BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE
www.BREDL.org ~ PO Box 88 Glendale Springs, North Carolina 28629 ~ Phone (336) 982-2691 ~ Fax (336) 982-2954 ~ Email: BREDL@skybest.com

November 14, 2001

Connie Brower
DENR-Division of Water Quality
Laboratory Section
1623 Mail Service Center
Raleigh, NC 27699-1623

Connie.Brower@ncmail.net

Fax: 919-733-6241

Re: 15A NCAC 2H .0800 Revisions to Lab Certification Rules

Dear Ms. Brower:

On behalf of the Blue Ridge Environmental Defense League, I write to provide additional comments to my oral testimony of October 30, 2001. Regarding testing for hazardous wastes, the Toxicity Characteristic Leaching Procedure (TCLP) now in use in North Carolina fails to protect public health. BREDL advocates that the Division of Water Quality update its rules to require improved hazardous waste testing and replace the use of the TCLP with more comprehensive testing procedures.

The current NCDWQ rule making alters the listing under .0804 (b) Certifiable Inorganic Parameters for TCLP as follows:

EPA regulations requiring the use of the TCLP to identify toxic wastes are obsolete. Of the hundreds of toxic chemicals that are used by industry, only 43 are subject to the TCLP test. That is, if none of the 43 specific chemicals are found, but other dangerous toxic chemicals are present, the waste is not considered hazardous and is sent to municipal landfills and municipal incinerators. North Carolina Division of Waste Management regulations now accept the use of TCLP tests.

The TCLP test fails to accurately duplicate conditions commonly found in landfills and does not accurately predict long-term mobility of organic contaminants in wastes. Further, the toxicity test only addresses the health risks from drinking water contamination. Chemicals that are toxic through inhalation or would contaminate surface waters such as persistent and bioaccumulative toxics are not covered by the TCLP.

In 1996 the US Environmental Protection Agency issued a Hazardous Waste Characteristics Scoping Study which presented information on environmental contamination resulting from the management of so-called non-hazardous wastes. The study noted that groundwater-modeling techniques used to set the toxicity characteristic levels had changed significantly since the TCLP was promulgated and that many states use more accurate alternative tests. The study’s Executive Summary (Attachment A) stated the need for better procedures and listed California, Michigan, and Washington as examples of states which require testing for toxins not on the TCLP list.

The scoping study also identified gaps in hazardous waste toxicity characteristics testing required under RCRA (Attachment B).

A decade after the EPA’s last TC revision we find no federal action has been taken to address outdated assumptions. But the shortcomings in the TCLP test may be partly overcome by other tests which alter the test conditions in order to extract a more of the actual toxic constituents.

The Synthetic Precipitation Leaching Procedure (SPLP) was developed to simulate leaching under acid rain conditions. The procedure differs from the TCLP in that the test acidity level is reduced and uses a dilute nitric and sulfuric acid mixture.

Better still is the Multiple Extraction Procedure (MEP) which requires an initial extraction with acetic acid (similar to TCLP) and adds at least 8 subsequent extractions with a synthetic acid rain solution (sulfuric/nitric acid). The MEP simulates 1000 years of freeze and thaw cycles.

California utilizes a Waste Extraction Test (WET), a procedure which extracts a greater percentage of the toxic compounds in waste. California is also unique in its use of a combined concentration analysis. With this method the total level of the hazardous constituents cannot exceed 0.001 percent of the waste.

Better procedures now exist which may improve our ability to keep hazardous waste contamination out of North Carolina’s groundwater and surface water. As outlined above, other states are going beyond minimum EPA testing requirements and putting more stringent procedures in place in order to meet the obligations and the intent of RCRA. I encourage DWQ to follow suit to protect public health and our environment from hazardous waste contamination. The certification and approval of more stringent laboratory test procedures would be a good first step.

