Federal Register, Volume 61 Issue 17 (Thursday, January 25, 1996)

[Federal Register Volume 61, Number 17 (Thursday, January 25, 1996)]
[Proposed Rules]
[Pages 2338-2375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-586]

[[Page 2337]]

_______________________________________________________________________

Part II

Environmental Protection Agency

_______________________________________________________________________

40 CFR Part 148, et al.

Hazardous Waste; Land Disposal Restrictions; Definitions and
Clarifications; Proposed Rule

Federal Register / Vol. 61, No. 17 / Thursday, January 25, 1996 /
Proposed Rules

[[Page 2338]]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 148, 261, 268, and 271

[FRL 5400-4]
RIN 2050-AE05

Land Disposal Restrictions--Supplemental Proposal to Phase IV:
Clarification of Bevill Exclusion for Mining Wastes, Changes to the
Definition of Solid Waste for Mineral Processing Wastes, Treatment
Standards for Characteristic Mineral Processing Wastes, and Associated
Issues

AGENCY: Environmental Protection Agency (EPA, the Agency).

ACTION: Supplemental proposed rule.

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SUMMARY: EPA has found that wastes from mineral processing can cause
environmental damage to ground water and surface water when they are
placed in piles or ponds. The damage is caused by such characteristics
of the waste as corrosivity or high levels of toxic metals such as
lead.
The intended effects of this proposal are to encourage safe
recycling of mineral processing secondary materials by lifting
regulatory obstacles, and to ensure that discarded materials are
properly treated and disposed of. This would be accomplished by
clarifying the regulatory distinctions between excluded recycling and
waste management. To be excluded from the definition of waste, the
materials must be managed to meet conditions such as being legitimately
recycled, stored only for short periods, and not causing contamination.
Mineral processing secondary materials would also be excluded from
federal waste regulations if they are returned to beneficiation units
and meet certain conditions. If the materials do not meet the
conditions excluding them from being wastes, and they test hazardous,
they must be treated to meet land disposal restrictions, which are
newly proposed in this rule.
The EPA is also addressing a set of issues concerning mineral
processing wastes which have been remanded by courts to EPA for further
consideration. This includes retaining the Toxicity Characteristic
Leaching Procedure as the test for evaluating the toxicity
characteristic for mineral processing wastes, and readdressing the
regulatory status of a number of miscellaneous mineral processing
wastes.
In addition, EPA is proposing to significantly reduce the paperwork
requirements associated with the Land Disposal Restrictions rules that
apply to hazardous wastes generally. Finally, this document proposes to
exclude from RCRA jurisdiction two types of materials: processed scrap
metal that is recycled, and shredded circuit boards destined for metal
recovery that are managed in containers prior to recovery.

DATES: Comments on this proposed rule must be submitted by March 25,
1996.

ADDRESSES: To submit comments, the public must send an original and two
copies to Docket Number F-95-PH4A-FFFFF, located at the RCRA Docket.
The official address is: RCRA Information Center, U.S. Environmental
Protection Agency (5305W), 401 M Street, S.W., Washington, D.C. 20460.
Although the mailing address for the RCRA Information Center has not
changed, the office was physically moved in November 1995. Therefore,
hand-delivered comments should be taken to the new address: 1235
Jefferson Davis Highway, First Floor, Arlington, Virginia. (Also see
the section under ``Supplementary Information'' regarding the paperless
office effort for submitting public comments.) The RCRA Information
Center is open for public inspection and copying of supporting
information for RCRA rules from 9:00 am to 4:00 pm Monday through
Friday, except for Federal holidays. The public must make an
appointment to review docket materials by calling (703) 603-9230. The
public may copy a maximum of 100 pages from any regulatory document at
no cost. Additional copies cost $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For general information or to order
paper copies of the Federal Register document, call the RCRA Hotline.
Callers within the Washington, Metropolitan Area must dial 703-412-9810
or TDD 703-412-3323 (hearing impaired). Long-distance callers may call
1-800-424-9346 or TDD 1-800-553-7672. The RCRA Hotline is open Monday-
Friday, 9:00 a.m. to 6:00 p.m., Eastern Standard Time. Information is
also available on mineral processing issues from Van Housman at (703)
308-8419 or Steve Hoffman of the Industrial and Extractive Wastes
Branch at (703) 308-8413. For information on treatment standards, call
Anita Cummings of the Waste Treatment Branch at (703) 308-8303. For
questions about the regulatory impact analysis, call Paul Borst of the
Economics, Methods, and Risk Assessment Division at (202) 260-6713. For
information on the proposed exclusions for scrap metal and shredded
circuit boards, contact Ross Elliott of the Hazardous Waste
Identification Division at (202) 260-3152. For information on the
capacity analyses, contact Bill Kline of the Capacity Programs Branch,
phone (703) 308-8440. For other questions, call Sue Slotnick of the
Waste Treatment Branch at (703) 308-8462.

SUPPLEMENTARY INFORMATION:

Paperless Office Effort

EPA is asking prospective commenters to voluntarily submit one
additional copy of their comments on labeled personal computer
diskettes in ASCII (TEXT) format or a word processing format that can
be converted to ASCII (TEXT). It is essential to specify on the disk
label the word processing software and version/edition as well as the
commenter's name. This will allow EPA to convert the comments into one
of the word processing formats utilized by the Agency. Please use
mailing envelopes designed to physically protect the submitted
diskettes. EPA emphasizes that submission of comments on diskettes is
not mandatory, nor will it result in any advantage or disadvantage to
any commenter. Rather, EPA is experimenting with this procedure as an
attempt to expedite our internal review and response to comments. This
expedited procedure is in conjunction with the Agency ``Paperless
Office'' campaign. For further information on the submission of
diskettes, contact Sue Slotnick of the Waste Treatment Branch at (703)
308-8462.
This Federal Register notice is available on the Internet System
through EPA Public Access Server at gopher.epa.gov. For the text of the
notice, choose: Rules, Regulations, and Legislation; the FR-Waste;
finally, Year/Month/Day. In addition, several technical background
documents contained in the docket supporting this rule will be
available on the Internet.

Table of Contents

Part One: Mineral Processing Issues

Summary of Rule's Contents on Mineral Processing Issues

Introduction to Mineral Processing Issues in This Proposal

I. Whether Mineral Processing Secondary Materials Recycled Within
the Industry Should be Considered to be Solid Wastes
A. Background
B. Introduction
C. Solid Waste Issues
D. Jurisdiction
E. General Principles for Redefining Solid Waste Within the
Mineral Processing Sector
F. Proposed Regulatory Scheme
G. Units and Secondary Materials Outside the Scope of this
Proposal

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H. Alternative Approaches
II. Addition of Mineral Processing Secondary Materials to Units
Processing Bevill Raw Materials
A. Introduction
B. When Wastes from Co-processing Retain Bevill Status
C. Status of Units Receiving Mineral Processing Secondary
Materials
D. Mixing of Mineral Processing Hazardous Wastes With Bevill
Wastes
E. Re-mining Previously Generated Mineral Processing Wastes
III. Mineral Processing Wastes Covered By This Rule
IV. Responses to Court Remands on Mineral Processing Wastes
A. Applicability of the Toxicity Characteristic Leaching
Procedure (TCLP) to Mineral Processing Wastes
B. Remanded Mineral Processing Wastes
C. Lightweight Aggregate Mineral Processing Wastes
D. Mineral Processing Wastes From the Production of Titanium
Tetrachloride
V. Land Disposal Restrictions for Mineral Processing Wastes
A. Treatability data
B. Universal Treatment Standards (UTS)
VI. Capacity Determination for the Newly Identified Mineral
Processing Wastes
A. Introduction
B. Capacity Analysis Results Summary
C. Mineral Processing Wastes Injected into Class I Underground
Injection Wells

Part Two: Other RCRA Issues

I. Exclusion of Processed Scrap Metal and Shredded Circuit Boards
from the Definition of Solid Waste
A. Processed Scrap Metal Being Recycled
B. Shredded Circuit Boards
II. Proposed Reduction in Paperwork Requirements for the Land
Disposal Restrictions Program
A. Section 268.7
B. Clean Up of Part 268 Regulations

Part Three: Administrative Requirements and State Authority

I. Environmental Justice
A. Applicability of Executive Order 12898
B. Potential Effects of this rule
II. State Authority
A. Statutory Authority
B. Streamlined Authorization Procedures
C. Authorization Procedures
III. Regulatory Requirements
A. Regulatory Impact Analysis Pursuant to Executive Order 12866
B. Regulatory Flexibility Analysis
C. Paperwork Reduction Act
IV. Unfunded Mandates Reform Act

Part One: Mineral Processing Issues

Summary of Rule's Contents on Mineral Processing Issues

EPA is proposing treatment standards under the land disposal
restrictions (LDR) program for hazardous wastes from mineral processing
operations. The treatment standards, when finalized, must be met in
order to land dispose these hazardous wastes. In order to satisfy the
terms of a consent decree, EPA must propose these treatment standards
by December 15, 1995. This rule, however, first proposes changes in the
rules for which mineral processing secondary materials recycled within
the mineral processing industry sector are solid wastes. If such
materials are not solid wastes, the proposed treatment standards would
not apply. This rule proposes changing the current definition of solid
waste by providing a conditional exclusion for primary mineral
processing secondary materials that are further processed within the
industry. Under this approach, mineral processing secondary materials
would not be solid wastes if certain conditions are met. This rule also
proposes to rescind the current regulatory provisions applicable to
reclamation of characteristic by-products, sludges, and spent materials
for the primary mineral processing industry only. Also, this rule
allows mineral processing secondary materials to be added to the
feedstocks of a mining or mineral process that generates a Bevill
exempt waste, without changing the exempt status of the resulting
Bevill waste, provided that metals are legitimately being recovered and
do not significantly affect the composition of the resulting wastes.
However, mineral processing hazardous wastes directly disposed of with
Bevill exempt wastes would be subject to Subtitle C controls.
EPA is proposing that the Toxicity Characteristic Leaching
Procedure (TCLP) be the appropriate test for evaluating whether mineral
processing wastes exhibit the toxicity characteristic. EPA is proposing
to not list five smelting wastes as hazardous wastes, but rather rely
on the wastes' hazardous characteristics to ascertain the wastes'
hazardousness. EPA is proposing that iron chloride waste acid generated
from the chloride-ilmenite process of titanium tetrachloride production
be classified as a mineral processing waste. EPA is proposing that air
pollution control dust and sludges generated from lightweight aggregate
production be classified as mineral processing wastes.

Introduction to Mineral Processing Issues in This Proposal

In this supplemental proposal, EPA is proposing to establish land
disposal restriction prohibitions and treatment standards for the newly
identified hazardous wastes that were determined in EPA's 1989
rulemaking to be ineligible for excluded status under the Bevill
Amendment. 54 FR 36592 (September 1, 1989). However, the threshold
issue to be addressed is which mineral processing materials would be
subject to the prohibitions. This involves consideration of these
threshold questions: (1) whether the materials are solid wastes if they
are recycled; (2) whether they have excluded status under the Bevill
Amendment because they are actually from beneficiation rather than from
mineral processing; (3) whether they otherwise may have Bevill status
and therefore be excluded; and (4) whether they are hazardous. These
issues are discussed in the first four sections of this preamble,
before the discussion of the land disposal prohibitions and treatment
standards.

I. Whether Mineral Processing Secondary Materials Recycled Within
the Industry Should Be Considered to Be Solid Wastes

A. Background

In July of 1988, the court in Environmental Defense Fund v. EPA
(EDF II), 852 F.2d 1316 (D.C. Cir. 1988), cert. denied, 109 S. Ct. 1120
(1989), ordered EPA to restrict the scope of the Bevill mining waste
exemption as it applied to mineral processing wastes, to include only
``large volume, low hazard'' wastes. In response, the Agency proposed
and promulgated several rules that redefined the boundaries of the
Bevill exemption for mineral processing wastes. These rulemakings
included explicit criteria for defining ``mineral processing'' and
``large volume and low hazard.'' The rules also evaluated which
specific mineral processing industry wastes were in conformance with
these criteria and thus were eligible for the temporary exclusion
provided by RCRA 3001(b)(3)(A)(ii).
This rulemaking process was completed with the publication of final
rules on September 1, 1989 (54 FR 36592) and on January 23, 1990 (54 FR
2322). EPA's evaluations led to the finding that only 20 specific
mineral processing wastes fulfilled the promulgated special wastes'
high volume, low hazard criteria. The list is set out at 261.4(b)(7).
The vast majority of mineral processing wastes did not meet both of the
criteria and so were removed from the Bevill exemption.
All high volume and low hazard mineral processing wastes retained
under the final Bevill mineral processing waste exemption were
subjected to detailed study by EPA. The findings of this study were
contained in a Report to Congress that was submitted to Congress on
July 31, 1990 (Report to Congress on Special Wastes from Mineral
Processing).
One of the findings of the study is that most of the mineral
processing wastes

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removed from the Bevill exemption appear to be characteristic for TC
metals (D004-D011), corrosivity (D002), and/or reactivity (D003). EPA
considers these wastes to be ``newly identified'' because they were
brought into the RCRA Subtitle C system after the date of enactment of
the Hazardous and Solid Waste Act Amendments on November 8, 1984. 55 FR
at 22667 (June 1, 1990). In brief, at the time of the Third Third rule
EPA had not performed technical characterizations of these newly
identified wastes. The issue was further complicated by the fact that
the list of non-exempt mineral processing wastes was not final at that
time, because the regulatory determination for the 20 wastes studied in
the 1990 Report to Congress had not yet been promulgated. The
boundaries of the exemption have now been firmly established, and the
Agency is ready to propose treatment standards for newly identified
hazardous mineral processing wastes.

B. Introduction

A key and threshold question in this rulemaking is determining when
mineral processing secondary materials returned to mineral processing
operations for legitimate mineral recovery can be solid wastes, and
hence within the jurisdictional reach of RCRA Subtitle C. If these
materials are not solid wastes, then the LDR prohibitions proposed
elsewhere in this rule would not apply. See 268. 1 (b) and 55 FR at
22061 (June 1, 1990). Nor would the remainder of the Subtitle C rules.
EPA has recently dealt with the question of whether recoverable
secondary materials generated by and recycled within a single industry
need be classified as solid (and potentially hazardous) wastes. We
stated that recovered oil generated by any facet of the petroleum
exploration, production, and retailing industry which is returned to
the petroleum refining industry is not a solid waste. 59 FR 58936 (July
28, 1994). We recently proposed to extend this principle to a wider
range of oil-bearing secondary materials. 60 FR 57747, 57753 (November
20, 1995). These rules are (or, with respect to the proposed rule,
would be) conditioned on there being no management of the materials in
land-based units.
The issue considered here is similar. Like the petroleum industry,
mineral processing involves the extraction of a contained mineral
value, which can occur in multiple steps. Processing of mineral-
containing material from within the industry thus can have aspects of
an on-going process justifying a conclusion that such materials need
not be classified as solid wastes. A key complicating factor here is
that unlike most other industries, the mineral processing industry
includes land-based units--piles and impoundments--which can function
as components of its production process. Land placement of wastes and
prevention of resulting harms is, of course, a prime focus of RCRA.
RCRA section 1002 (b) (7). And of immediate consequence, any mineral
processing secondary material classified as a solid and hazardous waste
would be prohibited from placement into such a land-based unit under
today's rule unless first treated to meet the applicable treatment
standard.
EPA is proposing in this rule that mineral processing secondary
materials would not be classified as solid wastes when recycled
legitimately within the mineral processing industry. This proposal
would apply even when secondary materials are recycled via placement in
land-based process units (including storage, staging, and preprocessing
units). However, if land-based units are used, they must truly function
as process units, not disposal units. The rule proposes conditions
which would distinguish process units from disposal units.
There are a related set of issues to consider when mineral
processing secondary materials are recycled in mining and beneficiation
operations. These issues are discussed in section II. below.

C. Solid Waste Issues

1. Factual Background
The Agency studied over 200 mineral processing facilities that
generate over 350 different secondary materials, some of which can be
recycled and some of which cannot. The Agency has reviewed the various
mineral processing steps that contribute to the production of a
valuable product. In general, many mineral processing secondary
materials are amenable to recycling. These recycling activities can
sometimes resemble the type of on-going, sequential processing of metal
values typical of a continuing production process. On the other hand,
other operations are more tangential, and can involve secondary
materials of lower value, held in units whose function is ancillary to
the main process, with materials moving across less directly-related
mineral processing industry sectors, with the materials being held for
significant lengths of time before recovery occurs. As set out in the
following paragraphs, there are in fact continuums relating to whether
units holding secondary materials function as process or ancillary
units; relating to the value of the secondary material; and relating to
the timing and location of recovery.
Ancillary operations are those steps that occur tangential to the
main production but are not critical in the daily production of the
product. Most mineral processing facilities operate 24 hours per day,
continually taking in raw feedstocks and producing final products.
Invariably there are other activities that must take place over time
that are not part of the normal production but do contribute to overall
production. These include surge ponds for process upsets, cooling and
incidental settling ponds, incidental storage of vessel cleanouts and
other slip streams. The Agency has found these ancillary operations
commonly use land-based storage of mineral processing secondary
materials. Indeed, some land-based units potentially serve a dual
function of eventual permanent waste repository and processing unit.
For example, some surface impoundments recover needed liquids (for
example acids), but are also designed to allow settling of unused
solids. The impoundment then becomes the permanent disposal unit for
these solids when the unit stops operating.
The mineral processing secondary materials that are placed in land
based units tend to have less value, and are less quickly returned to
production than the more valuable mainstream feedstocks such as ore
concentrate. This is in contrast to the more valuable materials used in
main production processes, where secure bunkers, lined tanks, and
enclosed buildings are utilized for material holding. For example,
copper smelter bricks that contain low concentrations of copper are
only periodically removed from a smelter. These smelter bricks may then
sit on the ground miles from the smelter for months or years before
being reprocessed. Other bricks, such as those generated daily from a
copper convertor furnace that contain relatively high concentrations of
copper, are stored near the smelter in bunkers or enclosed buildings
and re-processed daily.
Many types of mineral recovery do not occur solely within the same
facility. The Agency has also found that one mineral sector may
generate a residue that can no longer be recycled on site so it is
often shipped across different mineral sectors to recover various
metals. For example, copper smelters generate acid plant blowdown high
in lead concentration that can be further processed to eventually be
recovered in a lead smelter. A lead smelter generates a copper-bearing

[[Page 2341]]
speiss that can be directly fed into a copper smelter.
Land-based process units in the mineral processing industry have
the potential to cause the types of environmental problems associated
with classic land disposal units. Indeed, this is not merely a
potential but an actual problem. Part of the record for this proposed
rule is a compendium of environmental damage cases caused by land-based
process units within the mineral processing and mining industries (see
Human Health and Environmental Damages from Mining and Mineral
Processing Wastes, EPA Office of Solid Waste 1995).
The Agency nevertheless recognizes that such land-based units have
historically been a significant part of the production processes
typical of the mining and mineral processing industries. This is mainly
a function of the large volumes of materials managed by this industry
(or, in some cases, due to the heat of the material precluding any
other type of immediate handling). Notwithstanding that mineral
processing hazardous wastes are generated in quantities below the
``high volume'' threshold for distinguishing Bevill eligibility, many
of these wastes are generated in volumes exceeding practical management
in anything but land-based units. For example, copper smelter acid
plant blowdown, which is frequently recovered for metal and acid value,
can be generated in volumes on the order of tens of thousands of metric
tons per year per facility. Similar examples are bertrandite thickener
slurry from primary beryllium production and flue dust from molybdenum
smelting. For this reason, the Agency regards the mineral processing
industry atypical, and relatively unique in its use of land-based
process units. Today's proposal thus should not be regarded as
precedential for recognizing as process units land-based units in other
industries, nor is the Agency aware of any claim that such units are
used in other industries ^{1.

\1\ One significant exception is impoundments used by the pulp
and paper industry to store black liquor. See 50 FR at 641-642.
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However, the Agency has also seen a trend for some mineral
processing facilities to move away from land-based units and store more
secondary materials in tanks or other units with more integrity. The
Agency believes that this is a function of technological advances,
process changes, and sometimes in response to increasing environmental
liability.
2. Regulatory Background
This is not the first time that EPA has dealt with the question of
which secondary materials generated by and recycled within the mineral
processing sector are solid wastes. The existing regulatory definition
of solid waste classifies metal recovery operations as a type of
reclamation activity, and then states that certain secondary materials
being reclaimed are, or are not, solid wastes depending on what the
type of material is. Thus, any spent material being reclaimed is a
solid waste, while only sludges and byproducts that are otherwise
listed as hazardous wastes are solid wastes. Put another way,
characteristic sludges and byproducts being reclaimed are not solid
wastes, but any type of spent material is. See generally 261.2(c)(3)
and 50 FR at 633-634, 639-641 (January 4, 1985). Other parts of the
rule, however, do not subdivide among material types when classifying
materials returned to an industrial process as feedstock. Under
261.2(e)(1)(i), for example, secondary materials that are used as
ingredients in an industrial process to make a product are not solid
wastes at all (unless the materials are reclaimed).
In addition to these rules, there are a series of judicial opinions
which must be taken into account. In American Mining Congress v. EPA,
824 F. 2d 1177 (D.C. Cir. 1987) (``AMC I'') , the court found that in
some respects the rules exceeded the statutory grant of authority
because, at least with respect to the mineral processing (and
petroleum) industries, the rules asserted authority over secondary
materials that were not ``discarded''. 824 F. 2d at 1193 (``discarded''
being the key term in the statutory definition of solid waste, RCRA
section 1004 (27)). Subsequent judicial opinions have sharply limited
the scope of AMC I, so that the only absolute bar on the Agency's
authority to define recycled secondary materials as solid wastes is to
``materials that are `destined for immediate reuse in another phase of
the industry's ongoing production process' and that `have not yet
become part of the waste disposal problem' ''. American Mining Congress
v. EPA, 907 F. 2d 1179, 1186 (D.C. Cir. 1990) (``AMC II'') quoting AMC
I, 824 F. 2d at 1186.^{2

\2\ The other cases which have similarly stressed this narrow
reading of AMC I are American Petroleum Inst. v. EPA, 906 F. 2d 726,
741 (D.C. Cir. 1990); Shell Oil v. EPA, 950 F. 2d 741, 755-56 (D.C.
Cir. 1991); Chemical Waste Management v. EPA, 976 F. 2d 2, 14 (D.C.
Cir. 1992); United States v. Ilco, Inc., 996 F. 2d 1126, 1131 (5th
Cir. 1993); and Owen Electric Steel Co. v. Browner, 37 F. 3d 146,
149-50 (4th Cir. 1994).
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EPA is proposing in this rule to both deal with remaining issues
posed by the mandate in AMC I,^{3 and at the same time continue the
process of improving the current federal regulatory definition of solid
waste.^{4
\3\ The D. C. Circuit has in fact indicated by Order that the
mandate of AMC I ``does not . . . require [EPA] to revise its
regulations.'' Order of November 4, 1992 in no. 85-1206 (although
the same order indicates that the Agency is obliged to issue some
type of rule addressing concerns raised by the petitioners in AMC
I).
\4\ The Agency notes that there is an on-going effort, in
conjunction with State regulatory agencies to reevaluate the current
definition of solid waste and develop a new regulatory framework
that will more clearly define RCRA jurisdiction and encourage the
environmentally sound recycling of hazardous wastes. Today's
proposal addresses the jurisdictional issues specific to secondary
materials generated and processed within the primary mineral
processing industry and is similar to the November 20, 1995 proposal
in which the Agency addressed various secondary materials generated
within the petroleum refining industry. 60 FR 57747.
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D. Jurisdiction
The issue of jurisdiction over recycled secondary materials raises
difficult issues, particularly so with respect to secondary materials
managed in land-based units. Representatives of the mineral processing
industry maintain that metal-bearing materials generated within and
returned to a mineral processing operation are necessarily not wastes
because they are not being literally discarded. They view these
activities, for the most part, as the type of sequential processing of
an initial raw material stated to be outside the Agency's jurisdiction
by the court in AMC I.
Representatives of environmental groups argue that secondary
materials placed in land-based units are necessarily wastes because the
land placement itself is a type of disposal, and that the units are
therefore disposal units. They cite AMC II in support.
EPA does not read the statute or the cases as necessitating either
of these positions. First, the cases establish that ``discarded'', the
critical statutory term, is ambiguous and hence susceptible to
interpretation. Second, in interpreting the term, the Agency may take
into account whether the materials ``have become part of the waste
disposal problem.'' In light of these principles, neither absolute
position is compelled.
With respect to the industry position, there are significant
elements of discard that can be associated with recycling of mineral
processing secondary materials in land-based units. As described above,
the practices can involve cross-sector transfer of materials, lack of
immediate reuse, and utilization of land-based units for low value
materials. These

[[Page 2342]]
units can also be performing some quasi-waste management types of
functions, such as storage or restoring materials to a usable
condition, that are ancillary to the production process. Most
important, these land-based units can be part of the waste disposal
problem. Land-based units, and impoundments in particular, have certain
inherent indicia of discarding due to their inability to prevent
releases of contained materials. RCRA section 1002 (b) (7); AMC II, 907
F. 2d at 1187; 53 FR at 521, 525 (Jan. 8, 1988). The environmental
damage cases resulting from use of land-based units in the mineral
processing sector bear out that use of these units for recycling can be
part of the waste disposal problem.
It also should be noted that these units may have an element of
associated discard irrespective of whether recycled materials placed in
the units are considered to be solid and hazardous wastes. As described
earlier, these units are often the ultimate repositories--i.e. disposal
point--of the material in the unit which is not used in the process.
This material builds up over time and may never be used.
With respect to the environmentalist position, EPA believes that
there are jurisdictional constraints over materials that are destined
for immediate reuse in another phase of the industry's ongoing
production process. The mineral processing industry, of course,
functions in order to extract mineral values from an initial raw
material. This creates the need for particular sensitivity in a
regulatory classification scheme to avoid interdicting the on-going
processing of that initial material. It also proves too much to say
that land placement per se makes such a material a solid waste.
Placement of raw materials into land-based units, for example, does not
invariably transform those materials into RCRA solid wastes nor the
units into regulated units.
The Agency's view is that it is addressing a borderline
classification situation here. As noted, there are aspects of quasi in-
process material utilization here, particularly if involving on-site or
intra-company higher-value material utilization and utilization of
units proximate to the main processing activity.^{5 On the other
hand, factors pointing toward discarding include the potential quasi-
disposal nature of some of the units receiving the waste, namely those
which are land-based and in some cases functioning in a manner
ancillary to the process.

