[Federal Register Volume 60, Number 113 (Tuesday, June 13, 1995)]
[Rules and Regulations]
[Pages 31107-31115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14338]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261

[SW-FRL-5219-5]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Final Exclusion

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or Agency) today is 
granting a petition submitted by Conversion Systems, Inc. (``CSI'') to 
exclude from hazardous waste control (or ``delist'') certain solid 
wastes. The wastes being delisted consist of electric arc furnace dust 
(``EAFD'') that has been treated by a specific chemical stabilization 
process. This action responds to CSI's petition to delist these treated 
wastes on a ``generator-specific'' basis from the hazardous waste 
lists. After careful analysis, the Agency has concluded that the 
petitioned waste is not hazardous waste when disposed of in Subtitle D 
landfills. This exclusion applies to chemically stabilized EAFD 
generated at CSI's Sterling, Illinois facility as well as to similar 
wastes that CSI may generate at future facilities. Accordingly, this 
final rule excludes the petitioned waste from the requirements of 
hazardous waste regulations under the Resource Conservation and 
Recovery Act (RCRA) when disposed of in Subtitle D landfills, but 
imposes testing conditions to ensure that the future-generated waste 
remains qualified for delisting.

EFFECTIVE DATE: June 13, 1995.

[[Page 31108]] ADDRESSES: The public docket for this final rule is 
located at the U.S. Environmental Protection Agency, 401 M Street, SW, 
Washington, DC 20460, and is available for viewing [Room M2616] from 9 
a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. Call 
(202) 260-9327 for appointments. The reference number for this docket 
is ``F-95-CSEF-FFFFF.'' The public may copy material from any 
regulatory docket at no cost for the first 100 pages and at a cost of 
$0.15 per page for additional copies.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline, toll free at (800) 424-9346, or at (703) 412-9810. For 
technical information concerning this notice, contact Chichang Chen, 
Office of Solid Waste (Mail Code 5304), U.S. Environmental Protection 
Agency, 401 M Street, SW, Washington, DC 20460, (202) 260-7392.

SUPPLEMENTARY INFORMATION:

I. Background

A. Authority

    Under 40 CFR 260.20 and 260.22, facilities may petition the Agency 
to remove their wastes from hazardous waste control by excluding them 
from the lists of hazardous wastes contained in Secs. 261.31 and 
261.32. Specifically, Sec. 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
265 and 268 of title 40 of the Code of Federal Regulations; and 
Sec. 260.22 provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator-specific'' basis from 
the hazardous waste lists. Petitioners must provide sufficient 
information to EPA to allow the Agency to determine that the waste to 
be excluded does not meet any of the criteria under which the waste was 
listed as a hazardous waste. In addition, the Administrator must 
determine, where he has a reasonable basis to believe that factors 
(including additional constituents) other than those for which the 
waste was listed could cause the waste to be a hazardous waste, that 
such factors do not warrant retaining the waste as a hazardous waste.

B. History of This Rulemaking

    Conversion Systems, Inc., (CSI), Horsham, Pennsylvania, petitioned 
the Agency to exclude from hazardous waste control its stabilized waste 
generated at electric arc furnace dust (EAFD) treatment facilities 
across the nation. After evaluating the petition, EPA proposed, on 
November 2, 1993 to exclude CSI's waste from the lists of hazardous 
wastes under Secs. 261.31 and 261.32 (see 58 FR 58521). Subsequently, 
in response to a commenter's request, the Agency published a notice 
extending the comment period until January 3, 1994 (see 58 FR 67389, 
December 21, 1993).
    This rulemaking addresses public comments received on the proposal 
and finalizes the proposed decision to grant CSI's petition.
II. Disposition of Petition

Conversion Systems, Inc., Horsham, Pennsylvania

A. Proposed Exclusion

    CSI petitioned the Agency for a multiple-site exclusion for 
chemically stabilized electric arc furnace dust (CSEAFD) resulting from 
the Super DetoxTM treatment process as modified by CSI. (The 
original Super DetoxTM treatment process was developed by 
Bethlehem Steel Corporation and used at its Johnstown and Steelton, 
Pennsylvania facilities.) Specifically, CSI requested that the Agency 
grant a multiple-site exclusion for CSEAFD generated by CSI using its 
modified Super DetoxTM process at the existing Sterling, Illinois 
facility at Northwestern Steel and future facilities to be constructed 
(CSI initially is planning to construct 12 other facilities 
nationwide). The resulting CSEAFD is classified as a K061 hazardous 
waste by virtue of the ``derived from'' rule (Sec. 261.3(c)(2)(i)), 
because it is generated from the treatment of a hazardous waste 
(electric arc furnace dust) which is currently listed as EPA Hazardous 
Waste No. K061--``Emission control dust/sludge from the primary 
production of steel in electric furnaces.'' The listed constituents of 
concern for EPA Hazardous Waste No. K061 are cadmium, hexavalent 
chromium, and lead. CSI petitioned to exclude Super DetoxTM 
treatment residues because it does not believe that the CSEAFD meets 
the criteria for which K061 was listed. CSI also believes that the 
Super DetoxTM process, as modified by CSI, generates a non-
hazardous waste because the constituents of concern, although present 
in the waste, are in an essentially immobile form. CSI further believes 
that the waste is not hazardous for any other reason (i.e., there are 
no additional constituents or factors that could cause the waste to be 
hazardous). Lastly, CSI believes that a multiple-site delisting will 
save both EPA and CSI the cost and administrative burden of multiple 
petitions each providing essentially the same, duplicative information 
of a process already well known and accepted by the Agency as effective 
in treating EAFD wastes (see final exclusions for Bethlehem Steel 
Corporation's Johnstown and Steelton, Pennsylvania facilities in 54 FR 
21941, May 22, 1989). Review of this petition included consideration of 
the original listing criteria, as well as the additional factors 
required by the Hazardous and Solid Waste Amendments (HSWA) of 1984. 
See section 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-
(4).
    In support of its petition, CSI submitted: (1) Detailed 
descriptions and schematics of the Super DetoxTM treatment process 
for both wet and dry electric arc furnace dust 1; (2) total 
constituent analyses results for the eight Toxicity Characteristic (TC) 
metals listed in Sec. 261.24 and six other metals from representative 
samples of the untreated (non-stabilized) EAFD; (3) Toxicity 
Characteristic Leaching Procedure (TCLP, SW-846 Method 1311) results 
for the eight TC metals from a representative sample of untreated EAFD; 
(4) TCLP results for the eight TC metals and six other metals from 
representative samples of the uncured CSEAFD; (5) Multiple Extraction 
Procedure (MEP, SW-846 Method 1320) results for the TC metals and six 
other metals from representative samples of the uncured CSEAFD; (6) 
total oil and grease (TOG), total cyanide, and total sulfide results 
from representative samples of the untreated EAFD; (7) information and 
test results regarding the hazardous waste characteristics of 
ignitability, corrosivity, and reactivity for the CSEAFD; and (8) 
ground-water monitoring data from the landfill containing the CSEAFD 
generated from CSI's Sterling, Illinois Super DetoxTM facility.

