[Federal Register Volume 59, Number 36 (Wednesday, February 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4052]


[[Page Unknown]]

[Federal Register: February 23, 1994]


-----------------------------------------------------------------------


ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 266

[SW-FRL-4841-3]

 

Standards for the Management of Specific Hazardous Wastes; 
Amendment to Subpart C--Recyclable Materials Used in a Manner 
Constituting Disposal; Proposed Rule

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA or Agency) is today 
proposing to amend Sec. 266.20, which contains provisions for 
conditionally exempting hazardous waste-derived products used in a 
manner constituting disposal (i.e., applied to or placed on land) from 
the Resource Conservation and Recovery Act (RCRA) Subtitle C 
regulations. Specifically, the Agency is proposing to amend Sec. 266.20 
so that non-encapsulated uses of slag residues produced from high 
temperature metal recovery (HTMR) treatment of electric arc furnace 
dust (EPA Hazardous Waste No. K061), steel finishing pickle liquor 
(K062), and electroplating sludges (F006) are not exempt from RCRA 
Subtitle C regulations. This action is being taken to partially 
implement a settlement agreement entered into by the Agency on August 
13, 1993 with the Natural Resources Defense Council (NRDC) and 
Hazardous Waste Treatment Council (HWTC). If today's proposed rule is 
finalized, non-encapsulated uses of HTMR slags derived from K061, K062, 
and F006, as waste-derived products placed on the land, will be 
prohibited unless there is compliance with all Subtitle C standards 
applicable to land disposal. This rule would not prohibit encapsulated 
uses of wastes that meet Sec. 266.20 requirements. The rule also would 
not prevent the disposal of HTMR slags in a Subtitle D unit if the 
residuals can meet the risk-based exclusion levels specified in 
Sec. 261.3(c)(2). The Agency is currently assessing and also seeks 
comments on whether the necessary data are available to establish risk-
based generic exclusion levels for HTMR slags used in non-encapsulated 
manner.

DATES: EPA is requesting public comments on today's proposed rule and 
criteria used for defining non-encapsulated uses. Comments must be 
submitted by March 25, 1994. Since the Agency has entered into a 
settlement agreement to promulgate this rule by August 12, 1994, no 
extension to the comment period will be granted.

ADDRESSES: The public must send an original and two copies of their 
comments to EPA RCRA Docket Number F-94-SSHP-FFFFF, room 2616 (Mail 
Code 5305), 401 M Street SW., Washington, DC 20460. The docket is open 
from 9 a.m. to 4 p.m., Monday through Friday, except on Federal 
holidays. The public must make an appointment to review docket 
materials by calling (202) 260-9327. A maximum of 100 pages may be 
copied at no cost. Additional copies cost $0.15 per page.

FOR FURTHER INFORMATION, CONTACT: For general information contact the 
RCRA Hotline, toll free at (800) 424-9346, or at (703) 412-9810. For 
specific questions concerning this notice, contact Narendra Chaudhari, 
Office of Solid Waste (Mail Code 5304), U.S. Environmental Protection 
Agency, 401 M Street, SW., Washington, DC 20460, (202) 260-4787.

SUPPLEMENTARY INFORMATION:

I. Background

A. Existing Regulations for Hazardous Wastes Used in a Manner 
Constituting Disposal

    Currently, hazardous wastes that are used in a manner constituting 
disposal (applied to or placed on land), as well as waste-derived 
products that are produced in whole or in part from hazardous wastes 
and used in a manner constituting disposal, are not subject to 
hazardous waste disposal regulations provided the products produced 
meet two conditions. First, the hazardous wastes must undergo a 
chemical reaction in the course of becoming products so as to be 
inseparable by physical means (see Sec. 266.20(b)). A second condition 
for exemption is that the waste-derived products must meet best 
demonstrated available technology (BDAT) treatment standards under the 
land disposal restrictions program for every prohibited hazardous waste 
that they contain before they are placed on land (see Sec. 266.20(b)). 
Note that hazardous waste-derived fertilizers that utilize hazardous 
waste K061 as a source of zinc are exempt from regulation without 
complying with either of these two conditions (see also 
Sec. 266.20(b)).
    The exemption in Sec. 266.20 is used for residuals (``slag'') 
generated from the treatment of hazardous waste K061 (and, to a limited 
extent, F006) using high temperature metal recovery (HTMR) processes. 
Section 266.20 is applicable because the majority of this slag is used 
in highway construction materials (e.g., as road-base), and a limited 
amount is also used by directly applying it to road surfaces (i.e., as 
an anti-skid or deicing agent). (See 56 FR 15020, April 12, 1991.)
    On August 18, 1992 (see 57 FR 37194), the Agency finalized a 
generic exclusion for nonwastewater slag residues generated from the 
HTMR treatment of several metal-bearing hazardous wastes (K061, K062, 
and F006). This rule expanded a generic exclusion EPA originally 
published that applied only to HTMR slag from K061 (see 56 FR 41164, 
August 19, 1991) to include slags from F006 and K062. These HTMR slag 
residues (i.e., from K061, K062, and F006) are currently excluded from 
the hazardous waste regulations provided they meet designated 
concentration levels for 13 metals, are disposed of in subtitle D 
units, and exhibit no characteristics of hazardous waste (see 
Sec. 261.3(c)(2)).
    The generic exclusion levels for the metals were based on the use 
of the EPA Composite Model for Landfills (EPACML), which predicts the 
potential for groundwater contamination from wastes that are placed in 
a landfill. The Agency limited the generic exclusion to residues 
disposed of in a Subtitle D unit because it could not properly evaluate 
concerns over potential releases to other media resulting from uses of 
the HTMR slag as product, especially as an anti-skid material on road 
surfaces. In the original rule proposing the generic exclusion for K061 
HTMR slag (see 56 FR 15020, April 12, 1991), the Agency solicited 
comment to identify other significant routes of exposure for product 
uses of the slag. The rule specifically sought suggestions for methods 
to evaluate exposures from the use of the slag as anti-skid material. 
Although EPA received comments concerning possible risks from road 
uses, no useful data, methods, or models were submitted to assist the 
Agency in evaluating exposures from releases to media other than 
groundwater.
    As the Agency noted in the final rule for the initial generic 
exclusion for K061 residues (see 56 FR 41164, August 19, 1991), the use 
of HTMR residues as anti-skid material was not prohibited, provided the 
residue meets the exemption conditions given in Sec. 266.20. The Agency 
also noted in the same notice that it would further evaluate the uses 
of K061 HTMR residues that constitute disposal, and would consider 
amendments to Sec. 266.20 for HTMR slags that might require further 
controls on such uses.

B. Summary of Petition and Settlement Agreement

    The Natural Resources Defense Council (NRDC) and the Hazardous 
Waste Treatment Council (HWTC), collectively ``NRDC Petitioners'', 
filed a petition for review challenging EPA's decision not to apply 
``generic exclusion levels''--levels at which K061 slags are deemed 
nonhazardous--to K061 slags used as waste-derived ``products'' and 
applied to or placed on land. The generic exclusion levels established 
for some metals in the K061 HTMR slags are lower than the BDAT 
standards that apply to K061. Therefore, while the generic exclusion 
requires that the nonhazardous K061 slag that meets exclusion levels be 
disposed of in a Subtitle D unit, K061 HTMR slag that may exhibit metal 
levels above the exclusion levels (but below BDAT) may be used as a 
product in a manner constituting disposal under the exemption in 
Sec. 266.20(b). The petitioners pointed out the anomaly of the slag 
used in an uncontrolled manner being effectively subject to lesser 
standards than slag disposed in a controlled landfill.
    On August 13, 1993, EPA entered into a settlement agreement with 
NRDC Petitioners which would address their concerns through two 
separate notice-and-comment rulemakings. EPA agreed to propose the 
first rule within 6 months of the settlement date (and issue a final 
rule within 12 months) to either establish generic exclusion levels for 
``non-encapsulated'' uses of K061 slags, or effectively prohibit such 
uses of K061 slags on the land. EPA also agreed to propose a second 
rule within 16 months of the settlement date (and issue a final rule 
within 28 months), to establish generic exclusion levels for 
encapsulated uses of K061 slags on the land. The agreement specified 
that the generic exclusion levels for K061 slags will be based on an 
evaluation of the potential risks to human health and the environment 
from the use of K061 slags as waste-derived products, taking into 
account all relevant pathways of exposure.

