[Federal Register Volume 59, Number 163 (Wednesday, August 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20808]
[[Page Unknown]]
[Federal Register: August 24, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 266 and 268
[SW-FRL-5057-8]
Standards for the Management of Specific Hazardous Wastes;
Amendment to Subpart C--Recyclable Materials Used in a Manner
Constituting Disposal; Final Rule
AGENCY: Environmental Protection Agency.
ACTION: Final rule and response to comments.
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SUMMARY: The Environmental Protection Agency (EPA or Agency) is today
amending 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.
The proposed amendment to Sec. 266.20 was published on February 23,
1994 (59 FR 8583). As specified in the proposal, EPA is amending
Sec. 266.20 so that certain
uses of slag residues produced from the 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. EPA's proposal
also contained a definition for ``non-encapsulated'' uses of HTMR
slags. Following a review of the public comments, EPA is clarifying the
definition of non-encapsulated uses of HTMR slags by specifying these
uses to be the anti-skid/deicing uses.
This action partially implements a settlement agreement entered
into by EPA on August 13, 1993 with the Natural Resources Defense
Council (NRDC) and Hazardous Waste Treatment Council (HWTC). This
action will effectively prohibit anti-skid/deicing uses of HTMR slags
derived from K061, K062, and F006, as waste-derived products placed on
the land, since such uses will be allowed only if there is compliance
with all Subtitle C standards applicable to land disposal. This rule
does not prohibit other uses of these slags that meet Sec. 266.20(b)
requirements. The rule also does 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). EPA plans to propose a regulatory
determination on the remaining uses of HTMR slags by December, 1994.
EFFECTIVE DATE: This final rule is effective on February 24, 1995.
ADDRESSES: The official record for this rulemaking is identified as
Docket Number F-94-SSHF-FFFFF, and is located in the EPA RCRA Docket,
room 2616 (Mail Code 5305), 401 M Street, SW., Washington, DC 20460.
The docket is open from 9:00 a.m. to 4:00 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
The regulations under 40 CFR 266.20(b), promulgated in 1985,
conditionally exempt hazardous waste-derived products used in a manner
constituting disposal (i.e., applied to or placed on land) from the
RCRA Subtitle C regulations. To be eligible for this exemption, the
waste-derived products must meet treatment standards based on Best
Demonstrated Available Technology (BDAT) developed under the Land
Disposal Restrictions (LDR) program for the original hazardous wastes
(see Sec. 266.20(b)). Residuals (``slags'') generated from the high
temperature metals recovery (HTMR) treatment of hazardous waste K061
(electric arc furnace dust) and, to a limited extent, hazardous wastes
K062 (steel finishing pickle liquor) and F006 (electroplating sludges),
are eligible for this conditional exemption (assuming that legitimate
recycling is occurring). Section 266.20(b) is applicable because the
slags are processed into products which are used in highway
construction (e.g., as road-base) or applied directly to road surfaces
(i.e., as anti-skid/deicing agents).
In August 1991, EPA finalized a generic exclusion for K061 HTMR
slags (extended to K062 and F006 HTMR slags in August 1992). Under this
exclusion, these slags are excluded from hazardous waste regulations
provided they meet designated concentration levels for 13 metals, are
disposed of in a Subtitle D unit, and exhibit no characteristics of
hazardous waste (Sec. 261.3(c)(2)).
The Natural Resources Defense Council (NRDC) and Hazardous Waste
Treatment Council (HWTC) 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 nonhazardous K061 slags meeting exclusion
levels to be disposed of in a Subtitle D unit, K061 slags that may
exhibit metal levels above the exclusion levels (but below BDAT) may be
used as products 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
the 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 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. Summary of Proposed Rule
On February 23, 1994, EPA published in the Federal Register a
proposed rule to prohibit (by amending Sec. 266.20) non-encapsulated
uses of slag residues derived from HTMR treatment of hazardous wastes
K061, K062, and F006, as waste-derived products placed on land, unless
there is compliance with all RCRA Subtitle C standards applicable to
land disposal. EPA defined non-encapsulated uses to be 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).''