\5\ See also EPA's further solicitation of comment on this issue
in section I. H. below.
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The Agency's proposed approach to classification is to set out
conditions to address the most problematic classification issue: that
of the land-based units. The conditions would be designed to assure
that these units are designed and operated with sufficient integrity to
prevent substantial discard, and so to function as process units which
are not part of the waste disposal problem. Given the basic function of
the industry to extract contained mineral values (including in
sequential steps), the Agency is then proposing that so long as these
conditions are satisfied, any within-industry transfer of secondary
materials for legitimate mineral recovery would not involve solid
wastes.

E. General Principles for Redefining Solid Waste Within the Mineral
Processing Sector

The Agency's goal through this proposal is to simplify the
regulatory definition of solid waste as it applies to the mineral
processing industry in a manner that encourages within-industry
secondary material recovery, does not interfere with metal recovery
operations within this industry sector, but at the same time prevents
land-based process units from serving as the means of discarding those
materials. The simplification in the rules would come from eliminating
the distinctions among spent materials/byproducts/sludges and between
reclamation in mineral processing operations and direct use as a
feedstock in other industries. The basic principle justifying these
changes would be that, at least for this industry, distinctions among
secondary material types are not especially meaningful. The critical
factor that may involve discarding does not relate to the type of
metal-bearing materials being recovered but to the type of unit
involved in the recycling activity. In other words, whether the
material generated by and recovered in a mineral processing operation
is a spent material, sludge, or byproduct is of little consequence for
determining if the material is being discarded. What matters is how
that secondary material is managed, so that the chief focus of the
definition can be on the types of units receiving the material.
Focusing on the types of management units involved in the recycling
activity coincides with a critical feature of the test enunciated
repeatedly by the courts: whether the materials have become part of the
waste disposal problem. It also can lead to rules more directed at
environmental problems than the current rules, and, for that reason, to
rules that are narrower in scope and easier to understand and to apply.
Thus, the basic principle proposed in this rule is that a secondary
material generated by and recovered within the mineral processing
industry sector is not a solid waste, provided it is managed in process
units, not units from which the materials are discarded. Tanks,
containment buildings, and containers would be considered automatically
to be process units. With respect to land-based units, in
distinguishing between process units and waste management units, the
Agency believes it is appropriate to use certain criteria that indicate
whether the unit is designed and operated to prevent substantial
release of contained materials, consistent with the ostensible use of
the units to hold valuable feedstock. Such criteria would include
conditions relating to whether the unit is operated or designed in a
manner that assures that excessive discarding is not occurring.

F. Proposed Regulatory Scheme

EPA is proposing that metal-bearing secondary materials that are
generated by and recovered within the mineral processing industry
sector are not solid wastes unless persons managing the wastes fail to
comply with enumerated conditions relating to assuring that units
managing the secondary materials function as process units, not as
means of discarding the materials. These conditions are discussed in
the following preamble subsections.
1. Generally Applicable Conditions
EPA is proposing the following set of conditions that would apply
whether or not the mineral-bearing residue is managed in a land-based
unit.
a. Conditions Related to Legitimate Recycling. The first conditions
EPA is proposing attempt to assure that legitimate recycling is indeed
occurring. As a threshold matter, EPA has considered the need for a
sham recycling test under the circumstances presented by this proposed
rule: within-industry transfers of materials to units that (in the case
of land-based units) are adhering to conditions designed to ensure that
the units are not part of the waste disposal problem. It might be
argued that under these circumstances, assessing recycling legitimacy
does not appreciably alter the risks posed (since the same units would
be used for material management) and imposes some costs on legitimate
recovery operations in the form of (at least) administrative
inconvenience, and possible analytic costs. The Agency, however,
continues to believe that an

[[Page 2343]]
evaluation of legitimacy (in some form) is needed here as a matter of
both law and policy.
Sham recycling is, of course, nothing more than waste disposal or
waste treatment. (See U.S. v. Self, 2 F. 3d 1071, 1079 (10th Cir. 1993)
(``[f]ollowing the 1985 amendment, the EPA's distinction between
legitimate and sham burning became significant, not only by continuing
to determine the applicability of the recycling exemption, but also by
determining whether a material is being burned or incinerated--i.e.
burned for destruction--and, therefore, abandoned. . . .'').) Hazardous
waste disposal is subject to certain legally-mandated requirements,
among them a permit requirement, pretreatment of wastes before
disposal, financial responsibility to assure proper unit closure, and
minimum technology requirements, among others. RCRA sections 3005 (a),
3004 (d)-(g), 3004 (a), 3004 (o). There is no authority of which the
Agency is aware that would allow it to waive these requirements here.
The Agency also notes that the line it is attempting to create in
this proposal between land-based process units and disposal units is
conceptually ambiguous. For this reason, the Agency believes that the
assurance that the unit must only be used for materials that serve a
legitimate function in the process is an important component of a set
of conditions that meaningfully distinguishes process units from waste
disposal units.
Under the current scheme, persons claiming to be recycling have the
burden of showing, on a case-by-case basis, that they are recycling
legitimately. 261.2 (f). EPA has set out factors which are likely to be
relevant in assessing such claims. See, e.g., 50 FR at 638 (Jan. 4,
1985); 53 FR at 522 (Jan. 8, 1988); 56 FR at 7145, 7185 (Feb. 21,
1991). EPA has not quantified any of these factors, and the relative
weight to attach to them (if relevant) can vary depending upon
circumstances. This can lead to uncertainty as to the status of
particular operations (potentially discouraging new recycling
operations), and also to resource-intensive case-by-case evaluations.
For these reasons, EPA is considering adopting certain quantitative
legitimacy tests as rules for this industry sector. However, as a
threshold matter, EPA is soliciting comment on whether such quantified
tests are necessary here. Depending on its stringency relative to the
factors discussed above, a quantified test would diminish the
flexibility now available, and may also impose certain additional costs
such as increased analysis. It might also be argued that since the
proposal covers only materials being recycled within the mineral
processing industry sector, there is less need for a quantified
standard. On the other hand, because this rule deals with better-
defined and narrower circumstances than the entire panoply of recycling
transactions covered by the solid waste definition, it is easier to
develop a meaningful quantified test here. EPA believes that a
quantified test may reduce regulatory uncertainty. EPA requests that
commenters address this question, as well as the specific types of
quantified tests discussed below.
EPA is proposing the following conditions to prevent sham recycling
--i.e. disposal masquerading as recycling--of mineral processing
secondary materials. The Agency sets forth in the preamble alternatives
to these conditions and solicits comment on the appropriateness of
these conditions and the alternative policy options.
i. Concentrations of Recoverable Mineral and Acid. First, the
secondary materials must have recoverable amounts of minerals. Sham
recycling may be occurring if minerals are not being recovered. 50 FR
at 638; 53 FR at 522 (Jan. 8, 1988); 266. 100 (c) and 56 FR at 7143
(Feb. 21, 1991). In considering legitimacy for recoverable amounts of
minerals, the Agency is concerned about secondary materials that
contain such low concentrations of minerals that there is no reasonable
expectation to believe that the minerals would end up in the product.
The Agency requests comments on whether, as a threshold issue, the
concentrations of minerals, etc. in the secondary material should be a
significant factor in establishing the legitimacy of the recycling
activity. While the Agency currently uses qualitative factors in
assessing legitimacy, it may be possible to develop a quantitative test
which provides for greater certainty and may be a low cost method to
establish legitimacy. The Agency seeks comments as to whether any of
the following quantitative legitimacy tests meet this goal.
Ore Cutoff Grade. An alternative to determine the presence of
recoverable amounts of minerals is whether the secondary material has a
mineral content equal to or greater than the concentration of mineral
found within the facility's ore cutoff grade. This cutoff grade is
typically based on an economic decision of whether or not to mine a
particular grade of ore. By definition, mineral concentrations above
this cutoff grade are recovered in the product. The Agency solicits
comments on the ore-cutoff grade test for legitimacy.
Normal Operating Range. Another alternative would be based on
whether the mineral content in the secondary material is equal to or
greater than the concentration of minerals found within the facility's
normal operating range. EPA believes it is a common industry practice
for a facility to establish a metallurgical profile of feedstock
concentrations of desired metals and other properties for particular
mineral processing units. This is often referred to as the normal
operating range of the mineral processing unit, which takes into
account fluctuations over time of metal content in feedstocks. The
Agency seeks comment on these alternatives.
Efficiency Standard. EPA has found that both mineral processing
units and beneficiation units are designed to recover a high percentage
of available minerals. Recovery efficiencies of over 90 percent of the
mineral value of interest are commonly achieved. While these processes
usually achieve a high efficiency in the percentage of minerals
recovered, a certain percentage of the minerals in the feedstock is
unavoidably lost. The standard would be that the efficiency of
recovering the mineral in the secondary material must be equal to or
greater than the efficiency of recovering the mineral value of interest
in the virgin feedstock, regardless of the amount of mineral in the
secondary material. The advantage of this approach is that the facility
can re-process secondary materials with relatively low mineral
concentrations if they can show that the minerals are being recovered
to the same extent that minerals are recovered in virgin feedstocks.
The Agency seeks comment on this alternative.
Economic Test. Under this approach, it would be economical, and
therefore legitimate, if the added value gained from recovering the
secondary material is greater than the incremental cost of processing
the secondary material on a per unit basis. Sham recycling would be
indicated if an operator were unable to show that the recycling
activity were economical, taking into account both the value of the
minerals recovered and any cost savings of recycling (including some
reduced treatment and disposal costs). Of course, if all that is
occurring is avoidance of disposal or treatment costs, the activity
would not be recycling. 50 FR at 638. This alternative would offer
substantially greater recycling opportunities to operators. EPA notes,
however, the Agency's experience with quantified economic tests for
legitimate recycling are limited, due in part to lack of Agency
expertise

[[Page 2344]]
in evaluating operating costs and financial transactions and companies'
understandable reluctance to divulge financial information. See 48 FR
at 14481 (April 4, 1983). EPA solicits further comment on use of this
economic test.
In the event the Agency were to adopt a quantified test, EPA
solicits comment as to whether a variance mechanism should be allowed
for a facility which makes a valid showing of legitimate recycling
based on its individual circumstances. This would be similar to
existing Sec. 260.31 which provides for such variances from other
provisions of the solid waste regulatory definition. Factors that could
be considered in evaluating such a variance would be the extent to
which the material is handled to minimize loss, the effectiveness of
the material in comparison to the virgin material it is replacing,
whether the material contains hazardous constituents that do not
contribute to the recovery process and the concentrations of such
hazardous constituents, and in general, how the material contributes to
the recovery process. See 50 FR at 638; 53 FR at 522.
A special case arises when certain materials, which are essentially
devoid of recoverable minerals, are recycled. The issue is whether
water itself with no recoverable minerals should qualify under a
legitimacy test. By setting this standard, EPA is concerned that
unnecessary hazardous constituents would be introduced in the process
and ultimately be released into the environment. However, the Agency
has historically encouraged facilities to recycle wastewaters, and has
developed categorical effluent guidelines, which in many cases
necessitate wastewater recycling. Further, reconstituting and recycling
of low level acid streams has also been recognized as a beneficial
operation. The Agency believes that acidic solutions can similarly be
legitimately recovered for the value of the acid (e.g., acidic
solutions from copper smelting and phosphoric acid production).^{6
Although these wastes may not be ``equivalent'' replacements for raw
materials, there may be cases where such recycling provides
considerable economic and/or environmental benefits. EPA solicits
comments on approaches which could include such recycling practices as
legitimate.

\6\ EPA in this context will use the term mineral to mean all
metals, inorganic non-metals (e.g., lanthanides, boron, lithium,
phosphorus), and acidic solutions produced from primary mineral
processing.
---------------------------------------------------------------------------

ii. Constraints on Nonrecoverable Hazardous Constituents. As a
generally-applicable indication, EPA has suggested that sham recycling
may be occurring if hazardous constituents different from those
normally present in the customarily-used raw materials are present in
secondary materials and do not contribute to the recycling process. 53
FR at 522 (Jan. 8, 1988); 56 FR at 7185 (Feb. 21, 1991). Similarly, EPA
has also suggested that an inference of sham recycling is possible if
non-contributing toxic constituents are present significantly in excess
of those normally present in virgin materials. 50 FR at 638; 53 FR at
522. The reason for the inference is the possibility that the process
may be a means of treating and discarding the excess toxic.
EPA solicits comment on whether such indications are appropriate in
mineral processing and whether there is a need to quantify any such
test as part of this rule. For example, if the Agency were to adopt an
economic legitimacy test as described in subsection i, should this be
an exclusive test such that there is no need to further inquire about
the presence of nonrecoverable hazardous constituents.
Because the rule would be limited to secondary materials generated
within the mineral processing sector, the possibility of substantial
concentrations of ``non-indigenous toxics''--non-contributing hazardous
constituents not found in the usual virgin feedstocks--appears remote.
The possibility of build-up of indigenous toxics is a real one, but in
many cases would not be an indication of sham recycling. The very act
of mineral processing increases the concentration of both the desired
mineral and undesired contaminants in a residue. At the least, so long
as the ratio of desired to undesired metal remains roughly the same as
it is in the virgin feedstock to a process unit, a finding of sham
recycling would be unwarranted. For example, if a unit normally takes
in a feedstock of 5% copper (desirable) and 2% arsenic (undesirable),
then a mineral processing secondary material having 10% copper and on
the order of 4% arsenic would still be within the normal operating
range of the unit.
EPA notes that, like other industries, the mineral processing and
beneficiation sectors can use secondary materials as substitutes for
finished commercial products used in the process. For example, a
secondary acid could be used in lieu of virgin acid under
261.2(e)(1)(ii). This is in addition to the case where acid is part of
the mineral value and qualifies for the legitimacy test as described in
subsection i.
EPA is concerned, however, of the possibility of abuse. There are
documented instances, for example, where ``feedstocks'' consisting of
less than 1% desired mineral and over 50% unwanted contaminant--a ratio
well outside that in the normal operating range--have been allegedly
`recycled'.^{7 This is apparently disposal. The Agency thus is
seeking comment as to whether a ratio test--whereby the mineral
processing secondary materials would have to have a mineral/contaminant
ratio that is within one order of magnitude of the mineral/contaminant
ratio found in the feedstock--would be adopted to rule out this type of
abuse. A baseline ratio would need to be established, which is often
performed as part of the startup operations of a unit. Weekly or
monthly testing of desirable to undesirable contaminants may be
reasonable for industries that perform assays of these types of
materials on a daily and sometimes hourly basis.^{8 (See Office of
Solid Waste, U.S. EPA, Gold, Copper, Lead/Zinc, and Iron Technical
Resource Documents (July 1994)). The Agency realizes that some
variability in testing frequency may be warranted depending on the type
of unit and operation. The Agency is soliciting comment on the
frequency of testing mineral processing secondary materials to
ascertain whether the constituents fall within the normal operating
range.

\7\ See EPA Site Visit Reports to Mines and Mineral Processing
Facilities, Office of Solid Waste (1995); Human Health and
Environmental Damages from Mining and Mineral Processing Wastes, EPA
Office of Solid Waste (1995); Mineral Processing Facilities Storing
Mixtures of Exempt and Non-Exempt Wastes In On-Site Waste Management
Units, EPA Office of Solid Waste (1995); Identification and
Description of Mineral Processing Sectors and Waste Streams, EPA
Office of Solid Waste (1995).
\8\ The necessity for such a test should also be considered if
the Agency adopts the type of comparison test discussed below in
section II.B. Under this test, wastes significantly affected by the
addition of non-beneficiation materials to a beneficiation process
could lose their Bevill status because they would no longer be the
type of waste for which the Agency had determined that Bevill status
was appropriate. Were EPA to adopt this test, it would seem that the
test would constrain the use in Bevill process units of secondary
materials with concentrations of hazardous constituents
significantly different from those found in the customary raw
materials.
---------------------------------------------------------------------------

The Agency is not proposing any specific means of demonstrating
that mineral processing secondary materials are within this normal
operating range. Rather, consistent with existing 261.2(f), a facility
would have to demonstrate, if challenged, that the desired minerals in
the secondary material are being legitimately recycled.
iii. No speculative accumulation. Consistent with existing rules
for all other types of secondary material

[[Page 2345]]
recycling, EPA is proposing that there be no speculative accumulation
of mineral processing secondary materials. ``Speculative accumulation''
is a defined term (see 261.1(c)(8)) meaning essentially that 75% of a
given material present on the first day of the calendar year be
recovered ^{9 by the end of the year, or what remains is a solid
waste. The rules also provide means of extending the one-year period in
appropriate circumstances, such as a change in market conditions.
260.31(a). The burden of showing that sufficient amounts of material
have been recovered is on the person claiming the exclusion 261.2(f).

\9\ EPA has received comment asking whether the speculative
accumulation provision can be satisfied if initially accumulated
materials are removed for disposal rather than recycling during the
course of the year. This is not the Agency's reading of the
provision, nor would such a reading be consistent with the purpose
of the provision. The definition in fact states that ``the 75
percent requirement is to be applied to each material of the same
type . . . that is recycled in the same way . . .''
---------------------------------------------------------------------------

b. One-time Notification. EPA is further proposing that mineral
processing secondary materials generating and recovery facilities
provide EPA (or an authorized state) with a one-time notification which
describes the mineral processing materials to be recycled and the
recycling process. The one-time notification would be submitted by the
operator of the land-based unit and would generally describe how
mineral processing secondary materials are being recycled, the location
of the activities, and the annual quantity being placed in land-based
units. EPA expects this notification to be general in nature and to
provide short paragraph-length descriptions.
An amended notification would not be required unless the facility
has significant process changes affecting the generation, location, or
recovery of mineral processing secondary materials.
c. Conditions Relating to Groundwater Protection. EPA is proposing
that a land-based unit receiving mineral processing secondary materials
not contribute to significant groundwater contamination through
discard. The general approach EPA is proposing is to set out in the
rule an environmental performance standard that would indicate that
units cannot be used as a means of discard and hence be part of the
waste disposal problem. This condition could be met in one of three
ways. First, a facility could demonstrate that it is not polluting
groundwater at levels exceeding the Maximum Contaminant Level for any
hazardous constituent likely to be in the secondary materials (the
toxic metals listed in Appendix VIII of Part 261 and cyanide) at a
designated location. Compliance would be demonstrated by means of
groundwater monitoring. In the event a release exceeds the MCL, the
unit would be required to perform unit-specific corrective action to
redress the release. Second, a facility could design units in a
prescribed manner so as to obviate the need for any such demonstration.
Third, a facility could obtain a determination from an authorized state
or (in unauthorized states) from the Regional Administrator, that a
management practice or alternative design provides adequate assurance
that the unit provides effective containment and will not become part
of the waste disposal problem through discarding. EPA expects that
states may deviate somewhat from the conditions but only after having
made ad hoc determinations that alternative requirements are
protective.
We discuss below each of these alternatives in turn.
i. Ground Water Protection Standard. Levels of Contamination. EPA
is proposing to use exceedances of a ground water protection standard
as one measure of significant discarding. This standard would apply to
the hazardous constituents that are likely to be present in mineral
processing wastes, namely the metal constituents in Appendix VIII of
Part 261 (antimony, arsenic, barium, beryllium, cadmium,
chromium(total), lead, mercury, nickel, selenium, silver, and thallium,
vanadium) and cyanide. The corrosivity standard in Sec. 261.22 also
applies (an aqueous solution with a pH equal to or less than 2 or equal
to or greater than 12.5), as well as the ignitability standard in
Sec. 261.21 (some phosphorous and lithium-bearing mineral processing
secondary materials spontaneously combust).^{10 This standard would
operate for each of the regulated constituents as follows: (1) if an
MCL is available, the MCL is the ground water protection standard
unless background concentrations already exceed the MCL, in which case
the background level would become the standard (so that the unit would
not contribute further to the contamination); (2) in the absence of an
MCL, a state or tribal risk-based number (i.e., 10 times the state or
tribal ground water protection number) would be used for the regulated
constituent (see 258.55(i); in an unauthorized state, an appropriate
level could be provided by the EPA Region under the third alternative,
as discussed below. The level for cyanide would be 0.2 mg/l as
determined by the weak acid dissociable (WAD) method.^{11

\10\ In its September 1, 1989 rule (54 FR 36592, 36600), EPA
stated that it did not believe that mineral processing wastes were
particularly ignitable or reactive. EPA has since found that certain
mineral processing wastes are indeed ignitable and reactive (see
Multi-Media Compliance Investigation of FMC Corporation, Phosphorous
Chemicals, EPA National Enforcement Investigations Center (August
1994).
\11\ This is based on Nevada State Law N.A.C. Sec. 445.24342 and
Sec. 445.132.
---------------------------------------------------------------------------

The MCL serves as a measure of acceptable drinking water and is the
traditional measure used by the Agency in its various groundwater
protection programs. (See 258. 55 and .56; 264. 94)
This would be measured at a designated location, within 150 meters
of the unit boundary. This is the maximum distance for a point of
compliance allowed under the Subtitle D landfill rules. See 56 FR at
50996. A land-based unit receiving hazardous mineral processing
secondary materials which causes this much groundwater contamination
and, as explained below, does not correct the source of contamination,
can realistically be viewed as part of the waste disposal problem.
Groundwater Monitoring. Under this alternative, the Agency is
further proposing that groundwater monitoring be required to assess the
presence of regulated constituents in the groundwater. EPA is proposing
that the ground water monitoring and corrective action regulations for
municipal solid waste landfills (MSWLFs) under the Subtitle D program
(Solid Waste Disposal Facility Criteria, 56 FR 50978, October 9, 1991)
be adopted with modifications for the monitoring and remediation. In
referencing the MSWLF rule for ground water monitoring and corrective
action activities for units managing mineral processing secondary
materials, the Agency is proposing to adopt only those provisions that
are self-implementing. Thus, any provision of the MSWLF rule requiring
state approval would not apply.^{12

\12\ The flexibility provided in the subtitle D rule to account
for site specific circumstances is provided here as the third
alternative means of showing that a land-based unit is functioning
as a process unit, namely a site-specific determination from an
authorized state of EPA Region that a specific unit can be designed
or operated in a manner different than that set out in the
groundwater protection or design alternatives.
---------------------------------------------------------------------------

If ground water monitoring is triggered, owners or operators are
required to undertake a monitoring program under Sec. 258.55 of the
MSWLF rule to monitor for only those Appendix 8 metals constituents and
cyanide that are present in the hazardous mineral processing secondary
material prior to its placement in the unit.
The ground water monitoring system must include at a minimum one

[[Page 2346]]
upgradient well and three downgradient wells. The downgradient wells
must be located not further than 150 meters from the unit boundary. The
groundwater monitoring system must be capable of ascertaining the
background quality of groundwater and assessing the quality of
groundwater within 150 meters of the unit boundary, as certified by a
qualified groundwater scientist. See 258.51 (a), (b), and (d).
In another proposed departure from the MSWLF rule, today's proposed
rule does not require facilities to scan for the Sec. 258 Appendix II
constituents. Rather, owner/operators under today's rule would be
required to move directly to assessment of corrective measures upon
detecting that releases are exceeding the ground water protection
standard. The Agency initially believes that given the limited number
of inorganic constituents present in these mineral processing units, as
opposed to the variability of contaminants often found in a municipal
solid waste landfill, a second level of assessment would not be
necessary.
EPA also solicits comment on an alternative to groundwater
monitoring proposed in the Phase IV rule for impoundments receiving
decharacterized wastewaters. There, the Agency proposed that
groundwater monitoring would be unnecessary if concentrations of
hazardous constituents in the impoundment were less than 10 times the
MCL (or alternative level). This proposal rested on the theory that
given normal dilution and attenuation, it would be unlikely that any
groundwater protection standard would be exceeded under these
conditions. 60 FR at 43669 (August 22, 1995). EPA is uncertain that
land-based mineral processing units would ever be able to satisfy this
condition. At least some of the metal levels would likely exceed 10
times the MCL in the unit since these often are some of the target
metals being recovered by the facility. EPA nevertheless solicits
comment on this alternative.
EPA also requests comments on whether alternative downgradient well
location, such as at the facility boundary (i.e., on an across-the-
board basis rather than on a case-by-case basis, as provided in the
third alternative discussed below), should be considered under this
alternative. For example, criteria based on the potential for exposure
to humans or sensitive ecosystems, and other site-specific factors such
as topography, climate, and hydrogeology, might provide greater
efficiency in the use of monitoring resources. However, these criteria
must be weighed against the preventative goals of RCRA. EPA seeks
comment on the appropriateness of this alternative.
Corrective Action. In the event of a release from the unit
exceeding the groundwater performance standard, corrective action would
be triggered and the facility would have to remediate the releases so
that the standard is no longer exceeded. In other words, the facility
would have to perform unit-specific corrective action, namely interdict
the released material and repair the leaking unit. This condition is
consistent with the distinctions between process and waste management
units: if there are releases of valuable feedstock materials from a
process unit, one would expect the facility to capture releases of its
inventory. Conversely, allowing such releases to continue indicates
that the unit is being used to discard the mineral processing secondary
material and is doing so in a manner that is part of the waste disposal
problem.
EPA is not proposing that the land-based unit becomes a waste
management unit in the event of an exceedance of the groundwater
protection standard. Rather, EPA is trying to create an incentive for a
facility to rapidly capture released material and prevent further
leakage. (Cf. 261.33 and 55 FR at 22671 (June 1, 1990) (released
commercial chemical products are not solid wastes if captured and put
to some productive use)). On the other hand, depending on the extent,
frequency and time to remediate releases to groundwater from the unit,
the Agency would retain the option of classifying the unit as a
regulated waste disposal unit.
Thus, the ability of a facility to capture a released material via
a corrective action regime indicates that the unit is functioning as a
process unit, and is not operating in a manner causing the mineral
processing secondary material input to become part of the waste
disposal problem.
As discussed above, today's rule would also state that once it is
determined that corrective measures are necessary, the facility would
be required to implement the following: (1) Cease placement of mineral
processing secondary materials into the unit as soon as is practical,
and (2) use appropriate design or management practices which eliminates
the threat of further leaks. Mineral processing secondary materials
could be placed back into a unit after it has undergone successful
corrective action. If the owner/operator has taken action to address
minor releases and can affirm that the unit is again meeting the
groundwater protection standard, no further corrective action need be
taken.
In the event further remediation beyond reachieving the groundwater
protection standard is necessary, the Agency would invoke case-specific
remediation authorities to require such a remedy. In addition, as noted
above, the severity of a release could also be a factor in whether to
continue to classify the unit as a process unit.
ii. Alternatives Based on Unit Design. EPA is proposing as a second
alternative that any surface impoundments otherwise covered by the
proposal that are constructed to have the transmissivity equivalent of
a 40 mil geomembrane liner on a surface of 12 inches of 10-5 hydraulic
conductivity soil would be considered to be process units and would not
have to demonstrate compliance with the groundwater protection
standard. EPA is also proposing that for solids in piles located on
concrete, asphalt, or soil any of which have the equivalent
transmissivity of three feet of clay with 10-7 cm/sec hydraulic
conductivity would not have to demonstrate compliance with the
groundwater protection standard. If any free liquids are present in the
solids pile, then all standards applicable to surface impoundments
would be applicable for that pile. The Agency believes that this is a
protective standard for piles based in part on Sec. 264.251. The Agency
further believes that most solids process piles from mineral processing
meet or exceed this standard. (See Office of Solid Waste, U.S. EPA,
Gold, Copper, Lead/Zinc, and Iron Technical Resource Documents (July
1994); Site Visit Reports to Mines and Mineral Processing Facilities,
Office of Solid Waste (1995); Mining Waste Management, California
Mining Association).
iii. Site Specific Determinations from an Authorized State or By an
EPA Region. EPA believes that the ground water performance standard or
design conditions set out above would assure that a land-based unit is
not operating as a means of discarding. However, EPA further believes
that other more appropriate conditions can be developed on a unit-by-
unit basis to address site specific conditions. It is critical that the
flexibility to account for these circumstances be available. The Agency
has repeatedly recognized that ``ground water is a uniquely local
resource due to the ease with which small sources can affect it, and
the impact that use and hydrogeologic characteristics can have on its
quality.'' Protecting the Nation's Ground Water: EPA's Strategy for the
1990's (USEPA

