[Federal Register Volume 62, Number 91 (Monday, May 12, 1997)]
[Proposed Rules]
[Pages 26041-26084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11637]


      

  Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed 
Rules  

[[Page 26041]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 148, 261, 266, 268, and 271

RIN 2050 AE05
[FRL-5816-6]


Land Disposal Restrictions Phase IV: Second Supplemental Proposal 
on Treatment Standards for Metal Wastes and Mineral Processing Wastes, 
Mineral Processing and Bevill Exclusion Issues, and the Use of 
Hazardous Waste as Fill

AGENCY: Environmental Protection Agency.

ACTION: Supplemental proposed rule.

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SUMMARY: This is the third proposed rule related to treatment standards 
for certain metal wastes and wastes from mineral processing. EPA is 
seeking comment on additional proposed provisions and on new data. This 
proposed rule would revise universal treatment standards (UTS) for 
twelve metal constituents when they are in hazardous waste. Affected 
wastes include ``TC metal'' wastes (those containing high levels of 
certain metals), mineral processing wastes, and other metal-bearing 
wastes. These treatment standards are being revised to provide 
consistency in the LDR standards while minimizing threats to human 
health and the environment. This proposed rule also addresses the issue 
of the sampling method for compliance with treatment standards. EPA is 
seeking comment on a conditional exclusion for secondary mineral 
processing materials, on co-processing of materials in Bevill-exempt 
mining units, and on whether certain mineral processing and mining 
wastes currently excluded from federal hazardous waste regulations 
warrant regulatory controls. Also included is an exclusion from the 
definition of solid waste for certain materials reused by wood 
preserving operations, a clarified policy on EPA-approved variances 
from hazardous waste treatment, and a prohibition on the use of most 
hazardous wastes as fill material.

DATES: Comments on this proposed rule must be submitted by July 11, 
1997.

ADDRESSES: Commenters must send an original and two copies of their 
comments to: RCRA Information Center (RIC), Office of Solid Waste 
(5305G), U.S. Environmental Protection Agency Headquarters (EPA, HQ), 
401 M. Street, SW, Washington, DC 20460. Commenters must place Docket 
Number F-97-2P4P-FFFFF on their comments. Hand deliveries of comments 
should be made to the Arlington, VA, address below. An original and two 
copies of Confidential Business Information (CBI) must be submitted 
under separate cover to : RCRA CBI Document Control Officer, Office of 
Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, DC 20460. 
For information on submittal of comments electronically, see the 
section called ``Electronic Submittal of Comments'' in SUPPLEMENTARY 
INFORMATION below.
    Public comments and supporting materials are available for viewing 
in the RCRA Information Center (RIC), located at Crystal Gateway I, 
First Floor, 1235 Jefferson Davis Highway, Arlington, Virginia. The RIC 
is open from 9:00 a.m. to 4:00 p.m., Monday through Friday, except on 
Federal holidays. To review docket materials, it is recommended that 
the public make an appointment 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. The index and some 
supporting materials are available electronically. See the 
SUPPLEMENTARY INFORMATION section for information on accessing them.

FOR FURTHER INFORMATION CONTACT: RCRA Hotline between 9:00 a.m. and 
6:00 p.m. EST, toll free at (800) 424-9346; or (703) 412-9810 from 
Government phones or if in the Washington, D.C. local calling area; or 
(800) 553-7672 for the hearing impaired. Questions can also be directed 
to the Waste Treatment Branch (5302W), Office of Solid Waste (OSW), 
U.S. Environmental Protection Agency, 401 M Street S.W., Washington, 
D.C. 20460; phone (703) 308-8434. For information on the issue of 
treatment standards for metal-bearing wastes, ask for Elaine Eby or 
Anita Cummings. Anita Cummings is the contact for LDR treatment 
standards for mineral processing wastes and for the issue of grab 
versus composite sampling methods. For information on secondary mineral 
processing materials and Bevill issues, call Van Housman at (703) 308-
8419 or Stephen Hoffman at (703) 308-8413. Contact Stephen Bergman for 
questions on the exclusion for wood preserving wastewaters. For 
information on the capacity analyses, call Bill Kline at (703) 308-
8440. For questions on the regulatory impact analyses, contact Paul 
Borst at (703) 308-0481. For other questions, call Sue Slotnick at 
(703) 308-8462.

SUPPLEMENTARY INFORMATION:

Availability of Rule on the Internet

    Please follow these instructions to access the rule:
    From the World Wide Web (WWW), type http://www.epa.gov/rules and 
regulations. In addition, several technical background documents 
contained in the docket supporting this rule will be available on the 
Internet at http://www.epa.gov/offices and regions/oswer.

Electronic Submittal of Comments

    In an effort to reduce unnecessary paper use, EPA is asking 
prospective commenters to voluntarily submit one copy of their 
comments, in addition to the paper copy, in either of two electronic 
methods: diskettes or the Internet. Commenters can send their comments 
to the RCRA Information Center 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. Please use mailing envelopes designed to physically 
protect the submitted diskettes. To send copies by Internet, address 
them to: [email protected]. All comments sent by Internet 
must be ASCII files, avoiding the use of special characters and any 
form of encryption. Comments in electronic format should also be 
identified by the docket number F-97-2P4P-FFFFF. Commenters should not 
submit electronically any confidential business information (CBI). EPA 
emphasizes that submission of comments electronically is not mandatory, 
nor will it result in any advantage or disadvantage to any commenter. 
For further information on the electronic submission of diskettes, 
contact Sue Slotnick at the Waste Treatment Branch, (703) 308-8462, or 
Rhonda Minnick at (703) 308-8771.