II. Proposed Decision

    This rule proposes to prohibit non-encapsulated uses of products 
derived from hazardous HTMR slags (K061, K062, and F006), if these 
products are used in a manner constituting disposal. The term ``non-
encapsulated'' use is being defined in this rule as a use in which: the 
material is not contained, controlled, covered, or capped in a manner 
that eliminates or significantly reduces its mobility and potential for 
release into the environment. The uses of HTMR residues on roads as 
anti-skid or deicing materials are considered to be non-encapsulated 
product uses.
    Accordingly, the Agency is proposing to amend the existing 
regulations under Sec. 266.20 that conditionally exempt hazardous 
waste-derived products used in a manner constituting disposal from RCRA 
Subtitle C regulations to reflect this change. The language of 
Sec. 266.20 would be revised to prohibit non-encapsulated uses of 
products derived from hazardous HTMR slags, unless they comply with all 
of the applicable Subtitle C standards (i.e., permitting, minimum 
technology standards for land disposal units, financial responsibility, 
etc.). Since these requirements cannot realistically be met by entities 
that would use the HTMR slag in a non-encapsulated fashion (i.e., 
entities are unlikely to seek land disposal permits for the placement 
of deicing materials on roads), the Agency is effectively proposing to 
prohibit non-encapsulated uses of the slags.
    The Agency is proposing this action for the following reasons. 
First, non-encapsulated uses of HTMR slags may pose potential risk to 
human health and the environment, and this risk may be greater for non-
encapsulated uses than for any other disposition of the slags. This is 
because the slags contain significant total concentrations of toxic 
metals of concern. For example, the concentrations of lead in the slags 
are typically in the range of 1000-2000 parts per million (ppm) and 
concentrations of chromium can approach 1000 ppm. (See data from the 
BDAT Background Document for K061 slag in the RCRA public docket for 
today's rule.) These slags may also potentially leach metals at levels 
that would require regulation under subtitle C (i.e., at levels greater 
than the generic exclusion levels in Sec. 261.3(c)(2)).
    Second, non-encapsulated uses of the slags may be viewed as 
uncontrolled disposition of the material. Thus, this may lead to many 
potential exposure pathways for the waste, not just those the Agency 
previously evaluated in assessing this wastes' hazardousness. The major 
non-encapsulated use of K061 slag is as an anti-skid material on road 
surfaces. This involves spreading the material on road surfaces during 
icy or snowy conditions to provide traction for vehicles (see comments 
from Horsehead Resource Development Company on April 12, 1991 
proposal). Although the K061-derived slag as applied to the road 
surface is initially relatively coarse, the wear caused by vehicular 
traffic will break down the slag into finer particles. These particles 
may then be dispersed through particulate releases to the air, or to 
surface and ground water by run-off during precipitation or melting 
ice/snow. Some commenters were concerned about potential exposure to 
metals in the K061 slag through inhalation of air releases and 
ingestion of nearby contaminated soils, concerns the Agency shares. 
Without a more detailed assessment of the risks posed by such non-
encapsulated uses, the Agency believes it is appropriate to prohibit 
these uses at this time.
    Third, these potential risks are ones that are very difficult for 
the Agency to evaluate with certainty with available methodology, 
particularly given the current lack of data the Agency has on non-
encapsulated uses of the slags and the tight timeframe for this rule. 
Because of this, some of the potential exposure pathways, such as 
ingestion, inhalation or surface water runoff pathways, cannot be 
readily evaluated. Additionally, commenters to the August 19, 1991 
rulemaking did not provide any reliable means for assessing the risks 
posed by non-encapsulated uses of these slags. (See 56 FR 41172.)
    The Agency is again soliciting information that may be used to 
estimate potential risks for non-encapsulated uses of HTMR slag and the 
likely exposure pathways of greatest concern. When used as an anti-skid 
agent, HTMR materials could accumulate on the road surface and travel 
to nearby receptors. Particulates could be inhaled by people downwind 
or transported in the air and deposited on land or water bodies. Storms 
can also wash HTMR materials to the roadside. At the edge of the road, 
constituents in the slags could either travel overland to water bodies 
or percolate into the ground and reach the groundwater. Ingestion of 
contaminated soil could occur either from the deposition of HTMR slag 
particulates or from highway run-off. The Agency requests comment on 
other potentially significant exposure pathways.
    Although there are techniques that may be used to estimate 
pollutant loadings from roads, these techniques would have to be 
tailored to the characteristics of non-encapsulated uses of HTMR slags. 
The following paragraphs describe potential approaches to estimate the 
risks from these pathways and the data or assumptions necessary to 
construct estimates of potential risks.
Airborne Particulates
    With the appropriate data, the Agency believes it is possible to 
estimate the rate at which particulates become airborne from road 
surfaces. Critical parameters include the traffic volume, the mean 
vehicle speed, the type of road surface (e.g., unpaved or paved), 
particle density, and particulate size. The Agency believes that HTMR 
slags are most likely to be applied as an anti-skid agent on paved 
roads. Many State transportation departments have traffic volume 
estimates for most significant roads in their jurisdiction which could 
be used to estimate particulate generation rates. The Agency does not 
have adequate data regarding the distribution of particle size in HTMR 
anti-skid material or how that distribution could change after 
weathering and vehicular traffic.
    Another critical parameter is the frequency at which HTMR slags 
would be applied to roads as a de-icing agent. The Agency does not have 
direct measurements of application rates of HTMR materials as de-icing 
agents. In 1981, the Federal Highway Administration (FHWA) reported 
that application rates of de-icing salt ranged from 400 to 1200 pounds 
