D, providing that
characteristics of various waste unit types can be clearly defined
(such as the difference between surface impoundments, tanks, and
perhaps covered tanks for the management of wastewaters), and providing
the Agency can design a viable implementation scheme that does not rely
primarily on statements of proposed future disposal. Tracking and
monitoring of actual waste management could be one way to assure
disposal in the appropriate facilities. Limiting disposal to on-site
facilities could also better assure proper disposal, although this
would limit the usefulness of contingent management approaches. The
Agency requests comment on additional implementation requirements that
might be needed to assure the waste is managed in the designated unit
type only.
EPA has not developed this as a general approach in this rulemaking
because the risk modelling that was done, while more multifaceted and
comprehensive than many past analyses, was not designed for this
purpose. For efficiency in modelling, EPA did not always model each
pathway for each specific unit. EPA sometimes only modelled an exposure
pathway of concern (such as air emissions) from certain types of units
that EPA thought might be the limiting scenario, and risk from organic
constituents in a landfill were not modeled. Therefore the modelling
work to date may not identify the most limiting pathway if each unit is
judged individually. To fully develop exit levels for a full range of
unit types, EPA believes it would have to do supplemental risk analysis
to fill in the gaps in modeling for each of the waste management units,
or at least evaluate whether the risk analysis done to date is
sufficiently representative. Tables 21-39 in the November 1995
Supplement to the multipath analysis present the modeled risk values
for each constituent disposed in each of the five options modeled, and
for each pathway. These tables can aid commenters in understanding what
a unit-specific exit value for any particular constituent could be.
c. Consideration of Additional Management Unit Design or Management
Practices
A third option is that EPA would use a somewhat modified
multipathway exposure model to evaluate whether adding additional
specific design or operating controls for particular unit types, would
allow less conservative exit levels. These conditional exit
concentrations would be promulgated on a unit-type specific basis, and
could be used only by units employing the specified additional controls
that would reduce the risk level to 10-6. Such an approach could be
self-implementing for a facility owner/operator, and would not
necessarily be tied into a permitting authority.
While such an approach could take into account the effects of a
combination of added controls on each unit type (such as size of the
unit, ground-water monitoring, liners, caps, etc.) the Agency believes
that there are a number of significant implications associated with
this approach. It could be interpreted by industries and states as an
indirect way to define a broader set of management standards for
industrial non-hazardous waste management units. Also, if the approach
were self-implementing, it could be extremely difficult to ascertain
that a particular unit meets a complex set of controls and therefore to
assure compliance with the conditional exit levels. The more complex a
judgement required to determine compliance with the conditions (such as
whether a liner that is hard to inspect during operation is properly
installed and protected from tears), the more appropriate it is likely
to be that such determinations be made in the context of a permitting
authority or prior approval rather than as a condition on a self-
implementing exemption.
As a variation on this approach, The Agency could take into account
certain regional, local, or site-specific factors in establishing exit
levels. These could include the effect of local rainfall, regional
hydrogeology, or size of facility on exit values. These issues are
described in greater detail in section 3 below.
Because of the complexity of implementation, the Agency would
attempt to define very limited additional control(s) to limit exposures
and reduce risks to 10-6 level. EPA particularly asks for comments on
unit design attributes that are easily ascertainable in a spot
inspection versus those that require more detailed engineering review,
or review or monitoring of operations. For this option, as with options
one and two, the Agency would have to conduct additional risk modelling
work to adequately evaluate additional parameters on a unit specific
basis.
One issue common to all of the options discussed above is the legal
status of wastes subject to such conditioned exemptions when there is a
violation of the conditions. The Agency requests comments on how to
make them enforceable in a practical way that is fair to those
involved. If the waste concentration/unit requirements are conditions
of an exemption, any violation of a condition means that the waste
generator, or other individual managing the waste, has violated the
full range of RCRA requirements and has been illegally managing a
``hazardous waste'' as a ``nonhazardous'' waste. Because the
conditional requirements are not clearly tied to other non-hazardous
waste authorities,
[[Page 66398]]
there would not be a remedy for the violations outside of the hazardous
waste program. An alternative approach is discussed in the following
options allowing conditional exit levels in states with qualified
industrial non-hazardous waste programs. As long as the state has clear
enforcement authority under its non-hazardous waste management program,
these conditions could be crafted so that a violation of the condition
was not illegal disposal of hazardous waste involving multiple RCRA
counts. Rather it would be enforced as a violation of the relevant
State authorities. The Agency requests comment on the advantages and
disadvantages of these approaches, as well as whether there might be
other approaches to ensure adequate legal remedies for violations of
the conditional exit requirements, when the contingencies are not based
on qualified state industrial non-hazardous waste programs.
2. State Program Approach
As noted earlier in this section, many state industrial non-
hazardous waste programs have improved significantly since the early
days of Subtitle C. State programs may offer the advantages both of
requiring management controls which ensure protection of human health
and the environment and ongoing oversight on a facility specific basis
through permitting, inspection and enforcement activities. While every
state program may not be operating at the same level, the Agency
believes that a number of state programs may offer reasonable,
protective systems to serve as the basis for less stringent exit
levels. Qualified state programs would be allowed to manage listed
waste in their non-hazardous waste management program under certain
conditions. These qualified state programs would ensure that risks were
reduced to protect human health and the environment.
There are three key factors the Agency believes would need to be
considered in establishing state-based contingent management programs.
These are (1) establishing a risk-based cap on waste constituent
concentrations that can be managed contingently; (2) the type of
program review of a state program that EPA would perform to identify
qualified state programs, and (3) the breadth of state program
controls.
For the risk cap, the Agency has considered using either a 1 E-4
cancer risk and HQ 1, or 1 E-3 cancer risk and HQ 10 as options. The
caps would be modeled based on management in unregulated disposal
facilities, as in the base-case exit level modeling.
Regarding program review, the Agency would either conduct a
qualitative review of the State program, examining it to ensure it
addresses key considerations, or would require states to conduct
quantitative risk assessment of planned management practices to
demonstrate their safety down to 1 E-6 cancer risk and HQ 1 or an
alternative risk target.
For the qualitative review, EPA would specify environmental and
administrative performance goals and the state would have to submit a
narrative description demonstrating how the particular combination of
technical standards and administrative requirements in their program
protects human health and the environment and meets those performance
goals, for example:
Ground-water protection: A state program must address
adequately contamination of groundwater from a facility.
Surface water protection: A state program must address
adequately prevention of contamination of surface water which may occur
through the run-off of pollutants from the disposal facility to surface
waters.
Address other environmental and performance goals such as
controlling air exposures, siting, ensuring long-term integrity of the
site, etc.
Permitting and enforcement authorities and public
participation: A state program has appropriate authorities and a system
for prior approval of waste management facilities, and public
participation either on a site-specific basis or for input to
development of class permits.
Adequate resources: A state program has adequate resources
for administration of the program including permitting, inspections and
enforcement.
Under a quantitative risk review approach, a state would have to
document their permitting and enforcement authorities and public
participation requirements, as well as the adequacy of their program
resources. The state would also have to demonstrate to EPA how the
particular combination of technical management controls or design
standards in its industrial non-hazardous waste program would ensure
meeting 10-6 risk levels. In order to do this, EPA would have to refine
or expand the multipathway exposure model. EPA would then either make
its multipath model available to states or work with them to
demonstrate that unit-specific state program controls would meet the
10-6 risk level for a particular class of facilities receiving
conditionally exited wastes. The Agency solicits public comment on
whether states can propose alternative risk targets for use in state
contingent management programs.
Regarding program breadth, the Agency believes either broad, state-
wide programs, or more narrowly focused contingent management programs
could be developed. Under a broad-based state program approach, the
Agency would approve as qualified only those state subtitle D programs
that adequately regulate all state non-hazardous waste management and
wastes. Under this approach, states with programs deficient in certain
aspects would be required to upgrade before participating in the
contingent management program. However, the Agency recognizes that
state subtitle D programs vary widely in the particular units and waste
types that are covered, among other factors. Therefore, as an
alternative approach, EPA might determine that a program qualifies for
conditional exit only for particular units (i.e. for landfills only, or
for landfills and surface impoundments, etc.). In other cases, a state
program might focus narrowly on developing appropriate contingent
management for particular waste streams generated by key industries in
the state.
In considering how to use these key factors in developing
contingent management regulations, the Agency identified three options
in addition to the three options described above under the national
programs. These will be identified in this discussion as options four,
five and six.
Under option four, the Agency would use the 1 E-4 and HQ 1 risk cap
on waste and would conduct a qualitative review of the state program
using the criteria described above. This could be done either on a
narrow program basis, or based on a program that qualifies broadly.
Under option five, the Agency would also use the 1 E-4 and HQ 1
risk cap for waste being contingently managed, but would require that
states conduct risk modeling of proposed disposal to demonstrate that
risks from the waste as disposed would be not greater than the 1E-6 and
HQ1 risk targets of the base case. This approach could be taken either
with the entire state program, or only certain waste management
practices. In particular, site-specific factors, as described below,
could be considered under this approach. These could include facility
size, local rainfall, or local hydrogeology, among others. Location of
the nearest drinking water well might also be considered by the state
in evaluating risks, if allowed under state regulations and regulatory
policies. In this case, the state would be
[[Page 66399]]
required to demonstrate to EPA, using the multipathway analysis or
another risk assessment model, how they would ensure on a site-specific
basis that facilities disposing of conditionally exited wastes meet a
10-6 risk level. Development of this approach might also require quite
different risk models, since the multipathway model as it currently
exists incorporates a number of simplifying assumptions to capture a
broad range of possible conditions. The Agency would have to ensure
that a model used for this analysis can incorporate complex site-
specific variables, or develop a set of simplified models that could be
applied by states. However, this approach would provide maximum
flexibility to states and generators to tailor exit levels to
particular waste and site characteristics.
Under option six, the Agency would allow wastes posing up to 1 E-3
cancer risk and HQ 10 (in an unregulated management setting), and allow
either a qualitative or quantitative review of the state program, but
allow participation only by state programs that are broadly qualified,
i.e., that are qualified in all aspects of the program, for currently
managed industrial non-hazardous waste. The Agency would be more
comfortable with this approach because it would be more assured of safe
management of the waste regardless of where in the state it is
disposed.
The Agency also solicits public comment on whether more than one of
the options discussed above should be developed at the same time. For
example, the Agency might establish both the option 1 proposal
described below, and establish a state-based contingent management
program based on any of options four, five or six. By doing so, the
Agency would establish option 1 as a minimum national standard, but
this approach would allow that states to go further they choose to do
so.
3. Establish Exit Levels That Consider Regional or Site-Specific
Factors That Might Affect Constituent Fate and Transport'
In addition to facility design factors, there are other location-
specific factors that may substantially affect the risks and the
appropriate exit levels for waste management units. Examples of such
factors include: Rainfall and hydrogeology at the site and the distance
to off-site receptors. The average amount of precipitation falling on
these waste management units may affect both the amount of leachate to
groundwater and soil run off to off-site receptors. Thus, the Agency
could determine geographic regions based upon climatic zones, could
require precipitation data from the most appropriate certified rain
gauge, or could require site specific precipitation information.
However, in order to do this the Agency would need to verify that the
other model inputs are appropriate for each of the regions or else
develop new region-specific inputs. Therefore, the Agency solicits data
and comment on technically appropriate ways to establish exit levels
based on rainfall levels.
Other site-specific factors that may significantly affect the
groundwater pathway are the hydraulic conductivity of the soil
surrounding the waste management unit and the distance to the nearest
drinking water wells. If the hydraulic conductivity of surrounding soil
is relatively low--such as in soils dominated by clays--then the flow
of any potentially contaminated leachate to ground water could be
effectively retarded for long periods of time (though flow to surface
waters or other pathways might change, perhaps increasing). Landfills
located in soils with low hydraulic conductivities (for example, 10-6
cm/sec or lower) could provide an extra level of environmental
protectiveness for ground water that could be considered in developing
this approach. For example, the Agency might address this effect by
developing exit levels corresponding to different classes of hydraulic
conductivity. Alternatively, differences in hydraulic conductivity
could be considered through a site-specific process. This approach
would not be relying on engineered controls, but on natural attributes
of the location. EPA solicits comments on whether such attributes can
be readily determined or in what circumstances they can be readily
determined and relied upon.
The Agency did some limited sensitivity analysis with respect to
ground water risk modelling to look at the concept of developing
different exit levels depending on broad hydrogeological regions. The
results of that analysis are in the docket. The Agency requests comment
as to the value of investing in this approach and practical
considerations the Agency should weigh in deciding whether to pursue
this approach.
Finally, where the nearest drinking water wells are at an unusually
great distance from the waste management unit, corresponding exit level
concentrations associated with groundwater exposures that took that
distance into account could be significantly lower if the Agency's goal
were solely the prevention of current exposure to groundwater
contamination. However, many states have policies to not degrade
groundwater and EPA believes it is quite difficult to predict future
needs for uncontaminated groundwater. EPA believes that the groundwater
modelling done for this rule reflects a balanced view by using the
distribution of nearest wells. However, EPA expects it will receive
comments suggesting that it should consider allowing facilities with no
moderately nearby drinking water wells to take that into account. The
Agency seeks comment on the implementation issues associated with
taking these factors into account and the related policy judgement as
to whether the goal of more site-specific assessment should be
prevention of risk based on current ground water use, reasonably
foreseeable use, or based on distances that would be more protective of
the potential future use of ground water.
The Agency also seeks comment on other location-specific factors or
combinations of factors that may be particularly important in
mitigating the risks associated with waste disposal. The Agency also
requests comment on alternative approaches for taking these location-
specific factors into consideration in developing exit levels for waste
management. One option for doing so would be to develop additional
tables of exit levels (in addition to Option 2) for waste management
units that reflect the effect of some of the most important location-
specific factors (e.g., exit levels for areas with low annual rainfall,
or indexed to landfill size). As an alternative option, the Agency
could develop ``reduced form'' equations that specifically relate the
exit level concentration to critical location-specific factors (such as
annual rainfall). The Agency requests comment on the merits of these
approaches and on alternative options that might be used to better
accommodate the effect of location-specific factors on exit levels.
D. Land Disposal Restrictions for Contingent Management Options
Any conditional exemption would offer much more significant relief
if it eliminated or reduced the need to comply with more stringent LDR
treatment requirements. As explained above in Section VI of today's
proposed rulemaking, however, under Chemical Manufacturers Association
v. EPA (the ``Third Third'' decision) LDR treatment standards generally
continue to apply even if a waste ceases to be classified as a
hazardous waste. If an LDR treatment standard were lower (more
stringent) than a contingent management exit level, the waste would
still need to meet the LDR standard.
[[Page 66400]]
EPA has proposed two approaches to integrating HWIR exit levels and
LDR treatment requirements for the base option. First, EPA is proposing
that LDR treatment requirements will never apply to wastes that meet
all applicable exit levels at the point of generation. Second, for
wastes which meet exit levels subsequent to the point of generation
and, consequently, remain subject to the LDR regime, EPA is proposing
to allow some exit levels to serve as alternative risk-based treatment
standards meeting the ``minimize threat'' standard under RCRA section
3004(m). EPA expects these proposals to reduce the burden of complying
with LDR requirements.
As explained more fully in the detailed presentation of option 1
below, EPA is proposing both of these approaches for contingent
management option 1 (relaxed exit values for wastes that are not placed
in land application units). EPA's rationales are set out in that
discussion.
EPA anticipates that it might also be willing to propose to use
exit levels developed under option 2 (separate exit levels for each
major type of waste management unit) to serve as risk-based ``minimize
threat'' standards. If EPA filled the gaps in its current multipathway
risk assessment, it would feel fairly confident that the multipathway
analysis plus the groundwater analysis identified constituent
concentrations that minimize threats to human health and the
environment for each class of waste management units. The modeling for
both analyses would assume each type of unit was located in a
``reasonable worst case'' physical setting and was subject to minimal
management controls. EPA, however, would expect some members of the
public to argue that unit-specific exit levels should not be considered
``minimize threat'' levels because risks to human health and the
environment would not be minimized if exempted waste ended up in the
wrong type of management unit. EPA might try to address such concerns
by imposing conditions such as tracking or reporting systems on persons
claiming the exemptions.
EPA would expect similar objections to the option of allowing
wastes that meet option 2 levels to exit if their constituent
concentrations met unit-specific exit levels at the point of
generation. Members of the public might again be concerned about the
possibility that wastes could be placed in a unit type requiring lower
(more restrictive) exit levels. As suggested above, however, EPA could
impose conditions to help ensure that exempted waste goes only to a
unit where the exit levels in fact minimize threats.
Providing LDR relief for the remaining options for conditional
exemptions would raise additional legal and practical issues. All of
the remaining national and state-based options rely on design or
operating controls (such as liners) to help prevent dangerous
concentrations of hazardous constituents from reaching human or
environmental receptors. EPA, for example, would be reluctant to take
into account control measures that would be difficult for inspectors to
verify during site visits.
It might be somewhat easier to take into account factors--such as
annual rainfall, depth to groundwater, and subsurface soil and rock
formations--that relate to a unit's physical setting. EPA has already
proposed to interpret section 3004(m) to allow consideration of a
unit's physical setting in making site-specific minimize threat
findings. See the proposed LDR standards for contaminated soil, 58 Fed.
Reg. 48123 and 48155 (Sept. 14, 1993). EPA requests comments on all of
these issues related to the integration of conditional exemption
options to the LDR standards.
E. Contingent Management of Mixed Waste
The Department of Energy (DOE) has also expressed interest in EPA's
contingent management approaches to managing waste that is mixed
radiologic and RCRA hazardous waste (``mixed waste''). Mixed waste may
be managed by DOE-regulated facilities or commercial facilities
regulated by the Nuclear Regulatory Commission (NRC). EPA expects that
the general approach in today's proposed regulation would be applicable
to mixed wastes as well as listed-only hazardous wastes. DOE has
suggested that because mixed wastes subject to RCRA are also subject to
AEA disposal requirements which control releases of and exposure to
radioactive hazards, these AEA requirements may address releases of
chemically hazardous constituents as well, and it would be reasonable
to allow more mixed wastes to exit Subtitle C because of the AEA
requirements. DOE believes these AEA requirements would also provide
adequate protection of human health and the environment from
chemically-hazardous constituents. DOE has submitted several studies to
EPA in support of their views, and the Agency has placed those
documents in the public docket for review. The Agency will also
undertake a review of these data to better understand the additional
increment of protection provided by AEA low-level waste site
performance standards. With that review ongoing, the Agency is
proposing, and requesting public comment on, adaption of option four
above to DOE's special circumstances. The Agency requests comment on
allowing mixed waste meeting conditional exit levels for chemical
toxicity estimated at 10-4 cancer risk and HQ 1 (modeled at an
uncontrolled site), to exit Subtitle C if managed in AEA disposal
facilities.
DOE has also urged the Agency to consider establishing a
categorical exclusion from RCRA requirements for mixed waste debris
that is immobilized. One of several macro- or microencapsulation
methods could be used to immobilize the debris, including use of
portland or other cement products, or various polymer products. Under
such an exclusion, all immobilized mixed debris could be managed
outside of Subtitle C, but would still be required to be disposed in
AEA disposal facilities. No testing of the debris would be required to
identify toxic constituents or the levels at which they might be
present. DOE has conducted a study of leaching rates for certain toxic
constituents from stabilized debris and submitted it to the Agency for
review in support of DOE's conclusion that immobilized debris can be
managed safely outside of subtitle C if disposed in an AEA facility.
Because the Agency has only recently received this study, it has been
unable to adequately review and evaluate the data presented. The Agency
solicits public comment on this approach, the DOE study, and solicits
any other available data that are relevant to this topic.
Finally, DOE has developed data on vitrified waste, and requested
that the Agency consider the environmental protection conferred by this
treatment process. Again, the Agency has not had adequate time to
review and evaluate the DOE data, but has placed it in the public
docket and solicits public comment on the data and DOE's preferred
approach to mixed waste management.
In soliciting comment on these exit procedures for mixed waste, the
Agency recognizes that a number of states hosting DOE facilities have
expressed concern over the proposal's effect on their states ability to
adequately regulate mixed waste under states and federal law as
intended by RCRA and the Federal Facilities Compliance Act. These
states also believe that significant details of the DOE proposal are
lacking and additional analysis would need to occur before the
procedures can receive adequate comment. Therefore, the Agency intends,
to the extent consistent
[[Page 66401]]
with the schedule negotiated in the consent decree for this rulemaking,
to publish a supplemental proposal on HWIR mixed waste exit criteria
after initial comments have been received. The supplemental proposal
would further describe the regulatory options being considered and will
solicit additional comment on more specific options.
X. Implementation of Conditional Exemption Option 1
A. Introduction
Using the concept of contingent management, EPA is proposing to
create a second, alternative set of exit levels for nonwastewaters that
are managed in landfills or monofills, but not land treatment units.
Persons wishing to utilize this alternative exit scheme would not only
have to meet the recalculated concentration limits for all constituents
in their wastes, but also comply with conditions prohibiting land
treatment. Compliance with notification and tracking requirements
described in more detail below will also be necessary. The exit levels
for this alternative are set out in appendix XI of 40 CFR part 261; the
requirements and conditions are set out in proposed Sec. 261.37.
Nonwastewaters that do not meet the exit levels in appendix X to 40 CFR
part 261 will be eligible for exit only if they meet the more relaxed
levels in appendix XI of 40 CFR part 261 and comply with all relevant
conditions.
EPA derived the levels for this alternative by deleting all of the
modeling results for the land treatment scenario from its risk
assessment data base, and selecting the lowest remaining exit value
from the remaining modeling results for other types of waste management
units. The same approach used to establish exit levels presented in
Section V. of today's proposed rulemaking was used to establish exit
levels under this option. That is, where complete risk data was not
available, surrogates were used to extrapolated exit levels (see
Section IV.H) and where analytical limitations existed, EQCs were used
as exit levels (see Section IV.I). As a practical matter, this approach
affects only the exit levels for nonwastewaters. As explained above in
section IV, EPA created the original exit levels for nonwastewaters by
grouping the modeling results for the unit types typically used to
manage solid materials (ash monofills, piles, and land treatment units)
and selecting the lowest value from all pathways modeled for these
scenarios. EPA created the separate wastewater exit levels by grouping
the results from units typically used to manage liquid wastes (tanks
and surface impoundments). Consequently, the wastewater exit levels are
not based on the modeling of land treatment units, and these levels are
not affected by the decision to exclude results from the land treatment
scenario.
The Agency is proposing that the contingent management exemption be
self-implementing. Therefore, the claimant would have the burden of
demonstrating that all of the provisions for the contingent management
exemption described herein have been met. In an enforcement action, a
waste for which a contingent management exemption is claimed would be
considered a Subtitle C hazardous waste unless the claimant was able to
produce evidence that all of the conditions of the exemption have been
met.
B. When Contingent Management Exemptions Become Effective
The Agency is proposing two options for the point at which the
contingent management exemption would become effective.
1. Option 1A--Placement of the Waste in a Qualifying Unit
Under the first option, the conditional exemption for ``contingent
management'' nonwastewaters would not become effective until the waste
had been placed in a qualifying unit. Prior to actual disposal, the
nonwastewater would be managed as a hazardous waste according to all
applicable RCRA provisions, including 40 CFR parts 262 (for generators)
and 263 (for transporters) and part 268 (regarding treatment prior to
land disposal). These requirements include compliance with the waste
manifest provisions of 40 CFR part 262, subpart B, and the pre-
transport provisions of 40 CFR part 262, subpart C, which contains,
among other provisions, the provisions governing hazardous waste
accumulation. Treatment and storage prior to disposal would remain
subject to parts 264, 265, and 270.
The Agency believes this approach makes it easier to ensure
consistent implementation and safe management of the waste. It also
decreases the potential implementation concerns that may arise if some
states adopt this rule as part of their authorized programs and others
do not. For example, this approach would reconcile transportation
concerns that could arise if waste, conditionally-exempt in one state,
were transported through a state that had not adopted the contingent
management exemption as part of its authorized program.
Under this option, the Agency is considering and requesting comment
on the applicability of amending 40 CFR 264.1 and 265.1 to allow off-
site disposal facilities to store candidate contingent management
exempt wastes for up to 10 days without becoming a subtitle C
treatment, storage, and disposal facility, prior to ultimate disposal
in a monofill or landfill. The Agency requests comment on whether 10
days is a sufficient or appropriate length of time, and if not, what
time period may be appropriate.
Under the above approach, contingent management exempt
nonwastewaters being disposed of on-site also would not become exempt
until placed in a disposal unit meeting the requirements established
under this rule. However, since the current waste accumulation
provisions of 40 CFR 262.34, allow a generator to store hazardous waste
on-site in tanks, containers or containment buildings for 90 days
without becoming a Subtitle C storage facility, EPA believes that this
approach should not place undue burdens on a generator. EPA requests
comment on whether Sec. 262.34 will in fact enable generators of exempt
nonwastewaters to store wastes on-site in unpermitted units for a
reasonable period of time prior to land disposal. EPA acknowledges that
nonwastewaters are typically not stored in tanks.
2. Option 1B--Effective Upon Meeting the Exit Levels
The second option that EPA is considering would allow a
nonwastewater to become exempt from all hazardous waste requirements
except part 268 as soon as it meets appendix XI of 40 CFR part 261 exit
levels and the claimant has met all the requirements and conditions of
the exemption, including certifying that the waste will be managed in a
monofill or land disposal unit. The goal of this approach is to ensure
nonwastewaters will not be managed in a land treatment unit, which was
found to pose the greatest risk for many routes of exposure. Under this
approach, storage, treatment and transportation of the nonwastewater
could take place outside of Subtitle C control upon meeting the
requirements and conditions for the exemption. If EPA were to adopt
such an approach, it would impose conditions to ensure that the
exempted nonwastewater reached the types of units for which the
exemption was designed. Various options are suggested below in Section
D.1.
Finally, EPA notes that the proposed approaches have different
implications for LDR relief. These differences, which
[[Page 66402]]
principally concern the availability of LDR relief for nonwastewaters
which meet the appendix XI of 40 CFR part 261 exit levels at their
point of generation, are discussed in more detail in section H. below.
C. Requirements for Obtaining an Exemption
The following requirements would be applicable to both of the
approaches discussed above. Requirements for meeting the contingent
management exemption would include the sampling and testing
requirements of Sec. 261.37 (b)(1), the public notice requirements of
Sec. 261.37 (b)(3) and the notification to the implementing Agency
requirements of Sec. 261.37 (b)(4), similar to those respective
requirements for the base exemption in Secs. 261.36 (b) (1), (3) and
(4). The Agency notes that these provisions would be directly
enforceable Subtitle C requirements imposed prior to obtaining an
exemption rather than conditions for maintaining the exemption.
1. Sampling and Testing Requirements for Contingent Management
Exemptions
The Agency is proposing that the sampling and testing requirements
for the contingent management exemption be the same as those proposed
for the base exemption in Section 261.36 (b)(1). The Agency requests
comment on whether the sampling and testing requirements for the base
exemption would be appropriate for the contingent management exemption.
2. Requirements for Public Participation in Contingent Management
Exemptions
To provide the public with access to information, the Agency is
proposing to require compliance with the public notice requirements in
proposed Sec. 261.37(b)(3), similar to those in Sec. 261.36(b)(3). The
first time a claimant provides the Agency with notification of an
exemption claim for contingent management wastes, he will be required
to publish a notice of the claim in a major local newspaper general
circulation. The notice must include the name and address of the
facility, the description of the waste (as contained in the
notification), a brief general description of the process producing the
waste, an estimate of the quantities of waste claimed to be exempt, and
information about the Agency where the claimant has sent the
notification and supporting information. In addition, the public notice
must include that the waste meets the contingent management exemption
levels in appendix XI of 40 CFR part 261 and that the waste will be
disposed of in a monofill or land disposal unit.
3. Notification Requirements for Contingent Management Exemptions
To qualify for a contingent management exemption, a claimant would
need to submit to the authorized State Agency Director a formal
notification of its claim that waste meets the contingent management
exemption levels in Appendix XI of 40 CFR part 261 and will be managed
in accordance with the management conditions. In addition to the
requirements under Sec. 261.36 (b)(4), the contingent management
exemption notification to the implementing Agency must include an
accompanying certification that the waste meets the contingent
management exemption levels in appendix XI of 40 CFR part 261 and that
the waste will be disposed of in a monofill or land disposal unit.
The Agency requests comment on whether these requirements, similar
to Sec. 261.36 (b)(1),(3) and (4), will provide adequate information to
the implementing agency and the public on what exemption levels, i.e.,
appendix X to 40 CFR part 261 or appendix XI of 40 CFR part 261, are
being claimed and on how the waste is being managed. These provisions
would be requirements rather than conditions.
D. Implementation Conditions
As set out in Sec. 261.37 (d) and explained in the base exemption
implementation preamble (section VIII. B., Implementation Conditions)
certain conditions have to be met to maintain the exemption after the
claim has become effective. Under both option 1A and 1B, the following
conditions would have to be met to maintain the contingent management
option: Submitting changes in notification information to the Director
within 10 days of the change, following the schedule for retesting,
preparing and complying with a sampling and analysis plan for every
retest, maintaining constituent concentrations in the nonwastewater at
or below the exemption levels in appendix XI, meeting applicable
treatment levels under Sec. 268.40, and maintaining records on-site for
three years. These conditions are very similar to those proposed for
the base exit in Section VIII of today's proposed rulemaking. In
addition to those conditions established for the base exemption, the
claimant would also have to ensure that the waste was managed in a
qualifying unit.
Claimants, under both options, always have the obligation to
identify whether they are generating a hazardous waste and to notify
the appropriate government official if they are generating a hazardous
waste. (Section 3010; 40 CFR 261.11.) If any nonwastewater claimed as
exempt under the contingent management proposal tested above the exit
levels in appendix XI to 40 CFR part 261 at any time, that waste and
any mixture or derived-from forms of that waste would have to be
managed as hazardous waste, including compliance with all notification
requirements, until testing demonstrated that the waste was below the
exit levels.
1. Tracking Conditions
EPA is proposing to modify the manifest regulations to reflect the
fact that wastes exiting under this exemption need not be disposed of
in treatment, storage or disposal facilities that are subject to the
requirements of Sec. 264.71-264.72 or Section 265.71-264.72 requiring
the facility that receives the waste to sign and return the manifest.
EPA is not proposing to require the owners and operators of
nonhazardous waste facilities that accept wastes exempted under this
option to comply with these duties. As EPA concluded when it decided
not to extend recordkeeping duties related to the LDR program to
nonhazardous waste facilities accepting de-characterized hazardous
wastes, it would probably be difficult to provide reasonable notice to
all the members of this diverse universe, which has little or no other
contact with the hazardous waste management regime, of these Subtitle C
responsibilities.
EPA is proposing instead that the claimant of the exemption be
responsible for ensuring that the manifest is returned and that it--or
some other document--provides information showing that the facility
designated on the manifest did in fact receive the waste and did place
it in a landfill or monofill (and not a land treatment unit). Billing
documents may already supply some of the needed information. Where they
do not, EPA believes that claimants should generally be able to
contract with the receiving facilities to obtain the necessary
information. In some states, nonhazardous waste rules may also require
disposers to furnish generators with some of the necessary information.
EPA proposes to revise the manifest document as necessary to ensure
that nonhazardous waste facilities can be designated as receiving
facilities for listed wastes meeting all of the other requirements for
obtaining an exemption under this option.
[[Page 66403]]
The alternative to this approach would be to require owners and
operators of nonhazardous waste facilities to sign and return manifests
as a condition of the exemption. Failure to satisfy this condition
would void the exemption and return the waste to the hazardous waste
management regime, even if it were in fact safely placed in an
appropriate waste management unit. EPA requests comment on this
alternative.
Under option 1A, where all Subtitle C regulations apply until
placement of the nonwastewater in a monofill or landfill, EPA is
proposing conditions that make the claimant responsible for obtaining a
copy of the manifest to ensure the waste has reached its destination.
The claimant would also have the burden of acquiring evidence from the
receiving facility that the waste was placed in either a monofill or
land disposal unit.
Under Option 1B, where the exemption becomes effective upon the
waste meeting the appendix XI of 40 CFR part 261 exit levels, any
tracking system established would be a condition that the claimant
would have to meet to maintain the contingent management exemption. To
ensure that listed wastes exempted under this option actually go to a
landfill or monofill, EPA is proposing to require exemption claimants
to comply with the requirements of part 262 (with the modification
discussed above) relating to the uniform hazardous waste manifest.
Since this option allows wastes to go to facilities that are not
subject to the duty to return the manifest under Sec. 264.71-264.72 or
Sec. 265.71-264.72, EPA is proposing to require the claimant to ensure
that the manifest is returned and that it--or some other document--
provides information showing that the facility designated on the
manifest did in fact receive the waste and did place it in a landfill
or monofill (and not a land treatment unit). The duties would be
identical to those proposed above for claimants under the first option.
The rationale for imposing the duties on the claimant--and not the
receiving facility--is also the same.
An alternative which EPA requests comment on is the concept of
imposing conditions that require a uniform, national tracking document
similar to the current uniform manifest to accompany the waste until it
reaches its final destination. This document could inform transporters
and other waste handlers that the waste is an exempt hazardous waste
that must be managed in a monofill or land disposal facility and loses
its exemption if it is managed in a land treatment unit. EPA could
further require that the disposal facility certify that the
nonwastewater was disposed in a monofill or land disposal unit and
return the tracking document and certification to the original
exemption claimant. EPA could also ensure that the implementing agency
(EPA or an authorized state) received notice of any problems in waste
disposal by imposing requirements similar to the current Sec. 262.42
exception reporting provisions.
Another alternative would be to require, in lieu of a tracking
document, a contractual agreement between the exemption claimant and
the receiving facility specifying the type of waste the receiving
facility will accept, the type of units it will use, and information on
the volume and frequency of deliveries. EPA could require either the
claimant or the receiving facility (or both) to maintain a copy of the
agreement on-site and make it available to state or EPA inspectors. EPA
also could require exemption claimants and transporters to create and
keep similar contracts. EPA, however, requests comment on whether
transporters would require claimants to provide information on the
exempted waste's origin and the regulatory limits on its disposal
options even without federal regulation.
EPA requests comment on whether any of these alternatives can
adequately ensure that mismanagement will not occur so that these
wastes managed under this option 1B approach would not need to be
classified as hazardous.
2. Qualifying Unit
A ``qualifying unit'' for today's contingent management proposal is
a landfill or monofill. For purposes of today's proposal, a landfill is
defined in Sec. 260.10 as being ``a disposal facility or part of a
facility where hazardous waste is placed in or on land and which is not
a pile, a land treatment facility, a surface impoundment, an
underground injection well, a salt dome formation, a salt bed
formation, an underground mine, a cave or a corrective action
management unit.'' The Agency is proposing a definition for monofill in
Sec. 260.10 as a landfill where waste of only one kind or type is
placed in or on land and which is not a pile, a land treatment
facility, a surface impoundment, an underground injection well, a salt
dome formation, a salt bed formation, an underground mine, a cave, or a
corrective action management unit. Also, for today's proposal, a land
treatment facility is defined in Sec. 260.10 as being ``a facility or
part of a facility at which hazardous waste is applied onto or
incorporated into the soil surface; such facilities are disposal
facilities if the waste will remain after closure.'' The Agency
requests comment on whether other units could be considered
``qualifying units'' for contingent management exempt waste and whether
additional modeling is needed to assess risks from management of
nonwastewaters from other units.
The Agency modeled risks from waste piles in both its multipathway
and groundwater analyses. It modeled only groundwater risks form
landfills. As explained elsewhere in this preamble, EPA believes that
the nongroundwater risks posed by piles generally are higher than the
nongroundwater risks posed by landfills. EPA, however, is not proposing
to allow wastes placed in piles to be exempt under the exit levels for
contingent management option 1. Piles, as defined in Part 260, are
temporary units. To ensure that exempted wastes removed form piles went
only to landfills or monofills, EPA would have to impose additional
tracking conditions. These could be difficult to craft and enforce
effectively. EPA currently thinks that excluding piles from eligibility
will provide much better assurance that exempted wastes will n
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
ot be
mismanaged.
EPA acknowledges that the exit levels for this option, which are
based in many cases on the evaluation of waste piles, may, for some
pathways, be more restrictive than levels for landfills. If EPA later
completes a multipathway analysis of landfill units, it will be able to
use the levels from that modeling in lieu of the modeling from piles to
derive exit levels for this option.
The Agency requests comment on the proposal to exclude wastes
placed in piles from being eligible for exemption under this option.
The Agency also requests comment on the alternatives of allowing wastes
to be exempt either permanently or temporarily (e.g., for one year)
after they are placed in piles.
3. Claimant's Duty To Ensure Compliance With All Requirements and
Conditions
Today's proposal requires that, in order to claim a contingent
management exemption, the person submitting the claim must manage the
waste for which the exemption is claimed in accordance with the
requirements and conditions established by this rule. To satisfy this
rule, the claimant must ensure that the waste is actually disposed of
in a qualifying unit. The burden of satisfying all conditions for the
exemption falls on the claimant as the person in the best position to
determine eligibility of a waste for an exemption and to ensure
informed waste management decisions. The claimant may enter into
contractual
[[Page 66404]]
arrangements with receiving facilities to allocate responsibility for
satisfaction of the conditions among themselves although such
arrangements will not relieve the claimant of liability if the
receiving facility manages the waste improperly. It should be noted,
however, that facilities receiving contingent management exemption
wastes could also become liable for violations of permitting, Subtitle
C treatment, storage and disposal standards should they dispose of the
nonwastewaters that do not qualify.
Under today's proposal, Sec. 261.37(g), the burden of proof to
establish conformance with the exemption criteria is on the claimant in
the event of an enforcement action. One alternative for simplifying the
claimant's burden of proving compliance with all conditions would be to
set out in the rule certain documentation that, while not necessarily
required of the claimant, presumptively would be sufficient evidence of
satisfaction of the management condition. Of course, EPA could rebut
this presumption regarding actual disposal through evidence that the
claimant's documentation is deficient or inaccurate. For example,
claimants might be able to develop rebuttable evidence of proper off-
site disposal by keeping correspondence with the receiving facility,
indicating that the waste went to a landfill or monofill, and by
keeping a returned manifest which indicates that the waste reached that
facility. The Agency is taking comment on whether establishing certain
evidentiary standards would provide useful guidance to claimants on how
to satisfy the management condition and provide helpful incentive for
claimants to maintain proper documentation of their exemption claims.
Comment is also requested on whether any additional conditions or
requirements, substantive or procedural, should be imposed on claimants
to ensure that the contingent management exemption waste is actually
managed in a qualifying unit.
E. Retesting and Recordkeeping Conditions for Contingent Management
Exemptions
Claimants continuing to generate or otherwise manage waste for
which they continue to claim a contingent management exemption would be
required, under Sec. 261.37(d)(2), to retest the waste with the same
frequency and under the same conditions as is being proposed for the
base exemptions, Sec. 261.36(d)(2). If a claimant finds that the
exempted waste no longer meets the constituent concentration levels on
Appendix XI of 40 CFR part 261 for the contingent management exemption,
or that the waste has not been placed in a landfill or monofill, the
claimant must comply with all applicable requirements for generators of
listed wastes (including disposal of waste at a Subtitle C facility)
and the disposal facility would have to comply with all of the
requirements for owner/operators of treatment, storage, and disposal
facilities under 40 CFR parts 262-270. The generator and disposal
facility's obligations would also include renotifying the Agency of
hazardous waste management activity using EPA form 8700-12.
Under Sec. 261.37(d)(6), claimants also would be required to
maintain on-site, for at least three years after Agency receipt of the
notification and certification, all documentation required under this
rule including, but not limited to, the sampling and analysis plan and
test data and the accompanying notification and certification. These
requirements are similar to those proposed for the ``base'' exemption
in Sec. 261.36.
The Agency requests comment on alternative record retention periods
for claimants such as 5 years, which corresponds to the applicable
statute of limitations period at 28 U.S.C. 2462. An extended record
retention period may assist claimants in substantiating their
conformance with the contingent management exemption criteria. The
documentation must be available for review by the Agency or an
authorized State at the time of site inspection. The three-year
claimant record retention period will be automatically extended during
the course of any unresolved enforcement action regarding the regulated
activity.
F. Compliance Monitoring and Enforcement for Contingent Management
Exemptions
Since contingent management exemptions are self-implementing, the
Agency needs to rely on its enforcement authorities to ensure that the
exemptions are being applied in an appropriate manner and that only
those wastes that are truly nonhazardous are relieved from Subtitle C
disposal requirements. Compliance monitoring and enforcement of the
contingent management program would be carried out under existing
authorities and conditions with which the regulated community should
already be familiar.
Claimants must comply with all of the previously described
conditions of the exemptions to qualify for the exemptions. All persons
who manage waste for which an exemption has been claimed must manage
the waste as required under Subtitle C during periods when any of those
conditions are not met. Claimants that fail to comply with the
applicable conditions of the contingent management exemption risk
enforcement action for violations of Subtitle C requirements, including
administrative, civil and criminal penalties.
1. Compliance Monitoring
The Agency is proposing that compliance monitoring of the
contingent management exemption occur through EPA and State oversight,
primarily through review of notifications and inspections.
The Agency has the authority, under section 3007 of RCRA, to
require submission of information and to conduct inspections of
facilities which EPA has reason to believe may be generating or
managing a hazardous waste. EPA and States may do confirmatory sampling
and analysis to determine whether a waste meets the exemption levels.
Under this authority, the Agency would be able to inspect a non-
Subtitle C facility receiving contingent management exemption waste.
Inspections of off-site laboratories may also be performed.
2. Enforcement
The contingent management exemption criteria proposed today would
create an exit from the Subtitle C system only so long as the
requirements and conditions established for the exemption are met.
Failure to comply with any of the conditions for the exemption would
mean that the wastes would not be exempt from Subtitle C, and the
claimant could be subject to immediate enforcement action for violation
of Subtitle C requirements.
The Agency has the authority under this regulation and RCRA Section
3007 to require submission of information on the management of exempted
wastes in a situation where the Agency suspects the claimant has not
satisfactorily determined whether a waste meets the appropriate
exemption levels. Alternatively, the Agency may require improved
analysis using an administrative or civil action under section 3013.
Failure to manage the contingent management exemption waste in
accordance with the conditions would void the exemption and the
conditionally exempt waste would be subject to full Subtitle C
regulation. The receiving facility, therefore, would become a Subtitle
C treatment, storage, and/or disposal facility requiring a permit.
[[Page 66405]]
In an enforcement action, compliance with the terms and conditions
of the exemption may be raised as an affirmative defense, but the
burden will be on the defendant to establish eligibility for the
exemption and compliance with the conditions necessary to maintain the
exemption. See 50 FR 642 (Jan. 4, 1985) for a discussion of EPA's
authority to place such burdens on defendants.
Claimants may not use the contingent management exemption as a
means of avoiding enforcement actions. For example, a generator who is
the subject of an Agency enforcement action cannot claim that the waste
in question is exempted from Subtitle C under the contingent management
exemption unless a valid exemption notification for that waste has been
previously submitted to the Agency and the required documentation to
support the claim exists at the facility and satisfies the requirements
of the regulations. The contingent management exemption cannot be used
in a retroactive fashion to avoid enforcement actions. Similarly, these
exemptions cannot be used as a legal defense prior to the effective
date of promulgation of this rule.
G. Exports of Wastes Eligible for Contingent Management Exemptions
Under option 1A of today's proposal, contingent management
exemption wastes would remain hazardous until actually disposed of in a
qualifying unit. The waste would thus remain subject to all applicable
requirements of 40 CFR parts 262 and 263, including export
requirements.
Under option 1B where the waste becomes exempt upon meeting the
contingent management exit levels, comment is requested on whether
these exempt wastes should still remain subject to the export
requirements of 40 CFR part 262. Comment is requested on whether these
export requirements are necessary to ensure that the contingent
management exemption waste will be properly managed in the receiving
country.
H. Land Disposal Restrictions
As discussed above in section VI, EPA is proposing two approaches
to integrating LDR requirements with the exit levels for the base
option. First, EPA is proposing that LDR treatment requirements will
never apply to wastes that meet exit levels for the base option at the
point of generation. Second, for wastes which remain subject to LDR
requirements, EPA is proposing to allow exit levels based solely on the
combined multipathway and groundwater analyses to serve as alternative
risk-based LDR standards meeting the ``minimize threat'' standard in
section 3004(m) of RCRA. EPA believes that both approaches are
appropriate for contingent management option 1.
To eliminate the duty to comply with the LDR rules for wastes that
meet the base option exit level at the point of generation, EPA is
taking the position that such wastes are defined as hazardous waste
pursuant to their listing descriptions for such a brief period of time
that they effectively never become subject to Subtitle C requirements,
and LDR requirements never apply. It is relatively easy to apply this
theory to option 1B presented above in section B.2. that allows
nonwastewaters to exit as soon as they have met the appropriate
concentration limits and to remain exempt so long as they are managed
in landfills or monofills. Such wastes need only meet the exit levels
to obtain their exemption. If they meet them at the point of
generation, they would appear just as entitled to LDR relief as wastes
meeting the exit levels for the base option.
Under option 1A, however, nonwastewaters will not exit until they
both meet the exit levels and are placed in a landfill or monofill.
Such wastes would not be eligible for exit at the point of generation
even if their constituent concentrations were low enough. Rather, they
would be subject to Subtitle C regulation for a significant portion of
their ``cradle-to-grave'' management cycle. It would be difficult to
argue that these wastes had never really been regulated as hazardous
wastes, and that LDR treatment requirements did not apply.
Consequently, EPA is not proposing to allow nonwastewaters to become
exempt from LDR requirements at the point of generation under this sub-
option. EPA requests comment on alternative legal theories that would
provide a better basis for arguing that nonwastewaters subject to this
sub-option could be exempt for the LDR rules if they meet exit levels
at the point of generation.
Both options 1A and 1B have identical exit levels based on removing
the predictions for land treatment units and using the next-highest
concentration as the exit level. EPA is proposing to allow the exit
levels that are based solely on the multipathway/groundwater risk
analyses to serve as minimize threat levels for both options 1A and 1B.
These levels represent concentrations posing minimal low threats for
nonwastewater placed in landfills, monofills and waste piles. They are
based on the same risk assessment used for the assessment for the base
option. They make the same ``reasonable worst case'' assumptions about
the units' physical setting and the same minimal assumptions about
control measures. Hence, EPA believes that these exit levels
sufficiently reduce threats to human health and the environment to meet
section 3004(m)'s ``minimize threat'' standard.
EPA acknowledges that option 1B, allowing wastes to exit Subtitle C
before they are placed in the right kind of land disposal unit,
presents an additional type of risk. Under option 1B, it may be more
difficult for EPA to ensure that exited wastes will not be placed in
land treatment units. (Under the alternative option, option 1A,
Subtitle C manifest and tracking requirements would apply.) As
explained above in section B., however, EPA will create conditions for
option 1B to help ensure that exempted wastes are not disposed of in
land treatment units. EPA believes that these conditions will
sufficiently reduce the risk of inappropriate disposal that the exit
levels will continue to minimize threats. EPA requests comment on this
aspect of the proposal.
XI. Relationship to Other RCRA Regulatory Programs
Today's rule proposes specific conditions and exit criteria that
would exempt listed hazardous wastes, including waste mixtures and
derived-from wastes, from Subtitle C regulation. Below is a discussion
of how this proposed rule would affect other relevant RCRA regulatory
programs.
A. Hazardous Waste Determination
Under current RCRA regulations, any person who generates a solid
waste must determine if that waste is a hazardous waste in accordance
with the procedures outlined in 40 CFR 262.11. According to 262.11,
generators must first determine if their waste is excluded from
regulation under 40 CFR 261.4. Generators must then determine if the
waste is listed in subpart D of part 261. If the waste was not listed,
or for purposes of compliance with 40 CFR part 268, generators must
then determine if the waste exhibits a characteristic defined in
subpart C of part 261.
Today's proposed rule is an exemption for listed wastes meeting the
exit criteria, and does not change the general requirements for
generators making hazardous waste determinations under Sec. 262.11 (see
discussion of characteristic waste below).
B. Characteristic Hazardous Waste
Today's proposed rule establishes exemption criteria for hazardous
[[Page 66406]]
constituents in eligible listed wastes, waste mixtures, or derived-from
wastes. If the waste satisfies the exemption criteria proposed today,
the waste would not be considered listed hazardous waste. However, the
generator must still determine whether the waste exhibits any
characteristics of a hazardous waste as specified in 40 CFR 261.21
through 261.24 and continue to meet hazardous waste requirements if the
waste does exhibit a characteristic.
C. Toxicity Characteristic Level for Lead
Toxicity characteristic constituents are among those evaluated for
exit values in this proposal. In developing the risk assessment for all
constituents, including the TC constituents, the Agency examined risks
via groundwater and other pathways to humans, and also environmental
receptors. In evaluating risks resulting from the groundwater pathway,
the Agency used its newly developed CMTP model, and the MINTEQ metals
speciation component. The CMTP model estimates groundwater transport
using finite source assumptions, and accounting for hydrolysis and
adsorption of chemicals to soils. The MINTEQ component estimates
dissolution and speciation of metals in groundwater. Using these
models, the Agency has developed and is proposing estimates of
transport through groundwater specific to each constituent. These
estimates are analogous to constituent-specific dilution and
attenuation factors (DAFs). These constituent-specific DAFs were
contemplated for several constituents proposed for regulation in the TC
rulemaking, but not finalized, because the modeling work was not
complete. TC levels were set using generic DAFs of 100.
In developing the constituent-specific DAFs, the Agency estimated
that lead moves through groundwater much more slowly than predicted by
the generic DAF of 100. While the modeling analyses supporting the TC
rule and today's proposed rule are somewhat different from one another,
the constituent-specific DAF for lead leaching from a landfill was
estimated as 5000 rather than the 100 used in the TC rule. Higher
leaching rates (giving lower DAF values) were estimated for some other
disposal options evaluated in the updated modeling, such as land
application and management in surface impoundments. This analysis
raised the question of how the TC and today's proposed rules would
relate to one another, and whether these results warranted
consideration of a change to the TC level of 5 mg/l for lead (updated
groundwater modeling of other TC constituents did not show the large
disparity between the TC and exit level proposed in today's notice for
lead).
In considering these issues, the Agency reviewed several factors.
First, the human health risk evaluation for lead has changed since the
TC rule was promulgated, resulting in the MCL (on which the TC is
based) for lead being reduced from 50 ppb to 15 ppb. Using the new DAF
from the landfill scenario plus the new drinking water standard could
raise the TC level to 75 mg/l from the current 5 mg/l. However, when
lead movement from a land treatment scenario was modeled, a DAF of
approximately 770 resulted, and a TC level based on this and the new
drinking water standard could be approximately 10 mg/l. Another
relevant reference point for lead in the environment includes the
current OSWER soil direct ingestion level for lead of 400 ppm (as a
total concentration, not leachate).
The Agency considered several approaches to potentially proposing
revisions to the TC level, including basing a new TC level on
groundwater modeling only, basing it on the soil ingestion estimate, or
basing it on the driving pathway value and exit level, which considers
adverse ecologic effects.
After carefully considering the issue, the Agency concluded that
the issue of lead toxicity and movement through the environment is very
complex and changes to existing rules could have significant impacts on
management of lead-bearing waste and public health. The agency believes
regulation of lead-bearing wastes warrants careful consideration and
full evaluation of and review of the policy issues associated with
considering all potential exposure pathways and risk to human health
and the environment. Questions include whether the TC level would be a
leachate or totals value, and whether it would be based on groundwater
only or other exposure routes and whether it would be human health
based or based on ecological risk considerations. Such a comprehensive
evaluation is not feasible in the context of the rulemaking proposed
today, and so the agency has determined to defer any action on the lead
TC level. The Agency recognizes that this is an issue of considerable
interest to the public, and will consider review of management of lead-
bearing waste at the soonest practical time. In the interim, the lead
TC regulation and the exemption regulation proposed today (when
finalized) would co-exist as independent regulations.
As described in Section IV.E.3, the Agency has developed
groundwater modeling based on both 10,000 year and 1000 year time
frames. Today's proposal is based on the 10,000 year modeling time
horizon, and the Agency is soliciting public comment on the alternative
of using 1000 years. One aspect of the 1000 year modeling results is
that the groundwater-based exit levels for more constituents would be
above current TC levels for those constituents. These constituents
include, in addition to lead, chromium, cadmium, selenium, and mercury.
The Agency seeks public comment on this aspect of using the 1000 year
time horizon modeling for risk assessment in the HWIR rule.
D. Hazardous Waste Listings
The Agency evaluated the likelihood that untreated hazardous wastes
would be able to meet the exemption criteria in an ``pure'' state
(e.g., untreated and unmixed) and determined that it is unlikely that
the constituent concentrations in many untreated hazardous wastes would
be below today's proposed exemption levels or the applicable BDAT
standards, particularly for nonwastewaters. Specifically, the Agency's
hazardous waste characterization data indicate that the concentrations
of toxicants of concern in untreated listed wastes are typically
present at levels many times higher than health-based levels or BDAT
values. Therefore, it is unlikely that the Agency's current criteria
for listing wastes as hazardous will change as a result of the
introduction of today's exit criteria into the RCRA regulations.