    \1\  CSI has claimed some treatment process descriptions, 
including information on how they improved the original Super 
DetoxTM treatment process, as confidential business information 
(CBI). This information, therefore, is not available in the RCRA 
public docket for today's notice.
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B. Request for Public Hearing

    During the comment period, Horsehead Resource Development Company, 
Inc. (``HRD'') and one Congressman requested a formal public hearing to 
allow interested parties a sufficient opportunity to comment on the 
November 2, 1993 proposed rulemaking. HRD also indicated its desire to 
cross-examine EPA and CSI witnesses. Following review of the issues 
raised by the commenters, the Agency found no compelling need for a 
public hearing and, therefore, notified the commenters of its decision 
not to [[Page 31109]] hold a hearing. See the docket for proposed 
notice for the related correspondences. In its comments on the proposed 
rule, HRD claimed that EPA's denial of its hearing request violates the 
Administrative Procedure Act.
    The Agency notes that the applicable regulations (40 CFR 
Sec. 260.20(d) and Sec. 25.5) specify only that EPA hold an informal 
hearing at its discretion. The Agency believes that given the highly 
technical nature of the proposal, written documentation is a more 
appropriate medium for the issues raised. In addition, even if a 
hearing were held, such process would not encompass the formal 
testimony of EPA staff and expert witnesses HRD was seeking; the Agency 
would merely use this procedure to gather oral comments for the record. 
The Agency believes a hearing was unnecessary, and that the Agency's 
procedures were consistent with the Administrative Procedure Act. In 
any event, the Agency has met with HRD, the primary commenter opposing 
this delisting, a number of times since the time of the proposal to 
hear its views in person.

C. Summary of Responses to Public Comments

    The Agency received public comments on the November 2, 1993 
proposal from 18 interested parties. Eight of these commenters, 
consisting chiefly of steelmaking concerns, clearly supported the 
Agency's proposed decision to grant CSI's petition. One commenter had 
questions about the RCRA permit requirements for CSI's future 
facilities, and about the effective date of the proposed delisting in a 
State not authorized to administer the Federal delisting program. Of 
the nine remaining commenters, one commenter (HRD) strongly opposed the 
Agency's proposed decision, and presented discussions on a variety of 
issues. The remaining eight out of these nine commenters consisted of 
Congressmen and Senators reiterating concerns about the proposed 
delisting. Detailed Agency responses to all significant comments are 
provided in a ``Response to Comments'' document, which is in the public 
docket for today's rule. The following discussion is a summary of both 
the most significant issues raised by HRD and EPA's responses.