[[Page 2347]]
1991). The need for the flexibility to take individualized action also
is inherent in the number of variables (such as depth to groundwater,
rainfall, soil types, and site-specific hydrogeological factors) that
can influence the possibility and extent of groundwater contamination.
EPA is proposing to allow for this necessary flexibility by providing
that a facility can obtain an individual determination from an
authorized State, or from a Regional Administrator, that its mode of
operation provides adequate assurance that the unit is not serving as a
mode of discard. Moreover, in States that have existing groundwater
protection programs that apply to a particular unit, EPA is proposing
that once the program is authorized for purposes of this rule, State
determinations made pursuant to that program would serve as an adequate
measure that land-based units receiving mineral processing secondary
materials are not serving as a means of discard.
EPA thus is proposing that authorized state programs can operate in
lieu of the federal conditions pertaining to excessive leakage where
the state program addresses the mineral processing land-based unit and,
on a case-by-case basis, is protective. As explained more fully below
in the preamble section on State Authorization, EPA would evaluate
during the authorization process whether the state program has the
legal authority to control leakage to groundwater from these units, has
resources to implement these authorities, has the overall object of
protecting public health and the environment from leakage to
groundwater, provides means for detecting and responding to groundwater
contamination, has enforcement authorities and capabilities adequate to
implement and to monitor compliance with any requirements adopted
pursuant to the state program, and provides for public participation in
the process of developing requirements for particular land-based units.
(As stated in the section on authorization below, these authorities
need not be provided solely, or in part, by State RCRA authorities.
Plenary state authorities for aquifer protection, or over mining
activities generally, for example, would be acceptable and
appropriate.)
Factors typically to be considered by authorized States, or EPA
Regions, in making site-specific determinations would include those set
out in the environmental performance standard found at 267. 10. These
include the volume and physical and chemical characteristics of the
materials in the unit, including potential for release; hydrogeologic
characteristics of the unit and surrounding soils; quantity, quality
and directions of groundwater flow; existing quality of groundwater;
and potential for damage to humans and to the ambient environment.
Pathways other than releases to groundwater also could be taken into
account.
The result of a site-specific determination thus could be that a
particular unit can be determined to be a process unit without
satisfying some or all of the conditions in the groundwater protection
or the design alternatives described in the previous sections. For
example, an authorized State or EPA Region could determine that a unit
located in an arid region with a remote water table and distant
potential receptors could have a different compliance point, compliance
standard or monitoring regime than set out in the groundwater
protection alternative. Some type of design different from those set
out in the proposed design alternative also could be determined to be
adequate. Any such determination would, of course, have to be justified
based on the basis of the administrative record developed in support of
the determination, taking into account the factors set out in 267.10
which are relevant in the particular determination, and after
considering any public comment received.
d. Issues Related to Unit Closure. As discussed earlier, land-based
units in the mineral processing industry can serve as the ultimate
repository of the unused materials left in them when the unit stops
operation. EPA is soliciting comment on whether there should be a
mandatory condition that all process units must remove hazardous wastes
remaining in the unit at the time the unit stops operation. The time
for removing hazardous wastes could not exceed 90 days from when the
unit ceases operation. This condition would be analogous to the
requirement presently found at 261.4(c) whereby hazardous wastes that
are generated in tank and container process units are exempt from
regulation until they are removed from the unit or until 90 days after
the unit has ceased operating.
The basis for such a condition is that allowing hazardous waste to
build up in and remain in the unit after the time the unit is a
disposal unit is inconsistent with designation of such units as process
units. See 261.4(c). They would be serving a classic hazardous waste
disposal function and could consequently be regarded as part of the
waste disposal problem and within the Agency's Subtitle C jurisdiction.
EPA notes further, moreover, that it is the Agency's experience that
hazardous metals can be removed while the unit is operating so that a
facility can assure that hazardous wastes are not present in the unit
when it ceases operation. This appears to serve the goal of hazardous
waste minimization through recycling. RCRA Sec. 1003(b). EPA also
solicits comment on the feasibility of such practices.
e. Issues Related to Basic Unit Integrity. EPA is soliciting
comment on whether an additional condition of basic integrity is
warranted. Here, EPA desires to assure that land-based units function
as process units in that the units have basic design integrity and is
not indiscriminately leaking or otherwise dispersing their contents.
The general theory is that a unit of any type which is not designed to
prevent wholesale releases is serving as a disposal unit. For example,
a raw material tank without a bottom could be viewed as a disposal unit
because its contents would necessarily be disposed every time material
is placed in the tank. Similarly, a land-based unit designed so that
significant portions of materials in the unit will escape need not be
classified as a process unit. Put another way, secondary materials put
into land based units designed so that there will be significant
releases of those materials can be viewed as wastes because of the
significant element of discard inherent in the defective design.
The Agency believes that the land-based process unit should be
designed to contain the secondary materials placed in it. Land based
process units vary in design, liners, and materials of construction.
For example, some units are located on solid bedrock, some use
compacted clay, while others use 40-mil or greater synthetic liners on
top of impermeable soils. Agency review of various types of mine waste
management units has found that most are designed to meet at least 10-6
cm/sec permeability, using varies methods of soil thickness and
compaction.^{13

\13\ Ian P.G. Hutchison, Richard D. Ellison, Mine Waste
Management, California Mining Association, Lewis Publishers Inc.
(1992).
---------------------------------------------------------------------------

For these purposes, basic integrity would mean that the land-based
unit meets the equivalent permeability standard of 10-6 cm/sec using 3
feet of compacted clay. An infiltration pond, or a unit that is lined
with compacted silt with a hydraulic conductivity of 10-5 cm/sec thus
would not meet EPA's basic integrity standard. The consequence of
failing this design integrity standard would be that the hazardous
secondary materials received by the unit would be

[[Page 2348]]
solid and hazardous wastes, and the unit itself would be a type of
disposal unit. This accords with what would actually be occurring:
wholesale and foreseeable release of the materials due to the unit's
design.
This basic unit integrity would be an additional condition to the
other conditions of the groundwater performance standard as described
in subsection c. i and also in addition to the ad hoc determinations
made by the state or EPA region as described in subsection c. iii.
However, this basic unit integrity standard would not be applicable to
the unit design alternative in subsection c. ii since the integrity of
this alternative already surpasses the basic integrity test.

G. Units and Secondary Materials Outside the Scope of this Proposal

1. Wastewater Treatment Impoundments
In distinguishing between process units and waste management units,
EPA is proposing that wastewater treatment impoundments not qualify as
process units. Thus, any surface impoundment whose discharge is
ultimately regulated under the Clean Water Act's NPDES regime,
including units subject to zero discharge requirements and emergency
bypass permit conditions, would not be eligible for consideration as a
process unit. Even if some portion of the mineral processing secondary
material going into such units may be recycled back into a production
process, the essential purpose of these units is waste management
rather than production. See 59 FR at 58936 (July 28, 1994) where EPA
made similar findings regarding wastewater treatment units in the
petroleum refining industry. The D.C. Circuit has in fact held that
wastewater treatment impoundments can be classified as waste management
units, notwithstanding that all of the entrained solids in the unit are
eventually recycled as feedstock. AMC II, 907 F. 2d at 1186-87.
2. Secondary Materials Generated by Outside Industries and Listed
Hazardous Wastes
The National Mining Association (NMA) has proposed that the Agency
provide an exclusion for metal-bearing secondary materials from outside
industries (e.g., electroplating sludge from the metal finishing
industry, F006) that are processed within the primary mineral
processing industry. The focus of this request is the reclamation of
listed hazardous wastes, since characteristic byproducts and sludges
being reclaimed are currently excluded from the definition of solid
waste. The NMA's position is that, in general, these listed hazardous
wastes can have recoverable levels of metals similar to normal
feedstock, that the management of these materials is environmentally
sound, and that EPA should encourage this type of recycling.
First, as a prudential matter, such a request is beyond the scope
of this rulemaking. EPA is proposing to amend the solid waste
definition specifically for the mineral processing industry at this
time in order to most accurately set out the scope of the land disposal
prohibition and treatment standard for mineral processing wastes. The
schedule for establishing these LDR standards is established in a
proposed consent decree and leaves the Agency very little time to
complete the task. Since non-mineral processing materials would not be
subject to these LDR standards, EPA sees no need to consider the issue
at this time. It is more appropriately dealt with under the Agency's
comprehensive efforts to amend the regulatory definition of solid waste
described in the last paragraph of this preamble section.
The Agency notes further that, in many cases, metal-bearing
secondary materials (including wastes that have been specifically
listed as hazardous wastes) from other industries may be suitable
feedstocks to a metal recovery process and that one goal of RCRA is to
encourage environmentally sound recycling. The Agency also notes,
however, that as a legal matter the processing of wastes generated by a
separate industry is a different situation than the ``continuous on-
going'' processing of secondary materials within the same industry,
lacking the element of continuity of production inherent in the
continual multi-step processing of virgin ores into a variety of end
products (see API v. EPA, 906 F. 2d at 741-42). The recovery of metals
from hazardous wastes generated by an outside industry thus more
arguably involves the management of wastes.
In addition to limiting the scope of materials to those secondary
materials generated within the primary mineral processing industry, the
Agency is also proposing that secondary materials generated within the
mineral processing industry that have specifically been listed as
hazardous wastes (e.g., K061--emission control dust/sludge from the
primary production of steel in electric furnaces, and K088--spent
potliners from primary aluminum reduction) remain subject to regulation
as hazardous wastes, even when processed within the mineral processing
industry. The process of listing a secondary material as a hazardous
waste includes an evaluation of the manner in which the material is
managed and the potential for the material to cause harm to human
health and the environment. When a secondary material is found to be
typically managed through recycling, the Agency evaluates whether such
processing constitutes continuous on-going manufacturing or waste
management. In other words, by listing a secondary material as a
hazardous waste, the Agency has made a specific determination that the
material is a solid waste, even when recycled. The Agency has in fact
evaluated each listed waste against the criteria set out at 50 FR at
641 and 53 FR at 526-27 and determined that all of the listed wastes
should still be classified as solid and hazardous wastes when recycled
by reclamation. (See Background Document to the January 8, 1988
proposed rule ``Summary Table: Effect of the Revised Solid Waste
Definition on Whether Reclaimed Sludges and By-Products are Solid
Wastes'' F-88-SWRP--S0006).
While EPA is not taking the position that the regulatory status of
a material listed as hazardous waste is beyond reconsideration, the
Agency is stating that such a review is beyond the scope of this
rulemaking. The proposed modification to the definition of solid waste
is very broad, potentially allowing for the cross-transfer of secondary
materials from considerably different mineral processing sectors. (The
Agency notes that in this proposal, EPA is putting forward and seeking
comment on an expansive definition of ``mineral processing industry''--
comprising over 40 mineral sectors ^{14--in order to encourage and
facilitate the protective recycling of valuable constituents from
secondary materials that would otherwise be discarded, an approach that
EPA believes to be at the Agency's discretion, and that goes beyond the
concept of secondary materials that are ``destined for beneficial reuse
or recycling in a continuous process by the generating industry
itself'' enunciated by the court in AMC I, 824 F. 2d at 1186.
Therefore, the Agency believes that the exclusion should not, in this
rulemaking, extend to those materials that have already been
specifically evaluated and defined by rulemaking as solid wastes
subject to RCRA Subtitle C regulation. Thus, the scope of the proposed
exclusion for secondary materials generated and processed

[[Page 2349]]
within the mineral processing industry does not include listed
hazardous wastes, even those listed wastes generated within the mineral
processing industry.

\14\ A detailed description of 41 mineral commodities are
presented in Identification and Description of Mineral Processing
Sectors and Waste Streams, EPA Office of Solid Waste 1995.
---------------------------------------------------------------------------

EPA (working in conjunction with State regulatory agencies) is
currently involved in an effort to reevaluate the definition of solid
waste and the regulations applicable to hazardous waste recycling. The
goal of this effort is to simplify and clarify the existing definition
of solid waste, as well as to encourage environmentally sound
recycling. Given that the suggestion presented by the NMA (i.e., the
recycling of listed hazardous wastes generated by an outside industry
as feedstock into their normal mineral production processes) is typical
of hazardous wastes being recycled by ``normal'' production processes,
the Agency believes it is more appropriate to address such a scenario
in the context of the overall effort to redefine the definition of
solid waste. In the interim, the existing regulatory framework will
continue to apply to secondary materials generated by outside
industries, as well as to all listed hazardous wastes, being processed
by the primary mineral processing industry. Thus, characteristic
sludges and byproducts generated by outside industries being reclaimed
by the mineral processing industry will continue to be excluded from
the definition of solid waste; spent materials generated by outside
industries, as well as all listed sludges and byproducts being
reclaimed will continue to be regulated as hazardous wastes. Today's
proposed amendment to the definition of solid waste addresses only
those characteristic secondary materials that are both generated and
processed within the primary mineral processing industry.

H. Alternative Approaches

EPA has also evaluated other potential approaches for dealing with
issues of solid waste classification of mineral processing secondary
materials. The Agency is also seeking comment on these alternatives.
1. Status Quo
One alternative approach is to not make any changes to the
definition of solid waste and simply apply applicable waste treatment
standards to mineral processing materials currently defined as solid
and hazardous wastes. Efforts to amend the regulatory definition could
be undertaken as part of the Agency's longer-term effort to address
this issue comprehensively.
This approach would thus retain the distinctions between
characteristic byproducts, sludges, and spent materials, at least for
now. For reasons stated earlier, the Agency believes that these rules
can be improved, and in particular that this type of material-by-
material classification is inappropriate for the mineral processing
industry. In addition, strict adherence to current Subtitle C rules may
mean that mining companies would forgo legitimate recovery of these
secondary materials. Thus, the Agency also believes that this is an
overly restrictive approach.
Finally, as a prudential matter, since the Agency must necessarily
develop land disposal prohibitions for mineral processing wastes at
this time, the Agency believes it best, if at all possible, to deal
with the jurisdictional issue at the same time, so that the scope of
the prohibitions is clearly established.
2. Apply Solid Waste Changes Only to Spent Materials
Under this alternative, the Agency's proposed approach in Section I
would only apply to spent materials as currently defined in 261.1. The
current classification of byproducts and sludges would remain the same.
While EPA believes that this approach may encourage recovery of mineral
processing spent materials that would otherwise be abandoned, it still
maintains the unnecessary and potentially arbitrary distinctions among
characteristic byproducts, sludges, and spent materials. It also does
nothing to address risks from byproducts and sludges in land-based
units engaged in recovery which are serving as means of disposal and
hence part of the waste disposal problem.
On the other hand, this proposal would only remove the existing
regulatory distinction between exempt sludges and byproducts and spent
materials for mineral processing wastes and therefore create an
inconsistency with how other wastes streams are treated. EPA plans to
address the issue more generally in a forthcoming rulemaking on the
definition of solid waste. It may be argued that the present
distinction should be maintained for mineral processing wastes until
the issue is resolved in the broader rulemaking. EPA is therefore
seeking comment on this alternative.
3. National Mining Association Approach
The National Mining Association (NMA) provided the Agency an August
31, 1995 draft proposal for addressing secondary materials from mineral
processing (see Docket No. F-95-PH4A-FFFFF). NMA's approach proposes
three categories of materials which would not be considered solid
wastes. The first categorical exclusion is for mineral processing
secondary materials which can be substitutes for or supplements to
feedstocks in a mining or mineral processing operation. These materials
would be considered either co-products, intermediates, or in-process
which and would be excluded under the regulatory definition of solid
waste and hence Subtitle C regulation, whether or not managed in land-
based units.
The second delineated category are secondary metal-bearing
materials that do not meet the criteria set forth for the first
category for in-process materials but which may still contain
economically recoverable mineral values and thus can be used in and
returned to a beneficiation or mineral processing unit. For NMA's
second category ``such mineral or metal-bearing secondary materials are
not subject to RCRA Subtitle C and are excluded as long as the
materials: (1) are in-process or utilized in an ongoing production
process, and not discarded or intended for discard; (2) are managed or
handled in a manner comparable to or consistent with virgin ores, raw
materials, or feedstocks in production or raw material units or ore
staging units; (3) contain a metal content that is comparable to or
above the normal range of virgin ores or feedstocks, contain levels of
minerals or metals recoverable by the technology being employed, or
contain materials necessary to be an effective substitute for
commercial products; (4) are not accumulated for more than 18 months
without being used or processed in a primary production or recovery
process (if they are accumulated beyond 18 months, provisions like
those of the ``speculative accumulation'' rule, which continues to
exist as a regulatory requirement, will apply); and (5) are not
indiscriminately spilled or leaked into the environment, as long as any
significant spill or leak of such materials is promptly addressed and
returned to the production unit.'' ^{15 (National Mining Association
Draft Proposal, p. 10, August 31, 1995).

\15\ It should be noted that NMA, in suggesting a conditioned
exclusion approach for these 'Category 2' materials, still maintains
its legal argument that such materials are absolutely excluded from
subtitle C jurisdiction because they are not ``discarded'' within
the meaning of AMC I.
---------------------------------------------------------------------------

Finally, NMA proposes a third category called ``extra-industrial''
materials. These are hazardous secondary materials generated in
industries other than the mining and primary mineral processing
industry

[[Page 2350]]
that may be utilized in primary mineral processing operations. Under
this approach, as long as the material is managed in a manner
consistent with raw materials or feedstocks, it is not further
regulated under RCRA Subtitle C. Such materials could not, however, be
managed in land-based units.
There are certain similarities between NMA's suggested approach and
that proposed by the Agency. In particular, the approach to Category 2
materials, although differing with respect to many details, appears
similar conceptually to the Agency's proposal in the use of exclusions
conditioned on some level of assurance that land-based units are not
utilized as means of disposal. The chief difference is that NMA's
proposal would exclude from jurisdiction an appreciable class of
materials. Many of these can fall along the waste-like end of the
management continuum discussed earlier, in terms of proximity to the
process, immediacy of recovery, and value of material. For example, not
all furnace bricks from copper smelters are recycled back through a
beneficiation mill. Some copper smelters dispose of these bricks in on-
site landfills, while others may wait years before recycling them. In
addition, Category 1 materials have been managed in ways that are part
of the waste disposal problem, due to their placement in land-based
units. For example, smelter flue dusts at some primary mineral
processing facilities have caused significant environmental damages
(see Mining Sites on the National Priorities List, Office of Solid
Waste 1995; Human Health and Environmental Damages from Mining and
Mineral Processing Wastes, EPA Office of Solid Waste 1995).
Nevertheless, EPA specifically solicits comment on crafting an
exclusion for in-process materials incorporating some of the concepts
of NMA's Category 1. Such an exclusion could reflect the following
principles: such materials would be returned for recovery to the
process from which they are generated (see existing 261. 2 (e)(1)(iii)
which already contains a similar exclusion); they would be managed in a
timely fashion contiguous to the process unit such that they are an
integral part of the process; materials managed in surface impoundments
could not be eligible for outright exclusion. In addition, basic
conditions as to recovery being legitimate and no speculative
accumulation occurring would apply.
With respect to NMA's third category of secondary materials outside
of the mineral processing industry, the Agency is deferring any
proposal for changing the regulatory status to the larger Agency
efforts on Definition of Solid Waste (see preceding discussion on
secondary materials outside the scope of this rule above).
4. Iron and Steel Industry Approach
As part of EPA's Common Sense Initiative for the iron and steel
industry, the Specialty Steel Industry of North America, the Steel
Manufactures Association, the American Iron and Steel Institute, and
the Metals Industry Recycling Coalition provided EPA a June 27, 1995
draft approach for redefining solid wastes (see Docket No. F-95-PH4A-
FFFFF). This approach calls for flexible minimum management standards
to be met which conditionally exclude recyclable materials from the
definition of solid waste. This approach would require a Facility
Operating Plan which includes: a spill prevention plan and procedures;
types, quantities, and analysis of recycled materials; product
specifications; speculative accumulation and storage requirements;
closure plan; and recordkeeping and reporting for off-site shipments. A
one time notification to EPA and State would be required, with a
renewal of notification for material changes. The notification would be
available for public review in EPA files.
Conditional exclusion would apply only to secondary mineral
processing, i.e., those facilities that use scrap metal for over 51
percent of feedstocks. Hazardous waste manifest would be required for
off-site shipments. Secondary materials must be stored in a manner to
prevent release into the environment such as on asphalt or concrete
pads.
Secondary materials could not be stored for longer than 12 months.
Increase in inventory of quantity stored must have a reasonable market
justification. Land applied products produced from a secondary material
may not be used unless the product satisfies EPA's current use
constituting disposal regulations.
It should be noted that the Agency is not endorsing the Iron and
Steel Industry approach at this time. It is discussed here for the
purpose of soliciting comments from other parties. Also, the Agency has
summarized here only certain parts of this approach. Commentors are
encouraged to review the Iron and Steel Industry's entire document,
which is available in the RCRA docket.
5. Alternatives Suggested by Environmental Groups
Representatives of environmental groups have also suggested
alternatives to EPA's proposal. As noted earlier, their basic legal
argument is that land-based units have sufficient nexus with disposal
to be within RCRA jurisdiction. They also have suggested specific
changes to the approach EPA is proposing today.^{16 In particular,
they suggest further conditions relating to use of land-based units. To
be considered process units, an owner operator would need to
demonstrate to an authorized State or to EPA that the facility
routinely manages virgin materials in land-based units and that there
are no practical alternatives to use of land-based units for secondary
mineral processing materials. They also suggest a no backsliding
condition: facilities not using land-based units before the rule became
effective could not add land-based process units thereafter. Finally,
they suggest that eligibility for being process units hinge on control
of releases via pathways other than groundwater contamination, and thus
include conditions to prevent releases to air and surface water.

\16\ Memoranda documenting the specific comments received from
representatives of these groups (which include the Environmental
Defense Fund) are part of the record for this proposed rule.
---------------------------------------------------------------------------

The Agency solicits comment on these points. We note, however, that
the Agency does not, on initial consideration, favor case-by-case
adjudication of the practicality of use of land-based processing units.
This would appear to be cumbersome and difficult to administer. The
suggested backsliding provision might have associated administrative
difficulties as well, when dealing with such questions as incremental
expansions or allowing alternatives for existing facilities commencing
a different type of production activity. With respect to releases via
exposure pathways other than groundwater, the Agency notes that
releases to surface waters are already regulated under the Clean Water
Act, and releases to ambient air are either controlled or potentially
controlled by the Clean Air Act. In addition, such pathways would be
amenable to control if needed under the case-by-case alternative for
satisfying the process unit condition, as discussed above. Although
RCRA authorities certainly can and do apply to these types of exposure
pathways, the Agency does not initially believe they are the critical
ones for assessing in every situation whether the mineral processing
unit is functioning as a process unit. EPA solicits further comment on
these points, however.

[[Page 2351]]

II. Addition of Mineral Processing Secondary Materials to Units
Processing Bevill Raw Materials

A. Introduction

This section of the preamble considers a similar fact pattern to
the one just discussed. Metal-bearing mineral processing secondary
materials are added to a process unit, except that instead of a process
unit in the mineral processing industry, the addition is to a unit
involved in beneficiation. Such a unit, considered without the addition
of the mineral processing secondary materials, is thus processing
Bevill raw materials, and the wastes from the unit would be exempted
from Subtitle C regulation by the Bevill amendment (section 3001
(a)(3)(A)(ii), codified at 261.4(b)(7)) and the Agency's 198 regulatory
determination. The issues addressed here are whether the addition of
mineral processing secondary materials changes the status of the
resulting wastes from Bevill to non-Bevill, and whether addition of
mineral processing secondary materials converts the status of a process
unit into a waste management unit.
The Agency's initial view is that these questions cannot be
considered apart from the existing Bevill determination. EPA has
already determined that the wastes from these processes should not be
controlled under Subtitle C. 51 FR 24496 July 3, 1986 (upheld in
Environmental Defense Fund v. EPA, 852 F.2d 1309 (D.C. Cir. 1988)).
Although this determination can be reconsidered, and altered if
appropriate, if the determination is to be reconsidered, it should be
addressed directly pursuant to the Bevill determination criteria set
out in section 8002, not through a potentially back-door route. Change
in status of wastes or a unit due to addition of mineral processing
secondary materials could be such a back-door route.