EPA solicited comments on whether the necessary data are available
to establish risk-based generic exclusion levels for HTMR slags used in
non-encapsulated manners. EPA also solicited all available information
on product uses of HTMR slags.
EPA did not seek to prohibit encapsulated uses of HTMR slags
derived from K061, K062, and F006 that meet Sec. 266.20 requirements.
EPA also did not seek to 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).
III. Public Comments on the Proposed Rule
EPA received comments on the proposed rule from thirteen interested
parties. Three commenters supported the Agency's proposal to
effectively prohibit non-encapsulated uses of HTMR slags derived from
K061, K062, and F006. One commenter, a citizen of a town where HTMR
slag material is used as an anti-skid agent, strongly urged EPA to
finalize the proposed prohibition on non-encapsulated uses of HTMR
slags because of its lead content. Another commenter, the Department of
Environmental Resources of a State with several HTMR facilities, stated
that it agreed with the prohibition on non-encapsulated uses of HTMR
slags because of the many potential pathways of exposure to this
material and its unknown health risks. A third commenter, representing
the Palmerton Citizens for Clean Environment, provided results of
recent lead analysis for HTMR material supplied to a town as anti-skid
material. The results, which were not accompanied by any quality
assurance/quality control information, showed total concentrations of
lead in the anti-skid material to be in the range of 1,800 ppm to 2,200
ppm (which agrees with waste characterization data obtained by EPA).
Because the above commenters are in agreement with the content of
the proposed rule, EPA does not believe any response is necessary. The
remaining commenters disagreed and/or were concerned about the proposed
rule. These commenters also wanted EPA to provide certain
clarifications if it planned to finalize the proposed rule.
In this preamble, EPA is presenting a summary of comments received
on the proposed definition of non-encapsulated uses because it was the
most significant issue for many of the commenters. EPA's response to
these comments, as discussed below, resulted in a modification of the
proposed rule (i.e., clarification regarding non-encapsulated uses
which are prohibited). A summary of all major comments received that
criticized the proposal, and EPA's responses to these comments, are
provided in a ``Response to Comments Document,'' which is in the public
docket for this rule.
Five commenters strongly urged the Agency to limit the definition
of non-encapsulated uses of HTMR slags to its uses as anti-skid/deicing
materials (the uses specifically enumerated in the proposed rule). The
commenters believed that EPA's proposed definition for ``non-
encapsulated'' uses of HTMR slags (``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'') was vague and required a significant
degree of interpretation.
EPA agrees with the commenters that the proposed definition for
non-encapsulated uses lacked clarity and should be modified. EPA
indicated in the proposal that the non-encapsulated uses of HTMR slags
that it is most concerned about are its uses as anti-skid/deicing
materials (59 FR 8583; February 23, 1994). This is because anti-skid/
deicing uses involve frequent spreading of the HTMR slag materials on
road surfaces (an apparently uncontrolled use), which may lead to many
potential pathways of exposure to these materials. EPA believes that,
if necessary, the second rulemaking required under the settlement
agreement (which is to focus on ``encapsulated'' uses and is due to be
proposed in December 1994) will be the appropriate place to address any
other uses of concern. As a result, EPA has decided in this final rule
to limit the prohibition on non-encapsulated uses of HTMR slags to its
uses as anti-skid/deicing materials.
EPA solicited comments in the proposed rule on possible generic
exclusion levels for HTMR slags used in non-encapsulated manners, and
on the basis for setting these exclusion levels. No comments were
received on ways to establish generic exclusion levels that adequately
account for multiple potential exposure pathways. EPA, however, notes
that it is developing a risk assessment for all major HTMR slag uses to
support the second rulemaking required in the settlement agreement. EPA
will consider results from this risk assessment (and any other relevant
data which become available) to propose possible generic exclusion
levels for encapsulated uses of HTMR slags. In addition, if the results
of this assessment warrant, EPA may reconsider the prohibition for
certain uses of HTMR slags finalized in this rulemaking.