per mile of two-lane road. The Agency requests comment on whether HTMR 
materials would be applied at rates comparable to that of de-icing salt 
or other compounds.
Run-off
    Modeling pollutants in run-off from road surfaces requires 
estimating rainfall and run-off rates, accumulation rates of pollutants 
on the road surface, pollutant wash-off during run-off, and constituent 
loading at potential receptors. While the Agency often relies on 
standard techniques to predict rainfall and run-off (e.g., see docket 
for approach used to estimate soil run-off in USDA Handbook, No. 282, 
1978), accumulation of HTMR slags will depend on the application rates. 
The FHWA has also developed an approach that relates pollutant 
accumulation with traffic volume. Combining the FHWA techniques and the 
loading rates discussed above would yield an estimate of total 
accumulation of a constituent on a road surface. The FHWA also has 
estimated pollutant wash-off rates for various types of road surfaces, 
including rural roads with flush, unpaved shoulders. The Agency 
requests comment on this approach to estimate run-off rates and 
pollutant loadings.
    Once run-off reaches the side of a road, it can either flow along 
natural contours or be channeled by engineering controls. Many roads 
are constructed with catch basins, swales, or other structures designed 
to control water and sediment flow. (See docket for examples from 
Chapter 11 in Highway Engineering, by Oglesby and Hicks, 1982.) 
Engineered barriers may significantly retard or block the flow of 
constituents of concern from reaching receptors adjacent to the road or 
from nearby water bodies. The Agency requests comment on the prevalence 
and effectiveness of these controls.
Groundwater
    If HTMR Materials accumulate on a road surface, the paving will 
likely block any leaching of constituents from the materials into the 
subsurface. However, if run-off transports the material off the road, 
constituents could leach into the subsurface. The Agency requests 
comments on how to estimate the flux rate of metals from the HTMR slag 
into the subsurface.
    The Agency would need adequate estimates of the above key 
parameters (particulate generation, run-off, and leaching rate), in 
order to apply fate and transport models to estimate potential 
concentrations at receptors. EPA also has limited information as to 
where HTMR residuals are applied as an anti-skid agent, and what 
potential receptors could be exposed. Further, were the Agency to 
develop generic exclusion levels for non-encapsulated uses, EPA would 
need to ensure that these levels would be protective in a wide range of 
potential settings. Therefore, the Agency requests data on likely 
receptor points (e.g., water bodies, residences) that would be affected 
by non-encapsulated uses of HTMR slag, and what, if any, exposure 
assumptions the Agency could use to ensure an appropriate level of 
protection.
    The Agency's present evaluation is that non-encapsulated uses of 
the slags may pose potential risks to human health and the environment 
that may warrant control, and that the Agency lacks the necessary 
information and time for assuring that these non-encapsulated uses are 
safe. If the Agency were to receive sufficient data that would allow 
EPA to carry out a more complete evaluation of non-encapsulated uses, 
EPA will reconsider its present decision to effectively prohibit non-
encapsulated uses of HTMR slag. However, EPA does not anticipate being 
able to complete the evaluation of any new data and assess the risks 
posed by non-encapsulated uses until the second rulemaking that EPA 
agreed to conduct as part of the settlement with the NRDC petitioners 
(i.e., the rule to establish generic exclusion levels for encapsulated 
uses of HTMR slags).
    The Agency also considered another important factor in making the 
determination to effectively prohibit non-encapsulated uses of HTMR 
slags. Information available to EPA indicates that most HTMR slags are 
in fact used in an encapsulated manner, for example as road-base 
material with some form of cover or ``cap''. Encapsulation may prevent 
dispersal of the slag through the exposure pathways noted above. 
Indeed, as the Agency noted in the August 19, 1991 rulemaking, use of 
these slags as road-base may be analogous to a capped disposal unit. 
(See 56 FR 41172.) In meetings with EPA, industry representatives 
indicated that non-encapsulated uses account for a relatively small 
fraction (less than 15%) of the HTMR slag used in a manner constituting 
disposal. (See memorandum of a March 30, 1993 meeting with Horsehead 
Resource Development Co., Inc. in the RCRA public docket for today's 
rule.) Therefore, the Agency believes that there should be adequate 
capacity for all of the slag to be used in an encapsulated manner. An 
important part of the basis for today's proposal is the expectation 
that a prohibition on non-encapsulated uses would result in a more 
environmentally acceptable means of reuse of the material without 
significant dislocations.
    This proposal would thus effectively prohibit non-encapsulated uses 
of HTMR slag, whether or not the slag meets the existing exclusion 
levels in Sec. 261.3(c)(2). As noted earlier in this proposal, the 
methodology EPA used to set the generic exclusion levels was based on 
potential risks posed by releases to ground-water from HTMR slag in a 
landfill setting. The existing exclusion levels do not consider other 
possible exposures (e.g., through air releases) arising from non-
encapsulated uses.
    EPA is consequently proposing to amend Sec. 266.20 such that non-
encapsulated uses of HTMR slag are no longer exempt from the Subtitle C 
standards applicable to land disposal. The Agency expects that this 
will have the effect of essentially prohibiting non-encapsulated uses 
of HTMR slags derived from K061, K062, and F006. With this proposal, 
the Agency solicits comment on possible means of demonstrating when 
these non-encapsulated uses do not pose significant potential risks to 
human health and the environment. In order to support such a 
demonstration, the Agency solicits comments on possible generic 
exclusion levels for HTMR slags used in non-encapsulated manners, and 
on the basis for setting these exclusion levels. The Agency will 
consider such comments in the context of the later rulemaking (which 
EPA also agreed to conduct as part of the settlement with the NRDC 
petitioners) to establish generic exclusion levels for encapsulated 
uses of HTMR slags.