Table of Contents

I. Background
II. Potentially Regulated Entities
III. Revised Treatment Standards for Twelve Metal Constituents in 
Nonwastewater Forms of TC Metal and Other Wastes
    A. Summary
    B. Applicability
    C. Background
    D. Proposal of Revised Treatment Standards for Metal 
Constituents in TC Metal and Other Metal-bearing Wastes
    1. August 22, 1995 Proposed Treatment Standards for TC Wastes
    2. Comments to the August 22, 1995 Proposal
    3. Development of Revised UTS for TC Metal Wastes

[[Page 26042]]

    4. Proposed Revision of UTS for Selenium
    5. Proposed Revision of UTS for Beryllium
    6. Proposed Revision of UTS for Silver
    7. Demonstrating Compliance by Grab or Composite Sampling
IV. Revised Treatment Standards for Mineral Processing Wastes
    A. Summary
    B. Discussion
V. Proposal of New Options for Mineral Processing Materials
    A. New Option--Land Storage of Secondary Materials
    1. General Discussion
    2. Criteria for High Volumes of Bevill-Exempt Mining and Mineral 
Processing Wastes
    3. Containment Units
    4. Class of Materials Outside of RCRA Jurisdiction
    B. New Option--Non-Bevill Materials Used as Alternative 
Feedstocks
    C. High Risk Mining Wastes Excluded by the Bevill Amendment
    1. General Discussion
    2. Wastes Eligible for the Bevill Exclusion
VI. Proposed Exclusion of Wood Preserving Wastewaters and Spent Wood 
Preserving Solutions From Classification as Solid Waste under RCRA
    A. Background
    1. Request for Comment in Land Disposal Restrictions Phase IV 
Proposed Rule
    2. Statutory Remedy Considered by Congress
    B. Rationale for Proposal
    C. Wastes Commonly Reused by the Wood Preserving Industry
    D. Current Regulatory Status of Recycled Wastewaters and Spent 
Wood Preserving Solutions
    E. Proposed Exclusion of Wastewaters and Spent Wood Preserving 
Solutions that are Recycled
    1. General
    2. Conditions for Exclusion
    3. Process Residuals
    4. Notification
    5. Conditions Under Which the Exclusion Would No Longer Apply
VII. Proposal to Amend Treatment Variance Rules
    A. Background
    B. Clarified Regulatory Language
    C. The CITGO Variance Under the Proposed Standard
VIII. Ban on Use of Prohibited Hazardous Waste as Fill Material
IX. Capacity Determination
    A. TC Metal Wastes
    B. Mineral Processing Wastes
    C. Phase IV Mineral Processing and TC Metal Wastes Injected Into 
Underground Injection Control (UIC) Class I Wells
X. State Authority
    A. Applicability of Rules in Authorized States
    B. Abbreviated Authorization Procedures
    C. Effect on State Authorization
    D. Less stringent requirements
XI. Regulatory Requirements
    A. Regulatory Impact Analysis Pursuant to Executive Order 12866
    1. Methodology Section
    2. Results
    B. Regulatory Flexibility Analysis
    C. Unfunded Mandates Reform Act
    D. Paperwork Reduction Act
XII. Environmental Justice
    A. Applicability of Executive Order 12898
    B. Potential Effects
XIII. Appendices

I. Background

    In the 1984 Hazardous and Solid Waste Amendments (HSWA) of the 
Resource Conservation and Recovery Act (RCRA), Congress specified that 
land disposal of hazardous waste is prohibited unless the waste meets 
treatment standards established by EPA. HSWA requires that treatment 
standards must substantially diminish the toxicity or mobility of 
hazardous waste, so that short- and long-term threats to human health 
and the environment are minimized. The treatment standards are part of 
the Land Disposal Restrictions Program.
    Today's proposed rule is one part of the collection of land 
disposal restrictions (LDR) rules known as ``Phase IV.'' They are the 
latest in a series of LDR rules that establish treatment standards for 
newly listed and identified wastes, and that resolve other hazardous 
waste matters. EPA proposed the Phase IV rule in two proposed rules (60 
FR 43654, August 22, 1995; and 61 FR 2338, January 25, 1996). It 
subsequently issued a Notice of Data Availability on Phase IV issues 
(61 FR 21418, May 10, 1996). The attached proposed rule proposes, in 
some cases, alternative approaches from those in earlier proposals. 
These changes in approach are being proposed in response to additional 
data or comments that were submitted on the previous proposals.
    Other issues from the Phase IV notices did not require additional 
proposal. These are being finalized today in a Phase IV rule appearing 
elsewhere in today's Federal Register. The final rule is titled ``Land 
Disposal Restrictions--Phase IV: Treatment Standards for Wood 
Preserving Wastes, Paperwork Reduction and Streamlining, Exemptions 
from RCRA for Certain Processed Materials; and Miscellaneous Hazardous 
Waste Provisions.''
    EPA estimates that the directly measurable benefits associated with 
the land disposal restrictions treatment standards in this rule are 
limited relative to the costs that may be incurred. Therefore, the 
relative priority of addressing these risks could be questioned. 
However, we do not believe, for this specific action, that a simple 
cost effectiveness measure alone provides a sufficient basis for 
decision-making. As discussed below, the preference for permanent 
treatment of hazardous wastes is part of the basic policy structure 
which Congress enacted when it amended RCRA in 1984, and reflects 
concern over the technological uncertainties regarding risks and long 
term protectiveness of land disposal and the intent to assure that 
waste management practices are protective for future generations.
    The whole premise of the LDR legislation is that risks posed by 
land disposal of hazardous wastes are inherently uncertain to evaluate 
and that land-based units are incapable of long term containment. Land 
disposal units (such as landfills, surface impoundments, and waste 
piles) are engineered units that can and have failed in the past with 
significant consequences to human health and the environment. For this 
reason, Congress required that hazardous wastes be pretreated before 
disposal by ``treatment [which] should be the best that has been 
demonstrated to be achievable.'' Congressional Record of July 25, l984 
(S9178). The technology-based approach of the land disposal 
restrictions provides a measure of insurance against the potential for 
failure in these land based units.
    Given these facts, and evident Congressional intent, EPA continues 
to believe that the LDR prohibitions and treatment standards are 
justified in many instances. EPA sets treatment standards that reduce 
toxicity and mobility of hazardous constituents (or require recycling), 
and EPA also requires that the treated wastes be placed in reasonably 
secure land disposal units. However, EPA does believe that, in some 
situations, the current LDR rules may not provide the optimum 
regulatory approach. In those situations, EPA will look to other 
mechanisms to address those relatively low risk scenarios.

II. Potentially Regulated Entities

    Entities potentially regulated by this final rule vary according to 
the section of the rule. The following table shows the industry 
categories that may be regulated according to each major section of the 
rule. The table is not intended to be exhaustive, but rather to provide 
a guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated.