IV. Final Agency Decision
This rule prohibits anti-skid/deicing uses of HTMR slags derived
from K061, K062, and F006, as waste-derived products placed on the
land, unless there is compliance with all Subtitle C standards
applicable to land disposal.
In the proposal (59 FR 8583, February 23, 1994), EPA stated that it
would prohibit non-encapsulated uses of HTMR slags derived from K061,
K062, and F006, as waste-derived products placed on the land, unless
there is compliance with all Subtitle C standards applicable to land
disposal. EPA proposed to define the term ``non-encapsulated'' uses
rather broadly to be ``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)''. As
discussed above, EPA agreed with commenters that this proposed
definition was too vague, and instead has effectively prohibited uses
of HTMR slags as anti-skid/deicing materials (which are believed to be
the uses of greatest potential environmental concern).
Accordingly, EPA is amending 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. EPA is also including a cross-reference in
Sec. 268.41 (the Land Disposal Restriction treatment standards) which
notes the restrictions placed on use of slags in Sec. 266.20. The
language of Sec. 266.20 is revised to prohibit uses of HTMR slags as
anti-skid/deicing materials, 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 this fashion (i.e., entities are unlikely to
seek land disposal permits for the placement of anti-skid/deicing
materials on the roads), EPA is effectively prohibiting uses of HTMR
slags as anti-skid/deicing materials. As noted earlier, EPA plans to
propose a regulatory determination on the remaining uses of HTMR slags
in the near future, and may also examine possible risk-based standards
for these non-encapsulated uses.
V. Effective Date
This final rule is effective February 24, 1995. (See RCRA section
3010(a)). The Agency believes that this will provide sufficient time
for affected parties to come into compliance.
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 this final rule as a HSWA regulation. The 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; August 19, 1991.) 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)(l).) In this case, the Agency is uncertain what level
of treatment would assure that these threats are minimized when HTMR
slag is used for anti-skid/deicing purposes, and consequently is
effectively prohibiting this use. (See 57 FR at 37237, August 18, 1992,
interpreting ``if any'' clause in section 3004(m)(l)). Thus, as noted
above, EPA will implement this rule in authorized States until their
programs are modified to adopt the new prohibition and the modification
is approved by EPA.
This final 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 this final rule. These State regulations have not
been assessed against the Federal regulations being finalized 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 not a ``significant regulatory action''
and is therefore not subject to OMB review.
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.
As noted in the proposal, this amendment will not have any
significant impact on any small entities, since the regulated community
will continue to have other readily available options for using and
managing HTMR slags and small users will have readily available
substitutes. This conclusion is supported by the economic analysis
performed by the Agency in response to comments. The Agency estimated
that the increase in annual cost for a small user as a result of this
amendment would range between $8,325 to $15,300. (See the Response to
Comments Document contained in the public docket for this rule for
details of Agency's economic analysis.) 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 formal 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 Parts 266 and 268
Environmental protection, Energy, Hazardous waste, Petroleum,
Recycling, Reporting and recordkeeping requirements.
Dated: August 9, 1994.
Carol M. Browner,
Administrator.
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) Anti-skid/deicing 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.
PART 268--LAND DISPOSAL RESTRICTIONS
3. The authority citation for Part 268 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
4. Table CCWE in Sec. 268.41(a) is amended by redesignating
footnote 2 as footnote 3 at the end of the table and in the text at
waste code FO2O-FO23, and by adding a new footnote 2 at the end of the
table and in the last column in the table, ``Nonwastewaters/Notes'',
for waste codes F006, K061, and K062 to read as follows:
Sec. 268.41 Treatment standards expressed as concentrations in waste
extract.
(a) * * *
\2\See also restrictions on use of slags for anti-skid/deicing
purposes in Sec. 266.20(c).
[FR Doc. 94-20808 Filed 8-23-94; 8:45 am]
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