Impact of This Delisting Upon Recycling of K061

    Comment: A number of commenters, including HRD, claimed that the 
proposed delisting would inappropriately and illegally allow for the 
landfilling of chemically stabilized K061 that is currently being 
recycled by high-temperature metals recovery (``HTMR'') facilities. The 
commenters' assertions on this issue can be summarized as follows: (1) 
Both RCRA and the Pollution Prevention Act of 1990 express a general 
preference for resource recovery and reclamation over conventional 
waste treatment and disposal. Accordingly, EPA is required by law to 
promulgate regulations that encourage recycling over treatment and 
disposal whenever possible. The CSI delisting violates these statutory 
requirements because it encourages the landfilling of otherwise 
recoverable materials. (2) EPA's delisting regulations require 
compliance with these RCRA and PPA mandates. Specifically, the 
regulations require EPA to consider factors in addition to those for 
which the waste was originally listed as a hazardous waste if such 
factors could cause the waste to be listed as a hazardous waste (40 CFR 
260.22(a)(2) and 261.11(a)(3)(xi)). EPA must consider, as one of these 
factors, the impact of the CSI delisting on the overarching mandates of 
RCRA and the PPA, and must conclude that the CSI delisting is 
inconsistent with these statutes. (3) The delisting would violate EPA's 
own regulatory strategy and prior policies and rulemaking precedents 
favoring resource conservation and recovery over stabilization. These 
policies and precedents appear in the Agency's RCRA implementation 
strategy, land disposal regulations and waste minimization guidance. 
(4) The CSI delisting would also violate the Administration's stated 
policy to encourage recycling technologies and a ``green'' economy.
    On the other hand, one commenter supporting the proposed delisting 
stated that the delisting must be granted as a matter of law because 
EPA has determined that the chemically stabilized EAFD residues do not 
``pose a substantial hazard to human health or the environment'' and 
therefore are not ``hazardous wastes'' subject to RCRA regulation, 
citing RCRA section 1004(5) and 40 CFR 260.22 (a), (b) and 261.11(a). 
This commenter claimed that the delisting is consistent with the waste 
management objectives of RCRA and the PPA, which encourage EPA to 
promote various alternatives to the untreated land disposal of 
hazardous waste.
    Response: After careful evaluation of the characteristics and 
nature of the K061 residues produced by CSI's stabilization process, 
EPA is today finalizing a determination that these residues do not 
constitute RCRA hazardous waste. Specifically, EPA has found that these 
chemically stabilized K061 wastes do not meet any of the criteria for 
which K061 wastes were listed as hazardous and that there is no reason 
to believe that any factors other than those for which K061 wastes were 
listed (including additional constituents) could cause these CSI wastes 
to be hazardous. See 40 CFR 260.22(a) and RCRA section 3001(f).
    In light of EPA's determination that CSI's treated K061 waste is 
not hazardous, the Agency has no authority to retain this waste as a 
listed hazardous waste simply because doing so would effectively 
promote HTMR recycling and reclamation of K061 wastes over the 
treatment and disposal of CSI's chemically stabilized, non-hazardous 
waste. RCRA's general statements of Congressional findings, objectives 
and national policy addressing the subject of minimizing hazardous 
waste generation and disposal do not supersede the specific hazardous 
waste listing and delisting scheme established under RCRA. Here, under 
that scheme, EPA has determined that CSI's treated waste does not meet 
the criteria for being considered hazardous waste. Nothing in the 
general objectives and policy provisions of RCRA generally favoring 
resource recovery over conventional waste treatment and disposal 
requires, or indeed authorizes, EPA to forego or reverse this 
determination. See Hazardous Waste Treatment Council v. EPA, 861 F.2d 
270, 276-77 (D.C. Cir. 1988).
    Similarly, EPA cannot agree with the commenter's conclusion that 
this delisting conflicts with the mandates of the Pollution Prevention 
Act of 1990 (``PPA''). Section 6602(b) of the PPA (42 U.S.C. 13101(b)) 
declares it to be the national policy that pollution control should 
follow a hierarchy which prefers pollution prevention at the source 
over recycling and prefers recycling over treatment and disposal in an 
environmentally safe manner. EPA fully supports this hierarchy and 
believes it sets forth a desirable general order of preferences for 
pollution control. Again, however, this policy is not a statutory or 
regulatory mandate. Nothing in the PPA requires or even contemplates 
that EPA must retain on the list of hazardous wastes materials that the 
Agency finds to be non-hazardous simply because there exists an ability 
to perform resource recovery on these materials.
    EPA also disagrees with the commenter's claim that the delisting 
regulations require this delisting to be denied. 40 CFR 260.22(a)(2) 
focuses on factors that ``could cause the waste to be a hazardous 
waste''. The factor cited by the commenter does not fit this 
description. In addition, EPA finds that [[Page 31110]] today's 
delisting decision is fully consistent with the Agency's and the 
Administration's own regulatory strategy and policies, as explained in 
the Response to Comments document.
    In any event, EPA believes that today's delisting decision does 
harmonize with the overall intent and purposes of RCRA and the PPA. 
While these two statutes generally encourage resource recovery where 
appropriate, they do not require it in every conceivable case, 
regardless of the nature of the waste. Indeed, the commenter's 
interpretation would have the effect of contravening Congressional 
intent to allow for delistings where appropriate.
    EPA also notes that the effect of this delisting on K061 recycling 
practices is speculative in any event. As explained in the Response to 
Comments document, the extent to which steelmakers may stop using 
recycling technologies upon today's delisting in favor of managing EAFD 
through CSI's Super DetoxTM process is unclear.
    EPA's response on these issues is further explained in the Response 
to Comments document for this rulemaking.