However, EPA has been utilizing a more comprehensive risk analysis in
the listing program, looking at multiple pathways for the movement of
constituents through the environment, similar to the approach taken in
today's proposal. Today's proposed approach may also provide the Agency
with a means of assessing whether or not future listings might
inadvertently bring into the RCRA system the types of low-concentration
wastestreams that would subsequently be eligible for exit under today's
proposal.
E. Delisting
The evaluation criteria used for delisting may vary from today's
exemption criteria for various reasons. First, delisting is an
interactive process that considerable oversight by EPA or authorized
State agencies. In delisting, the overseeing agency evaluates the
processes generating a specific wastestream in order to determine the
constituents likely to be present, as well as the potential variability
in the waste.
[[Page 66407]]
EPA (or the State) closely reviews sampling procedures, analytical test
results, and the accompanying QA/QC data. This oversight increases the
confidence in the quality and representativeness of the waste analysis.
Second, delisting is specific to one wastestream, which decreases
uncertainties that arise in the more generic approach proposed today.
For example, a delisting petition will typically provide the annual
generation volume of the waste. Using a specific waste volume as an
input to various models has allowed EPA to calculate exit levels that
may be somewhat higher than the levels proposed in today's rule. EPA
believes that it is reasonable to use higher exit levels for the
smaller waste volumes in delisting petitions (see 56 FR 32993 (Reynolds
Metals) for further description of volume impact).
The delisting process also allows more certainty in the plausible
management scenarios that are modeled to generate exit levels. For
example, the characteristics of the waste may dictate the likely
disposal method (e.g., disposal in a landfill of de-watered process
sludge). In some cases, special management standards may also be a
factor (e.g., radioactive wastes are regulated under the Atomic Energy
Act, therefore if such a hazardous waste were delisted, disposal
options would be severely limited (see 60 FR 6054 (Hanford delisting)).
EPA also considers the applicability of available groundwater
monitoring data from land-based waste management units that have
received the petitioned waste. Such data are typically required under
permitting regulations for hazardous waste facilities (see 40 CFR parts
264 and 265). If any contamination of groundwater appears to be due to
constituents from the petitioned waste, EPA will consider this as a
basis to deny the petition. The more generic waste identification rule
proposed today does not incorporate this additional evaluation
criterion.
EPA may also require special testing regimes to ensure waste
consistently meets delisting criteria (e.g., see (cite Reynolds Metals,
CSI, Hanford)). Because the overseeing agency reviews the petition in
some detail, the testing frequency may be closely tied to the potential
variability of the waste. A facility that accepts and treats waste from
diverse sources would typically have frequent testing requirements (see
40 CFR part 261 appendix IX (Envirite)). In other cases, the testing
requirements for some initial period will be extensive, but the
subsequent testing may be reduced.
Delisting petitions for wastes that contain toxic constituents
which exceed the exemption levels proposed today will continue to be
accepted and reviewed by the Agency after promulgation of today's rule.
With the exception of a potentially reduced petition review burden, the
Agency does not anticipate any changes in the current review of
delisting petitions as a result of the implementation of today's
proposed exemption. EPA does request comment on which risk models
should be used to evaluate future delisting petitions.
F. Requirements for Treatment, Storage, and Disposal Facilities and
Interim Status Facilities
In order to implement the changes proposed today, owners or
operators of RCRA permitted or interim status facilities may have to
amend their waste analysis plans if required under 40 CFR 264.13 and
265.13. Such changes will most likely include the addition of the
appropriate analysis methods and changes that may be required in the
frequency of testing.
Permitted facilities, in unauthorized States, who elect to employ
the exemption procedures and who subsequently prepare changes to their
waste analysis plans should, following promulgation of this rule,
submit a Class I permit modification to EPA. (EPA is aware that
although most States have either become authorized for, or have
adopted, the 3-class permit modification regulations, some states may
still be operating under the older ``major/minor'' permit modification
procedures. Under those procedures, changes to the waste analysis plan
would be considered a major modification).
G. Closure
Under today's proposed rule, a hazardous waste management unit that
receives wastes that are exempt under today's exit criteria would
continue to be a regulated Subtitle C unit subject to the requirements
of 40 CFR parts 264 or 265, including closure requirements, until the
owner/operator completed clean closure of the unit or unless all of the
waste in the unit were delisted. A unit receiving only waste that is
exempt under today's proposal would no longer be receiving hazardous
waste upon the effective date of the exemption; such a unit would
normally become subject to Subtitle C closure requirements, which are
triggered by the final receipt of hazardous waste by the unit. The
facility owner or operator is required to complete closure activities
within 180 days after receiving the final volume of hazardous waste. 40
CFR 264.113(b) and 265.113(b). However, RCRA closure requirements do
allow certain waste management units to delay closure, while continuing
to receive non-hazardous waste (such as waste exempt under today's
proposed rule), provided certain conditions are met.
The RCRA delay-of-closure regulations, promulgated on August 14,
1989 (54 FR 33376), allow owners or operators to delay the closure of
landfills, land treatment units, and surface impoundments in cases
where the unit stops receiving hazardous waste but the owner or
operator wishes to continue using the unit to manage only non-hazardous
waste. These requirements are outlined in 40 CFR 264.113(d) and (e) and
265.113(d) and (e). Owners or operators wishing to delay closure must
request a permit modification at least 120 days prior to final receipt
of hazardous wastes, or, if the facility is in interim status, submit
an amended part B application at least 180 days prior to the final
receipt of hazardous wastes. The request for a permit modification or
the amended part B application must include demonstrations that the
unit has the existing design capacity to manage non-hazardous wastes,
and that the non-hazardous wastes are not incompatible with any wastes
in the unit. In addition, certain facility information including the
waste analysis plan, groundwater monitoring plans, closure and post-
closure plans, cost estimates, and financial assurance demonstrations
must be updated as necessary to account for receipt of only non-
hazardous waste. Sections 264.113(d) and 265.113(d). In addition,
surface impoundments that do not meet the minimum technological
requirements (MTRs) for liners and leachate collection of RCRA 3004(o)
must comply with additional requirements in order to delay closure,
including the removal of hazardous wastes to the extent practicable
from the unit. Sections 264.113(e) and 265.113(e).
The delay of closure regulations apply only to landfills, land
treatment units, and surface impoundments. In the case of other RCRA
units such as tanks and waste piles, the Agency did not feel that the
delay-of-closure regulations were necessary for these types of units in
order to receive only non-hazardous wastes (54 FR 33383). The closure
requirements in subpart G for these units include removal or
decontamination of waste residues, containers, liners, bases and
contaminated soils, equipment, and other containment system components;
these closure requirements are not incompatible with the reuse of these
[[Page 66408]]
units for receipt of only non-hazardous waste. Once the unit has been
emptied of all hazardous wastes and decontaminated, it could receive
non-hazardous waste. However, the Agency also recognizes that some
flexibility may be warranted in converting the use of a unit such as a
tank from hazardous to non-hazardous waste management. EPA solicits
comment on whether an owner or operator might demonstrate removal of
hazardous waste residues from the tank by demonstrating that all waste
in the tank is below exemption levels, without removing the waste from
the tank. In cases where the owner or operator could not demonstrate
that all wastes in the tank were below exemption levels, he or she
would have to remove the hazardous waste in order to achieve closure of
the unit. In some cases, the facility owner or operator may be able to
demonstrate that a tank no longer managed hazardous waste (because the
waste met today's proposed exemption criteria), but did not achieve
clean closure because of soil and perhaps groundwater contamination. In
this case, EPA solicits comment on whether the facility owner or
operator should be required to remove the contamination to clean
closure levels, or close the area as a landfill while using the tank to
manage nonhazardous wastes, as long as this activity did not interfere
with cleanup activities or control of the contaminated areas.
The Agency also believes that the availability of a delay-of-
closure option provides much of the flexibility needed to allow for the
uninterrupted management of exempt waste, while providing assurance
that the protections afforded by the closure regulations for Subtitle C
units (e.g., evaluation of soil and groundwater at closure) are not
lost. This approach makes sense in light of the fact that today's
proposed exemption is self-implementing, which the Agency feels is
appropriate for waste identification purposes, but not necessarily so
for determining whether a Subtitle C unit may become a Subtitle D unit
without first undergoing closure.
H. HWIR-Media Rule/Subtitle C Corrective Action
The Agency is currently planning on proposing a rule (``HWIR
Media'') addressing waste management issues relating to environmental
media (e.g., soil, groundwater, and sediments). The goal of this rule
is to allow more effective cleanups at contaminated sites. As currently
drafted, the media proposal will supplement the regulatory system under
RCRA for the management of RCRA hazardous contaminated media,
applicable to sites that are undergoing cleanup overseen by EPA or
authorized States. Such sites include cleanups at RCRA corrective
action sites, State cleanups, and Superfund remedial actions. The media
rule will propose a ``bright-line'' distinction between hazardous
contaminated media (i.e., media containing hazardous waste that is
therefore regulated as hazardous) subject to modified Subtitle C
standards, and less contaminated media subject to more site-specific,
flexible standards implemented by State agencies. This new system will
supplement the current approach(es) to identifying RCRA applicability
to the management of contaminated media. The rule will also propose
streamlined permit requirements for cleanups. It will not specify
cleanup standards.
Today's proposal applies to listed hazardous wastes (e.g. process
wastes, sludges, discarded commercial chemical products, etc.),
including mixtures of one or more listed wastes with other solid
wastes, and residues derived from the treatment, storage, or disposal
of one or more listed hazardous wastes. Media that contain listed
hazardous wastes, mixtures, or derived-from wastes with constituent
concentrations below today's proposed exemption levels will be eligible
for exemption under the procedures proposed today. EPA or an authorized
State may continue to assess contaminated media with concentrations
higher or lower than the exit levels proposed today on a case-by-case
basis by making site-specific determinations as to whether a media
``contains'' a RCRA hazardous waste.
I. Land Disposal Restriction Program
Today's rule contains several important areas of overlap with the
RCRA Land Disposal Restrictions (LDR) program that are discussed
elsewhere in today's rule. First, as described in more detail elsewhere
in this notice, EPA is proposing that exit levels produced under the
multipathway analysis for constituents with adequate analytical methods
should ``cap'' existing technology-based LDR standards, where the exit
levels are less stringent than the current LDR values. If a waste
contains only constituent with ``capped'' LDR values, it should be able
to satisfy LDR requirements and exit Subtitle C for all other purposes
as soon as the waste achieved those levels.
Under today's proposal the uncapped LDR requirements for listed
hazardous wastes continue to apply to a waste even after the waste
becomes exempt from Subtitle C under the exemption criteria.
Furthermore, for listed wastes containing certain constituents with
analytical problems, compliance with the LDRs (either numerical levels,
specified treatment, or both) is part of the criteria for exempting
that waste under today's proposal. Specifically, for constituents where
there are no adequate analytical methods for determining whether or not
the exit levels have been met, a combination of meeting applicable LDR
standards and a showing of non-detect estimated quantitation
concentration is required to satisfy the exit criteria for these
constituents. This is explained in more detail in Section IV.I of
today's rule.
If, however, a listed waste is below the exit concentrations
proposed today at the point where the waste is ``first'' generated,
that is, the point where the waste first meets the listing description
and is potentially subject to Subtitle C, then a hazardous waste is
never really ``generated'' and the LDR requirements do not attach to
the waste. The EPA does not expect many listed wastes to be at or below
the exit criteria at the point of first generation, where waste
characterization data indicate that this is where wastes contain higher
concentrations of hazardous constituents. Nonetheless, where a
particular process generates a waste that is perhaps inappropriately
captured by a listing, or where pollution prevention efforts by the
generator result in a waste of lower constituent concentrations, if the
waste meets the exemption criteria at the moment it is first generated,
the LDR requirements would not apply. In contrast, once a listed waste
is generated and managed the LDR requirements attach, and remain even
after the waste exits Subtitle C under today's exemption (unless, as
stated, where the exit levels are considered equivalent to a minimize
threat standard). This issue is discussed in more detail in Section VI
in today's proposal.
It should be noted that the Agency is currently reviewing the
definition of ``point-of-generation'' with respect to the application
of the LDRs. Since November 1986 (51 FR 40620), EPA has required LDR
determinations to be made at the point which hazardous wastes are
generated. In the Phase III LDR rule (March 2, 1995, 60 FR 11702), EPA
solicited comment on the issue of where the point of generation should
be defined. EPA presented three options to narrowly redefine the point
at which the land disposal prohibitions attach: (1) Similar
wastestreams generated by similar processes, (2) wastestreams from a
single process, and (3) ``battery limits.'' With Option 1 the point of
generation would be defined at the point after which like wastestreams
are generated from like processes and combined as a matter of routine
[[Page 66409]]
practice. Option 2 would consider the point of generation to occur when
wastestreams from a single process are combined (e.g., residual
wastestreams collected in a common unit such as a sump). In many cases,
these wastestreams are similar in composition because they all come
from a common unit process. The Option 3 ``battery limits,'' is similar
to Option 2; however instead of limiting aggregation to that normally
occurring within a single unit process, the facility would view an
entire battery of processes (associated with making a single product or
related group of products) as a single manufacturing step. In the Phase
III LDR proposal, EPA identified listed hazardous wastes as situations
where existing point of generation determinations may remain
appropriate. This is because EPA has carefully reviewed the various
waste streams and has defined the point of generation as part of the
listing description. Therefore, it may be inappropriate to modify that
description with a more generic ``point of prohibition'' rule. This is
important because today's rule applies only to listed hazardous wastes.
Lastly, under today's proposal, mixtures containing listed
hazardous waste and residues from the treatment, storage, or disposal
of listed hazardous waste that contain some constituents with
concentrations below exit levels and some constituents with
concentrations above exit levels would continue to be managed as listed
hazardous wastes. Today's notice does not allow for partial exemptions,
because the Agency does not believe that a self-implemented exemption
process is well suited to partial exemptions. It is not always clear
what the origin of a hazardous constituent is, particularly for
constituents that are formed as by-products of treatment or waste
interactions. Further, the proposed exemption criteria are not waste-
specific, and thus are not suited to waste-specific or partial
exemptions. Thus, the determination that a waste that carries two
listing numbers should no longer bear one of the listing numbers is not
always a straight-forward decision. The Agency has designed the
exemption process proposed today to remove as much subjective decision
making from the process as possible.
However, while the Agency is not today proposing an alternative
that would allow these wastes to use only the hazardous waste codes for
those listed wastes that are the origin of the constituents above the
exit levels, the Agency believes that there could be merit in the
concept for a future proposed rulemaking should the implementation
concerns stated above be overcome. Therefore, the Agency requests
information on actual cases with waste characterization data where a
waste bears more than one waste code which results in conflicting
treatment standards under the land disposal restrictions rules. If the
Agency finds that there is a serious compliance issue for multiple
listing wastes, the Agency may reconsider this decision, as well as
other potential solutions to any documented problems.
J. RCRA Air Emission Standards
Today's proposed rule, when promulgated, may have an impact on the
effectiveness of two other RCRA rules developed by the Agency under
HSWA authority. Section 3004(n) of HSWA directed the Agency to
promulgate regulations controlling air emissions from hazardous waste
TSDFs ``as necessary to protect human health and the environment.''
Subsequent Agency analysis demonstrated that air emissions from TSDFs
do pose substantial risk in the absence of controls, and that controls
were therefore required under the HSWA mandate. The Agency is
fulfilling this mandate in phases; EPA completed the first phase when
it promulgated RCRA air standards that control organic emissions vented
from certain hazardous waste treatment processes, as well as from leaks
in certain ancillary equipment used for hazardous waste management
processes (55 FR 25454, June 21, 1990; 40 CFR part 264/265, subparts AA
and BB). More recently, EPA completed the second phase when it
promulgated RCRA air standards for tanks, surface impoundments,
containers, and miscellaneous units operated at TSDFs (59 FR 62896,
December 6, 1994; 40 CFR part 264/265, subpart CC). Together, these
rules would reduce the risk from air emissions from the vast majority
of these facilities to well within the risk range of other RCRA
standards. After more thorough analysis, the Agency may issue a third
phase of these regulations to address any residual risk. The emission
reductions achieved by these rules would also significantly reduce the
formation of ozone, which has adverse effects on human health and the
environment.
Hazardous waste that satisfies the exemption criteria proposed
today (including any constituent-specific exit concentrations for
volatile organic chemicals, or VOCs), would be exempt from Subtitle C
regulations, including regulations promulgated to date under RCRA
3004(n). In other words, once a waste is no longer regulated as
hazardous, any unit in which the waste is managed (assuming no other
hazardous wastes are being/have been managed in the unit) is not
subject to Subtitle C regulations, including 40 CFR parts 264 and 265,
subparts AA, BB, and CC. However, the Agency believes that it is
important to ensure that the risks associated with air emissions both
from hazardous wastes, and from wastes that would be eligible for exit
under today's proposal, are adequately addressed. In the final rule
establishing air emission controls for tanks, surface impoundments,
containers, and miscellaneous units (the ``Subpart CC'' rule), the
Agency established a threshold level of 100 ppmw (parts per million by
weight) for total volatile organics in a waste, a concentration which
if equaled or exceeded that would trigger the emission control
requirements for these units. Because there are examples of exit levels
proposed today for specific volatile organic constituents that exceed
this 100 ppmw threshold, the Agency considered whether today's exit
levels adequately addressed the air emission concerns of 3004(n) in
allowing waste to exit Subtitle C. There are important differences in
the underlying risk modeling between the two rules. However, the Agency
believes that the constituent-specific risk evaluation done for this
rulemaking results in proposed exit levels that for VOCs will not be
less protective than the standards established to date under RCRA
3004(n). Despite these differences, the Agency requests comment on
whether or not a total VOC concentration of 100 ppmw (parts per million
weight), which is the concentration that triggers air emission controls
under the Subpart CC rule, would be appropriate for use in the exit
rule proposed today, and if so, how this level would be used.
K. Hazardous Debris
Hazardous debris that contains one or more listed hazardous wastes
is eligible for exiting Subtitle C under today's proposed rule. The EPA
notes, however, that certain exemptions already exist relating to
hazardous debris. On August 18, 1992, the EPA published a final rule on
the Land Disposal Restrictions for Newly Listed Wastes and Hazardous
Debris (57 FR 37194). In that rule, EPA required that hazardous debris
be treated prior to land disposal, using specified treatment
technologies from the treatment categories of extraction, destruction,
or immobilization. (See 40 CFR 268.45, Table 1.) EPA also added a
conditional exemption at Sec. 261.3(f) for non-characteristic hazardous
debris (i.e.,
[[Page 66410]]
debris that is hazardous solely because it contains one or more listed
hazardous wastes). Section 261.3(f)(1) exempts debris from Subtitle C
regulation provided that the debris is treated using one of the
extraction or destruction technologies specified in Table 1 of
Sec. 268.45. Alternatively, non-characteristic hazardous debris can be
exempt under Sec. 261.3(f)(2) if it is determined to be no longer
hazardous by the Regional Administrator, after considering the extent
of contamination of the debris, i.e., after a ``contained-in''
determination is made. However, non-characteristic hazardous debris
contaminated with a listed waste, that is treated by a specified
immobilization technology is not eligible for the conditional exemption
in Sec. 261.3(f)(1), and therefore remains subject to Subtitle C
regulation after treatment.
In today's rule, EPA is not proposing to change the current
exemption under Sec. 261.3(f); therefore, non-characteristic hazardous
debris that requires LDR treatment by extraction or destruction
technologies will be exempt from Subtitle C regulation, once treated.
As was explained more thoroughly in the final rule for hazardous
debris, the Agency gave careful consideration to many factors before
exempting certain treated debris, including whether each debris/
contaminant type would be effectively treated by each BDAT technology
to levels that would no longer pose a hazard to human health or the
environment (57 FR 37240). However, hazardous debris that contains
listed waste, and for which immobilization is the specified LDR
treatment, may exit using today's proposed exit criteria. See also the
discussion of a contingent management option above for a description of
an alternative for encapsulated debris contaminated by radioactive
``mixed'' hazardous wastes. Finally, EPA is not proposing to change the
contained-in exemption under Sec. 261.3(f)(2) for hazardous debris;
that is, the Regional Administrator may continue to determine on a
case-by-case basis that hazardous debris no longer contains listed
hazardous waste, and should therefore be exempt from RCRA Subtitle C.
L. Hazardous Wastes Used in a Manner Constituting Disposal
Section 266.20 (b) of the regulations states that hazardous wastes
and hazardous waste-derived products that are legitimately recycled by
being applied to or placed on the land are largely exempt from subtitle
C regulation provided they satisfy three conditions: the recyclable
materials must have undergone a chemical reaction so as not to be
separable by physical means, the product must be produced for the
general public's use, and land disposal restriction treatment standards
for every hazardous waste in the hazardous waste-derived product must
be satisfied. (The shorthand for this type of recycling is ``use in a
manner constituting disposal''. See Sec. 261.2(c)(1).) EPA developed
Sec. 266.20(b) largely as a stop-gap to provide some modicum of safety
while EPA studied further whether various disposal-like uses of
hazardous waste-derived products in fact were safe or warranted
control. 50 FR 614, 628-29, 647 (Jan,. 4, 1985). Since then, the Agency
has studied particular use constituting disposal practices and
determined, or proposed, that such uses either be prohibited or allowed
based on more individualized determinations of risk. See 53 FR 31138,
31164 (August 17, 1988) (allowing use of fertilizers derived from waste
K 061 because of similarity to other zinc-containing fertilizers); 59
FR 43496, 43500 (August 24, 1994) (prohibiting anti-skid uses of K 061-
derived sags); 59 FR 67256 (Dec. 29, 1994) (proposing to allow certain
uses of K 061 if risk-based criteria are satisfied); 60 FR 11702, 11732
(March 2, 1995) (proposing to prohibit hazardous waste use as fill
material).
EPA solicits comment today on the relationship of today's proposed
exit levels and the general use constituting disposal provisions in
Sec. 266.20(b) stating that such uses can occur if land disposal
restriction treatment standards are satisfied. These land disposal
restriction standards are not fully protective in all cases: the
standards are technology-based rather than risk-based, and, for metal
hazardous constituents, only control leachable amounts of the metal.
Yet in many situations, total metal levels, rather than leachable
levels, will be the critical factor because of the possibilities of
direct contact through inhalation of abraded or wind-dispersed
contaminants, or surface runoff. These exposure pathways are critical
for uses constituting disposal because the hazardous waste are not
placed in a confined unit. 60 FR at 11733, 59 FR at 43499.
The exit levels proposed today, on the other hand, are risk-based
(although some are capped by quantitation limits), are expressed as
both total and leachable concentrations, and consider exposure pathways
in some cases similar to those relevant in analyzing uses constituting
disposal. The Agency solicits comment as to the appropriateness of
applying these levels to hazardous wastes used in a manner constituting
disposal (or at least to those uses where the hazardous waste-derived
products are not comparable to non-hazardous waste based products that
would be used in their place). One approach would be to replace the
requirement to meet LDR treatment standards with a requirement to meet
the exit levels proposed today. This approach should assure that exit
levels for unconfined hazardous wastes (i.e. hazardous wastes used in a
manner constituting disposal) are never less stringent than exit levels
for hazardous wastes placed in confined units. EPA believes that the
risk assessment it conducted for the exit levels considered scenarios
sufficiently similar to use constituting disposal scenarios to ensure
that the exit levels would be reasonably protective for uses (and more
protective than LDR levels, in many cases, because of the analysis of
impacts from total concentrations of constituents). EPA, however,
requests comment on the reasonableness of this approach.
Another option would be to require persons wishing to use hazardous
wastes in a manner constituting disposal to meet the lower of the LDR
treatment standards and the exit levels. Because EPA is today proposing
setting exit levels for both total and leachable concentrations, and
because LDR standards are expressed as either total or leachable
levels, however, EPA is not certain how to meaningfully compare
relative stringency.
With respect to the current requirement in Sec. 266.20(b) that
persons wishing to use waste in a manner constituting disposal meet the
treatment standards from the LDR program, EPA notes that compliance
with LDR tracking and recordkeeping rules is not required. EPA proposes
today to require compliance only with the exit levels where they
substitute for LDR treatment levels, although it requests comment on
the option of requiring persons using wastes in this manner also to
file the exit notification package proposed today. EPA does not intend
that such persons be required to comply with conditions that continue
to apply after exit, such as periodic retesting.
Finally, EPA proposes to eliminate the requirement that wastes to
be used in a manner constituting disposal undergo a chemical reaction
so as to be inseparable by physical means. EPA does not believe it is
necessary to retain this requirement since wastes will be evaluated for
total constituent concentrations. (EPA, however, will retain this
requirement for wastes with treatment standards expressed as a
specified technology, rather than concentration levels.)
[[Page 66411]]
Were EPA to proceed on this course, the Agency would adjust the
timing of any regulatory action so that it does not supersede the
separate rulemaking the Agency is now conducting on certain uses of
residues derived from K 061 recovery facilities. 59 FR 67256. Thus, the
Agency does not intend to take final action affecting these uses until
the analysis begun in that rulemaking is completed on the schedule
established in that rulemaking.
With respect to the other pending proposal, involving a prohibition
on placement of hazardous waste as fill material, the Agency requests
comment on whether it should substitute permission to use waste that
has met the proposed exit levels for the proposed prohibition. The risk
assessment underlying today's proposal addressed the major pathways
that would arise from use as fill, but may not have used input values
that fully reflect the fill scenario for some important parameters. For
example, unit depths may be greater for fill sites than for land
application units. At the same time, use of hazardous waste as fill is
a proven cause of human health and environmental harm, contributing
significantly to a number of Superfund sites. See Docket F-95-PH3P-
FFFFF (record for the pending proposal). In light of this, the Agency
questions whether to substitute today's proposed exit approach for the
proposed prohibition.
XII. CERCLA Impacts
All listed hazardous wastes are listed as hazardous substances
under section 101(14)(C) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) of 1980, as amended. Under
section 103(a) of CERCLA, notification must be made to the Federal
government of a release of any CERCLA hazardous substance in an amount
equal to or greater than the reportable quantity (RQ) assigned to that
substance within a 24 hour period. (See 40 CFR part 302 for a list of
CERCLA hazardous substances and their Rqs.) If a specific waste from a
particular facility meets the exemption criterion in this rule, the
waste is not a listed hazardous waste and therefore not a hazardous
substance by virtue of its hazardous waste listing. Thus, notification
under CERCLA of a release of the exempted waste may not be necessary.
In this situation, CERCLA notification of releases of the waste would
only be required if the waste or any of the constituents of the waste
are CERCLA hazardous substances by virtue of Section 101(14) (A), (B),
(D), (E), or (F) of CERCLA or 40 CFR 302.4(b), and are released in
amounts greater than or equal to their Rqs. The Agency requests comment
on this approach.
Exit levels also may be applicable to the CERCLA program where it
has been documented that RCRA listed hazardous waste has been disposed
of at the site. Section 121(d) of CERCLA, as amended by the Superfund
Amendments and Reauthorization Act (SARA) of 1986, requires that CERCLA
actions comply with, or justify a waiver of, applicable or relevant and
appropriate requirements (ARARs) under federal and state environmental
laws. The options proposed in this rule would determine the legal
applicability of federal RCRA managements requirements to remediation
wastes generated at Superfund sites. They may also be considered in
determining whether RCRA is relevant and appropriate in cases where it
is not applicable.
At sites undergoing CERCLA remedial activities where no listed
hazardous wastes have been identified, the Agency will generally use a
site-specific risk assessment for all chemicals for which there are no
ARARs. In some cases, these health-based cleanup levels will be higher
than the exemption levels, based on a reasonably conservative exposure
scenario which does not include leachate ingestion. In other cases, the
CERCLA health-based clean-up levels will be lower than exemption levels
when additive effects are considered or when specialized analytical
techniques are required in order to lower quantitation limits. The
CERCLA health-based clean-up levels may also be different than
exemption levels based on the consideration of site-specific factors.
XIII. State Authority
A. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program within the State. (See 40 CFR
part 271 for the standards and requirements for authorization.)
Following authorization, EPA retains enforcement authority under
sections 3008, 7003, and 3013 of RCRA, although authorized States have
primary enforcement responsibility.
Prior to the Hazardous and Solid Waste Amendments (HSWA) of 1984, a
State with final authorization administered its hazardous waste program
entirely in lieu of EPA administering the Federal program in that
State. The Federal requirements no longer applied in the authorized
State and EPA could not issue permits for any facility in the State
that the State was authorized to permit. When new, more stringent
Federal requirements were promulgated or enacted, the State was obliged
to enact equivalent authority within specified time frames. New Federal
requirements did not take effect in an authorized State until the State
adopted the requirements as State law.
In contrast, under section 3006(g) of RCRA, 42 U.S.C. 6926(g), new
requirements and prohibitions imposed by the HSWA take effect in
authorized States at the same time that they take effect in non-
authorized States. EPA is directed to implement HSWA requirements and
prohibitions in an authorized State, including the issuance of permits,
until the State is granted authorization to do so. While States must
still adopt HSWA-related provisions as State law to retain final
authorization, HSWA applies in authorized States in the interim.
B. Effect of State Authorizations
Today's proposal, if finalized, will promulgate regulations that
are not effective under HSWA in authorized States. Thus, the exemption
will be applicable only in those States that do not have final
authorization.
Authorized States are only required to modify their programs when
EPA promulgates Federal regulations that are more stringent or broader
in scope than the authorized State regulations. For those changes that
are less stringent or reduce the scope of the Federal program, States
are not required to modify their programs. This is a result of section
3009 of RCRA, which allows States to impose more stringent regulations
than the Federal program. Today's proposal for exit levels is
considered to be less stringent than, or a reduction in the scope of,
the existing Federal regulations because it would exempt certain wastes
now subject to RCRA Subtitle C. Therefore, authorized States are not
required to modify their programs to adopt regulations consistent with
and equivalent to today's proposal.
Even though States are not required to adopt most options in
today's proposal, EPA strongly encourages States to do so as quickly as
possible. As already explained in this preamble, today's proposal will
reduce over-regulation of dilute wastes and will provide an alternative
to delisting. States are therefore urged to consider the adoption of
today's proposal (when promulgated); EPA will expedite review of
authorized State program revision applications.
C. Streamlining Issues
EPA is considering a new approach to state authorization for rules
revising the
[[Page 66412]]
RCRA program. Under this new approach EPA would vary the requirements
for state submissions and for EPA's review to reflect differences in
the scope and complexity of various program revisions. This
differential approach to authorization also would recognize the fact
that many states now have more than a decade of experience in
implementing large portions of the RCRA program and commensurate
experience in obtaining authorization for program revisions. EPA
believes that adjusting authorization requirements will strike an
appropriate balance between recognizing state experience and ensuring
environmental protection.
EPA recently proposed a greatly streamlined set of procedures for
the least complex changes to the LDR program in the ``LDR Phase IV''
rulemaking. EPA, however, proposed to retain the current authorization
process for other portions of the rule that presented more complex and
novel regulations.
EPA is also developing a different approach to streamlining
authorization for the ``HWIR media'' proposal scheduled for publication
later in 1995. Although EPA expects some aspects of these state
authorization procedures to be unique to the HWIR- media rulemaking,
EPA will determine whether some of the concepts can be used to craft
streamlined procedures for additional RCRA rules.
EPA was not able to develop a streamlined authorization process for
this rule in time to include it in this proposal. EPA, however, intends
to describe such a process in more detail in the preamble to the
proposed HWIR-media rule. EPA anticipates that most elements of the
basic waste exit scheme proposed in today's notice would be eligible
for a greatly streamlined approach to authorization. For example, the
new LDR standards based on ``minimize threat'' findings would be good
candidates for streamlined authorization because states that are
already authorized for significant portions of the LDR program are
familiar with the type of rule changes needed, have adopted all or most
of the underlying LDR program, and have experience in implementing and
enforcing the rules. The exit levels, along with the self-implementing
approach to exit determinations, are also likely to be eligible for a
greatly streamlined approach. The scheme is very similar to the
existing program for determining whether a waste exhibits any of the
hazardous waste characteristics, particularly the 1980 EP Toxicity
Characteristic and the expanded 1990 Toxicity Characteristic. Under
both the characteristic rules and today's proposal, generators are
responsible for determining whether or not a waste meets a numerical
definition of ``hazard''. States must then enforce by reviewing records
of determinations and/or conducting their own analysis of wastes
determined not to be hazardous. Consequently, States which have been
authorized for the base program already have experience in adopting and
enforcing rules which resemble the exit scheme proposed today. EPA,
however, notes that adopting the exit scheme proposed in today's notice
will place additional demands on state inspection and enforcement
resources. EPA will give careful consideration to balancing the need to
ensure that a state has sufficient resources to implement an exit
program with the goal of streamlining the authorization process.
Today's scheme does differ from the original characteristics and
the 1990 Toxicity Characteristic by including some requirements which
must be enforced as conditions of exit. These requirements, however,
are requirements for testing, notification and recordkeeping that are
relatively easy to meet and relatively easy to detect if violated.
Accordingly, EPA does not at this time anticipate that these conditions
would require it to retain the current authorization process.
EPA currently finds it unlikely that it will propose a greatly
streamlined authorization process for any of the contingent management
options presented for discussion in today's proposal. These options
will raise novel legal, implementation and enforcement issues. A more
conventional approach to the review of state authorities and
capabilities may be warranted. If EPA proposes any of these options in
the future, it will consider the possibility of adapting the approach
to authorization that it is currently developing for the HWIR-media
proposal.
XIV. Regulatory Requirements
A. Analytical Requirements
1. Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether this regulatory action is
``significant.'' A determination of significance will subject this
action to full OMB review and compliance under Executive Order 12866
requirements. The order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(a) Have an annual effect on the economy of $100 million or more,
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;
(b) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(c) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(d) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the terms of the Executive Order.
The proposed rule is expected to have an annual effect on the
economy greater than $100 million. Furthermore, although voluntary, the
adoption of this action may burden state or tribal governments with
increased regulatory review requirements. Today's action may also raise
novel legal or policy issues as they relate to the President's
priorities for environmental protection within a regulatory system
facing resource limitations. The Agency, therefore, has determined that
today's proposed rule is a ``significant regulatory action.'' As a
result, this rulemaking action, and supporting analyses, are subject to
full OMB review under the requirements of the Executive Order. The
Agency has prepared an Assessment of The Potential Costs and Benefits
of The Hazardous Waste Identification Rule for Industrial Process
Wastes, as Proposed, in support of today's action. A summary of this
Assessment and findings is presented in section D below.
2. Regulatory Flexibility Analysis
Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et
seq., when an agency publishes a notice of rulemaking, for a rule that
will have a significant effect on a substantial number of small
entities, the agency must prepare and make available for public comment
a regulatory flexibility analysis. This analysis shall consider the
effect of the rule on small entities (i.e.: Small business, small
organizations, and small governmental jurisdictions).
Under the Agency's revised Guidelines for Implementing the
Regulatory Flexibility Act, dated May 4, 1992, the Agency committed to
considering regulatory alternatives in rulemakings when there were any
economic impacts estimated on any small entities. Previous guidance
required alternatives to be examined only when significant economic
effects were estimated for a substantial number of small entities. The
Agency has
[[Page 66413]]
prepared a Regulatory Flexibility Analysis in support of today's
action. A summary of this analysis and findings is presented in section
E below.
3. Environmental Justice
Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations,'' directs
each Federal Agency to ``make achieving environmental justice part of
its mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health and environmental
effects of its programs, policies, and activities on minority
populations and low-income populations * * *''
The Executive Order requires that where environmental justice
concerns or the potential for concerns are identified, appropriate
analysis of the issue(s) be evaluated. To the extent practicable, the
ecological, human health (taking into account subsistence patterns and
sensitive populations) and socio-economic impacts of the proposed
decision-document in minority and low-income communities should also be
evaluated.
The Agency has examined Environmental Justice concerns relevant to
today's action. A summary of this analysis and findings is presented in
section F below.
4. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1766.01) and a copy may be obtained from Sandy Farmer, OPPE
Regulatory Information Division; U.S. Environmental Protection Agency
(2137); 401 M St., SW.; Washington, DC 20460 or by calling (202) 260-
2740.
This information collection is required to provide documentation of
solid waste exemptions from Subtitle C requirements, and will allow for
certification and verification as the program evolves. Exemptions under
today's action require no formal preapproval. As such, information
collection, maintenance and reporting issues are especially important
due to the self-implementing nature of this action. Successful
implementation of today's proposal will depend upon the documentation,
certification, and verification provided by the information collection.
The general authority for this proposal is 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),
as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA),
42 U.S.C. 6912(a), 6921, 6922, 6924, and 6926. The specific authority
for the collection of information is 40 CFR 261.36, Exemption for
Listed Hazardous Wastes Containing Low Concentrations of Hazardous
Constituents.
The Agency has prepared a full Information Collection request (ICR)
in support of today's action. A summary of the methodology and findings
from this document is presented in section G below.
B. Background
In 1976, Congress passed the Resource Conservation and Recovery Act
(RCRA) to address problems associated with annual nationwide generation
of large quantities of municipal and industrial solid waste. This Act
was significantly amended in 1984 by the Hazardous and Solid Waste
Amendments (HSWA). Under RCRA, the Agency regulates non-hazardous solid
waste through the Subtitle D program, and hazardous solid waste under
the Subtitle C program. Subtitle C regulations differ from Subtitle D
in two important areas. First, Subtitle C regulations are developed and
promulgated by EPA, while Subtitle D requirements have been largely
delegated to the states. Second, non-hazardous wastes regulated under
Subtitle D are generally subject to standards that are considerably
less stringent and less costly than those under Subtitle C. All wastes
addressed under this action are currently managed under Subtitle C
regulations.
RCRA is divided into four programs: Underground storage, medical
waste, nonhazardous solid waste, and hazardous solid waste. Under RCRA
3001(a), Congress has required EPA to identify those wastes that should
be classified as hazardous. In accordance with this provision, the
Agency has designated wastes as hazardous in two ways:
``characteristic,'' or ``listed.'' Hazardous waste is considered
characteristic if it has any of the properties or characteristics that
would present a potential hazard if managed improperly. The Agency has
identified four characteristics which, if exhibited, lead to hazardous
classification. These are: Ignitability, corrosivity, reactivity, and
toxicity. Under the toxicity characteristic, specific health-based
concentration standards have been developed for approximately forty
(40) constituents. Wastes exhibiting any of these characteristics are
subject to Subtitle C regulation. Hazardous wastes are identified as
listed based on an extensive listing procedure. This procedure may
identify a waste as hazardous under three broad categories: if it
exhibits one of the characteristics identified above but has not been
classified as characteristically hazardous, if it is determined to be
acutely toxic or hazardous, or if the waste meets the statutory
definition of a hazardous waste.
The Agency, however, was concerned that generators and managers of
hazardous waste might avoid regulatory requirements in two major ways:
(1) By mixing listed hazardous waste with non-hazardous solid waste,
and, (2) by minimal processing and treatment of hazardous waste. These
activities could result in a waste or residual material that was no
longer legally defined as haza
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
rdous under Subtitle C. In many cases,
the Agency believed these materials could continue to pose unacceptable
hazards to human health and the environment. The Agency promulgated
mixture and derived-from rules in May of 1980, in response to these
potential loopholes.
C. Need for Regulation
The mixture and derived-from rules created what was perceived as
being federal over-regulation, where listed hazardous waste continued
to remain under Subtitle C jurisdiction regardless of constituent
concentration or presence in the waste, either before or after
treatment. This problem was exacerbated with the passage of HSWA in
1984. HSWA set Land Disposal Restrictions (LDR) requiring best
demonstrated available technology (BDAT) treatment for all listed
hazardous wastes prior to disposal. In cases where a specific listed
wastestream contained relatively innocuous constituents, or very low
concentrations, BDAT treatment requirements were felt to be overly
protective, and unnecessarily expensive.
By requiring Subtitle C management for some low risk wastes, the
current RCRA regulatory system may inhibit the efficient allocation of
limited societal resources. From a social perspective, too many
resources devoted to managing low risk wastes may reduce resource
availability for managing higher risk wastes. Resource availability for
general productivity investments and innovative technologies are also
reduced. The Agency's delisting program has not provided an efficient
solution to this problem. The delisting process has proven to be overly
time
[[Page 66414]]
and resource intensive for both industry and EPA.
The Agency believes that a simpler exemption process is necessary
to reduce the over-regulation of low risk hazardous waste while, at the
same time, reducing the time and resource burden on industry and
government. This revised exemption process would also reduce the burden
on the delisting program which will continue under current regulations.
To meet these goals, the Agency is proposing the current action that
would establish a single set of exit levels for constituents found in
listed hazardous waste. This action would cover wastes as-generated,
derived-from wastes, including BDAT treatment residuals, mixtures with
solid wastes, and environmental media that contain hazardous wastes.
D. Assessment of Potential Costs and Benefits
1. Introduction and Summary
The U.S. Environmental Protection Agency (EPA) has prepared an
Assessment of The Potential Costs and Benefits (Assessment) to
accompany today's proposed rulemaking action. This action will
establish concentration-based exemption criteria for certain hazardous
wastes, creating a mechanism to exclude from Subtitle C regulation
those listed industrial process wastes that the Agency believes are
clearly not of Federal regulatory concern. Today's proposed rule
addresses low hazard wastes, mixtures, treatment residuals, and media
that contain hazardous wastes.
The Agency anticipates that the proposed rule will provide cost
savings to selected generators and managers of low hazard wastes. Under
the preferred option, annual nationwide treatment and disposal cost
savings for exempted wastes may be as high as $75 million. Annual cost
savings for a single facility may be as high as $5.03 million.
Potential cost reductions beyond treatment and disposal savings may be
associated with waste minimization incentives, avoided treatment costs
for wastes remaining within Subtitle C, and administrative cost
savings.
Exemption of eligible wastes from Subtitle C management
requirements is projected to have negligible effects on human health
and the environment. The proposed exemption levels are based on
detailed analysis of numerous possible routes of exposure. These
exemption levels are designed to be protective of both human health and
ecological systems when exempted wastes are managed under Subtitle D,
including state regulated waste disposal systems.
The Agency has also evaluated other impacts of the proposed rule.
These include: Environmental justice, unfunded mandates, regulatory
takings, and waste minimization incentives. Environmental justice
concerns associated with today's proposed action may be in the form of
economic benefits and/or human health effects. Today's proposal
implements no enforceable requirements on states. Federal unfunded
mandates, therefore, are not relevant to today's proposed rulemaking.
Regulatory takings under today's proposed rulemaking will not approach
land or productive value impacts discussed in past House and Senate
Bills presented on this issue. This rulemaking provides opportunities
for generators to implement waste minimization procedures to gain
additional savings.
The complete document, Assessment of The Potential Costs and
Benefits of The Hazardous Waste Identification Rule for Industrial
Process Wastes, as Proposed (Assessment), is available in the docket
established for this proposed rule. This document details the data,
methodology, findings, regulatory issues, and analytical limitations
associated this Assessment. The rapid evolution of this action resulted
in continuous technical modifications throughout the development of
this proposal. An Addendum to the Assessment document that details
final quantity and cost savings estimates is included in the docket
materials. Findings presented in this preamble present final estimates.
A summary of the Assessment methodology and findings is presented
below. The analysis conducted for this Notice of Proposed Rulemaking is
to be considered preliminary. The Agency welcomes review and comment of
this document and urges the submission of data in support of any
comment or response.
2. Regulatory Options
The Agency's Assessment, conducted in support of today's action,
addresses the costs, benefits, and other potential impacts of the
preferred option. The Assessment also examines various other regulatory
options based on exit levels that are both more and less stringent.
Findings presented in this preamble discuss the preferred option and
one primary alternative. A full discussion of findings associated with
various alternative regulatory options is presented in the Assessment
and Addendum.
a. Preferred (Proposed) Option
Under the preferred option, exit criteria are established for
approximately 400 constituents, allowing hazardous wastes (including
waste mixed with or derived-from listed wastes) to exit Subtitle C if
the concentration of all constituents is less than or equal to the
exemption criteria. The exit levels apply to all listed wastes,
regardless of origin.
Exit levels for most constituents are based on risks posed to human
health and the environment. The Agency's goal is to ensure, through
Federal or State management requirements, that humans are not exposed
to carcinogens in concentrations that will increase the statistical
risk of cancer by more that one-in-one-million (1 x 10-6). For
non-carcinogens, the Agency's goal is to ensure that humans are not
exposed to concentrations where the hazard quotient exceeds one (1).
The Agency feels that, above this level, selected populations may
experience carcinogenic effects at a 10-6 risk level and non-
carcinogenic effects at a hazard quotient greater than one (1).
To determine the concentrations at which exempt wastes would not
pose human health risks in excess of these target levels, EPA conducted
a ``Multipathway'' Analysis that included ecological exposure pathways.
In addition, EPA considered the effects of direct exposure to
contaminants in groundwater. The analyses consider several types of
waste management units. For non-wastewaters these unit types include
landfills, land application units, waste piles, and ash monofills. For
wastewaters management units included tanks and surface impoundments.
The concentrations from all other pathways were compared to the
groundwater concentrations in determining the exit level. The more
stringent of the multipathway or groundwater numbers was chosen as the
exit level. Exit levels for some constituents are based on surrogates,
or Exemption Quantitation Criteria (EQCs). MCLs were not used in the
development of exit levels analyzed for this option. The Agency
believes that levels established under this process will ensure
protection of human health and the environment. These exit levels are
presented in the regulatory language for this proposed rulemaking.
b. Other Options
In developing the preferred option, the Agency compared the
proposed rule to several alternative regulatory options. These are
discussed in the full
[[Page 66415]]
document, Assessment of The Potential Costs and Benefits of The
Hazardous Waste Identification Rule for Industrial Process Wastes, as
Proposed. Additional options are discussed in the supporting Addendum
to the Assessment document. These options consider alternative waste
management requirements, target risk levels, dilution and attenuation
factors (DAFs), and exposure pathways. This Preamble discusses one
primary alternative to the preferred option. This alternative is the
same as the preferred option but drops land application units from
consideration as a management source. Exempt nonwastewater wastestreams
could not be land applied. There would be no change for wastewaters.
3. Implementation Requirements
Implementation requirements include the steps that generators (or
waste managers) must take to achieve exemption of their wastes,
regardless of the exit levels selected. These requirements include
waste sampling and analysis, and related recordkeeping and reporting.
Under the proposed rule, the facility must first perform a
comprehensive analysis of the waste, testing for all constituents
identified in appendix X to 40 CFR part 261. Reduced initial testing
may be possible only if a facility is able to document that such
constituents are not present in the waste. The generator must then
prepare a notification/certification package and submit it to the EPA
Regional Administrator or authorized state agency. The generator must
repeat a comprehensive analysis periodically according to the schedule
established in the proposed rule, along with more frequent tailored
scans that focus on the constituents of concern. Related documentation
must be maintained on-site and be available for review.
The Agency has estimated annual sampling, analysis, recordkeeping,
and reporting costs (collectively referred to as ``implementation
costs'') that may be required under this rule. These estimates range
from approximately $21,000 for a less complex, solvent wastestream with
testing every 12 months, to $169,000 for a complex high quantity F039
wastestream with testing every three months.
4. Analysis and Findings
Under the proposed rule, listed wastes from industrial processes
may be eligible for exemption from Subtitle C hazardous waste
requirements if they contain low concentrations of contaminants. This
exemption may allow generators and waste managers to avoid some or all
costs associated with Subtitle C requirements. The most significant
cost savings relate to waste treatment and disposal; this rule will
allow generators to avoid the costs of treatment required for
compliance with the Land Disposal Restrictions as well as the costs of
disposing wastes in highly protective Subtitle C facilities.
In addition to assessing these cost savings, the Assessment
addresses a number of other potential effects of the regulations. It
analyzes the relative effects of the regulatory options on human health
and the environment and considers issues related to ensuring
environmental justice, eliminating federal mandates, encouraging waste
minimization, and providing flexibility for small businesses.
a. Eligible Waste
The universe of annual listed waste generation, both wastewaters
and nonwastewaters, potentially affected by today's proposed rulemaking
is estimated to total 303.6 million tons. The universe of potentially
affected wastes includes approximately 25,300 wastestreams from 10,700
facilities. Wastewaters account for the vast majority of total waste
quantity (99 percent).
To determine whether these wastes are likely to be eligible for
exemption, EPA developed the Process Waste Model. This model uses data
on the characteristics of individual listed waste-streams first
collected in 1986 for EPA's National Survey of Hazardous Waste
Generators, which has since been updated, refined, and in some cases,
corrected. The model first compares the reported concentrations of
constituents in each wastestream to the proposed rule exit levels to
determine whether the waste is likely to be eligible for exemption
without further treatment. If the waste is not eligible as-reported,
the model then considers whether it may be eligible after treatment. In
this comparison, the concentration standards established under EPA's
Land Disposal Restrictions (which are based on the use of the best
demonstrated and available technology) are used as a proxy for the
lowest concentrations achievable by treatment. If the waste is not
eligible for exemption as-reported or after treatment, EPA assesses
whether waste minimization or pollution prevention methods could be
used to cost-effectively achieve the exit levels. This model does not
address contaminated media.
The analysis indicates that:
Under the preferred option, total nonwastewater quantity
exempted, including BDAT treatment residuals and sludge from
wastewater, is estimated at 0.40 million tons. Total wastewater
(liquid) quantity exempted is approximately 64 million tons.
Under the primary alternative option (no land
application), approximately 65 million tons of wastewaters, and 0.60
million tons of nonwastewaters, including BDAT treatment residuals and
sludge from wastewaters, may be eligible for exemption.
b. Cost Savings
The proposed rule will allow waste generators and managers to avoid
costs associated with Subtitle C requirements. Specifically, this
exemption will allow them to avoid treatment costs and/or costs of
disposing wastes in Subtitle C facilities. Wastes which meet exit
levels at the point of generation may accrue treatment cost savings
because the wastes will not require any treatment that would have been
needed to comply with the Subtitle C Land Disposal Restrictions prior
to disposal. All exempt wastes are likely to accrue disposal cost
savings because the costs of disposing wastes in non-Subtitle C
facilities are generally lower than the cost of more protective
Subtitle C facilities.
The analysis indicates that:
Under the preferred option, the high-end estimate of
annual treatment and disposal cost savings is approximately $75
million.
--A large portion of these savings are attributable to avoided
treatment costs.
Under the primary alternative, the high-end estimate of
cost savings is $99 million.
The above estimates for quantities exempted and cost savings assume
zero implementation costs. The incorporation of implementation costs
into the analytical model will have a significant impact on facilities
and wastestreams affected, while having only a marginal impact on total
quantities exempted.
c. Affected Wastestreams and Facilities
Under the preferred option (unconditional exemption), as high as 41
percent (10,300) of the potentially affected wastestreams may be
eligible for exemption. These eligible wastestreams are generated by 56
percent (6000) of the facilities producing listed waste. Total
wastestreams and facilities potentially eligible for exemption under
the primary alternative option (no land application) are estimated at
12,200 (48 percent), and 7,000 (65 percent), respectively.
[[Page 66416]]
The majority of the wastestreams eligible for exemption under the
preferred option are very small in quantity. The median annual
generation size of an eligible wastewater wastestream is 20 tons. The
median for eligible nonwastewaters is 2.0 tons. For small wastestreams,
the costs accrued due to the exemption are likely to be counterbalanced
by the costs associated with gaining the exemption.
While a relatively large number of wastestreams and facilities meet
the eligibility criteria for exemption, many may not gain exemption
because the costs of exemption may outweigh the estimated cost savings
from exemption. For example, if implementation costs average $35,000
annually per wastestream, the estimate of facilities generating an
exempted wastestream may be overstated by as much as 90 percent.
However, small generators may choose to aggregate their wastes to avoid
this problem.
d. Relative Impacts on Human Health and the Environment
Today's proposed rule will allow low concentration hazardous wastes
to exit RCRA Subtitle C regulation and be disposed of in Subtitle D
nonhazardous waste units. The Agency believes that today's proposed
rule will have little effect on human health for the following reasons:
The acceptable daily exposure levels used to set the exit
levels are based on maximum risk levels for carcinogens of 10-6
and on acceptable daily doses for non-carcinogens at which no adverse
effects are likely to occur.
The waste management units modeled in the Multipathway
Analysis provide high potential release rates for the various groups of
constituents being considered in the analysis based on their physical
and chemical properties.
The pathways included in the Multipathway Analysis are
generally considered to be the most critical.
The Multipathway Analysis includes populations that are
likely to be exposed more than the average adult due to proximity to a
contaminant source, behavior patterns, activities, and body size.
High-end values were used for selected parameters in the
Multipathway Analysis to calculate acceptable waste concentrations.
Exit levels represent acceptable constituent concentration
levels for Subtitle D waste management based on all of the potential
combinations of management units, and receptors in the Multipathway
Analysis.
Exit levels for several constituents are below the
acceptable waste concentrations for human health due to the inclusion
of ecological receptors.
Ecological risks were also evaluated for selected key constituents.
The inclusion of such risk in solid waste regulation at a national
level is an important step, and is preferable to establishing exit
criteria based only on human health risks.