B. When Wastes From Co-processing Retain Bevill Status

EPA is thus proposing that wastes from beneficiation units that
also receive metal-bearing secondary materials for legitimate recovery
retain their Bevill status, subject to the following conditions, all
designed to assure that the wastes remained the type that the Agency
determined to exempt from Subtitle C. First, the wastes need to result
from operations that process greater than 50% beneficiation raw
materials. This is the standard condition EPA applies to all of the
Bevill categories to distinguish when wastes result from the enumerated
activity exempted by Congress. See 56 FR at 7198 February 21, 1991; 50
FR at 49190 November 25, 1985; 54 FR at 33620 September 1, 1989;
Horsehead Resource Development Co. v. Browner, 16 F.3d 1246, 1256 (D.C.
Cir. 1994) (upholding this test); Solite Corp. v. EPA, 952 F.2d 473,
491 (D.C. Cir. 1991) (upholding this test). Second, addition of the
mineral processing secondary could not be used as a means of
surreptitious disposal. Consequently, the Agency would require the same
quantified test for legitimate recycling set out in the previous
section. In addition, case-by-case determinations of sham recycling
could also be made, as explained above.
EPA also solicits comment on whether to adopt a quantified test to
assure that addition of mineral processing secondary materials does not
have a significant effect upon the wastes resulting from the process,
so that the wastes remain the type EPA determined warranted Subtitle C
exemption. EPA has already adopted such a test with respect to wastes
generated from Bevill devices co-processing hazardous waste with Bevill
raw materials, stating in essence that the resulting wastes (for
example, cement kiln dust from a cement kiln burning hazardous waste
fuel) retain Bevill status so long as their content is not
significantly affected by the hazardous waste management activity.
``Significantly affected'' is assessed on the basis of either a
statistically significant increase in concentrations of hazardous
constituents (or increase in leachable concentrations) over the non-
waste baseline (i.e. the baseline being the wastes that would result if
hazardous wastes were not co-processed) or environmentally significant
increase in concentrations of hazardous constituents (or increase in
leachable concentrations). See 266.112.
Mineral processing industry representatives have criticized
applying this test here, on both technical and legal grounds. They
contend that there are difficulties in measuring the contaminants
apportioned to the Bevill unit through mineral processing; that the
undesirable contaminants are concentrated through mineral processing
and effectively passed through the Bevill unit in sufficient volumes
such that Bevill materials may be affected over long periods of time.
They further object on the basis that these mineral processing
secondary materials are in-process intermediates which are not solid
waste and therefore not subject to RCRA jurisdiction (see Oct 2, 1995
meeting National Mining Association notes, RCRA Docket F-95-PH4A-
FFFFF). The legal objection is that the situation here is not analogous
to that in Sec. 266.112 because the secondary materials come from
beneficiation and do not result from commingling with a hazardous waste
treatment residue.
EPA's initial view is that the situation discussed here is
sufficiently similar to that dealt with in Sec. 266.112 that some type
of comparability test to ascertain that resulting wastes have not been
significantly affected is desirable. As discussed earlier, although the
proposal would not classify mineral processing secondary materials as
hazardous wastes per se, they are coming from a different industry
segment than beneficiation, can contain higher concentrations of and
different hazardous constituents than are found in beneficiation raw
materials, and can be managed in land-based units. At some point, if
waste resulting from such activities ``is `significantly affected,' it
is no longer just [beneficiation waste], but [beneficiation waste]
plus'' the other hazardous component. Horsehead Resource Development
Co., 16 F.3d at 1258.
The Agency is soliciting comments on alternative methods for
determining whether a Bevill waste has been significantly affected
(i.e., made significantly more hazardous) by the introduction and re-
processing of mineral processing secondary materials. The Agency
recognizes that the ability to determine whether a Bevill waste has
been significantly affected may be more difficult for some Bevill
units, especially copper dump leaching. In this case, acid solutions
from non-mineral processing sources are continuously added and
circulated through the process making it difficult to apportion the
contribution of contaminants from Bevill and non-Bevill sources over
time. The Agency seeks comments on how to determine significant changes
to the Bevill waste in these types of situations. One option could be
to wait until the Bevill unit ceases activity before making the
determination that the wastes in the unit qualify for the Bevill
exclusion. However, the Agency still generally believes that
beneficiation wastes are generated in such large quantities that the
introduction of contaminants from mineral processing secondary
materials should not result in significantly changing the hazardousness
of the Bevill waste.
Provided these tests are met, the Agency is proposing that
resulting residues retain Bevill status. We reiterate that in these
situations the wastes remain the type of waste EPA has determined
should not be regulated under Subtitle C.

[[Page 2352]]

C. Status of Units Receiving Mineral Processing Secondary Materials

EPA is further proposing that so long as mineral processing
secondary materials introduced into beneficiation units are being
legitimately recycled, then no further conditions would apply to those
units. The Agency is thus not proposing conditions distinguishing when
beneficiation units are truly functioning as process units (the issue
discussed in the previous section of the preamble). As explained above,
to do so would appear to undermine EPA's existing determination that
any wastes from the unit--which would include leakage from the unit--
are to be accorded the Bevill exemption. The addition of mineral
processing secondary materials is not changing the character of the
material discarded from the unit. EPA does not see why it should seek
to condition addition of mineral processing secondary materials to the
unit when the Agency has found it unnecessary to develop controls
directly as part of the Bevill determination. EPA solicits comment on
this issue, however.

D. Mixing of Mineral Processing Hazardous Wastes With Bevill Wastes

EPA is further proposing that if any mineral processing hazardous
waste, or indeed any hazardous waste, is disposed with, mixed with, or
otherwise combined with a Bevill waste, the resulting waste is
regulated under RCRA Subtitle C (or, in the situation where the mixture
results in elimination of a characteristic, that the activity be
regulated as a form of treatment subject to regulation under Subtitle
C). This situation differs from that discussed above. Mineral
processing secondary materials are not being recycled, but are simply
being disposed. They are not being co-processed with raw materials, but
being mixed with wastes. The Agency is proposing that Bevill wastes not
be allowed as an unregulated dumping ground for normal Subtitle C
hazardous wastes. Cf. Horsehead Resource Development Co. v. Browner, 16
F. 3d at 1258 (``it simply makes no sense to permit Bevill devices to
become inadequately regulated dumping grounds for hazardous
materials''). Environmental releases of Bevill-exempt wastes are well
documented and the Agency is concerned about the potential human health
and environmental risks due to increased hazardous constituents
resulting from mixtures of hazardous waste with Bevill-exempt wastes.
(See Human Health and Environmental Damages from Mining and Mineral
Processing Wastes, EPA Office of Solid Waste 1995). Also of concern is
Bevill-exempt waste direct contact and ingestion, when used as soil
supplements, fill materials, and for landscaping purposes.
1. Background
The Subtitle C rules state generally that mixtures of listed wastes
and solid wastes remain hazardous until delisted. Mixtures of
characteristic wastes and solid wastes stop being hazardous when the
resulting mixture no longer exhibits a characteristic, although the
mixing is normally a form of RCRA treatment because it is designed to
render the waste non-hazardous or less hazardous. See generally 261. 3
(a)(2)(iv) and (d) and the definition of ``treatment'' in 260. 10. More
basically, placement of hazardous waste in a storage or disposal unit
is ordinarily regulated under Subtitle C, even if there is also non-
hazardous waste in the unit. RCRA section 3004 (a) and 264. 170 and
264. 300. These rules were promulgated in 1980. EPA did not
specifically address their applicability when the waste being mixed
with a hazardous waste was a waste exempted under the Bevill amendment.
EPA took up that issue in 1989. 54 FR 36592 (September 1, 1989).
EPA stated in that rulemaking that the mixture rule does apply to
mixtures of listed wastes and Bevill-exempt solid wastes. The Agency
further stated that mixtures of characteristic hazardous waste and
Bevill-exempt solid wastes, which mixtures exhibit a characteristic,
would be subject to Subtitle C unless (1) the resulting mixture did not
exhibit any characteristic, or (2) the mixture exhibited a
characteristic imparted to the mixture solely from the Bevill-exempt
portion. 54 FR at 36622 and 36641. The Agency also exempted from any
requirement pertaining to treatment situations where characteristic
wastes were mixed with Bevill-exempt wastes where the resulting mixture
no longer exhibited a characteristic. EPA did so largely to avoid
regulating situations where characteristic mineral processing materials
were added to production processes and mixed with Bevill raw materials
(a situation being addressed elsewhere in this proposal, as discussed
in the preceding subsection). 54 FR at 36622 and 36641.
These rules were challenged and remanded as part of the 1991 Solite
decision, the panel deeming the issue to be controlled by the court's
decision in Shell Oil dealing with the general mixture rule (Solite
Corp. v. EPA, 952 F. 2d 473, 493-94 (D.C. Cir. 1991)). EPA reinstated
this so-called Bevill mixture rule as part of the emergency
reinstatement of the mixture and derived-from rules. 57 FR 7628 March
3, 1992. This reinstatement was later found to be procedurally
defective in Mobil Oil v. EPA, 35 F.3d 579 (D.C. Cir. 1994) where the
court vacated the rules applicable to the mixing of characteristic
hazardous waste with a Bevill waste. EPA in this proposal is responding
to the court's mandate in that opinion.
2. Proposed Amendments to Bevill Mixture Rule
EPA is proposing here to have all normal Subtitle C consequences
apply when hazardous wastes are disposed with, stored with, mixed with
or otherwise combined with Bevill-exempt solid wastes. If a listed
waste is mixed, the resulting mixture is a Subtitle C hazardous waste
unless delisted. This is the same result for mixing a listed hazardous
waste with any solid waste (see 261.3(a)(2)(iv)). If a characteristic
waste is mixed with a Bevill-exempt solid waste, and the resulting
mixture exhibits the characteristic of the hazardous waste, the
resulting mixture would be a Subtitle C hazardous waste. If the
resulting mixture does not exhibit a characteristic or exhibits only
the characteristic of the Bevill waste, the activity would be treatment
normally requiring some type of RCRA control. Moreover, the unit to
which the characteristic hazardous waste (i.e. the non-Bevill waste) is
added would be a regulated unit due to the initial placement of
hazardous waste ^{17, as well as by virtue of the treatment
activity.

\17\ See, e.g., Chemical Waste Management v. EPA, 976 F. 2d at
20 n. 4.
---------------------------------------------------------------------------

EPA is taking this position so that Bevill-exempt wastes are not
used as a means for regulated hazardous wastes to avoid the
Congressionally prescribed controls for hazardous wastes. The Bevill
exemption is not meant to provide a harbor for other hazardous wastes
and EPA is concerned about the degree of mixing that occurs for some
mineral sectors (see Mineral Processing Facilities Placing Mixtures of
Exempt and Non-Exempt Wastes in On-Site Waste Management Units; Human
Health and Environmental Damages from Mining and Mineral Processing
Wastes, EPA Office of Solid Waste 1995) EPA Office of Solid Waste
1995). The Agency is, of course, altering somewhat its 1989 position
which allowed some mixed characteristic/Bevill-exempt mixtures to avoid
Subtitle C consequences, but, as explained above, the Agency did so
largely to allow characteristic mineral processing secondary materials
to be mixed in

[[Page 2353]]
Bevill process units. The Agency is addressing this situation directly
in today's proposal in the provisions dealing with solid waste
classification issues. The remaining situations deal with classic waste
disposal, storage, treatment, or mixing, without any nexus to recycling
or production, and the Agency is convinced that it is inappropriate for
the Bevill exemption to apply outside the Bevill context in such
circumstances.
EPA also notes that the mixing principles proposed here are
consistent with the boiler/industrial furnace rules dealing with co-
processing of hazardous waste fuels and Bevill raw materials, and
subsequent classification of resulting wastes. As discussed earlier,
the Agency there adopted a test whereby resulting wastes would retain
Bevill status if they were not significantly affected as a result of
the co-processing. See 266.112 and section II.C above. That situation,
however, does not involve mixing of wastes, but mixing of treatment
residue (the hazardous waste fuel combustion residue) with raw
materials in a production process (whose air emissions, moreover, are
regulated under Subtitle C standards). The situation in the present
proposal is simple mixing of a hazardous waste with another waste, and
none of the competing considerations raised by co-processing/recycling
situations apply.

Examples

The following examples illustrate how the proposed mixture
principle would apply.
Example 1: Facility A generates F001 listed solvents which it mixes
with a solid waste that has Bevill-exempt status.
The resulting mixture is a Subtitle C hazardous waste unless and
until it is delisted. The unit where the wastes are combined is a
Subtitle C regulated unit.
Example 2: Facility B generates a characteristic ignitable solvent
which it adds to a surface impoundment containing solid waste that has
Bevill-exempt status and also exhibits the toxicity characteristic for
lead. The resulting mixture exhibits the toxicity characteristic for
lead but is not ignitable.
The addition of the ignitable waste to the impoundment makes the
impoundment a regulated unit. It is engaged in both treatment (removal
of the ignitability characteristic) and disposal (the initial placement
of the ignitable waste; see RCRA section 3004 (k)). The impoundment
would thus have to obtain a Subtitle C permit to operate. In addition,
land disposal restriction requirements would apply to the placement of
the ignitable waste in the impoundment. The remaining wastes in the
unit retain their Bevill status because they do not exhibit the
characteristic property of the non-Bevill waste.
Example 3: Facility C, a mineral processing facility, generates a
characteristic metal-bearing secondary material exhibiting the toxicity
characteristic for lead which it sends to a beneficiation operation
where it is co-processed with beneficiation raw materials. The
resulting waste exhibits the same characteristic.
The resulting waste would likely be a Bevill waste exempt from
Subtitle C requirements (assuming legitimate material recovery is
occurring). Under this proposal, so long as the beneficiation process
utilizes greater than 50% Bevill raw materials for its input, the
resulting wastes retain Bevill status provided the resulting wastes are
not significantly affected by the contribution of the non-Bevill feed.

E. Re-mining Previously Generated Mineral Processing Wastes

EPA believes that among the positive effects of this proposal would
be to encourage the ``re-mining'' of previously generated mineral
processing wastes--that is, the excavation of such wastes from disposal
sites (including remediation sites) for purposes of mineral recovery.
Many of the 60 or more mine and mineral processing sites on the
National Priorities List could reduce costs of remediation by re-
mining. Such recovery would promote the statutory goals of less land
disposal, increased material recovery, and also proper waste treatment
(since the treatment standards for most mineral processing wastes are
based on performance of High Temperature Metal Recovery processes such
as smelting). The reason re-mining could be encouraged is that the
previously disposed mineral processing materials would not be solid
wastes once they are excavated for purposes of legitimate recovery by
mineral processing or beneficiation processes, provided they satisfy
the same conditions that a newly-generated secondary material from
mineral processing would satisfy. See also 261.1(c)(8) (stating that a
material that is speculatively accumulated need not be considered a
solid waste any longer ``once they are removed from accumulation for
recycling'').
EPA notes further that excavation of wastes would not render the
historic disposal unit subject to RCRA requirements. See 53 FR at 51444
(Dec. 21, 1988) (movement of waste from one unit to another does not
subject the initial unit to land disposal restriction requirements); 55
FR at 8758 (same); Letter from Lisa K. Friedman, Associate General
Counsel Solid Waste and Emergency Response Division to Richard Stoll
(Sept. 5, 1990) (indicating that under the same reasoning movement of
waste from one unit to another, by itself, does not trigger RCRA
permitting requirements for the initial unit).^{18 EPA notes that
some questions have been raised about the scope of EPA's discussion of
``active management'' in the preamble to the Sept. 1, 1989 rule. In
that discussion, EPA described some activities that could subject
existing waste management units containing non-Bevill wastes to
Subtitle C. 55 FR at 8755; 54 FR at 36597. The 1989 preamble did not
specifically address the question of whether removal of some waste from
an existing unit subjects the waste remaining in the unit to Subtitle C
regulation. EPA is clarifying that the Agency's position, as discussed
above, is that removal of waste from such a unit does not constitute
``disposal'' for purposes of triggering Subtitle C regulation, and the
language of the 1989 preamble, although somewhat unclear, should be
read to be consistent with EPA's statements in the NCP preamble on this
point.

\18\ A copy of this letter and related correspondence has been
placed in the administrative record for this proposed rule.
---------------------------------------------------------------------------

III. Mineral Processing Wastes Covered by This Rule

The next threshold issue for determining the scope of the proposed
LDR prohibitions is whether wastes come from mineral processing
operations rather than beneficiation operations. As discussed earlier,
the only wastes whose Bevill status EPA reexamined in 1989 under the
high volume/low hazard benchmark were wastes from mineral processing;
all beneficiation wastes consequently retained Bevill status. See
section I.A. above. Thus, the only wastes that were newly identified
^{19 as hazardous in that rulemaking, and hence subject to the LDR
prohibitions proposed today, are those from mineral processing.

\19\ EPA did not list any additional wastes from the mineral
processing sector. Hence, mineral processing wastes ineligible for
Bevill status as a result of the 1989 rule would be hazardous only
if they exhibit a characteristic. This is why the text refers only
to ``identified'' hazardous wastes.
---------------------------------------------------------------------------

The issue addressed here is determining which wastes from the metal
recovery sector come from mineral processing operations and which from
beneficiation activities. EPA

[[Page 2354]]
established the broad standard for making this determination in the
1989 rule (see 54 Fed. Reg. 36592, 36616-20 codified at 261.4(b)(7)).
In essence, beneficiation operations typically serve to separate and
concentrate the mineral values from waste material, remove impurities,
or prepare the ore for further refinement. Beneficiation activities
generally do not change the mineral values themselves other than by
reducing (e.g., crushing or grinding), or enlarging (e.g., pelletizing
or briquetting) particle size to facilitate processing. A chemical
change in the mineral value does not typically occur in beneficiation.
Mineral processing operations, in contrast, generally follow
beneficiation and serve to change the concentrated mineral value into a
more useful chemical form. This is often done by using heat (e.g.,
smelting) or chemical reactions (e.g., acid digestion, chlorination) to
change the chemical composition of the mineral. In contrast to
beneficiation operations, processing activities often destroy the
physical and chemical structure of the incoming ore or mineral
feedstock such that the materials leaving the operation do not closely
resemble those that entered the operation. Typically, beneficiation
wastes are earthen in character, whereas mineral-processing wastes are
derived from melting or chemical changes.
EPA is not reopening this standard here. What EPA has done since
the 1989 rule, however, is to examine mineral recovery operations, and
evaluate the status of each waste generated by the process pursuant to
the general test for distinguishing mineral processing from
beneficiation. EPA's tentative conclusions--including process
descriptions for each of the 41 mineral sectors, description of each
waste generated from the process, and description of why EPA considers
each waste to be from mineral processing or from beneficiation based on
the application of the existing narrative test--are set out in the
report ``Identification and Description of Mineral Processing Sectors
and Waste Streams'', EPA Office of Solid Waste 1995, which is part of
the administrative record for this proposal.
EPA solicits comment on this document. Comments should address the
factual particulars on which EPA's tentative conclusion is based. EPA
also notes that it has not determined whether or not to consider the
factual determinations to be final and binding Agency action when this
rule is finalized. The alternatives, on which EPA solicits comment, is
to either view each waste-by-waste determination set out in the
Background Document as a final, binding Agency determination of whether
the waste is from mineral processing or beneficiation, or to consider
the conclusion as guidance, and therefore advisory and not absolutely
controlling if applied in an individual context such as an enforcement
proceeding. A possible reason to prefer this latter approach is not to
deprive decision-makers of flexibility in evaluating and classifying
the complicated factual circumstances relating to particular
wastestreams. On the other hand, final classification after notice and
comment would produce certainty and also avoid the possibility of
inconsistent determinations. If the Agency decides to make these
classifications final and binding determinations, the final rule will
contain appropriate regulatory provisions reflecting these decisions.
The Agency also cautions that this document should not be construed
to be an exclusive list of mineral processing and associated
wastestreams; other types of mineral processing wastes may exist. Thus,
the omission of a wastestream in this background document does not
relieve the generator from the responsibility for correctly determining
whether each of its particular wastes is covered by the Bevill
exemption based on the narrative criterion in 261.4(b)(7) for
distinguishing mineral processing from beneficiation.

IV. Responses to Court Remands on Mineral Processing Wastes

A. Applicability of the Toxicity Characteristic Leaching Procedure
(TCLP) to Mineral Processing Wastes

The Agency proposes to continue using the TCLP (SW-846 Test Method
1311) as the basis for determining whether mineral processing wastes
and manufactured gas plant wastes are hazardous by the TC, and has
developed a record supporting this position.
1. Introduction
When the Agency promulgated the TCLP method for testing whether
wastes exhibit the toxicity characteristic, the applicability of the
TCLP test to mineral processing wastes was challenged in Edison
Electric Institute v. EPA, 2 F.3d 438 (D.C. Cir. 1993) (``Edison'').
The Court held that the information in the record at the time was
insufficient to show a rational relationship between the TCLP and the
mismanagement scenario for mineral processing wastes.
In its remand, the Court did not rule that the Agency must
demonstrate that mineral processing wastes are typically or commonly
disposed in a municipal solid waste landfill (MSWLF). Rather, the Court
held that the Agency must at least provide some factual support that
such a mismanagement scenario is plausible (2 F.3d at 446-47). The
Agency is addressing this remand in today's proposed rule because any
applicable land disposal restrictions would have little meaning unless
the Agency has a basis for determining whether these mineral processing
wastes are hazardous and therefore subject to the restrictions.
2. Agency Response to the Edison Electric Institute Remand
Under the court's ruling, the application of the TCLP test to
mineral processing wastes is appropriate if the evidence available to
EPA shows that disposal of such wastes in municipal solid waste
landfills is a ``plausible'' mismanagement scenario (not necessarily
requiring that it be typical or common) 2 F.3d at 446. The Agency
believes that current information is sufficient to justify applying the
TCLP to all mineral processing wastes, and is proposing today to
reaffirm its original position that the TCLP is appropriately applied
to mineral processing wastes.^{20

\20\ The court did not vacate any part of the TCLP rule, but
simply remanded it to the Agency. Therefore, no change in the
regulatory text is needed to leave the rule in effect.
---------------------------------------------------------------------------

EPA's research demonstrates that mineral processing waste may
plausibly be mismanaged in ways that are similar to that described in
the Agency's general mismanagement scenario that forms the basis for
the TCLP test (i.e., co-disposal in an unlined municipal solid waste
landfill generating mildly acidic leaching medium). (See Applicability
of the Toxicity Characteristic Leaching Procedure to Mineral Processing
Waste, EPA Office of Solid Waste 1995). The Agency recognizes that
mineral processing wastes may be managed in monofills at mineral
processing facilities; however, as the Court noted, it is sufficient if
co-disposal with municipal solid wastes (MSW) is simply a plausible
mismanagement scenario (2F.3d at 446). The TCLP is designed to ensure
that waste does not pose a risk of present or potential substantial
hazard even if mismanaged.
In an earlier rulemaking, the mining industry contended that
mineral processing wastes would not be disposed in MSWLFs because they
are generated in volumes too large to make such disposal practical. 54
FR 36592, 36600-36603 September 1, 1989. However, information now in
the record shows that some mineral processing

[[Page 2355]]
wastes are generated in very low volumes, (Applicability of the
Toxicity Characteristic Leaching Procedure to Mineral Processing Waste,
EPA Office of Solid Waste 1995), and indeed, the truly high volume
mineral processing waste were accorded Bevill status in the 1989 rule.
While some mineral processing wastes are generated in large volumes and
disposed on-site as industry contends, the Agency has found that some
mineral processing wastes are placed in dumpsters, or similar
containers, and shipped off-site for commercial disposal. Accordingly,
disposal in MSWLFs is entirely plausible.
Furthermore, EPA now has substantial direct evidence of actual
disposal of mineral processing wastes in MSWLFs. In response to the
Court's remand, the Agency performed a literature search to identify
potential cases of co-disposal of mineral processing wastes in MSWLFs,
and found a number of cases of co-disposal throughout the country. This
should not be a surprise because these mineral processing sites are
spread out across the country, and many are located within highly
populated areas. These cases include, but are not limited to, co-
disposal of mineral processing wastes from the refining of alumina,
copper, gold, ferrous metals, lead, silver, and zinc. Such wastes have
been disposed in various states throughout the United States,
representing all geographic and climatic regions. The Agency also found
several cases where manufactured gas plants wastes were disposed in
MSWLFs. (See Applicability of the Toxicity Characteristic Leaching
Procedure to Mineral Processing Waste, EPA Office of Solid Waste 1995).
The Agency found additional cases of possible co-disposal of
mineral processing wastes with MSW, even though there was uncertainty
as to whether the waste originated from a non-exempt mineral processing
operation. The uncertainty is due, in part, to inconsistent terminology
applied to mineral wastes, and to the fact that these wastes often
become indistinguishable from other soil and debris in MSWLFs.
Documentation from landfill operators and regulators cleaning up
contaminated landfills typically does not distinguish among regulatory
terms such as ``beneficiation,'' ``exempt'' and ``nonexempt'' mineral
processing, and ``primary'' and ``secondary'' mineral wastes. Rather,
generic terms describe such materials as flue dust, slag, and tailings.
The wastes thus appear mineral processing in origin. The Agency found
cases where each of these terms were used to describe wastes found in
MSWLFs. (See Applicability of the Toxicity Characteristic Leaching
Procedure to Mineral Processing Waste, EPA Office of Solid Waste 1995).
While there is some uncertainty as to the origin of such wastes, there
is at least a significant possibility that they are from primary
mineral processing facilities. EPA believes that this information
should not be ignored, but rather should be considered in conjunction
with the other evidence of known co-disposal, to assess the likelihood
that mineral processing wastes are exposed to the type of landfill or
landfill-like leaching medium replicated in the TCLP.
In addition to the above cases, the Agency has evidence that
mineral processing wastes have been co-disposed with plant trash and
other miscellaneous solid wastes in on-site landfills. In some cases,
these landfills accepted MSW from nearby communities. Again, the type
of leaching medium generated would have the properties modelled by the
TCLP. In addition, analysis of data submitted by mineral processing
facilities in the Agency's 1989 National Survey of Solid Wastes from
Mineral Processing Facilities reveals several cases in which survey
respondents reported disposing mineral processing wastes with other
solid wastes in landfills or other land-based units. All of the
literature searches, survey analysis, and supporting information are
located in the TCLP Technical Background Document in the RCRA docket
for public review.
3. The Synthetic Precipitation Leaching Procedure (SPLP)
Although the Agency believes that the TCLP test is an appropriate
test for assessing the toxicity of mineral processing wastes, EPA
acknowledges that industry has raised concerns about this test. The
mining industry contends that the TCLP test mobilizes specific metals
in an atypical fashion. Further, industry claims that the SPLP test
method 1312 is a more appropriate test for mineral processing wastes.
See American Mining Congress (AMC) Comments on LDR Phase II RCRA docket
dated March 17, 1986. AMC contends that mine waste piles are not
usually acidic in nature; nor are they exposed to organic acids. AMC
argued that acetic acid used in the TCLP test was highly aggressive in
solubilizing lead, and the use of acetic acid would seriously overstate
the potential of such materials to leach lead into the environment.
AMC also contends that under the Extraction Procedure test (the
previous test used by the Agency to evaluate a wastes' toxicity),
companies could use the Structural Integrity Procedure (SIP) for
monolithic wastes and its use was more consistent with the large size
of mineral processing wastes rather than grinding down wastes to meet
the size reduction requirements of the TCLP. In AMC's July 24, 1992
comments on 55 FR 21450, industry indicated that Standard Method 1312
could be modified for use on mineral processing wastes if: 1) different
leach media were developed for wastes generated east and west of the
Mississippi, and 2) abandon the size reduction requirement.
At this time, EPA does not have enough information to fully
evaluate the merits of AMC's claims. The SPLP test was used, in
addition to relaxing the corrosivity standard by one order of magnitude
on each end of the pH scale, to determine which large volume/low
toxicity (special) mineral processing wastes to set apart from all
other mineral processing wastes. 54 FR 15316, 15340 (April 17, 1989).
These relaxed standards were used only as a screening tool to determine
a low hazard criteria for large volume mining waste. 54 FR 36592
(September 1, 1989). In this final rule on the Bevill exclusion, the
Agency stated that the SPLP test was ``solely a preliminary screening
device to determine which mineral processing wastes are special wastes,
and will not be used in determining which wastes will subsequently be
regulated under Subtitle C.'' 54 FR at 36597. In this same rule,
commenters noted that EPA should not replace the TCLP test with the
SPLP to screen mineral processing wastes because the Agency had not
demonstrated that the EP and TCLP significantly overestimated the
leaching of metals from mineral processing wastes.
TCLP is the Agency's method of simulating the movement or leaching
from waste management units to groundwater, based on extensive research
(e.g., lysimiter testing) simulating landfill conditions. When the EPA
promulgated the TCLP (see 55 FR 11798, March 29, 1990), the Agency was
responding to the Congressional directive to address the leaching of
organic compounds, particularly volatiles, and to improve the
groundwater model and operational shortcomings of the EP, which was in
place prior to 1990. (See 55 FR 11800). The 1990 final rule completed a
thorough evaluation of issues surrounding the appropriate test, based
on a proposal (June 13, 1986) and a number of supplemental notices, as
well as a related land disposal restrictions notice. (See 51 FR 24856,
July 9, 1986;

[[Page 2356]]
51 FR 33297, September 19, 1986; 51 FR 40572, November 7, 1986). The
Agency's response to comments on the TCLP are found in the background
document entitled ``Technical and Response to Comment Document for the
TCLP (Method 1311)'' (1989).
EPA has very limited representative data about which mineral
processing wastestreams would fail either a TCLP test or a SPLP test.
(Further discussions on the SPLP test are found in Applicability of the
Toxicity Characteristic Leaching Procedure to Mineral Processing Waste,
EPA Office of Solid Waste 1995). Indeed, the Agency's estimates of
costs cover a wide range in part because of the significant uncertainty
about which wastestreams would be covered by the proposed rule. EPA
solicits data about which wastestreams would fail the SPLP test and
which would fail a TCLP test, about the risks to the environment that
may result from wastestreams that fail one but not both tests under
current management practices, and the costs of subjecting such
wastestreams to the requirements of this proposed rule. EPA solicits
such data because it would permit a better assessment of whether to use
the SPLP test instead of the TCLP test. The Agency is also soliciting
comments on any other tests now in use either by private industry or
the states which may more accurately determine the toxicity of mineral
processing wastes.
4. Request for Comments
The Agency encourages all interested parties to provide comments or
further information on the issues addressed in this section. The Agency
is particularly interested in receiving additional information
indicating whether mineral processing wastes and manufactured gas plant
wastes have been mismanaged and co-disposed with other wastes in MSWLFs
or other environments where they are exposed to a comparable type of
leaching medium. Information is also solicited on the practical aspects
of using the TCLP as a uniform test for determining hazardous
characteristics of mineral processing wastes. The Agency further
requests comments on its discussions of alternative test methods.