Multiple Site Nature of the Delisting

    Comment: One commenter (HRD) stated that the multiple-site nature 
of the delisting for CSI is precedent-setting but the Agency has 
offered no legal justification for it. The commenter believed that 40 
CFR 260.22 and RCRA section 3001(f) limit the scope of delisting 
petitions to wastes generated at a single facility. This commenter also 
claimed that this delisting violates the notice and comment 
requirements of the Administrative Procedure Act because there will be 
no opportunity for comment on any of the CSEAFD delistings at future 
CSI sites.
    Another commenter, however, believed that the multiple-site nature 
of the delisting would avoid duplicative delisting petitions and save 
the steel industry the unnecessary costs and administrative burdens of 
multiple petitions.
    Response: The statute and regulations do not limit the availability 
of delisting decisions to wastes generated at a single facility. The 
commenter has misinterpreted the language of section 3001(f) of RCRA 
and 40 CFR 260.22, which both provide that parties may seek delistings 
for wastes generated at a ``particular facility.'' The term 
``particular facility'' refers to a specific qualifying facility and 
there is no bar to a delisting covering more than one particular, and 
qualifying, facility. The language limits delistings to an identified 
and qualifying facility or facilities; it does not limit them to a 
``single'' facility. The intent of this language is to indicate that, 
because delistings are granted only to specific qualifying facilities, 
a facility may not manage its waste as non-hazardous based solely on a 
delisting granted to another facility for the same listed waste.
    Today's multiple-site delisting is fully consistent with the 
purposes of RCRA's listing and delisting scheme. If CSI has more than 
one facility treating the same wastes with the same process, and EPA is 
assured (through verification testing) that these wastes meet the 
requirements for being nonhazardous, the statute, its legislative 
history and the regulations support their removal from the list of 
hazardous wastes. No part of the statute or regulations purports to 
limit the number of facilities that a delisting may cover. As to the 
``up-front'' nature of this delisting, the Agency in fact has a long-
standing policy and practice of granting delistings to facilities not 
yet constructed, provided that their waste, once produced, meets 
specified criteria.
    In any event, today's delisting decision appears to be consistent 
even with the commenter's incorrect interpretation of the statute and 
regulations. Today's action does not automatically grant a delisting to 
a multiple number of CSI's facilities. Instead, although EPA has 
reviewed the Super DetoxTM treatment process itself on a generic 
basis, EPA is requiring verification testing at each specific facility 
before the Agency grants a delisting. Thus, the Agency is, in fact, 
considering each CSEAFD facility separately. The focus of the 
commenter's criticism would seem to be that EPA is not requiring the 
company to submit a separate delisting petition for each new facility. 
It would make no sense to require a company to submit multiple 
individual petitions for similar wastes generated from similar process 
and feed materials when the only difference between petitions is the 
name and location of the specific facility; to do so would be an 
unnecessary administrative burden and waste of resources for both EPA 
and the petitioner.
    The commenter also alleged an inconsistency with EPA's 1993 
publication, ``Petitions to Delist Hazardous Wastes: A Guidance 
Manual'' (second edition). The Manual states that ``separate petitions 
must be submitted for wastes generated at different facility locations, 
even if the contributing processes and raw materials are similar. This 
requirement is necessary because an amendment to 40 CFR part 261 for an 
exclusion only applies to a waste produced at a particular facility.'' 
This provision was originally included in the draft of the Manual at a 
point before EPA contemplated the type of multiple-site delisting 
requested by CSI, and it has been inadvertently carried over in later 
revisions of the guidance document. EPA has accepted CSI's petition for 
a multiple-site delisting because of the efficiencies created and in 
light of the protections afforded by future verification testing. To 
the extent this provision in the guidance document is viewed as 
inconsistent with today's delisting, the guidance document should be 
considered superseded by the notice of proposed rulemaking and this 
final rulemaking for the CSI delisting to permit appropriate multiple-
site petitions here and in the future. In any event, EPA's practice has 
evolved beyond the provision originally included in this non-binding 
guidance document and today's action is fully consistent with that 
practice.
    EPA also disagrees with the commenter's claim that today's 
delisting violates the notice and comment requirements of the 
Administrative Procedure Act (``APA'') since there will be no 
opportunity for comment on additional CSI facilities producing CSEAFD 
that may be added to the scope of this delisting in the future. There 
has been sufficient opportunity for meaningful comment on the current 
and potential future delistings of CSI facilities producing CSEAFD 
since all issues the Agency will possibly consider in granting the 
future delistings have already been aired for comment.
    EPA's response on these issues is further explained in the Response 
to Comments document for this rulemaking.
Executive Order 12866

    Comment: One commenter (HRD) alleged that EPA did not conduct the 
complete regulatory review required by Executive Order 12866 for 
significant regulatory actions having an annual effect on the economy 
of $100 million or more. By HRD's account, the economic impact of this 
delisting would exceed $100 million/year because electric arc furnace 
(``EAF'') steelmakers will choose to abandon the existing high 
temperature metals recovery (HTMR) operations and give all K061 waste 
treatment business to CSI. The commenter also alleged that EPA failed 
to consider the other principles of regulatory development stipulated 
in the Executive Order.
    Response: The Agency determined that the effect of the proposed 
rule, [[Page 31111]] unlike regulations imposing tighter control 
requirements, would be to reduce the overall costs and economic impact 
of the RCRA regulations. Therefore, this rule is unlikely to have an 
adverse annual effect on the economy of $100 million or more. The 
extent to which EAF steelmakers may change from one waste management 
alternative such as recycling to other methods after today's delisting 
is speculative in any event.
    In addition, the Agency did not fail to consider the other 
principles of regulatory development stipulated in the Executive Order. 
See the Response to Comments document for a further discussion of these 
issues.

Waste Management

    Comment: One commenter (HRD) noted that CSI may develop products 
from CSEAFD, that the delisted waste may be delivered to a facility 
that beneficially uses or reuses the material and that the waste may be 
disposed of in any acceptable manner under Federal or State law. As 
such, this commenter believed that the assumption of disposal in a 
Subtitle D landfill is not the reasonable worst-case disposal scenario 
for CSI's petitioned waste. In support of its argument, the commenter 
submitted an excerpt of a paper presented by a CSI employee at a trade 
meeting held in February 1995. This excerpt reflects two alternative 
concepts that are being developed'' for recycling EAFD, including use 
of stabilized EAFD as ingredients in the production of Portland cement.
    Response: CSI indicated in its petition that the CSEAFD will be 
disposed of at non-hazardous waste landfills. EPA does not have any 
specific information that CSI has developed its CSEAFD into any viable 
product that would allow for use or reuse of this material instead of 
disposal. Therefore, it is unclear if, when, or how potential CSEAFD-
derived products may be used in the future. EPA's assumption that CSI's 
petitioned waste, if delisted, will be disposed of in a Subtitile D 
landfill is conservative and represents a reasonable worst-case 
management scenario for this delisting for the decision that CSI's 
CSEAFD may safely be disposed of as a non-hazardous ``waste''.
    Nevertheless, as the commenter pointed out and as the petition also 
indicates, CSI is working on different ways to reuse the CSEAFD as a 
feedstock or product (see Page 17 of CSI's petition). It is unclear if 
the effectiveness of CSI's stabilization process could be somewhat 
compromised as a result of certain product-use applications; or if the 
levels of total constituents in the CSEAFD could become a concern due 
to certain exposure scenarios not considered in the delisting 
evaluation. Because EPA was not provided with any detailed information 
and data from CSI on how its waste might be used in products, EPA 
believes it is appropriate to limit the scope of today's final rule to 
exclude CSI's CSEAFD only where it is disposed of in Subtitle D 
landfills. EPA does not reach a decision today on whether CSI's CSEAFD 
that is not disposed of in Subtitile D landfills qualifies for 
exclusion from the list of hazardous wastes. In the future, if CSI has 
successfully developed uses for CSEAFD and seeks an exclusion for such 
uses, it must submit pertinent information in a petition to EPA and 
await further decision by the Agency on that matter.