5. Other Regulatory Issues
a. Environmental Justice
Economic benefits may occur to selected communities as affected
local facilities reinvest cost savings derived from reduced treatment
and/or disposal costs. Human health effects are expected to be
negligible due to the stringency of the exit levels. Included in these
exit levels are pathways of particular concern for selected low income
populations such as subsistence fishing and farming.
b. Other Issues
Today's proposal is expected to have no impact in the area of
Unfunded Federal Mandates or Regulatory Takings. Waste minimization
procedures are likely to be stimulated under this proposal.
6. Implications and Conclusions
The analysis indicates that approximately 11 percent of the
quantity of all nonwastewaters containing listed codes, and 21 percent
of all such wastewaters may be eligible for exemption under the
proposed rule. This exempt quantity is dominated by a small number of
very large wastestreams, and includes a large number of very small
wastestreams. For some small wastestreams, exemption may not be cost
effective unless generators aggregate their wastes or otherwise work
cooperatively to minimize the costs of gaining the exemptions.
Today's proposal could also provide incentives for industry to
implement process changes and increased recycling in an effort to gain
additional savings. Preliminary estimates indicate that savings from
these activities, when combined with treatment and disposal savings
from the preferred option, are likely to result in total annual cost
savings greater than $100 million. However, limitations of our analysis
suggest that the cost savings estimates from such activities are highly
uncertain. Additional savings related to administrative requirements
and reduced treatment for hazardous wastes may also accrue. These
potential additional cost savings are discussed in greater detail in
the Assessment document.
The Agency believes that today's proposal will result in a net
benefit to society. Wastes gaining exemption under the preferred option
will not pose unacceptable incremental risks to human health and the
environment because the exit levels are based on extensive analysis of
possible human and ecological risks associated with exempt wastes.
EPA's analysis of the impact of today's proposal on industry groups
indicates that a limited number of industries are likely to benefit
from exemption. Under the preferred option (unconditional exemption),
three industries account for 51 percent of eligible nonwastewater and
wastewater sludge quantity and 53 percent of total treatment and
disposal cost savings. These industries are: Chemicals and allied
products (SIC 28); fabricated metals (SIC 34); and primary metals (SIC
33).
The Agency also compared benefits gained from exemption to key
industry data such as national pollution abatement expenditures and
considered facility level impacts of the proposal. To evaluate the
relative magnitude of cost savings that would accrue under the proposed
rule, EPA compared cost savings estimates to total pollution abatement
expenditures and the total value of industry shipments. Total treatment
and disposal cost savings under the preferred option account for
approximately 3.5 percent of annual operating costs for hazardous waste
pollution abatement activities, and less than 0.002 percent of the
total value of industry shipments. The facility-level impacts of the
proposal vary greatly.
E. Regulatory Flexibility Analysis.
The Regulatory Flexibility Act requires analysis of the impact of
regulations on small entities. Because today's proposal is
deregulatory, it is not expected to have adverse impacts on small
businesses. In general, generators of large quantity wastestreams
posing low hazards will benefit substantially from the regulations. The
impacts on small quantity generators is less certain and depends on the
degree to which they aggregate their wastes and work cooperatively to
cost-effectively gain exemption.
F. Environmental Justice
It is the Agency's policy that environmental justice be considered
as an integral part in the development of all policies, guidance and
regulations. Further, Executive Order 12898, ``Federal Actions to
Address
[[Page 66417]]
Environmental Justice in Minority Populations and Low-Income
Populations'', directs each Federal Agency to ``make achieving
environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health and environmental effects of its programs, policies, and
activities on minority populations and low-income populations * * * ''
The Executive Order requires that where environmental justice
concerns or the potential for concerns are identified, appropriate
analysis of the issue(s) be evaluated. To the extent practicable, the
ecological, human health (taking into account subsistence patterns and
sensitive populations) and socio-economic impacts of the proposed
decision-document in minority and low-income communities should also be
evaluated. Examples include how a policy on future land use would
impact minority or low-income communities versus non-minority, affluent
communities, or how subsistence farming or fishing patterns relate to
risk-assessment policies.
For the purposes of today's proposed rulemaking, the Agency has
taken an approach for proposal consistent with Executive Order 12898.
As currently drafted, the multipathway analysis which was used to
develop the exit levels takes into account subsistence farmers and
subsistence fishers; however, subsistence fishers were evaluated using
a recreational fisher database (one does not exist for subsistence
fishers). Sensitive populations are accounted for in the RfDs, RfCs,
and slope factors and ecological receptors were also evaluated.
G. Paperwork Reduction Act
As stated earlier, the level of implementation costs (i.e.
sampling, analysis, recordkeeping, and reporting) will have a
significant impact on the number of wastestreams and facilities
affected by this proposal. Assuming annual implementation costs of
$35,000 per wastestream, as many as 269 facilities, generating up to
285 different wastestreams may seek exemptions, and therefore be
affected by the recordkeeping and reporting requirements. The actual
number of facilities and wastestreams affected will depend upon the
level of implementation costs. The higher the implementation cost to
the facility, the fewer the number of facilities expected to
participate in the HWIR program.
The estimated hour burden ranges from 382 hours to 573 hours per
wastestream in the first year, and from 31 hours to 146 hours per
wastestream in years two and three. The variation in burden estimates
results from different assumptions in (1) the complexity of the waste
(and therefore of the test methods required), and (2) the frequency of
reporting. The estimated total hour burden over the first three years
ranges from 206,900 to 293,465 hours, averaging 68,967 to 97,821 hours
per year.
The estimated total start-up cost of recordkeeping and reporting in
the first year ranges from $55,000 to $235,000 per wastestream. The
annual cost in the second and third years is estimated to be $9,000 to
$209,000 per wastestream (of which $8,000 to $203,000 is the cost of
shipping samples to a laboratory and paying to have them tested). In
years four and five the high-end cost drops to $53,000. The estimated
annual recordkeeping and reporting cost per wastestream, annualized at
seven percent over five years, is $21,000 to $170,000. The total
recordkeeping and reporting cost burden over the first three years is
$28,000,000 to $32,000,000.
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 collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
Comments are requested on the Agency's need for this information,
the accuracy of the provided burden estimates, and any suggested
methods for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, OPPE Regulatory Information Division; U.S. Environmental
Protection Agency (2137); 401 M St., SW.; Washington, DC 20460; and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., NW., Washington, DC 20503, marked
``Attention: Desk Officer for EPA.'' Include the ICR number in any
correspondence. Since OMB is required to make a decision concerning the
ICR between 30 and 60 days after December 21, 1995, a comment to OMB is
best assured of having its full effect if OMB receives it by January
22, 1996. The final rule will respond to any OMB or public comments on
the information collection requirements contained in this proposal.
List of Subjects in 40 CFR 261 and 268
Identification and listing of hazardous waste. Land disposal
restrictions.
Dated: November 13, 1995.
Carol Browner,
Administrator.
XV. References
U.S. Environmental Protection Agency, Environmental Monitoring
Systems Laboratory; ``Performance Testing of Method 1312--QA Support
for RCRA Testing.'' EPA/600/4-89/022, June 1989.
Research Triangle Institute; ``Interlaboratory Comparison of Methods
1310, 1311, and 1312 for Lead in Soil''. U.S. EPA Contract 68-01-
7075, November 1988.
U.S. Environmental Protection Agency, Office of Solid Waste and
Emergency Response; OSWER Directive No. 9285.7; ``Human Health
Evaluation Manual, Part B: Development of Risk-based Preliminary
Remediation Goals;'' from Henry Longest II, Director, Office of
Emergency and Remedial Response; and Bruce Diamond, Director, Office
of Waste Programs Enforcement; to Regional Waste Management Division
Directors; December 13, 1991.
U.S. Environmental Protection Agency, Office of Solid Waste and
Emergency Response; OSWER Directive No. 9850.4; ``Interim Final
Guidance for Soil Ingestion Rates;'' from J. Winston Porter, OSWER
Assistant Administrator; to Regional Administrators (I-X); January
27, 1989.
U.S. Environmental Protection Agency, Office of Research and
Development, Office of Health and Environmental Assessment;
``Exposure Factors Handbook;'' EPA/600/8-89/043, March 1990.
U.S. Environmental Protection Agency, Office of Solid Waste: EPA's
Composite Model for Leachate Migration with Transformation Products
(EPACMTP), Background Document, 1995a.
U.S. Environmental Protection Agency, Office of Solid Waste: EPA's
Composite Model for Leachate Migration with Transformation Products
(EPACMTP), User's Guide, 1995b.
U.S. Environmental Protection Agency, Office of Solid Waste: Finite
Source Methodology for Non-Degrading and Degrading Chemicals with
Transformation Products, 1995c.
U.S. Environmental Protection Agency, Office of Solid Waste:
Background
[[Page 66418]]
Document for EPACMTP: Fate and Transport Modeling of Metals, 1995d.
U.S. Environmental Protection Agency, Office of Research
Development. Finite Source Methodology for Wastes Containing Metals,
1992.
U.S. Environmental Protection Agency, Office of Research Development
MINTEQA2/PRODEFA2, A Geochemical Assessment Model for Environmental
Systems: Version 3.0 User's Manual. EPA/600/3-91/021, March 1991.
U.S. Environmental Protection Agency, Office of Research
Development. Environmental Fate Constants for Chemicals Under
Consideration for EPA's Hazardous Waste Identification Projects,
compiled by Heinz Kollig, 1993.
Appendix A
Table A-1.--Human Exposure Pathways
----------------------------------------------------------------------------------------------------------------
Exposure medium Route of exposure Type of fate and transport Pathway a
----------------------------------------------------------------------------------------------------------------
Groundwater................. Ingestion................... Groundwater................ 1
WMU
groundwater
humans
Ingestion of
contaminated
groundwater as a
drinking water source.
Air......................... Inhalation.................. Direct air................. 2a (on site or off
site)
WMU air humans
Inhalation of volatiles
Air......................... Inhalation.................. Direct air................. 2b (on site or off
site)
WMU air humans
Inhalation of suspended
particulates
Soil........................ Ingestion................... Direct soil................ 3 (on site)
WMU humans
Ingestion of
contaminated soil
Soil........................ Ingestion................... Overland................... 3 (off site)
WMU overland
humans
Ingestion of
contaminated soil
Soil........................ Ingestion................... Air deposition............. 4
WMU air deposition to
soil humans
Ingestion of
contaminated soil
Soil........................ Dermal...................... Direct soil................ 5 (on site)
WMU humans
Dermal contact with
contaminated soil
Soil........................ Dermal...................... Overland................... 5 (off site)
WMU overland
humans
Dermal contact with
contaminated soil
Soil........................ Dermal...................... Air deposition............. 6
WMU air deposition to
surface soil
humans
Dermal contact with
contaminated soil
Plant (veg/root)............ Ingestion................... Air deposition............. 8
WMU air deposition to
soil/gard crops garen crops humans
Consumption of
contaminated crops
grown in home gardens
Plant (veg)................. Ingestion................... Air diffusion.............. 8a
WMU air garden crops humans
Consumption of
contaminated crops
grown in home gardens
Plant (veg/root)............ Ingestion................... Direct soil................ 9 (on site)
WMU garden
crops humans
Consumption of
contaminated crops
grown in home gardens
Plant (veg/root)............ Ingestion................... Overland................... 9 (off site)
WMU overland
garden crops
humans
Consumption of
contaminated crops
grown in home gardens
Animal (beef/milk).......... Ingestion................... Air deposition............. 10
WMU air deposition to
soil/feed crops cattle humans
Consumption of animal
products with elevated
levels of toxicant
caused by eating
contaminated feed
crops and soil
Animal (beef/milk).......... Ingestion................... Air diffusion.............. 10a
WMU air feed crops cattle humans
Consumption of animal
products with elevated
levels of toxicant
caused by eating
contaminated feed
crops
Animal (beef/milk).......... Ingestion................... Direct soil................ 11 (on site)
WMU feed
crops cattle
humans
Consumption of animal
products with elevated
levels of toxicant
caused by eating
contaminated feed
crops and soil
Animal (bedf/milk).......... Ingestion................... Overland................... 11 (off site)
WMU overland
feed crops/
soil cattle
humans
Consumption of animal
products with elevated
levels of toxicant
caused by eating
contaminated feed
crops and soil
Groundwater................. Dermal (bathing)............ Groundwater................ 14
WMU
groundwater
humans
Ingestion of
contaminated surface
water as a drinking
water source
Surface water............... Ingestion................... Air diffusion.............. 17
WMU
groundwater
humans
Dermal bathing contact
with contaminated
groundwater
[[Page 66419]]
Surface water............... Ingestion................... Overland................... 19
WMU overland
flow surface
water humans
Ingestion of
contaminated surface
water as a drinking
water source
Surface water............... Ingestion................... Air deposition............. 20
WMU air deposition to
soil
overland flow surface water
humans
Ingestion of
contaminated surface
water as a drinking
water source
Fish........................ Ingestion................... Air diffusion.............. 21
WMU air surface water
fish humans
Consumption f fish
contaminated by
toxicants in surface
water
Fish........................ Ingestion................... Overland................... 23
WMU overland
surface
water fish
humans
Consumption f fish
contaminated by
toxicants in surface
water
Fish........................ Ingestion................... Air deposition............. 24
WMU air deposition to
surface soil
overland flow surface water
fish humans
Consumption f fish
contaminated by
toxicants in surface
water
Animal (beef/milk).......... Ingestion................... Air diffusion.............. 33
WMU air suface water cattle humans
Consumption of animal
products with elevated
levels of toxicant
caused by drinking
contaminated surface
water
Animal (beef/milk).......... Ingestion................... Overland................... 35
WMU overland
flwo surface
water cattle
humans
Consumption of animal
products with elevated
levels of toxicant
caused by drinking
contaminated surface
water
Animal (beef/milk).......... Ingestion................... Air deposition............. 36
WMU air deposition to
soil
overland flow surface water
cattle humans
Consumption of animal
products with elevated
levels of toxicant
caused by drinking
contaminated surface
water
Surface water............... Dermal (bathing)............ Air diffusion.............. 37
WMU air surface water
humans
Dermal bathing contact
with contaminated
surface water
Surface water............... Dermal (bathing)............ Air deposition............. 38
WMU air
deposition to soil overland flow
surface
water humans
Dermal bathing contact
with contaminated
surface water
Surface water............... Dermal (bathing)............ Overland................... 42
WMU overland
flow surface
water humans
Dermal bathing contact
with contaminated
surface water
----------------------------------------------------------------------------------------------------------------
Overland = Soil erosion; Overland flow = Both runoff and sold erosion; or, for surface impoundments, a spill
directly to surface water. Veg = Aboveground fruits and vegetables. Root = Belowground (or root) vegetables.
a Some pathway numbers are missing, reflecting pathways that have been eliminated from the analysis or combined
with other pathways.
Table A-2.--Ecological Exposure Pathways
--------------------------------------------------------------------------------------------------------------------------------------------------------
Exposure medium Route of exposure Type of fate and transport Pathways a
--------------------------------------------------------------------------------------------------------------------------------------------------------
Terr I.................. Soil........................... Ingestion...................... Direct soil.................... 3 (on site)
WMU mammals,
birds, soil fauna
Ingestion of contaminated
soil
Soil........................... Direct contact................. Direct soil.................... 5 (on site)
WMU plants, soil
fauna
Direct contact with
contaminated soil
Plant.......................... Ingestion...................... Direct soil.................... 9 (on site)
WMU vegetation mammals, birds
Consumption of contaminated
vegetation (e.g., forage
grasses)
Soil fauna..................... Ingestion...................... Direct soil.................... 11a (on site)
WMU soil fauna mammals, birds
Consumption of soil fauna
(e.g., earthworms,
insects) with elevated
levels of toxicant
Animals........................ Ingestion...................... Direct soil.................... 11b (on site)
WMU soil fauna/
vegetation
animals
predatory mammals, birds
Consumption of animals with
elevated levels of
toxicant
Terr II................. Soil........................... Ingestion...................... Overland....................... 3 (off site)
WMU overland mammals, birds,
soil fauna
Ingestion of contaminated
soil
[[Page 66420]]
Soil........................... Direct contact................. Overland....................... 5 (off site)
WMU overland plants, soil fauna
Direct contact with
contaminated soil
Plant.......................... Ingestion...................... Overland....................... 9 (off site)
WMU overland vegetation mammals, birds
Consumption of contaminated
vegetation (e.g., forage
grasses)
Soil fauna..................... Ingestion...................... Overland....................... 11c (off site)
WMU overland soil fauna mammals, birds
Consumption of soil fauna
(e.g., earthworms,
insects) with elevated
levels of toxicant
Animals........................ Ingestion...................... Overland....................... 11d (off site)
WMU soil fauna/
vegetation
animals
predatory mammals, birds
Consumption of animals with
elevated levels of
toxicant
Terr III................ Soil........................... Ingestion...................... Air deposition................. 4
WMU air
deposition to soil mammals, birds,
soil fauna
Ingestion of contaminated
soil
Soil........................... Direct contact................. Air deposition................. 6
WMU air
deposition to surface soil
plants, soil
fauna
Direct contact with
contaminated soil
Terr IV................. Plant.......................... Ingestion...................... Air deposition................. 8
WMU air
deposition to soil vegetation mammals, birds
Consumption of contaminated
vegetation (e.g., forage
grasses)
Terr V.................. Plant.......................... Ingestion...................... Air diffusion.................. 8
WMU air
vegetation
mammals, birds
Consumption of contaminated
vegetation (e.g., forage
grasses)
Aq I.................... Surface water.................. Ingestion...................... Air diffusion.................. 17
WMU air
surface water
mammals, birds
Ingestion of contaminated
surface water as a
drinking water source
Fish........................... Ingestion...................... Air diffusion.................. 21
WMU air
surface water
fish mammals,
birds, fish
Consumption of fish
contaminated by toxicants
in surface water
Surface water.................. Direct contact................. Air diffusion.................. 37
WMU air
surface water
fish, daphnids, benthos
Direct contact with
contaminated surface
water, sediments
Aq II................... Surface water.................. Ingestion...................... Air deposition................. 37
WMU air
deposition to soil overland flow surface water mammals, birds
Ingestion of contaminated
surface water as a
drinking water source
Fish........................... Ingestion...................... Air deposition................. 24
WMU air
deposition to surface soil
overland flow surface water fish
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
mammals, birds, fish
Consumption of fish
contaminated by toxicants
in surface water
Surface water.................. Direct contact................. Air deposition................. 38
WMU air
deposition to soil overland flow surface water fish, daphnids,
benthos
Direct contact with
contaminated surface
water, sediments
Aq III.................. Surface water.................. Ingestion...................... Overland....................... 19
WMU overland flow
surface water mammals, birds
Ingestion of contaminated
surface water as a
drinking water source
Fish........................... Ingestion...................... Overland....................... 23
WMU overland flow
surface water fish
mammals, birds, fish
Consumption of fish
contaminated by toxicants
in surface water
Surface water.................. Direct contact................. Overland....................... 42
WMU overland flow
surface water fish, daphnids,
benthos
Direct contact with
contaminated surface
water, sediments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Overland=Soil erosion. Overland flow=Both runoff and soil erosion; or, for surface impoundments, a spill directly to surface water.
[[Page 66421]]
a Some pathway numbers are missing, reflecting pathways that have been eliminated from the analysis.
Table A-3.--Summary of Human Receptors for Exposures Pathways
----------------------------------------------------------------------------------------------------------------
Receptor
-----------------------------------------------------------------------------------
Pathway Subs. Home Subs. Fish
Adult Child farmer gardener fisher consumer Worker
----------------------------------------------------------------------------------------------------------------
1: Groundwater-ingestion....
a .......... .......... .......... .......... .......... ..........
2a: Direct air-inhalation of
violates (on site).........
a .......... .......... .......... .......... ..........
2a: Direct air-inhalation of
volatiles (off site)....... .......... .......... .......... .......... .......... ..........
2b: Direct air-inhalation of
particles (on site)........
a .......... .......... .......... .......... ..........
2b: Direct air-inhalation of
particles (off site)....... .......... .......... .......... .......... .......... ..........
3: Direct soil-soil
ingestion (on site)........
a
a .......... .......... .......... .......... ..........
3: Overland-soil ingestion
(off site)................. .......... .......... .......... .......... ..........
4: Air deposition-soil
ingestion.................. .......... .......... .......... .......... ..........
5: Direct soil-dermal (soil)
(on site)..................
a
a .......... .......... .......... ..........
5: Direct Soil-dermal (off
site)...................... .......... .......... .......... .......... ..........
6: Air deposition-dermal
(soil)..................... .......... .......... .......... .......... ..........
8: Air deposition-veg/root
ingestion.................. .......... .......... .......... ..........
8a: Air diffusion-veg/root
ingestion.................. .......... .......... .......... .......... ..........
9: Direct soil-veg/root
ingestion (on site)........ .......... ..........
a
a .......... .......... ..........
9: Overland-veg/root
ingestion (on site)........ .......... .......... .......... .......... ..........
10: Air deposition-beef/milk
ingestion.................. .......... .......... .......... .......... .......... ..........
10a: Air diffusion-beef/milk
ingestion.................. .......... .......... .......... .......... .......... ..........
11: Direct soil-bee/milk
ingestion (on site)........ .......... ..........
a .......... .......... .......... ..........
11: Overland-beef/milk
ingestion (off site)....... .......... .......... .......... .......... .......... ..........
14: Groundwater-dermal
(bathing).................. .......... .......... .......... .......... ..........
17: Air diffusion-drinking
water ingestion............ .......... .......... .......... .......... .......... ..........
19: Overland-drinking water
ingestion.................. .......... .......... .......... .......... .......... ..........
20: Air deposition-drinking
water ingestion............ .......... .......... .......... .......... .......... ..........
21: Air diffusion-fish
ingestion.................. .......... .......... .......... ..........
23: Overland-fish ingestion. .......... .......... .......... ..........
24: Air deposition-fish
ingestion.................. .......... .......... .......... ..........
33: Air diffusion (SW)-beef/
milk ingestion............. .......... .......... .......... .......... .......... ..........
35: Overland (SW)-beef/milk
ingestion.................. .......... .......... .......... .......... .......... ..........
36: Air deposition (OF/SW)-
beef/milk ingestion........ .......... .......... .......... .......... .......... ..........
37: Air diffusion (SW)-
dermal (bathing)........... .......... .......... .......... .......... ..........
38: Air deposition (OF/SW)-
dermal (bathing............ .......... .......... .......... .......... ..........
42: Overland (SW)-dermal
(bathing).................. .......... .......... .......... .......... ..........
----------------------------------------------------------------------------------------------------------------
a On-site pathways for receptors other than workers are modeled only for the land application unit after
closure.
Table A-4.--Summary of Ecological Receptors by Exposure Pathways
----------------------------------------------------------------------------------------------------------------
Receptor
Pathway -----------------------------------------------------------------------------------
Mammals Birds Plants Soil fauna Fish Daphnids Benthos
----------------------------------------------------------------------------------------------------------------
3: Direct soil-soil
ingestion (on site)........
a
a .......... .......... .......... ..........
3: Direct soil-soil
ingestion (off site)....... .......... .......... .......... ..........
4: Air deposition-soil
ingestion.................. .......... .......... .......... ..........
5: Direct soil-dermal soil
(on site).................. .......... .......... .......... .......... ..........
5: Direct soil-dermal soil
(off site)................. .......... .......... .......... .......... ..........
6: Air deposition-dermal
soil....................... .......... .......... .......... .......... ..........
8: Air deposition-veg/root
ingestion.................. .......... .......... .......... .......... ..........
8a: Air diffusion-veg
ingestion.................. .......... .......... .......... .......... ..........
9: Direct soil-veg/root
ingestion (on site)........ .......... .......... .......... .......... ..........
9: Overland-veg/root
ingestion (off site)....... .......... .......... .......... .......... ..........
11a: Direct soil-soil fauna
ingestion (on site)........ .......... .......... .......... .......... ..........
11b: Direct soil-animals
ingestion (on site)........ .......... .......... .......... .......... ..........
11c: Overland-soil fauna
ingestion (off site)....... .......... .......... .......... .......... ..........
11d: Overland-animals
ingestion (off site)....... .......... .......... .......... .......... ..........
17: Air diffusion-drinking
water ingestion............ .......... .......... .......... .......... ..........
18: Groundwater (SW)-
drinking water ingestion... .......... .......... .......... .......... ..........
19: Overland-drinking water
ingestion.................. .......... .......... .......... .......... ..........
20: Air deposition-drinking
water ingestion............ .......... .......... .......... .......... ..........
21: Air diffusion-fish
ingestion.................. .......... .......... .......... ..........
22: Groundwater (SW)-fish
ingestion.................. .......... .......... .......... ..........
23: Overland-fish ingestion. .......... .......... .......... ..........
24: Air deposition-fish
ingestion.................. .......... .......... .......... ..........
37: Air diffusion (SW)-
direct contact............. .......... .......... .......... ..........
38: Air deposition (OF/SW)-
direct contact............. .......... .......... .......... ..........
40: Groundwater (SW)-direct
contact.................... .......... .......... .......... ..........
[[Page 66422]]
42: Overland (SW)-direct
contact.................... .......... .......... .......... ..........
----------------------------------------------------------------------------------------------------------------
a On-site pathways are modeled only for the land application unit after closure.
Table A-5.--Pathways Modeled for Each Waste Management Unit
----------------------------------------------------------------------------------------------------------------
Waste management unit
-----------------------------------------------------------------------
Pathway Ash Land appl. Surface
monofill unit Wastepile impound. Tank Water use
----------------------------------------------------------------------------------------------------------------
1: Groundwater-ingestion................ .......... .......... ..........
2a: Direct air-inhalation volatiles..... .......... ..........
2b: Direct air-inhalation particles..... .......... .......... ..........
3: Direct soil-soil ingestion........... .......... .......... .......... ..........
4: Air deposition-soil ingestion........ .......... .......... ..........
5: Direct soil-dermal (soil)............ .......... .......... .......... ..........
6: Air deposition-dermal (soil)......... .......... .......... ..........
8: Air deposition-veg/root ingestion.... .......... .......... ..........
8a: Air diffusion-veg/root ingestion.... .......... ..........
9: Direct soil or overland-veg/root
ingestion.............................. .......... .......... .......... ..........
10: Air deposition-beef/milk ingestion.. .......... .......... ..........
10a: Air diffusion-beef/milk ingestion.. .......... ..........
11: Direct soil or overland-beef/milk
ingestion.............................. .......... .......... .......... ..........
14: Groundwater-dermal (bathing)........ .......... .......... .......... .......... ..........
17: Air diffusion-drinking water
ingestion.............................. .......... ..........
19: Overland-drinking water ingestion... .......... .......... ..........
20: Air deposition-drinking water
ingestion.............................. .......... .......... ..........
21: Air diffusion-fish ingestion........ .......... ..........
23: Overland-fish ingestion............. .......... .......... ..........
24: Air deposition-fish ingestion....... .......... .......... ..........
33: Air diffusion (SW)-beef/milk
ingestion.............................. .......... ..........
35: Overland (SW)-beef/milk ingestion... .......... .......... ..........
36: Air deposition (OF/SW)-beef/milk
ingestion.............................. .......... .......... ..........
37: Air diffusion (SW)-dermal (bathing). .......... ..........
38: Air deposition (OF/SW)-dermal
(bathing).............................. .......... .......... ..........
42: Overland (SW)-dermal (bathing)...... .......... .......... ..........
----------------------------------------------------------------------------------------------------------------
OF=Overland flow. SW=Surface water.
Appendix B
[[Page 66423]]
Table B-1.--Comparison of Groundwater Modeling Results for 1000 vs. 10,000 Years Time Horizon (HQ=1 and Risk=10-6)
[Threshold Chemical Concentrations for 1000 and 10,000 years Groundwater Modeling]
--------------------------------------------------------------------------------------------------------------------------------------------------------
1000 yrs time horizon 10,000 yrs time horizon
-----------------------------------------------------------
No. CAS No. Name of Chemical Nonwastewater* Wastewater** Nonwastewater* Wastewater**
leach mg/l leach mg/l leach mg/l leach mg/l
--------------------------------------------------------------------------------------------------------------------------------------------------------
1........ 83329 Acenaphthene.......................................................... 6.30E+00 3.60E+02 4.90E+00 3.10E+01
2........ 67641 Acetone (2-propanone)................................................. 6.00E+00 1.56E+01 6.00E+00 1.56E+01
3........ 75058 Acetonitrile (methyl cyanide)......................................... 3.00E-01 7.80E-01 3.00E-01 7.80E-01
4........ 98862 Acetophenone.......................................................... 6.40E+00 1.68E+01 6.40E+00 1.68E+01
5........ 107028 Acrolein.............................................................. 1.00E+06 1.00E+06 1.00E+06 1.00E+06
6........ 79061 Acrylamide #.......................................................... 3.80E-05 2.80E-04 3.80E-05 2.60E-04
7........ 107131 Acrylonitrile #....................................................... 3.40E-04 1.10E-03 3.40E-04 1.10E-03
8........ 309002 Aldrin #.............................................................. 6.70E-04 6.50E-02 3.70E-06 4.70E-03
9........ 107051 Allyl Chloride........................................................ .............. ............ .............. ............
10....... 62533 Aniline #............................................................. 1.70E-02 5.30E-02 1.70E-02 5.30E-02
176...... 7440360 Antimony.............................................................. 4.57E+01 1.18E+02 5.30E-02 1.36E-01
177...... 7440382 Arsenic #............................................................. 3.08E-02 7.92E-02 1.48E-04 3.84E-04
178...... 7440393 Barium................................................................ 1.67E+01 4.29E+01 1.55E+01 3.32E+01
12....... 71432 Benzene #............................................................. 5.40E-03 1.80E-02 5.40E-03 1.77E-02
13....... 92875 Benzidine #........................................................... 6.80E-07 2.24E-06 6.80E-07 2.24E-06
14....... 50328 Benzo[a]pyrene #...................................................... 5.50E-04 5.50E-02 7.00E-06 3.60E-03
15....... 205992 Benzo[b]fluoranthene #................................................ 1.10E-02 4.90E-01 6.60E-05 1.60E-02
16....... 100516 Benzyl alcohol........................................................ 1.50E+01 4.00E+01 1.50E+01 3.90E+01
17....... 100447 Benzyl chloride #..................................................... 1.00E+06 1.00E+06 1.00E+06 1.00E+06
11....... 56553 Benz[a]anthracene #................................................... 1.10E-04 1.10E-02 4.30E-06 7.20E-04
179...... 7440417 Beryllium #........................................................... 1.06E-03 2.72E-03 3.20E-04 8.27E-04
18....... 111444 Bis(2-chloroethyl)ether #............................................. 3.68E-04 1.92E-02 3.60E-04 6.48E-04
19....... 4E+07 Bis(2-chloroisopropyl)ether #......................................... 1.90E-03 7.90E-03 1.90E-03 7.00E-03
20....... 117817 Bis(2-ethylhexyl)phthalate #.......................................... 1.80E+00 1.80E+02 1.10E-03 1.20E+01
21....... 75274 Bromodichloromethane #................................................ 2.52E-03 1.05E-02 2.52E-03 8.54E-03
22....... 74839 Bromomethane.......................................................... 2.87E+03 5.63E+04 2.87E+03 4.13E+04
23....... 71363 Butanol............................................................... 6.00E+00 1.56E+01 6.00E+00 1.56E+01
24....... 85687 Butyl benzyl phthalate................................................ 1.10E+02 1.10E+04 6.40E+01 4.40E+02
25....... 88857 Butyl-4,6-dinitrophenol,2-sec-........................................ 6.40E-02 1.92E-01 6.40E-02 1.92E-01
180...... 7440439 Cadmium............................................................... 1.18E+01 3.05E+01 1.10E-01 2.40E-01
26....... 75150 Carbon disulfide...................................................... 6.40E+00 2.08E+01 6.40E+00 1.84E+01
27....... 56235 Carbon tetrachloride #................................................ 1.61E-03 1.40E-02 1.61E-03 1.40E-02
28....... 57749 Chlordane #........................................................... 1.50E-02 1.50E+00 1.60E-04 1.00E-01
29....... 126998 Chloro-1,3-butadiene 2-(Chloroprene).................................. .............. ............ .............. ............
30....... 106478 Chloroaniline p-...................................................... 1.60E-01 4.20E-01 1.60E-01 4.20E-01
31....... 108907 Chlorobenzene......................................................... 1.33E+00 4.83E+00 1.33E+00 4.76E+00
32....... 510156 Chlorobenzilate #..................................................... 7.50E-03 1.02E+00 5.70E-03 5.40E-02
33....... 124481 Chlorodibromomethane #................................................ 1.80E-03 6.90E-03 1.80E-03 6.60E-03
34....... 67663 Chloroform #.......................................................... 1.70E-02 5.80E-02 1.70E-02 5.70E-02
35....... 74873 Chloromethane......................................................... .............. ............ .............. ............
36....... 95578 Chlorophenol 2-....................................................... 3.20E-01 9.00E-01 3.20E-01 9.00E-01
181...... 16065381 Chromium (+3)......................................................... 1.32E+05 3.40E+05 2.37E+04 6.12E+04
182...... 7440473 Chromium (+6)......................................................... 1.88E+01 4.85E+01 4.76E-01 1.24E+00
37....... 218019 Chrysene.............................................................. 2.70E-02 2.90E+00 1.20E-03 1.00E-01
183...... 7440508 Copper................................................................ 1.32E+05 3.40E+05 1.08E+03 2.79E+03
38....... 108394 Cresol m-............................................................. 3.20E+00 8.80E+00 3.20E+00 8.40E+00
39....... 95487 Cresol o-............................................................. 3.20E+00 8.80E+00 3.20E+00 8.40E+00
40....... 106445 Cresol p-............................................................. 3.20E-01 8.80E-01 3.20E-01 8.40E-01
41....... 98828 Cumene................................................................ 2.50E+00 1.50E+01 2.50E+00 1.50E+01
42....... 72548 DDD #................................................................. 2.80E+03 1.00E+06 2.80E+03 9.10E+05
[[Page 66424]]
43....... 72559 DDE #................................................................. 3.30E-02 3.30E+00 1.70E-04 2.30E-01
44....... 50293 DDT, p,p'- #.......................................................... 8.40E+03 1.00E+06 5.40E-03 2.04E+01
47....... 2303164 Diallate #............................................................ 4.60E-01 2.80E+03 4.60E-01 9.00E+01
48....... 53703 Dibenz[a,h]- anthracene #............................................. 2.50E-04 2.50E-02 6.30E-07 1.80E-03
49....... 96128 Dibromo-3-chloropropane1,2- #......................................... 1.14E-04 7.20E-04 1.14E-04 6.60E-04
50....... 95501 Dichlorobenzene1,2-................................................... 6.10E+00 3.00E+01 6.10E+00 3.00E+01
51....... 106467 Dichlorobenzene1,4- #................................................. 1.16E-02 6.80E-02 1.08E-02 5.60E-02
52....... 91941 Dichloro- benzidine3,3 #.............................................. 7.80E-04 5.40E-03 7.20E-04 4.20E-03
53....... 75718 Dichlorodifluoromethane............................................... 1.19E+01 3.57E+01 1.19E+01 3.57E+01
54....... 75343 Dichloroethane 1,1- #................................................. 1.71E-03 9.90E-03 6.00E-05 1.60E-04
55....... 107062 Dichloroethane1,2- #.................................................. 1.62E-03 9.00E-03 6.00E-05 1.60E-04
56....... 166592 Dichloroethylene cis-1,2.............................................. 6.40E-01 1.72E+00 6.40E-01 1.68E+00
57....... 156605 Dichloroethylene trans-1,2............................................ 1.12E+00 2.94E+00 1.12E+00 2.94E+00
58....... 75354 Dichloroethylene1,1-(Vinylidene chloride:) #.......................... 1.80E-04 5.90E-04 1.80E-04 5.90E-04
59....... 120832 Dichlorophenol 2,4-................................................... 1.80E-01 6.30E-01 1.80E-01 6.20E-01
60....... 94757 Dichlorophenoxyacetic acid, 2,4-...................................... 6.00E-01 1.56E+00 6.00E-01 1.56E+00
61....... 78875 Dichloropropane 1,2- #................................................ 2.30E-03 2.60E-02 2.30E-03 2.30E-02
62....... 1E+07 Dichloropropene trans-1,3- #.......................................... 1.15E+03 9.00E+04 1.15E+03 9.00E+04
63....... 542756 Dichloropropene 1,3-(mixture of isomers) #............................ 8.50E-04 2.80E-03 8.50E-04 2.80E-03
64....... 1E+07 Dichloropropene cis-1,3- #............................................ 1.15E+03 9.00E+04 1.15E+03 9.00E+04
65....... 60571 Dieldrin #............................................................ 5.40E-01 2.90E+04 5.40E-01 6.80E+02
66....... 84662 Diethyl phthalate..................................................... 6.00E+01 4.50E+02 5.40E+01 1.86E+02
67....... 56531 Diethylstilbestrol #.................................................. 1.20E-07 9.20E-06 6.50E-08 4.30E-07
68....... 60515 Dimethoate............................................................ 7.70E-01 2.94E+01 7.70E-01 2.94E+01
69....... 119904 Dimethoxybenzidine 3,3'- #............................................ 1.20E-02 3.36E-02 1.02E-02 3.36E-02
70....... 131113 Dimethyl phthalate.................................................... 1.04E+03 1.1.12E+04 3.00E+01 7.80E+01
72....... 119937 Dimethylbenzidine 3,3'- #............................................. 1.89E-05 8.10E-05 1.80E-05 7.02E-05
71....... 57976 Dimethylbenz[a]anthracene 7,12-....................................... 1.20E-03 1.40E-01 2.80E-06 1.30E-02
73....... 105679 Dimethylphenol 2,4-................................................... 1.19E+00 3.78E+00 1.19E+00 3.78E+00
45....... 84742 Di-n-butyl phthalate.................................................. 5.70E+01 6.30E+03 2.50E+01 2.30E+02
74....... 99650 Dinitrobenzene 1,3-................................................... 6.40E-03 1.68E-02 6.40E-03 1.68E--02
75....... 51285 Dinitrophenol 2,4-.................................................... 1.05E-01 2.73E-01 1.05E-01 2.73E-01
76....... 121142 Dinitrotoluene 2,4-................................................... 1.12E-01 3.01E-01 1.12E-01 2.94E-01
77....... 606202 Dinitrotoluene 2,6-................................................... 6.40E-02 1.68E-01 6.40E-02 1.68E-01
46....... 117840 Di-n-octyl phthalate.................................................. 3.10E+02 5.20E+04 1.00E-01 1.30E+03
78....... 123911 Dioxane 1,4- #........................................................ 1.36E-02 4.24E-02 1.36E-02 4.24E-02
79....... 122394 Diphenylamine......................................................... 2.60E+00 1.50E+01 2.60E+00 1.50E+01
80....... 298044 Disulfoton............................................................ 1.30E+01 5.80E+02 1.30E+01 4.60E+02
81....... 115297 Endosulfan(Endosulfan I and II, mixture).............................. 1.00E+00 1.26E+01 9.40E-01 6.00E+00
82....... 72208 Endrin................................................................ 3.20E+01 2.70E+05 3.20E+00 6.60E+03
83....... 106898 Epichlorohydrin #..................................................... 5.40E+03 4.14E+05 5.40E+03 4.14E+05
84....... 110805 Ethoxyethanol 2-...................................................... 1.50E+01 3.90E+01 1.50E+01 3.90E+01
85....... 141786 Ethyl acetate......................................................... 1.14E+02 6.00E+02 1.14E+02 3.90E+02
86....... 60297 Ethyl ether........................................................... 1.05E+01 2.73E+01 1.05E+01 2.73E+01
87....... 97632 Ethyl methacrylate.................................................... 6.60E+00 6.90E+01 6.60E+00 2.40E+01
88....... 62500 Ethyl methanesulfonate #.............................................. 1.17E+04 9.30E+05 1.17E+04 9.30E+05
89....... 100414 Ethylbenzene.......................................................... 8.10E+00 3.90E+01 8.10E+00 3.90E+01
90....... 106934 Ethylene dibromide (1,2-Dibromoethane) #.............................. 1.50E-05 4.20E-04 1.50E-05 3.60E-04
91....... 96457 Ethylene thiourea #................................................... 1.70E-04 5.30E-04 1.70E-04 5.30E-04
92....... 206440 Fluoranthene.......................................................... 7.50E+00 7.80E+02 1.70E+00 2.70E+01
[[Page 66425]]
93....... 86737 Fluorene.............................................................. 5.00E+00 3.90E+02 3.40E+00 2.20E+01
94....... 50000 Formaldehyde.......................................................... 1.05E+01 2.73E+01 1.05E+01 2.73E+01
95....... 61486 Formic acid........................................................... 1.05E+02 2.73E+02 1.05E+02 2.73E+02
96....... 110009 Furan................................................................. 6.00E-02 1.60E-01 6.00E-02 1.56E-01
97....... 319857 HCH beta- #........................................................... 2.10E-04 1.30E-03 2.10E-04 1.30E-03
99....... 319846 HCH alpha- #.......................................................... 1.10E-01 2.10E+01 1.10E-01 2.10E+01
98....... 58899 HCH (Lindane) gamma- #................................................ 6.93E+01 1.19E+02 6.93E-01 1.19E+02
100...... 76448 Heptachlor #.......................................................... 1.00E+06 1.00E+06 1.00E-06 1.00E+06
101...... 1024573 Heptachlor epoxide #.................................................. 4.50E+01 3.15E+04 4.50E-01 7.83E+02
102...... 87683 Hexachloro-1,3-butadene #............................................. 2.30E+02 2.10E+00 6.90E-03 8.10E+02
103...... 118741 Hexachlorobenzene #................................................... 3.50E+03 3.50E+01 1.10E-04 2.23E+02
104...... 77474 Hexachlorocyclopentadiene............................................. 1.00E+06 1.00E+06 1.00E-06 1.00E+06
105...... 67721 Hexachloroethane #.................................................... 4.02E-02 110E+00 3.30E-02 2.16E-01
106...... 70304 Hexachlorophene....................................................... 1.40E-02 1.50E+00 1.40E-03 5.20E-01
107...... 193395 Indeno[1,2,3-cd]pyrene................................................ 4.60E-03 5.00E-01 2.40E-05 1.70E-02
108...... 78831 Isobutyl alcohol...................................................... 1.50E+01 3.90E+01 1.50E+01 3.90E+01
109...... 78591 Isophorone #.......................................................... 1.62E-01 5.49E-01 1.62E-01 5.31E-01
110...... 143500 Kepone #.............................................................. 5.80E-05 4.80E-03 3.20E-05 2.20E-04
184...... 7439921 Lead.................................................................. 1.32E+05 3.40E+05 1.16E+01 3.00E+01
185...... 7439976 Mercury............................................................... 1.81E+01 4.67E+01 1.38E-01 2.96E-01
111...... 126987 Methacrylonitrile..................................................... 6.00E-03 1.64E-02 6.00E-03 1.56E-02
112...... 67561 Methanol.............................................................. 3.00E+01 7.80E+01 3.00E+01 7.80E+01
113...... 72435 Methoxychlor.......................................................... 1.00E+06 1.00E+06 1.00E+06 1.00E+06
114...... 78933 Methyl ethyl ketone................................................... 3.00E+01 7.80E+01 3.00E+01 7.80E+01
115...... 108101 Methyl isobutyl ketone................................................ 3.00E+00 8.00E+00 3.00E+00 7.80E+00
116...... 80626 Methyl methacrylate................................................... 8.10E+00 8.40E+01 8.10E+00 2.82E+01
117...... 298000 Methyl parathion...................................................... 2.34E+01 9.90E+02 2.34E+01 7.80E+01
118...... 56495 Methylcholanthrene 3- #............................................... 1.70E-03 1.70E-01 1.40E-06 1.20E-02
119...... 74953 Methylene bromide..................................................... 6.80E-01 2.32E+00 1.90E-01 2.32E+00
120...... 75092 Methylene Chloride #.................................................. 6.80E-01 2.36E+00 1.50E-02 3.90E-02
186...... 7439987 Molybdenum............................................................ .............. ............ .............. ............
129...... 91203 Naphthalene........................................................... 2.70E+00 1.40E+01 2.70E+00 1.40E+01
187...... 7440020 Nickel................................................................ 9.95E+00 2.56E+01 4.89E+00 1.05E+01
130...... 98953 Nitrobenzene.......................................................... 3.20E-02 8.40E-02 3.20E-02 8.40E-02
131...... 79469 Nitropropane 2-....................................................... .............. ............ .............. ............
123...... 55185 N-Nitrosodiethylamine #............................................... 1.02E-06 3.18E-06 1.02E-06 3.18E-06
124...... 62759 N-Nitrosodimethylamine #.............................................. 3.40E-06 1.06E-05 3.40E-06 1.06E-05
121...... 924163 N-Nitroso-di-n-butylamine #........................................... 3.60E-05 1.32E-04 3.60E-05 1.22E-04
122...... 621647 N-Nitroso-di-n-propylamine #.......................................... 1.70E-05 5.40E-05 1.70E-05 5.30E-05
125...... 86306 N-Nitrosodiphenylamine #.............................................. 4.80E-02 2.60E-01 4.60E-02 2.00E-01
126...... 1E+07 N-Nitrosomethylethylamine #........................................... 6.80E-06 2.16E-05 6.80E-06 2.12E-05
127...... 100754 N-Nitrosopiperidine #................................................. 3.40E-06 1.06E-05 3.40E-06 1.06E-05
128...... 930552 N-Nitrosopyrrolidine #................................................ 6.80E-05 2.12E-04 6.80E-05 2.12E-04
132...... 152169 Octamethyl pyrophosphoramide.......................................... 1.05E-01 2.80E-01 1.05E-01 2.73E-01
133...... 56382 Parathion (ethyl)..................................................... 1.16E+04 5.60E+05 1.16E+04 4.40E+05
134...... 608935 Pentachlorobenzene.................................................... 1.44E+01 1.56E+03 5.70E-01 5.10E+00
135...... 82688 Pentachloronitrobenzene (PCNB) #...................................... 2.37E-02 2.19E+00 5.40E-03 8.10E-02
136...... 87865 Pentachlorophenol #................................................... 4.20E-04 2.50E-03 4.10E-04 2.00E-03
137...... 108952 Phenol................................................................ 3.20E+01 8.40E+01 3.20E+01 8.40E-01
138...... 62384 Phenyl mercuric acetate............................................... 4.50E-03 1.17E-02 4.50E-03 1.17E-02
139...... 108452 Phenylenediamine, 1,3-................................................ 3.00E-01 7.80E-01 3.00E-01 7.80E-01
140...... 298022 Phorate............................................................... 1.00E+06 1.00E+06 1.00E+06 1.00E+06
141...... 1336363 Polychlorinated biphenyls (Aroclors) #................................ 9.10E-04 8.80E-02 4.80E-06 6.10E-03
142...... 2E+07 Pronamide............................................................. 5.70E+00 2.19E+01 5.70E+00 2.13E+01
143...... 129000 Pyrene................................................................ 1.40E+01 1.50E+03 1.70E+00 5.40E+01
144...... 110861 Pyridine.............................................................. 6.00E-02 1.56E-01 6.00E-02 1.56E-01
145...... 94597 Safrole #............................................................. 9.50E-04 3.80E-03 9.50E-04 3.50E-03
188...... 7782492 Selenium.............................................................. 1.38E+00 3.57E+00 3.57E-01 9.27E-01
189...... 7440224 Silver................................................................ 1.32E+00 3.40E+00 8.90E-02 1.91E-01
[[Page 66426]]
146...... 57249 Strychnine and salts.................................................. 1.60E-02 4.50E-02 1.60E-02 4.50E-02
147...... 100425 Styrene............................................................... 1.54E+01 6.51E+01 1.54E+01 6.37E+01
148...... 1746016 TCDDioxin 2,3,7,8, #.................................................. 2.70E-08 2.70E-06 1.80E-10 1.90E-07
149...... 95943 Tetrachlorobenzene 1,2,4,5- #......................................... 6.00E-02 5.70E+00 3.20E-02 2.30E-01150
630206 Tetrachloroethane 1,1,1,2- #.......................................... 7.80E-03 7.50E-02 7.80E-03 7.50E-02
151...... 79345 Tetrachloroethane 1,1,2,2- #.......................................... 9.60E-03 2.92E-01 8.00E-03 2.40E-02
152...... 127184 Tetrachloroethylene................................................... 6.80E-01 2.08E+00 6.80E-01 2.04E+00
153...... 58902 Tetrachlorophenol 2,3,4,6-............................................ 5.80E-01 1.90E+00 5.80E-01 1.90E+00
154...... 3689245 Tetraethyl dithiopyrophosphate........................................ 1.00E+06 1.00E+06 1.00E+06 1.00+06
190...... 7440280 Thallium.............................................................. 3.96E+02 1.02E+03 1.92E-02 5.00E-02
155...... 108883 Toluene............................................................... 1.26E+01 4.20E+01 1.26E+01 4.13E+01
156...... 95807 Toluenediamine 2,4- #................................................. 5.10E-05 1.59E-04 5.10E-05 1.59E-04
158...... 95534 Toluidine o- #........................................................ 6.80E-04 2.24E-03 6.80E-04 2.24E-03
157...... 106490 Toluidine p- #........................................................ 6.80E-04 2.24E-03 2.24E-03 2.24E-03
159...... 8001352 Toxaphene (chlorinated camphenes) #................................... 1.10E-01 6.70E+02 1.10E-01 2.20E+01
160...... 75252 Tribromomethane #..................................................... 1.80E-02 6.80E-02 1.80E-02 6.40E-02
161...... 76131 Trichloro-1,2,2-trifluoro- ethane 1,1,2-.............................. 2.40E+03 1.40E04 2.40E+03 1.10E+04
162...... 120821 Trichlorobenzene 1,2,4-............................................... 2.10E+00 1.70E+02 1.30E+00 9.30E+00
163...... 71556 Trichloroethane 1,1,1-................................................ 5.00E+00 1.20E+02 4.60E+00 1.20E+02
164...... 79005 Trichloroethane 1,1,2- #.............................................. 1.80E-03 7.40E-03 1.80E-03 7.00E-03
165...... 79016 Trichloroethylene (1,1,2-Trichloroethylene) #......................... 1.44E-02 5.28E-02 1.28E-02 3.84E-02
166...... 75694 Trichlorofluoromethane................................................ 1.60E+01 4.90+01 1.60E+01 4.80E+01
168...... 95954 Trichlorophenol 2,4,5-................................................ 4.20E+00 2.00E+01 4.20E+00 4.40E+01
167...... 88062 Trichlorophenol 2,4,6- #.............................................. 1.52E-02 5.76E-02 1.52E-02 5.36E-02
170...... 93765 Trichlorophenoxyacetic acid 2,4,5-.................................... 6.40E-01 1.68E+00 6.40E-01 1.68E+00
169...... 93721 Trichlorophenoxypropionic acid........................................ 4.80E-00 1.32E+00 4.80E-01 1.26E+00
171...... 96184 Trichloropropane 1,2,3-............................................... 3.40E-01 2.20E+00 3.40E-01 1.10E+00
172...... 99354 Trinitrobenzene (1,3,5-Trinitrobenzene) sym-.......................... 3.00E-03 8.00E-03 3.00E-03 7.80E-03
173...... 126727 Tris (2,3-dibromoprophyl) phosphate B19 #............................. 9.90E-05 2.52E-03 9.90E-05 2.52E-03
191...... 7440622 Vanadium.............................................................. 8.82E+00 2.27E+01 3.71E+00 9.58E+00
174...... 75014 Vinyl chloride #...................................................... 6.80E-05 2.16E-04 6.00E-05 1.56E-04
175...... 1330297 Xylenes (total)....................................................... 1.47E+02 9.10E+02 1.47E+02 8.60E+02
192...... 7440666 Zinc.................................................................. 1.08E+02 2.79E+02 3.84E+01 9.90E+01
--------------------------------------------------------------------------------------------------------------------------------------------------------
For Trichloroethane 1,1,1 the MCL, 0.20 mg/L was used in conic. calculation.
*Represents the lowest results from either landfills, waste piles, or land application units waste management scenarios.
**Represents results from surface impoundments.
# Carcinogen.
[[Page 66427]]
Appendix C
Table C-1.--Summary of Constituent-Specific Exit Level Development Using Toxicity Benchmarks
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
WW totals (mg/l) NWW totals (mg/kg) NWW leach (mg/l)
-------------------------------------------------------------------------------------------------------------------------------
Multipath
CAS No. Name Multipath Groundwater Extrapolated modeled Extrapolated Groundwater Extrapolated
modeled modeled exit level WW EQC leach leach level NWW EQC modeled each level WW EQC
exit level exit level level each level
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
83-32-9........................ Acenaphthene................... 49.5 31.2 ............ 0.0018 9480 ............ 0.0742 4.9 ............ 0.0018
208-96-8....................... Acenaphthylene................. .......... ........... 0.00285 0.02 .......... 3.9 0.7 ........... 0.0000661 0.02
67-64-1........................ Acetone........................ 232000 15.6 ............ 0.2 17400 ............ 0.027 6 ............ 0.2
75-05-8........................ Acetonitrile................... 6.58 0.78 ............ 0.015 923 ............ 0.014 0.3 ............ 0.015
98-86-2........................ Acetophenone................... 5960 16.8 ............ 0.00158 1210 ............ 0.03 6.4 ............ 0.00158
75-36-5........................ Acetyl chloride................ .......... ........... 0.023 .......... .......... 30.85 .......... ........... 0.015 ..........