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 Table of Entities Potentially Affected by the Phase IV 2nd Supplemental
                                Proposal                                
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                                                    Examples of entities
     Section of the rule            Category        potentially affected
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Treatment Standards for TC    Small or Large        Any party that      
 metal hazardous wastes,       Quantity Generators   generates greater  
 characteristic mineral        of Toxicity           than 100 kg of     
 processing wastes, and        Characteristic (TC)   hazardous waste or 
 other metal-bearing wastes.   metal hazardous       1 kg of acute      
                               wastes (D004-D011),   hazardous waste,   
                               characteristic        and generates TC   
                               mineral processing    metal hazardous    
                               waste, or any         wastes or          
                               hazardous waste       characteristic     
                               required to meet      mineral processing 
                               the LDR treatment     wastes. Major      
                               standard for          industries         
                               barium, cadmium,      generating TC metal
                               chromium, lead,       wastes include:    
                               silver, selenium,     primary mineral    
                               antimony,             processing,        
                               beryllium, nickel,    alkalines and      
                               thallium, vanadium,   chlorine,          
                               or zinc.              industrial         
                              Facilities that        inorganic          
                               treat TC metal        chemicals,         
                               hazardous wastes,     industrial organic 
                               characteristic        chemicals, blast   
                               mineral processing    furnaces and steel 
                               wastes, and other     mills, metal       
                               metal-bearing         plating and        
                               hazardous wastes.     polishing, aircraft
                                                     parts and          
                                                     equipment.         
Mineral Processing Secondary  Generators..........  Any person who      
 Materials, and Bevill        Storage and            generates secondary
 Issues.                       Recycling             materials from the 
                               Facilities.           primary mineral    
                                                     processing industry
                                                     that are destined  
                                                     for recovery of    
                                                     mineral values     
                                                    Facilities that     
                                                     store and/or       
                                                     recycle secondary  
                                                     materials from the 
                                                     primary mineral    
                                                     processing         
                                                     industry.          
Exclusion for Recycled Wood   Wood Preserving       Facilities that     
 Preserving Process            Facilities.           generate and       
 Wastewaters.                                        reclaim drippage   
                                                     and wastewaters on-
                                                     site from the wood 
                                                     processing         
                                                     industry.          
------------------------------------------------------------------------

III. Revised Treatment Standards for Twelve Metal Constituents in 
Nonwastewater Forms of TC Metal and Other Wastes

A. Summary

    EPA is proposing to revise the universal treatment standards (UTS) 
for twelve metal constituents: barium, cadmium, chromium (total), lead, 
selenium, silver, antimony, beryllium, nickel, thallium, vanadium, and 
zinc that can be found in nonwastewater forms of hazardous waste. 
(Note, vanadium and zinc are not regulated as underlying hazardous 
constituents in characteristic wastes.) The revised standards for eight 
of the metal constituents are higher numerical levels (less stringent) 
than their existing UTS; the revised standards for four of the metal 
constituents are lower than their existing UTS. In the original Phase 
IV proposal (August 22, 1995; 60 FR 43582), EPA proposed to apply the 
UTS to wastes that exhibit the characteristic of toxicity, as measured 
by the Toxicity Characteristic Leaching Procedure (TCLP). See 40 CFR 
261.24. This procedure measures the possibility that a waste may leach 
toxic metals above a designated concentration level, and so is a 
measure of the potential mobility of toxic metals in a waste. 
Currently, TC metal wastes are subject to LDR standards that are the 
same as the TC levels. However, these levels are typically higher than 
those for which threats posed by land disposal of the wastes are 
minimized. Chemical Waste Management v. EPA, 976 F.2d2, 13-14.26-27 
(D.C. Cir. 1992); cert. denied 113 S. Ct. 1961 (1993). Consequently, 
treatment to levels lower than the characteristic levels normally is 
required. Id. Commenters took issue with the Agency's use of data from 
previous rulemakings (those establishing UTS) in setting the TC metal 
standards. After considering comments and new information, EPA believes 
applying the UTS levels to TC metal waste is still quite valid, but in 
some cases the new data indicate that the UTS levels should be modified 
to better reflect the universe of wastes that would now be subject to 
the standards.
    As a result, the Agency is proposing to modify the proposal so that 
the treatment standards for the following metal wastes would be higher 
(less stringent) than the current UTS: barium, beryllium, cadmium, 
nickel, lead, thallium, vanadium, and selenium. The Agency is proposing 
to lower the UTS for antimony, chromium (total), silver, and zinc. The 
revised UTS levels for all twelve metal constituents would apply to all 
wastes, listed or characteristic, that are subject to UTS. In some 
cases, the proposed increase in UTS still would lower the existing 
standard (making it more stringent) for the TC metal waste in question. 
An example is the constituent lead. The current UTS standard is 0.37 
milligrams per liter, while the standard for TC metal wastes is 5.0 
milligrams per liter, because these wastes have been subject to the TC 
level rather than to UTS prior to this rule. Today's proposal would 
revise the UTS level for lead from 0.37 milligrams per liter to 0.75 
milligrams per liter TCLP. This would make the lead standard less 
stringent for listed wastes (and characteristic wastes such as 
corrosive wastes that are not characteristic for metals), but would 
lower (make more stringent) the lead standard for TC metal wastes 
required to meet UTS.

B. Applicability

    The new treatment standards would apply to four sets of hazardous 
wastes. The first is TC metal wastes, which are those found to be 
characteristic because one of their metal concentrations is higher than 
the TC level. One group of TC metal wastes would be subject to 
treatment standards for the first time: those which are found hazardous 
by testing with the Toxic Characteristic Leaching Procedure (TCLP) but 
not by the Extraction Procedure that was formerly used. This somewhat 
arcane distinction (necessitated by statutory language) is discussed in 
more detail in the following section. EPA proposed standards for all TC 
metal wastes on August 22, 1995 (60 FR 43582), and today's action would 
modify the proposed standards, as discussed in detail below. The second 
set of wastes affected by this rule are currently subject to UTS, so 
for these wastes, the proposed standards may provide regulatory relief; 
these are the other characteristic wastes (toxic organic, ignitable, 
corrosive, or reactive) that contain any of the nine metal constituents 
as underlying hazardous constituents. The third set of wastes also 
would generally have less stringent standards. These are listed wastes 
that are required to treat any of the nine metal constituents to meet 
the

[[Page 26044]]

numerical universal treatment standards. Finally, one last set is being 
required to meet LDR treatment standards for the first time: mineral 
processing wastes that exhibit a hazardous waste characteristic. (See 
55 FR at 22667 (June 1, 1990) explaining why mineral processing wastes 
no longer considered eligible for exempt status under the Bevill 
amendment are classified as ``newly identified'' for purposes of LDR 
prohibitions, and, hence, not yet subject to LDRs until EPA adopts 
regulations expressly prohibiting them from land disposal and 
establishing treatment standards for them.) The Agency proposed 
treatment standards for those wastes on January 25, 1996 (61 FR 2359), 
and today's action seeks comment on revisions to those proposed 
standards.