Potential Deterioration of CSI's Stabilized K061

    Comment: One commenter (HRD) stated that the petition relied on the 
TCLP and MEP chemical testing procedures to determine the efficacy of 
CSI's stabilization process, but largely failed to address the long-
term physical durability (or structural integrity) of the stabilized 
EAFD. The commenter believed that the stabilized EAFD will deteriorate 
over time once disposed of in landfills or elsewhere, which could 
result in airborne or waterborne exposure which was not evaluated. The 
commenter presented a list of applicable physical test methods, and 
suggested that at a minimum, freeze-thaw and wet-dry durability tests 
be performed, and that EPA should apply ``deterioration models.''
    Response: This rulemaking adequately addresses the potential 
deterioration of CSI's CSEAFD and the resulting leachability of the 
material. The MEP was developed to predict the long-term leachability 
of stabilized wastes, consisting of ten sequential extractions that 
simulate approximately 1,000 years of acid rainfall. This method 
requires that the sample of stabilized material be first crushed and 
ground so that the sample material can pass through a 9.5-mm sieve (as 
part of the TCLP extraction incorporated in the MEP). The use of 
particles less than 9.5 mm is comparable to a worst-case assumption of 
degradation of the stabilized material. EPA also conservatively assumed 
that the total constituents in the waste would be readily available for 
release into air (ignoring that they are contained in the solidified 
waste matrix). Therefore, this evaluation also addressed the potential 
deterioration and airborne transmission of the waste.

Use of EPA's Composite Model for Landfills (EPACML)

    Comment: One commenter (HRD) claimed that the EPACML model was not 
adequate for evaluating CSI's petitioned waste for several reasons. 
First, more accurate models, such as MINTEQ, must be used to quantify 
the migration and mobility of metals from land disposal units. Second, 
the Monte Carlo simulation mode implemented in the model is 
inappropriate for multiple site delistings because it does not account 
for site-specific variability. The commenter felt that only numerical 
models can account for such variability. Third, the model does not 
check for unrealistic combinations of input parameters, thereby 
resulting in inaccurate dilution and attenuation factors (DAFs). The 
commenter felt that the combination of input parameters should have 
been made public to allow for review and comment. Lastly, the commenter 
stated that the Agency did not clearly identify and justify the 
specific options used in the EPACML model for the delisting evaluation.
    Response: The Agency disagrees with the commenter's contention that 
the EPACML model is inadequate for evaluating CSI's petitioned waste. 
First, the EPACML fate and transport model consists of an unsaturated 
zone module and a saturated zone module, both of which were reviewed 
and endorsed by EPA's Science Advisory Board for use for regulatory 
purposes. See 56 FR 32993 (July 18, 1991) and the EPACML Background 
Document 2 for a complete discussion of the EPACML model, 
assumptions and input parameters, and their use in delisting decision-
making. EPA believes that the EPACML reasonably estimates the 
subsurface fate and transport of metals from land disposal units.

    \2\ ``Background Document for EPA's Composite Model for 
Landfills (EPACML)'', available in the RCRA public docket for the 
November 2, 1993 proposed rule.
    For prior cases, the MINTEQ model has not been found appropriate 
for use for delisting evaluations. To use it would require a large 
amount of additional information regarding the speciation of the metals 
present in the waste and the disposal site. EPA has discussed its 
finding that the EPACML model is adequate and conservative for 
delistings. Indeed, incorporation of results of MINTEQ in the EPACML 
model would only be less conservative if anything--i.e., it would 
likely serve only to increase the output DAFs [[Page 31112]] because 
speciation reactions between metallic ions in the leachate and the soil 
particles may cause further attenuation of metal concentrations in the 
subsurface. These higher DAFs would result in even higher allowable 
leachable levels of metals in CSI's waste.
    In addition, the Agency disagrees with the commenter's claim that 
the Monte Carlo simulation mode implemented in the EPACML is 
inappropriate for multiple site delistings and disagrees with the 
commenter's remaining contentions regarding the use of the EPACML 
model. See the Response to Comment document for a further discussion of 
all of these issues.

Verification Testing Conditions

    Comment: One commenter (HRD) stated that the proposed initial and 
subsequent testing conditions are insufficient. The commenter believed 
that these testing conditions will result in over-compositing of the 
samples collected from each batch, as they require only a minimum of 
four composite samples during the 20-day initial verification testing 
period and thereafter a minimum of one monthly composite sample.
    Response: Although the concentrations of metals in the CSEAFD are 
expected to be somewhat variable over time (e.g., as the source and 
type of scrap charged to the EAF changes over time), EPA does not 
expect these variations to be significant on a day-to-day basis (i.e., 
most steel mills procure large volumes of scrap and their EAF 
operations do not vary widely on a daily basis). Also, at any given 
facility, the daily variations in EAFD metals concentrations are 
dampened where the EAFD is mixed together within the pneumatic EAFD 
transport system, baghouse, electrostatic precipitator, and/or storage 
silos. The Agency, therefore, believes that the proposed initial 
verification testing requirement is sufficient.
    In addition, the data demonstrate that CSI's Super DetoxTM 
process can effectively immobilize the constituents of concern, and 
justify the Agency's proposal to require less frequent, but long-term, 
verification testing (monthly or more frequently at CSI's discretion) 
subsequent to the initial verification testing.