Respectfully submitted,

Louis Zeller

Louis Zeller

Blue Ridge Environmental Defense League

Cc: Steve Tedder Steve.Tedder@ncmail.net

Attachments

BREDL Attachment A

HAZARDOUS WASTE CHARACTERISTICS SCOPING STUDY

U.S. Environmental Protection Agency Office of Solid Waste November 15, 1996

http://www.epa.gov/epaoswer/hazwaste/id/char/scoping.txt

EXECUTIVE SUMMARY

The U.S. Environmental Protection Agency (EPA), Office of Solid Waste has investigated potential gaps in the current hazardous waste characteristics promulgated under the federal Resource Conservation and Recovery Act (RCRA). This report, the Hazardous Waste Characteristics Scoping Study, presents the findings of that investigation.

THE SCOPING STUDY: AN EARLY STEP

This study is a first step for the Agency in fulfilling a long-standing goal to review the adequacy and appropriateness of the hazardous characteristics. The study also fulfills an obligation in a consent decree with the Environmental Defense Fund (EDF). The study is by design a scoping study and, therefore, does not conclusively identify particular chemical classes for regulation, or fundamental flaws in the overall regulatory framework requiring immediate regulatory action. However, the study does identify several key areas that merit further analysis due to the significant potential for improving hazardous waste management practices and protection to health and the environment. Thus, the scoping study provides a catalogue of potential gaps in the hazardous waste characteristics. The Agency considers that this study is one very critical component of a broader array of efforts underway to review and improve the RCRA program, to ensure that regulation is appropriate to the degree of risk posed by hazardous wastes and waste management practices. Efforts involve both regulatory and de-regulatory actions, as appropriate for specific wastes and waste management practices.

STUDY PROCESS AND FINDINGS

Review of Current Characteristics

The review of the current characteristic regulations evaluated the protectiveness of the characteristics against the risks they were intended to address and also risks they were not specifically intended to address. For example, EPA evaluated risks that are now addressed by the Toxicity Characteristic (TC), e.g., direct ingestion of groundwater, by considering new groundwater modeling techniques that have been in use since the promulgation of the current TC levels, as well as any changes to the toxicity values on which the original levels were based. In addition, EPA evaluated risks from other exposure pathways and to ecological receptors, which are both risks not intended to be protected by the original TC. The review of the current TC regulatory levels suggests that: (1) further analysis of the current TC regulatory levels should be conducted using new groundwater modeling techniques, as well as considering changes to toxicity values for specific constituents; and (2) non-groundwater pathways and ecological receptors--not currently addressed by TC provisions--may be of potential concern. The study included some screening analyses of potential air releases from surface impoundments and land application units. The Agency found that inhalation risk levels for a significant number of current TC constituents at the fenceline (under certain exposure conditions) exceeded the allowable risk levels upon which the TC is based. Waste piles and land application units may be of special concern for ecological receptors due to surface runoff. Thirteen TC constituents have regulatory levels that are 10,000 or more times higher than Ambient Water Quality Criteria concentrations, with four of these being at least 100,000 times higher, suggesting that the level of protectiveness of the TC may not be very high for ecological receptors. The study also identifies the need to examine a broader array of leaching procedures, in addition to the Toxicity Characteristic Leaching Procedure (TCLP), to better predict environmental releases from various waste types and waste management conditions. Notable examples are the inability of the TCLP to predict significant releases under highly alkaline conditions or to media other than groundwater, or to serve as a leaching procedure for oily wastes. The most obvious potential gap identified for the ignitability and reactivity characteristics is the reference to outdated DOT regulations. Other potential gaps identified for these characteristics include the exclusion of combustible liquids and lack of specific test methods for non-liquids for ignitability; exclusion of corrosive solids, not addressing corrosion of non-steel materials and solubilization of non-metals, and whether pH limits are adequately protective for corrosivity; and, an overly-broad definition and lack of specific test methods for reactivity.