B. Remanded Mineral Processing Wastes

The Agency is proposing to revoke the current hazardous waste
listings for five court-remanded smelting wastes. The Agency is also
proposing not to re-list them as hazardous. Instead, the Agency would
regulate them as characteristic wastes.
In 1980, the Agency listed as hazardous eight wastes generated by
primary metal smelters (45 FR 33066, 33124, 47832-34, (1980)). The
Agency listed the wastes pursuant to 40 CFR 261.11(a)(3) because they
contained one or more of the hazardous constituents listed in 40 CFR
261, Appendix VIII. The eight wastes are described as follows:

K064--Acid plant blowdown slurry/sludge resulting from the
thickening of blowdown slurry from primary copper production.
K065--Surface impoundment solids contained in and dredged from
surface impoundments at primary lead smelting facilities.
K066--Sludge from treatment of process wastewater and/or acid plant
blowdown from primary zinc production.
K067--Electrolytic anode slimes/sludges from primary zinc
production.
K068--Cadmium plant leach residue (from oxide) from primary zinc
production.
K088--Spent potliners from primary aluminum reduction.
K090--Emission control dust or sludge from ferrochromium-silicon
production.
K091--Emission control dust or sludge from ferrochromium production.

In October of 1980, in response to congressional enactment of the
Bevill Amendment, the Agency suspended its listing of the eight wastes.
(46 FR 4614-15, 27473 (1980). In 1985, EPA proposed a new rule
relisting six of the eight wastes (50 FR 40292, 40295 (1985)). (The
Agency chose not to propose to re-list two of the original eight
wastestreams (electrolytic anode slimes/sludges, K067, and cadmium
plant leach residue, K068, from primary zinc production) because it
found that industry was routinely recycling these secondary materials
in an environmentally sound manner.) However, the Agency never
promulgated a final rule based on the 1985 proposal; furthermore, it
withdrew its proposal on October 9, 1986 (51 FR 36233).
In the case of Environmental Defense Fund v. EPA, 852 F.2d 1316
(D.C. Cir, 1988) EPA was ordered to make a final decision regarding
whether to re-list six of the metal smelting wastes that it had
proposed to list in 1985, and to reduce the scope of the Bevill
exemption as it applies to mineral processing wastes. The Agency
complied with this order when it re-listed the six wastes.
The American Mining Congress (AMC) challenged these listings. In
American Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir. 1990) the
Court upheld the Agency's decision to re-list waste K088, spent
potliners from primary aluminum reduction, but found that the Agency's
record for the five remaining waste streams did not adequately address
certain issues raised in comments during the rulemaking. Since the
Court did not vacate the listings, they technically remain in effect.
Having completed further study, the Agency is today proposing to
revoke the five remanded waste listings. Because of changes in the
nature of the wastes generated and the way in which they are managed,
the Agency has determined that they no longer meet the criteria for
listing. Individual wastes of this type will be regulated if they
exhibit a hazardous characteristic.
In determining whether these wastes should continue to be listed,
the Agency applied the criteria specified in 40 CFR 262.11(a), and its
policy on listing discussed most recently at 59 FR 66073-75 (Dec. 22,
1994). As discussed at greater length in the December 22, 1994 Federal
Register, the Agency takes into account factors other than the
characteristics of the waste itself in making a listing decision. Such
factors include (among other things) the quantity of the waste
generated, plausible management scenarios, and the coverage of other
regulatory programs. Where the Agency has information regarding the way
a waste is handled at most of the facilities at which it is generated,
it may do a more refined analysis of plausible management scenarios.
Specifically, the Agency is proposing to revoke the listing for,
and to not re-list: copper acid plant blowdown (K064); surface
impoundment solids at primary lead smelters (K065); acid plant blowdown
from primary zinc production (K066); emission control dust and sludge
from ferrochromium-silicon production (K090); and emission control dust
or sludge from ferrochromium production (K091). A description of the
current management of these wastes and the rationale for this proposal
is in the RCRA docket for this proposed rule.
The Agency encourages all interested parties to provide comments on
the issues pertaining to the listing revocations, and decision not to
re-list, these wastes.

C. Lightweight Aggregate Mineral Processing Wastes

1. Background
The Agency is proposing that air pollution control dust and sludge
from the production of lightweight aggregate be classified as a mineral
processing waste that is no longer eligible for the Bevill exemption.
Lightweight aggregate air pollution control (APC) dust and sludge,
was one of many mineral processing wastes that was made conditionally
exempt from

[[Page 2357]]
RCRA Subtitle C requirements under the 1980 Bevill Amendment to RCRA.
In 1990, following more detailed study of the generation rates for this
waste, the Agency determined that it did not qualify for the Bevill
exemption (55 FR 2322, 2340, January 23, 1990). In 1991, the Federal
Appeals Court directed the Agency to reconsider, after providing notice
and soliciting comments, whether these wastes qualify for the Bevill
exemption. (Solite Corporation v. EPA, 952 F.2d at 500. In today's
rule, the Agency is reexamining and soliciting comments on whether
lightweight aggregate APC dust and sludge is eligible for coverage
under the Bevill exemption.
2. Agency Response to the Remand
For purposes of EPA's 1989 and 1990 Rules concerning Bevill
eligibility for mineral processing wastes, high volume is defined as
greater than 45,000 metric tons per year, per facility, for a solid
waste, or 1,000,000 metric tons per year, per facility, for a liquid
waste, averaged across all facilities generating a particular waste. To
determine whether APC dust and sludge from lightweight aggregate
production satisfied the high volume criterion, the Agency analyzed
data from its 1989 National Survey of Solid Wastes from Mineral
Processing Facilities (SWMPF Survey) and data from public comments
submitted by affected companies (e.g., Solite). These methods and
analysis are available for public review in the RCRA docket (see
Lightweight Aggregate Production and Air Pollution Control Wastes, EPA
Office of Solid Waste 1995).
None of the methods used resulted in a volume estimate that is
greater than 45,000 metric tons per year, the high volume criterion for
solid special mineral processing wastes. SWMPF Survey data from two
Confidential Business Information (CBI) facilities have been included
in a separate analysis using all methods. The results, which remain
confidential, are not substantially different than the results
presented previously. Based on this analysis, the Agency tentatively
finds that APC dust and sludge from lightweight aggregate production is
not a high volume waste and so does not qualify for the Bevill
exemption. Therefore, the Agency is proposing that these wastes be
classified as a mineral processing wastes that are no longer eligible
for the Bevill exemption.
These wastes are alternatively used as building materials, recycled
back into the process, or land disposed. Lightweight aggregate APC dust
and sludge seldom fail the TCLP, thus they are usually not
characteristic hazardous wastes. Further, the Agency believes this rule
will not impose significant regulatory costs on the Lightweight
Aggregate sector since much of the APC dust and sludge is no longer
generated due to process changes. (See Lightweight Aggregate Production
and Air Pollution Control Wastes, EPA Office of Solid Waste 1995.).
3. Request for Comments
The Agency encourages all interested parties to review the record
of the Agency's analysis in the RCRA docket and provide comments or
further information on the data, methodology, and findings related to
this issue.

D. Mineral Processing Wastes From the Production of Titanium
Tetrachloride

The Agency is proposing that iron chloride waste acid from the
production of titanium tetrachloride be classified as a mineral
processing waste that is not eligible for the Bevill exemption. Waste
acid from the production of titanium tetrachloride was one of numerous
mineral processing wastes that was conditionally exempt from RCRA
Subtitle C requirements under EPA's initial interpretation of the
Bevill amendment. In 1989, following a study of the waste's
circumstances of generation, the Agency determined that titanium
tetrachloride waste acid did not qualify for the Bevill exemption
because it was a mineral processing waste, not a beneficiation waste,
and did not meet the high volume/low hazard criteria established by EPA
for determining those mineral processing wastes subject to the Bevill
exemption. (See 54 FR 36592, September 1, 1989.)
One producer of titanium tetrachloride, DuPont, requested a
determination that waste from its production process be categorized as
beneficiation waste, on the ground that its process was different from
the purely mineral processing processes used by other manufacturers and
included a beneficiation step as well which generated the wastes at
issue. However, EPA chose to clarify DuPont's waste acids as mineral
processing wastes. DuPont challenged this decision, and the Court
remanded EPA's decision for further consideration on the grounds that
the Agency's explanation for its decision was unclear. Solite
Corporation v. EPA, 952 F.2d at 494-95. The Agency is today responding
to the Court's directive to clarify its rational for determining
whether this waste is properly classified as a beneficiation or mineral
processing waste.
EPA established the broad standard for making this determination in
the 1989 rule (see 54 Fed. Reg. 36592, 36616, September 1, 1989). As
described in section III above, beneficiation operations typically
serve to separate and concentrate the mineral values from waste
material, remove impurities, or prepare the ore for further refinement.
Beneficiation activities generally do not change the mineral values
themselves other than by reducing (e.g., crushing or grinding), or
enlarging (e.g., pelletizing or briquetting) particle size to
facilitate processing. A chemical change in the mineral value or the
waste product does not typically occur in beneficiation. Mineral
processing operations, in contrast, generally follow beneficiation and
serve to change the concentrated mineral value into a more useful
chemical form and change the chemical composition of the waste. In
contrast to beneficiation operations, processing activities often
destroy the physical structure of the incoming ore or mineral feedstock
such that the materials leaving the operation do not closely resemble
those that entered the operation. Typically, beneficiation wastes are
earthen in character, whereas mineral-processing wastes are derived
from melting or other chemical changes. EPA is not reopening this
standard here. EPA is only applying the existing Bevill criteria to
this particular set of facts.
The Du Pont Corporation operates a chloride-ilmenite process at
three of its plants in which low-grade ilmenite ore is utilized to
produce high-purity titanium tetrachloride. Because ilmenite contains
significant quantities of iron, use of this process requires removal of
the iron from the titanium feedstock, in the form of iron chloride. Du
Pont contends that the iron chloride waste is a beneficiation waste
because it is generated through the removal of iron from the ilmenite
ore before the physical structure of the ore is destroyed in the
subsequent chlorination step of the chloride-ilmenite process. This
process, conducted by Du Pont at its Edgemoor, Delaware and New
Johnsonville, Tennessee plants and at its DeLisle plant in Pass
Christian, Mississippi, is described in more detail in the background
document in the RCRA docket. Du Pont conducts a similar process in
Antioch, California using rutile, which has a lower iron content than
ilmenite.
There are four sequential steps in Du Pont's chloride- ilmenite
process, the first two of which occur within the same vessel: (1)
chlorine gas reacts with iron from the ilmenite ore to form iron
chloride gas; (2) chlorine gas reacts with titanium in the ilmenite ore
to form titanium tetrachloride gas; (3) the iron chloride is condensed
and separated to

[[Page 2358]]
form a waste iron chloride acid; and finally (4) the titanium
tetrachloride is condensed and processed to form titanium oxide
pigment, the saleable product. The issue remanded in Solite is whether
the iron chloride acid waste, which is produced in gaseous form at step
(1) but removed from the vessel as a liquid at step (3), is a mineral
processing waste that does not qualify for the Bevill exemption, or a
beneficiation waste covered by the Bevill exclusion under 40 CFR
261.4(b)(7).
After further review of this issue, the Agency today proposes to
reaffirm its initial finding that these wastes are mineral processing
wastes. The distinction between beneficiation and mineral processing
for the chloride-ilmenite process is not an obvious one, as the Solite
court recognized. However, after carefully reviewing all the
information provided by DuPont, EPA continues to believe that the waste
is most accurately characterized as a mineral processing waste.
Because, in the earlier rulemaking, EPA and DuPont both characterized
the chloride-ilmenite process as involving both beneficiation and
mineral processing, the court's analysis took the same approach. The
court found no explanation in the record as to why this particular
mixed process should be characterized, as a whole, as mineral
processing rather than beneficiation, and remanded to EPA for a fuller
explanation or reconsideration. Since the Agency now believes that it
is more accurate to state that no beneficiation occurs in this process
at all, that issue is no longer the focus of analysis.
The type of operation used by Du Pont in the chloride-ilmenite
process, chlorination, must be evaluated in light of EPA's definitions
of mineral beneficiation and processing. Indications of mineral
processing are found when there are significant chemical changes in the
ore being processed and the products and waste streams from the
operation are significantly different from the ore entering the
operation. Beneficiation, in contrast, usually involves non-chemical
changes such as crushing and grinding to concentrate the ore (see 54 FR
36618, September 1, 1989). While some processes that change the
chemical character of the ore have been included in the regulatory
definition of ``beneficiation'', these are relatively few and are
specifically enumerated in that rule. (See 54 FR 36618-36621, September
1, 1989 and 40 CFR 261.4(b)(7)).
In addressing this issue previously, EPA assumed that at least some
of the steps in the chloride-ilmenite process involved beneficiation.
The court's analysis reflected this assumption and focused on how a
process that involved both beneficiation and mineral processing steps
should be characterized for regulatory purposes. However, the Agency
has reexamined the sequence of operations and now believes this
conclusion was inconsistent with EPA's general approach to defining
beneficiation. Specifically, even the first step in the process,
chlorine gas reaction with iron from the ilmenite ore to form iron
chloride gas, is best characterized as a mineral processing--not a
beneficiation operation. In DuPont's process, chlorine gas is reacted
with the iron in the ore in the first step to produce a new and
significantly different chemical compound than the feedstock ore,
namely liquid iron chloride waste acid. The iron is more than simply
removed; the solid iron in the ore undergoes a chemical reaction with
the chlorine gas to form a new compound, namely iron chloride gas. This
reaction is the beginning of a significant change to the physical and
chemical structure of the ore. This change is similar to the reaction
of chlorine gas with solid titanium to form titanium tetrachloride gas.
The reaction of chlorine gas with both iron and titanium, which occur
in the same vessel, destroys the physical and chemical nature of the
ore. In fact, these same reactions occur at Du Pont's Antioch facility
and generates a similar iron chloride waste acid that DuPont is not
claiming to be a beneficiation waste (Identification and Description of
Mineral Processing Sectors and Waste Streams, EPA Office of Solid Waste
1995).
The iron chloride waste is more similar to such typical mineral
processing wastes as acid plant blowdown than to classic beneficiation
wastes such as mill tailings. In terms of mineral processing, the
removal of iron from a titanium ore is no different than the removal of
lead and other compounds during the smelting of a copper ore which
produces the acid plant blowdown.
It is correct that some processes that involve a chemical change,
such as heap leaching, are treated as beneficiation. However, such
processes generally result in a waste stream that is very similar in
nature to ore or mill tailings. While such processes also generate a
liquid, metal-bearing material that is wholly unlike the original ore,
that material is not waste but goes into the production process. In
contrast, the chloride-ilmenite process generates a liquid waste stream
entirely different in character from the ore. The remaining portion of
the ore remains in process (and then only for the short period of time
before it becomes a gas). Since it is the waste that is the principal
source of environmental concern, it is useful in drawing the line
between beneficiation and mineral processing to consider whether the
waste, as opposed to the material remaining in production, is generally
similar in nature to the original ore. Under that analysis, the DuPont
process would not appear to be beneficiation.
Furthermore, as stated earlier, the rule that defines
``beneficiation'' enumerates a limited number of processes that
constitute beneficiation even though they do involve some chemical as
well as physical change to the ore. However, the initial step of the
chloride-ilmenite process is not one of those processes. This step
involves chlorination. The rule states that chlorination constitutes
beneficiation only when it is used in preparation for a leaching
operation that does not produce a final or intermediate product that
does not undergo further beneficiation or processing (see 40 CFR
261.4(b)(7)). In DuPont's case, the first step of the operation is
followed not by a leaching step but by further chlorination, which in
turn continues to destroy the chemical and physical structure of the
ore. In other words, no part of the production sequence involving the
reaction of ilmenite ore with chlorine in the fluid bed reactor falls
within the definition of beneficiation. Accordingly, all wastes
associated with this sequence are mineral processing wastes. Because
the liquid iron chloride wastes from this operation are not high
volume, whether considered separately or as part of the larger titanium
tetrachloride industry, they are not eligible for the Bevill exemption.
Nevertheless, even if the first step were considered beneficiation,
EPA believes that strong policy reasons exist for treating the wastes
from this particular mixed process as mineral processing wastes. As the
court recognized, a process like DuPont's may not fall neatly into one
category or the other. In such cases, it will only lead to regulatory
uncertainty if it is necessary to try to ascertain which part of a
multi-step process a particular waste derives from (especially where,
as here, the wastes derive from more than one step and are commingled
when they exit the process). The beneficiation-mineral processing
distinction is already complicated when applied to physically distinct
processes, and EPA believes that adding further complications, by
attempting to draw the distinction

[[Page 2359]]
among steps that all occur within the same physical processing unit,
will make such determinations unduly difficult, time-consuming, and
dependent on the precise facts at a particular place and time (e.g.,
the mix of wastes from a process might even vary over time). In such
cases, EPA believes that the overall process should be assessed as a
whole, to determine whether it appears more like beneficiation or like
mineral processing. In this case, the ilmenite enters the process as an
ore, and is completely transformed within a single vessel into two
chlorinated streams (which exit the vessel in gaseous form). This kind
of complete transformation is much more in the nature of mineral
processing than beneficiation. That is, the waste generated from this
chloride-ilmenite reaction is low volume and highly toxic. Furthermore,
as EPA noted in the previous rulemaking, the waste stream at issue is
very similar in content to the waste stream from the ``chloride''
process, which EPA found (without challenge) to be mineral processing.
In the prior rulemaking, DuPont asserted that the first step of its
process was similar in nature to processes used by others for enhancing
the titanium concentration in ilmenite, and that those other processes
were being treated by the Agency as beneficiation. However, those
processes are not before the Agency at this time and without more
detailed information on the processes involved EPA is taking no
position on whether the analysis here might alter its approach to
characterizing those processes and wastes should that question be
presented.
The Agency is proposing that iron chloride waste from the
production of titanium tetrachloride using the chloride-ilmenite
process be classified as a mineral processing waste that is not
eligible for the Bevill exemption. Further, the Agency believes this
rule will not impose significant regulatory costs on the titanium
sector using the ilmenite process since much of the iron chloride acid
wastes are no longer generated due to process changes. (See
Identification and Description of Mineral Processing Sectors and Waste
Streams, EPA Office of Solid Waste 1995). The Agency encourages all
interested parties to provide comments or further information on this
issue.

V. Land Disposal Restrictions for Mineral Processing Wastes

EPA is proposing to apply the existing Universal Treatment
Standards (UTS) to the newly identified mineral processing wastes; i.e.
to the mineral processing wastes that exhibit a characteristic and do
not have Bevill status and are not excluded from being solid wastes due
to recycling. Existing data indicate that these wastes are similar to
those for which the UTS are achievable, and consequently that UTS
fairly reflect the performance of Best Demonstrated Available
Technology for these wastes. See generally ``BDAT Background Document
for Mineral Processing Wastes'' in the docket for this proposed rule.

A. Treatability Data

In developing treatment standards for these wastes, EPA
investigated several sources of treatability data. The primary sources
of data reviewed include sampling data from the Office of Research and
Development, Office of Water, responses (from waste generators), RCRA
Section 3007 requests for information, EPA-sponsored surveys of
facilities in the mining and mineral processing sectors, public
responses to proposed rules on EPA's interpretation of the Bevill
exclusion, and various other literature sources.
EPA also examined the available data and transferability of
treatment data from other metal-bearing wastes. EPA specifically looked
at data for wastes that are comprised primarily of inorganic materials
and that also contained a wide range of metals and/or mixes of metals.
Most of these data are for metal-bearing RCRA hazardous wastes (both
listed and characteristic wastes). Other treatability data involves
contaminated soils from Superfund mining sites.^{21

\21\ Notwithstanding EPA's solicitation of treatment data from
mineral processing wastes (Advanced Notice of Proposed Rulemaking--
Phase IV), EPA presently has limited information on actual treatment
of mineral processing wastes. An elemental phosphorous facility
reported generating four different hazardous process waste streams,
and presented total constituents and TCLP data for these waste
streams. (See ``BDAT Background Document for Mineral Processing
Wastes'' in the docket for this rule.) All four untreated waste
streams exceeded UTS levels and consequently will have to be treated
when this rule is finalized. Treatment data for the characteristic
metals, as well as metals that could be underlying hazardous
constituents, was submitted for 45 samples. All 45 sampling events
met the UTS levels with the exception of one data point (barium
exceeded UTS levels). The detection limit for selenium was above the
UTS level, and consequently could not be evaluated. (See ``BDAT
Background Document for Mineral Processing Wastes'' in the docket
for this rule.
---------------------------------------------------------------------------

Furthermore, to assess the general treatability of the mineral
processing wastes, EPA compared the concentrations of metals in
untreated mineral processing wastes with the untreated concentrations
corresponding to the data used in developing UTS. (See the background
document.) Results of analysis showed that most of the metals were
present at concentrations below the metal levels in the untreated
wastes used to set UTS. Specifically, for all the metals in
wastewaters, almost 90 percent were found to be at levels below those
in the corresponding untreated wastes. Likewise, for metals in
nonwastewaters, more than 80 percent of the concentration data points
were found to be below levels in the corresponding untreated wastes
used to set UTS, with one exception. For thallium, 60 percent of the
data points for untreated mineral processing wastes were above levels
found in the untreated wastes used to develop the thallium UTS. For
this reason, the Agency is concerned that the wastes considered in
developing the thallium UTS may not have reflected treatment of wastes
with significant concentrations of thallium, and solicits data on
potential revisions to thallium standards for mineral processing
wastes.

B. Universal Treatment Standards (UTS)

As stated above, the Agency is proposing to apply UTS to treat the
metal and cyanide hazardous constituents in the newly identified
mineral processing wastes. The nonwastewater treatment standards for 10
of the metals is based on the performance of High Temperature Metal
Recovery (HTMR) processes, and also can be achieved by stabilization.
The standards for arsenic are based on vitrification and the standard
for mercury on roasting or retorting. Cyanide standards can be achieved
by performance of combustion technologies including HTMR.^{22 The
metal UTS for wastewaters were based on chemical precipitation as BDAT.
Depending on the initial concentration of metal constituents in the
wastewater, operating conditions such as retention time, flocculating
agents, reagent concentrations such as iron affect solubility of other
metals, and mixing

[[Page 2360]]
may need to be adjusted to comply with the standards. These high
concentrations are a direct result of the techniques and principles
used to process the minerals. Anions, such as cyanide, have been
specifically selected as part of the mineral processing design in order
to provide the necessary extraction conditions for certain metals and
tend to favor dissolution of some metals over others. Furthermore, EPA
is not precluding the use of metal recovery technologies for
wastewaters, which typically include reverse osmosis, cation exchange,
chelation, solvent extraction, electrolysis, and selective
precipitation.