Delisting Levels

    In the proposed rule EPA solicited comments on the proposed maximum 
allowable leachable concentrations for a specific set of inorganic 
constituents (the ``delisting levels'') that CSI would need to meet 
during verification testing. In this respect, the Agency also requested 
comments on the option of applying the generic exclusion levels for 
K061 HTMR nonwastewater residues set under Sec. 261.3(c)(2)(ii)(C) to 
CSI's CSEAFD for the sake of national consistency. No comments were 
received on which of these two approaches should be chosen. The Agency 
has now concluded that the delisting levels applying to CSI's CSEAFD 
should be at least as stringent as the K061 HTMR generic exclusion 
levels. Therefore, the Agency is finalizing the delisting levels by 
using the lesser of the proposed levels for CSI's CSEAFD and the 
respective generic exclusion levels for HTMR residues, as shown below 
(in ppm): Antimony--0.06; arsenic--0.50; barium--7.6; beryllium--0.010; 
cadmium--0.050; chromium--0.33; lead--0.15; mercury--0.009; nickel--1; 
selenium--0.16; silver--0.30; thallium--0.020; vanadium--2; and zinc--
70.

Economics and Related Issues

    Comment: A number of commenters raised issues concerning the 
economic and related implications of this delisting. First, the Steel 
Manufacturers Association (``SMA'') claimed that this delisting is 
necessary in order to increase the number of cost-effective 
alternatives for managing K061 waste. Because of the high cost of HTMR, 
SMA stated, steelmakers ultimately may be forced to substitute greater 
tonnages of direct reduced iron as feedstock instead of using scrap 
metal. Direct reduced iron contains only pure iron, so any EAFD 
generated from it would not contain hazardous metals (obviating the 
need to use HTMR processes). By granting the delisting, EPA will be 
promoting the continued resource recovery of iron and other valuable 
metals from scrap metal (of which, SMA claimed, about 40 million tons 
per year are currently used as EAF steelmaking feedstock).
    Another commenter (HRD) disagreed with the above claims. It pointed 
out that the cost of managing EAFD by either HTMR or chemical 
stabilization and disposal is less than one percent of the steel 
production cost, and that the savings from switching to chemical 
stabilization would amount to only cents per ton of production. HRD 
claimed that direct reduced iron is much more expensive than scrap 
metal, affecting the cost of steelmaking 10 times as much as the cost 
of EAF dust management. Hence, HRD disputed the claim that steel makers 
might discontinue the use of scrap feedstock if this delisting is not 
granted. HRD also stated that the steel industry in fact has a number 
of EAFD management options, including HTMR processing by HRD and other 
firms, treatment and disposal as a hazardous waste, use as a fertilizer 
ingredient, and export for processing.
    Response: The focus of today's delisting decision is on whether or 
not CSI's stabilized EAFD should continue to be listed as hazardous 
waste in light of the relevant statutory and regulatory criteria. As 
explained above, EPA has found that CSI's chemically stabilized K061 
wastes do not meet any of the criteria for which K061 wastes were 
listed as hazardous and there is no reason to believe that any factors 
other than those for which K061 wastes were listed (including 
additional constituents) could cause these wastes to be hazardous. 
Therefore, today's rule finalizes EPA's determination to exclude these 
residues from the RCRA Subtitle C regulatory regime. See 40 CFR 
Sec. 260.22(a) and RCRA Section 3001(f).
    EPA explained above that the effect of today's delisting decision 
on K061 recycling (i.e., whether granting this delisting effectively 
promotes treatment and disposal of K061 wastes over HTMR recycling of 
these wastes) is irrelevant to the delisting determination. Similarly, 
the economic and related issues that have been raised by the commenters 
are not relevant to today's delisting decision because they bear no 
nexus to the issue of whether the stabilized K061 wastes remain 
hazardous. See the Response to Comments document for a further 
discussion of these issues.
D. Final Agency Decision

    For the reasons stated in both the proposal and this notice, the 
Agency believes that CSI's chemically stabilized electric arc furnace 
dust, upon meeting certain verification testing requirements, should be 
excluded from hazardous waste control. The Agency, therefore, is 
granting a final conditional exclusion to Conversion Systems, Inc., 
Horsham, Pennsylvania, for its treatment residue (CSEAFD) generated at 
its Sterling, Illinois facility and other facilities yet to be 
constructed nationwide, described in its petition as EPA Hazardous 
Waste No. K061.
    This exclusion applies initially to only CSI's Super DetoxTM 
treatment facility located at Northwestern Steel in Sterling, Illinois. 
As stated in Condition (5), CSI must notify EPA at least one month 
prior to operation of a new Super DetoxTM treatment facility in 
order to provide EPA with sufficient time to initiate the process to 
amend CSI's exclusion. CSEAFD generated from a new Super DetoxTM 
treatment facility will not be excluded until the Agency 
[[Page 31113]] publishes a notice amending CSI's exclusion as specified 
in Condition (1)(B). CSI will require a new exclusion if the treatment 
process specified for any Super DetoxTM treatment facility is 
significantly altered beyond the changes in operating conditions 
described in Condition (4). Accordingly, the facility would need to 
file a new petition for a changed process. The facility must manage 
wastes generated from a changed process as hazardous until a new 
exclusion is granted.
    Although the CSEAFD wastes covered by this petition are excluded 
from regulation as listed hazardous wastes under Subtitle C upon 
today's final exclusion, this exclusion applies only where these wastes 
are disposed of in Subtitle D landfills.

III. Limited Effect of Federal Exclusion

    The final exclusion being granted today is issued under the Federal 
(RCRA) delisting program. States, however, are allowed to impose their 
own, non-RCRA regulatory requirements that are more stringent than 
EPA's, pursuant to section 3009 of RCRA. These more stringent 
requirements may include a provision which prohibits a Federally-issued 
exclusion from taking effect in the State. Because a petitioner's waste 
may be regulated under a dual system (i.e., both Federal (RCRA) and 
State (non-RCRA) programs), petitioners are urged to contact State 
regulatory authority to determine the current status of their wastes 
under State law.
    Furthermore, some States (e.g., Georgia, Illinois) are authorized 
to administer a delisting program in lieu of the Federal program, i.e., 
to make their own delisting decisions. Therefore, this exclusion does 
not apply in those authorized States. If the petitioned CSEAFD will be 
transported to and managed in any State with delisting authorization, 
CSI must obtain delisting authorization from that State before the 
CSEAFD may be managed as non-hazardous in the State.