Releases from Non-Hazardous Industrial Waste Facilities

The Agency identified actual releases of non-hazardous waste constituents as one means of finding potential problem constituents and management activities. EPA reviewed data on non-hazardous industrial waste management activities that was readily available from state monitoring and compliance files. The Agency focused on wastes that are not currently regulated as hazardous (by virtue of being listed or exhibiting a characteristic) to identify releases potentially causing human health or environmental damages. The Agency considered three major factors in judging whether a release was an appropriate case study for this evaluation. A release had to meet all three of the following criteria to be included: (1) The source of contamination had to be a waste management unit or other intended final disposal area that received only non-hazardous industrial waste; (2) A release from a waste management unit must have caused contamination at levels of potential concern (constituent-specific concentrations that exceed federal standards or state guidelines or regulations); and, (3) Documented evidence must be available to support the exceedences referred to in (2). EPA found 112 environmental release case studies in 12 states with readily available (and not necessarily representative) data on non-hazardous waste management units. The releases were found from facilities in 15 (2-digit) Standard Industry Classification (SIC) industries. The top four categories were: SIC 49: Electric, Gas, and Sanitary Services (refuse-side only); SIC 26: Paper & Allied Products; SIC 28: Chemical & Allied Products; and, SIC 20: Food & Kindred Products. Over 90 percent of the releases were from landfills or surface impoundments and nearly all (98 percent) involved groundwater contamination. This is most likely because groundwater monitoring is the most common method for detecting releases from waste management units. Many of the chemical constituents most commonly detected above a regulatory level are already addressed in the current TC, even though the release occurred from non-hazardous waste management. The 20 constituents most commonly detected above a regulatory level are inorganics. The constituents that exceeded state groundwater protection standards or health-based federal drinking water standards most frequently were lead, chromium, cadmium, benzene, arsenic and nitrates. All of these, with the exception of nitrates, are current TC constituents. Organic constituents, both TC and non-TC, were also identified in the case studies, however, they were detected less frequently than the inorganic toxicity characteristic constituents. This collection of release descriptions is not statistically representative of problem industries nor intended to identify particular problem facilities. The Agency believes that the case studies are indicative of the type of releases associated with the management of non-hazardous wastes in the types of facilities identified. The Agency also believes that information on releases from past waste management practices is useful in demonstrating the potential for human health or environmental damage.

Non-TC Chemical Constituents

In reviewing chemicals and chemical classes not currently regulated by the TC, EPA found in excess of 100 constituents that potentially occur in waste and may pose significant risks. EPA reviewed 37 regulatory or advisory lists of chemicals to identify possible constituents of non-hazardous wastes. EPA also compiled a list of chemicals which are "known" to be constituents of non-hazardous wastes because they were identified in the environmental release case studies or other Agency data sources on non-hazardous industrial wastes. EPA screened these chemicals and narrowed the list to possible constituents of non-hazardous waste that, by virtue of their toxicity, fate and transport properties, or exposure potential, could pose significant risks to human health and/or the environment. These chemicals were both inorganics and organics, and include volatiles, non-volatile organics, PAHs and pesticides. Because of the large number of constituents identified as candidates and the limited time available for the scoping study, no risk analyses were conducted. However, it may be a reasonable next step to assess the potential risks for a subset of these constituents.

Natural Resource Damages/Large-Scale Environmental Problems

The Agency examined the potential for broad environmental impacts from non-hazardous waste management. These impacts may include damages to natural resources which diminish the value and usability of a resource without threatening human health, as well as possible contributions to regional and global environmental problems. With respect to groundwater contamination, over 80 percent of the facilities identified in the case studies discussed earlier had releases exceeding secondary drinking water standards (non-health based standards). These releases were identified because exceedence of secondary standards may reduce the useability and, therefore, the value of the groundwater. Iron, chloride, sulfate and manganese were among the most frequently detected constituents exceeding secondary standards. In reviewing air deposition of toxic constituents to great waters, the Agency found a number of TC constituents, as well as some other chemicals identified in the study. However, it was not possible to assess the importance of waste to air deposition of toxics to the great waters.