C. Background

    Land disposal of hazardous wastes is largely prohibited by statute, 
unless the wastes are treated before land disposal to satisfy treatment 
standards established by EPA. RCRA sections 3004(d)-(g),(m). In 
developing these treatment standards, EPA has sought to make the 
standards as uniform as possible while adhering to the ultimate 
requirement that the standards be sufficient to minimize threats to 
human health and the environment. The results are the UTS whereby the 
Agency has, wherever possible, developed the same numerical limit for a 
hazardous constituent in all of the hazardous wastes where the 
constituent is present. See 268.40 and 59 FR 47982, September 19, 1994.
    Today's notice reproposes treatment standards for the following 
toxic metals: barium, cadmium, chromium, lead, selenium, silver, 
antimony, beryllium, nickel, thallium, vanadium, and zinc. Since it 
affects the UTS, the following hazardous wastes would be affected: (a) 
characteristic hazardous wastes where these metals are present as 
Underlying Hazardous Constituents (See 268.2(I) and 59 FR 47982, 
September 19, 1994); and (b) listed wastes which have treatment 
standards for one or more of these metals. In addition, these standards 
would affect the treatment standards for wastes that exhibit the 
characteristic of toxicity as measured by the Toxicity Characteristic 
Leaching Procedure (TCLP) because of the presence of these metals. 
These include both the wastes that are newly identified because they 
exhibit the toxicity characteristic (TC), which are not yet prohibited 
from land disposal, and wastes that were already identified as 
hazardous under the predecessor leaching protocol, the Extraction 
Procedure (EP), which remain hazardous because they also exhibit the 
TC. EPA already promulgated treatment standards for this latter class 
of wastes (wastes identified as hazardous which exhibit both EP and TC 
toxicity), but these standards were established at the characteristic 
level. 55 FR 22520, June 1, 1990.
    The D.C. Circuit remanded the standards for lead and chromium as 
being insufficiently stringent when data indicated that further 
increments of treatment were technically feasible. 976 F. 2d at 27, 32. 
These proposed standards would, among other things, respond to that 
remand. The standards also would satisfy EPA's legal obligations to 
develop treatment standards for newly identified hazardous wastes 
within 6 months following the wastes' identification as hazardous, RCRA 
section 3004(g)(4), subsequently extended by consent decree. (EDF v. 
Reilly, Cir No. 89-0598, D.D.C.)

D. Proposal of Revised Treatment Standards for Metal Constituents in TC 
Metal and Other Metal-bearing Wastes

1. August 22, 1995 Proposed Treatment Standards for TC Wastes
    In support of the Phase IV proposal (60 FR 43654), EPA performed a 
comprehensive re-evaluation of the available treatment performance data 
from both listed and characteristic wastes for all metal constituents 
in the UTS table. This analysis was conducted in order to determine 
whether UTS levels could appropriately be transferred to TC metal 
wastes. Treatment standards for most of the toxic metals in 
nonwastewater listed wastes were based upon the performance of High 
Temperature Metal Recovery (HTMR), based on treatment of hazardous 
wastes K061, K062 and F006 (59 FR 47998, September 19, l994). At that 
time, the Agency determined that both HTMR and stabilization were BDAT 
and that while the majority of the UTS numbers were based on High 
Temperature Metal Recovery, stabilization was also capable of treating 
to the UTS levels. (See USEPA, ``Background Document for Treatment 
Technologies'', June 1991; and USEPA, ``Metals Recovery Processes for 
RCRA Hazardous Waste'', December 1994). As such, the Agency proposed 
that the metal UTS should also be the LDR treatment standards for 
characteristic metal wastes. This resulted in the proposed change of 
treatment standards for six TC metal constituents (barium, cadmium, 
chromium (total), lead, selenium and silver). The Agency did not 
propose a change in the treatment levels for arsenic (D004) or mercury-
retort residues (D007), and those constituents are not discussed 
further in today's notice.
2. Comments to the August 22, 1995 Proposal
    In response to the Phase IV proposal, the Agency received numerous 
comments on the proposed treatment standards. The commenters raised 
three basic issues with regard to the data used to develop the 
standards: (1) characteristic metal wastes were extremely variable and 
that the data used to calculate the treatment standards were not 
representative of the diversity of TC metal wastes; (2) while both HTMR 
and stabilization were determined to be BDAT, the standards were based 
solely on HTMR, a technology not commercially available for many TC 
metal wastes; and (3) the standards were not uniformly achievable when 
waste streams with multiple toxic metals were being treated. In light 
of these concerns, the commenters urged the Agency to obtain additional 
data that would demonstrate the effectiveness of stabilization on TC 
metal waste streams and to more fully characterize the diversity of 
these waste streams.
    The following commenters provided the Agency with stabilization 
performance data: Battery Council International, American Foundrymen's 
Association, Chemical Waste Management and the Environmental Treatment 
Council. These commenters provided extensive composite data on the 
stabilization of various TC metal wastes. While each of the data sets 
provided information on the various performance levels of stabilization 
treatment, they did not provide the Agency with the full range of 
information necessary to re-evaluate or re-calculate the treatment 
standards based on EPA's BDAT protocol (see USEPA ``Final Best 
Demonstrated Available Technology (BDAT) Background Document for 
Quality Assurance/Quality Control Procedures and Methodology'', Office 
of Solid Waste, October 23, 1991). The Agency, convinced that 
additional data were needed to further assess the treatment of TC metal 
wastes, attempted to obtain the additional information from the 
commenters; however, the information/data required by the commenters 
that would result in the generation of a ``BDAT'' quality data set has 
not been forthcoming. The reader is referred to the rulemaking docket 
for analysis and discussion of the data submittals.