IV. Effective Date

    This rule is effective on June 13, 1995. The Hazardous and Solid 
Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. That is the 
case here because this rule reduces, rather than increases, the 
existing requirements for persons generating hazardous wastes. In light 
of the unnecessary hardship and expense that would be imposed on this 
petitioner by an effective date of six months after publication and the 
fact that a six-month deadline is not necessary to achieve the purpose 
of Section 3010, EPA believes that this rule should be effective 
immediately upon publication. These reasons also provide a basis for 
making this rule effective immediately, upon publication, under the 
Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

V. Regulatory Impact

    Under Executive Order 12866, EPA must conduct an ``assessment of 
the potential costs and benefits'' for all ``significant'' regulatory 
actions. The effect of this rule is to reduce the overall costs and 
economic impact of EPA's hazardous waste management regulations. The 
reduction is achieved by excluding waste from EPA's lists of hazardous 
wastes, thereby enabling a facility to treat its waste as non-
hazardous. As discussed in the Agency response to public comments, this 
rule is unlikely to have an adverse annual effect on the economy of 
$100 million or more. Therefore, this rule does not represent a 
significant regulatory action under the Executive Order, and no 
assessment of costs and benefits is necessary. The Office of Management 
and Budget (OMB) has exempted this rule from the requirement for OMB 
review under section (6) of Executive Order 12866.

VI. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601-612, 
whenever an agency is required to publish a general notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis which 
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 
Administrator or delegated representative certifies that the rule will 
not have any impact on any small entities.
    This regulation will not have an adverse impact on any small 
entities since its effect will be to reduce the overall costs of EPA's 
hazardous waste regulations. Accordingly, I hereby certify 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.

VII. Paperwork Reduction Act

    Information collection and recordkeeping requirements associated 
with this final rule have been approved by the Office of Management and 
Budget (OMB) under the provisions of the Paperwork Reduction Act of 
1980 (Pub. L. 96-511, 44 U.S.C. 3501 et seq.) and have been assigned 
OMB Control Number 2050-0053.

VIII. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``UMRA''), Pub. L. 104-4, which was signed into law on March 22, 1995, 
EPA generally must prepare a written statement for rules with Federal 
mandates that may result in estimated costs to State, local, and tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year. When such a statement is required for EPA 
rules, under section 205 of the UMRA EPA must identify and consider 
alternatives, including the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. EPA 
must select that alternative, unless the Administrator explains in the 
final rule why it was not selected or it is inconsistent with law. 
Before EPA establishes regulatory requirements that may significantly 
or uniquely affect small governments, including tribal governments, it 
must develop under section 203 of the UMRA a small government agency 
plan. The plan must provide for notifying potentially affected small 
governments, giving them meaningful and timely input in the development 
of EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements.
    The UMRA generally defines a Federal mandate for regulatory 
purposes as one that imposes an enforceable duty upon State, local, or 
tribal governments or the private sector. EPA finds that today's 
delisting decision is deregulatory in nature and does not impose any 
enforceable duty on any State, local, or tribal governments or the 
private sector. In addition, today's delisting decision does not 
establish any regulatory requirements for small governments and so does 
not require a small government agency plan under UMRA section 203.

Lists of Subjects in 40 CFR Part 261

    Hazardous Waste, Recycling, Reporting and recordkeeping 
requirements.

     [[Page 31114]] Dated: May 30, 1995.
Michael H. Shapiro,
Director, Office of Solid Waste.

    For the reasons set out in the preamble, 40 CFR part 261 is amended 
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for Part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

    2. In Table 2 of Appendix IX, Part 261 add the following 
wastestream in alphabetical order by facility to read as follows: 
Appendix IX--Wastes Excluded Under Secs. 260.20 and 260.22.