\22\ Materials being recycled for metal recovery that would be
excluded from being solid wastes under this proposal would normally
be processed in an HTMR type of process (usually smelting). Residues
from that processing thus would likely meet the treatment standards
proposed in this rule.
In addition to the HTMR and stabilization technologies mentioned
in the section discussing TC metals above, several
hydrometallurgical technologies (based primarily on leaching) have
been tested and documented by the Bureau of Mines as capable of
concentrating valuable metals from low-grade ores or from tailings.
The residual (i.e., extracted material) is often then suitable for
further processing. EPA does not currently have a significant amount
of data on leaching recovery processes or other hydrometallurgical
processes for metal-bearing mineral processing residues. Based on
engineering judgment, however, it is likely that these technologies
could be designed such that the residues also could meet UTS.
---------------------------------------------------------------------------

The cyanide wastewater and nonwastewater UTS were based on the
treatment of wastewaters via alkaline chlorination. These standards
were promulgated for total and amenable cyanides. In applying UTS level
wastewater standards to these wastes, EPA notes that metal and cyanide
limits set for this industry under CWA categorical standards are equal
to or less than the UTS.
Mineral processing wastes may also exhibit some of the other
characteristics, usually corrosivity or reactivity. In such cases, the
waste would have to be treated to remove the characteristic property as
well as to treat any underlying hazardous constituents that are present
in treatable concentrations. With respect to treatment of corrosive
mineral processing wastes, EPA has information indicating that recovery
processes such as solvent extraction, crystallization, and incineration
can recover the sulfuric acid for reuse (see ``Treatment Technology
Background Document'' dated January, 1991; also Background Document
supporting BDAT for K061, dated August, 1991). EPA requests comment on
any recovery process for the acidic wastes from mineral processing.
Information submitted should include limitations based on waste
specifications and performance data showing untreated and treated
concentrations of the metal impurities found in these corrosive wastes.
This proposal also covers one further, somewhat anomalously
classified, type of mineral processing waste--newly identified wastes
from manufactured gas plants. During the process of developing the
Phase II rule, EPA received several comments requesting clarification
of the regulatory status of de-Bevilled wastes from manufactured gas
plants. These wastes are considered to be from mineral processing, for
reasons explained in the 1989 regulatory classification rulemaking. 54
FR 36592, 36619 (September 1, 1989). The Agency indicated that these
newly identified wastes would be subject to treatment standards
developed for newly identified mineral processing wastes in this
proceeding. 54 FR at 36624. Today's proposal applies to all of the
hazardous wastes from manufactured gas plants that no longer have
Bevill status. Unlike the other mineral processing wastes, however,
these wastes are primarily organic and thus would be amenable to
treatment by combustion technologies. Since combustion is generally not
a matrix-dependent type of treatment, EPA sees no reason that these
wastes could not be treated to achieve UTS for the contained organic
hazardous constituents.

VI. Capacity Determination for the Newly Identified Mineral
Processing Wastes

A. Introduction

This section summarizes the results of the capacity analysis for
the newly identified mineral processing wastes. For details on data
sources, methodology, and the capacity analysis for the wastes covered
in this proposed rule, see the ``Background Document for Capacity
Analysis for Land Disposal Restrictions, Phase IV--Newly Identified
Mineral Processing Wastes (Proposed Rule).''
In general, EPA's capacity analysis focuses on the amount of waste
to be restricted from land disposal that is currently managed in land-
based units and that will require alternative treatment as a result of
the LDRs. The quantity of wastes that are not managed in land-based
units (e.g., wastewaters managed only in RCRA exempt tanks, with direct
discharge to a POTW) is not included in the quantities requiring
alternative treatment as a result of the LDRs. Also, wastes that do not
require alternative treatment (e.g., those that are currently treated
using an appropriate treatment technology) are not included in these
quantity estimates.
EPA's decision on whether to grant a national capacity variance is
based on the availability of alternative treatment or recovery
technologies. Consequently, the methodology focuses on deriving
estimates of the quantities of waste that will require either
commercial treatment or the construction of new on-site treatment as a
result of the LDRs. Quantities of waste that will be treated adequately
either on-site in existing systems or off-site by facilities owned by
the same company as the generator (i.e., captive facilities) are
omitted from the required capacity estimates.^{23

\23\ Traditionally, capacity analyses have focused on the
demand for alternative capacity once existing on-site capacity and
captive off-site capacity have been accounted for. However, for some
of the wastes at issue in this proposed rule, it may not be feasible
to ship wastes off-site to a commercial facility. In particular,
facilities with large volumes of wastes may not readily be able to
transport their waste to treatment facilities. Alternative treatment
for these wastes may need to be constructed on site.
---------------------------------------------------------------------------

B. Capacity Analysis Results Summary

EPA is considering several regulatory options that may affect the
determination of a national capacity variance for the newly identified
mineral processing wastes. Details of the methodology and estimates of
affected facilities and waste quantities are provided in the capacity
analysis technical background document described above.
EPA estimates that for the regulatory options described previously
for the newly identified mineral processing wastes, few (if any)
facilities or waste quantities will be affected by this rule. This
estimate is based on data indicating that the current predominant
management of these wastes, stabilization, will be adequate for meeting
the proposed treatment standards. Thus, a national capacity variance is
not warranted for all or most of these wastes since ample stabilization
treatment capacity exists. Exceptions appear to be the relatively small
quantities of nonwastewaters with sufficiently high levels of arsenic
or mercury and with certain types of waste characteristics for which
treatments such as vitrification (for arsenic-containing wastes) or
acid leaching/retorting (for mercury-containing wastes) might be
required. Because these treatments do not appear to be commercially
available at this time, EPA is proposing to grant a one-year national
capacity variance for characteristically hazardous arsenic
nonwastewaters and High Mercury Subcategory nonwastewaters (i.e., 260
mg/kg and above total mercury). EPA also is considering to further
define which arsenic wastes would not be amenable to available
treatment to meet the standards, and thus would need the variance. For
example, EPA could use criteria such as concentration (as with mercury
wastes), metal species, and/or waste characteristics.
Because the information on which these proposed variance decisions
are based may be incomplete or dated, EPA requests data on the
generation, characteristics, and management of the newly identified
mineral processing wastes, particularly for any wastes that may pose
unique treatability and/or capacity problems. Furthermore, although EPA
believes that stabilization

[[Page 2361]]
can meet the treatment standards proposed for the majority of these
wastes, EPA encourages the use of recovery technologies where feasible.
EPA requests comments and data on metals recovery processes including
applicability to different waste groups, capacity, and whether
additional time will be needed to construct these processes.
EPA currently does not have data on the quantities of soil and
debris that may be contaminated with newly identified mineral
processing wastes. However, as with other newly identified mineral
processing wastes, few (if any) facilities or waste quantities are
likely to be impacted by the proposed rule. Therefore, EPA is proposing
not to grant a national capacity variance for soil and debris
contaminated with newly identified mineral processing wastes. EPA
requests comment and data on the generation and management of soil and
debris contaminated with newly identified mineral processing wastes.
Finally, despite the uncertainty about quantities of radioactive
wastes mixed with newly identified mineral processing wastes, any new
commercial capacity that becomes available will be needed for mixed
radioactive wastes that were regulated in previous LDR rulemakings and
whose variances have already expired. Thus, EPA has determined that
sufficient alternative treatment capacity is not available for any
newly identified mixed radioactive/mineral processing wastes, and
therefore is proposing to grant a two-year national capacity variance
for these wastes. EPA requests comment and data on the generation and
management of newly identified mixed radioactive/mineral processing
wastes.
EPA notes further that the proposal would encourage recycling of
mineral processing secondary materials through an exclusion from the
definition of solid waste. This should, among other things, reduce the
amount of wastes subject to LDR standards and correspondingly reduce
the necessity of national capacity variances. However, where land-based
process units are involved, the exclusions are conditioned on the
units' satisfying certain criteria in a manner that may require some
time. For example, if a unit must install groundwater monitoring, or
make changes in design, or receive case-by-case approval of alternative
design or operating practices from an authorized state, the changes
could not be made immediately. EPA is not proposing any type of
national capacity variance to accommodate these situations. Because the
portions of the rule dealing with amendments to the solid waste
definition are not being proposed pursuant to HSWA, they would not take
effect immediately in authorized states, and instead would wait on the
authorization process. This could take several years. It is EPA's
initial view that this process would provide sufficient lead time in
authorized states for facilities intending to utilize land-based
process units to adjust their operating practices.

C. Mineral Processing Wastes Injected Into Class I Underground
Injection Wells

Class I injection wells currently receive mineral processing wastes
for which EPA is proposing treatment standards today. The volumes vary
in amount by facility and are all disposed on site. None of these
facilities transport their waste off-site or currently have the
necessary capacity to treat their waste on-site by acceptable means.
Additionally, for those facilities affected by the proposed treatment
standards which are unable to make a successful no-migration
demonstration and/or are unable to meet the requirements of other
proposed options, constructing a treatment facility on-site would
require a significant amount of time. Therefore the Agency is proposing
to grant a two-year national capacity variance for these wastes.
EPA requests comments on this proposed capacity determination. In
particular, EPA requests data on the generation, characteristics, and
management of the wastes injected into Class I wells. In addition, EPA
requests data on the availability of treatment capacity for these
wastes.

Part Two: Other RCRA Issues

I. Exclusion of Processed Scrap Metal and Shredded Circuit Boards
from the Definition of Solid Waste

A. Processed Scrap Metal Being Recycled

1. Summary
The Agency proposes to amend the definition of solid waste by
excluding processed scrap metal being recycled from RCRA jurisdiction.
After further study, the Agency believes that processed scrap metal
being recycled is distinct from other secondary materials defined as
wastes due to established markets for the material's utilization,
inherent positive economic value of the material, the physical form of
the material, and absence of damage incidents attributable to the
material.
2. Background
When EPA amended the definition of solid waste in 1985, the Agency
established RCRA jurisdiction over some secondary materials being
recycled based upon both the type of material and how it was recycled
or managed. See 40 CFR Sec. 261.2(c). As part of the final rule, the
Agency created a classification for scrap metal. 50 FR 614, 624
(January 4, 1985). The Agency defined scrap metal as bits and pieces of
metal parts (e.g., bars, turnings, rods, sheets, wire) or metal pieces
that are combined together with bolts and soldering (e.g., radiators,
scrap automobiles, railroad box cars), which when worn or superfluous
can be recycled. The Agency excluded from the definition of scrap
metal: secondary materials from smelting and refining operations (e.g.,
slags, drosses and sludges), liquid wastes containing metals (e.g.,
spent acids and caustics), liquid metal wastes (e.g., liquid mercury),
and metal-containing wastes with a significant liquid component (e.g.,
spent lead-acid batteries). The Agency distinguished scrap metal from
these other metal-bearing secondary materials because of the
differences between them in physical form, content, and manageability.
Although the Agency included scrap metal in the definition of solid
waste (and hazardous waste if the material exhibits a characteristic of
hazardousness), EPA exempted all scrap metal being recycled from RCRA
Subtitle C regulation as an interim measure to allow the Agency to
study scrap metal management. 50 FR 614, 649; 40 CFR 261.6(a)(3)(iv).
EPA deferred regulating scrap metal being recycled in order to
determine whether RCRA regulation and enforcement of scrap metal would
be feasible and necessary. Based on further study of literature,
databases and consultation with Bureau of Mines commodity trade
specialists, the Agency believes that because processed scrap metal
being recycled is sufficiently commodity-like, regulation of this
material is not necessary. Based on this study and consultation, the
Agency also believes that processed scrap metal being recycled should
be excluded from the definition of solid waste because this type of
material has not been shown to be part of the waste disposal problem.
3. Definition of Processed Scrap Metal
Today's proposal is restricted to scrap metal which has been
processed by scrap metal recyclers to be traded on recycling markets
for further reprocessing into metal end products. Processing of scrap
metal in this context includes: 1) manual or mechanical separation of
scrap metal either into specific scrap categories containing

[[Page 2362]]
different metals (e.g., ferrous and non-ferrous, copper and steel) or
metal and non-metal components (such as shredded steel and fluff), and
2) unit operations such as sintering and melting operations which melt
or agglomerate materials such as drosses and fines into scrap metal. In
the first category, processing includes but is not limited to bailing,
shredding and shearing operations. This category of processing also
includes manual or other separation of unprocessed or partially
processed scrap metal into separate categories to enhance the economic
value of the material. The second category of processing includes unit
operations (such as sintering or melting operations) which change the
physical form of secondary materials into scrap metal for secondary
materials that would not otherwise be scrap metal prior to processing
such as drosses and fines.
Processed scrap metal does not include any distinct components
separated from unprocessed or partially processed scrap metal that
would not otherwise meet the current definition of scrap metal. For
example, processed scrap metal does not include batteries, capacitors
or other liquid-bearing metal articles; fluff or other non-metal
residuals; liquid metals such as mercury or metal-bearing liquids such
as spent caustics and acids, and process secondary materials such as
slags, drosses, ashes and sludges which have a physical form dissimilar
to scrap metal.
The Agency is proposing to exclude processed scrap metal being
recycled from the definition of solid waste because EPA believes that
this type of secondary material is a commodity-like and has not
historically contributed to the waste management problem. Unlike many
other metal-bearing secondary materials, processed scrap metal has
qualities which make it unlikely to contribute to the waste management
problem.
In making this finding, EPA has considered the following factors
relevant in determining whether or not processed scrap metal is
commodity-like. These factors are the same criteria listed in 40 CFR
Sec. 260.31(c) providing a variance from the definition of solid waste
for materials that have been reclaimed but must be reclaimed further):
1) the degree of processing the material has undergone and the degree
of further processing that is required, 2) the value of the material
after it has been reclaimed, 3) the degree to which the reclaimed
material is like an analogous raw material, 4) the extent to which an
end market for the reclaimed material is guaranteed, 5) the extent to
which a material is managed to minimize loss.
Regarding the first factor or the degree of processing, processed
scrap metal as defined in this proposal has been separated, melted or
otherwise processed to add value or improve handling qualities. This
processing is necessary for the purpose of adding value, meeting
product specifications (and subsequent use) and helping to put the
metal into a form to help minimize loss either by removing dispersible
non-metallic components (e.g., removing fluff) or by converting a
dispersible metal (e.g., fines) into a non-dispersible scrap metal
form. Virtually all processed scrap metal undergoes further processing
prior to being manufactured into a consumer article. However, the
economic value added to the processed scrap itself is significant.
With respect to the second factor regarding the value of the
material, processed scrap metal is typically traded nationally and
internationally in established markets for positive economic value
(i.e., the processor is paid by the purchaser for the metal). In
general, processed scrap metal is sold under market specifications for
purity and physical form to ensure efficient recycling of the
material.^{24

\24\ See Institute of Scrap Recycling Industries (ISRI) Scrap
Specifications Circular 1994, Guideline for Ferrous Scrap,
Nonferrous Scrap, Paper Stock, Plastic Scrap. Note: some materials
listed in this circular which are considered scrap metal by ISRI are
not scrap metal under the Resource Conservation and Recovery Act
such as battery plates, drosses and other materials.
---------------------------------------------------------------------------

Regarding the third factor, processed scrap metal is very similar
to analogous raw metal concentrates and intermediates. For example, in
the iron and steel industry, electric arc furnaces (which typically use
processed scrap iron and steel as an input) compete in steel production
with integrated steel facilities (which use basic oxygen furnaces that
typically use iron derived from iron ore as an input). Non-ferrous
processed scrap such as aluminum cans is a significant portion of the
current aluminum market.
Fourth, guaranteed end-markets at smelters, mills and foundries for
processed scrap metal are likely given the economic value added to the
material through processing. Because processed scrap has been sorted,
sized, separated and agglomerated for insertion into a manufacturing
process to produce a metal intermediate or end product, it is likely
that processed scrap metal will continue to be a substitute for raw
material feedstocks. Because analogous raw materials (e.g., ores) are
finite and non-renewable, their decreasing supply will also ensure that
end markets for processed scrap metal remain.
Finally, regarding the extent to which processed scrap metal is
managed to minimize loss and release to the environment, available
information indicates that processed scrap metal has little potential
for release because it is usually in a solid non-dispersible form and
is managed to minimize loss because of its economic value. The Agency's
review of damage incidents on both the Superfund (RODS) database and
Damage Incident Data Base (DIDB) related to hazardous waste recycling,
consultation with Bureau of Mines commodity trade specialists and
relevant literature and on-line searches failed to reveal any incidents
where releases to the environment of hazardous constituents were
attributable to the management of processed scrap metal itself. In this
review, the Agency assessed the potential of any hazardous constituents
in processed scrap to be released to the environment during its
management prior to final recovery.
However, EPA's review did indicate that materials generated from
the recycling of unprocessed scrap were mismanaged and have
historically contributed to the waste management problem. These
materials include batteries, ash, and other residuals from processing
scrap metal. Many of these residuals are subject to full or partial
regulations under RCRA Subtitle C.^{25 The Agency is continuing to
evaluate whether or not the regulation of unprocessed scrap is
necessary. For the time being, we are proposing to continue to assert
RCRA jurisdiction for unprocessed scrap metal being recycled while
maintaining the regulatory exemption. The Agency solicits comment on
the availability of data for evaluating risks to human health and the
environment potentially posed by unprocessed scrap metal destined for
reclamation.

\25\ For example, spent lead-acid batteries are subject to
specific standards when destined for metal recovery. See 40 CFR Part
266 Subpart G.
---------------------------------------------------------------------------

B. Shredded Circuit Boards

EPA is also proposing today to exclude shredded circuit boards
destined for metal recovery that are managed in containers during
storage and shipment prior to recovery from the definition of solid
waste in order to facilitate recovery of this material.
Circuit boards destined for recovery are often processed through
shredders, hammer mills and similar devices to decrease the size of the
boards for a

[[Page 2363]]
number of reasons. First, the smaller size improves the handling of the
material. Shredded circuit boards are often shipped in boxes, bulkbags,
supersacks, drums and other containers. Shredding increases the bulk
density (e.g. the number of boards per container) of the shipment.
Second, shredding improves assaying of circuit boards for precious
metal (gold, platinum, silver) or base metal content (copper) by
allowing representative sampling of a commingled pile of many shredded
boards. Finally, shredding circuit boards assists recyclers in
destroying proprietary information in circuit boards received from
customers. This assures customers of protecting business information
that may be in spent circuit boards.
However, shredded circuit boards may not qualify as scrap metal
because the fines that are generated when the boards are shredded do
not meet the current regulatory definition of scrap metal (scrap metal
being recycled is currently exempt from RCRA regulation). These fines
are dispersible and so are commingled with the chunks of shredded
circuit board and must stay commingled in order to allow an accurate
assay of a sample of the shredded boards.
Although shredded circuit boards may not qualify as scrap metal,
EPA believes that when these materials are properly containerized when
stored or shipped prior to recovery that they are managed more like
articles in commerce than wastes. For these reasons, EPA is proposing
to exclude shredded circuit boards from the definition of solid waste
in order to facilitate their recovery. Although many shredded circuit
boards may be eligible for regulatory exemption from 40 CFR Part 266
Subpart F requirements due to their precious metal content, the boards
would remain subject to generator manifesting and export requirements.
These requirements may operate as disincentives to recovery, especially
for shipments abroad because of delays in transporting shipments and
receiving payment for processed materials. Since many precious metal
recyclers operate on a short cash flow, they are dependent upon their
payment for shipments of shredded boards sold to smelters and other
processors to pay customers for shipments of circuit boards they
receive. EPA believes that this exclusion will facilitate shredded
circuit board recovery.
In 1992, EPA issued a memorandum to EPA Regional Waste Management
Directors that stated that used whole circuit boards when sent for
reclamation could be considered to be scrap metal and therefore exempt
from RCRA regulation. EPA does not propose to disturb this regulatory
interpretation with today's proposal for prepared scrap metal. For the
time being, used whole circuit boards may continue to shipped as scrap
metal. Used whole boards do not meet the definition of processed scrap
metal as defined in this proposal because they are essentially in the
same physical form when sent for recovery that they are in when
generated.

II. Proposed Reduction in Paperwork Requirements for the Land
Disposal Restrictions Program

In January 1995, the Administrator announced a reporting and
recordkeeping reduction goal of 25% for the Agency. This Burden
Reduction initiative also begins implementation of one of the
reinvention projects set forth in the President's March 16, 1995,
report on ``Reinventing Environmental Regulations.'' The baseline from
which the 25% reduction will be calculated is the reporting and
recordkeeping burden hours as described in the Information Collection
Request (ICR) documentation as of January 1, 1995. In meeting this
goal, the Administrator has committed the Agency to making the
necessary changes to existing regulations to reduce the overall Agency
paperwork burden by June 30, 1996.
One of the largest programs in terms of reporting and recordkeeping
burden in the Office of Solid Waste (OSW) is the Land Disposal
Restrictions (LDR) program. The LDR program was created as part of the
Hazardous and Solid Waste Amendments to the Resource Conservation and
Recovery Act (RCRA), signed into law on November 8, 1984. In setting
concentration levels or methods of treatment for restricted wastes, EPA
has implemented numerous reporting and record keeping requirements to
ensure that the regulated community complies with the regulations set
forth by the Agency. As the LDR program has grown, the regulated
community better understands the LDR requirements. Therefore some of
the paperwork is no longer essential. In order to ease the regulated
community's paperwork burden, the Agency has taken action to revise
some of the LDR reporting and record keeping requirements in previous
rules. This notice proposes additional changes to the LDR paperwork
requirements.
EPA proposed burden reduction changes in the LDR Phase IV rule on
August 22, 1995 (60 FR 43654). Those proposed changes would result in a
reduction of approximately 110,000 hours per year of paperwork burden.
Today, the Agency is proposing further changes to the notification
requirements found in the LDR program for an estimated reduction of
1,519,000 hours per year of paperwork burden. This reduction combined
with the proposed burden reduction from Phase IV, results in proposed
reductions in paperwork burden for the LDR program of approximately
1,629,000 hours per year. The Agency believes that the following
changes can be implemented without compromising the protectiveness or
enforceability of the LDR program.

A. Section 268.7

Under existing Sec. 268.7(a), generators managing restricted wastes
must determine whether the wastes meet applicable treatment standards
at the point of generation, or are otherwise exempt from those
standards. For waste that does not meet the treatment standards as
generated, under Sec. 268.7(a)(2), the generator must notify the
treatment or storage facility in writing with each shipment. This
notification must include the waste code and manifest number, waste
analysis data (if available), and other waste specific information.
As part of the Agency's 25% Burden Reduction goal, the Agency is
proposing to change this notification requirement to a one-time
notification. Thus, if a generator repeatedly generates wastes which do
not meet the appropriate treatment standards, but the composition of
these wastes, or the process generating the wastes, or the treatment
facility receiving the wastes does not change, then the generator would
only be required to submit a one-time notification to the receiving
treatment facility. A copy of the notification would be kept in the
generator's file. If the waste changes, or the process changes, or the
receiving treatment facility changes, then the generator would be
required to send a new notice to the receiving facility, and place a
copy of this new notice in their files.
The proposed one-time notification and certification requirement
for wastes that do not meet the treatment standard as generated,
however, would not apply to lab packs. Under the LDR program, a
generator of a lab pack can either meet the treatment standards and
paperwork requirements of all the hazardous wastes included in the lab
pack, or meet the streamlined lab pack requirements of Sec. 268.42(c)
and the paperwork requirements of Sec. 268.7(a)(9). Today's proposed
one-time notification and certification apply only when the waste, the
process, and the receiving facility do not change from waste shipment
to waste shipment. The Agency believes

[[Page 2364]]
that it is highly unlikely that lab packs will contain exactly the same
hazardous wastes each time they are generated, since they are typically
used to consolidate small amounts of a number of various chemical
wastes to facilitate handling and treatment. Therefore, the one-time
notification provision would not be appropriate for lab pack wastes.
Comments are solicited on this issue.
Under existing Sec. 268.7(b), treatment facilities are required to
send a notification when they ship wastes or treatment residue to land
disposal facilities or to different treatment facilities for further
management. As part of the Agency's 25% Burden Reduction Goal, EPA is
proposing that when a treatment facility is shipping waste or treatment
residue for further management at a land disposal facility or other
treatment facility, and the waste, treatment residue or land disposal/
treatment facility does not change, then the treatment facility will
only be required to submit a one-time notification and certification to
the receiving facility. A copy of the notification and certification
would be kept in the treatment facility's file that sent the waste. If
the waste or treatment residue changes, or the receiving facility
changes, then the treatment facility would be required to provide a new
notice and certification to the receiving facility, and place a copy in
their files.

B. Clean Up of Part 268 Regulations

In the Land Disposal Restrictions--Phase IV Proposed Rule, dated
August 22, 1995, EPA proposed to ``clean up'' the existing regulatory
language that was outdated, confusing or unnecessary. Some sections
were clarified, some were condensed and some were altogether removed.
The Agency is using the Phase IV proposed regulatory language as the
base from which today's changes would be made. Therefore, the
regulatory language that follows is a revision to the proposed
regulatory language in the August 22, 1995, Phase IV rule (60 FR
43654). For Sections 268.7(a)(2), (a)(9), (b)(3), and (b)(4), comments
should be submitted on the regulatory language as it appears in today's
rule.

Part Three: Administrative Requirements and State Authority

I. Environmental Justice

A. Applicability of Executive Order 12898

EPA is committed to address environmental justice concerns and is
assuming a leadership role in environmental justice initiatives to
enhance environmental quality for all residents of the United States.
The Agency's goals are to ensure that no segment of the population,
regardless of race, color, national origin, or income bears
disproportionately high and adverse human health and environmental
effects as a result of EPA's policies, programs, and activities, and
all people live in clean and sustainable communities. In response to
the Executive Order and to concerns voiced by many groups outside the
Agency, EPA's Office of Solid Waste and Emergency Response formed an
Environmental Justice Task Force to analyze the array of environmental
justice issues specific to waste programs and to develop an overall
strategy to identify and address these issues (OSWER Directive No.
9200.3-17).

B. Potential Effects of This Rule

Today's proposed rule covers wastes from mineral processing
operations. The environmental problems addressed by this rule could
disproportionately affect minority or low income communities, due to
the locations of some mineral processing facilities and disposal
facilities. Mineral processing sites are distributed throughout the
country and many are located within highly populated areas. Mineral
processing wastes have been disposed of in various states throughout
the U.S., representing all geographic and climatic regions. In some
instances, the mineral processing waste is generated in one state and
disposed of in another. In addition, the Agency found that mineral
processing wastes are occasionally disposed of in municipal solid waste
landfills. In some cases, mineral processing wastes may be located in
low-income rural areas on or near Native American Tribal lands.
Today's rule is intended to reduce risks from mineral processing
wastes, and to benefit all populations. It is not expected to cause any
disproportionate negative impacts to minority or low income communities
versus affluent or non-minority communities.
The Agency is soliciting comment and input on the implications of
this rule for environmental justice, from all interested persons,
including members of the environmental justice community and members of
the regulated community. The Agency encourages all interested parties
to provide comments or further information that might assist the Agency
in further assessing impacts on minority or low-income populations.
Specifically, the Agency is interested in receiving additional
information and/or comment on the following:
The location of mineral processing facilities relative to
population centers
Information indicating that mineral processing wastes have
been mismanaged and co-disposed with other wastes in municipal solid
waste landfills.