[[Page 26045]]

3. Development of Revised UTS for TC Metal Wastes
    In response to the concerns raised by the commenters regarding the 
lack of stabilization data for TC metal wastes, and the concern that 
some UTS levels may be unachievable by stabilization, the Agency began 
an effort to obtain additional treatment performance data that better 
characterized the diversity of metal wastes. During September l996, EPA 
conducted site visits at three hazardous waste treatment facilities. 
These facilities represented different types of treatment operations: 
one facility was a large commercial TSDF that employed conventional 
stabilization techniques to treat a wide array of inorganic metal 
wastes and another was an on-site treatment facility that focused on 
the stabilization of inorganic metal slag. A third facility was 
commercial and focused on stabilization of inorganic materials using 
non-conventional stabilization techniques. During these site visits, 
the Agency either gathered performance data from company records or 
requested the collection of actual treatment performance data through 
sampling and analysis. The facilities provided the Agency with detailed 
performance data consistent with BDAT protocols (including effluent 
grab samples).
    The performance data represented a wide range of metal-bearing 
wastes (both listed and characteristic) that the Agency believes 
represents the most difficult to treat metal-bearing wastes. The types 
of wastes treated included mineral processing wastes, baghouse dust, 
battery slag, soils, pot solids, recycling by-products, and sludge. 
TCLP values in the untreated wastes included 4430 mg/l lead, 1580 mg/l 
chromium, 82 mg/l barium and 4280 mg/l cadmium. In addition, numerous 
waste streams contained multiple metals which would be representative 
of a characteristic waste with UHCs, while other waste streams had 
significant concentrations of combination metals including: lead and 
cadmium, barium and lead, and chromium and antimony. The Agency 
reviewed all the performance data and the facility treatment 
operations. It determined that at least two of the facilities were 
well-designed and well-operated and represented BDAT technology for the 
full range of TC metals and the metal UHCs that are often found in 
these wastes. The reader is referred to the rulemaking docket for a 
complete discussion of the site visits and the data collected by the 
Agency. See item numbers 2, 5,6, 17, 18, 19,and 20 in the docket 
submittal entitled, Documents Supporting the Reproposed Treatment 
Standards for D005, D006, D007, D008, D010, and D011 Wastes and the 
Proposed Revision to the Universal Treatment Standards for Barium, 
Cadmium, Chromium (total), Lead, Selenium, Silver, Antimony, Beryllium, 
Nickel, Thallium, Vanadium and Zinc. Note again that while EPA has 
developed data and is proposing new treatment standards for vanadium 
and zinc, they are not regulated as underlying hazardous constituents.
    In addition, between October 1994 and December 1995, the Agency 
obtained performance data from one HTMR facility based totally on grab 
samples. (The reader is referred to items 3 and 16 in the 
aforementioned docket materials for a complete discussion of the HTMR 
data set.) The assessment of the new data sets began with the 
calculation of treatment standards for each of the two data sets, i.e., 
stabilization and HTMR. Next, the Agency compared these treatment 
levels. Based on this comparison, the Agency selected the highest 
standard for each metal to establish UTS and to allow for process 
variability and detection limit difficulties. The Agency believes that 
this approach is consistent with the intent of UTS and derives limits 
achievable by both HTMR and stabilization technologies. The new data 
also confirmed that the other proposed levels (i.e., UTS) proposed on 
August 22, 1995 for TC metal waste and on January 25, 1996 for mineral 
processing waste are in fact achievable with grab sampling by both 
stabilization and HTMR. Therefore, EPA is not proposing to modify any 
levels except those discussed here.
    As a result of this new analysis, the Agency is today proposing to 
change the treatment standard for the following TC metal constituents 
as well as their associated UTS: barium, cadmium, chromium, lead, and 
silver. In addition, the Agency is proposing to change the UTS for 
antimony, nickel, thallium, vanadium, beryllium, and zinc. With these 
changes, the Agency is establishing metal treatment standards using 
performance data based solely on grab samples. EPA used the same 
methodology, sometimes called ``C 99'' in calculating today's proposed 
levels (i.e., the proposed UTS levels) as has been used in past 
rulemakings (56 FR 41164, August 18, 1991) and the BDAT Background 
Document for K061 dated August 1991. The table at the end of this 
section provides information detailing the standards generated by both 
data sets as well as the newly proposed standards. The Agency discusses 
next two metals where data are still limited.
4. Proposed Revision of UTS for Selenium
    In the Phase IV proposal, the Agency proposed a treatment standard 
of 0.16 mg/l for nonwastewater forms of D010-selenium (60 FR 43654, 
August 22, 1995). This number was the UTS level for selenium that was 
promulgated in the Phase II rule (59 FR 47980, September 19, 1994). 
Today, the Agency is proposing to change the UTS for selenium to 5.7 
mg/l TCLP and retain the current treatment standard of 5.7 mg/l TCLP 
for D010 waste. This would in effect create a uniform standard of 5.7 
mg/l TCLP for nonwastewater forms of selenium. (The Agency received no 
comment on the proposed wastewater treatment standard for selenium and 
is not asking for further comment on this issue.)
    Several commenters suggested that EPA establish the treatment 
standard for selenium at the TC level (1.0 mg/l) for nonwastewaters or 
promulgate a revised treatment standard for D010 based on stabilization 
performance data. Commenters proposed alternative treatment standards 
for D010 wastes that ranged from 0.20 mg/l to 10.0 mg/l. The commenters 
argued that the proposed standard of 0.16 mg/l which was based on the 
performance of High Temperature Metals Recovery (HTMR) was not 
achievable by stabilization and that commercial HTMR units may not 
accept selenium-containing wastes making the technology unavailable, or 
at least, not suitable as the technology basis for a uniformly-
applicable treatment standard. Furthermore, the commenters argued that 
the Agency did not account for the difficulties in stabilizing wastes 
containing high levels of selenium in conjunction with the presence of 
other metals when developing the treatment standard.
    One comment focused on the inability to stabilize selenium-
containing wastes in the presence of other metals. The commenter stated 
that they did not feel that 0.16 mg/l TCLP for nonwastewater forms of 
D010 was routinely achievable utilizing best operating practices. As 
stated in their comment, selenium has a pH and solubility that is 
significantly different from other characteristic metals. Selenium's 
minimum solubility is at a neutral to mildly acidic pH (6.5-7.5), while 
it is highly soluble in the alkaline pH range (8-12). The other 
characteristic metals have a minimum solubility in the strongly 
alkaline pH range (8-12), while their solubility increases at neutral 
and acidic pH levels. This difference in solubilities, the commenter 
stated, creates a problem for treating wastes with a mixture of