591-08-2....................... Acetyl-2-thiourea,1-........... .......... ........... 0.11775 1 .......... 1.66 70 ........... 6.4 1
53-96-3........................ Acetylaminofluorene, 2-........ .......... ........... 0.02762 0.02 .......... 3.28 1 ........... 0.00884 0.02
107-02-8....................... Acrolein....................... 0.00248 ........... ............ 0.013 2.63 ............ 0.075 ........... ............ 0.013
79-06-1........................ Acrylamide..................... 3.67 0.00026 ............ 0.01 0.00436 ............ 0.1 0.000038 ............ 0.01
107-13-1....................... Acrylonitrile.................. 0.00428 0.0011 ............ 0.008 0.961 ............ 0.7 0.00034 ............ 0.008
1402-68-2...................... Aflatoxins..................... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
116-06-3....................... Aldicarb....................... .......... ........... 0.0069415 0.05 .......... 0.194 1 ........... 0.48 0.05
309-00-2....................... Aldrin......................... 5.640E-07 0.00469 ............ 0.000034 0.000444 ............ 0.0006 3.670E-06 ............ 0.000034
107-18-6....................... Allyl alcohol.................. .......... ........... 39 .......... .......... 36700 .......... ........... 15 ..........
107-05-1....................... Allyl chloride................. 0.0742 ........... ............ 0.002 258 ............ 0.002 ........... ............ 0.002
92-67-1........................ Aminobiphenyl, 4-.............. .......... ........... 0.02762 0.02 .......... 3.28 1 ........... 0.00884 0.02
2763-96-4...................... Aminomethyl-3-isoxazolol, 5-... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
504-24-5....................... Aminopyridine, 4-.............. .......... ........... 0.02762 .......... .......... 3.28 .......... ........... 0.00884 ..........
61-82-5........................ Amitrole....................... .......... ........... 0.0069415 .......... .......... 0.194 .......... ........... 0.48 ..........
62-53-3........................ Aniline........................ 0.444 0.053 ............ 0.00023 4.21 ............ 0.0132 0.017 ............ 0.00023
120-12-7....................... Anthracene..................... .......... ........... 0.00285 0.007 .......... 3.9 0.5 ........... 0.0000661 0.007
7440-36-0...................... Antimony....................... 8210 0.136 ............ 0.0008 8.72 ............ 2 0.053 ............ 0.0008
140-57-8....................... Aramite........................ .......... ........... 14.7 0.02 .......... 6900 1 ........... 10.5 0.02
7440-38-2...................... Arsenic........................ 40.5 0.000384 ............ 0.0005 0.17 ............ 0.3031 0.000148 ............ 0.0005
2465-27-2...................... Auramine....................... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
115-02-6....................... Azaserine...................... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
7440-39-3...................... Barium......................... .......... 33.2 ............ 0.001 2080 ............ 0.2 15.5 ............ 0.001
71-43-2........................ Benzene........................ 0.0209 0.0177 ............ 0.00004 109 ............ 0.0001 0.0054 ............ 0.00004
92-87-5........................ Benzidine...................... 0.00015 2.240E-06 ............ 0.0025 0.0000298 ............ 0.042 6.800E-07 ............ 0.0025
106-51-4....................... Benzoquinone, p-............... .......... ........... 14.7 0.01 .......... 6900 0.7 ........... 10.5 0.01
98-07-7........................ Benzotrichloride............... .......... ........... 0.081 .......... .......... 142 0.004 ........... 0.0317 ..........
50-32-8........................ Benzo(a)pyrene................. 0.00231 0.00364 ............ 0.000023 0.227 ............ 0.0621 7.040E-06 ............ 0.000023
205-99-2....................... Benzo(b)fluoranthene........... 0.000805 0.0164 ............ 0.000018 3.7 ............ 0.0699 0.0000661 ............ 0.000018
205-82-3....................... Benzo(j)fluoranthene........... .......... ........... 0.00285 0.0002 .......... 3.9 0.01 ........... 0.0000661 0.0002
207-08-9....................... Benzo(k)fluoranthene........... .......... ........... 0.00285 0.0002 .......... 3.9 0.7 ........... 0.0000661 0.0002
191-24-2....................... Benzo[g,h,i,]perylene.......... .......... ........... 0.00285 0.0008 .......... 3.9 0.7 ........... 0.0000661 0.0008
100-51-6....................... Benzyl alcohol................. 22500 39 ............ 0.00074 2740 ............ 0.034 15 ............ 0.00074
100-44-7....................... Benzyl chloride................ 1.13 3.9 ............ 5.000E-06 37.5 ............ 0.00276 15 ............ 5.000E-06
56-55-3........................ Benz(a)anthracene.............. 0.0138 0.000717 ............ 0.000013 0.1 ............ 0.0826 4.300E-06 ............ 0.000013
225-51-4....................... Benz[c]acridine................ .......... ........... 0.00285 0.0005 .......... 3.9 0.03 ........... 0.0000661 0.0005
7440-41-7...................... Beryllium...................... 10.1 0.000827 ............ 0.00003 0.0591 ............ 0.1 0.00032 ............ 0.0003
39638-32-9..................... Bis (2-chloroisopropyl) ether.. 0.569 0.007 ............ 0.00145 0.944 ............ 0.0586 0.0019 ............ 0.00145
111-44-4....................... Bis(2-chlorethyl)ether......... 0.00141 0.000648 ............ 0.0003 0.115 ............ 0.0651 0.00036 ............ 0.0003
117-81-7....................... Bis(2-ethylhexyl)phthalate..... 0.00044 12.4 ............ 0.00027 225 ............ 0.143 0.00112 ............ 0.00027
542-88-1....................... Bis(chloromethyl)either........ .......... ........... 0.023 .......... .......... 30.85 .......... ........... 0.015 ..........
598-31-2....................... Bromoacetone................... .......... ........... 0.023 0.005 .......... 30.85 0.03 ........... 0.015 0.005
75-27-4........................ Bromodichloromethane........... 33.3 0.00854 ............ 0.00008 19 ............ 0.0012 0.00252 ............ 0.00008
75-25-2........................ Bromoform (Tribromomethane).... 0.178 0.064 ............ 0.0002 173 ............ 0.02 0.018 ............ 0.0002
101-55-3....................... Bromophenyl phenyl ether, 4-... .......... ........... 0.023 0.01 .......... 30.85 0.7 ........... 0.015 0.01
357-57-3....................... Brucine........................ .......... ........... 0.159 20 .......... 19.955 .......... ........... 0.105 20
71-36-3........................ Butanol........................ 38600 15.6 ............ 0.014 18200 ............ 0.23 6 ............ 0.014
88-85-7........................ Butyl-4,6-dinitrophenol, 2-sec- 15.4 0.192 ............ 0.00029 772 ............ 0.042 0.064 ............ 0.00029
(Dinoseb).
85-68-7........................ Butylbenzylphthalate........... 235 437 ............ 0.000042 87 ............ 0.049 64 ............ 0.000042
7440-43-9...................... Cadmium........................ 1600 0.24 ............ 0.00005 14.1 ............ 0.2 0.11 ............ 0.00005
86-74-8........................ Carbazole...................... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
75-15-0........................ Carbon disulfide............... 0.738 18.4 ............ 0.00121 330 ............ 0.0002 6.4 ............ 0.00121
353-50-4....................... Carbon oxyfluoride............. .......... ........... 0.023 .......... .......... 30.85 .......... ........... 0.015 ..........
56-23-5........................ Carbon tetrachloride........... 0.0115 0.014 ............ 0.00021 8.54 ............ 0.02 0.00161 ............ 0.00021
75-87-6........................ Chloral........................ .......... ........... 0.081 .......... .......... 142 .......... ........... 0.0317 ..........
305-03-3....................... Chlorambucil................... .......... ........... 0.081 .......... .......... 142 .......... ........... 0.0317 ..........
57-74-9........................ Chlordane...................... 0.000014 0.0998 ............ 0.00004 0.00976 ............ 0.0015 0.000163 ............ 0.00004
494-03-1....................... Chlomaphazin................... .......... ........... 0.081 .......... .......... 142 .......... ........... 0.0317 ..........
126-99-8....................... Chloro-1, 3-butadiene, 2- 0.515 ........... ............ 0.002 288 ............ 0.00099 ........... ............ 0.002
(Chloroprene).
107-20-0....................... Chloroacetaldehyde............. .......... ........... 0.023 .......... .......... 30.85 .......... ........... 0.015 ..........
106-47-8....................... Chloroaniline, p-.............. 517 0.42 ............ 0.00066 142 ............ 0.0592 0.16 ............ 0.00066
108-90-7....................... Chlorobenzene.................. 1.5 4.76 ............ 0.00004 2470 ............ 0.0002 1.33 ............ 0.00004
510-15-6....................... Chlorobenzilate................ 0.0731 0.054 ............ 0.00504 6.82 ............ 0.069 0.0057 ............ 0.00504
124-48-1....................... Chlorodibromomethane........... 16.3 0.0066 ............ 0.00007 27.5 ............ 0.00085 0.0018 ............ 0.00007
75-00-3........................ Chloroethane (ethyl chloride).. .......... ........... 0.023 0.005 .......... 30.85 0.005 ........... 0.015 0.005
110-75-8....................... Chloroethyl vinyl ether, 2-.... .......... ........... 0.081 .......... .......... 142 0.005 ........... 0.0317 ..........
67-66-3........................ Chloroform..................... 0.00759 0.057 ............ 0.00003 6.74 ............ 0.002 0.017 ............ 0.00003
[[Page 66428]]
59-50-7........................ Chloro-m-cresol, p-............ .......... ........... 0.081 0.02 .......... 142 1 ........... 0.0317 0.02
107-30-2....................... Chloromethyl methyl ether...... .......... ........... 0.023 .......... .......... 30.85 0.005 ........... 0.015 ..........
91-58-7........................ Chloronaphthalene, 2-.......... .......... ........... 0.081 0.01 .......... 142 0.7 ........... 0.0317 0.01
95-57-8........................ Chlorophenol, 2-............... 134 0.9 ............ 0.00058 104 ............ 0.0758 0.32 ............ 0.00058
7005-72-3...................... Clorophenyl phenyl ether, 4-... .......... ........... 0.023 0.01 .......... 30.85 0.7 ........... 0.015 0.01
5344-82-1...................... Chlorophenyl thiourea, 1-o-.... .......... ........... 0.023 .......... .......... 30.85 .......... ........... 0.015 ..........
542-76-7....................... Chloropropionitrile, 3-........ .......... ........... 0.081 0.1 .......... 142 0.5 ........... 0.0317 0.1
7440-47-3...................... Chromium....................... 1300 1.24 ............ 0.002 9.76 ............ 0.003 0.476 ............ 0.002
218-01-9....................... Chrysene....................... 1.32 0.1 ............ 0.00015 34.6 ............ 0.084 0.00119 ............ 0.00015
6358-53-8...................... Citrus red No. 2............... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
7440-48-4...................... Cobalt......................... .........
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
. ........... 1.24 0.5 .......... 8.72 5 ........... 0.4165 0.5
7440-50-8...................... Copper......................... 674 2790 ............ 0.0007 5.91 ............ 0.5 1080 ............ 0.0007
108-39-4....................... Cresol, m-..................... 615 8.4 ............ 0.00046 21500 ............ 0.035 3.2 ............ 0.00046
95-48-7........................ Cresol, o-..................... 656 8.4 ............ 0.00055 27400 ............ 0.027 3.2 ............ 0.00055
106-44-5....................... Cresol, p-..................... 63.5 0.84 ............ 0.00046 2550 ............ 0.035 0.32 ............ 0.00046
4170-30-3...................... Crotonaldehyde................. .......... ........... 7.8 0.06 .......... 1210 4 ........... 6.2 0.06
57-12-5........................ Cyanide........................ .......... ........... 0.159 0.2 .......... 19.955 0.2 ........... 0.105 0.2
14901-08-7..................... Cycasin........................ .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
108-94-1....................... Cyclohexanone.................. .......... ........... 7.8 10 .......... 1210 10 ........... 6.2 10
131-89-5....................... Cyclohexyl-4,6-dinitrophenol, 2- .......... ........... 0.0252 0.1 .......... 2.991 7 ........... 0.0083 0.1
.
50-18-0........................ Cyclophosphamide............... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
20830-81-3..................... Daunomycin..................... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
72-54-8........................ DDD............................ 0.000126 913000 ............ 0.00005 0.00648 ............ 0.0012 2800 ............ 0.00005
53-19-0........................ DDD (o,p\1\)................... .......... ........... 0.0069415 .......... .......... 0.194 .......... ........... 0.48 ..........
72-55-9........................ DDE............................ 9.110E-06 0.228 ............ 0.000058 0.000936 ............ 0.0006 0.0000623 ............ 0.000058
3424-82-6...................... DDE (o,p\1\)................... .......... ........... 0.0069415 .......... .......... 0.194 .......... ........... 0.48 ..........
50-29-3........................ DDT............................ 0.0000181 20.4 ............ 0.000081 0.00315 ............ 0.0006 0.0054 ............ 0.000081
789-02-6....................... DDT (o.p\1\)................... .......... ........... 0.0069415 .......... .......... 0.194 .......... ........... 0.48 ..........
2303-16-4...................... Diallate....................... 0.26 90.1 ............ 0.00063 1.26 ............ 0.023 0.46 ............ 0.00063
132-64-9....................... Dibenzofuran................... .......... ........... 8.4 0.01 .......... 27400 0.7 ........... 3.2 0.01
192-65-4....................... Dibenzo[a,e]pyrene............. .......... ........... 0.00285 0.0002 .......... 3.9 0.01 ........... 0.0000661 0.001
189-64-0....................... Dibenzo[a,h]pyrene............. .......... ........... 0.00285 0.0002 .......... 3.9 0.01 ........... 0.0000661 0.0002
189-55-9....................... Dibenzo[a,i]pyrene............. .......... ........... 0.00285 0.0002 .......... 3.9 0.01 ........... 0.0000661 0.0002
194-59-2....................... Dibenzo[c,g]carbazole, 7H-..... .......... ........... 0.00285 0.01 .......... 3.9 0.7 ........... 0.0000661 0.01
226-36-8....................... Dibenz(a,h)acridine............ .......... ........... 0.00285 0.0002 .......... 3.9 0.01 ........... 0.0000661 0.0002
53-70-3........................ Dibenz(a,h)anthracene.......... 8.440E-06 0.00176 ............ 0.00003 0.000155 ............ 0.084 6.340E-07 ............ 0.00003
224-42-0....................... Dibenz[a,j]acridine............ .......... ........... 0.00285 0.001 .......... 3.9 0.7 ........... 0.0000661 0.001
96-12-8........................ Dibromo-3-chloropropane, 1,2-.. 0.0723 0.00066 ............ 0.00026 0.663 ............ 0.0003 0.000114 ............ 0.00026
764-41-0....................... Dichloro-2-butene, 1,4-........ .......... ........... 0.023 0.005 .......... 30.85 0.005 ........... 0.015 0.005
110-57-6....................... Dichloro-2-butene, trans-1,4-.. .......... ........... 0.023 0.005 .......... 30.85 0.005 ........... 0.015 0.005
96-23-1........................ Dichloro-2-propanol, 1,3-...... .......... ........... 0.081 0.01 .......... 142 0.05 ........... 0.0317 0.01
95-50-1........................ Dichlorobenzene, 1,2-.......... 15.4 29.5 ............ 0.00003 50000 ............ 0.0002 6.1 ............ 0.00003
541-73-1....................... Dichlorobenzene, 1,3-.......... .......... ........... 0.023 0.005 .......... 30.85 0.7 ........... 0.015 0.005
106-46-7....................... Dichlorobenzene, 1,4-.......... 3.01 0.056 ............ 0.00004 63.9 ............ 0.0001 0.0108 ............ 0.00004
91-94-1........................ Dichlorobenzidine, 3,3 \1\-.... 0.0037 0.0042 ............ 0.0024 0.0524 ............ 0.116 0.00072 ............ 0.0024
75-71-8........................ Dichlorodifluoromethane........ 14.7 35.7 ............ 0.0001 8070 ............ 0.0052 11.9 ............ 0.0001
75-34-3........................ Dichloroethane, 1,1-........... 37.4 0.00016 ............ 0.00004 24.2 ............ 0.0002 0.00006 ............ 0.00004
107-06-2....................... Dichloroethane, 1,2-........... 0.00698 0.00016 ............ 0.00006 6.1 ............ 0.0001 0.00006 ............ 0.00006
75-35-4........................ Dichloroethylene, 1,1-......... 0.00345 0.00059 ............ 0.00012 2.55 ............ 0.0014 0.00018 ............ 0.00012
156-59-2....................... Dichloroethylene, cis-1,2-..... 30000 1.68 ............ 0.00012 5400 ............ 0.02 0.64 ............ 0.00012
156-60-5....................... Dichloroethylene, trans-1,2-... 44200 2.94 ............ 0.00006 13800 ............ 0.0006 1.12 ............ 0.00006
111-91-1....................... Dichloromethoxy ethane......... .......... ........... 0.023 0.01 .......... 30.85 0.7 ........... 0.015 0.01
98-87-3........................ Dichloromethylbenzene (benzal .......... ........... 0.023 0.005 .......... 30.85 0.3 ........... 0.015 0.005
chloride).
120-83-2....................... Dichlorophenol, 2,4-........... 6.94 0.62 ............ 0.00041 769 ............ 0.0788 0.18 ............ 0.00041
87-65-0........................ Dichlorophenol, 2,6-........... .......... ........... 0.023 0.01 .......... 30.85 0.7 ........... 0.015 0.01
94-75-7........................ Dichlorophenoxyacetic acid, 2,4- 58.5 1.56 ............ 0.00029 3140 ............ 0.00011 0.6 ............ 0.00029
(2,4-D).
78-87-5........................ Dichloropropane, 1,2-.......... 0.303 0.023 ............ 0.00004 16.9 ............ 0.0001 0.0023 ............ 0.00004
542-75-6....................... Dichloropropene, 1,3-.......... 0.00476 0.0028 ............ 0.0009 32.4 ............ 0.0003 0.00085 ............ 0.0009
10061-01-5..................... Dichloropropene, cis-1,3-...... 0.00485 90000 ............ 0.00069 2.64 ............ 0.0003 1150 ............ 0.00069
10061-02-6..................... Dichloropropene, trans-1,3-.... 0.0049 90000 ............ 0.00094 2.67 ............ 0.0003 1150 ............ 0.00094
60-57-1........................ Dieldrin....................... 0.000059 682 ............ 0.000044 0.00176 ............ 0.0006 0.54 ............ 0.000044
1464-53-5...................... Diepoxybutane, 1,2,3,4- (2,2\1\- .......... ........... 14.7 0.005 .......... 6900 0.005 ........... 10.5 0.005
bioxirane).
84-66-2........................ Diethyl phthalate.............. 3560 186 ............ 0.00025 4490 ............ 0.022 54 ............ 0.00025
311-45-5....................... Diethyl-p-nitrophenyl phosphate .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
56-53-1........................ Diethylstibestrol.............. 7.720E-07 4.290E-07 ............ 0.0078 2.470E-11 ............ 1 6.500E-08 ............ 0.0078
94-58-6........................ Dihydrosafrole................. .......... ........... 14.7 0.05 .......... 6900 3 ........... 10.5 0.05
60-51-5........................ Dimethoate..................... 38.1 29.4 ............ 0.00029 1.6 ............ 0.0691 0.77 ............ 0.00029
131-11-3....................... Dimethyl phthalate............. 200000 78 ............ 0.00064 3 ............ 0.013 30 ............ 0.00064
77-78-1........................ Dimethyl sulfate............... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
[[Page 66429]]
60-11-7........................ Dimethylaminoazobenzene, p-.... .......... ........... 0.02762 0.01 .......... 3.28 0.7 ........... 0.00884 0.01
119-93-7....................... Dimethylbenzidine, 3,3\1\-..... 0.000625 0.0000702 ............ 0.0033 0.00062 ............ 0.7 0.000018 ............ 0.0033
57-97-6........................ Dimethylbenz(a)anthracene, 7,12- 3.820E-06 0.00464 ............ 0.00037 0.00263 ............ 0.039 2.760E-06 ............ 0.00037
.
79-44-7........................ Dimethylcarbamoyl chloride..... .......... ........... 0.081 .......... .......... 142 .......... ........... 0.0317 ..........
122-09-8....................... Dimethylphenethylamine, alpha, .......... ........... 0.159 0.05 .......... 19.955 3 ........... 0.105 0.05
alpha-.
105-67-9....................... Dimethylphenol, 2,4-........... 151 3.78 ............ 0.00047 11300 ............ 0.052 1.19 ............ 0.00047
119-90-4....................... Dimethyoxybenzidine, 3,3\1\-... 1.78 0.0336 ............ 0.0077 0.236 ............ 7 0.0102 ............ 0.0077
84-74-2........................ Di-n-butyl phthalate........... 883 227 ............ 0.00033 90000 ............ 0.249 25.2 ............ 0.00033
99-65-0........................ Dinitrobenzene, l,3-........... 1.28 0.0168 ............ 0.00011 5.54 ............ 0.25 0.0064 ............ 0.00011
100-25-4....................... Dinitrobenzene, l,4-........... .......... ........... 0.0252 0.04 .......... 2.991 3 ........... 0.0083 0.04
534-52-1....................... Dinitro-o-cresol, 4,6-......... .......... ........... 0.0252 0.05 .......... 2.991 3 ........... 0.0083 0.05
51-28-5........................ Dinitrophenol, 2,4-............ 50.2 0.273 ............ 0.00042 56.1 ............ 0.03 0.105 ............ 0.00042
121-14-2....................... Dinitrotoluene, 2,4-........... 10.7 0.294 ............ 0.00002 213 ............ 0.26 0.112 ............ 0.00002
606-20-2....................... Dinitrotoluene, 2,6-........... 12.9 0.168 ............ 0.00031 86.3 ............ 0.25 0.064 ............ 0.00031
117-84-0....................... Di-n-octyl phthalate........... 0.002 1260 ............ 0.000042 4480 ............ 0.139 0.1 ............ 0.000042
123-91-1....................... Dioxane, 1,4-.................. 558 0.0424 ............ 0.012 13.2 ............ 0.0005 0.0136 ............ 0.012
122-39-4....................... Diphenylamine.................. 29 14.7 ............ 0.00151 11800 ............ 0.041 2.6 ............ 0.00151
122-66-7....................... Diphenylhydrazine, 1,2-........ .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
298-04-4....................... Disulfoton..................... 0.0131 458 ............ 0.00007 42.6 ............ 0.0035 13 ............ 0.00007
541-53-7....................... Dithiobiuret................... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
115-29-7....................... Endosulfan..................... 6.62 6 ............ 0.00004 73.1 ............ 0.0005 0.94 ............ 0.00004
959-98-8....................... Endosulfan I................... .......... ........... 0.0069415 0.0003 .......... 0.194 0.009 ........... 0.48 0.0003
332-13-65-9.................... Endosulfan II.................. .......... ........... 0.0069415 0.0004 .......... 0.194 0.003 ........... 0.48 0.0004
1031-07-8...................... Endosulfan sulfate............. .......... ........... 0.0069415 0.0004 .......... 0.194 0.04 ........... 0.48 0.0004
145-73-3....................... Endothall...................... .......... ........... 0.0069415 0.1 .......... 0.194 .......... ........... 0.48 0.1
72-20-8........................ Endrin......................... 0.0729 6550 ............ 0.00039 026 ............ 0.0036 32 ............ 0.00039
7421-93-4...................... Endrin aldehyde................ .......... ........... 0.0069415 0.0005 .......... 0.194 0.02 ........... 0.48 0.0005
53494-70-5..................... Endrin ketone.................. .......... ........... 0.0069415 0.0005 .......... 0.194 0.03 ........... 0.48 0.0005
106-89-8....................... Epichlorohydrin................ 0.335 414000 ............ 0.06519 44 ............ 0.0714 5400 ............ 0.06519
51-43-4........................ Epinephrine.................... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
110-80-5....................... Ethoxyethanol, 2-.............. 14.7 39 ............ 1.16 6900 ............ 2.03 15 ............ 1.16
141-78-6....................... Ethyl acetate.................. .......... 390 ............ 0.009 272000 ............ 0.18 114 ............ 0.0009
51-79-6........................ Ethyl carbamate................ .......... ........... 14.7 0.05 .......... 6900 3 ........... 10.5 0.05
107-12-0....................... Ethyl cyanide (propionitrile).. .......... ........... 0.159 0.1 .......... 19.955 0.1 ........... 0.105 0.1
60-29-7........................ Ethyl ether.................... .......... 27.3 ............ 0.00153 41200 ............ 0.00319 10.5 ............ 0.00153
97-63-2........................ Ethyl methacrylate............. 25500 24 ............ 0.00345 3420 ............ 0.0011 6.6 ............ 0.00345
62-50-0........................ Ethyl methanesulfonate......... 0.0055 930000 ............ 0.00106 00133 ............ 0.018 11700 ............ 0.00106
100-41-4....................... Ethylbenzene................... 74.5 39 ............ 0.00006 550000 ............ 0.0002 8.1 ............ 0.00006
106-93-4....................... Ethylene Dibromide............. 0.000928 0.00036 ............ 0.00006 0.00745 ............ 0.0001 0.000015 ............ 0.00006
75-21-8........................ Ethylene oxide................. .......... ........... 14.7 0.001 .......... 6900 0.07 ........... 10.5 0.001
96-45-7........................ Ethylene thiourea.............. 17.7 0.00053 ............ .......... 0.51 ............ .......... 0.00017 ............ ..........
151-56-4....................... Ethyleneimine (aziridine)...... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
52-56-4........................ Famphur........................ .......... ........... 0.0069415 0.02 .......... 0.194 1 ........... 0.48 0.02
640-19-7....................... Fluoracetamide, 2-............. .......... ........... 0.023 .......... .......... 30.85 .......... ........... 0.015 ..........
62-74-8........................ Flouracetic acid, sodium salt.. .......... ........... 0.0069415 .......... .......... 0.194 .......... ........... 0.48 ..........
206-44-0....................... Fluoranthene................... 1580 27.5 ............ 0.00021 5970 ............ 0.084 1.74 ............ 0.00021
86-73-7........................ Fluorene....................... 1310 22.4 ............ 0.00021 89800 ............ 0.08 3.4 ............ 0.00021
16984-48-8..................... Fluoride....................... .......... ........... 0 0.05 .......... 0 .......... ........... 0 0.05
50-00-0........................ Formaldehyde................... 0.0158 27.3 ............ 0.0232 48.8 ............ 4 10.5 ............ 0.0232
64-18-6........................ Formic Acid.................... .......... 273 ............ 0.2 301000 ............ 10 105 ............ 0.2
765-34-4....................... Glycidylaldehyde............... .......... 7.8 ............ .......... 1210 ............ .......... 6.2 ............
319-86-8....................... HCH, delta-.................... .......... ........... 0.0069415 0.0002 .......... 0.194 0.0006 ........... 0.48 0.0002
76-44-8........................ Heptachlor..................... 0.0000237 ........... ............ 0.00004 7.79 ............ 0.0008 ........... ............ 0.00004
1024-57-3...................... Heptachlor epoxide............. 0.000528 783 ............ 0.000032 0.0264 ............ 0.0006 0.45 ............ 0.000032
87-68-3........................ Hexachloro-1,3-butadiene....... 0.00788 0.0806 ............ 0.0001 36.4 ............ 0.046 0.00691 ............ 0.0001
118-74-1....................... Hexachlorobenzene.............. 0.000424 0.0226 ............ 0.00161 0.0116 ............ 0.0723 0.000113 ............ 0.00161
319-84-6....................... Hexachlorocyclohexane, alpha- 0.000142 21 ............ 0.000035 0.0333 ............ 0.0008 0.11 ............ 0.000035
(alpha-BHC).
319-85-7....................... Hexachlorocyclohexane, beta- 0.000445 0.0013 ............ 0.000023 0.12 ............ 0.0006 0.00021 ............ 0.000023
(beta-BHC).
58-89-9........................ Hexachlorocyclohexane, gamma- 0.000783 119 ............ 0.000025 0.102 ............ 0.002 0.693 ............ 0.000025
(Lindane).
77-47-4........................ Hexachlorocyclopentadiene...... 0.00521 ........... ............ 0.00018 1450 ............ 0.092 ........... ............ 0.00018
67-72-1........................ Hexachloroethane............... 0.049 0.212 ............ 1.600E-06 80.6 ............ 0.0206 0.033 ............ 1.600E-06
70-30-4........................ Hexachlorophene................ 5.150E-06 0.0521 ............ 0.207 0.0000241 ............ 1.87 0.00136 ............ 0.207
1888-71-7...................... Hexachloropropene.............. .......... ........... 0.081 0.01 .......... 142 0.7 ........... 0.0317 0.01
757-58-4....................... Hexaethyl tetraphosphate....... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
591-78-6....................... Hexanone, 2-................... .......... ........... 7.8 0.005 .......... 1210 0.005 ........... 6.2 0.005
302-01-2....................... Hydrazine...................... .......... ........... 0.159 .......... .......... 19.955 0.3 ........... 0.105 ..........
193-39-5....................... Indeno (1,2,3-cd) pyrene....... 0.00285 0.0165 ............ 0.000043 3.9 ............ 0.0748 0.0000241 ............ 0.000043
[[Page 66430]]
74-88-4........................ Iodomethane.................... .......... ........... 0.023 0.005 .......... 30.85 0.005 ........... 0.015 0.005
78-83-1........................ Isobutyl alcohol............... 180000 39 ............ 0.011 55200 ............ 0.0035 15 ............ 0.011
465-73-6....................... Isodrin........................ .......... ........... 0.0069415 0.02 .......... 0.194 1 ........... 0.48 0.02
78-59-1........................ Isophorone..................... 78.6 0.531 ............ 0.01 743 ............ 0.0719 0.162 ............ 0.01
120-58-1....................... Isosafrole..................... .......... ........... 14.7 0.01 .......... 6900 0.7 ........... 10.5 0.01
143-50-0....................... Kepone......................... 0.0000264 0.00022 ............ 0.016 0.000277 ............ 0.097 0.000032 ............ 0.016
303-43-4....................... Lasiocarpine................... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
7439-92-1...................... Lead........................... 907000 30 ............ 0.01 568 ............ 2 11.6 ............ 0.01
108-31-6....................... Maleic anhydride............... .......... ........... 14.7 .......... .......... 6900 0.07 ........... 10.5 ..........
123-33-1....................... Maleic hydrazide............... .......... ........... 0.159 0.05 .......... 19.955 3 ........... 0.105 0.05
109-77-3....................... Malononitrile.................. .......... ........... 0.159 0.1 .......... 19.955 0.5 ........... 0.105 0.1
148-82-3....................... Melphalan...................... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
7439-97-6...................... Mercury........................ 125 0.296 ............ 0.00009 0.598 ............ 0.1 0.138 ............ 0.00009
126-98-7....................... Methacrylonitrile.............. 0.0708 0.0156 ............ 0.009 8.91 ............ 0.0005 0.006 ............ 0.009
74-93-1........................ Methanethiol................... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
67-56-1........................ Methanol....................... .......... 78 ............ 0.021 138000 ............ 0.46 30 ............ 0.021
91-80-5........................ Methapyrilene.................. .......... ........... 0.159 0.1 .......... 19.955 7 ........... 0.105 0.1
16752-77-5..................... Methomyl....................... .......... ........... 0.0069415 0.05 .......... 0.194 3 ........... 0.48 0.05
72-43-5........................ Methoxychlor................... 6.73 ........... ............ 0.000086 19.4 ............ 0.0057 ........... ............ 0.000086
74-83-9........................ Methyl bromide (Bromomethane).. 0.37 3.12 ............ 0.00011 504 ............ 0.02 0.92 ............ 0.00011
74-87-3........................ Methyl chloride (Chloromethane) 0.0959 ........... ............ 0.00013 90.8 ............ 0.02 ........... ............ 0.00013
78-93-3........................ Methyl ethyle ketone........... 141 78 ............ 0.01 112000 ............ 0.00834 30 ............ 0.01
1338-23-4...................... Mehtyl ethyl ketone peroxide... .......... ........... 7.8 .......... .......... 1210 .......... ........... 6.2 ..........
60-34-4........................ Mehty hydrazine................ .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
108-10-1....................... Methyl isobutyl ketone......... 10.3 7.8 ............ 0.00083 17000 ............ 0.00315 3 ............ 0.00083
80-62-6........................ Methyl methacrylate............ 69900 28.2 ............ 0.005 39500 ............ 0.0027 8.1 ............ 0.005
66-27-3........................ Methyl methanesulfonate........ .......... ........... 0.11775 0.01 .......... 1.66 0.7 ........... 6.4 0.01
91-57-6........................ Methyl naphthalene, 2-......... .......... ........... 0.00285 0.01 .......... 3.9 0.7 ........... 0.0000661 0.01
298-00-0....................... Methyl paratyhion.............. 0.662 78 ............ 0.01 1.43 ............ 0.0691 23.4 ............ 0.01
75-55-8........................ Methylaziridine, 2-............ .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
56-49-5........................ Methylcholanthrene, 3-......... 9.880E-06 0.0117 ............ 0.01 0.000128 ............ 0.046 1.410E-06 ............ 0.01
74-95-3........................ Methylene bromide.............. 11700 2.32 ............ 0.00024 8400 ............ 0.0001 0.19 ............ 0.00024
75-09-2........................ Methylene chloride............. 0.376 0.039 ............ 0.00026 306 ............ 0.02 0.015 ............ 0.00026
101-14-4....................... Methylenebis, 4,4'-(2- .......... ........... 0.02762 .......... .......... 3.28 .......... ........... 0.00884 ..........
chloroaniline).
70-25-7........................ Methyl-nitro-nitrosoguanidine .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
(MNNG).
56-04-2........................ Methylthiouracil............... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
50-07-7........................ Mitomycin C.................... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
7439-98-7...................... Molybdenum..................... 121000 1.83 ............ 0.001 114 ............ 0.3 1.83 ............ 0.001
91-20-3........................ Naphthalene.................... 385 14 ............ 0.0018 120000 ............ 0.0665 2.7 ............ 0.0018
130-15-4....................... Naphthoquinone, 1,4-........... .......... ........... 14.7 0.01 .......... 6900 0.7 ........... 10.5 0.01
86-88-4........................ Naphthyl-2-thiourea, 1-........ .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
134-32-7....................... Naphthylamine, 1-.............. .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
91-59-8........................ Naphthylamine, 2-.............. .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
7440-02-0...................... Nickel......................... 5040 10.5 ............ 0.005 106 ............ 1 4.89 ............ 0.005
54-11-5........................ Nicotine and salts............. .......... ........... 0.159 0.02 .......... 19.955 1 ........... 0.105 0.02
88-74-4........................ Nitroaniline, 2-............... .......... ........... 0.02762 0.05 .......... 3.28 3 ........... 0.00884 0.05
99-09-2........................ Nitroaniline, 3-............... .......... ........... 0.02762 0.05 .......... 3.28 3 ........... 0.00884 0.05
100-01-6....................... Nitroaniline, 4-............... .......... ........... 0.02762 0.02 .......... 3.28 1 ........... 0.00884 0.02
99-95-3........................ Nitrobenzene................... 0.345 0.084 ............ 0.0064 44.8 ............ 0.0544 0.032 ............ 0.0064
55-86-7........................ Nitrogen mustard............... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
51-75-2........................ Nitrogen mustard hydrochloride .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
salt.
126-85-2....................... Nitrogen mustard N-Oxide....... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
302-70-5....................... Nitrogen mustard N-Oxide, HCI .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
salt.
55-63-0........................ Nitroglycerine................. .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
99-55-8........................ Nitro-o-toluidine, 5-.......... .......... ........... 0.02762 0.01 .......... 3.28 0.7 ........... 0.00884 0.01
88-75-5........................ Nitrophenol, 2-................ .......... ........... 0.0252 0.01 .......... 2.991 0.7 ........... 0.0083 0.01
100-02-7....................... Nitrophenol, 4-................ .......... ........... 0.0252 0.05 .......... 2.991 3 ........... 0.0083 0.05
79-46-9........................ Nitropropane, 2-............... 0.00019 ........... ............ 0.00577 0.128 ............ 0.0022 ........... ............ 0.00577
56-57-5........................ Nitroquinoline-1-oxide, 4-..... .......... ........... 0.159 0.04 .......... 19.955 3 ........... 0.105 0.04
55-18-5........................ Nitrosodiethylamine............ 0.0000406 3.180E-06 ............ 0.002 0.00064 ............ 1 1.020E-06 ............ 0.002
62-75-9........................ Nitrosodimethylamine........... 0.000268 0.0000106 ............ 0.0006 0.00245 ............ 0.074 3.400E-06 ............ 0.0006
924-16-3....................... Nitrosodi-n-butylamine......... 0.000279 0.000122 ............ 0.06 0.094 ............ 0.03 0.000036 ............ 0.06
10595-95-6..................... Nitrosomethylethylamine........ 0.129 0.0000212 ............ 0.028 0.00244 ............ 0.016 6.800E-06 ............ 0.028
1116-54-7...................... M-Nitrosodiethanolamine........ .......... ........... 0.0000371 0.01 .......... 0.012875 0.7 ........... 0.0000119 0.01
621-64-7....................... N-Nitrosodi-n-propylamine...... 0.0644 0.000053 ............ 0.026 0.0233 ............ 0.0144 0.000017 ............ 0.026
86-30-6........................ N-Nitrosodiphenylamine......... 7.54 0.2 ............ 0.05 1270 ............ 0.0846 0.046 ............ 0.05
4549-40-0...................... N-Nitrosomethyl vinyl amine.... .......... ........... 0.0000371 .......... .......... 0.012875 .......... ........... 0.0000119 ..........
59-89-2........................ N-Nitrosomorpholine............ .......... ........... 0.159 0.05 .......... 19.955 3 ........... 0.105 0.05
759-73-9....................... N-Nitroso-N-ethylurea.......... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
684-93-5....................... N-Nitroso-N-methylurea......... .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
[[Page 66431]]
615-53-2....................... N-Nitroso-N-methylurethane..... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
16543-55-8..................... N-Nitrosonomicotine............ .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
100-75-4....................... N-Nitrosopiperidine............ 0.0106 0.0000106 ............ 0.00135 0.00247 ............ 0.033 3.400E-06 ............ 0.00135
930-55-2....................... N-Nitrosopyrrolidine........... 0.101 0.000212 ............ 0.0047 0.0534 ............ 0.042 0.000068 ............ 0.0047
13256-22-9..................... N-Nitrososarcosine............. .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
103-85-5....................... N-Phenylthiourea............... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
1615-80-1...................... N,N-Diethylihydrazine.......... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
152-16-9....................... Octamethyl- pyro- phosphoramide 7310 0.273 ............ 0.0053 31 ............ 0.146 0.105 ............ 0.0053
20816-12-0..................... Osmium tetroxide............... .......... ........... 1.24 3 .......... 8.72 200 ........... 0.4165 3
297-97-2....................... O,O-Diethyl O-pyrazinyl .......... ........... 0.11775 0.02 .......... 1.66 1 ........... 6.4 0.02
phosphorothioate.
126-68-1....................... O,O,O-Triethyl phosphorothioate .......... ........... 0.11775 0.05 .......... 1.66 3 ........... 6.4 0.05
123-63-7....................... Paraldehyde.................... .......... ........... 7.8 1 .......... 1210 70 ........... 6.2 1
56-38-2........................ Parathion...................... 2.63 440000 ............ 0.0005 0.128 ............ 0.025 11600 ............ 0.0005
608-93-5....................... Pentachlorobenzene............. 7.86 5.15 ............ 0.000038 205 ............ 0.02 0.0543 ............ 0.000038
76-01-7........................ Pentachloroethane.............. .......... ........... 0.023 0.005 .......... 30.85 0.01 ........... 0.015 0.005
82-68-8........................ Pentachloronitrobenzene (PCNB). 13.9 0.081 ............ 0.02 11.4 ............ 0.052 0.0054 ............ 0.02
87-86-5........................ Pentachlorophenol.............. 0.301 0.00204 ............ 0.00008 2.92 ............ 0.1222 0.00041 ............ 0.00008
62-44-2........................ Phenacetin..................... .......... ........... 14.7 0.02 .......... 6900 1 ........... 10.5 0.02
85-01-8........................ Phenanthrene................... .......... ........... 0.00285 0.006 .......... 3.9 0.7 ........... 0.0000661 0.006
108-95-2....................... Phenol......................... 19300 84 ............ 0.00028 163000 ............ 0.2185 32 ............ 0.00028
62-38-4........................ Phenyl mercuric acetate........ 0.506 0.0117 ............ .......... 0.00932 ............ .......... 0.0045 ............ ..........
25265-76-3..................... Phenylenediamines (N.O.S.)..... .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
108-45-2....................... Phenylenediamine, m-........... 5440 0.78 ............ 0.0174 784 ............ 0.7 0.3 ............ 0.0174
106-50-3....................... Phenylenediamine, p-........... .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
298-02-2....................... Phorate........................ 0.106 ........... ............ 0.00004 157 ............ 0.002 ........... ............ 0.00004
298-06-6....................... Phosphorodithioic acid, o-o- .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
diethyl ester.
3288-58-2...................... Phosphorodithioic acid, o-o- .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
diethyl-s-methyl.
2953-29-9...................... Phosphorodithioic acid, .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
trimethyl ester.
85-44-9........................ Phthalic anhydride............. .......... ........... 132 .......... .......... 2352.5 7 ........... 27.6 ..........
109-06-8....................... Picoline, 2-................... .......... ........... 0.159 0.001 .......... 19.955 0.07 ........... 0.105 0.001
1336-36-3...................... Polychlorinated biphenyls...... 0.000286 0.00614 ............ 0.0005 0.00596 ............ 0.04 4.810E-06 ............ 0.0005
23950-58-5..................... Pronamide...................... 80.3 21.3 ............ 0.00145 438 ............ 0.097 5.7 ............ 0.00145
1120-71-4...................... Propane sultone, 1,3-.......... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
107-10-8....................... Propylamine, n-................ .......... ........... 0.159 0.005 .......... 19.955 0.005 ........... 0.105 0.005
51-52-5........................ Propylthiouracil............... .......... ........... 0.11775 0.1 .......... 1.66 7 ........... 6.4 0.1
107-19-7....................... Propyn-1-ol, 2-................ .......... ........... 39 0.01 .......... 36700 0.05 ........... 15 0.01
129-00-0....................... Pyrene......................... 3040 54.1 ............ 0.00027 15800 ............ 0.0726 1.69 ............ 0.00027
110-86-1....................... Pyridine....................... 0.522 0.156 ............ 0.011 814 ............ 0.2 0.06 ............ 0.011
50-55-5........................ Reserpine...................... .......... ........... 0.159 0.05 .......... 19.955 3 ........... 0.105 0.05
108-46-3....................... Resorcinol..................... .......... ........... 0.0069415 0.1 .......... 0.194 7 ........... 0.48 0.1
81-07-2........................ Saccharin and salts............ .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
94-59-7........................ Safrole........................ 0.0829 0.0035 ............ 0.0021 10.5 ............ 0.015 0.00095 ............ 0.0021
7782-49-2...................... Selenium....................... 822 0.927 ............ 0.0006 1.94 ............ 5 0.357 ............ 0.0006
7440-22-4...................... Silver......................... 199 ........... ............ 0.0005 0.134 ............ 0.3 ........... ............ 0.0005
18883-66-4..................... Streptozotocin................. .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
57-24-9........................ Strychnine..................... 3.34 0.045 ............ 0.0084 0.0041 ............ 3 0.016 ............ 0.0084
100-42-5....................... Styrene........................ 75.7 63.7 ............ 0.00004 629000 ............ 0.004 15.4 ............ 0.00004
18496-25-8..................... Sulfide........................ .......... ........... 0 2 .......... 0 2 ........... 0 2
1746-01-6...................... TCDD, 2,3,7,8-................. 1.050E-09 1.880E-07 ............ 1.000E-08 7.980E-06 ............ 1.000E-06 1.780E-10 ............ 1.000E-08
95-94-3........................ Tetrachlorobenzene, 1,2,4,5-... 14.8 0.234 ............ 0.00141 168 ............ 0.034 0.0317 ............ 0.00141
630-20-6....................... Tetrachloroethane, 1,1,1,2-.... 0.0241 0.075 ............ 0.00005 133 ............ 0.0001 0.0078 ............ 0.00005
79-34-5........................ Tetrachloroethane, 1,1,2,2-.... 0.0037 0.024 ............ 0.0002 29.3 ............ 0.0002 0.0077 ............ 0.0002
127-18-4....................... Tetrachloroethylene............ 15600 2.04 ............ 0.00014 13300 ............ 0.0007 0.68 ............ 0.00014
58-90-2........................ Tetrachlorophenol, 2,3,4,6-.... 2720 1.89 ............ 0.00062 6150 ............ 0.04 0.58 ............ 0.00062
107-49-3....................... Tetraethyl pyrophosphate....... .......... ........... 14.7 .......... .......... 6900 3 ........... 10.5 ..........
3689-24-5...................... Tetraethyldithiopyrophosphate.. 0.23 ........... ............ 0.000058 2.81 ............ 0.0039 ........... ............ 0.000058
7440-28-0...................... Thallium (I)................... 646 0.05 ............ 0.0007 5.12 ............ 3 0.0192 ............ 0.0007
62-55-5........................ Thioacetamide.................. .......... ........... 0.159 1 .......... 19.955 .......... ........... 0.105 1
39196-18-4..................... Thiofanox...................... .......... ........... 0.11775 0.05 .......... 1.66 3 ........... 6.4 0.05
108-98-5....................... Thiophenol..................... .......... ........... 0.11775 0.02 .......... 1.66 1 ........... 6.4 0.02
79-19-6........................ Thiosemicarbazide.............. .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
62-56-6........................ Thiourea....................... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
137-26-8....................... Thiram......................... .......... ........... 0.0069415 0.05 .......... 0.194 3 ........... 0.48 0.05
7440-31-5...................... Tin............................ .......... ........... 1.24 8 .......... 8.72 500 ........... 0.4165 8
108-88-3....................... Toluene........................ 29.8 41.3 ............ 0.00011 176000 ............ 0.0002 12.6 ............ 0.00011
584-84-9....................... Toluene diisocyanate........... .......... ........... 0.159 .......... .......... 19,955 7 ........... 0.105 ..........
95-80-7........................ Toluenediamine, 2,4-........... 0.211 0.000159 ............ 0.0134 0.0101 ............ 1 0.000051 ............ 0.0134
823-40-5....................... Toluenediamine, 2,6-........... .......... ........... 0.159 0.02 .......... 19.955 1 ........... 0.105 0.02
[[Page 66432]]
496-72-0....................... Toluenediamine, 3,4-........... .......... ........... 0.159 0.02 .......... 19.955 1 ........... 0.105 0.02
636-21-5....................... Toluidine hydrochloride, o-.... .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
95-53-4........................ Toluidine, o-.................. 0.441 0.00224 ............ 0.0121 2.35 ............ 0.029 0.00068 ............ 0.0121
106-49-0....................... Toluidine, p-.................. 0.703 0.00224 ............ 0.0168 0.128 ............ 0.043 0.00068 ............ 0.0168
8001-35-2...................... Toxaphene...................... 0.000364 21.5 ............ 0.00127 0.000176 ............ 0.0295 0.11 ............ 0.00127
76-13-1........................ Trichloro-1,2,2- 2210 11000 ............ 0.00108 .......... ............ 0.00114 2400 ............ 0.00108
trifluoroethane, 1,1,2-.
120-82-1....................... Trichlorobenzene, 1,2,4-....... 0.685 9.31 ............ 0.0002 3450 ............ 0.574 1.3 ............ 0.0002
71-55-6........................ Trichloroethane, 1,1,1-........ 73.9 120 ............ 0.00008 48200 ............ 0.0002 0.0539 ............ 0.00008
79-00-5........................ Trichloroethane, 1,1,2-........ 0.0117 0.007 ............ 0.0001 11.3 ............ 0.004 0.0018 ............ 0.0001
79-01-6........................ Trichloroethylene.............. 138 0.0384 ............ 0.00019 567 ............ 0.0001 0.0128 ............ 0.00019
75-69-4........................ Trichlorofluoromethane......... 51.4 48 ............ 0.00008 25800 ............ 0.001 16 ............ 0.00008
75-70-7........................ Trichloromethanethiol.......... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
95-95-4........................ Trichlorophenol, 2,4,5-........ 38.8 18.1 ............ 0.00049 11500 ............ 0.0672 4.2 ............ 0.00049
88-06-2........................ Trichlorophenol, 2,4,6-........ 0.1 0.0536 ............ 0.0004 124 ............ 0.0785 0.0152 ............ 0.0004
93-76-5........................ Trichlorophenoxyacetic acid, 15.5 1.68 ............ 0.00008 63.2 ............ 0.0063 0.64 ............ 0.00008
2,4,5- (245-T).
93-72-1........................ Trichlorophenoxypropionic acid, 9.72 1.26 ............ 0.00008 6.36 ............ 0.00028 0.48 ............ 0.00008
2,4,5- (Silvex).
96-18-4........................ Trichloropropane, 1,2,3-....... 707 1.1 ............ 0.00032 872 ............ 0.0009 0.34 ............ 0.00032
99-35-4........................ Trinitrobenzene, sym-.......... 3 0.0078 ............ 0.00026 0.442 ............ 0.25 0.003 ............ 0.00026
126-72-7....................... Tris (2,3-dibromopropyl) 0.000237 0.00252 ............ 0.0245 0.357 ............ 0.061 0.000099 ............ 0.0245
phosphate.
52-24-4........................ Tris (1-azridinyl) phosphine .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
sulfide.
72-57-1........................ Trypan blue.................... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
66-75-1........................ Uracil mustard................. .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
7440-62-2...................... Vanadium....................... 15800 9.58 ............ 0.003 250 ............ 1 3.71 ............ 0.003
108-05-4....................... Vinyl acetate.................. .......... ........... 14.7 0.005 .......... 6900 0.005 ........... 10.5 0.005
75-01-4........................ Vinyl chloride................. 0.00199 0.000156 ............ 0.00017 1.23 ............ 0.0017 0.00006 ............ 0.00017
81-81-2........................ Warfarin....................... .......... ........... 0.0069415 0.05 .......... 0.194 3 ........... 0.48 0.05
1330-20-7...................... Xylenes (total)................ 22.4 859 ............ 0.002 172000 ............ 0.0002 147 ............ 0.002
7440-66-6...................... Zinc........................... 23200 99 ............ 0.002 316 ............ 0.3 38.4 ............ 0.002
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Table C-2.--Summary of Constituent-Specific Exit Level Development Using MCL-Based Numbers
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
WW totals (mg/l) NWW totals (mg/kg) NWW leach (mg/l)
-------------------------------------------------------------------------------------------------------------------------------
CAS No. Name Multipath Groundwater Multipath Groundwater
modeled modeled Extrapolated WW EQC modeled Extrapolated NWW EQC modeled Extrapolated WW EQC
exit level exit level exit level exit level exit level Leach level Leach level
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
83-32-9........................ Acenaphthene................... 49.5 31.2 ............ 0.0018 9480 ............ 0.0742 4.9 ............ 0.0018
208-96-8....................... Acenaphthylene................. .......... ........... 0.00285 0.02 .......... 3.9 0.7 ........... 0.00119 0.02
67-64-1........................ Acetone........................ 232000 15.6 ............ 0.2 17400 ............ 0.027 6 ............ 0.2
75-05-8........................ Acetonitrile................... 6.58 0.78 ............ 0.015 923 ............ 0.014 0.3 ............ 0.015
98-86-2........................ Acetophenone................... 5960 16.8 ............ 0.00158 1210 ............ 0.03 6.4 ............ 0.00158
75-36-5........................ Acetyl chloride................ .......... ........... 0.0241 .......... .......... 30.85 .......... ........... 0.0115 ..........
591-08-2....................... Acetyl-2-thiourea, 1-.......... .......... ........... 0.11775 1 .......... 1.66 70 ........... 6.4 1
53-96-3........................ Acetylaminofluorene, 2-........ .......... ........... 0.02762 0.02 .......... 3.28 1 ........... 0.00884 0.02
107-02-8....................... Acrolein....................... 0.00248 ........... ............ 0.013 2.63 ............ 0.075 ........... ............ 0.013
79-06-1........................ Acrylamide..................... 3.67 0.00026 ............ 0.01 0.00436 ............ 0.1 0.000038 ............ 0.01
107-13-1....................... Acrylonitrile.................. 0.00428 0.0011 ............ 0.008 0.961 ............ 0.7 0.00034 ............ 0.008
1402-68-2...................... Aflatoxins..................... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
116-06-3....................... Aldicarb....................... .......... ........... 0.0069415 0.05 .......... 0.194 1 ........... 0.54 0.05
309-00-2....................... Aldrin......................... 5.640E-07 0.00469 ............ 0.000034 0.000444 ............ 0.0006 3.670E-06 ............ 0.000034
107-18-6....................... Allyl alcohol.................. .......... ........... 39 .......... .......... 36700 .......... ........... 15 ..........