II. State Authority

A. Statutory Authority

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 section 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 HSWA, 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) (42 U.S.C. 6926(g)), new
requirements and prohibitions imposed by HSWA take effect in authorized
States at the same time that they take effect in unauthorized 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. New Federal requirements which are less
stringent than the State program are not in effect in the State unless
and until the State adopts such provisions.
Some portions of today's proposal implement HSWA provisions; others
do not. The LDR treatment standards are being proposed pursuant to
section 3004 (g) through (k), and 3004 (m). These are provisions added
by HSWA. The proposed application of the TCLP to mineral processing
wastes likewise implements an HSWA provision, section 3001(g). Thus,
the more stringent Federal requirements will take effect immediately in
all States. These rules would be added to Table 1 in 40 CFR 271.1(j),
which identifies the Federal program requirements that are promulgated
pursuant to HSWA, and would take effect in all States, regardless of
authorization status. States may apply for final or interim
authorization for the HSWA provisions in Table 1, as discussed in the
following

[[Page 2365]]
section of this preamble. Table 2 in 40 CFR 271.1(j) is also modified
to indicate that those provisions of this rule are self-implementing
provisions of HSWA. EPA is proposing that all other parts of the rule
implement non-HSWA statutory provisions.
Thus, the LDR treatment standards and the application of TCLP
(requirements of this rule which have been identified as HSWA), will
take effect immediately in all States. States may apply for either
interim or final authorization for the HSWA provisions identified in
Table 1. The remaining requirements (including the proposed changes to
the definition of solid waste for the mineral processing sector) are
non-HSWA and will not take effect in the State until the State is
authorized for those requirements. The determination of whether a
mineral processing waste is a solid waste and thus subject to the LDR
treatment standards is a non-HSWA portion of this proposed rule.
Because this criterion is non-HSWA, it will not take effect until and
unless the State adopts that provision of the rule. Since the treatment
standards being proposed in today's rule are HSWA provisions, they will
take effect immediately. However, unless the mineral processing waste
is currently included in the authorized State's definition of solid
waste, the treatment standards will not apply.

B. Streamlined Authorization Procedures

The different levels of authorization review will be more
thoroughly discussed in the upcoming HWIR-media proposal. The HWIR-
media proposal will explain and take comment on an overall expedited
authorization scheme. However, those portions which apply to this
proposed rule are discussed below. EPA requests comment on this
proposed expedited approach.
1. Applicability of Proposed Phase IV Expedited Authorization
It is EPA's policy to provide as much flexibility as possible in
order to encourage States to become authorized for rules under the
hazardous waste program. EPA discussed an expedited authorization
approach in the proposed Phase IV LDR rule (60 FR 43688, August 22,
1995). In that proposal EPA stated that the expedited approach would
apply to those minor or routine changes to the existing program that do
not expand the scope of the program in significant ways. Under that
approach, the State would be required to certify that provisions it has
adopted provide authority that is equivalent and no less stringent than
the Federal provisions. Within 60 days of receiving a complete
certification, EPA would provide notice to the public approving the
State authorization. Then, the public would have an opportunity for
comment, as provided by the existing regulations governing
authorization revisions. See 40 CFR 271.21.
The Agency notes that in the Phase IV proposal, EPA proposed that
certain portions of the Phase IV rule be authorized pursuant to the
conventional authorization procedures. In this proposal, EPA is
reproposing whether expedited procedures are appropriate for the
following reasons. First, as discussed in the Phase IV proposal, EPA
believes that by virtue of a State having obtained authorization for
both the base RCRA program and portions of the LDR program, the State
demonstrated its capability in the administration and implementation
and enforcement of those programs. States that are authorized for the
base RCRA program and portions of the LDR program are familiar with the
type of rule changes as well as the requisite legal requirements needed
to implement the provisions in today's proposed rule. Second, the
revisions to the authorized program both in today's proposal and in
portions of the Phase IV proposal allow the State program to be
authorized to have the flexibility to develop appropriate case-by-case
determinations. Thus, the equivalency determination of the State
program is more fully evaluated by the way the State implements the
program. Finally, this proposed rule would authorize States to make
case-by-case determinations for a limited number of units. EPA believes
that the addition of a few units does not significantly expand the
State program. Accordingly, the Agency believes that another detailed
evaluation by EPA is not warranted under such circumstances. EPA
believes that EPA's evaluation of the authorized State need only
ascertain that the State has the requisite legal authorities and
resources to control the land-based units (or, in the case of the Phase
IV proposal, impoundments receiving decharacterized wastes).
For these reasons EPA is proposing to give great weight to the
statements and legal certification submitted by the State, and believes
that the expedited authorization approach discussed in the Phase IV
proposed rule is appropriate for this rule with a few additional
requirements. In today's proposed rule EPA is proposing that the State,
in its certification, provide EPA with assurances that they have the
legal authority to implement the key requirements of this rule. EPA
will focus its review on the completeness of the certification to
ensure that the key requirements have been addressed.
2. Key Requirements for Assessing Land-Based Units
For today's proposed rule, EPA is proposing an expedited review
process similar to the Phase IV proposal except that the certification
will include a written assurance that the State has the legal authority
to implement the key requirements of this rule.
The key requirements of the State program will primarily focus on
the non-HSWA portion of the rule which contains the requirements for
changes to the definition of solid waste for the mineral processing
sector. That portion of today's proposed rule contains conditional
exclusions for mineral processing residuals being managed in land-based
process units provided that these units are designed and operated in
accordance with the proposed conditions (including conditions developed
on a site-specific basis by an authorized State or EPA Region). There
are several means of showing that the exclusion is satisfied. Two ways
involve the unit meeting specific requirements or conditions as
described in this proposed rule. As noted, the third allows the unit to
receive a site-specific determination from EPA or an authorized State
that the design and operation of the unit is sufficiently protective to
indicate that the unit is a process unit, generally considering the
factors set out in the environmental performance standard for land
disposal units set out in 40 CFR 267.10.
In order to streamline the process for States to become authorized
to make these determinations, EPA is proposing to evaluate a limited
number of specific criteria as follows:
First, the State program must demonstrate that it can
distinguish land-based units receiving mineral processing residuals
from those units operating as waste disposal units, upon consideration,
at least in part, of the factors set out in the environmental
performance standard set out in 267.10.
Second, the State must have the following legal
authorities: 1) to impose preventive measures (including design and
operating conditions) on these units; 2) to establish groundwater
protection criteria; 3) to require groundwater monitoring; and 4) to
detect and remediate releases of hazardous constituents from the unit
to groundwater should such releases occur. It should be noted, however,
that the State's authority need not exist solely (or even in part)
under State RCRA authorities. States may act, for

[[Page 2366]]
example, pursuant to general aquifer-protection authority.
Third, the State program must provide for public
participation in the process of developing requirements for particular
land-based units.
EPA is proposing that the State program provide for public
participation in the State's process of developing requirements for
particular land-based units. Such public participation would include
both the unit owner/operator and the general public. Public
participation is critical at these mineral processing units because
their conditional exclusion from the definition of solid waste is based
on specific conditions the public will not be aware of, and have no
opportunity to influence, unless they are informed. An aspect of this
public participation process would normally include a State's
explanation for a site-specific determination, including why particular
design and operating conditions were or were not selected (for example,
because groundwater is too remote from the unit to warrant any further
design above the basic unit integrity standard to prevent
contamination).
3. Stringency of Proposed Rule
Authorized States are only required to modify their programs when
EPA promulgates Federal standards that are more stringent than the
existing Federal standards. The amendments to 268.7 (a) (2) and (9);
(b) (3) and (4) in today's proposed rule are not considered to be more
stringent than the existing Federal requirements. Therefore, authorized
States are not required to modify their programs to adopt requirements
equivalent to the provisions contained in today's proposed rule.
Today's rule contains one provision which is less stringent than
the current Federal program. This is the provision which would allow
mineral processing spent materials being reclaimed to be excluded from
the definition of solid waste. This provision can be adopted at the
States' option. However, EPA strongly encourages States to adopt this
provision. As stated earlier in the preamble, part of the purpose of
the proposal is to eliminate distinctions among reclaimed spent
materials, byproducts, and sludges within this industry. EPA believes
that this change, in combination with the conditioned exclusion for the
byproducts and sludges, will result in more control over land-based
mineral processing units than exists presently, encourage additional
material recovery within the industry, and will also simplify the solid
waste regulatory classification scheme. In addition, State adoption of
these provisions will provide national consistency.

C. Authorization Procedures

Because portions of today's rule are proposed pursuant to HSWA, a
State submitting a program modification for those portions may apply to
receive interim or final authorization under RCRA section 3006(g)(2) or
3006(b), respectively, on the basis of requirements that are
substantially equivalent or equivalent to EPA's. The procedures and
schedule for State program modifications for final authorization are
described in 40 CFR 271.21. It should be noted that all HSWA interim
authorizations will expire January 1, 2003. (See Sec. 271.24(c) and 57
FR 60132, December 18, 1992.)
Section 271.21(e)(2) requires that States with final authorization
modify their programs to reflect Federal program changes and
subsequently submit the modification to EPA for approval. The deadline
by which the State would have to modify its program to adopt these
regulations is specified in section 271.21(e). This deadline can be
extended in certain cases (see section 271.21(e)(3)). Once EPA approves
the modification, the State requirements become Subtitle C RCRA
requirements.
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 most cases, EPA expects that the Agency will
be able to defer to the States in their efforts to implement their
programs rather than take separate actions under Federal authority.
States that submit official applications for final authorization
less than 12 months after the effective date of these regulations are
not required to include standards equivalent to these regulations in
their application. However, the State must modify its program by the
deadline set forth in Sec. 271.21(e). States that submit official
applications for final authorization 12 months after the effective date
of these regulations must include standards equivalent to these
regulations in their application. The requirements a State must meet
when submitting its final authorization application are set forth in 40
CFR 271.3.

III. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant to Executive Order 12866

Executive Order No. 12866 requires agencies to determine whether a
regulatory action is ``significant.'' The Order defines a
``significant'' regulatory action as one that ``is likely to result in
a rule that may have an annual effect on the economy of $100 million or
more,'' among other criteria.
The Agency estimated the costs of today's proposed rule to
determine if it is a significant regulation as defined by the Executive
Order. The analysis considered compliance cost and economic impacts for
ensuring adequate control of hazardous mineral processing waste streams
which are not Bevill-exempt (hereafter referred to as non-exempt). This
rule covers these streams which are: (1) treated and land disposed; (2)
stored in land-based prior to reinsertion into a mineral processing
unit, and; (3) co-processed with virgin ores in land-based mineral
beneficiation units. The analysis considered compliance cost and
economic impacts for all non-exempt mineral processing streams that are
subject to treatment standards under Part 268.
1. Methodology Section
All options described below include the application of universal
treatment standards for mineral processing wastes which are disposed of
in land disposal units and vary in their application of RCRA
jurisdiction and definition of solid waste to mineral process wastes
being recycled. Four regulatory options were considered in this
proposed rule: (1) The recommended option of a conditional exclusion
from the definition of solid waste for mineral processing wastes stored
in land based units prior to reinsertion of these materials into a
mineral processing facility and allowing conditional mixing/reclamation
of mineral processing wastes in mineral beneficiation process units
(this is the proposed regulatory scheme described in greater detail
under Section I.F. above); (2) no change to the current definition of
solid waste for mineral processing wastes (this is described in greater
detail under Section I.H.1. Alternative Approaches above as Status
Quo); (3) the recommended option applied only to mineral processing
wastes currently considered solid wastes if reclaimed (this is
described in

[[Page 2367]]
greater detail under Section I.H.2. of Alternative Approaches as Apply
Definition of Solid Waste Changes Only To Spent Materials); and (4) the
National Mining Association industry option of excluding from RCRA
jurisdiction all but a limited class of secondary mineral processing
materials where the materials in the limited class (e.g., slags,
refractory brick) would be subject to minimum standards (this is
described in greater detail under Section I.H.3. Alternative Approaches
above as National Mining Association Approach). The Agency has
conducted quantitative regulatory impact analyses for the recommended
option (Option 1) and the status quo option (Option 2); other options
(Options 3 and 4) are being evaluated qualitatively.
The Agency calculated volumes of mineral processing waste from a
combination of reported volumes and estimated quantities of wastes to
product ratios using existing information. Mineral processing streams
were categorized based on their likely toxicity and recyclability.
Mineral processing waste streams which were believed to be either non-
hazardous or not a solid waste because they are believed to be a
characteristic sludge or by-product that is completely reclaimed (see
40 CFR 261.2(c)(3)) were assumed to incur no Subtitle C costs in the
baseline. The Agency managed uncertainty about volumes generated and
management scenarios through bounding analysis which included estimates
of a minimum, expected, and maximum scenarios. The expected scenario is
reported below.
Compliance costs were divided into two sections: treatment and
disposal (assumes neutralization and dewatering for wastewaters; cement
stabilization for solids) and recycling. Treatment and disposal costs
for mineral processing wastes were estimated according to volumes of
mineral processing wastes believed to be non-recyclable and partially-
recycled within each of the mineral processing sectors. Recycling
compliance costs, by contrast, were estimated by the cost of
purchasing, operating and maintaining non-land based storage units
(i.e., tanks, containers and containment buildings).
Economic impacts are estimated by comparing the ratio of waste
management costs to total volumes and both the total economic value and
the value added of mineral processing across mineral sectors. Health
benefits were estimated from available data and expressed in terms of
screening level estimates of individual cancer and noncancer risks
reduced in selected mineral processing wastes.
Detailed discussions of the methodology used for estimating the
costs, economic impacts and the benefits attributable to today's
proposed rule, followed by a presentation of the cost, economic impact
and benefit results may be found in the background document
``Regulatory Impact Analysis Of The Supplemental Proposed Rule Applying
Phase IV Land Disposal Restrictions To Newly Identified Mineral
Processing Wastes'' which is in the docket for today's proposed rule.
The Agency would like to have better information and solicits comment
regarding how many non-exempt mineral processing streams are generated,
volumes, number of affected facilities, current management practices,
total hazardous constituents concentrations, leachate hazardous
constituent concentrations, available treatment technologies, treatment
costs, and economic impact.
2. Results
a. Volume Results. The Agency has estimated the volumes of mineral
processing wastes potentially affected by today's proposed rule in the
background document ``Regulatory Impact Analysis Of The Supplemental
Proposed Rule Applying Phase IV Land Disposal Restrictions To Newly
Identified Mineral Processing Wastes'' which was placed in the docket
for today's proposed rule.
The Agency requests comment on waste volumes affected by this
proposed rule.
b. Cost Results. The Agency has prepared a cost and impacts
analysis for the recommended and status quo options previously
described in this preamble. Under the recommended option (referred to
as Option 1 in this section), the Agency proposes to: 1) Apply
treatment standards for mineral processing wastes which are land
disposed, 2) conditionally exclude from RCRA jurisdiction and
regulation certain mineral processing wastes stored in land based units
prior to being reinserted into a mineral processing unit and 3) allow
co-processing of certain mineral processing wastes with raw materials
in Bevill units. The other option the Agency has analyzed (referred to
as Option 2 in this section) also applies treatment standards for
mineral processing wastes which are land disposed but retains the
current definition of solid waste as it relates to mineral processing
residues. Option 2 also does not address the issue of mineral
processing residues that are co-processed with raw materials in Bevill
units.
The Agency has estimated that roughly 181 facilities (assuming one
land-based unit per facility) under all options would be affected by
this rule. The Agency estimates that total expected annual compliance
costs for facilities under the recommended Option 1 range from $12
million to $141 million. Total expected annual compliance costs for
facilities under the status quo Option 2 are estimated to be in the
range of $0 to $127 million. The ranges for these estimates reflect
only the uncertainty surrounding the extent of prior treatment of
mineral processing residues in the baseline. If larger quantities of
mineral processing residues are treated in the baseline prior to land
disposal, the total compliance costs for this rule would be closer to
the low end of the range. If relatively few land disposed mineral
processing residues are treated prior to disposal, then total
compliance costs for this rule would be closer to the high end of the
range. EPA solicits comment on the extent of prior treatment reflecting
current practices in the mineral processing sector for land disposed
mineral processing residues which are considered hazardous when land
disposed. (As mentioned above, these ranges and other numerical values
in the discussion of the regulatory impact analysis are presented for
an expected case scenario. The expected case scenario provides
numerical values of costs, economic impacts and benefits which are
between a minimum and a maximum case scenario. The estimated range of
compliance costs under Option 1 are from $7.5 million under the lower
bound minimum costing scenario to $360 million under the upper bound
maximum costing scenario. The estimated range of compliance costs under
Option 2 are from $0 million under the lower bound minimum costing
scenario to $336 million under the upper bound maximum costing
scenario. The use of minimum, expected and maximum case scenarios
reflects uncertainty resulting from data limitations regarding the
number, volume, toxicity and management practices of mineral processing
residue streams. EPA is soliciting comment on these and other data
mentioned above.)
There are several additional sources of uncertainty which might
further affect the accuracy of these estimates in either direction. The
Agency requests additional data and comment to help the Agency refine
and revise compliance cost estimates for the final rule. First,
compliance costs for the upper bound of these ranges for Option 1 and
Option 2 might be higher than

[[Page 2368]]
estimated due to: 1) A possibility that high category mercury-bearing
mineral processing residues (residues with a total mercury content of
more than 260 mg/kg) would have to be treated through roasting and
retorting (see 40 CFR 268.42) at a higher cost rather than cement
stabilization as modeled in the regulatory impact analysis, and 2) a
potential loss of operational efficiency at mineral processing
facilities when these facilities are unable to continue to
unconditionally land store mineral processing residues (note: this form
of operation for spent materials currently represents non-compliance
with RCRA Subtitle C regulation). EPA was unable to identify any high
category mercury-bearing mineral processing wastes in data reviewed
which is believed to be discarded currently. The Agency solicits
comment on whether this type of material exists and if so how it is
managed now and likely to be managed after final promulgation of this
proposal. In addition, a loss of operational efficiency (e.g., ability
to store larger quantities of material, user fee revenues from off-site
shipments) might increase operational costs resulting from practical
limitations on the quantity of material a mineral processing facility
stores and resulting losses in revenues. EPA solicits comment about
whether and how much of this type of cost might be incurred due to
regulatory conditions and limits placed on land-based storage under
Options 1 and 2. (Note: EPA has based its cost estimates for mineral
processing residues stored in tanks, containers, and containment
buildings prior to reprocessing based on 90-day storage units for
Option 1 and 2. Owner/operators of mineral processing facilities would
have the ability under Option 1 to purchase larger and more expensive
1-year storage units. However, EPA believes that they would not elect
to do so unless there would be offsetting costs equal to or greater
than the capital storage costs for the 90 day units. EPA solicits
comment on the appropriateness of these cost assumptions.)
Second, upper bound compliance costs in these ranges for both
Options 1 and 2 might be lower than estimated for a number of reasons:
1) The current analysis does not estimate potential shifts from land
disposal of mineral processing residues to recycling resulting from
increased treatment (stabilization) costs associated with land disposal
and 2) all mineral processing residues currently land stored prior to
reprocessing are assumed to require storage prior to reinsertion into
mineral processing facilities. Regarding the issue of shifts from land
disposal to recycling, due to data limitations, EPA has estimated
compliance cost based on a static assumption that owner/operators of
mineral processing facilities will continue to manage residues after
the proposed rule is implemented as they had been managed previously
whether in land disposal or recycling. Since the proposed land disposal
restriction standards will increase land disposal costs for these
owner/operators, a more realistic dynamic assumption is that for some
mineral processing residues, recycling will become less expensive
relative to treatment and land disposal under both Option 1 and Option
2. EPA requests comment on this issue on whether and to what extent
this is likely. With respect to the other factor resulting in lower
compliance costs, the possibility that some mineral processing residues
will not be stored prior to reprocessing, some of these residues may be
able to be immediately reinserted without any intervening storage thus
not incurring incremental costs of purchasing and operating new storage
units. EPA solicits comment on the likelihood and extent of this
possibility.
Finally, EPA has identified two sources of uncertainty that may
have resulted in overestimated upperbound compliance costs for Option
1: 1) Potential cost savings associated with remining historically
discarded mineral processing residues have not been estimated, 2)
additional shifts from land disposal to recycling may occur under
Option 1 that would not occur under Option 2.
Due to data limitations, EPA has not estimated possible cost
savings to owner/operators resulting from remining and processing of
historically discarded mineral processing residues (as mentioned
previously). In addition to the mineral values present in these
residues, these owner/operators might realize costs savings from
avoided liability costs of remediating these materials in the event of
a release to the environment. EPA solicits comment on the likelihood
and extend of these potential cost savings.
EPA also believes that Option 1 might result in greater shifts from
land disposal to recycling than the general shift described above for
both Options. Option 1 may yield greater recycling for two principal
reasons. First, Option 1 clarifies and encourages the use of mineral
beneficiation units (e.g. grinding mills used to produce a concentrate
from an ore) for mineral processing residues. Second, Option 1 allows
owner/operators of mineral processing facilities to store mineral
processing residues prior to recovery for up to year under Option 1
versus 90 days under Option 2. If mineral processing facilities can
store larger amounts for a longer time, this raises the possibility of
receiving materials off-site from other mineral processing facilities
creating greater economies of scale (lower transaction costs, user fee
revenues) in the primary mineral processing industry. EPA solicits
comment on the likelihood and extent of this potential cost savings.
Costs for the variant of the recommended option applied only to
spent materials (Option 3) would probably be similar to the recommended
option, for two reasons. First, spent materials are often co-managed
with characteristic by-products and sludges. Secondly, the majority of
costs incurred under both options are for treatment and disposal, which
do not vary between Options 1 and 3. The National Mining Association
industry Option 4 would cost less than the other options but would
still incur treatment and disposal costs for land disposed mineral
processing wastes.
c. Economic Impact Results. The Agency has estimated the economic
impacts of today's proposed rule and found that the significance of
those impacts vary by mineral processing sector. Results of the
analysis were included in the docket for today's proposed rule.
Approximately 12 of 31 mineral processing sectors would incur
upperbound compliance costs for Option 1 that would exceed 5 percent of
the value of the mineral products from each sector. In addition, EPA
has evaluated the ratio of estimated waste management cost within a
mineral processing sector to the economic value added (value added
measures sales revenue minus the costs of raw materials) of the sector
to better estimate how industry profits might be affected by compliance
costs of today's rule. The analysis showed 3 out of 17 sectors analyzed
under Option 1 had ratios of 1 or more (meaning that estimated
upperbound waste management cost is estimated to be greater than the
value added by the mineral processing sector analyzed). These three
sectors include cadmium, rhenium and selenium. An additional five
sectors have ratios of greater than 0.5 including lead, antimony,
bismuth, beryllium, and tellurium. One possible outcome of these
impacts is that individual facilities within a sector would close.
Another possible outcome is that where the minerals are co-products of
other minerals at the same facility (e.g., cadmium and zinc) that the
facility would choose simply to stop processing the co-product. In all,
EPA estimates

[[Page 2369]]
that there are 24 mineral processing facilities distributed over 8
mineral sectors with ratios above 0.3 indicating the potential for
either facility closure or cessation of processing co-products within
the facility. The Agency requests comment on the likelihood and extent
of these possible outcomes in the mineral processing sectors identified
above and other sectors which may be affected. The Agency also requests
comment on alternative approaches to the Options analyzed for the
proposed rule that suggest ways to lessen these impacts for the
affected sectors.
d. Benefit Estimate Results. The Agency has estimated the benefits
associated with today's proposed rule. Screening risk results suggest
that individual cancer and non-cancer risks may be decreased below 1
x 10 -5 and below a reference dose of 1 in a small number of mineral
processing facilities. Data available for this analysis is limited to
wastes where constituent concentrations are available. Thus, the
benefits are not tied to the total number of mineral processing
facilities. The Agency is working to broaden this analysis over the
range of 181 mineral processing facilities affected by this rule.
The Agency also believes that there will be benefits resulting from
Option 1 for historically discarded mineral processing wastes (e.g.
flue dusts, slags) which can be remined for mineral value. Option 1
will encourage remining of this material in beneficiation units and
decrease metal releases to groundwater and decrease remediation costs
at selected sites. The Agency will try to quantify this benefit for the
final rule.
Although the treatment of hazardous minerals processing wastes has
the potential for providing benefits for human health risk reduction
and increased environmental protection due to data limitations, the
Agency, due to data limitations did not quantify all impacts. A
screening analysis of individual risk reduction was conducted but the
data limitations and substantial analytical challenges have prevented
the Agency from evaluating additional benefits.
Benefits for this proposed rule as measured by population risk
reduction require substantially more information than the Agency has
available now. Site specific information on waste characterization,
hydrogeological parameters, meteorological conditions and demographic
patterns would be needed for a representative number of facilities
before national estimates of population risk could be calculated. The
Agency does not have sufficient information and requests comment on
these data elements.
While waste management rules to protect ground water have proven in
the past to control otherwise unacceptable individual risks, it is
unusual to predict high `population risks' unless there is an unusually
large water supply well impacted by the facility, simply because ground
water contamination generally moves slowly and locally. It has been the
agency's experience that regulations with land disposal restrictions
have been found to produce relatively small, quantifiable population
risk reductions to individuals exposed to contaminated groundwater via
private wells. The individual risk reductions identified by the Agency
for this proposed rule are similar to those found in these previously
analyzed rulemakings. For example, in the analysis of Land Disposal
Restrictions Phase II (40 CFR Parts 148, et al.) for organic toxicity
wastes, some of the individual risk were in the range of 10^{-4, the
population risk reductions were found to be only about 0.22 cases of
cancer per year. Similarly, in an analysis of benefits for corrective
action for solid waste management units, population risk reduction of
about 3 cancer cases per year were found when it was assumed that taste
and odor thresholds and drinking water regulations would tend to cap
exposures. In the corrective action analysis, on average about 12
people within a one mile radius of the unit could be potentially
exposed to contaminated groundwater through private wells.
If population densities and prevalence of private ground water
wells around mineral processing facilities are similar to other waste
management facilities, it is the Agency's expectation that land
disposal restrictions for hazardous minerals processing wastes would
also achieve relatively small, quantifiable population risk reductions.
For these reasons and the data limitations cited above, the Agency has
not attempted to address the quantification of population risk
reduction for this proposed rule. The Agency asks for comment on this
issue.
The Agency believes that, while other types of benefits are
extremely difficult to quantify, this rule may produce benefits in the
area of ecological risk reduction, reduced natural resource damage and
related increase in non-use values for environmental amenities. EPA has
not developed a quantitative assessment of these benefits because of
budgetary and data limitations and because the quantity of these
benefits may be small. The Agency also believes that this rule has the
potential for reducing what may be considered very low probability but
high consequence adverse human health or environmental impact if
contamination from hazardous minerals processing waste should, because
of geological conditions such as karst terrain, reach a major
population drinking water source or sensitive environmental location.
This proposed rule should lessen the chances of this type of event even
though the probabilities of such occurrences are not known.
The data limitations and uncertainty that make analysis of benefits
especially difficult also apply to compliance cost estimates. In large
part, the uncertainty tends to have the same directional effect on both
cost and benefits. That is, the same factors such as hazardous waste
volume that could make compliance costs large also would tend to imply
higher risks in the baseline. Likewise, low volumes that show little
risks would generally create lower compliance costs.
3. Conclusion
EPA recommends Option 1 in part because it believes that it
simultaneously clarifies jurisdiction and encourages environmentally
sound recycling of mineral processing residues. The conditional
exclusion from RCRA jurisdiction proposed under Option 1 for land
stored mineral processing residues prior to recovery provides
comparative flexibility and cost savings in recycling these materials;
rather than extending RCRA jurisdiction to these materials and full
Subtitle C regulatory requirements were extended. Option 1 obviates the
need for manifesting these materials between mineral processing
facilities. Option 1 also does not require many other management
standards for waste handlers that are normally required for hazardous
wastes recycled under Subtitle C including: design standards for
storage units, recordkeeping and reporting requirements, storage permit
requirements for materials received from off-site, financial assurance,
pre-transport generator requirements, and related requirements. The
Agency believes that the absence of these requirements offers the
primary mineral processing industry an opportunity to maximize
reprocessing of these materials at a minimum cost while still
protecting human health and the environment.
4. Regulatory Impact Analysis for Underground Injected Wastes
The Agency has completed a cost-benefits analysis for underground
injected wastes in Class I injection wells