[[Page 26046]]

characteristic metals which include selenium. Since there is a 
difference in solubilities for the metals depending on the pH of the 
stabilized wastes, if a neutral pH is maintained in treatment, selenium 
will not leach but the other metals will, if a high pH is maintained, 
the selenium will leach while the other metals will not. In light of 
these distinctly different pH/solubility curves for selenium and other 
characteristic metals, the commenter believes that the treatment 
standard for selenium should be established at a higher level. In 
support of the commenters claims, a laboratory study was submitted 
showing the leachability of selenium while varying pH and binder to 
waste ratios.
    The Agency has researched the claims made by the commenter and 
concurs with his assertions. The Agency is convinced that wastes 
containing selenium concentrations greater than 1.0 mg/l TCLP in the 
presence of other metals, e.g., cadmium, lead or chromium may encounter 
difficulties in stabilization due to the different solubility curves 
noted above. While it may be possible to treat a D010 waste to the 
proposed treatment standard of 0.16 mg/l TCLP, in the absence of other 
metal contaminants, the Agency cannot be certain that this would or 
could occur. The Agency believes that it is more realistic to assume 
that treatment will occur in the presence of other metals thus limiting 
the effectiveness of stabilization on selenium. As such, the Agency has 
decided to propose to maintain the current treatment standard for 
nonwastewater forms of D010 at 5.7 mg/l TCLP. This standard is based on 
the stabilization of a D010 waste containing 700 ppm selenium and is 
considered by the Agency to be the most difficult to treat selenium 
waste. See the Third rule (55 FR 22574, June 1, 1990.)
    The Agency notes that because this treatment standard is above the 
level of leachable selenium that defines the waste as D010 (1.0 mg/l 
TCLP), D010 wastes that are generated at a level between 5.7 mg/l and 
1.0 mg/l TCLP meet the treatment standard but are still considered to 
be hazardous wastes (assuming the TCLP value exceeds 1.0 mg/l) and, 
therefore, must be land disposed in a Subtitle C facility. In addition, 
since the treatment standard for selenium is above its characteristic 
level, selenium would not be recognized as an UHC.
    The Agency has also decided to propose a change in the UTS for 
selenium from 0.16 mg/l to 5.7 mg/l TCLP. While the Agency has 
performance data showing treatment levels for selenium of between 0.16 
to 0.29 mg/l TCLP for stabilization and HTMR technologies, these levels 
seem to be achievable only with extremely low concentrations of 
selenium in the untreated waste. Therefore, the Agency feels that this 
standard does not reflect the true diversity of the waste stream, nor 
is it reflective of the most difficult to treat selenium waste. As 
such, the Agency feels that 5.7 mg/l TCLP is a better assessment of 
treatability and a more appropriate standard.
5. Proposed Revision of UTS for Beryllium
    In the Phase IV proposal, the Agency proposed to change the UTS for 
beryllium from 0.014 mg/l TCLP to 0.04 mg/l TCLP, based on composite 
data (60 FR 43683, August 22, 1995). A commenter was critical of the 
proposed beryllium level and stated that 0.04 mg/l TCLP was too 
stringent and not supported by stabilization data. However, the Agency 
has been unable to obtain, despite repeated efforts, any treatment 
performance data from that commenter to validate claims that the 
treatment standard is not achievable. Also, the Agency recognizes that 
proposing to use composite data was an error, as this is not consistent 
with BDAT methodology, as discussed above. As such, the Agency is 
proposing a UTS for beryllium based on available performance data from 
the stabilization and HTMR facilities described above. These data, 
which admittedly do not include incoming waste with high beryllium 
levels, show that the appropriate treatment level is 0.018 mg/l. 
Therefore, the Agency is today proposing a revised UTS of 0.018 mg/l 
TCLP (actually 0.02 mg/l, due to rounding) for nonwastewaters based on 
the performance of HTMR using grab samples. The Agency is however, 
soliciting comment on whether there are difficulties in treating 
various beryllium-containing waste streams. The Agency welcomes the 
opportunity to evaluate any performance data and reminds the reader 
should any hazardous beryllium production wastes fail to meet the 0.018 
mg/l TCLP level (if finalized), the facility may apply for a 
treatability variance under 40 CFR 268.42.
6. Proposed Revision of UTS for Silver
    EPA proposed a concentration level of 0.30 mg/l as the treatment 
standard for silver nonwastewaters, based on data from the treatment of 
K061 waste sampled on a composite basis. See 60 FR 43684, August 22, 
1995. Citing low human health risks from silver, commenters stated that 
EPA should not be setting a treatment standard for silver that is lower 
than the characteristic level of 5.0, and instead should remove silver 
from the list of TC constituents altogether. Later, EPA issued a Notice 
of Data Availability which stated that EPA was not prepared to make a 
decision on whether or not to retain silver on the TC list, but that 
the Agency was considering two new treatment standard options: a UTS 
level of 5.0 mg/l, or a level of 5.0 mg/l for D011 while maintaining a 
UTS of 0.30 mg/l for all other silver-containing waste. See 61 FR 
21420, May 10, 1996.
    EPA is still studying silver in order to decide on its status as a 
TC waste, and is not proposing any change to that status in today's 
notice. However, EPA is proposing a revised UTS, based on the new data 
on metal constituents discussed above. For silver, the data is based on 
treatment by High Temperature Metals Recovery and on the preferred 
method of grab sampling. The data supports a level of 0.11 mg/l for 
silver nonwastewaters, making the standard more stringent than proposed 
in either of the earlier notices.
    EPA believes that silver wastes are generally recycled due to their 
economic value and are covered by the special streamlined standards for 
recyclable materials utilized for precious metal recovery at 40 CFR 
Part 266.70 Subpart F. There may be little or no land disposal of 
silver wastes, hence little or no impact of applying a new treatment 
standard. EPA is today seeking information on quantities of silver 
nonwastewaters that would be affected by LDR treatment standards, and 
on whether a level of 0.11 mg/l is achievable for those wastes if they 
exist. However, as discussed above, standards in the LDR program can be 
either technology- or risk-based. In the absence of definitive risk 
information, the Agency sets technology-based standards. Data from both 
HTMR and stabilization technologies show 0.11 mg/l is achievable for 
nonwastewaters.