107-05-1....................... Allyl chloride................. 0.0742 ........... ............ 0.002 258 ............ 0.002 ........... ............ 0.002
92-67-1........................ Aminobiphenyl, 4-.............. .......... ........... 0.02762 0.02 .......... 3.28 1 ........... 0.00884 0.02
2763-96-4...................... Aminomethyl-3-isoxazolol, 5-... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
504-24-5....................... Aminopyridine, 4-.............. .......... ........... 0.02762 .......... .......... 3.28 .......... ........... 0.00884 ..........
61-82-5........................ Amitrole....................... .......... ........... 0.0069415 .......... .......... 0.194 .......... ........... 0.54 ..........
62-53-3........................ Aniline........................ 0.444 0.053 ............ 0.00023 4.21 ............ 0.0132 0.017 ............ 0.00023
120-12-7....................... Anthracene..................... .......... ........... 0.00285 0.007 .......... 3.9 0.5 ........... 0.00119 0.007
7440-36-0...................... Antimony....................... 8210 0.136 ............ 0.0008 8.72 ............ 2 0.053 ............ 0.0008
140-57-8....................... Aramite........................ .......... ........... 14.7 0.02 .......... 6900 1 ........... 10.5 0.02
7440-38-2...................... Arsenic........................ 40.5 0.384 ............ 0.0005 0.17 ............ 0.3031 0.15 ............ 0.0005
2465-27-2...................... Auramine....................... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
115-02-6....................... Azaserine...................... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
7440-39-3...................... Barium......................... .......... 28 ............ 0.001 2080 ............ 0.2 10.8 ............ 0.001
71-43-2........................ Benzene........................ 0.0209 0.0295 ............ 0.00004 .109 ............ 0.0001 0.009 ............ 0.00004
92-87-5........................ Benzidine...................... 0.00015 2.2400E-06 ............ 0.0025 0.0000298 ............ 0.042 6.800E-07 ............ 0.0025
[[Page 66433]]
106-51-4....................... Benzoquinone, p-............... .......... ........... 14.7 0.01 .......... 6900 0.7 ........... 10.5 0.01
98-07-7........................ Benzotrichloride............... .......... ........... 0.27 .......... .......... 142 0.004 ........... 0.033 ..........
50-32-8........................ Benzo(a)pyrene................. 0.00231 1.88 ............ 0.000023 0.227 ............ 0.0621 0.0036 ............ 0.000023
205-99-2....................... Benzo(b)fluoranthene........... 0.000805 0.0164 ............ 0.000018 3.7 ............ 0.0699 0.0000661 ............ 0.000018
205-82-3....................... Benzo(j)fluoranthene........... .......... ........... 0.00285 0.0002 .......... 3.9 0.01 ........... 0.00119 0.0002
207-08-9....................... Benzo(k)fluoranthene........... .......... ........... 0.00285 0.0002 .......... 3.9 0.7 ........... 0.00119 0.0002
191-24-2....................... Benzo[g,h,i]perylene........... .......... ........... 0.00285 0.0008 .......... 3.9 0.7 ........... 0.00119 0.0008
100-51-6....................... Benzyl alochol................. 22500 39 ............ 0.00074 2740 ............ 0.034 15 ............ 0.00074
100-44-7....................... Benzyl chloride................ 1.13 3.9 ............ 5.000E-06 37.5 ............ 0.00276 15 ............ 5.000E-06
56-55-3........................ Benz(a)anthracene.............. 0.0138 0.000717 ............ 0.000013 0.1 ............ 0.0826 4.300E-06 ............ 0.000013
225-51-4....................... Benz(c)acridine................ .......... ........... 0.00285 0.0005 .......... 3.9 0.03 ........... 0.00119 0.0005
7440-41-7...................... Beryllium...................... 10.1 0.000827 ............ 0.0003 0.0591 ............ 0.1 0.00032 ............ 0.0003
39638-32-9..................... Bis (2-chloroisoproply) ether.. 0.569 0.007 ............ 0.00145 0.944 ............ 0.0586 0.0019 ............ 0.00145
111-44-4....................... Bis(2-chlorethyl)ether......... 0.00141 0.000648 ............ 0.0003 0.115 ............ 0.0651 0.00036 ............ 0.0003
117-81-7....................... Bis(2-ethylhexyl)phthalate..... 0.00044 1260 ............ 0.00027 225 ............ 0.143 0.108 ............ 0.00027
542-88-1....................... Bis(chloromethyl) ether........ .......... ........... 0.0241 .......... .......... 30.85 .......... ........... 0.0115 ..........
598-31-2....................... Bromoacetone................... .......... ........... 0.0241 0.005 .......... 30.85 0.03 ........... 0.0115 0.005
75-27-4........................ Bromodichloromethane........... 33.3 0.00854 ............ 0.00008 19 ............ 0.0012 0.00252 ............ 0.00008
75-25-2........................ Bromoform (Tribromomethane).... 0.178 0.064 ............ 0.0002 173 ............ 0.02 0.018 ............ 0.0002
101-55-3....................... Bromopheynl phenyl ether, 4-... .......... ........... 0.0241 0.01 .......... 30.85 0.7 ........... 0.0115 0.01
357-57-3....................... Brucine........................ .......... ........... 0.159 20 .......... 19.955 .......... ........... 0.105 20
71-36-3........................ Butanol........................ 38600 15.6 ............ 0.014 18200 ............ 0.23 6 ............ 0.014
88-85-7........................ Butyl-4,6-dinitrophenol, 2-sec- 15.4 0.0336 ............ 0.00029 772 ............ 0.042 0.0112 ............ 0.00029
(Dinoseb).
85-68-7........................ Butylbenzylphthalate........... 235 437 ............ 0.000042 87 ............ 0.049 64 ............ 0.000042
7440-43-9...................... Cadmium........................ 1600 0.038 ............ 0.00005 14.1 ............ 0.2 0.015 ............ 0.00005
86-74-8........................ Carbazole...................... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
75-15-0........................ Carbon disulfide............... 0.738 18.4 ............ 0.00121 330 ............ 0.0002 6.4 ............ 0.00121
353-50-4....................... Carbon oxyfluoride............. .......... ........... 0.0241 .......... .......... 30.85 .......... ........... 0.0115 ..........
56-23-5........................ Carbon tetrachloride........... 0.0115 0.1 ............
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
0.00021 8.54 ............ 0.02 0.0115 ............ 0.00021
75-87-6........................ Chloral........................ .......... ........... 0.27 .......... .......... 142 .......... ........... 0.033 ..........
305-03-3....................... Chlorambucil................... .......... ........... 0.27 .......... .......... 142 .......... ........... 0.033 ..........
57-74-9........................ Chlordane...................... 0.000014 24 ............ 0.00004 0.00976 ............ 0.0015 0.036 ............ 0.00004
494-03-1....................... Chlomaphazin................... .......... ........... 0.27 .......... .......... 142 .......... ........... 0.033 ..........
126-99-8....................... Chloro-1,3-butadiene, 2- 0.515 ........... ............ 0.002 288 ............ 0.00099 ........... ............ 0.002
(Chloroprene).
107-20-0....................... Chloroacetaldehyde............. .......... ........... 0.0241 .......... .......... 30.85 .......... ........... 0.0115 ..........
106-47-8....................... Chloroaniline, p-.............. 517 0.42 ............ 0.00066 142 ............ 0.0592 0.16 ............ 0.00066
108-90-7....................... Chlorobenzene.................. 1.5 0.68 ............ 0.00004 2470 ............ 0.0002 0.19 ............ 0.00004
510-15-6....................... Chlorobenzilate................ 0.0731 0.054 ............ 0.00504 6.82 ............ 0.069 0.0057 ............ 0.00504
124-48-1....................... Chlorodibromomethane........... 16.3 0.0066 ............ 0.00007 27.5 ............ 0.00085 0.0018 ............ 0.00007
75-00-3........................ Chloroethane (ethyl chloride).. .......... ........... 0.0241 0.005 .......... 30.85 0.005 ........... 0.0115 0.005
110-75-8....................... Chloroethyl vinyl ether, 2-.... .......... ........... 0.27 .......... .......... 142 0.005 ........... 0.033 ..........
67-66-3........................ Chloroform..................... 0.00759 0.057 ............ 0.00003 6.74 ............ 0.002 0.017 ............ 0.00003
59-50-7........................ Chloro-m-cresol, p-............ .......... ........... 0.27 0.02 .......... 142 1 ........... 0.033 0.02
107-30-2....................... Chloromethyl methyl ether...... .......... ........... 0.0241 .......... .......... 30.85 0.005 ........... 0.0115 ..........
91-58-7........................ Chloronaphthalene, 2-.......... .......... ........... 0.27 0.01 .......... 142 0.7 ........... 0.033 0.01
95-57-8........................ Chlorophenol, 2-............... 134 0.9 ............ 0.00058 104 ............ 0.0758 0.32 ............ 0.00058
7005-72-3...................... Chlorophenyl phenyl ether, 4-.. .......... ........... 0.0241 0.01 .......... 30.85 0.7 ........... 0.0115 0.01
5344-82-1...................... Chlorophenyl thiourea, 1-o-.... .......... ........... 0.0241 .......... .......... 30.85 .......... ........... 0.0115 ..........
542-76-7....................... Chloropropionitrile, 3-........ .......... ........... 0.27 0.1 .......... 142 0.5 ........... 0.033 0.1
7440-47-3...................... Chromium....................... 1300 0.618 ............ 0.002 9.76 ............ 0.003 0.238 ............ 0.002
218-01-9....................... Chrysene....................... 1.32 0.1 ............ 0.00015 34.6 ............ 0.084 0.00119 ............ 0.00015
6358-53-8...................... Citrus red No. 2............... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
7440-48-4...................... Cobalt......................... .......... ........... 0.618 0.5 .......... 8.72 5 ........... 0.194 0.5
7440-50-8...................... Copper......................... 674 2790 ............ 0.0007 5.91 ............ 0.5 1080 ............ 0.0007
108-39-4....................... Cresol, m-..................... 615 8.4 ............ 0.00046 21500 ............ 0.035 3.2 ............ 0.00046
95-48-7........................ Cresol, o-..................... 656 8.4 ............ 0.00055 27400 ............ 0.027 3.2 ............ 0.00055
106-44-5....................... Cresol, p-..................... 63.5 0.84 ............ 0.00046 2550 ............ 0.035 0.32 ............ 0.00046
4170-30-3...................... Crotonaldehyde................. .......... ........... 7.8 0.06 .......... 1210 4 ........... 6.2 0.06
57-12-5........................ Cyanide........................ .......... ........... 0.159 0.2 .......... 19.955 0.2 ........... 0.105 0.2
14901-08-7..................... Cycasin........................ .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
108-94-1....................... Cyclohexanone.................. .......... ........... 7.8 10 .......... 1210 10 ........... 6.2 10
131-89-5....................... Cyclohexyl-4,6-dinitrophenol, 2- .......... ........... 0.0252 0.1 .......... 2.991 7 ........... 0.0083 0.1
.
50-18-0........................ Cyclophosphamide............... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
20830-81-3..................... Daunomycin..................... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
72-54-8........................ DDD............................ 0.000126 913000 ............ 0.00005 0.00648 ............ 0.0012 2800 ............ 0.00005
53-19-0........................ DDD (o,p')..................... .......... ........... 0.0069415 .......... .......... 0.194 .......... ........... 0.54 ..........
72-55-9........................ DDE............................ 9.110E-06 0.228 ............ 0.000058 0.000936 ............ 0.0006 0.0000623 ............ 0.000058
3424-82-6...................... DDE (o,p')..................... .......... ........... 0.0069415 .......... .......... 0.194 .......... ........... 0.54 ..........
[[Page 66434]]
50-29-3........................ DDT............................ 0.0000181 20.4 ............ 0.000081 0.00315 ............ 0.0006 0.0054 ............ 0.000081
789-02-6....................... DDT (o,p')..................... .......... ........... 0.0069415 .......... .......... 0.194 .......... ........... 0.54 ..........
2303-16-4...................... Diallate....................... 0.26 90.1 ............ 0.00063 1.26 ............ 0.023 0.46 ............ 0.00063
132-64-9....................... Dibenzofuran................... .......... ........... 8.4 0.01 .......... 27400 0.7 ........... 1.8 0.01
192-65-4....................... Dibenzo[a,e]pyrene............. .......... ........... 0.00285 0.001 .......... 3.9 0.7 ........... 0.00119 0.001
189-64-0....................... Dibenzo[a,h]pyrene............. .......... ........... 0.00285 0.0002 .......... 3.9 0.01 ........... 0.00119 0.0002
189-55-9....................... Dibenzo[a,i]pyrene............. .......... ........... 0.00285 0.0002 .......... 3.9 0.01 ........... 0.00119 0.0002
194-59-2....................... Dibenzo[c,g]carbazole, 7H-..... .......... ........... 0.00285 0.01 .......... 3.9 0.7 ........... 0.00119 0.01
226-36-8....................... Dibenz(a,h)acridine............ .......... ........... 0.00285 0.0002 .......... 3.9 0.01 ........... 0.00119 0.0002
53-70-3........................ Dibenz(a,h)anthracene.......... 8.440E-06 0.00176 ............ 0.00003 0.000155 ............ 0.084 6.340E-07 ............ 0.00003
224-42-0..... Dibenz[a,j]acridine............ .......... ........... 0.00285 0.001 .......... 3.9 0.7 ........... 0.00119 0.001
96-12-8...... Dibromo-3-chloropropane, 1,2-.. 0.0723 0.0022 ............ 0.00026 0.663 ............ 0.0003 0.00038 ............ 0.00026
864-41-0..... Dichloro-2-butene, 1,4-........ .......... ........... 0.0241 0.005 .......... 30.85 0.005 ........... 0.0115 0.005
110-57-6..... Dichloro-2-butene, trans-1,4-.. .......... ........... 0.0241 0.005 .......... 30.85 0.005 ........... 0.0115 0.005
96-23-1...... Dichloro-2-propanol, 1,3-...... .......... ........... 0.27 0.01 .......... 142 0.05 ........... 0.033 0.01
95-50-1...... Dichlorobenzene, 1,2-.......... 15.4 7.8 ............ 0.00003 50000 ............ 0.0002 1.62 ............ 0.00003
541-73-1..... Dichlorobenzene, 1,3-.......... .......... ........... 0.0241 0.005 .......... 30.85 0.7 ........... 0.0115 0.005
106-46-7..... Dichlorobenzene, 1,4-.......... 3.01 1.12 ............ 0.00004 63.9 ............ 0.0001 0.216 ............ 0.00004
91-94-1...... Dichlorobenzidine, 3,3'-....... 0.0037 0.0042 ............ 0.0024 0.0524 ............ 0.116 0.00072 ............ 0.0024
75-71-8...... Dichlorodiflouromethane........ 14.7 35.7 ............ 0.0001 8070 ............ 0.0052 11.9 ............ 0.0001
75-34-3...... Dichloroethane, 1,1-........... 37.4 0.00016 ............ 0.00004 24.2 ............ 0.0002 0.00006 ............ 0.00004
107-06-2..... Dichloroethane, 1,2-........... 0.00698 0.0475 ............ 0.00006 6.1 ............ 0.0001 0.009 ............ 0.00006
75-35-4...... Dichloroethylene, 1,1-......... 0.00345 0.0413 ............ 0.00012 2.55 ............ 0.0014 0.0216 ............ 0.00012
156-59-2..... Dichloroethylene, cis-1,2-..... 30000 0.294 ............ 000012 5400 ............ 0.02 0.112 ............ 0.00012
156-60-5..... Dichloroethylene, trans-1,2-... 44200 0.42 ............ 0.00006 13800 ............ 0.0006 0.16 ............ 0.00006
111-91-1..... Dichloromethoxyethane.......... .......... ........... 0.0241 0.01 .......... 30.85 0.7 ........... 0.0115 0.01
98-87-3...... Dichloromethylbenezene (benzal .......... ........... 0.0241 0.005 .......... 30.85 0.3 ........... 0.0115 0.005
chloride).
120-83-2..... Dichlorophenol, 2,4-........... 6.94 0.62 ............ 0.00041 769 ............ 0.0788 0.18 ............ 0.00041
87-65-0...... Dichlorophenol, 2,6-........... .......... ........... 0.0241 0.01 .......... 30.85 0.7 ........... 0.0115 0.01
94-75-7...... Dichlorophenoxyacetic acid, 2,4- 58.5 0.273 ............ 0.00029 3140 ............ 0.00011 0.105 ............ 0.00029
(2,4-D).
78-87-5...... Dichloropropane, 1,2-.......... 0.303 0.115 ............ 0.00004 16.9 ............ 0.0001 0.0115 ............ 0.00004
542-75-6..... Dichloropropene, 1,3-.......... 0.00476 0.0028 ............ 0.0009 32.4 ............ 0.0003 0.00085 ............ 0.0009
10061-91-5... Dichloropropene, cis-1,3-...... 0.00485 90000 ............ 0.00069 2.64 ............ 0.0003 1150 ............ 0.00069
10061-02-6... Dichloropropene, trans-1,3-.... 0.0049 90000 ............ 0.00094 2.67 ............ 0.0003 1150 ............ 0.00094
60-57-1...... Dieldrin....................... 0.000059 682 ............ 0.000044 0.00176 ............ 0.0006 0.54 ............ 0.000044
1464-53-5.... Diepoxybutane, 1,2,3,4- (2,2'- .......... ........... 14.7 0.005 .......... 6900 0.005 ........... 10.5 0.005
bioxirane.
84-66-2...... Diethl phthalate............... 3560 186 ............ 0.00025 4490 ............ 0.022 54 ............ 0.00025
311-45-5..... Diethyl-p-nitrophenyl phosphate .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
56-53-1...... Diethylstillbestrol............ 7.710E-07 4.2900E-07 ............ 0.0078 2.470E-11 ............ 1 6.500E-08 ............ 0.0078
94-58-6...... Dihydrosafrole................. .......... ........... 14.7 0.05 .......... 6900 3 ........... 10.5 0.05
60-51-5...... Dimethoate..................... 38.1 29.4 ............ 0.00029 1.6 ............ 0.0691 0.77 ............ 0.00029
131-11-3..... Dimethyl phthalate............. 200000 78 ............ 0.00064 3 ............ 0.013 30 ............ 0.00064
77-78-1...... Dimethyl sulfate............... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 60
60-11-7...... Dimethylaminoazobenzene, p-.... .......... ........... 0.02762 0.01 .......... 3.28 0.7 ........... 0.00884 0.01
119-93-7..... Dimethylbenzidine, 3,3'-....... 0.000625 0.0000702 ............ 0.0033 0.00062 ............ 0.7 0.000018 ............ 0.0033
57-97-6...... Dimethylbenz(a)anthracene, 7,12- 3.820E-06 0.00464 ............ 0.00037 0.00263 ............ 0.039 2.760E-06 ............ 0.00037
.
79-44-7........................ Dimethylcarbamoyl chloride..... .......... ........... 0.27 .......... .......... 142 .......... ........... 0.033 ..........
122-09-8....................... Dimethylphenethylamine, alpha, .......... ........... 0.159 0.05 .......... 19.955 3 ........... 0.105 0.05
alpha-.
105-67-9....................... Dimethylphenol,2,4-............ 151 3.78 ............ 0.00047 11300 ............ 0.052 1.19 ............ 0.00047
119-90-4....................... Dimethyloxybenzidine,3,3'-..... 1.78 0.0336 ............ 0.0077 0.236 ............ 7 0.0102 ............ 0.0077
84-74-2........................ Di-n-butyl phthalate........... 883 900 ............ 0.00033 90000 ............ 0.249 100 ............ 0.00033
99-65-0........................ Dinitrobenzene,1,3-............ 1.28 0.0168 ............ 0.00011 5.54 ............ 0.25 0.0064 ............ 0.00011
100-25-4....................... Dinitrobenzene,1,4-............ .......... ........... 0.0252 0.04 .......... 2.991 3 ........... 0.0083 0.04
534-52-1....................... Dinitro-o-cresol,4,6-.......... .......... ........... 0.0252 0.05 .......... 2.991 3 ........... 0.0083 0.05
51-28-5........................ Dinitrophenol,2,4-............. 50.2 0.273 ............ 0.00042 56.1 ............ 0.03 0.105 ............ 0.00042
121-14-2....................... Dinitrotoluene,2,4-............ 10.7 0.294 ............ 0.00002 213 ............ 0.26 0.112 ............ 0.00002
606-20-2....................... Dinitrotoluene,2,6-............ 12.9 0.168 ............ 0.00031 86.3 ............ 0.25 0.064 ............ 0.00031
117-84-0....................... Di-n-octyl phthalate........... 0.002 1260 ............ 0.000042 4480 ............ 0.139 0.1 ............ 0.000042
123-91-1....................... Dioxane,1,4-................... 558 0.0424 ............ 0.012 13.2 ............ 0.0005 0.0136 ............ 0.012
122-39-4....................... Diphenylamine.................. 29 14.7 ............ 0.00151 11800 ............ 0.041 2.6 ............ 0.00151
122-66-7....................... Diphenylhydrazine,1,2-......... .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
298-04-4....................... Disulfoton..................... 0.0131 458 ............ 0.00007 42.6 ............ 0.0035 13 ............ 0.00007
541-53-7....................... Dithiobiuret................... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
115-29-7....................... Endosulfan..................... 6.62 6 ............ 0.00004 73.1 ............ 0.0005 0.94 ............ 0.00004
959-98-8....................... Endosulfan I................... .......... ........... 0.0069415 0.0003 .......... 0.194 0.009 ........... 0.54 0.0003
33213-65-9..................... Endosulfan II.................. .......... ........... 0.0069415 0.0004 .......... 0.194 0.003 ........... 0.54 0.0004
[[Page 66435]]
1031-07-8...................... Endosulfan sulfate............. .......... ........... 0.0069415 0.0004 .......... 0.194 0.04 ........... 0.54 0.0004
145-73-3....................... Endothall...................... .......... ........... 0.0069415 0.1 .......... 0.194 .......... ........... 0.54 0.1
72-20-8........................ Endrin......................... 0.0729 4800 ............ 0.00039 0.26 ............ 0.0036 24 ............ 0.00039
7421-93-4...................... Endrin aldehyde................ .......... ........... 0.0069415 0.0005 .......... 0.194 0.02 ........... 0.54 0.0005
53494-70-5..................... Endrin ketone.................. .......... ........... 0.0069415 0.0005 .......... 0.194 0.03 ........... 0.54 0.0005
106-89-8....................... Epichlorohydrin................ 0.335 414000 ............ 0.06519 44 ............ 0.0714 5400 ............ 0.06519
51-43-4........................ Epinephrine.................... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
110-80-5....................... Ethoxyethanol,2-............... 14.7 39 ............ 1.16 6900 ............ 2.03 15 ............ 1.16
141-78-6....................... Ethyl acetate.................. .......... 390 ............ 0.009 272000 ............ 0.18 114 ............ 0.009
51-79-6........................ Ethyl carbamate................ .......... 390 14.7 0.05 .......... 6900 3 ........... 10.5 0.05
107-12-0....................... Ethyl cyanide (propionitrile).. .......... ........... 0.159 0.1 .......... 19.955 0.1 ........... 0.105 0.1
60-29-7........................ Ethyl ether.................... .......... 27.3 ............ 0.00153 41200 ............ 0.00319 10.5 ............ 0.00153
97-63-2........................ Ethyl methacrylate............. 25500 24 ............ 0.00345 3420 ............ 0.0011 6.6 ............ 0.00345
62-50-0........................ Ethyl methanesulfonate......... 0.0055 930000 ............ 0.00106 0.00133 ............ 0.018 11700 ............ 0.00106
100-41-4....................... Ethylbenzene................... 74.5 8.4 ............ 0.00006 550000 ............ 0.0002 1.75 ............ 0.00006
106-93-4....................... Ethylene Dibromide............. 0.000928 0.018 ............ 0.00006 0.00745 ............ 0.0001 0.00075 ............ 0.00006
75-21-8........................ Ethylene oxide................. .......... ........... 14.7 0.001 .......... 6900 0.07 ........... 10.5 0.001
96-45-7........................ Ethylene thiourea.............. 17.7 0.00053 ............ .......... 0.51 ............ .......... 0.00017 ............ ..........
151-56-4....................... Ethyleneimine (azirindine)..... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
52-85-7........................ Famphur........................ .......... ........... 0.0069415 0.02 .......... 0.194 1 ........... 0.54 0.02
640-19-7....................... Fluoracetamide, 2-............. .......... ........... 0.0241 .......... .......... 30.85 .......... ........... 0.0115 ..........
62-74-8........................ Fluoracetic acid, sodium salt.. .......... ........... 0.0069415 .......... .......... 0.194 .......... ........... 0.54 ..........
206-44-0....................... Fluoranthene................... 1580 27.5 ............ 0.00021 5970 ............ 0.084 1.74 ............ 0.00021
86-73-7........................ Fluorene....................... 1310 22.4 ............ 0.00021 89800 ............ 0.08 3.4 ............ 0.00021
16984-48-8..................... Fluoride....................... .......... ........... 0 0.05 .......... 0 .......... ........... 0 0.05
50-00-0........................ Formaldehyde................... 0.0158 27.3 ............ 0.0232 48.8 ............ 4 10.5 ............ 0.0232
64-18-6........................ Formic Acid.................... .......... 273 ............ 0.2 301000 ............ 10 105 ............ 0.2
765-34-4....................... Glycidylaldehyde............... .......... ........... 7.8 .......... .......... 1210 .......... ........... 6.2 ..........
319-86-8....................... HCH, delta-.................... .......... ........... 0.0069415 0.0002 .......... 0.194 0.0006 ........... 0.54 0.0002
76-44-8........................ Heptachlor..................... 0.0000237 ........... ............ 0.00004 7.79 ............ 0.0008 ........... ............ 0.00004
1024-57-3...................... Heptachlor epoxide............. 0.000528 17400 ............ 0.000032 0.0264 ............ 0.0006 66 ............ 0.000032
87-68-3........................ Hexachloro-1,3-butadiene....... 0.00788 0.0806 ............ 0.0001 36.4 ............ 0.046 0.00691 ............ 0.0001
118-74-1....................... Hexachlorobenzene.............. 0.000424 3.6 ............ 0.00161 0.0116 ............ 0.0723 0.018 ............ 0.00161
319-84-6....................... Hexachlorocyclohexane, alpha- 0.000142 21 ............ 0.000035 0.0333 ............ 0.0008 0.11 ............ 0.000035
(alpha-BHC).
319-85-7....................... Hexachlorocyclohexane, beta- 0.000445 0.0013 ............ 0.000023 0.12 ............ 0.0006 0.00021 ............ 0.000023
(beta-BHC).
58-89-9........................ Hexachlorocyclohexane, gamma- 0.000783 340 ............ 0.000025 0.102 ............ 0.002 1.98 ............ 0.000025
(Lindane).
77-47-4........................ Hexachlorocyclopentadiene...... 0.00521 ........... ............ 0.00018 1450 ............ 0.092 ........... ............ 0.00018
67-72-1........................ Hexachloroethane............... 0.049 0.212 ............ 1.600E-06 80.6 ............ 0.0206 0.033 ............ 1.600E-06
70-30-4........................ Hexachlorophene................ 5.150E-06 0.0521 ............ 0.207 0.0000241 ............ 1.87 0.00136 ............ 0.207
1888-71-7...................... Hexachloropropene.............. .......... ........... 0.27 0.01 .......... 142 0.7 ........... 0.033 0.01
757-58-4....................... Hexaethyl tetraphosphate....... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
591-78-6....................... Hexanone, 2-................... .......... ........... 7.8 0.005 .......... 1210 0.005 ........... 6.2 0.005
302-01-2....................... Hydrazine...................... .......... ........... 0.159 .......... .......... 19.955 0.3 ........... 0.105 ..........
193-39-5....................... Indeno(1,2,3-cd) pyrene........ 0.00285 0.0165 ............ 0.000043 3.9 ............ 0.0748 0.0000241 ............ 0.000043
74-88-4........................ Iodomethane.................... .......... ........... 0.0241 0.005 .......... 30.85 0.005 ........... 0.0115 0.005
78-83-1........................ Isobutyl alcohol............... 180000 39 ............ 0.011 55200 ............ 0.0035 15 ............ 0.011
465-73-6....................... Isodrin........................ .......... ........... 0.0069415 0.02 .......... 0.194 1 ........... 0.54 0.02
78-59-1........................ Isophorone..................... 78.6 0.531 ............ 0.01 743 ............ 0.0719 0.162 ............ 0.01
120-58-1....................... Isosafrole..................... .......... ........... 14.7 0.01 .......... 6900 0.7 ........... 10.5 0.01
143-50-0....................... Kepone......................... 0.0000264 0.00022 ............ 0.016 0.000277 ............ 0.097 0.000032 ............ 0.016
303-43-4....................... Lasiocarpine................... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
7439-92-1...................... Lead........................... 907000 30 ............ 0.01 568 ............ 2 12 ............ 0.01
108-31-6....................... Maleic anhydride............... .......... ........... 14.7 .......... .......... 6900 0.07 ........... 10.5 ..........
123-33-1....................... Maleic hydrazide............... .......... ........... 0.159 0.05 .......... 19.955 3 ........... 0.105 0.05
109-77-3....................... Malononitrile.................. .......... ........... 0.159 0.1 .......... 19.955 0.5 ........... 0.105 0.1
148-82-3....................... Melphalan...................... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
7439-97-6...................... Mercury........................ 125 0.0596 ............ 0.00009 0.598 ............ 0.1 0.023 ............ 0.00009
126-98-7....................... Methacrylonitrile.............. 0.0708 0.1056 ............ 0.009 8.91 ............ 0.0005 0.006 ............ 0.009
74-93-1........................ Methanethiol................... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
67-56-1........................ Methanol....................... .......... 78 ............ 0.021 138000 ............ 0.46 30 ............ 0.021
91-80-5........................ Methapyrilene.................. .......... ........... 0.159 0.1 .......... 19.955 7 ........... 0.105 0.1
16752-77-5..................... Methomyl....................... .......... ........... 0.0069415 0.05 .......... 0.194 3 ........... 0.54 0.05
72-43-5........................ Methoxychlor................... 6.73 ........... ............ 0.000086 19.4 ............ 0.0057 ........... ............ 0.000086
74-83-9........................ Methyl bromide (Bromomethane).. 0.37 3.12 ............ 0.00011 504 ............ 0.02 0.92 ............ 0.00011
74-87-3........................ Methyl chloride (Chloromethane) 0.0959 ........... ............ 0.00013 90.8 ............ 0.02 ........... ............ 0.00013
78-93-3........................ Methyl ethyl ketone............ 141 78 ............ 0.01 112000 ............ 0.00834 30 ............ 0.01
1338-23-4...................... Methyl ethyl ketone peroxide... .......... ........... 7.8 .......... .......... 1210 .......... ........... 6.2 ..........
60-34-4........................ Methyl hydrazine............... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
[[Page 66436]]
108-10-1....................... Methyl isobutyl ketone......... 10.3 7.8 ............ 0.00083 17000 ............ 0.00315 3 ............ 0.00083
80-62-6........................ Methyl methacrylate............ 69900 28.2 ............ 0.005 39500 ............ 0.0027 8.1 ............ 0.005
66-27-3........................ Methyl methanesulfonate........ .......... ........... 0.11775 0.01 .......... 1.66 0.7 ........... 6.4 0.01
91-57-6........................ Methyl naphthalene, 2-......... .......... ........... 0.00285 0.01 .......... 3.9 0.7 ........... 0.00119 0.01
298-00-0....................... Methyl parathion............... 0.662 78 ............ 0.01 1.43 ............ 0.691 23.4 ............ 0.01
75-55-8........................ Methylazinidine, 2-............ .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
56-49-5........................ Methylcholanthrene, 3-......... 9.880E-06 0.0117 ............ 0.01 0.000128 ............ 0.046 1.410E-06 ............ 0.01
74-95-3........................ Methylene bromide.............. 11700 0.029 ............ 0.00024 8400 ............ 0.0001 0.0085 ............ 0.00024
75-09-2........................ Methylene chloride............. 0.376 0.039 ............ 0.00026 306 ............ 0.02 0.09 ............ 0.00026
101-14-4....................... Methylenegbis, 4,4'-(2- .......... ........... 0.02762 .......... .......... 3.28 .......... ........... 0.00884 ..........
chloraoniline).
70-25-7........................ Methyl-nitro-nitrosoguanidine .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
(MNNG).
56-04-2........................ Methylthiouracil............... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
50-07-7........................ Mitomycin C.................... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
7439-98-7...................... Molybdenum..................... 121000 1.83 ............ 0.001 114 ............ 0.3 1.83 ............ 0.001
91-20-3........................ Naphthalene.................... 385 14 ............ 0.0018 120000 ............ 0.0665 2.7 ............ 0.0018
130-15-4....................... Naphthoquinone, 1,4-........... .......... ........... 14.7 0.01 .......... 6900 0.7 ........... 10.5 0.01
86-88-4........................ Naphthyl-2-thiourea, 1-........ .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
134-32-7....................... Naphthylamine, 1-.............. .......... ........... 0.159 0.01 .......... 19.995 0.7 ........... 0.105 0.01
91-59-8........................ Naphthylamine, 2-.............. .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
7440-02-0...................... Nickel......................... 5040 4.38 ............ 0.005 106 ............ 1 2.04 ............ 0.005
54-11-5........................ Nicotine and salts............. .......... ........... 0.159 0.02 .......... 19.955 1 ........... 0.105 0.02
88-74-4........................ Nitroaniline, 2-............... .......... ........... 0.02762 0.05 .......... 3.28 3 ........... 0.00884 0.05
99-09-2........................ Nitroaniline, 3-............... .......... ........... 0.02762 0.05 .......... 3.28 3 ........... 0.00884 0.05
100-01-6....................... Nitroaniline, 4-............... .......... ........... 0.02762 0.02 .......... 3.28 1 ........... 0.00884 0.02
98-95-3........................ Nitrobenzene................... 0.345 0.084 ............ 0.0064 44.8 ............ 0.0544 0.032 ............ 0.0064
55-86-7........................ Nitrogen mustard............... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
51-75-2........................ Nitrogen mustard hydrochloride .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
salt.
126-85-2....................... Nitrogen mustard N-Oxide....... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
302-70-5....................... Nitrogen mustard N-Oxide, HCI .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
salt.
55-63-0........................ Nitroglycerine................. .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
99-55-8........................ Nitro-o-toluidine, 5-.......... .......... ........... 0.02762 0.01 .......... 3.28 0.7 ........... 0.00884 0.01
88-75-5........................ Nitrophenol, 2-................ .......... ........... 0.0252 0.01 .......... 2.991 0.7 ........... 0.0083 0.01
100-02-7....................... Nitrophenol, 4-................ .......... ........... 0.0252 0.05 .......... 2.991 3 ........... 0.0083 0.05
79-46-9........................ Nitropropane, 2-............... 0.00019 ........... ............ 0.00577 0.128 ............ 0.0022 ........... ............ 0.00577
56-57-5........................ Nitroquinoline-1-oxide, 4-..... .......... ........... 0.159 0.04 .......... 19.955 3 ........... 0.105 0.04
55-18-5........................ Nitrosodiethylamine............ 0.0000406 3,1800E-06 ............ 0.002 0.00064 ............ 1 1.020E-06 ............ 0.00262
62-75-9........................ Nitrosodimethylamine........... 0.000268 0.0000106 ............ 0.0006 0.00245 ............ 0.074 3.400E-06 ............ 0.0006
924-16-3....................... Nitrosodi-n-butylamine......... 0.000279 0.000122 ............ 0.06 0.094 ............ 0.03 0.000036 ............ 0.06
10595-95-6..................... Nitrosomethylethylamine........ 0.129 0.000212 ............ 0.028 0.00244 ............ 0.016 6.800E-06 ............ 0.028
1116-54-7...................... N-Nirtrosodiethanolamine....... .......... ........... 0.0000371 0.01 .......... 0.012875 0.7 ........... 0.0000119 0.01
621-64-7....................... N-Nitrosodi-n-propylamine...... 0.0644 0.000053 ............ 0.026 0.0233 ............ 0.0144 0.000017 ............ 0.026
86-30-6........................ N-Nitrosodiphenylamine......... 7.54 0.2 ............ 0.05 1270 ............ 0.0846 0.046 ............ 0.05
4549-40-0...................... N-Nitrosomethyl vinyl amine.... .......... ........... 0.0000371 .......... .......... 0.012875 .......... ........... 0.0000119 ..........
59-89-2........................ N-Nitrosomorpholine............ .......... ........... 0.159 0.05 .......... 19.955 3 ........... 0.105 0.05
759-73-9....................... N-Nitroso-N-ethylurea.......... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
684-93-5....................... N-Nitroso-N-methylurea......... .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
615-53-2....................... N-Nitroso-N-methylurethane..... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
16543-55-8..................... N-Nitrosonornicotine........... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
100-75-4....................... N-Nitrosopiperidine............ 0.0106 0.0000106 ............ 0.00135 0.00247 ............ 0.033 3.400E-06 ............ 0.00135
930-55-2....................... N-Nitrosopyrrolidine........... 0.101 0.000212 ............ 0.0047 0.0534 ............ 0.042 0.000068 ............ 0.0047
13256-22-9..................... N-Nitrososarcosine............. .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
103-85-5....................... N-Phenylthiourea............... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
1615-80-1...................... N,N-Diethylhydrazine........... .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
152-16-9....................... Octamethylpyrophosphoramide.... 7310 0.273 ............ 0.0053 31 ............ 0.146 0.105 ............ 0.0053
20816-12-0..................... Osmium tetroxide............... .......... ........... 0.618 3 .......... 8.72 200 ........... 0.194 3
297-97-2....................... O,O-Diethyl O-pyrazinyl .......... ........... 0.1175 0.02 .......... 1.66 1 ........... 64 002
phosphorothioate.
126-68-1....................... O,O,O-Triethyl phosphorothioate .......... ........... 0.11775 0.05 .......... 1.66 3 ........... 6.4 0.05
123-63-7....................... Paraldehyde.................... .......... ........... 7.8 1 .......... 1210 70 ........... 6.2 1
56-38-2........................ Parathion...................... 2.63 440000 ............ 0.0005 0.128 ............ 0.025 11600 ............ 0.0005
608-93-5....................... Pentachlorobenzene............. 7.86 5.15 ............ 0.000038 205 ............ 0.02 0.0543 ............ 0.000038
76-01-7........................ Pentachloroethane.............. .......... ........... 0.0241 0.005 .......... 30.85 0.01 ........... 0.0115 0.005
82-68-8........................ Pentachloronitrobenzene (PCNB). 13.9 0.27 ............ 0.02 11.4 ............ 0.052 0.018 ............ 0.02
87-86-5........................ Pentachlorophenol.............. 0.301 0.00204 ............ 0.00008 2.92 ............ 0.1222 0.00041 ............ 0.00008
62-44-2........................ Phenacetin..................... .......... ........... 14.7 0.02 .......... 6900 1 ........... 10.5 0.02
85-01-8........................ Phenanthrene................... .......... ........... 0.00285 0.006 .......... 3.9 0.7 ........... 0.00119 0.006
108-95-2....................... Phenol......................... 19300 84 ............ 0.00028 163000 ............ 0.2185 32 ............ 0.00028
62-38-4........................ Phenyl mercuric acetate........ 0.506 0.0117 ............ .......... 0.00932 ............ .......... 0.0045 ............ ..........
[[Page 66437]]
25265-76-3..................... Phenylenediamines (N.O.S.)..... .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
108-45-2....................... Phenylenediamine, m-........... 5440 0.78 ............ 0.0174 784 ............ 0.7 0.3 ............ 0.0174
106-50-3....................... Phenylenediamine, p-........... .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
298-02-2....................... Phorate........................ 0.106 ........... ............ 0.00004 157 ............ 0.002 ........... ............ 0.00004
298-06-6....................... Phosphorodithioic acid, o-o- .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
diethyl ester.
3288-58-2...................... Phosphorodithioic acid, o-o- .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
diethyl-s-methyl.
2953-29-9...................... Phosphorodithioic acid, .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
trimethyl ester.
85-44-9........................ Phthalic anhydride............. .......... ........... 132 .......... .......... 2352.5 7 ........... 42 ..........
109-06-8....................... Picoline, 2-................... .......... ........... 0.159 0.001 .......... 19.955 0.07 ........... 0.105 0.001
1336-36-3...................... Polychlorinated biphenyls...... 0.000286 11.5 ............ 0.0005 0.00596 ............ 0.04 0.009 ............ 0.0005
23950-58-5..................... Pronamide...................... 80.3 21.3 ............ 0.00145 438 ............ 0.097 5.7 ............ 0.00145
1120-71-4...................... Propane sultone, 1,3-.......... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
107-10-8....................... Propylamine, n-................ .......... ........... 0.159 0.005 .......... 19.955 0.005 ........... 0.105 0.005
51-52-5........................ Propylthiouracil............... .......... ........... 0.11775 0.1 .......... 1.66 7 ........... 6.4 0.1
107-19-7....................... Propyn-1-ol, 2-................ .......... ........... 39 0.01 .......... 36700 0.05 ........... 15 0.01
129-00-0....................... Pyrene......................... 3040 54.1 ............ 0.00027 15800 ............ 0.0726 1.69 ............ 0.00027
110-86-1....................... Pyridine....................... 0.522 0.156 ............ 0.011 814 ............ 0.2 0.06 ............ 0.011
50-55-5........................ Reserpine...................... .......... ........... 0.159 0.05 .......... 19.955 3 ........... 0.105 0.05
108-46-3....................... Resorcinol..................... .......... ........... 0.0069415 0.1 .......... 0.194 7 ........... 0.54 0.1
81-07-2........................ Saccharin and salts............ .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
94-59-7........................ Safrole........................ 0.0829 0.0035 ............ 0.0021 10.5 ............ 0.015 0.00095 ............ 0.0021
7782-49-2...................... Selenium....................... 822 0.232 ............ 0.0006 1.94 ............ 5 0.0892 ............ 0.0006
7440-22-4...................... Silver......................... 199 ........... ............ 0.0005 1.134 ............ 0.3 ........... ............ 0.0005
18883-66-4..................... Streptozotocin................. .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
57-24-9........................ Strychnine..................... 3.34 0.045 ............ 0.0084 0.0041 ............ 3 0.016 ............ 0.0084
100-42-5....................... Stryene........................ 75.7 0.91 ............ 0.00004 629000 ............ 0.004 0.22 ............ 0.00004
18496-25-8..................... Sulfide........................ .......... ........... 0 2 .......... 0 2 ........... 0 2
1746-01-6...................... TCDD, 2,3,7,8-................. 1.050E-09 0.00057 ............ 1.000E-08 7.80E-06 ............ 1.000E-06 5.400E-07 ............ 1.000E-08
95-94-3........................ Tetrachlorobenzene, 1,2,4,5-... 14.8 0.234 ............ 0.00141 168 ............ 0.034 0.0317 ............ 0.00141
630-20-6....................... Tetrachloroethane, 1,1,1,2-.... 0.0241 0.075 ............ 0.00005 133 ............ 0.0001 0.0078 ............ 0.00005
79-34-5........................ Tetrachloroethane, 1,1,2,2-.... 0.0037 0.024 ............ 0.0002 29.3 ............ 0.0002 0.0077 ............ 0.0002
127-18-4....................... Tetrachloroethylene............ 15600 0.0255 ............ 0.00014 13300 ............ 0.0007 0.0085 ............ 0.00014
58-90-2........................ Tetrachlorophenol, 2,3,4,6-.... 2720 1.89 ............ 0.00062 6150 ............ 0.04 0.58 ............ 0.00062
107-49-3....................... Tetraethyl pyrophosphate....... .......... ........... 14.7 .......... .......... 6900 3 ........... 10.5 ..........
3689-24-5...................... Tetraethyldithiopyrophosphate.. 0.23 ........... ............ 0.000058 2.81 ............ 0.0039 ........... ............ 0.000058
7440-28-0...................... Thallium (l)................... 646 0.0353 ............ 0.0007 5.12 ............ 3 0.014 ............ 0.0007
62-55-5........................ Thioacetamide.................. .......... ........... 0.159 1 .......... 19.955 .......... ........... 0.105 1
39196-18-4..................... Thiofanox...................... .......... ........... 0.11775 0.05 .......... 1.66 3 ........... 6.4 0.05
108-98-5....................... Thiophenol..................... .......... ........... 0.11775 0.02 .......... 1.66 1 ........... 6.4 0.02
79-19-6........................ Thiosemicarbazide.............. .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
62-56-6........................ Thiourea....................... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
137-26-8....................... Thiram......................... .......... ........... 0.0069415 0.05 .......... 0.194 3 ........... 0.54 0.05
7440-31-5...................... Tin............................ .......... ........... 0.618 8 .......... 8.72 500 ........... 0.194 8
108-88-3....................... Toluene........................ 29.8 5.9 ............ 0.00011 176000 ............ 0.0002 1.8 ............ 0.00011
584-84-9....................... Toluene diisocyanate........... .......... ........... 0.159 .......... .......... 19.955 7 ........... 0.105 ..........
95-80-7........................ Toluenediamine, 2,4-........... 0.211 0.000159 ............ 0.0134 0.0101 ............ 1 0.000051 ............ 0.0134
823-40-5....................... Toluenediamine, 2,6-........... .......... ........... 0.159 0.02 .......... 19.955 1 ........... 0.105 0.02
496-72-0....................... Toluenediamine, 3,4-........... .......... ........... 0.159 0.02 .......... 19.955 1 ........... 0.105 0.02
636-21-5....................... Toluidine hydrochloride, o-.... .......... ........... 0.159 0.01 .......... 19.955 0.7 ........... 0.105 0.01
95-53-4........................ Toluidine, o-.................. 0.441 0.00224 ............ 0.0121 2.35 ............ 0.029 0.00068 ............ 0.0121
106-49-0....................... Toluidine, p-.................. 0.703 0.00224 ............ 0.0168 0.128 ............ 0.043 0.00068 ............ 0.0168
8001-35-2...................... Toxaphene...................... 0.000364 1170 ............ 0.00127 0.000176 ............ 0.0295 6.3 ............ 0.00127
76-13-1........................ Trichloro-1,2,2- 2210 0.77 ............ 0.00108 .......... ............ 0.00114 0.168 ............ 0.00108
trifluoroethane, 1,1,2-.
120-82-1....................... Trichlorobenzene, 1,2,4-....... 0.685 9.31 ............ 0.0002 3450 ............ 0.0574 1.3 ............ 0.0002
71-55-6........................ Trichloroethane, 1,1,1-........ 73.9 120 ............ 0.00008 48200 ............ 0.0002 0.0539 ............ 0.00008
79-00-5........................ Trichloroethane, 1,1,2-........ 0.0117 0.035 ............ 0.0001 11.3 ............ 0.004 0.009 ............ 0.0001
79-01-6........................ Trichloroethylene.............. 138 0.024 ............ 0.00019 567 ............ 0.0001 0.008 ............ 0.00019
75-69-4........................ Trichlorofluoromethane......... 51.4 48 ............ 0.00008 25800 ............ 0.001 16 ............ 0.00008
75-70-7........................ Trichloromethanethiol.......... .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
95-95-4........................ Trichlorophenol, 2,4,5-........ 38.8 18.1 ............ 0.00049 11500 ............ 0.0672 4.2 ............ 0.00049
88-06-2........................ Trichlorophenol, 2,4,6-........ 0.1 0.0536 ............ 0.0004 124 ............ 0.0785 0.0152 ............ 0.0004
93-76-5........................ Trichlorophenoxyacetic acid, 15.5 1.68 ............ 0.00008 63.2 ............ 0.0063 0.64 ............ 0.00008
2,4,5- (245-T).
93-72-1........................ Trichlorophenoxypropionic acid, 9.72 0.21 ............ 0.00008 6.36 ............ 0.00028 0.08 ............ 0.00008
2,4,5- (Silvex).
96-18-4........................ Trichloropropane, 1,2,3-....... 707 1.1 ............ 0.00032 872 ............ 0.0009 0.34 ............ 0.00032
99-35-4........................ Trinitrobenzene, sym-.......... 3 0.0078 ............ 0.00026 0.442 ............ 0.25 0.003 ............ 0.00026
126-72-7....................... Tris (2,3-dibromopropyl) 0.000237 0.00252 ............ 0.0245 0.357 ............ 0.061 0.000099 ............ 0.0245
phosphate.
[[Page 66438]]
52-24-4........................ Tris(1-azridinyl) phosphine .......... ........... 0.11775 .......... .......... 1.66 .......... ........... 6.4 ..........
sulfide.
72-57-1........................ Trypan blue.................... .......... ........... 14.7 .......... .......... 6900 .......... ........... 10.5 ..........
66-75-1........................ Uracil mustard................. .......... ........... 0.159 .......... .......... 19.955 .......... ........... 0.105 ..........
7440-62-2...................... Vanadium....................... 15800 9.58 ............ 0.003 250 ............ 1 3.71 ............ 0.003
108-05-4....................... Vinyl acetate.................. .......... ........... 14.7 0.005 .......... 6900 0.005 ........... 10.5 0.005
75-01-4........................ Vinyl chloride................. 0.00199 0.0078 ............ 0.00017 1.23 ............ 0.0017 0.003 ............ 0.00017
81-81-2........................ Warfarin....................... .......... ........... 0.0069415 0.05 .......... 0.194 3 ........... 0.54 0.05
1330-20-7...................... Xylenes (total)................ 22.4 88 ............ 0.002 172000 ............ 0.0002 21 ............ 0.002
7440-66-6...................... Zinc........................... 23200 99 ............ 0.002 316 ............ 0.3 38.4 ............ 0.002
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Appendix D
Table D-1.--Comparison Between Modeled Exit Levels and Universal Treatment Standards
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wastewater Nonwastewater
-----------------------------------------------------------------------------
CAS Name Exit level Exit level UTS (mg/ Exit level
(mg/l) UTS (mg/l) (mg/kg) kg) (mg/l) UTS (mg/l)
--------------------------------------------------------------------------------------------------------------------------------------------------------
83-32-9............................... Acenaphthene...................... 31 0.059 9500 3.4 5 ...........
67-64-1............................... Acetone........................... 16 0.28 17000 160 6 ...........
75-05-8............................... Acetonitrile...................... 0.78 5.6 920 *1.8 0.3 ...........
98-86-2............................... Acetophenone...................... 17 0.01 1200 9.7 6 ...........
107-02-8.............................. Acrolein.......................... eqc 0.29 ........... ........... ........... ...........
107-13-1.............................. Acrylonitrile..................... eqc 0.24 0.96 84 eqc ...........
107-05-1.............................. Allyl chloride.................... 0.074 0.36 260 30 ........... ...........
62-53-3............................... Aniline........................... 0.053 0.81 4 14 0.017 ...........
7440-36-0............................. Antimony.......................... 0.14 1.9 9 ........... 0.053 2.1
7440-38-2............................. Arsenic........................... eqc 1.4 eqc ........... eqc 5
7440-39-3............................. Barium............................ 33 1.2 2100 ........... 16 7.6
56-55-3............................... Benz(a)anthracene................. 0.00072 0.059 0.1 3.4 eqc ...........
71-43-2............................... Benzene........................... 0.018 0.14 110 10 0.0054 ...........
50-32-8............................... Benzo(a)pyrene.................... 0.0023 0.061 0.23 3.4 eqc ...........
205-99-2.............................. Benzo(b)fluoranthene.............. 0.00081 0.11 4 6.8 0.000066 ...........
7440-41-7............................. Beryllium......................... 0.00083 0.82 eqc ........... 0.00032 0.014
39638-32-9............................ Bis (2-chloroisopropyl) ether..... 0.007 0.055 0.94 7.2 0.0019 ...........
111-44-4.............................. Bis(2-chlorethyl)ether............ 0.00065 0.033 0.12 6 0.00036 ...........
117-81-7.............................. Bis(2-ethylhexyl)phthalate........ 0.00044 0.28 230 28 0.0011 ...........
75-27-4............................... Bromodichloromethane.............. 0.0085 0.35 19 15 0.0025 ...........
75-25-2............................... Bromoform (Tribromomethane)....... 0.064 0.63 170 15 0.018 ...........
71-36-3............................... Butanol........................... 16 5.6 18000 2.6 6 ...........
88-85-7............................... Butyl-4,6-dinitrophenol, 2-sec- 0.19 0.066 770 2.5 0.064 ...........
(Dinoseb).
85-68-7............................... Butylbenzylphthalate.............. 240 0.017 87 28 64 ...........
7440-43-9............................. Cadmium........................... 0.24 0.69 14 ........... 0.11 0.19
75-15-0............................... Carbon disulfide.................. 0.74 3.8 330 ........... 6 4.8
56-23-5............................... Carbon tetrachloride.............. 0.012 0.057 9 6 0.0016 ...........
57-74-9............................... Chlordane......................... eqc 0.0033 0.0098 0.26 0.00016 ...........