III. Request for Information

    EPA is also taking the opportunity in this proposal to solicit all 
available information on product uses of HTMR slag materials derived 
from K061, K062, and F006, including information that provides 
responses to the following questions:
     What are the various product uses of HTMR slags that 
result in placement on the land, and the relative annual volumes of 
these slags going to each use?
     What, if any, historical data are available with regard to 
the environmental impact from product uses of HTMR slags?
     How are HTMR slags processed and distributed prior to use?
     What are the similarities or differences in the physical/
chemical properties of HTMR slags and materials that may be used as 
substitutes (e.g., blast furnace slags)?
     What, if any, toxicity tests have been conducted with the 
HTMR slag material itself (e.g., aquatic toxicity tests), and are data 
from these tests available for review?
     What requirements, if any, are needed to ensure that the 
slag is not used for prohibited uses?

IV. Limited Effect of Proposed Rule

    The proposed amendment to Sec. 266.20 would effectively prohibit 
non-encapsulated uses of HTMR slags derived from K061, K062, and F006. 
Although BDAT standards provide some measure of safety, it is the 
Agency's intent to further evaluate these uses based on risks posed to 
human health and the environment and to determine if additional generic 
exclusion levels should be proposed in the near future. As discussed 
above, information provided by representatives of the major generator 
of HTMR slag indicates that the portion of HTMR slags that are 
currently being processed for non-encapsulated product uses is 
relatively small (less than 15% of the HTMR slags that are used as 
waste-derived products). Following the prohibition, this portion of 
HTMR slags may be used to produce other waste-derived products that are 
still exempt under Sec. 266.20(b). These other uses (e.g., use as road-
base material) are encapsulated uses that appear to present much lower 
risk to human health and the environment. There also exists a generic 
exclusion under Sec. 261.3(c)(2) that allows for the disposal of HTMR 
slags in subtitle D units. Finally, if it is not possible to meet the 
conditions of the exemption or the generic exclusion, the HTMR slags 
would be subject to full regulation as hazardous wastes.
    The Agency is not changing the notification, record-keeping and 
reporting requirements contained in existing regulations for hazardous 
waste being used to produce products used in a manner constituting 
disposal.

V. Effective Date

    The Agency is proposing that this rule be effective six months 
after the date of publication of the final rule. (See RCRA section 
3010(a)). The Agency believes that this would provide sufficient time 
for affected parties to comply with the proposed change.