[[Page 26047]]



   Proposed Universal Treatment Standards for Twelve Metal Constituents Calculated From HTMR and Stabilization  
                                                  Sample Sets*                                                  
          [Affecting Nonwastewater TC Metal Wastes and Nonwastewater Metal Constituents in All Wastes]          
----------------------------------------------------------------------------------------------------------------
                                                                                                    Proposed UTS
                                           TC level (mg/ Existing UTS    HTMR grab   Stabilization      level   
     Waste code           Constituent           l)        level (mg/l  samples (mg/   grab samples    (revised) 
                                                             TCLP)        l TCLP)     (mg/l TCLP)    (mg/l TCLP)
----------------------------------------------------------------------------------------------------------------
D005................  Barium.............         100           7.6           3.3          21              21   
D006................  Cadmium............           1.0         0.19          0.20          0.014           0.20
D007................  Chromium...........           5.0         0.86          0.85          0.13            0.85
D008................  Lead...............           5.0         0.37          0.12          0.75            0.75
D010................  Selenium...........           1.0         0.16          0.29          0.12            5.7 
D011................  Silver.............           5.0         0.30          0.11          0.0084          0.11
                      Antimony...........  ............         2.1           0.043         0.068        ** 0.07
                      Beryllium..........  ............         0.014         0.02          0.012        ** 0.02
                      Nickel.............  ............         5.0          13.6           0.082          13.6 
                      Thallium...........  ............         0.078  ............         0.20            0.20
                      Vanadium ***.......  ............         0.23          0.015         1.6             1.6 
                      Zinc ***...........  ............         5.3           3.8           4.3             4.3 
----------------------------------------------------------------------------------------------------------------
* The proposed universal treatment standard (UTS) was established by selecting the higher of the two treatment  
  standards that were calculated from stabilized wastes and HTMR residues.                                      
** The proposed UTS levels for antimony and beryllium were rounded up to the nearest 0.01 mg/l TCLP.            
*** Vanadium and zinc are not underlying hazardous constituents.                                                

7. Demonstrating Compliance by Grab or Composite Sampling
    EPA has long preferred that compliance with the LDR standards for 
nonwastewaters be based on grab samples (a one-time sample taken from 
any part of the waste), rather than composite samples (a combination of 
samples collected at various locations for a given waste, or samples 
collected over time from that waste). This is because ``grab samples 
normally reflect maximum process variability, and thus would reasonably 
characterize the range of treatment system performance.'' (See 54 FR at 
26605-06, June 23, 1989; 55 FR at 22539, June 1, 1990.) This type of 
sampling is in keeping with the ultimate objective of the land disposal 
restrictions program: that all of the hazardous waste to be land 
disposed be treated in a way that minimizes the threats that land 
disposal could pose, not just that some average portion of the waste be 
so treated (a possible result of using composite sampling). In 
addition, there is an implementation advantage to use of grab sampling, 
since enforcement for EPA, authorized states, or citizen groups is 
facilitated if enforcement can be based on individual sampling events 
(as occurs with grab sampling).
    The universal treatment standards for nonwastewaters are 
consequently enforced on the basis of grab sampling. The revisions to 
those standards for toxic metals reproposed today would likewise be 
enforced on the basis of grab sampling, and, in all cases are based on 
grab sampling data. EPA intends to maintain that regime, with the 
temporary exception of three wastes: K061, K062, and F006 managed at 
certain facilities, as described below.
    Current treatment standards for hazardous waste K061, K062, and 
F006 were based partially on the use of composite rather than grab 
sampling. That is, the data for certain of the hazardous constituents 
regulated under that standard-- namely beryllium, nickel, lead, silver, 
cadmium, and thallium-- were obtained exclusively from composite 
samples, and the data for vanadium and zinc came partially from 
composite samples. (See memorandum from Richard Kinch to RCRA Docket 
dated August 19, 1991, regarding promulgation of K061. See also 57 FR 
at 37207, August 18, 1992, which explains that K061 standards were 
transferred to K062 and F006). The BDAT technology for this waste code 
was High Temperature Metal Recovery (HTMR), and the composite samples 
used to develop parts of the standard indeed came from HTMR facilities. 
Id. The two HTMR facilities involved in developing the data for the 
current standards have pointed out in comments to the Phase IV proposal 
and to earlier LDR rules that they may not be able to achieve the metal 
treatment standards for these waste codes if enforcement is based on 
grab sampling, and that such enforcement is unwarranted for their 
facilities since the underlying data used to develop the treatment 
standard for these wastes included composite data. (See comments from 
Horsehead Resource Development Company, Inc. and International Metals 
Reclamation Company, Inc. in the docket for the Phase IV proposal, 60 
FR 43654, August 22, 1995).
    EPA is rectifying this problem in the short term by allowing two 
HTMR facilities, Horse head Resource Development Company Inc. and 
International Metals Reclamation Company Inc. to comply with the 
current treatment standards for K061, K062, and F006 through use of 
composite samples. The two facilities must follow the procedures 
contained in two documents in appendices to this preamble, entitled 
``Procedures For Horse Head Development Company to Establish Compliance 
With RCRA Treatment Standards at 40 CFR 268.40 and 268.48 for K061, 
K062, and F006 residuals; and ``Procedures For INMETCO to Establish 
Compliance With RCRA Treatment Standards at 40 CFR 268.40 and 268.48 
for K061, K062, and F006 residuals.''
    However, EPA's ultimate intent is to require compliance with UTS on 
a grab basis for all facilities, including HTMR facilities treating 
K061, K062, or F006. As discussed above, EPA has received additional 
grab sample data on metal-bearing hazardous waste that was not 
available at the time UTS was promulgated. As discussed above, EPA has 
proposed to use the new data to revise the UTS standards for some 
constituents. It appears that with the new UTS metal levels proposed in 
this notice, that HTMR facilities should be able to meet UTS on a grab 
sampling basis. There are some data (from one facility) supporting this 
position, and EPA has requested additional data from the other 
facility, which has indicated it will provide additional data within 
six

[[Page 26048]]

months. Therefore, EPA will consider data received until six months 
from the date this notice is published in the Federal Register before 
making a final decision. The Agency will act sooner, if in its 
judgement there is little likelihood that additional data will be 
available within six months. Currently the Agency's view is that the 
UTS levels proposed today can be met by both stabilization and HTMR, 
and grab sampling must be required in all cases.

IV. Revised Treatment Standards for Mineral Processing Wastes

A. Summary

    EPA is proposing to apply Universal Treatment Standards, as revised 
today, to the newly identified mineral processing wastes. The revised 
treatment standards can be found in the table at the end of the section 
in this preamble on treatment standards for TC metal wastes.