126-99-8.............................. Chloro-1,3-butadiene, 2- 0.52 0.057 290 0.28 ........... ...........
(Chloroprene).
106-47-8.............................. Chloroaniline, p-................. 0.42 0.46 140 16 0.16 ...........
108-90-7.............................. Chlorobenzene..................... 2 0.057 2500 6 1 ...........
510-15-6.............................. Chlorobenzilate................... 0.054 0.1 ........... ........... ........... ...........
124-48-1.............................. Chlorodibromomethane.............. 0.0066 0.057 28 15 0.0018 ...........
67-66-3............................... Chloroform........................ 0.0076 0.046 7 6 0.017 ...........
95-57-8............................... Chlorophenol, 2-.................. 0.9 0.044 100 5.7 0.32 ...........
7440-47-3............................. Chromium.......................... 1 2.77 10 ........... 0.48 0.86
218-01-9.............................. Chrysene.......................... 0.1 0.059 35 3.4 0.0012 ...........
108-39-4.............................. Cresol, m-........................ 8 0.77 22000 5.6 3 ...........
95-48-7............................... Cresol, o-........................ 8 0.11 27000 5.6 3 ...........
106-44-5.............................. Cresol, p-........................ 0.84 0.77 2600 5.6 0.32 ...........
72-54-8............................... DDD............................... 0.00013 0.023 0.0065 0.087 2800 ...........
72-55-9............................... DDE............................... eqc 0.031 0.00094 0.087 0.000062 ...........
50-29-3............................... DDT............................... eqc 0.0039 0.0032 0.087 0.0054 ...........
84-74-2............................... Di-n-butyl phthalate.............. 230 0.057 90000 28 25 ...........
117-84-0.............................. Di-n-octyl phthalate.............. 0.002 0.017 4500 28 0.1 ...........
96-12-8............................... Dibromo-3-choloropropane, 1,2-.... 0.00066 0.11 0.66 15 eqc ...........
95-50-1......
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
......................... Dichlorobenzene, 1,2-............. 15 0.088 50000 6 6 ...........
106-46-7.............................. Dichlorobenzene, 1,4-............. 0.056 0.09 64 6 0.011 ...........
75-71-8............................... Dichlorodifluoromethane........... 15 0.23 8100 7.2 12 ...........
75-34-3............................... Dichloroethane, 1,1-.............. 0.00016 0.059 24 6 0.00006 ...........
107-06-2.............................. Dichloroethane, 1,2-.............. 0.00016 0.21 6 6 0.00006 ...........
75-35-4............................... Dichloroethylene, 1,1-............ 0.00059 0.025 3 6 0.00018 ...........
156-60-5.............................. Dichloroethylene, trans-1,2-...... 3 0.054 14000 30 1 ...........
120-83-2.............................. Dichlorophenol, 2,4-.............. 0.62 0.044 770 14 0.18 ...........
[[Page 66439]]
94-75-7............................... Dichlorophenoxyacetic acid, 2,4- 2 0.72 3100 10 0.6 ...........
(2,4-D).
78-87-5............................... Dichloropropane, 1,2-............. 0.023 0.85 17 18 0.0023 ...........
10061-01-5............................ Dichloropropene, cis-1,3-......... 0.0049 0.036 3 18 1200 ...........
10061-02-6............................ Dichloropropene, trans-1,3-....... 0.0049 0.036 3 18 1200 ...........
60-57-1............................... Dieldrin.......................... 0.000059 0.017 0.0018 0.13 0.54 ...........
84-66-2............................... Diethyl phthalate................. 190 0.2 4500 28 54 ...........
131-11-3.............................. Dimethyl phthalate................ 78 0.047 3 28 30 ...........
105-67-9.............................. Dimethylphenol,2,4-............... 4 0.036 11000 14 1 ...........
51-28-5............................... Dinitrophenol,2,4-................ 0.27 0.12 56 160 0.11 ...........
121-14-2.............................. Dinitrotoluene,2,4-............... 0.29 0.32 210 140 0.11 ...........
606-20-2.............................. Dinitrotoluene,2,6-............... 0.17 0.55 86 28 0.064 ...........
123-91-1.............................. Dioxane,1,4-...................... 0.042 *NA 13 170 0.014 ...........
122-39-4.............................. Diphenylamine..................... 15 0.92 12000 13 3 ...........
298-04-4.............................. Disulfoton........................ 0.013 0.017 43 6.2 13 ...........
72-20-8............................... Enndrin........................... 0.073 0.0028 0.26 0.13 32 ...........
141-78-6.............................. Ethyl acetate..................... 390 0.34 270000 33 110 ...........
60-29-7............................... Ethyl ether....................... 27 0.12 41000 160 11 ...........
97-63-2............................... Ethyl methacrylate................ 24 0.14 3400 160 7 ...........
100-41-4.............................. Ethylbenzene...................... 39 0.057 550000 10 8 ...........
206-44-0.............................. Flouranthene...................... 28 0.068 6000 3.4 2 ...........
86-73-7............................... Flourene.......................... 22 0.059 90000 3.4 3 ...........
76-44-8-.............................. Heptachlor........................ eqc 0.0012 8 0.066 ........... ...........
1024-57-3............................. Heptachlor epoxide................ 0.00053 0.016 0.026 0.066 0.45 ...........
87-68-3............................... Hexachloro-1,3-butadiene.......... 0.0079 0.055 36 5.6 0.0069 ...........
118-74-1.............................. Hexachlorobenzene................. eqc 0.055 eqc 10 eqc ...........
319-84-6.............................. Hexachlorocyclohexane, alpha- 0.00014 0.00014 0.033 0.066 0.11 ...........
(alpha-BHC).
319-85-7.............................. Hexachlorocyclohexane, beta-(beta- 0.00044 0.00014 0.12 0.066 0.00021 ...........
BHC).
58-89-9............................... Hexachlorocyclohexane, gamma- 0.00078 0.0017 0.1 0.066 0.69 ...........
(Lindane).
77-47-4............................... Hexachlorocyclopentadiene......... 0.0052 0.057 1500 2.4 ........... ...........
67-72-1............................... Hexachloroethane.................. 0.049 0.055 81 30 0.033 ...........
193-39-5.............................. Indeno(1,2,3-cd) pyrene........... 0.0029 0.0055 4 3.4 eqc ...........
78-83-1............................... Isobutyl alcohol.................. 39 5.6 55000 170 15 ...........
7439-92-1............................. Lead.............................. 30 0.69 570 ........... 12 0.37
7439-97-6............................. Mercury........................... 0.3 0.15 0.6 ........... 0.14 0.025
126-98-7.............................. Methacrylonitrile................. 0.016 0.24 ........... ........... ........... ...........
67-56-1............................... Methanol.......................... 78 5.6 140000 ........... 30 0.75
72-43-5............................... Methoxychlor...................... 7 0.25 19 0.18 ........... ...........
74-83-9............................... Methyl bromide (Bromomethane)..... 0.37 0.11 500 15 0.92 ...........
74-87-3............................... Methyl chloride (Chloromethane)... 0.096 0.19 91 30 ........... ...........
78-93-3............................... Methyl ethyl ketone............... 78 0.28 110000 36 30 ...........
108-10-1.............................. Methyl isobutyl ketone............ 8 0.14 17000 33 3 ...........
80-62-6............................... Methyl methacrylate............... 28 0.14 40000 160 8 ...........
298-00-0.............................. Methyl parathion.................. 0.66 0.014 1 4.6 23 ...........
74-95-3............................... Methylene bromide................. 2 0.11 8400 15 0.19 ...........
75-09-2............................... Methylene chloride................ 0.039 0.089 310 30 0.015 ...........
86-30-6............................... N-Nitrosodiphenylamine............ 0.2 0.92 1300 13 eqc ...........
930-55-2.............................. N-Nitrosopyrrolidine.............. eqc 0.013 0.053 35 eqc ...........
91-20-3............................... Naphthalene....................... 14 0.059 120000 5.6 3 ...........
7440-02-0............................. Nickel............................ 11 3.98 110 ........... 5 5
98-95-3............................... Nitrobenzene...................... 0.084 0.068 45 14 0.032 ...........
924-16-3.............................. Nitrosodi-n-butylamine............ ........... ........... 0.094 17 eqc ...........
56-38-2............................... Parathion......................... 3 0.014 0.13 4.6 12000 ...........
608-93-5.............................. Pentachlorobenzene................ 5 0.055 210 10 eqc ...........
82-68-8............................... Pentachloronitrobenzene (PCNB).... 0.081 0.055 11 4.8 eqc ...........
87-86-5............................... Pentachlorophenol................. 0.002 0.089 3 7.4 0.00041 ...........
108-95-2.............................. Phenol............................ 84 0.039 160000 6.2 32 ...........
298-02-2.............................. Phorate........................... 0.11 0.021 160 4.6 ........... ...........
1336-36-3............................. Polychlorinated biphenyls......... eqc 0.1 eqc 10 eqc ...........
23950-58-5............................ Pronamide......................... 21 0.093 440 1.5 6 ...........
129-00-0.............................. Pyrene............................ 54 0.067 16000 8.2 2 ...........
110-86-1.............................. Pyridine.......................... 0.16 0.014 810 16 0.06 ...........
94-59-7............................... Safrole........................... 0.0035 0.081 11 0.16 eqc ...........
7782-49-2............................. Selenium.......................... 0.93 0.82 eqc ........... 0.36 0.16
7440-22-4............................. Silver............................ 200 0.43 eqc ........... ........... 0.3
1746-01-6............................. TCDD,2,3,7,8...................... eqc 0.000063 8.000E-06 0.001 eqc ...........
95-94-3............................... Tetrachlorobenzene, 1,2,4,5-...... 0.23 0.055 170 14 0.032 ...........
630-20-6.............................. Tetrachloroethane, 1,1,1,2-....... 0.024 0.057 130 6 0.0078 ...........
79-34-5............................... Tetrachloroethane, 1,1,2,2-....... 0.0037 0.057 29 6 0.0077 ...........
127-18-4.............................. Tetrachloroethylene............... 2 0.056 13000 6 0.68 ...........
58-90-2............................... Tetrachlorophenol, 2,3,4,6-....... 2 0.03 6200 7.4 0.58 ...........
7440-28-0............................. Thallium (l)...................... 0.05 1.4 5 0.078 0.019 ...........
108-88-3.............................. Toluene........................... 30 0.08 180000 10 13 ...........
8001-35-2............................. Toxaphene......................... eqc 0.0095 eqc 2.6 0.11 ...........
76-13-1............................... Trichloro-1,2,2-trifluoroethane, 2200 0.057 ........... 30 2400 ...........
1,1,2-.
120-82-1.............................. Trichlorobenzene, 1,2,4-.......... 0.69 0.055 3500 19 1 ...........
71-55-6............................... Trichloroethane, 1,1,1-........... 74 0.054 48000 6 0.054 ...........
79-00-5............................... Trichloroethane, 1,1,2-........... 0.007 0.054 11 6 0.0018 ...........
79-01-6............................... Trichloroethylene................. 0.038 0.054 570 6 0.013 ...........
75-69-4............................... Trichlorofluoromethane............ 48 0.02 26000 30 16 ...........
[[Page 66440]]
95-95-4............................... Trichlorophenol, 2,4,5-........... 18 0.18 12000 7.4 4 ...........
88-06-2............................... Trichlorophenol, 2,4,6-........... 0.054 0.035 120 7.4 0.015 ...........
93-76-5............................... Trichlorophenoxyacetic acid, 2,4,5- 2 0.72 63 7.9 0.64 ...........
(245-T).
93-72-1............................... Trichlorophenoxypropionic acid, 1 0.72 6 7.9 0.48 ...........
2,4,5- (Silvex).
96-18-4............................... Trichloropropane, 1,2,3-.......... 1 0.85 870 30 0.34 ...........
126-72-7.............................. Tris (2,3-dibromopropyl) phosphate eqc 0.11 0.36 0.1 eqc ...........
7440-62-2............................. Vanadium.......................... 10 4.3 250 ........... 4 0.23
75-01-4............................... Vinyl chloride.................... eqc 0.27 1 6 eqc ...........
1330-20-7............................. Xylenes (total.................... 22 0.32 170000 30 150 ...........
7440-66-6............................. Zinc.............................. 99 2.61 320 ........... 38 5.3
--------------------------------------------------------------------------------------------------------------------------------------------------------
For the reasons set out in the preamble, Chapter I of Title 40 of
the Code of Federal Regulations is amended as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
2. In Sec. 260.10, add the following definitions in alphabetical
order:
* * * * *
Director means the Regional Administrator or the State Director, as
the context requires, or an authorized representative. When there is no
approved State program, and there is an EPA administered program,
Director means the Regional Administrator. When there is an approved
State program, Director normally means the State Director. In some
circumstances, however, EPA retains the authority to take certain
actions even when there is an approved State program. In such cases,
the term Director means the Regional Administrator and not the State
Director.
* * * * *
Monofill means a landfill where waste of only one kind or type is
placed in or on land and which is not a pile, a land treatment
facility, a surface impoundment, an underground injection well, a salt
dome formation, a salt bed formation, an underground mine, a cave, or a
corrective action management unit.
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
3. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6922.
4. Section 261.3 is amended by revising the first sentence of
paragraph (a)(2)(iv) and the first sentence of paragraph (c)(2)(i) to
read as follows:
Sec. 261.3 Definition of hazardous waste.
* * * * *
(a) * * *
(2) * * *
(iv) It is a mixture of solid waste and one or more hazardous
wastes listed in subpart D of this part and has not been excluded from
paragraph (a)(2) of this section under either Secs. 260.20 and 260.22,
Sec. 261.36, or Sec. 261.37 of this chapter; however, the following
mixtures of solid wastes and hazardous wastes listed in subpart D of
this part are not hazardous wastes (except by application of paragraph
(a)(2) (i) or (ii) of this section) if the generator can demonstrate
that the mixture consists of wastewater the discharge of which is
subject to regulation under either section 402 or section 307(b) of the
clean water act (including wastewater at facilities which have
eliminated the discharge of wastewater) and:
* * * * *
(c) * * *
(2) * * *
(i) Except as otherwise provided in paragraph (c)(2)(ii) of this
section, Sec. 261.36, or Sec. 261.37 of this chapter, any solid waste
generated from the treatment, storage, or disposal of a hazardous
waste, including any sludge, spill residue, ash, emission control dust,
or leachate (but not including precipitation run-off) is a hazardous
waste. * * *
* * * * *
5. A new Sec. 261.36 is added to subpart D to read as follows:
Sec. 261.36 Exemption for listed hazardous wastes containing low
concentrations of hazardous constituents.
(a) Any hazardous waste listed under this subpart, any mixture of
such a listed waste with a solid waste, or any waste derived from the
treatment, storage, or disposal of a listed hazardous waste that does
not exhibit any of the characteristics of hazardous waste in subpart C
of this part 261 and that meets all of the requirements in
Sec. 261.36(b)-(d) is exempt from all requirements of parts 262-266 and
part 270 of this chapter. Any such waste which also meets the
requirements of Sec. 261.36(e) is also exempt from the requirements of
part 268 of this chapter.
(b) Requirements for qualifying for an exemption.--(1) Testing. (i)
For each waste for which an exemption is claimed, the claimant must
test for all of the constituents on appendix X to this part 261 except
those that the claimant determines should not be present in the waste.
The claimant is required to document the basis of each determination
that a constituent should not be present. No claimant may determine
that any of the following categories of constituents should not be
present:
(A) Constituents identified in appendix VII to this part 261 as the
basis for listing the waste for which exemption is sought;
(B) Constituents listed in the table to Sec. 268.40 of this
chapter as regulated hazardous constituents for LDR treatment of the
waste;
(C) Constituents detected in any previous analysis of the same
waste conducted by or on behalf of the claimant;
(D) Constituents introduced into the process which generates the
waste; and
(E) Constituents which the claimant knows or has reason to believe
are byproducts or side reactions to the process that generates the
waste.
Note: Any claim under this section must be valid and accurate
for all hazardous constituents; a determination not to test for a
hazardous constituent will not shield a claimant from liability
should that constituent later be found in the waste.
(ii) The claimant must develop a sampling and analysis plan for
each waste for which an exemption is sought. The plan must identify:
(A) Sampling procedures and locations sufficient to characterize
the entire waste for which the exemption is
[[Page 66441]]
claimed. Grab sampling is acceptable for this purpose.
(B) Analytical methods that the claimant will use to determine, for
wastewaters and nonwastewaters, the total concentration of each
constituent on appendix X to this part except for those constituents
which the claimant has determined should not be present under
Sec. 261.36(b)(1)(i).
(iii) The claimant must conduct sampling and analysis in accordance
with the plan.
(iv) The results of the sampling and analysis must show, for both
wastewaters and nonwastewaters, that all total constituent
concentrations in the waste are at or below the exemption levels in
appendix X to this part 261 and, for nonwastewaters, that all leachable
constituent concentrations are either:
(A) At or below exemption levels in Appendix X to this part 261, as
determined by testing an extract using test method 1311 (the Toxicity
Characteristic Leaching Procedure, set out in ``Test Methods for
Evaluating Solid Waste, Physical/Chemical Methods'' (SW-846)), or
(B) Estimated to be at or below exemption levels using the equation
{[(A x B)+(C x D)]/[B+(20 x D)]} leach exit level, where
A=concentration of the analyte in the liquid portion of the sample;
B=Volume of the liquid portion of the sample; C=Concentration of the
analyte in the solid portion of the sample; D=Weight of the solid
portion of the sample.
(2) Treatment requirements. Any waste that exits using an exit
level on Table B to appendix X to this part 261 must meet the treatment
standard for such a constituent under Sec. 268.40 of this chapter,
regardless of whether or not the waste is intended for land disposal,
unless the claimant meets the exemption requirements in Sec. 261.36(e).
(3) Public Notice. The claimant must submit for publication in a
major newspaper of general circulation, local to the claimant, a notice
entitled ``Notification of Exemption Claim for Listed Hazardous Wastes
Containing Low Concentrations of Hazardous Constituents Under the
Resource Conservation and Recovery Act'' containing the following
information:
(i) The name, address, and RCRA ID number of the claimant's
facility;
(ii) The applicable EPA Hazardous Waste Code of the waste for which
the exemption is claimed and the narrative description associated with
the listing from this part 261 subpart D;
(iii) A brief, general description of the manufacturing, treatment,
or other process or operation producing the waste;
(iv) An estimate of the average and maximum monthly and annual
quantities of the waste claimed to be exempt;
(v) The name and mailing address of the agency to which the
claimant is submitting the notification required under
Sec. 261.36(b)(4).
(4) Notification to implementing agency. Prior to managing any
waste as exempt under this section, the claimant must send to the
Director via certified mail or other mail service that provides written
confirmation of delivery a notification of the exemption claim meeting
the following requirements:
(i) The name, address, and RCRA ID number of the person claiming
the exemption;
(ii) The applicable EPA Hazardous Waste Codes;
(iii) A brief description of the process that generated the waste;
(iv) An estimate of the average and maximum monthly and annual
quantities of each waste claimed to be exempt;
(v) Documentation for any claim that a constituent is not present
as described under Sec. 261.36 (b)(1)(i);
(vi) The results of all analyses and estimates of constituent
concentrations required under Sec. 261.36(b)(1)(iv) and all
quantitation limits achieved;
(vii) Documentation that any waste that exits using a constituent
exit level from Table B to Appendix X to this part has met the
applicable treatment standards in Sec. 268.40 of this chapter, unless
the claimant is also claiming the exemption under Sec. 261.36(e);
(viii) Evidence that the public notification requirements of
Sec. 261.36(b)(3) have been satisfied; and
(ix) The following statement signed by the person claiming the
exemption or his authorized representative:
``Under penalty of criminal and civil prosecution for making or
submitting false statements, representations, or omissions, I
certify that the requirements of 40 CFR 261.36(b) have been met for
all waste identified in this notification. Copies of the records and
information required at 40 CFR 261.36(d)(7) are available at the
claimant's facility. Based upon my inquiry of the individuals
immediately responsible for obtaining the information, the
information is, to the best of my knowledge and belief, true,
accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations.''
(c) Effectiveness of exemption. No claim shall take effect until
the claimant receives confirmation of delivery for the notification
required under Sec. 261.36 (b)(4).
(d) Conditions for maintaining the exemption. To maintain any
exemption claimed pursuant to this section, the claimant must satisfy
the following conditions:
(1) Changes in information. The claimant must submit to the
Director any change in any information submitted under
Sec. 261.36(b)(4) within ten business days of the claimant's first
knowledge of the change.
(2) Schedule for retesting. The claimant must retest the waste for
which the exemption was claimed on the following schedule:
(i) For the first three years of the exemption, the claimant must:
(A) Test wastes generated at the time the exemption is claimed in
volumes greater than 10,000 tons/year on a quarterly basis;
(B) Test wastes generated at the time the exemption is claimed in
volumes greater than 1000 tons/year but less than 10,000 tons/year must
on a semi-annual basis;
(C) Test wastes generated at the time the volume is claimed in
volumes less than 1000 tons/year on an annual basis.
(ii) After the first three years of an exemption, the claimant must
retest the waste for which the exemption was claimed on an annual
basis.
(3) For every retest the claimant must prepare and comply with a
sampling and analysis plan meeting the requirements of
Sec. 261.36(b)(1)(ii) and determine the concentration of:
(i) Each constituent from Table A to appendix X to this part that
was detected in the initial test within an order of magnitude below
either its total or leachable exemption level and each constituent from
Table B to appendix X of this part that is identified as a basis for
listing the waste on appendix VII to this part or is listed as a
regulated hazardous constituent for the waste in the table of
``Treatment Standards for Hazardous Wastes'' in Sec. 268.40 of this
chapter; and
(ii) Any other constituent that the claimant has reason to believe
may be newly present in the waste since the most recent test.
(4) Exemption levels. The concentrations of all constituents tested
must meet the criteria set out in Sec. 261.36(b)(1)(iv).
(5) Treatment requirements. Any waste exiting by using an exit
level for a hazardous constituent from Table B to appendix X to this
part must meet the treatment requirements for such a constituent under
Sec. 268.40 of this chapter prior to exit regardless of whether or not
the waste is intended for land disposal, unless the claimant meets
[[Page 66442]]
the exemption requirements in Sec. 261.36(e).
(6) Records. The claimant must maintain records of the following
information in files on-site for three years after the date of the
relevant test:
(i) For initial testing, all information submitted under
Sec. 261.36(b)(4), all revisions to such material submitted under
Sec. 261.36(d)(1) and all information required to be maintained under
Sec. 261.36(d)(6)(iii);
(ii) For retests:
(A) All volume determinations made for the purpose of determining
testing frequency under Sec. 261.36(d)(2);
(B) All sampling and analysis plans required under
Sec. 261.36(d)(3);
(C) All analytical results and estimates of leachable
concentrations (if any) for constituents required to be assessed under
Sec. 261.35(d)(3);
(D) Documentation showing that a waste exiting using any
constituent exit level from Table B to appendix X to this part and is
required to be reassessed under Sec. 261.36(d)(3) has met applicable
treatment standards under Sec. 268.40 of this chapter, unless the
claimant also claims the exemption under Sec. 261.36(e); and
(iii) For both initial tests and retests, the claimant must also
retain records of:
(A) The dates and times waste samples were obtained, and, for total
concentrations and leachable concentrations that were analyzed, the
dates of the analyses;
(B) The names and qualifications of the person(s) who obtained the
samples;
(C) A description of the temporal and spatial locations of the
samples;
(D) The name and address of the laboratory facility at which
analyses of the samples were performed;
(E) A description of the analytical methods used, including any
clean-up and extraction methods;
(F) All quantitation limits achieved and all other quality control
results (including any method blanks, duplicate analyses, and matrix
spikes), laboratory quality assurance data, and a description of any
deviations from published analytical methods or from the plan which
occurred; and
(G) All laboratory documentation that supports the analytical
results, unless a contract between the claimant and the laboratory
provides for the documentation to be maintained by the laboratory for
the period specified in Sec. 261.36 (b)(2) and also provides for the
availability of the documentation to the claimant upon request.
Note: Failure to satisfy any of these conditions voids the
exemption and requires management of the waste for which the
exemption has been claimed as hazardous waste. Submission of
notification to the Director that all waste conditions have been
satisfied re-establishes the exemption for all waste generated after
that date.
(e) Exemption from part 268 requirements.--If all hazardous
constituent levels in a waste qualifying for exemption are at or below
the appendix X to this part concentration levels at the waste's point
of generation, prior to any mixing with other solid or hazardous wastes
and prior to any treatment, the waste is exempt from all requirements
of part 268 of this chapter. The claimant also must meet the following
documentation requirements:
(1) For initial tests, in place of the certification required at
Sec. 261.36 (b)(4)(ix), the claimant must submit the following
statement signed by the person claiming the exemption or his authorized
representative and, if the claimant is not the generator of the waste,
also signed by the generator or his authorized representative:
Under penalty of criminal and civil prosecution for making or
submitting false statements, representations, or omissions, I
certify that, for the waste identified in this notification, the
concentration of all constituents assessed as required under
Sec. 261.36 (b)(1)(iv) met the applicable levels in appendix X to
this part 261 at the point of generation and that all other
requirements of 40 CFR Sec. 261.36 (b) have been met. Copies of the
records and information required at 40 CFR Sec. 261.36 (d)(4) are
available at the claimant's facility. Based upon my inquiry of the
individuals immediately responsible for obtaining the information,
the information is, to the best of my knowledge and belief, true,
accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations.''; or
(2) For every retest required under Sec. 261.36(d)(2), the claimant
must document that the concentrations of all constituents retested as
required under Sec. 261.36(d)(3) met the applicable levels in appendix
X to this part 261 at the waste's point of generation, must include
information supporting this claim from the waste's generator if the
generator is not the person asserting the claim, and must retain such
documentation in files on-site for three years after the date of the
relevant test.
(f) Nothing in this paragraph preempts, overrides, or otherwise
negates the provision in Sec. 262.11 of this chapter, which requires
any person who generates a solid waste to determine if that waste is a
hazardous waste.
(g) In an enforcement action, the burden of proof to establish
conformance with the exemption criteria shall be on the claimant.
6. A new Sec. 261.37 is added to read as follows:
Sec. 261.37 Exemption for listed hazardous wastes containing low
concentrations of hazardous constituents and managed in landfills and
monofills.
(a) Any hazardous waste listed under this subpart, any mixture of
such a listed waste with a solid waste, or any waste derived from the
treatment, storage or disposal of such a listed waste is exempt from
regulation as a hazardous waste under parts 262-266 and 270 of this
chapter if it meets the requirements in Sec. 261.37(b) and (d)
(including the requirement that all hazardous constituents present in
the waste be at or below the levels listed in appendix XI to this part
and that the waste be disposed in a landfill or monofill, but not a
land application unit). To maintain the exemption, the waste must
satisfy the conditions in Sec. 261.37(e). Any such waste which also
meets the requirements of 261.37(f) is also exempt from the
requirements of part 268 of this chapter.
(b) Requirements for qualifying for an exemption--(1) Testing. (i)
For each waste for which an exemption is claimed, the claimant must
test for all of the constituents on appendix XI to this part 261 except
those that the claimant determines should not be present in the waste.
The claimant is required to document the basis of each determination
that a constituent should not be present. No claimant may determine
that any of the following categories of constituents should not be
present:
(A) Constituents identified in appendix VII to this part 261 as the
basis for listing the waste for which exemption is sought;
(B) Constituents listed in the table to Sec. 268.40 as regulated
hazardous constituents for LDR treatment of the waste;
(C) Constituents detected in any previous analysis of the same
waste conducted by or on behalf of the claimant;
(D) Constituents introduced into the process which generates the
waste; and
(E) Constituents which the claimant knows or has reason to believe
are byproducts or side reactions to the process that generates the
waste.
Note: Any claim under this section must be valid and accurate
for all hazardous constituents; a determination not to test for a
hazardous constituent will not shield a claimant from liability
should that constituent later be found in the waste.
(ii) The claimant must develop a sampling and analysis plan for
each
[[Page 66443]]
waste for which an exemption is sought. The plan must identify:
(A) Sampling procedures and locations sufficient to characterize
the entire waste for which the exemption is claimed. Grab sampling is
acceptable for this purpose.
(B) Analytical methods that the claimant will use to determine, for
wastewaters and nonwastewaters, the total concentration of each
constituent on appendix XI to this part except for those constituents
which the claimant has determined should not be present under
Sec. 261.37(b)(1)(i).
(iii) The claimant must conduct sampling and analysis in accordance
with the plan.
(iv) The results of the sampling and analysis must show, for both
wastewaters and nonwastewaters, that all total constituent
concentrations in the waste are at or below the exemption levels in
appendix XI to this part 261 and, for nonwastewaters, that all
leachable constituent concentrations are either:
(A) At or below exemption levels in appendix XI to this Part 261,
as determined by testing an extract using test method 1311 (the
Toxicity Characteristic Leaching Procedure, set out in ``Test Methods
for Evaluating Solid Waste, Physical/Chemical Methods'' (SW-846)), or
(B) Estimated to be at or below exemption levels using the equation
{(AxB)+(CxD)}/{B+(20xD)} < leach exit level, where A=concentration of
the analyte in the liquid portion of the sample; B = Volume of the
liquid portion of the sample; C=Concentration of the analyte in the
solid portion of the sample; D = Weight of the solid portion of the
sample.
(2) Treatment requirements. Any waste that exits using an exit
level on Table B to appendix XI to this Part 261 must meet the
treatment standard for such a constituent under Sec. 268.40 of this
chapter, regardless of whether or not the waste is intended for land
disposal, unless the claimant meets the exemption requirements in
Sec. 261.37(f).
(3) Public Notice. The claimant must submit for publication in a
major newspaper of general circulation, local to the claimant, a notice
entitled ``Notification of Exemption Claim for Listed Hazardous Wastes
Containing Low Concentrations of Hazardous Constituents and Managed in
Landfills and Monofills Under the Resource Conservation and Recovery
Act'' containing the following information:
(i) The name, address, and RCRA ID number of the claimant's
facility;
(ii) The applicable EPA Hazardous Waste Code of the waste for which
the exemption is claimed and the narrative description associated with
the listing from this part 261 subpart D;
(iii) A brief, general description of the manufacturing, treatment,
or other process or operation producing the waste;
(iv) An estimate of the average and maximum monthly and annual
quantities of the waste claimed to be exempt;
(v) The name and mailing address of the agency to which the
claimant is submitting the notification required under
Sec. 261.37(b)(4);
(vi) The following statement:
The exemption for this waste from the hazardous waste regulatory
scheme is conditioned disposing of the waste in a landfill or
monofill (and not a land application unit.)
(4) Notification to implementing agency. Prior to managing any
waste as exempt under this section, the claimant must send to the
Director via certified mail or other mail service that provides written
confirmation of delivery a notification of the exemption claim meeting
the following requirements:
(i) The name, address, and RCRA ID number of the person claiming
the exemption;
(ii) The applicable EPA Hazardous Waste Codes;
(iii) A brief description of the process that generated the waste;
(iv) An estimate of the average and maximum monthly and annual
quantities of each waste claimed to be exempt;
(v) Documentation for any claim that a constituent is not present
as described under Sec. 261.37(b)(1)(i);
(vi) The results of all analyses and estimates of constituent
concentrations required under Sec. 261.37(b)(1)(iv) and all
quantitation limits achieved;
(vii) Documentation that any waste that exits using a constituent
exit level from Table B to appendix XI to this part have met the
applicable treatment standards in Sec. 268.40, of this chapter, unless
the claimant is also claiming the exemption under Sec. 261.37(f);
(viii) Evidence that the public notification requirements of
Sec. 261.37(b)(3) have been satisfied; and
(ix) The following statement signed by the person claiming the
exemption or his authorized representative:
Under penalty of criminal and civil prosecution for making or
submitting false statements, representations, or omissions, I
certify that the requirements of Sec. 261.37(b) have been met,
including the requirement that all hazardous constituents present in
the waste are at or below the levels listed on appendix XI to this
part, for all listed wastes identified in this notification. I also
certify that arrangements have been made to dispose of the waste in
a landfill or monofill (and not a land application unit). Copies of
the records and information required at Sec. 261.37 (e)(7) are
available) at the claimant's facility. Based upon my inquiry of the
individuals immediately responsible for obtaining the information,
the information is, to the best of my knowledge and belief, true,
accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations.
(5) The claimant must receive confirmation of delivery for the
notification required under Sec. 261.37 (b)(4).
(c) Tracking, storage, treatment and other management prior to
disposal. Until a listed hazardous waste meeting the requirements of
Sec. 261.37(b) is placed in a landfill or monofill, it remains subject
to all requirements of parts 262-266 and 270 of this chapter. The waste
is also subject to the requirements of part 268 of this chapter unless
it qualifies for an exemption under Sec. 261.37(f).
(d) Disposal in a landfill or monofill. The claimant must ensure
that any listed waste meeting the requirements of Sec. 261.37(b) for
which an exemption is sought is disposed of in either a landfill or
monofill (and not a land application unit). The landfill or monofill
need not be subject to regulation as a hazardous waste management unit.
The waste becomes exempt as soon as it is placed in a landfill or
monofill unit.
(e) Conditions for maintaining the exemption. To maintain any
exemption claimed pursuant to this section, the claimant must satisfy
the following conditions:
(1) Compliance with modified hazardous waste manifest system. If
the landfill or monofill in which the waste is disposed is not a
hazardous waste disposal unit subject to part Sec. 264.71-264.72 or
Sec. 265.71-265.72 of this chapter, the claimant must:
(i) Ensure that the manifest form is returned from the disposal
facility, and
(ii) Obtain information showing that the disposal facility
designated on the manifest received the waste for which the exemption
is sought and placed it in either a landfill or monofill (and not a
land treatment unit).
(2) Changes in information. The claimant must submit to the
Director any change in any information submitted under
Sec. 261.37(b)(4) within ten business days of the claimant's first
knowledge of the change.
(3) Schedule for retesting. The claimant must retest the waste for
which the exemption was claimed on the following schedule:
[[Page 66444]]
(i) For the first three years of the exemption, the claimant must:
(A) Test wastes generated at the time the exemption is claimed in
volumes greater than 10,000 tons/year on a quarterly basis;
(B) Test wastes generated at the time the exemption is claimed in
volumes greater than 1000 tons/year but less than 10,000 tons/year must
on a semi-annual basis;
(C) Test wastes generated at the time the volume is claimed in
volumes less than 1000 tons/year on an annual basis.
(ii) After the first three years of an exemption, the claimant must
retest the waste for which the exemption was claimed on an annual
basis.
(4) For every retest the claimant must prepare and comply with a
sampling and analysis plan meeting the requirements of
Sec. 261.37(b)(1)(ii) and determine the concentration of:
(i) Each constituent from Table A to appendix XI to this part that
was detected in the initial test within an order of magnitude below
either its total or leachable exemption level and each constituent from
Table B to appendix XI to this part that is identified as a basis for
listing the waste on appendix VII to this part or is listed as a
regulated hazardous constituent for the waste in the table of
``Treatment Standards for Hazardous Wastes'' in Sec. 268.40 of this
chapter; and
(ii) Any other constituent that the claimant has reason to believe
may be newly present in the waste since the most recent test.
(5) Exemption levels.--The concentrations of all constituents
tested must meet the criteria set out in Sec. 261.37(b)(1)(iv).
(6) Treatment requirements.--Any waste exiting by using an exit
level for a hazardous constituent from Table B to Appendix XI to this
part must meet the treatment requirements for such a constituent under
Sec. 268.40 of this chapter prior to exit regardless of whether or not
the waste is intended for land disposal, unless the claimant meets the
exemption requirements in Sec. 261.37(f).
(7) Records.--The claimant must maintain records of the following
information in files on-site for three years after the date of the
relevant test:
(i) For initial testing, all information submitted under
Sec. 261.37(b)(4) and all revisions to such material submitted under
Sec. 261.37(e)(2), all information obtained under Sec. 261.37(e)(1),
and all information required to be maintained under
Sec. 261.37(e)(7)(iii);
(ii) For retests:
(A) All volume determinations made for the purpose of determining
testing frequency under Sec. 261.37(e)(3);
(B) All sampling and analysis plans required under
Sec. 261.37(e)(4);
(C) All analytical results and estimates of leachable
concentrations (if any) for constituents required to be assessed under
Sec. 261.37 (e)(5);
(D) Documentation showing that a waste exiting using any
constituent exit level from Table B to Appendix XI to this part has met
applicable treatment standards under Sec. 268.40 of this chapter,
unless the claimant also claims the exemption under Sec. 261.37(f); and
(iii) For both initial tests and retests, the claimant must also
retain records of:
(A) The dates and times waste samples were obtained, and, for total
concentrations and leachable concentrations that were analyzed, the
dates of the analyses;
(B) The names and qualifications of the person(s) who obtained the
samples;
(C) A description of the temporal and spatial locations of the
samples;
(D) The name and address of the laboratory facility at which
analyses of the samples were performed;
(E) A description of the analytical methods used, including any
clean-up and extraction methods;
(F) All quantitation limits achieved and all other quality control
results (including any method blanks, duplicate analyses, and matrix
spikes), laboratory quality assurance data, and a description of any
deviations from published analytical methods or from the plan which
occurred; and
(G) All laboratory documentation that supports the analytical
results, unless a contract between the claimant and the laboratory
provides for the documentation to be maintained by the laboratory for
the period specified in Sec. 261.37 (b)(2) and also provides for the
availability of the documentation to the claimant upon request. Failure
to satisfy any of these conditions voids the exemption and requires
management of the waste for which the exemption has been claimed as
hazardous waste. Submission of notification to the Director that all
waste conditions have been satisfied re-establishes the exemption for
all waste generated after that date.
(f) Exemption from part 268 requirements.--If all hazardous
constituent levels in a waste qualifying for exemption are at or below
the appendix XI to this part concentration levels at the waste's point
of generation, prior to any mixing with other solid or hazardous wastes
and prior to any treatment, the waste is exempt from all requirements
of part 268 of this chapter. The claimant also must meet the following
documentation requirements:
(1) For initial tests, in place of the certification required at
Sec. 261.37 (b)(4)(ix), the claimant must submit the following
statement signed by the person claiming the exemption or his authorized
representative and, if the claimant is not the generator of the waste,
also signed by the generator or his authorized representative:
Under penalty of criminal and civil prosecution for making or
submitting false statements, representations, or omissions, I
certify that, for the waste identified in this notification, the
concentration of all constituents assessed as required under
Sec. 261.37 (b)(1)(iv) met the applicable levels in appendix XI to
this part 261 at the point of generation and that all other
requirements of 40 CFR 261.37 (b) have been met. I also certify that
arrangements have been made to dispose of the waste in a landfill or
monofill (and not a land application unit). Copies of the records
and information required at 40 CFR 261.37 (e)(7) are available at
the claimant's facility. Based upon my inquiry of the individuals
immediately responsible for obtaining the information, the
information is, to the best of my knowledge and belief, true,
accurate, and complete. I am aware that there are significant
penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations.''; and
(2) For every retest required under Sec. 261.37(e)(3), the claimant
must document that the concentrations of all constituents retested as
required under Sec. 261.37(e)(4) met the applicable levels in appendix
XI to this part 261 at the waste's point of generation, must include
information supporting this claim from the waste's generator if the
generator is not the person asserting the claim, and must retain such
documentation in files on-site for three years after the date of the
relevant test.
(g) Nothing in this paragraph preempts, overrides, or otherwise
negates the provision in Sec. 262.11 of this chapter, which requires
any person who generates a solid waste to determine if that waste is a
hazardous waste.
(h) In an enforcement action, the burden of proof to establish
conformance with the exemption criteria shall be on the claimant.
7. Appendix X is added to read as follows:
[[Page 66445]]
Appendix X
Table A.--Modeled or Extrapolated Risk-Based Exit Levels
--------------------------------------------------------------------------------------------------------------------------------------------------------
MCL benchmark option Toxicity benchmark option
-------------------------------------------------------------------------------------------------------------
CAS No. Name Wastewater Nonwastewater Wastewater Nonwastewater
-------------------------------------------------------------------------------------------------------------
Totals (mg/l) Totals (mg/kg) Leach (mg/l) Totals (mg/l) Totals (mg/kg) Leach (mg/l)
--------------------------------------------------------------------------------------------------------------------------------------------------------
83-32-9................ Acenaphthene..... 31 9500 5 31 9500 5
208-96-8............... Acenaphthylene... (\1\) 4 (\1\) (\1\) 4 (\1\)
67-64-1................ Acetone.......... 16 17000 6 16 17000 6
75-05-8................ Acetonitrile..... 0.78 920 0.3 0.78 920 0.3
98-86-2................ Acetophenone..... 17 1200 6 17 1200 6
75-36-5................ Acetyl chloride.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
591-08-2............... Acetyl-2- (\1\) (\1\) 6 (\1\) (\1\) 6
thiourea, 1-.
53-96-3................ Acetylaminofluore 0.028 3 (\1\) 0.028 3 (\1\)
ne, 2-.
107-02-8............... Acrolein......... (\1\) 3 ................ (\1\) 3 ................
79-06-1................ Acrylamide....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
107-13-1............... Acrylonitrile.... (\1\) 0.96 (\1\) (\1\) 0.96 (\1\)
1402-68-2.............. Aflatoxins....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
116-06-3............... Aldicarb......... (\1\) (\1\) 0.54 (\1\) (\1\) 0.48
309-00-2............... Aldrin........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
107-18-6............... Allyl Alcohol.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
107-05-1............... Allyl chloride... 0.074 260 ................ 0.074 260 ................
92-67-1................ Aminobiphenyl, 4- 0.028 3 (\1\) 0.028 3 (\1\)
2763-96-4.............. Aminomethyl-3- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
isoxazolol, 5-.
504-24-5............... Aminophyridine, 4- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
.
61-82-5................ Amitrole......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
62-53-3................ Aniline.......... 0.053 4 0.017 0.053 4 0.017
120-12-7............... Anthracene....... (\1\) 4 (\1\) (\1\) 4 (\1\)
7440-36-0.............. Antimony......... 0.14 9 0.053 0.14 9 0.053
140-57-8............... Aramite.......... 15 6900 11 15 6900 11
7440-38-2.............. Arsenic.......... 0.38 (\1\) 0.15 (\1\) (\1\) (\1\)
2465-27-2.............. Auramine......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
115-02-6............... Azaserine........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7440-39-3.............. Barium........... 28 2100 11 33 2100 16
71-43-2................ Benzene.......... 0.021 110 0.009 0.018 110 0.0054
92-87-5................ Benzidine........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
106-51-4............... Benzoquinone, p-. 15 6900 11 15 6900 11
98-07-7................ Benzotrichloride. (\1\) 140 (\1\) (\1\) 140 (\1\)
50-32-8................ Benzo(a)pyrene... 0.0023 0.23 0.0036 0.0023 0.23 (\1\)
205-99-2............... Benzo(b)- 0.00081 4 0.000066 0.00081 4 0.000066
fluoranthene.
205-82-3............... Benzo(j)- 0.0029 4 0.0012 0.0029 4 (\1\)
fluoranthene.
207-08-9............... Benzo(k)- 0.0029 4 0.0012 0.0029 4 (\1\)
fluoranthene.
191-24-2............... Benzo[g,h,i]- 0.0029 4 0.0012 0.0029 4 (\1\)
perylene.
100-51-6............... Benzyl alcohol... 39 2700 15 39 2700 15
100-44-7............... Benzyl chloride.. 1 38 15 1 38 15
56-55-3................ Benz(a) 0.00072 0.1 (\1\) 0.00072 0.1 (\1\)
anthracene.
225-51-4............... Benz[c]acridine.. 0.0029 4 0.0012 0.0029 4 (\1\)
7440-41-7.............. Beryllim......... 0.00083 (\1\) o.00032 0.00083 (\1\) 0.00032
39638-32-9............. Bis (2- 0.007 0.94 0.0019 0.007 0.94 0.0019
chloroisopropyl)
ether.
111-44-4............... Bis(2- 0.00065 0.12 0.00036 0.00065 0.12 0.00036
chlorethyl)ether.
117-81-7............... Bis(2- 0.00044 230 0.11 0.00044 230 0.0011
ethylhexyl)phtha
late.
542-88-1............... Bis(chloromethyl) (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
ether.
598-31-2............... Bromoacetone..... 0.024 31 0.012 0.023 31 0.015
75-27-4................ Bromodichlorometh 0.0085 19 0.0025 0.0085 19 0.0025
ane.
75-25-2................ Bromoform 0.064 170 0.018 0.064 170 0.018
(Tribromomethane
).
101-55-3............... Bromophyenyl 0.024 31 0.012 0.023 31 0.015
ether, 4-.
357-57-3............... Brucine.......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
71-36-3................ Butanol.......... 16 1800 6 16 18000 6
88-85-7................ Butyl-4,6- 0.034 770 0.011 0.19 770 0.064
dinitrophenol, 2-
sec- (Dinoseb).
85-68-7................ Butylbenzylphthal 240 87 64 240 87 64
ate.
7440-43-9.............. Cadmium.......... 0.038 14 0.015 0.24 14 0.11
86-74-8................ Carbazole........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
[[Page 66446]]
75-15-0................ Carbon disulfide. 0.74 330 6 0.74 330 6
353-50-4............... Carbon (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
oxyfluoride.
56-23-5................ Carbon 0.012 9 0.012 0.012 9 0.0016
tetrachloride.
75-87-6................ Chloral.......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
305-03-3............... Chlorambucil..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
57-74-9................ Chlordane........ (\1\) 0.0098 0.036 (\1\) 0.0098 0.00016
494-03-1............... Chlornaphazin.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
126-99-8............... Chloro-1,3- 0.52 290 ................ 0.52 290 ................
butadiene, 2-
(Chloroprene).
107-20-0............... Chloroacetaldehyd (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
e.
106-47-8............... Chloroaniline, p- 0.42 140 0.16 0.42 140 0.16
108-90-7............... Chlorobenzene.... 0.68 2500 0.19 2 2500 1
510-15-6............... Chlorobenzilate.. 0.054 7 0.0057 0.054 7 0.0057
124-48-1............... Chlorodibromometh 0.0066 28 0.0018 0.0066 28 0.0018
ane.
75-00-3................ Chloroethane 0.024 31 0.012 0.023 31 0.015
(ethyl chloride).
110-75-8............... Chloroethyl vinyl (\1\) 140 (\1\) (\1\) 140 (\1\)
ether, 2-.
67-66-3................ Chloroform....... 0.0076 7 0.017 0.0076 7 0.017
59-50-7................ Chloro-m-cresol, 0.27 140 0.033 0.081 140 0.032
p-.
107-30-2............... Chloromethyl (\1\) 31 (\1\) (\1\) 31 (\1\)
methyl ether.
91-58-7................ Chloronaphthalene 0.27 140 0.033 0.081 140 0.032
, 2-.
95-57-9................ Chlorophenol, 2-. 0.9 100 0.32 0.9 100 0.32
7005-72-3.............. Chlorophenyl 0.024 31 0.012 0.023 31 0.015
phenyl ether, 4-.
5344-82-1.............. Chlorophenyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
thiourea, 1-0-.
542-76-7............... Chloropropionitri 0.27 140 (\1\) (\1\) 140 (\1\)
le, 3-.
7440-47-3.............. Chromium......... 0.62 10 0.24 1 10 0.48
218-01-9............... Chrysene......... 0.1 35 0.0012 0.1 35 0.0012
6358-53-8.............. Citrus red No. 2. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7440-48-4.............. Cobalt........... 0.62 9 (\1\) 1 9 (\1\)
7440-50-8.............. Copper........... 670 6 1100 670 6 1100
108-39-4............... Cresol, m-....... 8 22000 3 8 22000 3
95-48-7................ Cresol, o-....... 8 27000 3 8 27000 3
106-44-5............... Cresol, p-....... 0.84 2600 0.32 0.84 2600 0.32
4170-30-3.............. Crotonaldehyde... 8 1200 6 8 1200 6
57-12-5................ Cyanide.......... (\1\) 20 (\1\) (\1\) 20 (\1\)
14901-08-7............. Cycasin.......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
108-94-1............... Cyclohexanone.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
131-89-5............... Cyclohexyl-4,6- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
dinitrophenol, 2-
.
50-18-0................ Cyclophosphamide. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
20830-81-3............. Daunomycin....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
72-54-8................ DDD.............. 0.00013 0.0065 2800 0.00013 0.0065 2800
53-19-0................ DDD (o,p')....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
72-55-9................ DDE.............. (\1\) 0.00094 0.000062 (\1\) 0.00094 0.00062
3424-82-6.............. DDE (o,p')....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
50-29-3................ DDT.............. (\1\) 0.0032 0.0054 (\1\) 0.0032 0.0054
789-02-6............... DDT (o,p')....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
2303-16-4.............. Diallate......... 0.26 1 0.46 0.26 1 0.46
132-64-9............... Dibenzofuran..... 8 27000
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
2 8 27000 3
192-64-9............... Dibenzo[a,e]pyren 0.0029 4 0.0012 0.0029 4 (\1\)
e.
189-64-0............... Dibenzo[a,h]pyren 0.0029 4 0.0012 0.0029 4 (\1\)
e.
189-55-9............... Dibenzo[a,i]pyren 0.0029 4 0.0012 0.0029 4 (\1\)
e.
194-59-2............... Dibenzo[c,g]carba (\1\) 4 (\1\) (\1\) 4 (\1\)
zole, 7H-.
226-36-8............... Dibenz(a,h)acridi 0.0029 4 0.0012 0.0029 4 (\1\)
ne.
53-70-3................ Dibenz(a,h)anthra (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
cene.
224-42-0............... Dibenz[a,j]acridi 0.0029 4 0.0012 0.0029 4 (\1\)
ne.
96-12-8................ Dibromo-3- 0.0022 0.66 0.00038 0.00066 0.66 (\1\)
chloropropane,
1,2-.
764-41-0............... Dichloro-2- 0.024 31 0.012 0.023 31 0.016
butene, 1,4-.
110-57-6............... Dichloro-2- 0.024 31 0.012 0.023 31 0.015
butene, trans-
1,4-.
[[Page 66447]]
96-23-1................ Dichloro-2- 0.27 140 0.033 0.081 140 0.032
propanol, 1,3-.
95-50-1................ Dichlorobenzene, 8 50000 2 15 50000 6
1,2-.
541-73-1............... Dichlorobenzene, 0.024 31 0.012 0.023 31 0.015
1,3-.
106-46-7............... Dichlorobenzene, 1 64 0.22 0.056 64 0.011
1,4-.
91-94-1................ Dichlorobenzidine 0.0037 (\1\) (\1\) 0.0037 (\1\) (\1\)
, 3,3').
75-71-8................ Dichlorodifluorom 15 8100 12 15 8100 12
ethane.
75-34-3................ Dichloroethane, 0.00016 24 0.0006 0.00016 24 0.00006
1,1-.
107-06-2............... Dichloroethane, 0.007 6 0.009 0.00016 6 0.00006
1,2-.
75-35-4................ Dichloroethylene, 0.0035 3 0.013 0.00059 3 0.00018
1,1-.
156-59-2............... Dichloroethylene, 0.29 5400 0.11 2 5400 0.64
cis-1,2-.
156-60-5............... Dichloroethylene, 0.42 14000 0.16 3 14000 1
trans-1,2-.
111-91-1............... Dichloromethoxy 0.024 31 0.012 0.023 31 0.015
ethane.
98-87-3................ Dichloromethylben 0.024 31 0.012 0.023 31 0.015
zene (benzal
chloride).
120-83-2............... Dichlorophenol, 0.62 770 0.18 0.62 770 0.18
2,4-.
87-65-0................ Dichlorophenol, 0.024 31 0.012 0.023 31 0.015
2,6-.
94-75-7................ Dichlorophenoxyac 0.27 3100 0.11 2 3100 0.6
etic acid, 2,4-
(2,4-D).
78-87-5................ Dichloropropane, 0.12 17 0.012 0.023 17 0.0023
1,2-.
542-75-6............... Dichloropropene, 0.0028 32 (\1\) 0.0028 32 (\1\)
1,3-.
10061-01-5............. Dichloropropene, 0.0049 3 1200 0.0049 3 1200
cis-1,3-.
10061-02-6............. Dichloropropene, 0.0049 3 1200 0.0049 3 1200
trans-1,3-.
60-57-1................ Dieldrin......... 0.000059 0.0018 0.54 0.000059 0.0018 0.54
1464-53-5.............. Diepoxybutane, 15 6900 11 15 6900 11
1,2,3,4- (2,2'-
bioxirane).
84-66-2................ Diethyl phthalate 190 4500 54 190 4500 54
311-45-5............... Diethyl-p- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
nitrophenyl
phosphate.
56-53-1................ Diethylstilbestro (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
l.
94-58-6................ Dihydrosafrole... 15 6900 11 15 6900 11
60-51-5................ Dimethoate....... 29 2 0.77 29 2 0.77
131-11-3............... Dimethyl 78 3 30 78 3 30
phthalate.
77-78-1................ Dimethyl sulfate. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
60-11-7................ Dimethylaminoazob 0.028 3 (\1\) 0.028 3 (\1\)
enzene, p-.