[[Page 2370]]

affected by the Supplemental Rulemaking for Mineral Processing Wastes.
The new proposed supplemental LDRs cover facilities with operating
Class I injection wells disposing of newly identified mineral
processing wastes that are hazardous due to a characteristic.
According to the available data outlined in the RIA, indications
are that of the 223 Class I injection facilities in the nation, up to
20 will be potentially affected by the new supplemental LDRs for
mineral processing wastes. Of these facilities, 8 inject nonhazardous
waste (3 million tons of restricted wastes) and 12 inject hazardous
waste (7 million tons of restricted wastes.) Combined, these facilities
may inject up to 10 million tons of waste annually into Class I wells.
These Class I injection facilities will now be required to either treat
wastes, or file ``no-migration'' petitions as outlined in 40 CFR 148
(See 53 FR 28118 preamble for a more thorough discussion of the no-
migration petition review process).
Of the 12 newly affected Class I hazardous facilities, 11 already
have no-migration exemptions approved by EPA and one facility is listed
as having a no-migration petition pending EPA. For this analysis, EPA
assumes that the Class I hazardous facility with a petition pending
will successfully demonstrate no-migration of Phase III wastes prior to
promulgation of the supplemental rule. EPA estimates that six Class I
nonhazardous facilities will submit a no-migration petition under this
rule; two facilities will accept the disposal ban and treat their
restricted wastes to UTS prior to injection. The Agency analyzed costs
and benefits for today's rule to assess the economic effect of
associated compliance costs for the additional volumes of injected
wastes attributable to this proposed rule.
In general, Class I injection facilities affected by the LDR Phase
III rule will have several options. As previously mentioned, some
facilities will modify existing no-migration petitions already approved
by the Agency, other facilities may submit entirely new petitions, and
still others may accept the prohibitions and either continue to inject
wastes after treatment or cease injection operations all together. EPA
assessed compliance costs for Class I facilities submitting no-
migration petitions and/or employing alternative treatment measures.
For Class I facilities opting to use alternative treatment, the
Agency derived costs treating restricted wastes to meet UTS levels
prior to injection. EPA estimates that the (mid-range) total annual
compliance cost for petitions and alternative treatment to industry
affected by the new supplemental LDR prohibitions will be $1.0 million.
EPA estimates the mid-range total annual compliance costs per Class I
hazardous facility to range between $0.2 million and $2.0 million; mid-
range total annual compliance costs per Class I nonhazardous facility
range between $0.3 million and $0.8 million. The range of costs for
alternative treatment is the result of applying a sensitivity analysis.
All of these costs will be incurred by Class I injection well owners
and operators. The estimated economic impacts of the proposed rule were
based on the random assignment of injection facilities to petition and
treatment outcomes using a decision tree analysis method described in
the Cost-Benefits Analysis document placed in the docket.
The Agency did not perform a quantified risk assessment for this
proposal. However, the benefits to human health and the environment in
the Cost-Benefits Analysis document are generally defined as reduced
human health risk resulting from fewer instances of ground water
contamination. In general, potential health risks from Class I
injection wells are extremely low. However, injection is not without
risks. In isolated cases, potential risks to human health and the
environment may be greater due to abandoned, unplugged wells near the
injection well site.
The economic analysis of LDR Phase III compliance costs suggests
that publicly traded companies affected by the rule will probably not
be significantly economically impacted. The limited data available for
the privately held companies suggests, however, that they may face
significant impacts due to the proportionally larger expenses they may
face as a result of the proposed rule.

B. Regulatory Flexibility Analysis

Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et
seq., when an agency publishes a notice of rulemaking, for a rule that
will have a significant effect on a substantial number of small
entities, the agency must prepare and make available for public comment
a regulatory flexibility analysis that considers the effect of the rule
on small entities (i.e.: small businesses, small organizations, and
small governmental jurisdictions). Under the Agency's Revised
Guidelines for Implementing The Regulatory Flexibility Act, dated May
4, 1992, the Agency committed to considering regulatory alternatives in
rulemakings when there were any economic impacts estimated on any small
entities. (See RCRA sections 3004(d), (e), and (g)(5), which apply
uniformly to all hazardous wastes.) Previous guidance required
regulatory alternatives to be examined only when significant economic
effects were estimated on a substantial number of small entities.
In assessing the regulatory approach for dealing with small
entities in today's proposed rule, the Agency had to consider that due
to the statutory requirements of the RCRA LDR program, no legal avenues
exist for the Agency to provide relief from the LDR's for small
entities. The only relief available for small entities is the existing
small quantity generator provisions and conditionally exempt small
quantity generator exemptions found in 40 CFR 262.11-12, and 261.5,
respectively. These exemptions basically prescribe 100 kilograms (kg)
per calendar month generation of hazardous waste as the limit below
which one is exempted from complying with the RCRA standards.
Given this statutory constraint, the Agency was unable to frame a
series of small entity options from which to select the lowest cost
approach; rather, the Agency was legally bound to regulate the land
disposal of the hazardous wastes covered in today's rule without regard
to the size of the entity being regulated. However, the portion of the
proposal which would reclassify various mineral-bearing secondary
materials as non-wastes may decrease regulatory costs to a number of
mineral processing entities, including small entities.

C. Paperwork Reduction Act

The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
overall reporting and recordkeeping burden is estimated to be a
reduction of approximately 1,624,434 hours (4,873,303 hours over three
years). The burden reduction is due to proposal of one-time
notifications and certifications in the August 22, 1995 Phase IV
proposed rule (but not accounted for in the proposed Phase IV ICR) and
in this supplemental rule. The one-time notifications and
certifications will, when final, replace the requirements to send
notifications and certifications with each shipment of waste.
A copy of the ICRs for this rule may be obtained from the
Environmental Protection Agency, Information Policy Branch, 401 M
Street, S.W. (Mail Code 2138), Washington D.C. 20460. The public should
send comments regarding the burden estimate, or any other aspect

[[Page 2371]]
of this collection of information, including suggestions for reducing
burden to EPA; and to the Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, D.C. 20460, marked
``Attention: Desk Officer for EPA.''

IV. Unfunded Mandates Reform Act

Under Section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a statement to
accompany any rule where the estimated costs to State, local, or tribal
governments in the aggregate, or to the private sector, will be $100
million or more in any one year. Under Section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objective of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly impacted by the rule.
EPA has completed an analysis of the costs and benefits from
today's proposed rule and has determined that this rule does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local or tribal governments in the
aggregate. As stated above, the private sector may incur costs
exceeding $100 million per year depending upon the option chosen in the
final rulemaking. EPA has fulfilled the requirement for analysis under
the Unfunded Mandates Reform Act, and results of this analysis have
been included in Regulatory Impact Analysis background document which
was placed in the docket for today's proposed rule.

List of Subjects

40 CFR Part 148

Administrative practice and procedure, Hazardous waste, Reporting
and recordkeeping requirements, Water supply.

40 CFR Part 261

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

40 CFR Part 268

Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 271

Administrative practice and procedure, Hazardous materials
transportation, Hazardous waste, Penalties, Reporting and recordkeeping
requirements.
Dated: December 15, 1995.
Carol M. Browner,
Administrator.

For the reasons set out in the preamble, Title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:

PART 148--HAZARDOUS WASTE INJECTION RESTRICTIONS

1. The authority citation for Part 148 continues to read as
follows:

Authority: Section 3004, Resource Conservation and Recovery Act,
42 U.S.C. 6901, et seq.

2. Section 148.18 as proposed to be added at 60 FR 11740 (March 2,
1995) and is proposed to be amended at 60 FR 43691 (August 22, 1995) is
proposed to be further amended by redesignating paragraphs (a) through
(d) as (b) through (e) respectively, and by adding paragraph (a) to
read as follows:

Sec. 148.18 Waste specific prohibitions--Newly Listed and Identified
Wastes.

(a) Effective [Date 2 years from effective date of the final rule],
hazardous wastes from mineral processing operations that exhibit a
characteristic of hazardous waste; and mixed characteristic hazardous
mineral processing wastes/radioactive wastes, are prohibited from
underground injection.

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

Subpart A--General

3a. The authority citation for Part 261 continues to read as
follows:

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

3b. Section 261.1 is amended by adding paragraph (c)(9) to read as
follows:

Sec. 261.1 Purpose and scope.

* * * * *
(c) * * *
(9) ``Processed scrap metal'' is scrap metal which has been
manually or mechanically altered to either separate it into distinct
materials to enhance economic value or to improve the handling of
materials. Processed scrap metal includes but is not limited to scrap
metal which has been bailed, shredded, sheared, melted, agglomerated
(for fines, drosses and related materials which are not scrap metal
prior to agglomeration) or separated by metal type.
4. Section 261.2(c) is amended by revising Table 1 to read as
follows:

Sec. 261.2 Definition of solid waste.

* * * * *
(c) * * *

Table 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Use constituting Energy recovery/ Speculative
disposal (Sec. fuel (Sec. Reclamation (Sec. Accumulation (Sec.
261.2(c)(1)) 261.2(c)(2)) 261.2(c)(3)) 261.2(c)(4))
(1) (2) (3) (4)

--------------------------------------------------------------------------------------------------------------------------------------------------------
Spent Materials......................................................... (*) (*) (*) (*)
Sludges (listed in 40 CFR Part 261.31 or 261.32......................... (*) (*) (*) (*)
Sludges exhibiting a characteristic of hazardous waste.................. (*) (*) .................. (*)
By-products (listed in 40 CFR 261.31 or 261.32)......................... (*) (*) (*) (*)
By-products exhibiting a characteristic of hazardous waste.............. (*) (*) .................. (*)
Commercial chemical products listed in 40 CFR 261.33.................... (*) (*) .................. ..................
Scrap metal excluding processed scrap metal............................. (*) (*) (*) (*)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The terms ``spent materials'', ``sludges'', ``by-products'', and ``scrap metal'' and ``processed scrap metal'' are defined in Sec. 261.1.

* * * * *
5. Section 261.3 is amended by revising the first sentence of
paragraph (a)(2)(i), and by revising paragraph (a)(2)(iii) to read as
follows:

Sec. 261.3 Definition of hazardous waste.

(a) * * *
(2) * * *

[[Page 2372]]

(i) It exhibits any of the characteristics of hazardous waste
identified in subpart C. * * *
* * * * *
(iii) It is a mixture of a solid waste and a hazardous waste that
is listed in subpart D of this part solely because it exhibits one or
more of the characteristics of hazardous waste identified in subpart C
of this part. (However, nonwastewater mixtures are still subject to the
requirements of part 268 of this chapter, even if they no longer
exhibit a characteristic at the point of land disposal.)
* * * * *
6. Section 261.4 is amended by adding paragraphs (a)(13), (a)(14),
(a)(15), and (a)(16) and by redesignating existing paragraphs (b)(7)
(i) through (xx) as paragraphs (b)(7)(i) (A) through (T), by
redesignating paragraph (b)(7) introductory text as paragraph (b)(7)(i)
introductory text, and by adding a new paragraph (b)(7)(ii) to read as
follows:

Sec. 261.4 Exclusions.

(a) * * *
(13) Processed scrap metal being reclaimed.
(14) Shredded circuit boards provided that they are stored in
containers prior to recovery that are sufficient to prevent a release
to the environment.
(15) Secondary materials (other than hazardous wastes listed in
Subpart D of this Part) generated within the primary mineral processing
industry from which mineral values are recovered by a primary mineral
processing industry production process, provided that:
(i) The material contains recoverable amounts of minerals;
(ii) The materials cannot be accumulated speculatively (as defined
in Sec. 261.1(c)(8));
(iii) The owner or operator provides a notice to the Regional
Administrator or State Director, identifying the following information:
the types of materials to be recycled and the location of the recycling
process; and the annual quantities expected to be placed in land-based
units.
(iv) The materials must be stored or otherwise managed in process
units. A ``process unit'' is a tank, container, containment building or
other unit that is not land-based. A process unit also can include a
pile or surface impoundment that:
(A) Is designed and operated so as to satisfy any of the following
alternative performance conditions:
(1) The owner or operator ensures that the unit satisfies a
groundwater protection standard not exceeding: the maximum contaminant
level (MCL) for metals in Appendix VIII of Part 261 (antimony, arsenic,
barium, beryllium, cadmium, chromium (total), lead, mercury, nickel,
selenium, silver, and thallium); weak acid dissociable cyanide level of
0.2 ppm; the corrosivity standard in Sec. 261.22 (an aqueous solution
with a pH equal to or less than 2.0 or equal to or greater than 12.5);
and the ignitability standard in Sec. 261.21 at a location no further
than 150 meters from the unit boundary. To demonstrate that this
condition is satisfied, the unit must have a groundwater monitoring
system consisting of a minimum of one upgradient well and three
downgradient wells. Such monitoring wells must be capable of detecting,
sampling, and assessing whether the groundwater protection standard is
satisfied pursuant to the provisions of 40 CFR 258.51 (except for 40
CFR 258.51(b), 258.53, and 258.54). If a release is detected at levels
exceeding the groundwater protection standard, the owner/operator must
perform corrective action which attains the groundwater protection
standard. During the time when the standard is exceeded, no further
mineral processing secondary materials may be placed in the unit; or
(2) Satisfies any of the following design standards: for surface
impoundments or piles containing free liquids, is constructed to have
the equivalent transmissivity of a liner comprised of a 40 mil
geomembrane liner on 12 inches of soil with at least 10^{-5 cm/sec
hydraulic conductivity; and for piles not containing free liquids, is
located on concrete, asphalt, or soil any of which have the equivalent
transmissivity of three feet of clay with 10^{-7 cm/sec hydraulic
conductivity; or
(3) Receives a site-specific determination from the Regional
Administrator or the State Director that the unit is a process unit and
not a waste disposal unit because the unit is designed and operated to
minimize releases to the environment and generally is not part of the
waste disposal problem. This determination shall consider prevention of
adverse affects on ground-water quality, surface water quality, and air
quality considering the factors set out in 40 CFR 267.10.
(B) Process units do not include any wastewater treatment surface
impoundment whose discharge is ultimately regulated under either
section 402 or 307(b) of the Clean Water Act (including facilities
which have eliminated the discharge of wastewater).
(16) Secondary materials (other than hazardous wastes listed in
Subpart D of this Part) generated within the primary mineral processing
industry from which mineral values are recovered in a beneficiation
unit, as defined in paragraph (b)(7) of this section. The material must
contain recoverable amounts of minerals.
(b) * * *
(7) * * *
(ii) A residue derived from co-processing hazardous secondary
materials excluded under paragraph (a)(14) of this section along with
normal beneficiation raw materials remains excluded under this section
if the owner or operator meets the following requirements:
(A) The unit must process at least 50% by weight normal raw
materials;
(B) The owner or operator must be able to document that the co-
processing of hazardous secondary materials does not significantly
affect the residues by demonstrating conformance with the criteria set
out in 40 CFR 266.112(b)(1) and 266.112(b)(2). The comparison shall be
made only with respect to metals listed in Appendix VIII of this Part
and cyanide.
* * * * *
7. Section 261.6 is amended by revising paragraphs (a)(3)
introductory text and (a)(3)(ii) to read as follows:

Sec. 261.6 Requirements for recyclable materials.

(a) * * *
(3) The following recyclable materials are not subject to
regulation under Parts 262 through parts 266 or parts 268, 270 or 124
of this chapter and are not subject to the notification requirements of
section 3010 of RCRA:
* * * * *
(ii) Scrap metal other than processed scrap metal;
* * * * *

PART 268--LAND DISPOSAL RESTRICTIONS

8. The authority citation for Part 268 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

Subpart A--General

9. Section 268.7 is amended by revising the introductory text of
paragraph (a)(2), the introductory text of paragraph (b)(4) and the
introductory text of paragraph (b)(5), and by adding paragraph (a)(9)
to read as follows:

Sec. 268.7 Testing, tracking and recordkeeping requirements for
generators, treaters, and disposal facilities.

(a) * * *
(1) * * *
(2) If the waste does not meet the treatment standard: The
generator must

[[Page 2373]]
send a one-time notice to each treatment or storage facility receiving
the waste and place a copy in the file. The notice must include the
information in column ``268.7(a)(2)'' of the Notification Requirements
Table in Sec. 268.7(a)(4). No further notification is necessary until
such time that the waste or facility change, in which case a new
notification must be sent and a copy placed in the generator's file.
* * * * *
(9) If a generator is managing a lab pack containing hazardous
wastes and wishes to use the alternative treatment standard for lab
packs found at Sec. 268.42(c), with each shipment of waste, the
generator must submit a notice to the treatment facility that provides
the EPA hazardous waste codes and manifest number. If the lab pack
contains characteristic hazardous wastes (D001-D043), underlying
hazardous constituents (as defined in Sec. 268.2(I)) need not be
determined. The generator must also comply with the requirements in
paragraphs (a)(6) and (a)(7) of this section and must submit the
following certification, which must be signed by an authorized
representative:

I certify under penalty of law that I personally have examined
and am familiar with the waste and that the lab pack contains only
wastes that have not been excluded under appendix IV to 40 CFR part
268. I am aware that there are significant penalties for submitting
a false certification, including the possibility of fine or
imprisonment.
* * * * *
(b) * * *
(4) A one-time notice must be sent with the initial shipment of
waste to the land disposal facility and a copy placed in the treatment
facility's file. No further notification is necessary until such time
that the waste or facility change, in which case a new notification
must be sent and a copy placed in the treatment facility's file. Debris
excluded from the definition of hazardous waste under Sec. 261.3(e) of
this chapter (i.e., debris treated by an extraction or destruction
technology provided by Table 1, Sec. 268.45, and debris that the
Director has determined does not contain hazardous waste), is subject
to the notification and certification requirements of paragraph (d) of
this section. The one-time notice for all other waste shall include
these requirements:
* * * * *
(5) The treatment facility must submit a one-time certification
with the initial shipment of waste or treatment residue of a restricted
waste to the land disposal facility stating that the waste or treatment
residue has been treated in compliance with the applicable performance
standards specified in subpart D of this part and the applicable
prohibitions set forth in Sec. 268.32 or RCRA section 3004(d) and a
copy placed in the file. If the waste or treatment residue changes or
the receiving facility changes, the generator or TSD shipping the waste
must send a new certification to the receiving facility, and place a
copy in their files. Debris excluded from the definition of hazardous
waste under Sec. 261.3(e) of this chapter (i.e., debris treated by an
extraction or destruction technology provided by Table 1, Sec. 268.45,
and debris that the Director has determined does not contain hazardous
waste), however, is subject to the notification and certification
requirements of paragraph (d) of this section rather than the
certification requirements of this paragraph.
* * * * *

Subpart C--Prohibitions on Land Disposal

10. Section 268.32 is revised to read as follows:

Sec. 268.32 Waste specific prohibitions--characteristic hazardous
wastes from mineral processing operations.

(a) Effective [Date 90 days from date of publication of final
rule], characteristic hazardous wastes from mineral processing
operations; and, soil and debris contaminated with characteristic
hazardous wastes from mineral processing operations; are prohibited
from land disposal.
(b) Effective [Date 1 year from date of publication of final rule],
arsenic and high mercury characteristic hazardous wastes from mineral
processing operations are prohibited from land disposal.
(c) Effective [Date 2 years from date of publication of final
rule], radioactive wastes mixed with hazardous wastes from mineral
processing operations are prohibited from land disposal.
(d) The requirements of paragraphs (a), (b), and (c) of this
section do not apply if:
(1) The wastes meet the applicable treatment standards specified in
Subpart D of this part;
(2) Persons have been granted an exemption from a prohibition
pursuant to a petition under Sec. 268.6, with respect to those wastes
and units covered by the petition;
(3) The wastes meet the applicable alternate treatment standards
established pursuant to a petition granted under Sec. 268.44; or
(4) Persons have been granted an extension to the effective date of
a prohibition pursuant to Sec. 268.5, with respect to these wastes
covered by the extension.
(e) To determine whether a hazardous waste identified in this
section exceeds the applicable treatment standards specified in
Sec. 268.40, the initial generator must test a sample of the waste
extract or the entire waste, depending on whether the treatment
standards are expressed as concentrations in the waste extract or the
waste, or the generator may use knowledge of the waste. If the waste
contains constituents (including underlying hazardous constituents in
characteristic wastes that have been diluted to remove the
characteristic) in excess of the applicable Universal Treatment
Standard levels of Sec. 268.48, the waste is prohibited from land
disposal, and all requirements of this part are applicable, except as
otherwise specified.

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS

11. The authority citation for Part 271 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912(a), and 6926.

Subpart A--Requirements for Final Authorization

12. Section 271.1(j) is amended by adding the following entries to
Table 1 in chronological order by date of publication in the Federal
Register, and by adding the following entries to Table 2 in
chronological order by effective date in the Federal Register:

Sec. 271.1 Purpose and scope.

* * * * *
(j) * * *

[[Page 2374]]

Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
``Federal Register''
Promulgation date Title of regulation reference Effective date
----------------------------------------------------------------------------------------------------------------

* * * * * *
*
[Insert date of publication of Land Disposal [Insert FR page numbers] [Insert date of 90 days
final rule in the Federal Restrictions for from date of
Register (FR)]. Characteristic Mineral publication of final
Processing Wastes. rule].

* * * * * *
*
----------------------------------------------------------------------------------------------------------------

* * * * *

Table 2--Self-Implementing Provisions of the Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Self-implementing ``Federal Register''
Effective date provision RCRA citation reference
----------------------------------------------------------------------------------------------------------------

* * * * * *
*
[Insert date 2 years from date of Prohibition on land 3004(m)................. [Insert date of
publication of final rule]. disposal of publication of final
characteristic mineral rule] 61 FR [Insert
processing wastes and page numbers].
such wastes mixed with Ditto.
radioactive waste, Ditto.
including soil and Ditto.
debris.

* * * * * *
*
----------------------------------------------------------------------------------------------------------------

* * * * *
13. Section 271.28 is added to read as follows:

Sec. 271.28 Streamlined authorization procedures.

(a) The procedures contained in this section may be used by a State
when revising its program by applying for authorization for the
requirements promulgated by the Land Disposal Restrictions Mineral
Processing Waste Rule, provided a State is authorized for Land Disposal
Restrictions rules up to the Third Third (55 FR 22520, June 1, 1990).
(b) An application for a revision of a State's program for the
provisions stated in paragraph (a) of this section shall consist of:
(1) A certification from the State that its laws provide authority
that is equivalent to and no less stringent than the provisions
specified in paragraph (a), and which includes references to the
specific statutes, administrative regulations and where appropriate,
judicial decisions. State statutes and regulations cited in the State
certification shall be fully effective at the time the certification is
signed; and
(2) Copies of all applicable State statutes and regulations.
(3) Certification from the State that its laws provide authority
that is equivalent to and no less stringent than the provisions
specified in paragraph (c) of this section.
(c) Within 30 days of receipt by EPA of a State's application for
final authorization to implement a rule specified in paragraph (a) of
this section, if the Administrator determines that the application is
not complete, the Administrator shall notify the State that the
application is incomplete. This notice shall include a concise
statement of the deficiencies which form the basis for this
determination. The State must also include a written assurance that the
State has the legal authority to implement the key requirements of this
rule. The State program must demonstrate:
(1) That it can distinguish land-based units receiving mineral
processing residuals from those units operating as waste disposal
units, based in part of factors set out in 40 CFR 261.4(a)(14) and 40
CFR 267.10;
(2) That it imposes preventive measures (including design and
operating conditions) on these units;
(3) That it establishes groundwater protection criteria;
(4) That it requires groundwater monitoring;
(5) That it detects and remediate releases of hazardous
constituents from the unit to groundwater should such releases occur;
and
(6) The State program must provide for public participation in the
process of developing requirements for particular land-based units.
(d) For purposes of this section, an incomplete application is one
where:
(1) Copies of applicable statutes or regulations were not included;
(2) The statutes or regulations relied on by the State to implement
the program revisions are not yet in effect;
(3) The State is not authorized to implement the prerequisite RCRA
rules as specified in paragraph (a) of this section; or
(4) In the certification, the citations to the specific statutes,
administrative regulations and where appropriate, judicial decisions
are not included or incomplete.
(e) Within 60 days after receipt of a complete final application
from a State for final authorization to implement a rule or rules
specified in paragraph (a) of this section, absent information in the
possession of EPA, the Administrator shall publish an immediate final
notice of the decision to grant final authorization as follows:
(1) In the Federal Register;
(2) In enough of the largest newspapers in the State to attract
Statewide attention; and
(3) By mailing to persons on the State agency mailing list and to
any other persons whom the Agency has reason to believe are interested.
(f) The public notice under paragraph (e) of this section shall
summarize the State program revision and provide for an opportunity to
comment for a period of 30 days.
(g) Approval of State program revisions under this section shall
become effective 60 days after the date of publication in the Federal
Register in accordance with paragraph (e) of this

[[Page 2375]]
section, unless a significant adverse comment pertaining to the State
program revision discussed in the notice is received by the end of the
comment period. If a significant adverse comment is received, the
Administrator shall so notify the State and shall, within 60 days after
the date of publication, publish in the Federal Register either:
(1) A withdrawal of the immediate final decision; or
(2) A notice containing a response to comments and either affirming
that the immediate final decision takes effect or reversing the
decision.

[FR Doc. 96-586 Filed 1-24-96; 8:45 am]
BILLING CODE 6560-50-P}}}}}}}}}}}}}}}}}}}}}}}}}}}}