State-Only Hazardous Waste Regulations

Some states have adopted hazardous waste identification rules that are broader or more stringent than federal RCRA Subtitle C regulations. These expansions reflect state judgements about gaps in the federal program. Data on hazardous waste regulations from eight states, California, Michigan, New Hampshire, Oregon, Rhode Island, Texas, Washington, and New Jersey were considered. Several states regulate additional constituents beyond the TC list ( 25 for California, 9 for Michigan, and 1 for Washington). California also applies a more aggressive leaching test, the waste extraction test (WET) to wastes. California also has a test for combinations of hazardous constituents, in which a combined concentration of the listed constituents cannot exceed 0.001 percent as a total in the waste. Four states also apply acute toxicity values (LD50 or LC50) for human or ecological toxicity to the whole waste.

NEXT STEPS

The potential gaps and areas of health and environmental concern identified here will require further, more detailed examination before regulatory action can be undertaken. For example, the study highlights risks to ecological receptors and possible inhalation risks to humans as potential gaps, as well as further evaluation of the adequacy of the TCLP. These topics were found to be potential gaps in more than one area of the study and will likely be specific areas of further investigation. Following release of this report, the Agency will engage in a variety of outreach activities in identifying appropriate next steps. While the Agency considers this a final report, comments from interested members of the public are solicited and will be used to help identify and structure follow-on activities. As noted above, revisions to the characteristics program will likely, in the long run, involve both regulatory and de-regulatory activities.

BREDL Attachment B

HAZARDOUS WASTE CHARACTERISTICS SCOPING STUDY

U.S. Environmental Protection Agency Office of Solid Waste November 15, 1996

CHAPTER 3. POTENTIAL GAPS ASSOCIATED WITH HAZARDOUS WASTE CHARACTERISTICS DEFINITIONS

3.1.4 Chronic Toxicity Risks to Humans

As noted above, EPA intended the TC to be the major vehicle for controlling chronic health risks, although the reactivity and corrosivity characteristics also were intended to prevent releases that facilitate exposure to waste constituents. Although RCRA Section 3001 identifies a range of types of toxic effects of concern (toxicity, carcinogenicity, mutagenicity, and teratogenicity), the implementation of the TC is limited to 40 chemicals for which toxicity and groundwater fate and transport data were available when the Agency revised the characteristic in 1990. In addition, the levels of protectiveness achieved by the TC leachate concentration standards were determined using fate and transport models and assumptions that were current at the time. To the extent that the toxicity data and groundwater fate and transport models have changed or improved in the six years since the TC was promulgated, its expected level of protectiveness may also have changed. Section 3.5 discusses in detail potential gaps associated with the level of protectiveness of the TC in light of recent advances in toxicology and groundwater modeling. The TC was not intended to address several potentially important risks. These risks have been identified as significant contributors to risks from some hazardous waste constituents and management technologies, and might apply to non-hazardous industrial waste management as well. Probably the most important risks potentially not directly addressed by the TC are associated with exposure pathways other than groundwater. The TC did not attempt to address these risks because groundwater was thought to be the dominant risk pathway for waste management. Upon re-examining potential non-hazardous industrial waste management and mismanagement scenarios, however, EPA recognizes that other pathways also may be important. One pathway not directly addressed by the TC is the direct inhalation of volatile or particulate-bound waste constituents to air from waste management units during normal operation or after closure. Such exposures to on-site workers and off-site receptors through direct inhalation may be significant for some constituents. Other potentially important pathways include the surface water pathway and "indirect" pathways arising from air releases (e.g., air deposition to crops), runoff, and the discharge of contaminated groundwater to surface water. Also, bioaccumulation of certain contaminants in aquatic and/or terrestrial food chains could result in human exposures through the consumption of contaminated fish, shellfish, livestock, and game animals. In Section 3.5, a screening-level risk assessment and other information clarify the significance of these pathways for the TC analytes. Chapter 4 extends the screening-level analysis to non-TC constituents.