VI. State Authority

A. Applicability of Rule in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer and enforce the RCRA program within the State. Following 
authorization, EPA retains enforcement authority under sections 3008, 
3013, and 7003 of RCRA, although authorized States have primary 
enforcement responsibility. The standards and requirements for 
authorization are found in 40 CFR part 271.
    Prior to the Hazardous and Solid Waste Amendments (HSWA) of 1984, a 
State with final authorization administered its hazardous waste program 
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 facilities 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 RCRA section 3006(g), new requirements and 
prohibitions imposed by HSWA take effect in authorized States at the 
same time that they take effect in nonauthorized States. EPA is 
directed to carry out these requirements and prohibitions in authorized 
States, 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 on State Authorization

    EPA views today's proposed rule as a HSWA regulation. The proposed 
rule can be viewed as part of the process of establishing land disposal 
prohibitions and treatment standards for K061, K062, and F006 hazardous 
wastes. (See 56 FR 41175). The ultimate goal of the land disposal 
prohibition provisions is to establish standards, ``if any'', which 
minimize short-term and long-term threats to human health and the 
environment posed by hazardous waste land disposal. (See RCRA section 
3004(m)(1)). In this case, the Agency is uncertain what level of 
treatment would assure that these threats are minimized when HTMR slag 
is used in a non-encapsulated manner, and consequently is effectively 
proposing a prohibition on this type of use. (See 57 FR at 37237, 
August 18, 1992, interpreting ``if any'' clause in section 3004(m)(1)). 
Thus, as noted above, EPA will implement today's rule, if finalized, in 
authorized States until their programs are modified to adopt the new 
prohibition and the modification is approved by EPA.
    Today's proposed rule will result in more stringent Federal 
standards. Section 271.21(e)(2) requires that States that have final 
authorization must modify their programs to reflect Federal program 
changes and must subsequently submit the modifications to EPA for 
approval.
    States with authorized RCRA programs may already have requirements 
similar to those in today's proposed rule. These State regulations have 
not been assessed against the Federal regulations being proposed today 
to determine whether they meet the tests for authorization. Thus, a 
State is not authorized to implement these requirements in lieu of EPA 
until the State program modifications are approved. Of course, States 
with existing standards could continue to administer and enforce their 
standards as a matter of State law. In implementing the Federal 
program, EPA will work with States under agreements to minimize 
duplication of efforts. In many cases, EPA will be able to defer to the 
States in their efforts to implement their programs rather than take 
separate actions under Federal authority.

VII. Regulatory Impact

A. Executive Order 12866

    Under Executive Order 12866 (see 58 FR 51735, October 4, 1993), EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action'' 
because it raises novel policy issues in terms of defining when 
products used in a manner constituting disposal should be regulated. As 
such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations will be documented in 
the public record.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
whenever an Agency is required to issue a general notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
impact of the rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions). No regulatory 
flexibility analysis is required, however, if the head of the Agency 
certifies that the rule will not have any impact on any small entities.
    This amendment will not have any impact on any small entities, 
since the regulated community will continue to have other readily 
available options for using and managing HTMR slags. Therefore, 
pursuant to section 605(b) of the Regulatory Flexibility Act, the 
Administrator certifies that this regulation will not have a 
significant economic impact on a substantial number of small entities. 
This regulation, therefore, does not require a regulatory flexibility 
analysis.

C. Paperwork Reduction Act

    The Agency has determined that there are no additional reporting, 
notification, or recordkeeping provisions associated with this proposed 
rule. Such provisions, were they included, would be submitted for 
approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq.

List of Subjects in 40 CFR Part 266

    Environmental protection, Energy, Hazardous waste, Petroleum, 
Recycling, Reporting and recordkeeping requirements.

    Dated: February 15, 1994.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, 40 CFR part 266 is 
proposed to be amended as follows:

PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES 
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES

    1. The authority citation for part 266 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6934.

Subpart C--Recyclable Materials Used in a Manner Constituting 
Disposal

    2. Section 266.20 is amended by adding a new paragraph (c) to read 
as follows:


Sec. 266.20  Applicability.

* * * * *
    (c) Non-encapsulated uses of slags, which are generated from high 
temperature metals recovery (HTMR) processing of hazardous waste K061, 
K062, and F006, in a manner constituting disposal are not covered by 
the exemption in paragraph (b) of this section and remain subject to 
regulation. Non-encapsulated uses are those uses in which the HTMR slag 
is not contained, controlled, covered, or capped in a manner that 
eliminates or significantly reduces its mobility and potential for 
release into the environment (e.g., uses as anti-skid or deicing 
materials).

[FR Doc. 94-4052 Filed 2-22-94; 8:45 am]
BILLING CODE 6560-50-P