119-93-7............... Dimethylbenzidine (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
, 3,3'.
57-97-6................ Dimethylbenz(a)an (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
thracene, 7,12.
79-44-7................ Dimethylcarbamoyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
chloride.
122-09-8............... Dimethylphenethyl 0.16 20 0.11 0.16 20 0.11
amine, alpha,
alpha-.
105-67-9............... Dimethylphenol, 4 11000 1 4 11000 1
2,4-.
119-90-4............... Dimethyoxybenzidi 0.034 (\1\) 0.01 0.034 (\1\) 0.01
ne, 3,3-.
84-74-2................ Di-n-butyl 880 90000 100 230 90000 25
phthalate.
99-65-0................ Dinitrobenzene, 0.017 6 0.0064 0.017 6 0.0064
1,3-.
100-25-4............... Dinitrobenzene, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
1,4-.
534-52-1............... Dinitro-o-cresol, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
4,6-.
51-28-5................ Dinitrophenol, 0.27 56 0.11 0.27 56 0.11
2,4-.
121-14-2............... Dinitrotoluene, 0.29 210 0.11 0.29 210 0.11
2,4-.
606-20-2............... Dinitrotoluene, 0.17 86 0.064 0.17 86 0.064
2,6-.
117-84-0............... Di-n-octyl 0.002 4500 0.1 0.002 4500 0.1
phthalate.
123-91-1............... Dioxane, 1,4-.... 0.042 13 0.014 0.042 13 0.014
122-39-4............... Diphenylamine.... 15 1200 3 15 12000 3
122-66-7............... Diphenylhydrazine 0.16 20 0.11 0.16 20 0.11
, 1,2-.
298-04-4............... Disulfoton....... 0.013 43 13 0.013 43 13
541-53-7............... Dithiobiuret..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
D, salts, esters, 0.0069 (\1\) 0.54 0.0069 (\1\) 0.48
2,4-.
115-29-7............... Endosulfan....... 6 73 0.94 6 73 0.94
959-98-8............... Endosulfan I..... 0.0069 0.19 0.54 0.0069 0.19 0.48
33213-65-9............. Endosulfan II.... 0.0069 0.19 0.54 0.0069 0.19 0.48
1031-07-8.............. Endosulfan 0.0069 0.19 0.54 0.0069 0.19 0.48
sulfate.
145-73-3............... Endothall........ (\1\) (\1\) 0.54 (\1\) (\1\) 0.48
72-20-8................ Endrin........... 0.073 0.26 24 0.073 0.26 32
7421-93-4.............. Endrin aldehyde.. 0.0069 0.19 0.54 0.0069 0.19 0.48
53494-70-5............. Endrin ketone.... 0.0069 0.19 0.54 0.0069 0.19 0.48
106-89-8............... Epichlorohydrin.. 0.34 44 5400 0.34 44 5400
51-43-4................ Epinephrine...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
110-80-5............... Ethoxyethanol, 2- 15 6900 15 15 6900 15
141-78-6............... Ethyl acetate.... 390 270000 110 390 270000 110
51-79-6................ Ethyl carbamate.. 15 6900 11 15 6900 11
107-12-0............... Ethyl cyanide 0.16 20 0.11 0.16 20 0.11
(propionitrile).
60-29-7................ Ethyl ether...... 27 41000 11 27 41000 11
97-63-2................ Ethl methacrylate 24 3400 7 24 3400 7
[[Page 66448]]
62-50-0................ Ethyl 0.0055 (\1\) 12000 0.0055 (\1\) 12000
methanesulfonate.
100-41-4............... Ethylbenzene..... 8 550000 2 39 550000 8
106-93-4.............. Ethylene 0.00093 0.0075 0.00075 0.00036 0.0075 (\1\)
Dibromide.
75-21-8............... Ethylene oxide... 15 6900 11 15 6900 11
96-45-7............... Ethylene thiourea (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
151-56-4.............. Ethyleneimine (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
(aziridine).
52-85-7............... Famphur.......... (\1\) (\1\) 0.54 B (\1\) (\1\) 0.48
640-19-7.............. Fluoracetamide, 2- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
.
62-74-8............... Fluoracetic acid, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
sodium salt.
206-44-0.............. Fluoranthene..... 28 6000 2 28 6000 2
86-73-7............... Fluorene......... 22 90000 3 22 90000 3
16984-48-8............ Fluoride......... .................. ................ ................ ................ ................ ................
50-00-0............... Formaldehyde..... (\1\) 49 11 (\1\) 49 11
64-18-6............... Formia Acid...... 270 300000 110 270 300000 110
765-34-4.............. Glycidylaldehyde. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
319-86-8.............. HCH, delta-...... 0.0069 0.19 0.54 0.0069 0.19 0.48
76-44-8............... Heptachlor....... (\1\) 8 ................ (\1\) 8 ................
1024-57-3............. Heptachlor 0.00053 0.026 66 0.00053 0.026 0.45
epoxide.
87-68-3............... Hexachloro-1,3- 0.0079 36 0.0069 0.0079 36 0.0069
butadiene.
118-74-1.............. Hexachlorobenzene (\1\) (\1\) 0.018 (\1\) (\1\) (\1\)
319-84-6.............. Hexachloro- 0.00014 0.0033 0.11 0.00014 0.033 0.11
cyclohexane,
alpha- (alpha-
BHC).
319-85-7.............. Hexach- lorocyclo- 0.00044 0.12 0.00021 0.00044 0.12 0.00021
hexane, beta-
(beta-BHC).
58-89-9............... Hexach- lorocyc- 0.00078 0.1 2 0.00078 0.1 0.69
lohexane, gamma-
(Lindane).
77-47-4............... Hexach- lorocyc- 0.0052 1500 ................ 0.0052 1500 ................
lopentadiene.
67-72-1............... Hexachloroethane. 0.049 81 0.033 0.049 81 0.033
70-30-4............... Hexachlorophene.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
1888-71-7............. Hexachloropropene 0.27 140 0.033 0.081 140 0.032
757-58-4.............. Hexae- thylte- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
traphosphate.
591-75-6.............. Hexanone, 2-..... 8 1200 6 8 1200 6
302-01-2.............. Hydrazine........ (\1\) 20 (\1\) (\1\) 20 (\1\)
193-39-5.............. Indeno(1,2,3-cd) 0.0029 4 (\1\) 0.0029 4 (\1\)
pyrene.
74-88-4............... Iodomethane...... 0.024 31 0.012 0.023 31 0.015
78-83-1............... Isobutyl alcohol. 39 55000 15 39 55000 15
465-73-6.............. Isodrin.......... (\1\) (\1\) 0.54 (\1\) (\1\) 0.48
78-59-1............... Isophorone....... 0.53 740 0.16 0.53 740 0.16
120-58-1.............. Isosafrole....... 15 6900 11 15 6900 11
143-50-0.............. Kepone........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
303-43-4.............. Lasiocarpine..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7439-92-1............. Lead............. 30 570 12 30 570 12
108-31-6.............. Maleic anhydride. (\1\) 6900 (\1\) (\1\) 6900 (\1\)
123-33-1.............. Maleic hydrazide. 0.16 20 0.11 0.16 20 0.11
109-77-3.............. Malononitrile.... 0.16 20 0.11 0.16 20 0.11
148-82-3.............. Melphalan........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7439-97-6............. Mercury.......... 0.06 0.6 0.023 0.3 0.6 0.14
126-98-7.............. Methacrylonitrile 0.016 9 (\1\) 0.016 9 (\1\)
74-93-1............... Methanethiol..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
67-56-1............... Methanol......... 78 140000 30 78 140000 30
91-80-5............... Methapyrilene.... 0.16 20 0.11 0.16 20 0.11
16752-77-5............ Methomyl......... (\1\) (\1\) 0.54 (\1\) (\1\) 0.48
72-43-5............... Methoxychlor..... 7 19 ................ 7 19 ................
74-83-9............... Methyl bromide 0.37 500 0.92 0.37 500 0.92
(Bromomethane).
74-87-3............... Methyl chloride 0.096 91 ................ 0.096 91 ................
(Chloromethane).
78-93-3............... Methyl ethyl 78 110000 30 78 110000 30
ketone.
1338-23-4............. Methyl ethyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
ketone peroxide.
60-34-4............... Methyl hydrazine. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
108-10-1.............. Methyl isobutyl 8 17000 3 8 17000 3
ketone.
[[Page 66449]]
80-62-6............... Methyl 28 40000 8 28 40000 8
methacrylate.
66-27-3............... Methyl 0.12 2 6 0.12 2 6
methanesulfonate.
91-57-6............... Methyl (\1\) 4 (\1\) (\1\) 4 (\1\)
naphthalene, 2-.
298-00-0.............. Methyl parathion. 0.66 1 23 0.66 1 23
75-55-8............... Methylaziridine, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
2-.
56-49-5............... Methylcholanthren (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
e, 3-.
74-95-3................ Methylene bromide 0.029 8400 0.0085 2 8400 0.19
75-09-2................ Methylene 0.039 310 0.09 0.039 310 0.015
chloride.
101-14-4............... Methylenebis, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
4,4'-(2-
chloroaniline).
70-25-7................ Methyl-nitro- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
nitrosoguanidine
(MNNG).
56-04-2................ Methylthiouracil. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
50-07-7................ Mitomycin C...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7439-98-7.............. Molybdenum....... 2 110 2 2 110 2
91-20-3................ Naphthalene...... 14 120000 3 14 120000 3
130-15-4............... Naphthoquinone, 15 6900 11 15 6900 11
1,4-.
86-88-4................ Naphthyl-2- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
thiourea, 1-.
134-32-7............... Naphthylamine, 1- 0.16 20 0.11 0.16 20 0.11
91-59-8................ Naphthylamine, 2- 0.16 20 0.11 0.16 20 0.11
7440-02-0.............. Nickel........... 4 110 2 11 110 5
54-11-5................ Nicotine and 0.16 20 0.11 0.16 20 0.11
salts.
88-74-4................ Nitroaniline, 2-. (\1\) 3 (\1\) (\1\) 3 (\1\)
99-09-2................ Nitroaniline, 3-. (\1\) 3 (\1\) (\1\) 3 (\1\)
100-01-6............... Nitroaniline, 4-. 0.028 3 (\1\) 0.028 3 (\1\)
98-95-3-............... Nitrobenzene..... 0.084 45 0.032 0.084 45 0.032
55-86-7................ Nitrogen mustard. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
51-75-2................ Nitrogen mustard (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Hydrochloride
salt.
126-85-2............... Nitrogen mustard (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
N-Oxide.
302-70-5............... Nitrogen mustard (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
N-Oxide, HCI
salt.
55-63-0................ Nitroglycerine... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
99-55-8................ Nitro-o- 0.028 3 (\1\) 0.028 3 (\1\)
toluidine, 5-.
88-75-5................ Nitrophenol, 2-.. 0.025 3 (\1\) 0.0.25 3 (\1\)
100-02-7............... Nitrophenol, 4-.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
79-46-9................ Nitropropane, 2-. (\1\) 0.13 ................ (\1\) 0.13 ................
56-57-5................ Nitroquinoline-1- 0.16 20 0.11 0.16 20 0.11
oxide, 4-.
55-18-5................ Nitrosodiethylami (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
ne.
62-75-9................ Nitrosodimethylam (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
ine.
924-16-3............... Nitrosodi-n- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
butylamine.
10595-95-6............. Nitro- somethyle (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
thylamine.
1116-54-7.............. N-Nitro- sodietha- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
nolamine.
621-64-7............... N-Nitrosodi-n- (\1\) 0.023 (\1\) (\1\) 0.023 (\1\)
propylamine.
86-30-6................ N-Nitro- sodiphe- 0.2 1300 (\1\) 0.2 1300 (\1\)
nylamine.
4549-40-0.............. N-Nitrosomethyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
vinyl amine.
59-89-2................ N- 0.16 20 0.11 0.16 20 0.11
Nitrosomorpholin
e.
759-73-9............... N-Nitroso-N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
ethylurea.
684-93-5............... N-Nitroso-N- 0.16 20 0.11 0.16 20 0.11
methylurea.
615-53-2............... N-Nitroso-N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
methylurethane.
16543-55-8............. N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Nitrosonornicoti
ne.
100-75-4............... N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Nitrosopiperidin
e.
930-55-2............... N- (\1\) 0.053 (\1\) (\1\) 0.053 (\1\)
Nitroopyrrolidin
e.
13256-22-9............. N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Nitrososarcosine.
103-85-5............... N-Phenylthiourea. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
1615-80-1.............. N,N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Diethylhydrazine.
152-16-9............... Octame- thylpyro- 0.27 31 0.11 0.27 31 0.11
phospho- ramide.
20816-12-0............. Osmium Tetroxice. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
297-97-2............... O,O-Diethyl O- 0.12 2 6 0.12 2 6
pyrazinyl
phosphorothioate.
126-68-1............... O,O,O-Triethyl 0.12 (\1\) 6 0.12 (\1\) 6
phosphorothioate.
123-63-7............... Paraldehyde...... 8 1200 6 8 1200 6
56-38-2................ Parathion........ 3 0.13 12000 3 0.13 12000
608-93-5............... Pentachlorobenzen 5 210 0.054 5 210 0.054
e.
76-01-7................ Pentachloroethane 0.024 31 0.012 0.023 31 0.015
82-68-8................ Penta- chloro- 0.27 11 (\1\) 0.081 11 (\1\)
nitro-benzene
(PCNB).
87-86-5................ Pentachlorophenol 0.002 3 0.00041 0.002 3 0.00041
62-44-2................ Phenacetin....... 15 6900 11 15 6900 11
85-01-8................ Phenanthrene..... (\1\) 4 (\1\) (\1\) 4 (\1\)
108-95-2............... Phenol........... 84 160000 32 84 160000 32
62-38-4................ Phenyl mercuric (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acetate.
[[Page 66450]]
25265-76-3............. Phenylenediamines 0.16 20 0.11 0.16 20 0.11
(N.O.S.).
108-45-2............... Phenylenediamine, 0.78 780 0.3 0.78 780 0.3
m-.
106-50-3............... Phenylenediamine, 0.16 20 0.11 0.16 20 0.11
p-.
298-02-2............... Phorate.......... 0.11 160 ................ 0.11 160 ................
Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid,
dimethylethylest
er.
298-06-6............... Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid, o-o-
diethyl ester.
3288-58-2.............. Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid, o-o-
diethyl-s-methyl.
2953-29-9.............. Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid, trimethyl
ester.
85-44-9................ Phthalic (\1\) 2400 (\1\) (\1\) 2400 (\1\)
anhydride.
109-06-8............... Picoline, 2-..... 0.16 20 0.11 0.16 20 0.11
1336-36-3.............. Polychlorinated (\1\) (\1\) 0.009 (\1\) (\1\) (\1\)
biphenyls.
23950-58-5............. Pronamide........ 21 440 6 21 440 6
1120-71-4.............. Propane sultone, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
1,3-.
107-10-8............... Propylamine, n-.. 0.16 20 0.11 0.16 20 0.11
51-52-5................ Propylthiouracil. 0.12 (\1\) 6 0.12 (\1\) 6
107-19-7............... Propyn-1-ol,2-... 39 37000 15 39 37000 15
129-00-0............... Pyrene........... 54 16000 2 54 16000 2
110-86-1............... Pyridine......... 0.16 810 0.06 0.16 810 0.06
50-55-5................ Reserpine........ 0.16 20 0.11 0.16 20 0.11
108-46-3............... Resorcinol....... (\1\) (\1\) 0.54 (\1\) (\1\) 0.48
81-07-2................ Saccharin and (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
salts.
94-59-7................ Safrole.......... 0.0035 11 (\1\) 0.0035 11 (\1\)
7782-49-2.............. Selenium......... 0.23 (\1\) 0.089 0.93 (\1\) 0.36
7440-22-4.............. Silver........... 200 (\1\) ................ 200 (\1\) ................
18883-66-4............. Streptozotocin... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
57-24-9................ Strychnine....... 0.045 (\1\) 0.016 0.045 (\1\) 0.016
100-42-5............... Stryene.......... 0.91 630000 0.22 64 630000 15
18496-25-8............. Sulfide.......... .................. ................ ................ ................ ................ ................
1746-01-6.............. TCDD,2,3,7,8-.... (\1\) 8.000E-06 5.400E-07 (\1\) 8.000E-06 (\1\)
95-94-3................ Tetrachlorobenzen 0.23 170 0.032 0.23 170 0.032
e, 1,2,4,5-.
630-20-6............... Tetrachloroethane 0.024 130 0.0078 0.024 130 0.0078
, 1,1,1,2-.
79-34-5................ Tetrachloroethane 0.0037 29 0.0077 0.0037 29 0.0077
, 1,1,2,2-.
127-18-4............... Tetrachloroethyle 0.026 13000 0.0085 2 13000 0.68
ne.
58-90-2................ Tetrachlorophenol 2 6200 0.58 2 6200 0.58
, 2,3,4,6-.
107-49-3............... Tetraethylpyropho (\1\) 6900 (\1\) (\1\) 6900 ( \1\ )
sphate.
3689-24-5.............. Tetraethyldithiop 0.23 3 ................ 0.23 3 ................
yrophosphate.
7440-28-0.............. Thallium (l)..... 0.035 5 0.014 0.05 5 0.019
62-55-5................ Thioacetamide.... (\1\) (\1\) (\1\) (\1\) (\1\) ( \1\ )
39196-18-4............. Thiofanox........ 0.12 (\1\) 6 0.12 (\1\) 6
108-98-5............... Thiophenol....... 0.12 2 6 0.12 2 6
79-19-6................ Thiosemicarbazide (\1\) (\1\) (\1\)(\1\) (\1\) (\1\) (\1\)
62-56-6................ Thiourea......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
137-26-8............... Thiram........... (\1\) (\1\) 0.54 (\1\) (\1\) 0.48
7440-31-5.............. Tin.............. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
108-88-3............... Toluene.......... 6 180000 2 30 180000 13
584-84-9............... Toluene (\1\) 20 (\1\) (\1\) 20 (\1\)
diisocyanate.
95-80-7................ Toluenediamine,2, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
4-.
823-40-5............... Toluenediamine,2, 0.16 20 0.11 0.16 20 0.11
6-.
496-72-0............... Toluenediamine,3, 0.16 20 0.11 0.16 20 0.11
4-.
636-21-5............... Toluidine 0.16 20 0.11 0.16 20 0.11
hydrochloride, o-
.
95-53-4................ Toluidine, o-.... (\1\) 2 (\1\) (\1\) 2 (\1\)
106-49-0............... Toluidine, p-.... (\1\) 0.13 (\1\) (\1\) 0.13 (\1\)
8001-35-2.............. Toxaphene........ (\1\) (\1\) 6 (\1\) (\1\) 0.11
76-13-1................ Trichloro-1,2,2- 0.77 ................ 0.17 2200 ................ 2400
trifluoroethane,
1,1,2-.
[[Page 66451]]
120-82-1............... Trichlorobenzene, 0.69 3500 1 0.69 3500 1
1,2,4-.
72-55-6................ Trichloroethane, 74 48000 0.054 74 48000 0.054
1,1,1-.
79-00-5................ Trichloroethane, 0.012 11 0.009 0.007 11 0.0018
1,1,2-.
79-01-6................ Trichloroethylene 0.024 570 0.008 0.038 570 0.013
75-69-4................ Trichlorofluorome 48 26000 16 48 26000 16
thane.
75-70-7................ Trichloromethanet (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
hiol.
95-95-4................ Trichlorophenol, 18 12000 4 18 12000 4
2,4,5-.
88-06-2................ Trichlorophenol, 0.054 120 0.015 0.054 120 0.015
2,4,6-.
93-76-5................ Trichlorophenoxya 2 63 0.64 2 63 0.64
cetic acid,
2,4,5- (245-T).
93-72-1................ Trichlorophenoxyp 0.21 6 0.08 1 6 0.48
ropionic acid,
2,4,5-(Silvex).
96-18-4................ Trichloropropane, 1 870 0.34 1 870 0.34
1,2,3-.
99-35-4................ Trinitrobenzene, 0.0078 0.44 0.003 0.0078 0.44 0.003
sym-.
126-72-7............... Tris (2,3- (\1\) 0.36 (\1\) (\1\) 0.36 (\1\)
dibromopropyl)
phosphate.
52-24-4................ Tris(1- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
azridinyl)phosph
ine sulfide.
72-57-1................ Trypan blue...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
66-75-1................ Uracil mustard... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7440-62-2.............. Vanadium......... 10 250 4 10 250 4
108-05-4............... Vinyl acetate.... 15 6900 11 15 6900 11
75-01-4................ Vinyl chloride... 0.002 1 0.003 (\1\) 1 (\1\)
81-81-2................ Warfarin......... (\1\) (\1\) 0.54 (\1\) (\1\) 0.48
1330-20-7.............. Xylenes (total).. 22 170000 21 22 170000 150
7440-66-6.............. Zinc............. 99 320 38 99 320 38
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ See Table B.
Table B.--Quantitation-Based Exit Levels
--------------------------------------------------------------------------------------------------------------------------------------------------------
MCL benchmark option Toxicity benchmark option
-----------------------------------------------------------------------------------------------------------
CAS No. Name Wastewater Nonwastewater Wastewater Nonwastewater
-----------------------------------------------------------------------------------------------------------
Totals (mg/l) Totals (mg/kg) Leach (mg/l) Totals (mg/l) Totals (mg/kg) Leach (mg/l)
--------------------------------------------------------------------------------------------------------------------------------------------------------
208-96-8................ Acenaphthylene.... 0.02 ................ 0.02 0.02 ................ 0.02
75-36-5................. Acetyl chloride... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
591-08-2................ Acetyl-2-thiourea, 1 70 ................ 1 70 ................
1-.
53-96-3................. Acetylaminofluoren ................ ................ 0.02 ................ ................ 0.02
e, 2-.
107-02-8................ Acrolein.......... 0.013 ................ ................ 0.013 ................ ................
79-06-1................. Acrylamide........ 0.01 0.1 0.01 0.01 0.1 0.01
107-13-1................ Acrylonitrile..... 0.008 ................ 0.008 0.008 ................ 0.008
1402-68-2............... Aflatoxins........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
116-06-3................ Aldicarb.......... 0.05 1 ................ 0.05 1 ................
309-00-2................ Aldrin............ 0.000034 0.0006 0.000034 0.000034 0.0006 0.000034
107-18-6................ Allyl alcohol..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
92-67-1................. Aminobiphenyl, 4-. ................ ................ 0.02 ................ ................ 0.02
2763-96-4............... Aminomethyl-3- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
isoxazolol, 5-.
504-24-5................ Aminopyridine, 4-. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
61-82-5................. Amitrole.......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
120-12-7................ Anthracene........ 0.007 ................ 0.007 0.007 ................ 0.007
7440-38-2............... Arsenic........... ................ 0.3 ................ 0.0005 0.3 0.0005
2465-27-2............... Auramine.
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
115-02-6................ Azaserine......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
92-87-5................. Benzidine......... 0.0025 0.042 0.0025 0.0025 0.042 0.0025
98-07-7................. Benzotrichloride.. (\1\) ................ (\1\) (\1\) ................ (\1\)
50-32-8................. Benzo(a)pyrene.... ................ ................ ................ ................ ................ 0.000023
205-82-3................ Benzo(j)fluor- ................ ................ ................ ................ ................ 0.0002
anthene.
207-08-9................ Benzo(k)- ................ ................ ................ ................ ................ 0.0002
fluoranthene.
191-24-2................ Benzo[g,h,i]- ................ ................ ................ ................ ................ 0.0008
perylene.
56-55-3................. Benz(a)anth- ................ ................ 0.000013 ................ ................ 0.000013
racene.
225-51-4................ Benz[c]acri- dine. ................ ................ ................ ................ ................ 0.0005
7440-41-7............... Beryllium......... ................ 0.1 ................ ................ 0.1 ................
542-88-1................ Bis(chloro- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
methyl) ether.
357-57-3................ Brucine........... 20 (\1\) 20 20 (\1\) 20
86-74-8................. Carbazole......... (\1\ (\1\) (\1\) (\1\) (\1\) (\1\)
353-50-4................ Carbon oxyfluoride (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
[[Page 66452]]
75-87-6................. Chloral........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
305-03-3................ Chlorambucil...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
57-74-9................. Chlordane......... 0.00004 ................ ................ 0.00004 ................ ................
494-03-1................ Chlornaphazin..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
107-20-0................ Chloroacetaldehyde (\1\ (\1\) (\1\) (\1\) (\1\) (\1\)
110-75-8................ Chloroethyl vinyl (\1\) ................ (\1\) (\1\) ................ (\1\)
ether, 2-.
107-30-2................ Chloromethyl (\1\) ................ (\1\) (\1\) ................ (\1\)
methyl ether.
5344-82-1............... Chlorophenyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
thiourea, 1-o-.
542-76-7................ Chloropropionitril ................ ................ 0.1 0.1 ................ 0.1
e, 3-.
6358-53-8............... Citrus red No. 2.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7440-48-4............... Cobalt............ ................ ................ 0.5 ................ ................ 0.5
57-12-5................. Cyanide........... 0.2 ................ 0.2 0.2 ................ 0.2
14901-08-7.............. Cycasin........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
108-94-1................ Cyclohexanone..... 10 ................ 10 10 ................ 10
131-89-5................ Cyclohexyl-4,6- 0.1 7 0.1 0.1 7 0.1
dinitrophenol, 2-.
50-18-0................. Cyclophosphamide.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
20830-81-3.............. Daunomycin........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
53-19-0................. DDD (o,p\1\)...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
72-55-9................. DDE............... 0.000058 ................ ................ 0.000058 ................ ................
3424-82-6............... DDE (o,p\1\)...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
50-29-3................. DDT............... 0.000081 ................ ................ 0.000081 ................ ................
789-02-6................ DDT (o,p\1\)...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
192-65-4................ Dibenzo[a,e]- ................ ................ ................ ................ ................ 0.001
pyrene.
189-64-0................ Dibenzo[a,h]- ................ ................ ................ ................ ................ 0.0002
pyrene.
189-55-9................ Dibenzo(a,i)pyrene ................ ................ ................ ................ ................ 0.0002
194-59-2................ Dibenzo(c,g)car- 0.01 ................ 0.01 0.01 ................ 0.01
bazole, 7H-.
226-36-8................ Dibenz(a,h)acri- ................ ................ ................ ................ ................ 0.0002
dine.
53-70-3................. Dibenz(a,h)ant- 0.00003 0.084 0.00003 0.00003 0.084 0.00003
hracene.
224-42-0................ Dibenz(a,j)acridin ................ ................ ................ ................ ................ 0.001
e.
96-12-8................. Dibromo-3- ................ ................ ................ ................ ................ 0.00026
chloropropane,
1,2-.
91-94-1................. Dichlorobenzidine, ................ 0.12 0.0024 ................ 0.012 0.0024
3,3\1\-.
542-75-6................ Dichloropropene, ................ ................ 0.0009 ................ ................ 0.0009
1,3-.
311-45-5................ Diethyl-p- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
nitrophenyl
phosphate.
56-53-1................. Diethylstilbestrol 0.0078 1 0.0078 0.0078 1 0.0078
77-78-1................. Dimethyl sulfate.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
60-11-7................. Dimethylaminoazobe ................ ................ 0.01 ................ ................ 0.01
nzene, p-.
119-93-7................ Dimethylbenzidine, 0.0033 0.7 0.0033 0.0033 0.7 0.0033
3,3\1\-.
57-97-6................. Dimethylbenz- 0.00037 0.039 0.00037 0.00037 0.039 0.00037
(a)anthracene,
7,12-.
79-44-7................. Dimethylcarbamoyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
chloride.
119-90-4................ Dimethyoxybenzidin ................ 7 ................ ................ 7 ................
e, 3,3\1\-.
100-25-4................ Dinitrobenzene, 0.04 3 0.04 0.04 3 0.4
1,4-.
534-52-1................ Dinitro-o-cresol, 0.05 3 0.05 0.05 3 0.05
4,6-.
541-53-7................ Dithiobiuret...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
D, salts, esters, ................ 0.2 ................ ................ 0.2 ................
2,4-.
145-73-3................ Endothall......... 0.1 (\1\) ................ 0.1 (\1\) ................
51-43-4................. Epinephrine....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
62-50-0................. Ethyl ................ 0.018 ................ ................ 0.018 ................
methanesulfonate.
106-93-4................ Ethylene Dibromide ................ ................ ................ ................ ................ 0.00006
96-45-7................. Ethylene thiourea. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
151-56-4................ Ethyleneimine (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
(aziridine).
52-85-7................. Famphur........... 0.02 1 ................ 0.02 1 ................
640-19-7................ Fluoracetamide, 2- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
62-74-8................. Fluoracetic acid, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
sodium salt.
16984-48-8.............. Fluoride.......... ................ ................ ................ ................ ................ ................
50-00-0................. Formaldehyde...... 0.023 ................ ................ 0.023 ................ ................
765-34-4................ Glycidylaldehyde.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
76-44-8................. Heptachlor........ 0.00004 ................ ................ 0.00004 ................ ................
[[Page 66453]]
118-74-1................ Hexachlorobenzene. 0.0016 0.072 ................ 0.0016 0.072 0.0016
70-30-4................. Hexachlorophene... 0.21 2 0.21 0.21 2 0.21
757-58-4................ Hexaethyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
tetraphosphate.
302-01-2................ Hydrazine......... (\1\) ................ (\1\) (\1\) ................ (\1\)
193-39-5................ Indeno(1,2,3-cd) ................ ................ 0.000043 ................ ................ 0.000043
pyrene.
465-73-6................ Isodrin........... 0.02 1 ................ 0.02 1 ................
143-50-0................ Kepone............ 0.016 0.097 0.016 0.016 0.097 0.016
303-43-4................ Lasiocarpine...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
108-31-6................ Maleic anhydride.. (\1\) ................ (\1\) (\1\) ................ (\1\)
148-82-3................ Melphalan......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
126-98-7................ Methacrylonitrile. ................ ................ 0.009 ................ ................ 0.009
74-93-1................. Methanethiol...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
16752-77-5.............. Methomyl.......... 0.05 3 ................ 0.05 3 ................
1338-23-4............... Methyl ethyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
ketone peroxide.
60-34-4................. Methyl hydrazine.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
91-57-6................. Methyl 0.01 ................ 0.01 0.01 ................ 0.01
naphthalene, 2-.
75-55-8................. Methylaziridine, 2- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
.
56-49-5................. Methylcholanthrene 0.01 0.046 0.01 0.01 0.046 0.01
, 3-.
101-14-4................ Methylenebis, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
4,4\1\-(2-
chloroaniline).
70-25-7................. Methyl-nitro- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
nitrosoguanidine
(MNNG).
56-04-2................. Methylthiouracil.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
50-07-7................. Mitomycin C....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
86-88-4................. Naphthyl-2- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
thiourea, 1-.
88-74-4................. Nitroaniline, 2-.. 0.05 ................ 0.05 0.05 ................ 0.05
99-09-2................. Nitroaniline, 3-.. 0.05 ................ 0.05 0.05 ................ 0.05
100-01-6................ Nitroaniline, 4-.. ................ ................ 0.02 ................ ................ 0.02
55-86-7................. Nitrogen mustard.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
51-75-2................. Nitrogen mustard (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
hydrochloride
salt.
126-85-2................ Nitrogen mustard N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Oxide.
302-70-5................ Nitrogen mustard N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Oxide, HCI salt.
55-63-0................. Nitroglycerine.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
99-55-8................. Nitro-o-toluidine, ................ ................ 0.01 ................ ................ 0.01
5-.
88-75-5................. Nitrophenol, 2-... ................ ................ 0.01 ................ ................ 0.01
100-02-7................ Nitrophenol, 4-... 0.05 3 0.05 0.05 3 0.05
79-46-9................. Nitropropane, 2-.. 0.0058 ................ ................ 0.0058 ................ ................
55-18-5................. Nitrosodiethylamin 0.002 1 0.002 0.002 1 0.002
e.
62-75-9................. Nitrosodimethylami 0.0006 0.074 0.0006 0.0006 0.074 0.0006
ne.
924-16-3................ Nitrosodi-n- 0.06 ................ 0.06 0.06 ................ 0.06
butylamine.
10595-95-6.............. Nitrosomethylethyl 0.028 0.016 0.028 0.028 0.016 0.028
amine.
1116-54-7............... N- 0.01 0.7 0.01 0.01 0.7 0.01
Nitrosodiethanola
mine.
621-64-7................ N-Nitrosodi-n- 0.026 ................ 0.026 0.026 ................ 0.026
propylamine.
86-30-6................. N- ................ ................ 0.05 ................ ................ 0.05
Nitrosodiphenylam
ine.
4549-40-0............... N-Nitrosomethyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
vinyl amine.
759-73-9................ N-Nitroso-N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
ethylurea.
615-53-2................ N-Nitroso-N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
methylurethane.
16543-55-8.............. N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Nitrosonornicotin
e.
100-75-4................ N- 0.0014 0.033 0.0014 0.0014 0.033 0.0014
Nitrosopiperidine.
930-55-2................ N- 0.0047 ................ 0.0047 0.0047 ................ 0.0047
Nitrosopyrrolidin
e.
13256-22-9.............. N-Nitrososarcosine (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
103-85-5................ N-Phenylthiourea.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
1615-80-1............... N,N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Diethylhydrazine.
20816-12-0.............. Osmium tetroxide.. 3 200 3 3 200 3
126-68-1................ O,O,O-Triethyl ................ 3 ................ ................ 3 ................
phosphorothioate.
82-68-8................. Pentachloronitrobe ................ ................ 0.02 ................ ................ 0.02
nzene (PCNB).
85-01-8................. Phenanthrene...... 0.006 ................ 0.006 0.006 ................ 0.006
62-38-4................. Phenyl mercuric (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acetate.
Phosphorodithiolic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid,
dimethylethyleste
r.
298-06-6................ Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid, o-o-diethyl
ester.
3288-58-2............... Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid, o-o-diethyl-
s-methyl.
2953-29-9............... Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid, trimethyl
ester.
85-44-9................. Phthalic anhydride (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
1336-36-3............... Polychlorinated 0.0005 0.04 ................ 0.0005 0.04 0.0005
biphenyls.
1120-71-4............... Propane sultone, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
1,3-.
51-52-5................. Propylthiouracil.. ................ 7 ................ 7 ................
108-46-3................ Resorcinol........ 0.1 7 ................ 0.1 7 ................
81-07-2................. Saccharin and (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
salts.
[[Page 66454]]
94-59-7................. Safrole........... ................ ................ 0.0021 ................ ................ 0.0021
94-59-7................. Safrole........... ................ ................ 0.0021 ................ ................ 0.0021
7782-49-2............... Selenium.......... ................ 5 ................ ................ 5 ................
7440-22-4............... Silver............ ................ 0.3 ................ ................ 0.3 ................
18883-66-4.............. Streptozotocin.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
57-24-9................. Strychnine........ ................ 3 ................ ................ 3 ................
1746-01-6............... TCDD, 2,3,7,8-.... 1.000E-08 ................ ................ 1.000E-08 ................ 1.000E-08
107-49-3................ Tetraethyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
pyrophosphate.
62-55-5................. Thioacetamide..... 1 (\1\) 1 1 (\1\) 1
39196-18-4.............. Thiofanox......... ................ 3 ................ ................ 3 ................
79-19-6................. Thiosemicarbazide. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
62-56-6................. Thiourea.......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
137-26-8................ Thiram............ 0.05 3 ................ 0.05 3 ................
7440-31-5............... Tin............... 8 500 8 8 500 8
584-84-9................ Toluene (\1\) ................ (\1\) (\1\) ................ ................
diisocyanate.
95-80-7................. Toluenediamine, 0.013 1 0.013 0.013 1 0.013
2,4-.
95-53-4................. Toluidine, o-..... 0.012 ................ 0.012 0.012 ................ 0.012
106-49-0................ Toluidine, p-..... 0.017 ................ 0.017 0.017 ................ 0.017
8001-35-2............... Toxaphene......... 0.0013 0.03 ................ 0.0013 0.03 ................
75-70-7................. Trichloromethaneth (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
iol.
126-72-7................ Tris (2,3- 0.025 ................ 0.025 0.025 ................ 0.025
dibromopropyl)
phosphate.
52-24-4................. Tris(1-azridinyl) (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
phosphine sulfide.
72-57-1................. Trypan blue....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
66-75-1................. Uracil mustard.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
75-01-4................. Vinyl chloride.... ................ ................ ................ 0.00017 ................ 0.00017
81-81-2................. Warfarin.......... 0.05 3 ................ 0.05 3 ................
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 66455]]
8. Appendix XI is added to read as follows:
Appendix XI
Table A.--Modeled or Extrapolated Risk-Based Conditional Exit Levels
--------------------------------------------------------------------------------------------------------------------------------------------------------
MCL benchmark option Toxicity benchmark option
-----------------------------------------------------------------------------------------------------------
CAS No. Name Wastewater Nonwastewater Wastewater Nonwastewater
-----------------------------------------------------------------------------------------------------------
Totals (mg/l) Totals (mg/kg) Leach (mg/l) Totals (mg/l) Totals (mg/kg) Leach (mg/l)
--------------------------------------------------------------------------------------------------------------------------------------------------------
83-32-9.............. Acenaphthene......... 31 63000 13 31 63000 13
208-96-8............. Acenaphthylene....... (\1\) 4 (\1\) (\1\) 4 (\1\)
67-64-1.............. Acetone.............. 16 39000 21 16 39000 21
75-05-8.............. Acetonitrile......... 0.78 2200 1 0.78 2200 1
98-86-2.............. Acetophenone......... 17 75000 22 17 75000 22
75-36-5.............. Acetyl chloride...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
591-08-2............. Acetyl-2-thiourea, 1- (\1\) 590 24 (\1\) 590 24
53-96-3.............. Acetylaminofluorne, 2- 0.028 88 0.038 0.028 88 0.038
.
107-02-8............. Acrolein............. (\1\) 11 ................ (\1\) 11 ................
79-06-1.............. Acrylamide........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
107-13-1............. Acrylonitrile........ (\1\) 2 (\1\) (\1\) 2 (\1\)
1402-68-2............ Aflatoxins........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
116-06-3............. Aldicarb............. (\1\) 6 4 (\1\) 6 3
309-00-2............. Aldrin............... (\1\) 0.0045 (\1\) (\1\) 0.0045 (\1\)
107-18-6............. Allyl alcohol........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
107-05-1............. Allyl chloride....... 0.074 260 ................ 0.074 260 ................
92-67-1.............. Aminobiphenyl, 4-.... 0.028 88 0.038 0.028 88 0.038
2763-96-4............ Aminomethyl-3- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
isoxazolol, 5-.
504-24-5............. Aminopyridine, 4-.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
61-82-5.............. Amitrole............. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
62-53-3.............. Aniline.............. 0.053 170 0.072 0.053 170 0.072
120-12-7............. Anthracene........... (\1\) 4 (\1\) (\1\) 4 (\1\)
7440-36-0............ Antimony............. 0.14 85 0.18 0.14 85 0.18
140-57-8............. Aramite.............. 15 6900 37 15 6900 37
7440-38-2............ Arsenic.............. 0.38 0.53 0.52 (\1\) 0.53 0.00052
2465-27-2............ Auramine............. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
115-02-6............. Azaserine............ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7440-39-3............ Barium............... 28 34000 38 33 34000 45
71-43-2.............. Benzene.............. 0.021 250 0.039 0.018 250 0.023
92-87-5.............. Benzidine............ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
106-51-4............. Benzoquinone, p-..... 15 6900 37 15 6900 37
98-07-7.............. Benzotrichloride..... (\1\) 1200 (\1\) (\1\) 1200 (\1\)
50-32-8.............. Benzo(a)pyrene....... 0.0023 0.23 0.0036 0.0023 0.23 (\1\)
205-99-2............. Benzo(b) fluoranthene 0.00081 4 0.000066 0.00081 4 0.000066
205-82-3............. Benzo(j) fluoranthene 0.0029 4 0.0012 0.0029 4 (\1\)
207-08-9............. Benzo(k) fluoranthene 0.0029 4 0.0012 0.0029 4 (\1\)
191-24-2............. Benzo[g, h, 0.0029 4 0.0012 0.0029 4 (\1\)
i]perylene.
100-51-6............. Benzyl alcohol....... 39 130000 53 39 130000 53
100-44-7............. Benzyl chloride...... 1 81 50 1 81 50
56-55-3.............. Benz(a) anthracene... 0.00072 0.1 (\1\) 0.00072 0.1 (\1\)
225-51-4............. Benz[c] acridine..... 0.0029 4 0.0012 0.0029 4 (\1\)
7440-41-7............ Beryllium............ 0.00083 0.22 0.0011 0.00083 0.22 0.0011
39638-32-9........... Bis (2- 0.007 97 0.0088 0.007 97 0.0088
chloroisopropyl)
ether.
111-44-4............. Bis(2-chlore- 0.00065 1 0.002 0.00065 1 0.002
thyl)ether.
117-81-7............. Bis(2-ethy- 0.00044 740 0.11 0.00044 740 0.0011
lexyl)phthalate.
542-88-1............. Bis(chlor- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
omethyl)ether.
598-31-2............. Bromoacetone......... 0.024 140 0.054 0.023 140 0.053
75-27-4.............. Bromodich- 0.0085 240 0.011 0.0085 240 0.011
loromethane.
75-25-2.............. Bromoform 0.064 1600 0.081 0.064 1600 0.081
(Tribromomethane).
101-55-3............. Bromophenyl phenyl 0.024 140 0.054 0.023 140 0.053
ether, 4-.
357-57-3............. Brucine.............. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
71-36-3.............. Butanol.............. 16 41000 21 16 41000 21
88-85-7.............. Butyl-4,6- 0.034 6000 0.043 0.19 6000 0.24
dinitrophenol, 2-sec-
(Dinoseb).
85-68-7.............. Butylbenzyl- 240 87 67 240 87 67
phthalate.
[[Page 66456]]
7440-43-9............ Cadmium.............. 0.038 110 0.051 0.24 110 0.32
86-74-8.............. Carbazole............ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
75-15-0.............. Carbon disulfide..... 0.74 3800 24 0.74 3800 24
353-50-4............. Carbon oxyfluoride... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
56-23-5.............. Carbon tetrachloride. 0.012 130 0.055 0.012 130 0.0077
75-87-6.............. Chloral.............. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
305-03-3............. Chlorambucil......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
57-74-9.............. Chlordane............ (\1\) 0.19 0.036 (\1\) 0.19 0.00016
494-03-1............. Chlornaphazin........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
126-99-8............. Chloro-1,3-butabiene, 0.52 1700 ................ 0.52 1700 ................
2-(Chloroprene).
107-20-0............. Chloroacetaldehyde... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
106-47-8............. Chlororoaniline, p-.. 0.42 5800 0.56 0.42 5800 0.56
108-90-7............. Chlorobenzene........ 0.68 41000 0.81 2 41000 6
510-15-6............. Chlorobenzilate...... 0.054 14 0.029 0.054 14 0.029
124-48-1............. Chlorodibromomethane. 0.0066 200 0.0079 0.0066 200 0.0079
75-00-3.............. Chloroethane (ethyl 0.024 140 0.054 0.023 140 0.053
chloride).
110-75-8............. Chloroethyl vinyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
ether, 2-.
67-66-3.............. Chloroform........... 0.0076 76 0.075 0.0076 76 0.075
59-50-7.............. Chloro-m-cresol, p-.. 0.27 1200 0.068 0.081 1200 0.06
107-30-2............. Chloromethyl methyl (\1\) 140 (\1\) (\1\) 140 (\1\)
ether.
91-58-7.............. Chloronaphthalene, 2- 0.27 1200 0.068 0.081 1200 0.06
95-57-8.............. Chlorophenol, 2-..... 0.9 8500 1 0.9 8500 1
7005-72-3............ Chlorophenyl phenyl 0.024 140 0.054 0.023 140 0.053
ether, 4-.
5344-82-1............ Chlorophenyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
thiourea, 1-o-.
542-76-7............. Chloropropionitrile, 0.27 1200 (\1\) (\1\) 1200 (\1\)
3-.
7440-47-3............ Chromium............. 0.62 16 0.31 1 16 2
218-01-9............. Chrysene............. 0.1 35 0.0012 0.1 35 0.0012
6358-53-8............ Citrus red No. 2..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7440-48-4............ Cobalt............... 0.62 110 (\1\) 1 110 1
7440-50-8............ Copper............... 670 950 3800 670 950 3800
108-39-4............. Cresol, m-........... 8 30000 11 8 30000 11
95-48-7.............. Cresol, o-........... 8 46000 11 8 46000 11
106-44-5............. Cresol, p-........... 0.84 2900 1 0.84 2900 1
4170-30-3............ Crotonaldehyde....... 8 38000 22 8 38000 22
57-12-5.............. Cyanide.............. (\1\) 51 0.37 (\1\) 51 0.37
14901-08-7........... Cycasin.............. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
108-94-1............. Cyclohexanone........ (\1\) 38000 22 (\1\) 38000 22
131-89-5............. Cyclohexyl-4,6- (\1\) 42 (\1\) (\1\) 42 (\1\)
dinitrophenol, 2-.
50-18-0.............. Cyclophosphamide..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
20830-81-3........... Daunomycin........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
72-54-8.............. DDD.................. 0.00013 0.26 6800 0.00013 0.26 6800
53-19-0.............. DDD (o,p')........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
72-55-9.............. DDE.................. (\1\) 0.033 0.000062 (\1\) 0.033 0.000062
3424-82-6............ DDE (o,p')........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
50-29-3.............. DDT.................. (\1\) 0.11 0.0054 (\1\) 0.11 0.0054
789-02-6............. DDT (o,p')........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
2303-16-4............ Diallate............. 0.26 7 11 0.26 7 11
132-64-9............. Dibenzofuran......... 8 38000 9 8 38000 11
192-65-4............. Dibenzo- [a,e]pyrene. 0.0029 4 0.0012 0.0029 4 (\1\)
189-64-0............. Dibenzo- [a,h]pyrene. 0.0029 4 0.0012 0.0029 4 (\1\)
189-55-9............. Dibenzo- [a,i]pyrene. 0.0029 4 0.0012 0.0029 4 (\1\)
194-59-2............. Dibenzo- (\1\) 4 (\1\) (\1\) 4 (\1\)
[c,g]carbazole, 7H-.
226-36-8............. Dibenz- (a,h)acridine 0.0029 4 0.0012 0.0029 4 (\1\)
53-70-3.............. Dibenz- (a,h)anth- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
racene.
244-42-0............. Dibenz- [a,j]acridine 0.0029 4 0.0012 0.0029 4 (\1\)
96-12-8.............. Dibromo-3-chloropro- 0.0022 7 0.0017 0.00066 7 0.00052
pane, 1,2-.
764-41-0............. Dichloro-2-butene, 0.024 140 0.054 0.023 140 0.053
1,4-.
[[Page 66457]]
110-57-6............. Dichloro-2-butene, 0.024 140 0.054 0.023 140 0.053
trans-1,4-.
96-23-1.............. Dichloro-2-propanol, 0.27 1200 0.068 0.081 1200 0.06
1,3-.
95-50-1.............. Dichlorobenzene, 1,2- 8 530000 8 15 530000 32
541-73-1............. Dichlorobenzene, 1,3- 0.024 140 0.054 0.023 140 0.053
106-46-7............. Dichlorobenzene, 1,4- 1 650 1 0.056 650 0.06
91-94-1.............. Dichlorobenzidine, 0.0037 1 0.0036 0.0037 1 0.0036
3,3'-.
75-71-8.............. Dichloro- 15 8400 45 15 8400 45
difluoromethane.
75-34-3.............. Dichloroethane, 1,1-. 0.00016 110 0.00021 0.00016 110 0.00021
107-06-2............. Dichloroethane, 1,2-. 0.007 59 0.011 0.00016 59 0.00021
75-35-4.............. Dichloroethy lene, 0.0035 20 0.054 0.00059 20 0.00077
1,1-.
156-59-2............. Dichlorethylene, cis- 0.29 46000 0.39 2 46000 2
1,2-.
150-60-5............. Dichlorethylene, 0.42 130000 0.56 3 130000 4
trans-1,2-.
111-91-1............. Dichloromethoxy 0.024 140 0.054 0.023 140 0.053
ethane.
98-87-3.............. Dichloromethylbenzene 0.024 140 0.054 0.023 140 0.053
(benzal chloride).
120-83-2............. Dichlorophenol, 2,4-. 0.62 770 0.76 0.62 770 0.76
87-65-0.............. Dichlorophenol, 2,6-. 0.024 140 0.054 0.023 140 0.053
94-75-7.............. Dichlorophenoxyacetic 0.27 12000 0.37 2 12000 2
acid, 2,4- (2,4-D).
78-87-5.............. Dichloropropane, 1,2- 0.12 180 0.055 0.023 180 0.011
542-75-6............. Dichloropropene, 1,3- 0.0028 68 0.0038 0.0028 68 0.0038
10061-01-5........... Dichloropropene, cis- 0.0049 65 10000 0.0049 65 10000
1,3-.
10061-02-6........... Dichloropropene, 0.0049 62 10000 0.0049 62 10000
trans-1,3-.
60-57-1.............. Dieldrin............. 0.000059 0.048 36 0.000059 0.048 36
1464-53-5............ Diepoxybutane, 15 6900 37 15 6900 37
1,2,3,4- (2,2'-
bioxirane).
84-66-2.............. Diethyl phthalate.... 190 19000 220 190 19000 220
311-45-5............. Diethyl-p-nitrophenyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
phosphate.
56-53-1.............. Diethylstilbestrol... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
94-58-6.............. Dihydrosafrole....... 15 6900 37 15 6900 37
60-51-5.............. Dimethoate........... 29 7 4 29 7 4
131-11-3............. Dimethyl phthalate... 78 3 110 78 3 110
77-78-1.............. Dimethyl sulfate..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
60-11-7.............. Dimethyl- aminoazo- 0.028 88 0.038 0.028 88 0.038
benzene, p-.
119-93-7............. Dimethylbenzidine, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
3,3'-.
57-97-6.............. Dimethyl- benz(a)- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
anthracene, 7,12-.
79-44-7.............. Dimethylcarbamoyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
chloride.
122-09-8............. Dimethyl- phenethyl- 0.16 51 0.37 0.16 51 0.37
amine, alpha, alpha-.
105-67-9............. Dimethylphenol, 2,4-. 4 24000 5 4 24000 5
119-90-4............. Dimethyoxy- 0.034 (\1\) 0.045 0.034 (\1\) 0.045
benzidine, 3,3'-.
84-74-2.............. Di-n-butyl phthalate. 880 90000 100 230 90000 25
99-65-0.............. Dinitrobenzene, 1,3-. 0.017 60 0.022 0.017 60 0.022
100-25-4............. Dinitrobenzene, 1,4-. (\1\) 42 (\1\) (\1\) 42 (\1\)
534-52-1............. Dinitro-o-cresol, 4,6- (\1\) 42 (\1\) (\1\) 42 (\1\)
.
51-28-5.............. Dinitrophenol, 2,4-.. 0.27 450 0.37 0.27 450 0.37
121-14-2............. Dinitrotoluene, 2,4-. 0.29 1400 0.39 0.29 1400 0.39
606-20-2............. Dinitrotoluene, 2,6-. 0.17 420 0.22 0.17 420 0.22
117-84-0............. Di-n-octyl phthalate. 0.002 21000 0.1 0.002 21000 0.1
123-91-1............. Dioxane, 1,4-........ 0.042 71 0.058 0.042 71 0.058
122-39-4............. Diphenylamine........ 15 12000 15 15 12000 15
122-66-7............. Diphenylhydrazine, 0.16 51 0.37 0.16 51 0.37
1,2-.
298-04-4............. Disulfoton........... 0.013 58 120 0.013 58 120
541-53-7............. Dithiobiuret......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
D, salts, esters, 2,4- 0.0069 6 4 0.0069 6 3
.
115-29-7............. Endosulfan........... 6 150 4 6 150 4
959-98-8............. Endosulfan I......... 0.0069 6 4 0.0069 6 3
33213-65-9........... Endosulfan II........ 0.0069 6 4 0.0069 6 3
1031-07-8............ Endosulfan sulfate... 0.0069 6 4 0.0069 6 3
145-73-3............. Endothall............ (\1\) (\1\) 4 (\1\) (\1\) 3
72-20-8.............. Endrin............... 0.073 27 880 0.073
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
27 770
7421-93-4............ Endrin Aldehyde...... 0.0069 6 4 0.0069 6 3
53494-70-5........... Endrin ketone........ 0.0069 6 4 0.0069 6 3
106-89-8............. Epichlorohydrin...... 0.34 96 47000 0.34 96 47000
51-43-4.............. Epinephrine.......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
110-80-5............. Ethoxyethanol, 2-.... 15 6900 53 15 6900 53
141-78-6............. Ethyl acetate........ 390 600000 510 390 600000 510
51-79-6.............. Ethyl carbamate...... 15 6900 37 15 6900 37
107-12-0............. Ethyl cyanide 0.16 51 0.37 0.16 51 0.37
(propionitrile).