                                 Table 2.--Wastes Excluded From Specific Sources                                
----------------------------------------------------------------------------------------------------------------
       Facility               Address                                  Waste description                        
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Conversion Systems,    Horsham, Pennsylvania  Chemically Stabilized Electric Arc Furnace Dust (CSEAFD) that is  
 Inc.                                          generated by Conversion Systems, Inc. (CSI) (using the Super     
                                               DetoxTM treatment process as modified by CSI to treat EAFD (EPA  
                                               Hazardous Waste No. K061)) at the following sites and that is    
                                               disposed of in Subtitle D landfills:                             
                                              Northwestern Steel, Sterling, Illinois after June 13, 1995.       
                                              CSI must implement a testing program for each site that meets the 
                                               following conditions for the exclusion to be valid:              
                                              (1) Verification Testing Requirements: Sample collection and      
                                               analyses, including quality control procedures, must be performed
                                               according to SW-846 methodologies.                               
                                              (A) Initial Verification Testing: During the first 20 operating   
                                               days of full-scale operation of a newly constructed Super DetoxTM
                                               treatment facility, CSI must analyze a minimum of four (4)       
                                               composite samples of CSEAFD representative of the full 20-day    
                                               period. Composites must be comprised of representative samples   
                                               collected from every batch generated. The CSEAFD samples must be 
                                               analyzed for the constituents listed in Condition (3). CSI must  
                                               report the operational and analytical test data, including       
                                               quality control information, obtained during this initial period 
                                               no later than 60 days after the generation of the first batch of 
                                               CSEAFD.                                                          
                                              (B) Addition of New Super DetoxTM Treatment Facilities to         
                                               Exclusion: If the Agency's review of the data obtained during    
                                               initial verification testing indicates that the CSEAFD generated 
                                               by a specific Super DetoxTM treatment facility consistently meets
                                               the delisting levels specified in Condition (3), the Agency will 
                                               publish a notice adding to this exclusion the location of the new
                                               Super DetoxTM treatment facility and the name of the steel mill  
                                               contracting CSI's services. If the Agency's review of the data   
                                               obtained during initial verification testing indicates that the  
                                               CSEAFD generated by a specific Super DetoxTM treatment facility  
                                               fails to consistently meet the conditions of the exclusion, the  
                                               Agency will not publish the notice adding the new facility.      
                                              (C) Subsequent Verification Testing: For the Sterling, Illinois   
                                               facility and any new facility subsequently added to CSI's        
                                               conditional multiple-site exclusion, CSI must collect and analyze
                                               at least one composite sample of CSEAFD each month. The composite
                                               samples must be composed of representative samples collected from
                                               all batches treated in each month. These monthly representative  
                                               samples must be analyzed, prior to the disposal of the CSEAFD,   
                                               for the constituents listed in Condition (3). CSI may, at its    
                                               discretion, analyze composite samples gathered more frequently to
                                               demonstrate that smaller batches of waste are nonhazardous.      
                                              (2) Waste Holding and Handling: CSI must store as hazardous all   
                                               CSEAFD generated until verification testing as specified in      
                                               Conditions (1)(A) and (1)(C), as appropriate, is completed and   
                                               valid analyses demonstrate that Condition (3) is satisfied. If   
                                               the levels of constituents measured in the samples of CSEAFD do  
                                               not exceed the levels set forth in Condition (3), then the CSEAFD
                                               is non-hazardous and may be disposed of in Subtitle D landfills. 
                                               If constituent levels in a sample exceed any of the delisting    
                                               levels set in Condition (3), the CSEAFD generated during the time
                                               period corresponding to this sample must be retreated until it   
                                               meets these levels, or managed and disposed of in accordance with
                                               Subtitle C of RCRA. CSEAFD generated by a new CSI treatment      
                                               facility must be managed as a hazardous waste prior to the       
                                               addition of the name and location of the facility to the         
                                               exclusion. After addition of the new facility to the exclusion,  
                                               CSEAFD generated during the verification testing in Condition    
                                               (1)(A) is also non-hazardous, if the delisting levels in         
                                               Condition (3) are satisfied.                                     
                                              (3) Delisting Levels: All leachable concentrations for those      
                                               metals must not exceed the following levels (ppm): Antimony--    
                                               0.06; arsenic--0.50; barium--7.6; beryllium--0.010; cadmium--    
                                               0.050; chromium--0.33; lead--0.15; mercury--0.009; nickel--1;    
                                               selenium--0.16; silver--0.30; thallium--0.020; vanadium--2; and  
                                               zinc--70. Metal concentrations must be measured in the waste     
                                               leachate by the method specified in 40 CFR 261.24.               
                                              (4) Changes in Operating Conditions: After initiating subsequent  
                                               testing as described in Condition (1)(C), if CSI significantly   
                                               changes the stabilization process established under Condition (1)
                                               (e.g., use of new stabilization reagents), CSI must notify the   
                                               Agency in writing. After written approval by EPA, CSI may handle 
                                               CSEAFD wastes generated from the new process as non-hazardous, if
                                               the wastes meet the delisting levels set in Condition (3).       
[[Page 31115]]
                                                                                                                
                                              (5) Data Submittals: At least one month prior to operation of a   
                                               new Super DetoxTM treatment facility, CSI must notify, in        
                                               writing, the Chief of the Waste Identification Branch (see       
                                               address below) when the Super DetoxTM treatment facility is      
                                               scheduled to be on-line. The data obtained through Condition     
                                               (1)(A) must be submitted to the Branch Chief of the Waste        
                                               Identification Branch, OSW (Mail Code 5304), U.S. EPA, 401 M     
                                               Street, SW, Washington, DC 20460 within the time period          
                                               specified. Records of operating conditions and analytical data   
                                               from Condition (1) must be compiled, summarized, and maintained  
                                               on site for a minimum of five years. These records and data must 
                                               be furnished upon request by EPA, or the State in which the CSI  
                                               facility is located, and made available for inspection. Failure  
                                               to submit the required data within the specified time period or  
                                               maintain the required records on site for the specified time will
                                               be considered by EPA, at its discretion, sufficient basis to     
                                               revoke the exclusion to the extent directed by EPA. All data must
                                               be accompanied by a signed copy of the following certification   
                                               statement to attest to the truth and accuracy of the data        
                                               submitted:                                                       
                                              Under civil and criminal penalty of law for the making or         
                                               submission of false or fraudulent statements or representations  
                                               (pursuant to the applicable provisions of the Federal Code, which
                                               include, but may not be limited to, 18 U.S.C. 1001 and 42 U.S.C. 
                                               6928), I certify that the information contained in or            
                                               accompanying this document is true, accurate and complete.       
                                              As to the (those) identified section(s) of this document for which
                                               I cannot personally verify its (their) truth and accuracy, I     
                                               certify as the company official having supervisory responsibility
                                               for the persons who, acting under my direct instructions, made   
                                               the verification that this information is true, accurate and     
                                               complete.                                                        
                                              In the event that any of this information is determined by EPA in 
                                               its sole discretion to be false, inaccurate or incomplete, and   
                                               upon conveyance of this fact to the company, I recognize and     
                                               agree that this exclusion of waste will be void as if it never   
                                               had effect or to the extent directed by EPA and that the company 
                                               will be liable for any actions taken in contravention of the     
                                               company's RCRA and CERCLA obligations premised upon the company's
                                               reliance on the void exclusion.                                  
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------

[FR Doc. 95-14338 Filed 6-12-95; 8:45 am]
BILLING CODE 6560-50-P