60-29-7.............. Ethyl ether.......... 27 260000 37 27 260000 37
[[Page 66458]]
97-63-2.............. Ethyl methacrylate... 24 100000 27 24 100000 27
62-50-0.............. Ethyl 0.0055 (\1\) 99000 0.0055 (\1\) 99000
methanesulfonate.
100-41-4............. Ethylbenzene......... 8 ................ 9 39 ................ 42
106-93-4............. Ethylene Dibromide... 0.00093 0.06 0.0049 0.00036 0.06 0.000098
75-21-8.............. Ethylene oxide....... 15 6900 37 15 6900 37
96-45-7.............. Ethylene thiourea.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
151-56-4............. Ethyleneimine (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
(aziridine).
52-85-7.............. Famphur.............. (\1\) 6 4 (\1\) 6 3
640-19-7............. Fluoracetamide, 2-... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
62-74-8.............. Fluoracetic acid, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
sodium salt.
206-44-0............. Fluoranthene......... 28 21000 2 28 21000 2
86-73-7.............. Fluorene............. 22 90000 7 22 90000 7
16984-48-8........... Fluoride............. ................ ................ ................ ................ ................
50-00-0.............. Formaldehyde......... (\1\) 54 37 (\1\) 54 37
64-18-6.............. Formic Acid.......... 270 680000 370 270 680000 370
765-34-4............. Glycidylaldehyde..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
319-86-8............. HCH, delta-.......... 0.0069 6 4 0.0069 6 3
76-44-8.............. Heptachlor........... (\1\) 8 ................ (\1\) 8 ................
1024-57-3............ Heptachlor epoxide... 0.00053 0.56 1900 0.00053 0.56 10
87-68-3.............. Hexachloro-1,3- 0.0079 290 0.0069 0.0079 290 0.0069
butadiene.
118-74-1............. Hexachlorobenzene.... (\1\) 0.27 0.018 (\1\) 0.27 (\1\)
319-84-6............. Hexachlorocyclohexane 0.00014 0.18 2 0.00014 0.18 2
, alpha- (alpha-BHC).
319-85-7............. Hexachlorocyclohexane 0.00044 0.64 0.0009 0.00044 0.64 0.0009
, beta- (beta-BHC).
58-89-9.............. Hexachlorocyclohexane 0.00078 0.75 26 0.00078 0.75 9
, gamma- (Lindane).
77-47-4.............. Hexachlorocyclopentad 0.0052 1500 ................ 0.0052 1500 ................
iene.
67-72-1.............. Hexachloroethane..... 0.049 890 0.11 0.049 890 0.11
70-30-4.............. Hexachlorophene...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
1888-71-7............ Hexachloropropene.... 0.27 1200 0.068 0.081 1200 0.06
757-58-4............. Hexaethyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
tetraphosphate.
591-78-6............. Hexanone, 2-......... 8 38000 22 8 38000 22
302-01-2............. Hydrazine............ (\1\) 51 (\1\) (\1\) 51 (\1\)
193-39-5............. Indeno(1,2,3-cd) 0.0029 4 (\1\) 0.0029 4 (\1\)
pyrene.
74-88-4.............. Iodomethane.......... 0.024 140 0.054 0.023 140 0.053
78-83-1.............. Isobutyl alcohol..... 39 120000 53 39 120000 53
465-73-6............. Isodrin.............. (\1\) 6 4 (\1\) 6 3
78-59-1.............. Isophorone........... 0.53 2000 0.69 0.53 2000 0.69
120-58-1............. Isosafrole........... 15 6900 37 15 6900 37
143-50-0............. Kepone............... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
303-43-4............. Lasiocarpine......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7439-92-1............ Lead................. 30 1600 41 30 1600 41
108-31-6............. Maleic anhydride..... (\1\) 6900 (\1\) (\1\) 6900 (\1\)
123-33-1............. Maleic hydrazide..... 0.16 51 0.37 0.16 51 0.37
109-77-3............. Malononitrile........ 0.16 51 0.37 0.16 51 0.37
148-82-3............. Melphalan............ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7439-97-6............ Mercury.............. 0.06 39 0.081 0.3 39 0.4
126-98-7............. Methacrylonitrile.... 0.016 72 0.021 0.016 72 0.021
74-93-1.............. Methanethiol......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
67-561............... Methanol............. 78 310000 110 78 310000 110
91-80-5.............. Methapyrilene........ 0.16 51 0.37 0.16 51 0.37
16752-77-5........... Methomyl............. (\1\) 6 4 (\1\) 6 3
72-43-5.............. Methoxychlor......... 7 280 ................ 7 280 ................
74-83-9.............. Methy bromide 0.37 850 4 0.37 850 4
(Bromomethane).
74-87-3.............. Methyl chloride 0.096 91 ................ 0.096 91 ................
(Chloromethane).
78-93-3.............. Methyl ethyl ketone.. 78 250000 110 78 250000 110
1338-23-4............ Methyl ethyl ketone (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
peroxide.
60-34-4.............. Methyl hydrazine..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
108-10-1............. Methyl isobutyl 8 38000 11 8 38000 11
ketone.
[[Page 66459]]
80-62-6.............. Methyl methacrylate.. 28 100000 33 28 100000 33
66-27-3.............. Methyl 0.12 590 24 0.12 590 24
methanesulfonate.
91-57-6.............. Methyl naphthalene, 2- (\1\) 4 (\1\) (\1\) 4 (\1\)
.
298-00-0............. Methyl parathion..... 0.66 6 110 0.66 6 110
75-55-8.............. Methylaziridine, 2-.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
56-49-5.............. Methylcholanthrene, 3- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
.
74-95-3.............. Methylene bromide.... 0.029 21000 0.037 2 21000 0.19
75-09-2.............. Methylene chloride... 0.039 720 0.09 0.039 720 0.053
101-14-4............. Methylenebis, 4,4'- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
(2-chloroaniline).
70-25-7.............. Methyl-nitro- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
nitrosoguanidine
(MNNG).
56-04-2.............. Methylthiouracil..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
50-07-7.............. Mitomycin C.......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7439-98-7............ Molybdenum........... 2 1200 2 2 1200 2
91-20-3.............. Naphthalene.......... 14 430000 15 14 430000 15
130-15-4............. Naphthoquinone, 1,4-. 15 6900 37 15 6900 37
86-88-4.............. Naphthyl-2-thiourea, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
1-.
134-32-7............. Naphthylamine, 1-.... 0.16 51 0.37 0.16 51 0.37
91-59-8.............. Naphthylamine, 2-.... 0.16 51 0.37 0.16 51 0.37
7440-02-0............ Nickel............... 4 8600 6 11 8600 14
54-11-5.............. Nicotine and salts... 0.16 51 0.37 0.16 51 0.37
88-74-4.............. Nitroaniline, 2-..... (\1\) 88 (\1\) (\1\) 88 (\1\)
99-09-2.............. Nitroaniline, 3-..... (\1\) 88 (\1\) (\1\) 88 (\1\)
100-01-6............. Nitroaniline, 4-..... 0.028 88 0.038 0.028 88 0.038
98-95-3.............. Nitrobenzene......... 0.084 520 0.11 0.084 520 0.11
55-86-7.............. Nitrogen mustard..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
51-75-2.............. Nitrogen mustard (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
hydrochloride salt.
126-85-2............. Nitrogen mustard N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Oxide.
302-70-5............. Nitrogen mustard N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Oxide, HCI salt.
55-63-0.............. Nitroglycerine....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
99-55-8.............. Nitro-o-toluidine, 5- 0.028 88 0.038 0.028 88 0.038
88-75-5.............. Nitrophenol, 2-...... 0.025 42 0.034 0.025 42 0.034
100-02-7............. Nitrophenol, 4-...... (\1\) 42 (\1\) (\1\) 42 (\1\)
79-46-9.............. Nitropropane, 2-..... (\1\) 3 ................ (\1\) 3 ................
56-57-5.............. Nitroquinoline-1- 0.16 51 0.37 0.16 51 0.37
oxide, 4-.
55-18-5.............. Nitrosodiethylamine.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
62-75-9.............. Nitrosodimethylamine. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
924-16-3............. Nitrosodi-n- (\1\) 1 (\1\) (\1\) 1 (\1\)
butylamine.
10595-95-6........... Nitrosomethylethylami (\1\) 0.035 (\1\) (\1\) 0.035 (\1\)
ne.
1116-54-7............ N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Nitrosodiethanolamin
e.
621-64-7............. N-Nitrosodi-n- (\1\) 0.22 (\1\) (\1\) 0.22 (\1\)
propylamine.
86-30-6.............. N- 0.2 3600 0.24 0.2 3600 0.24
Nitrosodiphenylamine.
45490-40-0........... N-Nitrosomethyl vinyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
amine.
59-89-2.............. N-Nitrosomorpholine.. 0.16 51 0.37 0.16 51 0.37
759-73-9............. N-Nitroso-N-ethylurea (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
684-93-5............. N-Nitroso-N- 0.16 51 0.37 0.16 51 0.37
methylurea.
100-75-4............. N-Nitrosopiperidine.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
930-55-2............. N-Nitrosopyrrolidine. (\1\) 0.36 (\1\) (\1\) 0.36 (\1\)
13256-22-9........... N-Nitrososarcosine... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
103-85-5............. N-Phenylthiourea..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
1615-80-1............ N,N-Diethylhydrazine. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
152-16-9............. Octamethylpyrophospho 0.27 31 0.37 0.27 31 0.37
ramide.
20816-12-0........... Osmium tetroxide..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
297-97-2............. O,O-Diethyl O- 0.12 590 24 0.12 590 24
pyrazinyl
phosphorothioate.
126-68-1............. O,O,O-Triethyl 0.12 590 24 0.12 590 24
phosphorothioate.
123-63-7............. Paraldehyde.......... 8 38000 22 8 38000 22
56-38-2.............. Parathion............ 3 19 160000 3 19 160000
608-93-5............. Pentachlorobenzene... 5 2300 0.054 5 2300 0.054
76-01-7.............. Pentachloroethane.... 0.024 140 0.054 0.023 140 0.053
82-68-8.............. Pentachloro- 0.27 140 (\1\) 0.081 140 (\1\)
nitrobenzene (PCNB).
87-86-5.............. Pentachlorophenol.... 0.002 22 0.0022 0.002 22 0.0022
62-44-2.............. Phenacetin........... 15 6900 37 15 6900 37
85-01-8.............. Phenanthrene......... (\1\) 4 (\1\) (\1\) 4 (\1\)
108-95-2............. Phenol............... 84 390000 110 84 390000 110
62-38-4.............. Phenyl mercuric (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acetate.
25265-76-3........... Phenylenediamines 0.16 51 0.37 0.16 51 0.37
(N.O.S.).
108-45-2............. Phenylenediamine, m-. 0.78 1700 1 0.78 1700 1
[[Page 66460]]
106-50-3............. Phenylenediamine, p-. 0.16 51 0.37 0.16 51 0.37
298-06-2............. Phorate.............. 0.11 510 ................ 0.11 510 ................
Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid,
dimethylethylester.
298-06-6............. Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid, o-o-diethyl
ester.
3288-58-2............ Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid, o-o-diethyl-s-
methyl.
2953-29-9............ Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid, trimethyl
ester.
85-44-9.............. Phthalic anhydride... (\1\) 9600 (\1\) (\1\) 9600 (\1\)
109-06-8............. Picoline, 2-......... 0.16 51 0.37 0.16 51 0.37
1336-36-3............ Polychlorinated See Table B 0.25 0.009 See Table B 0.25 (\1\)
biphenyls.
12305-58-5........... Pronamide............ 21 230000 25 21 230000 25
1120-71-4............ Propane sultone, 1,3- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
107-10-8............. Propylamine, n-...... 0.16 51 0.37 0.16 51 0.37
51-52-5.............. Propylthiouracil..... 0.12 590 24 0.12 590 24
107-19-7............. Propyn-1ol, 2-....... 39 130000 53 39 130000 53
129-00-0............. Pyrene............... 54 16000 2 54 16000 2
110-86-1............. Pyridine............. 0.16 930 0.21 0.16 930 0.21
50-55-5.............. Reserpine............ 0.16 51 0.37 0.16 51 0.37
108-46-3............. Resorcinol........... (\1\) (\1\) 4 (\1\) (\1\) (\1\)
81-07-2.............. Saccharin and salts.. (\1\) (\1\) (\1\) (\1\) (\1\)
94-59-7.............. Safrole.............. 0.0035 28 0.0044 0.0035 28 0.0044
7782-49-2............ Selenium............. 0.23 280 0.12 0.93 280 1
7440-22-4............ Silver............... 200 9 ................ 200 9 ................
18883-66-4........... Streptozotocin....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
57-24-9.............. Strychnine........... 0.045 (\1\) 0.059 0.045 (\1\) 0.059
10-42-5.............. Stryene.............. 0.91 ................ 1 64 ................ 70
18496-25-8........... Sulfide.............. ................ ................ ................ ................ ................ ................
1746-01-6............ TCDD, 2,3,7,8-....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
95-94-3.............. Tetrachlorobenzene, 0.23 1600 0.032 0.23 1600 0.032
1,2,4,5-.
630-20-6............. Tetrachloroethane 0.024 370 0.042 0.024 370 0.042
1,1,1,2-.
79-34-5.............. Tetrachloroethane, 0.0037 70 0.0077 0.0037 70 0.0077
1,1,2,2-.
127-18-4............. Tetrachloroethylene.. 0.026 100000 0.032 2 100000 3
58-90-2.............. Tetrachlorophenol, 2 35000 2 2 35000 2
2,3,4,6-.
107-49-3............. Tetraethyl (\1\) 6900 (\1\) (\1\) 6900 (\1\)
pyrophosphate.
107-49-3............. Tetraethyl (\1\) 6900 (\1\) (\1\) 6900 (\1\)
pyrophosphate.
3689-24-5............ Tetraethyldithiopyrop 0.23 1200 ................ 0.23 1200 ................
hosphate.
7440-28-0............ Thallium (I)......... 0.035 33 0.048 0.05 33 0.071
62-55-5.............. Thioacetamide........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
39196-18-4........... Thiofanox............ 0.12 590 24 0.12 590 24
108-98-5............. Thiophenol........... 0.12 590 24 0.12 590 24
79-19-6.............. Thiosemicarbazide.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
62-566............... Thiourea............. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
137-26-8............. Thiram............... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7440-31-5............ Tin.................. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
108-88-3............. Toluene.............. 6 560000 7 30 560000 51
584-84-9............. Toluene diisocyanate. (\1\) (\1\) (\1\) ................ ................
95-80-7.............. Toluenediamine, 2,4-- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
823-40-5............. Toluenediamine, 2,6-. 0.16 51 0.37 0.16 51 0.37
496-72-0............. Toluenediamine, 3,4-. 0.16 51 0.37 0.16 51 0.37
636-21-5............. Toulidene,3,4-....... 0.16 51 0.37 0.16 51 0.37
95-53-4.............. Toluidine, o-........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
106-49-0............. Toluidine, p-........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
8001-35-2............ Toxaphene............ (\1\) (\1\) 160 (\1\) (\1\) 3
76-13-1.............. Trichloro-1,2,2- 0.77 ................ 0.84 2200 ................ 12000
trifuoroethane,
1,1,2.
120-82-1............. Trichlorobenzene, 0.69 62000 3 0.69 62000 3
1,2,4-.
71-55-6.............. Trichloroethane, 74 630000 0.054 74 630000 0.054
1,1,1-.
79-00-5.............. Trichloroethane, 0.012 190 0.039 0.007 190 0.0077
1,1,2-.
[[Page 66461]]
79-01-6.............. Trichloroethylene.... 0.024 3200 0.031 0.038 3200 0.049
79-69-4.............. Trichlorofluoromethan 48 170000 61 48 170000 61
e.
75-70-7.............. Trichloromethanethiol (\1\) (\1\) (\1\) (\1\) (\1\) 22
95-95-4.............. Trichlorophenol, 18 55000 22 18 55000 22
2,4,5-.
88-06-2.............. Trichlorophenol, 0.054 160 0.068 0.054 160 0.068
2,4,6-.
93-76-5.............. Trichlorophenoxyaceti 2 150 2 2 150 2
c acid, 2,4,5- (245-
T).
93-72-1.............. Trichlorophenoxypropi 0.21 520 0.28 1 520 2
onic acid, 2,4,5-
(Silvex).
96-18-4.............. Trichloropropane, 1 14000 1 1 14000 1
1,2,3-.
99-35-4.............. Trintrobenzene, sym-. 0.0078 23 0.011 0.0078 23 0.011
126-72-7............. Tris (2,3- (\1\) 0.76 (\1\) (\1\) 0.76 (\1\)
dibromopropyl)
phosphate.
52-24-4.............. Tris (1-azridinyl) (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
phosphine sulfide.
72-57-1.............. Trypan blue.......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
66-75-1.............. Uracil mustard....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7440-62-2............ Vanadium............. 10 2700 13 10 2700 13
108-05-4............. Vinyl acetate........ 15 6900 37 15 6900 37
75-01-4.............. Vinyl chloride....... 0.002 3 0.011 (\1\) 3 0.00021
81-81-2.............. Warfarin............. (\1\) 6 4 (\1\) 6 3
1330-20-7............ Xylenes (total)...... 22 710000 100 22 710000 700
7440-66-6............ Zinc................. 99 51000 130 99 51000 130
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ See table B.
[[Page 66462]]
Table B.--Quantitation-Based Conditional Exit Levels
--------------------------------------------------------------------------------------------------------------------------------------------------------
MCL benchmark option Toxicity benchmark option
-----------------------------------------------------------------------------------------------------------
CAS No. Name Wastewater Nonwastewater Wastewater Nonwastewater
-----------------------------------------------------------------------------------------------------------
Totals (mg/l) Totals (mg/kg) Leach (mg/l) Totals (mg/l) Totals (mg/kg) Leach (mg/l)
--------------------------------------------------------------------------------------------------------------------------------------------------------
208-96-8.............. Acenaphthylene...... 0.02 ................ 0.02 0.02 ................ ................
75-36-5............... Acetyl chloride..... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
591-08-2.............. Acetyl-2-thiourea,.. 1 ................ ................ 1 ................ ................
107-02-8.............. Acrolein............ 0.013 ................ ................ 0.013 ................ ................
79-06-1............... Acrylamide.......... 0.01 0.1 0.01 0.01 0.1 0.01
107-13-1.............. Acrylonitrile....... 0.008 ................ 0.008 ................ 0.008
1402-68-2............. Aflatoxins.......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
116-06-3.............. Aldicarb............ 0.05 ................ ................ 0.05 ................ ................
309-00-2.............. Aldrin.............. 0.000034 ................ 0.000034 0.000034 ................ 0.000034
107-18-6.............. Allyl alcohol....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
2763-96-4............. Aminomethyl-3- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
isoxazolol, 5-.
504-24-5.............. Aminopyridine, 4-... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
61-82-5............... Amitrole............ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
120-12-7.............. Anthracene.......... 0.007 ................ 0.007 0.007 ................ 0.007
7440-38-2............. Arsenic............. ................ ................ ................ 0.0005 ................ ................
2465-27-2............. Auramine............ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
115-02-6.............. Azaserine........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
92-87-5............... Benzidine........... 0.0025 0.042 0.0025 0.0025 0.042 0.0025
98-07-7............... Benzotrichloride.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
50-32-8............... Benzo(a)pyrene...... ................ ................ ................ ................ ................ 0.000023
205-82-3.............. Benzo(j)fluoranthene ................ ................ ................ ................ ................ 0.0002
207-08-9.............. Benzo(k)fluoranthene ................ ................ ................ ................ ................ 0.0002
191-24-2.............. Benzo[g,h,i]perylene ................ ................ ................ ................ ................ 0.0008
56-55-3............... Benz(a)anthracene... ................ ................ 0.000013 ................ ................ 0.000013
225-51-4.............. Benz[c]acridine..... ................ ................ ................ ................ ................ 0.0005
542-88-1.............. Bis(chloromethyl) (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
ether.
357-57-3.............. Brucine............. 20 (\1\) 20 20 (\1\) 20
86-74-8............... Carbazole........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
353-50-4.............. Carbon oxyfluoride.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
75-87-6............... Chloral............. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
305-03-3.............. Chlorambucil........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
57-74-9............... Chlordane........... 0.00004 ................ ................ 0.00004 ................ ................
494-03-1.............. Chlornaphazin....... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
107-20-0.............. Chloroacetaldehyde.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
110-75-8.............. Chloroethyl vinyle (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
ether, 2-.
107-30-2.............. Chloromethyl methyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
ether.
5344-82-1............. Chlorophenyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
thiourea, 1-o-.
542-76-7.............. Chloropropionitrile, ................ ................ 0.1 0.1 ................ 0.1
3-.
6358-53-8............. Citrus red No. 2.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
7440-48-4............. Cobalt.............. ................ ................ 0.5 ................ ................ ................
57-12-5............... Cyanida............. 0.2 ................ ................ 0.2 ................ ................
14901-08-7............ Cycasin............. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
108-94-1.............. Cyclohexanone....... 10 ................ ................ 10 (\1\) (\1\)
131-89-5.............. Cyclohexyl-4,6- 0.1 (\1\) 0.1 0.1 (\1\) 0.1
dinitrophenol, 2-.
50-18-0............... Cyclophosphamide.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
20830-81-3............ Daunomycin.......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
53-19-0............... DDD (o,p').......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
72-55-9............... DDE................. 0.000058 ................ ................ 0.000058 ................ ................
3424-82-6............. DDE (o,p').......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
50-29-3............... DDT................. 0.000081 ................ ................ 0.000081 ................ ................
789-02-6.............. DDT (o,p').......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
192-65-4.............. Dibenzo- ................ ................ ................ ................ ................ 0.001
[a,e]ypyrene.
189-64-0.............. Dibenzo- [a,h]pyrene ................ ................ ................ ................ ................ 0.0002
189-64-9.............. Dibenzo- [a,i]pyrene ................ ................ ................ ................ ................ 0.0002
194-59-2.............. Dibenzo- (0.01 ................ 0.01 0.01 ................ 0.01
[c,g]carbazole, 7H-.
226-36-8.............. Dibenz- ................ ................ ................ ................ ................ 0.0002
(a,h)acridine.
53-70-3............... Dibenz- (a,h)ant- 0.00003 0.084 0.00003 0.00003 0.084 0.00003
hracene.
224-42-0.............. Dibenz[a,j] acridine ................ ................ ................ ................ ................ 0.001
311-45-5.............. Diethyl-p- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
nitrophenyl
phosphate.
56-53-1............... Diethylstibestrol... 0.0078 1 0.0078 0.0078 1 0.0078
77-78-1............... Dimethyl sulfate.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
119-93-7.............. Dimethybenzidine, 0.0033 0.7 0.0033 0.0033 0.7 0.0033
3,3'-.
57-97-6............... Dimethyl- benz(a)- 0.00037 0.039 0.00037 0.00037 0.039 0.00037
anthracene, 7,12-.
[[Page 66463]]
79-44-7............... Dimethylcarbamoyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
chloride.
119-90-4.............. Dimethy- oxyben- ................ 7 ................ ................ 7 ................
zidine, 3,3'-.
100-25-4.............. Dinitrobenzene, 1,4- 0.04 ................ 0.04 0.04 ................ 0.04
534-52-1.............. Dinitro-o-cresol, 0.05 ................ 0.05 0.05 ................ 0.05
4,6-.
541-53-7.............. Dithiobiuret........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
145-73-3.............. Endothall........... 0.1 (\1\) ................ 0.1 (\1\) ................
51-43-4............... Epinephrine......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
62-50-0............... Ethyl ................ 0.018 ................ ................ 0.018 ................
methanesulfonate.
96-45-7............... Ethylene thiourea... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
151-56-4.............. Ethyleneimine (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
(aziridine).
52-85-7............... Famphur............. 0.02 ................ ................ 0.02 ................ ................
640-19-7.............. Fluoracetamide, 2-.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
62-74-8............... Fluoracetic acid, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
sodium salt.
16984-48-8............ Fluoride............ ................ ................ ................ ................ ................ ................
50-00-0............... Formaldehyde........ 0.023 ................ ................ 0.023 ................ ................
765-34-4.............. Glycidylaldehyde.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
76-44-8............... Heptachlor.......... 0.00004 ................ ................ 0.00004 ................ ................
118-74-1.............. Hexachlorobenzene... 0.0016 ................ ................ 0.0016 ................ 0.0016
70-30-4............... Hexachlorophene..... 0.21 2 0.21 0.21 2 0.21
757-58-4.............. Hexaethyl (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
tetraphosphate.
302-01-2.............. Hydrazine........... (\1\) ................ (\1\) (\1\) ................ (\1\)
193-39-5.............. indeno(1,2,3- ................ ................ 0.000043 ................ ................ 0.000043
cde)pyrene.
465-73-6.............. Isodrin............. 0.02 ................ ................ 0.02 ................ ................
143-50-0.............. Kepone.............. 0.016 0.097 0.016 0.016 0.097 0.016
303-43-4.............. Lasiocarpine........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
108-31-6.............. Maleic anhydride.... (\1\) ................ (\1\) (\1\) ................ (\1\)
148-82-3.............. Melphalan........... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
74-93-1............... Methanethiol........ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
16752-77-5............ Methomyl............ 0.05 ................ ................ 0.05 ................ ................
1338-23-4............. Methyl ethyl ketone (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
peroxide.
60-34-4............... Methyl hydrazine.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
91-57-6............... Methyl naphthalene, 0.01 ................ 0.01 0.01 ................ 0.01
2-.
75-55-8............... Methylaziridine, 2-. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
56-49-5............... Methylcholanthrene, 0.01 0.046 0.01 0.01 0.046 0.01
3-.
101-14-4.............. Methylenebis, 4,4'- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
(2-chloroaniline).
70-25-7............... Methyl-nitro- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
nitrosoguanidine
(MNNG).
56-04-2............... Methylthiouracil.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
50-07-7............... Mitomycin C......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
86-88-4............... Naphthyl-2-thiourea, (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
1-.
88-74-4............... Nitroaniline, 2-.... 0.05 ................ 0.05 0.05 ................ 0.05
99-09-2............... Nitroaniline, 3-.... 0.05 ................ 0.05 0.05 ................ 0.05
55-86-7............... Nitrogen mustard.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
51-75-2............... Nitrogen mustard (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
hydrochloride salt.
126-85-2.............. Nitrogen mustard N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Oxide.
302-70-5.............. Nitrogen mustard N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Oxide, HCI salt.
55-63-0............... Nitroglycerine...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
110-02-7.............. Nitrophenol, 4-..... 0.05 ................ 0.05 0.05 ................ 0.05
79-46-9............... Nitropropane, 2-.... 0.0058 ................ ................ 0.0058 ................ ................
55-18-5............... Nitrosodiethylamine. 0.002 (\1\) 0.002 0.002 1 0.002
62-75-9............... Nitrosodimethylamine 0.0006 0.074 0.0006 0.0006 0.074 0.0006
924-16-3.............. Nitrosodi-n- 0.06 ................ 0.06 0.06 ................ 0.06
butylamine.
10595-95-6............ Nitrosomethylethylam 0.028 ................ 0.028 0.028 ................ 0.028
ine.
1116-54-7............. N- 0.01 0.7 0.01 0.01 0.7 0.01
Nitrosodiethanolami
ne.
621-64-7.............. N-Nitrosodi-n- 0.026 ................ 0.026 0.026 ................ 0.026
propyamine.
[[Page 66464]]
4549-40-0............. N-Nitrosomethy vinyl (\1\) (\1\) (\1\) (\1\) (\1\) D(\1\)
amine.
759-73-9.............. N-Nitroso-N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
ethylurea.
615-53-2.............. N-Nitroso-N- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
methylurethane.
16543-55-8............ N-Nitrosonornicotine (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
100-75-4.............. N-Nitrosopiperidine. 0.0014 0.033 0.0014 0.0014 0.033 0.0014
930-55-2.............. N-Nitrosopyrrolidine 0.0047 ................ 0.0047 0.0047 ................ 0.0047
13256-22-9............ N-Nitrososarcosine.. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
103-85-5.............. N-Phenylthiourea.... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
1615-80-1............. N,N-Diethylhydrazine (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
20816-12-0............ Osmium tetroxide.... 3 200 3 3 200 3
82-68-8............... Pentachloronitrobenz ................ ................ 0.02 ................ ................ 0.02
ene (PCNB).
85-01-8............... Phenanthrene........ 0.006 ................ 0.006 0. 006 ................ 0.006
62-38-4............... Phenyl mercuric (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acetate.
Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid,
dimethylethylester.
298-06-6.............. Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid, o-o-diethyl
ester.
3288-58-2............. Phosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid, o-o-diethyl-s-
methlyl.
2953-29-9............. Pyhosphorodithioic (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
acid, trimethyl
ester.
85-44-9............... Phthalic anhydride.. (\1\) ................ (\1\) (\1\) ................ (\1\)
1336-36-3............. Polychlorinated 0.0005 ................ ................ 0.0005 ................ 0.0005
biphenyls.
1120-71-4............. Propane sultone, 1,3- (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
.
108-46-3.............. Resorcinol.......... 0.1 7 ................ 0.1 7 ................
81-07-2............... Saccharin and salts. (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
18883-66-4............ Strepto
FR Doc. 95-29458 Hazardous Waste Management System: Identification and Listing of Hazardous Waste: Hazardous Waste Identification Rule (HWIR)
zotocin...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
57-24-9............... Strychnine.......... ................ 3 ................ ................ 3 ................
1746-01-6............. TCDD, 2, 3, 7.8-.... 1.000E-08 ................ ................ 1.000E-08 ................ 1.000E-08
107-49-3.............. Tetraethyl (\1\) ................ (\1\) (\1\) ................ (\1\)
pyrophosphate.
62-55-5............... Thioacetamide....... 1 (\1\) 1 1 (\1\) 1
79-19-6............... Thiosemicarbazide... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
62-56-6............... Thiourea............ (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
137-26-8.............. Thiram.............. 0.05 ................ ................ 0.05 ................ ................
7440-31-5............. Tin................. 8 500 8 8 500 8
584-84-9.............. Toluene diisocyanate (\1\) ................ (\1\) (\1\) ................ (\1\)
95-80-7............... Toluenediamine, 2,4- 0.013 1 0.013 0.013 1 0.013
95-53-4............... Toluidine, 0-....... 0.012 ................ 0.012 0.012 ................ 0.012
106-49-0.............. Toluidine, p-....... 0.017 ................ 0.017 0.017 ................ 0.017
8001-35-2............. Toxaphene........... 0.0013 0.03 ................ 0.0013 0.03 ................
75-70-7............... Trichloromethanethio (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
l.
126-72-7.............. Tris (2, 3- 0.025 ................ 0.025 0.025 ................ 0.025
dibromopropyl)
phosphate.
52-24-4............... Tris (1-azridinyl) (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
phosphine sulfide.
72-57-1............... Trypan blue......... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
66-75-1............... Uracil mustard...... (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
75-01-4............... Vinyl chloride...... ................ ................ ................ 0.00017 ................ ................
81-81-2............... Warfarin............ 0.05 ................ ................ 0.05 ................ ................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ No testing required; additional LDR requirements apply.
PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE FACILITIES
9. The authority citation for part 266 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6934.
10. Section 266.20 is amended by revising the first sentence of
paragraph (b) to read as follows:
* * * * *
(b) Products produced for the general public's use that are used in
a manner that constitutes disposal and that contain recyclable
materials are not presently subject to regulation if, for each
hazardous constituent in each recyclable material (i.e., hazardous
waste) that they contain, they meet the
[[Page 66465]]
applicable exit levels in appendix X to Part 261 of this chapter. * * *
PART 268--LAND DISPOSAL RESTRICTIONS
11. The authority citation for part 268 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a) 6921, and 6924.
12. Section 268.2 is amended by adding paragraph (j) to read as
follows:
* * * * *
(j) Land treatment means waste is applied onto or incorporated into
the soil surface.
13. Section 268.40 is amended by revising the first sentence of
paragraph (a), revising paragraph (e), and adding paragraph (g) to read
as follows:
Sec. 268.41 Applicability of treatment standards
(a) Except as provided in paragraph (g) of this section, a waste
identified in the table ``Treatment Standards for Hazardous Wastes''
may be land disposed only if it meets the requirements found in the
table. * * *
* * * * *
(e) Except as provided in paragraph (g) of this section, for all
characteristic wastes (D001, D002, and D012-D043) that are subject to
treatment standards in the following table ``Treatment Standards for
Hazardous Wastes,'' all underlying constituents (as defined in
Sec. 268.20(i)) must meet Universal Treatment Standards, found in
Sec. 268.48, Table UTS, prior to land disposal.
* * * * *
(g) Wastes subject to either the treatment standards described in
paragraph (a)(1) or (a)(2) of this section or the Universal Treatment
Standards described in paragraph (e) of this section may be land
disposed if they meet either of the alternative, risk-based standards
found in subpart F and G of this part and representing levels at which
threats to human health or the environment are minimized.
14. Part 268 is amended by adding Subpart F consisting of
Sec. 268.60 to read as follows:
Subpart F--Minimize Threat Levels Without Management Requirements
Sec. 268.60 Minimize threat levels.
(a) Table ``Minimize Threat Levels'' identifies risk-based
standards representing levels at which threats to human health and the
environment are minimized. These levels may be used as alternatives to
waste-specific treatment standards in the table to Sec. 268.40 and to
the Universal Treatment Standards in the table to Sec. 268.48.
Nonwastewaters must meet both the total and waste extract levels
contained in the table of ``Minimize Threat Levels''.
(b) Wastes identified in the Table to Sec. 268.40 may be land
disposed if they meet either the requirements in that Table or the
standards in the Minimize Threat Table for all constituents.
Characteristic wastes that are subject to the requirement for meeting
Universal Treatment Standards under Sec. 268.40(e) must also meet the
requirements of Table UTS or the Minimize Threat Table for all
underlying hazardous constituents as defined in Sec. 268.2(i).
(c) Wastes containing either regulated hazardous constituents under
the Table to Sec. 268.40 or UTS constituents which do not have
treatment standards listed in the Minimize Threat Table must continue
to comply with treatment standards for these constituents in the tables
to Sec. 268.40 or Sec. 268.48 prior to land disposal.
268.60 Table 1.--Minimize Threat Levels
----------------------------------------------------------------------------------------------------------------
WW standard (mg/ NWW standard NWW standard
CAS Constituent name l) (mg/kg) (mg/l)
----------------------------------------------------------------------------------------------------------------
83-32-9...................... Acenaphthene............... 31 9500 5
67-64-1...................... Acetone.................... 16 17000 6
75-05-8...................... Acetonitrile............... ................ 920 0.3
98-86-2...................... Acetophenone............... 17 1200 6
107-05-1..................... Allyl chloride............. ................ 260 ................
7440-39-3.................... Barium..................... 33 2100 16
71-43-2...................... Benzene.................... ................ 110 0.0054
117-81-7..................... Bis(2-ethylhexyl)phthalate. ................ 230 0.0011
75-27-4...................... Bromodichloromethane....... ................ 19 0.0025
75-25-2...................... Bromoform (Tribromomethane) ................ 170 0.018
71-36-3...................... Butanol.................... 16 18000 6
88-85-7...................... Butyl-4,6-dinitrophenol, 2- 0.19 770 0.064
sec- (Dinoseb).
85-68-7...................... Butylbenzylphthalate....... 240 87 64
75-15-0...................... Carbon disulfide........... ................ 330 6
56-23-5...................... Carbon tetrachloride....... ................ 9 0.0016
126-99-8..................... Chloro-1,3-butadiene, 2- 0.52 290 ................
(Chloroprene).
106-47-8..................... Chloroaniline, p-.......... ................ 140 0.16
108-90-7..................... Chlorobenzene.............. 2 2500 1
124-48-1..................... Chlorodibromomethane....... ................ 28 0.0018
67-66-3...................... Chloroform................. ................ 7 0.017
95-57-8...................... Chlorophenol, 2-........... 0.9 100 0.32
218-01-9..................... Chrysene................... 0.1 35 0.0012
108-39-4..................... Cresol, m-................. 8 22000 3
95-48-7...................... Cresol, o-................. 8 27000 3
106-44-5..................... Cresol, p-................. 0.84 2600 0.32
84-74-2...................... Di-n-butyl phthalate....... 230 90000 25
117-84-0..................... Di-n-octyl phthalate....... ................ 4500 0.1
95-50-1...................... Dichlorobenzene, 1,2-...... 15 50000 6
106-46-7..................... Dichlorobenzene, 1,4-...... ................ 64 0.011
75-71-8...................... Dichlorodifluoromethane.... 15 8100 12
75-34-3...................... Dichloroethane, 1,1-....... ................ 24 0.00006
156-60-5..................... Dichloroethylene, trans-1,2- 3 14000 1
.
120-83-2..................... Dichlorophenol, 2,4-....... 0.62 770 0.18
94-75-7...................... Dichlorophenoxyacetic acid, 2 3100 0.6
2,4- (2,4-D).
84-66-2...................... Diethyl phthalate.......... 190 4500 54
131-11-3..................... Dimethyl phthalate......... 78 ................ ................
[[Page 66466]]
105-67-9..................... Dimethylphenol, 2,4-....... 4 11000 1
51-28-5...................... Dinitrophenol, 2,4-........ 0.27 ................ ................
121-14-2..................... Dinitrotoluene, 2,4-....... ................ 210 0.11
606-20-2..................... Dinitrotoluene, 2,6-....... ................ 86 0.064
122-39-4..................... Diphenylamine.............. 15 12000 3
298-04-4..................... Disulfoton................. ................ 43 13
72-20-8...................... Endrin..................... 0.073 0.26 32
141-78-6..................... Ethyl acetate.............. 390 270000 110
60-29-7...................... Ethyl ether................ 27 41000 11
97-63-2...................... Ethyl methacrylate......... 24 3400 7
100-41-4..................... Ethylbenzene............... 39 550000 8
206-44-0..................... Fluoranthene............... 28 6000 2
86-73-7...................... Fluorene................... 22 90000 3
76-44-8...................... Heptachlor................. ................ 8 ................
87-68-3...................... Hexachloro-1,3-butadiene... ................ 36 0.0069
319-85-7..................... Hexachlorocyclohexane, beta- 0.00044 0.12 0.00021
(beta-BHC).
58-89-9...................... Hexachlorocyclohexane, ................ 0.1 0.69
gamma- (Lindane).
77-47-4...................... Hexachlorocyclopentadiene.. ................ 1500 ................
67-72-1...................... Hexachloroethane........... ................ 81 0.033
78-83-1...................... Isobutyl alcohol........... 39 55000 15
7439-92-1.................... Lead....................... 30 570 12
7439-97-6.................... Mercury.................... 0.3 0.6 0.14
67-56-1...................... Methanol................... 78 140000 30
72-43-5...................... Methoxychlor............... 7 19 ................
74-83-9...................... Methyl bromide 0.37 500 0.92
(Bromomethane).
74-87-3...................... Methyl chloride ................ 91 ................
(Chloromethane).
78-93-3...................... Methyl ethyl ketone........ 78 110000 30
108-10-1..................... Methyl isobutyl ketone..... 8 17000 3
80-62-6...................... Methyl methacrylate........ 28 40000 8
298-00-0..................... Methyl parathion........... 0.66 ................ ................
74-95-3...................... Methylene bromide.......... 2 8400 0.19
75-09-2...................... Methylene chloride......... ................ 310 0.015
91-20-3...................... Naphthalene................ 14 120000 3
7440-02-0.................... Nickel..................... 11 110 5
98-95-3...................... Nitrobenzene............... 0.084 45 0.032
56-38-2...................... Parathion.................. 3 ................ ................
608-93-5..................... Pentachlorobenzene......... 5 ................ ................
82-68-8...................... Pentachloronitrobenzene 0.081 ................ ................
(PCNB).
108-95-2..................... Phenol..................... 84 160000 32
298-02-2..................... Phorate.................... 0.11 160 ................
23950-58-5................... Pronamide.................. 21 440 6
129-00-0..................... Pyrene..................... 54 16000 2
110-86-1..................... Pyridine................... 0.16 810 0.06
7782-49-2.................... Selenium................... 0.93 ................ ................
7440-22-4.................... Silver..................... 200 ................ ................
95-94-3...................... Tetrachlorobenzene, 1,2,4,5- 0;23 170 0.032
.
630-20-6..................... Tetrachloroethane, 1,1,1,2- ................ 130 0.0078
79-34-5...................... Tetrachloroethane, 1,1,2,2- ................ 29 0.0077
127-18-4..................... Tetrachloroethylene........ 2 13000 0.68
58-90-2...................... Tetrachlorophenol, 2,3,4,6- 2 6200 0.58
7440-28-0.................... Thallium (l)............... ................ 5 0.019
108-88-3..................... Toluene.................... 30 180000 13
76-13-1...................... Trichloro-1,2,2,- 2200 ................ ................
trifluoroethane, 1,1,2-.
120-82-1..................... Trichlorobenzene, 1,2,4-... 0.69 3500 1
71-55-6...................... Trichloroethane, 1,1,1-.... 74 48000 0.054
79-00-5...................... Trichloroethane, 1,1,2-.... ................ 11 0.0018
79-01-6...................... Trichloroethylene.......... ................ 570 0.013
75-69-4...................... Trichlorofluoromethane..... 48 26000 16
95-95-4...................... Trichlorophenol, 2,4,5-.... 18 12000 4
88-06-2...................... Trichlorophenol, 2,4,6-.... 0.054 120 0.015
93-76-5...................... Trichlorophenoxyacetic 2 63 0.64
acid, 2,4,5- (245-T).
93-72-1...................... Trichlorophenoxypropionic 1 ................ ................
acid, 2,4,5- (Silvex).
96-18-4...................... Trichloropropane, 1,2,3-... 1 870 0.34
7440-62-2.................... Vanadium................... 10 250 4
1330-20-7.................... Xylenes (total)............ 22 170000 150
7440-66-6.................... Zinc....................... 99 320 38
----------------------------------------------------------------------------------------------------------------
[[Page 66467]]
15. Part 268 is amended by adding subpart G consisting of
Secs. 268.70 and 268.71 to read as follows:
Subpart G--Conditioned Minimize Threat Levels with Management
Requirements
Sec. 268.70 Conditioned Minimize Threat Levels.
(a) Table ``Conditioned Minimize Threat Levels'' identifies risk-
based standards representing levels at which threats to human health
and the environment are minimized for wastes which are placed in
landfills or monofills (but not land application units). These levels
may be used as alternatives to waste-specific treatment standards in
the table to Sec. 268.40 and to the Universal Treatment Standards in
the table to Sec. 268.48 for wastes which comply with the requirements
of Sec. 268.71. Nonwastewaters must meet both the total and waste
extract levels contained in the table of ``Minimize Threat Levels''.
(b) Wastes identified in the Table to Sec. 268.40 may be land
disposed if they meet, for all hazardous constituents identified in the
table to Sec. 268.40, either the requirements in that table, the
standards in the Minimize Threat Table in subpart F, or, if they meet
the requirements in Sec. 268.71, the standards in the Conditioned
Minimize Threat Table. Characteristic wastes that are subject to the
requirement for meeting Universal Treatment Standards under
Sec. 268.40(e) must also meet the requirements of Table UTS, the
Minimize Threat Table, or, if they meet the requirements of
Sec. 268.71, the Conditioned Minimize Threat Table, for all underlying
hazardous constituents as defined in Sec. 268.2(i).
(c) Wastes containing either regulated hazardous constituents under
the Table to Sec. 268.40 or UTS constituents which do not have
treatment standards listed in the Minimize Threat Table must continue
to comply with treatment standards for these constituents in the tables
to Sec. 268.40, Sec. 268.48, or the Minimize Threat Table to Subpart F
prior to land disposal.
268.70 Table 1.--Conditional Minimize Threat Levels
----------------------------------------------------------------------------------------------------------------
WW standard (mg/ NWW standard NWW standard
CAS Constituent name l) (mg/kg) (mg/l)
----------------------------------------------------------------------------------------------------------------
83-32-9...................... Acenaphthene............... 31 63000 13
67-64-1...................... Acetone.................... 16 39000 21
75-05-8...................... Acetonitrile............... ................ 2200 1
98-86-2...................... Acetophenone............... 17 75000 22
107-05-1..................... Allyl chloride............. ................ 260 ................
62-53-3...................... Aniline.................... ................ 170 0.072
7440-39-3.................... Barium..................... 33 34000 45
71-43-2...................... Benzene.................... ................ 250 0.023
39638-32-9................... Bis (2-chloroisopropyl) ................ 97 0.0088
ether.
117-81-7..................... Bis(2-ethylhexyl)phthalate. ................ 740 0.0011
75-27-4...................... Bromodichloromethane....... ................ 240 0.011
75-25-2...................... Bromoform (Tribromomethane) ................ 1600 0.081
71-36-3...................... Butanol.................... 16 41000 21
88-85-7...................... Buthl-4,6-dinitrophenol, 2- 0.19 6000 0.24
sec- (Dinoseb).
85-68-7...................... Butylbenzylphthalate....... 240 87 67
7440-43-9.................... Cadmium.................... ................ 110 0.32
75-15-0...................... Carbon disulfide........... ................ 3800 24
56-23-5...................... Carbon tetrachloride....... ................ 130 0.0077
126-99-8..................... Chloro-1,3-butadiene, 2- 0.52 1700 ................
(Chloroprene).
106-47-8..................... Chloroaniline, p-.......... ................ 5800 0.56
108-90-7..................... Chlorobenzene.............. 2 41000 6
124-48-1..................... Chlorodi- bromo- methane... ................ 200 0.0079
67-66-3...................... Chloroform................. ................ 76 0.075
95-57-8...................... Chlorophenol, 2-........... 0.9 8500 1
7440-47-3.................... Chromium................... ................ 16 2
218-01-9..................... Chrysene................... 0.1 35 0.0012
108-39-4..................... Cresol, m-................. 8 30000 11
95-48-7...................... Cresol, o-................. 8 46000 11
106-44-5..................... Cresol, p-................. 0.84 2900 1
72-54-8...................... DDD........................ ................ 0.26 6800
50-29-3...................... DDT........................ ................ 0.11 0.0054
84-74-2...................... Di-n-butyl phthalate....... 230 90000 25
117-84-0..................... Di-n-octyl phthalate....... ................ 21000 0.1
95-50-1...................... Dichlorobenzene, 1,2-...... 15 530000 32
106-46-7..................... Dichlorobenzene, 1,4-...... ................ 650 0.06
75-71-8...................... Dichloro- difluoro- methane 15 8400 45
75-34-3...................... Dichloroethane, 1,1-....... ................ 110 0.00021
107-06-2..................... Dichloroethane, 1,2-....... ................ 59 0.00021
156-60-5..................... Dichloro- ethylene, trans- 3 130000 4
1,2-.
120-83-2..................... Dichlorophenol, 2,4-....... 0.62 770 0.76
94-75-7...................... Dichlorophen- oxyacetic 2 12000 2
acid, 2,4- (2,4-D).
78-87-5...................... Dichloropropane, 1,2-...... ................ 180 0.011
10061-01-5................... Dichloropropene, cis-1,3-.. ................ 65 10000
10061-02-6................... Dichloropro- pene, trans- ................ 62 10000
1,3-.
84-66-2...................... Diethyl phthalate.......... 190 19000 220
131-11-3..................... Dimethyl phthalate......... 78 ................ ................
105-67-9..................... Dimethylphenol, 2,4-....... 4 24000 5
51-28-5...................... Dinitrophenol, 2,4-........ 0.27 450 0.37
121-14-2..................... Dinitrotoluene, 2,4-....... ................ 1400 0.39
[[Page 66468]]
606-20-2..................... Dinitrotoluene, 2,6-....... ................ 420 0.22
122-39-4..................... Diphenyla- mine............ 15 12000 15
298-04-4..................... Disulfoton................. ................ 58 120
72-20-8...................... Endrin..................... 0.073 27 770
141-78-6..................... Ethyl acetate.............. 390 600000 510
60-29-7...................... Ethyl ether................ 27 260000 37
97-63-2...................... Ethyl methacrylate......... 24 100000 27
100-41-4..................... Ethylbenzene............... 39 ................ 42
206-44-0..................... Fluoranthene............... 28 21000 2
86-73-7...................... Fluorene................... 22 90000 7
76-44-8...................... Heptachlor................. ................ 8 ................
1024-57-3.................... Heptachlor epoxide......... ................ 0.56 10
87-68-3...................... Hexachloro-1,3-butadiene... ................ 290 0.0069
319-84-6..................... Hexachloro- cyclohex- ane, ................ 0.18 2
alpha- (alpha-BHC).
319-85-7..................... Hexachloro- cyclohex- ane, 0.00044 0.64 0.0009
beta- (beta-BHC).
58-89-9...................... Hexachloro- cyclohex- ane, ................ 0.75 9
gamma- (Lindane).
77-47-4...................... Hexachloro- cyclopent- ................ 1500 ................
adiene.
67-72-1...................... Hexachloroethane........... ................ 890 0.11
78-83-1...................... Isobutyl alcohol........... 39 120000 53
7439-92-1.................... Lead....................... 30 1600 41
7439-97-6.................... Mercury.................... 0.3 39 0.4
67-56-1...................... Methanol................... 78 310000 110
72-43-5...................... Methoxychlor............... 7 280 ................
74-83-9...................... Methyl bromide (Bromo- 0.37 850 4
methane).
74-87-3...................... Methyl chloride (Chloro- ................ 91 ................
methane).
78-93-3...................... Methyl ethyl ketone........ 78 250000 110
108-10-1..................... Methyl isobutyl ketone..... 8 38000 11
80-62-6...................... Methyl methacrylate........ 28 100000 33
298-00-0..................... Methyl parathion........... 0.66 6 110
74-95-3...................... Methylene bromide.......... 2 21000 0.19
75-09-2...................... Methylene chloride......... ................ 720 0.053
86-30-6...................... N-Nitrosodi- phenylamine... ................ 3600 0.24
91-20-3...................... Naphthalene................ 14 430000 15
7440-02-0.................... Nickel..................... 11 8600 14
98-95-3...................... Nitrobenzene............... 0.084 520 0.11
152-16-9..................... Octamethyl- pyrophos- ................ 31 0.37
phoramide.
56-38-2...................... Parathion.................. 3 19 160000
608-93-5..................... Pentachlorobenzene......... 5 ................ ................
82-68-8...................... Pentachloro- nitrobenzene 0.081 ................ ................
(PCNB).
87-86-5...................... Pentachlorophenol.......... ................ 22 0.0022
108-95-2..................... Phenol..................... 84 390000 110
298-02-2..................... Phorate.................... 0.11 510 ................
23959-58-5................... Pronamide.................. 21 230000 25
129-00-0..................... Pyrene..................... 54 16000 2
110-86-1..................... Pyridine................... 0.16 930 0.21
94-59-7...................... Safrole.................... ................ 28 0.0044
7782-49-2.................... Selenium................... 0.93 ................ ................
7440-22-4.................... Silver..................... 200 ................ ................
95-94-3...................... Tetrachloro- benzene, 0.23 1600 0.032
1,2,4,5-.
630.20-6..................... Tetrachloro- ethane, ................ 370 0.042
1,1,1,2-.
79-34-5...................... Tetrachloro- ethane, ................ 70 0.0077
1,1,2,2,-.
127-18-4..................... Tetrachloro- ethylene...... 2 100000 3
53-90-2...................... Tetrachloro- phenol, 2 35000 2
2,3,4,6-.
7440-28-0.................... Thallium (l)............... ................ 33 0.071
108-88-3..................... Toluene.................... 30 560000 51
76-13-1...................... Trichloro-1,2,2,- 2200 ................ 12000
trifluoroethane, 1,1,2-.
120-82-1..................... Trichlorobenzene, 1,2,4-... 0.69 62000 3
71-55-6...................... Trichloroeth- ane, 1,1,1-.. ................ 190 0.0077
79-01-6...................... Trichloroeth- ylene........ ................ 3200 0.049
75-69-4...................... Trichlorofluo- romethane... 48 170000 61
95-95-4...................... Trichlorophenol, 2,4,5-.... 18 55000 22
88-06-2...................... Trichlorophenol, 2,4,6-.... 0.054 160 0.068
93-76-5...................... Trichlorophenoxyacetic 2 150 2
acid, 2,4,5-(245-T).
93-72-1...................... Triclorophen- oxypropionic 1 520 2
acid, 2,4,5- (Silvex).
96-18-4...................... Trichloropro- pane, 1,2,3-. 1 14000 1
7440-62-2.................... Vanadium................... 10 2700 13
1330-20-7.................... Xylenes (total)............ 22 710000 700
7440-66-6.................... Zinc....................... 99 51000 130
----------------------------------------------------------------------------------------------------------------
[[Page 66469]]
Sec. 268.71 Associated Management Requirements.
Waste may meet the standards set out in the Conditional Minimize
Threat Table as an alternative to the treatment standards in the tables
to Subpart D of this part or the Minimize Threat Table to subpart F of
this part only if they are placed in a landfill or a monofill as
defined in 40 CFR 260.10. Waste that is placed in land application
units must comply with the minimize threat levels set forth in subpart
F of this part or the treatment standards set forth in subpart D of
this part.
[FR Doc. 95-29458 Filed 12-20-95; 8:45 am]
BILLING CODE 6560-50-P
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