B. Discussion

    On August 22, 1995 the Agency requested comment on a proposed 
rulemaking which would apply LDR treatment standards to all 
characteristic metal wastes (60 FR 43654), and on January 25, 1996 EPA 
proposed that those same standards apply to mineral processing waste 
that exhibit a characteristic of hazardous waste. As noted above, such 
wastes are considered to be ``newly identified'' for purposes of timing 
of LDR prohibitions. The comments received suggested that the proposed 
treatment standards could not be achieved using stabilization 
treatment; and that more stabilization technology performance data was 
necessary to set treatment levels for TC metals. Since the receipt of 
these comments the Agency has conducted site visits to facilities using 
stabilization technology to treat mineral processing or similar wastes, 
i.e. TC metal wastes. See Section II above for the discussion of TC 
metal waste.
    The new data from these site visits reaffirm the Agency's position 
that the mineral processing wastes are similar (i.e., no harder to 
treat) than those wastes from which the Universal Treatment Standards 
(UTS) were established. (In addition to the new data on TC metal waste 
referenced above, see: Modified Background Document dated December, 
1996 and BDAT Background Document for TC Metals dated August, 1995; and 
Background Document for Universal Treatment Standards dated September, 
1994). Specifically, the new site visit data came from facilities 
treating primary or secondary mineral processing (68%); facilities that 
generated metal-bearing remediation waste (10%), metal manufacturing 
waste (10%), foundry wastes (6%), and spent metallic wastes (6%), most 
of which exhibited a characteristic or were listed hazardous wastes. As 
discussed in section II above, this new data has convinced the Agency 
that some revisions should be made to the UTS. With these revisions, 
the Agency concludes that UTS levels are achievable for mineral 
processing wastes, as for other TC metal wastes.

V. Proposal of New Options for Mineral Processing Materials

    Today's proposal seeks comment on several specific options 
considered by the Agency related to recycling of secondary materials 
from mineral processing, and to wastes excluded by the Bevill 
Amendment. This proposal is a supplement to, and not a replacement of, 
the January 25, 1996 proposed rule.
    The first issue pertains to the land storage of hazardous mineral 
processing secondary materials--that is, sludges, byproducts or spent 
materials generated by and legitimately recycled within the mineral 
processing industry sector, which secondary materials would be either 
identified or listed as hazardous wastes if they are first classified 
as solid wastes (see 50 FR at 616, n.4, and 627 (Jan. 4, 1985))-- and 
when such storage could occur without the secondary materials being 
RCRA ``solid wastes''. The second issue involves whether the wastes 
generated when a facility uses alternative feedstocks along with Bevill 
raw materials retain Bevill-exempt status. EPA is proposing and seeking 
comment on new options for addressing these issues. The final matter 
addressed is a limited solicitation of comment on the question of 
whether the risks posed by some wastes which are currently Bevill-
exempt warrant future regulatory controls by the Agency.

A. New Option--Land Storage of Secondary Materials

1. General Discussion
    In the January 25, 1996, rule, the Agency proposed changes to 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. These conditions included meeting criteria to ensure that 
legitimate reprocessing was occurring and that the land-based unit was 
functioning as a process unit and not a waste disposal unit. These 
include: a performance standard through groundwater monitoring; 
technical standard by design and construction; or a determination by a 
state or EPA Region that the unit is functioning as a process unit. See 
generally 61 FR at 2339-2351. In response to this proposal, the Agency 
received 101 comments, many providing the Agency new information about 
the identification, management, and volumes of particular wastes.
    The information from the comments, further analysis of existing 
data, and new data collected since the January 25, 1996 proposal 
indicate that mineral processing secondary materials are generated in 
smaller volumes than EPA previously believed. Further, this new 
information indicates that a significant number of secondary mineral 
processing materials are not stored in land-based units. The Agency 
also has gathered additional data indicating that land-based storage of 
secondary materials contributes to environmental releases. Based on 
this information, the Agency questions the necessity of land-based 
storage units for most of the mineral processing industry.
    The Agency today is proposing a new option that would restrict the 
use of land-based units for secondary materials generated by and 
recycled within the mineral processing industry. This new option would 
condition exclusion from being a solid waste on storage in units that 
are not land-based--typically tanks, containers, or buildings. Thus, if 
a hazardous secondary material from mineral process is legitimately 
recycled within another mineral processing operation, it would not be a 
solid waste provided the storage that precedes the recycling does not 
entail land placement. This proposal is conceptually the same as the 
one EPA proposed for the oil-bearing secondary materials generated by 
and recycled within the petroleum industry. See 60 FR 57753 (Nov. 20, 
1995). The Agency would make an exception where there is a volumetric 
necessity to use land-based storage units to store hazardous secondary 
materials. The Agency is proposing as the volumetric cut-off 45,000 
tons per year for solids and one million tons per year for liquids--
consistent with the high volume criteria previously established by the 
Agency for 20 special mineral processing wastes. (See 54 FR 36629, 
September 1, 1989). High volume hazardous secondary materials, to the 
extent that any exist, would be subject to the land storage conditions 
based on the concepts proposed in the January 25, 1996 Proposed Rule. 
(See 61 FR at 2345-48). Further, in today's notice EPA is providing 
information on what types

[[Page 26049]]

of tanks, containers, and buildings would be suitable as storage 
structures. In general, the Agency is proposing that these units be 
able to contain the secondary materials, but would not require that the 
units satisfy subtitle C design, operation, and performance standards. 
(See Non-RCRA Tanks, Containers, and Buildings, EPA, 1997). This 
approach, again, is analogous to that proposed for oil-bearing 
secondary materials generated by and recycled within the petroleum 
industry.
    The Agency received comments that land based units were not 
protective due to uncontrolled releases of hazardous constituents. In 
evaluating the comments, the Agency identified additional information 
which characterizes how mineral processing land-based units can release 
or threaten to release hazardous constituents. (See Damage Cases and 
Environmental Releases, EPA 1997). Also, the Agency has found that use 
of land-based units to store hazardous secondary materials is less 
common than EPA previously believed, indicating that land-based storage 
may not be such an integral practice of the mineral processing 
industry. Further, as noted in the preceding paragraph, the information 
provided by commenters indicates that the volumes of mineral processing 
secondary materials may be lower than expected, indicating that land-
based storage may not always be necessary because comparable quantities 
of secondary materials from other industrial sectors are typically 
managed in tanks, containers, and buildings. This information is 
provided in the RCRA docket for public review and comment. (See 
Characterization of Mineral Processing Wastes and Materials, EPA 1997).
    The information collected by the Agency indicates that mineral 
processing hazardous secondary materials stored in land-based units can 
pose actual and potential threats to human health and the environment. 
Due to particle size reduction, heat, and chemical reactions in the 
processing steps, metal compounds and other constituents become more 
mobile and concentrated. (54 FR 36614-36619, September 1, 1989). 
Specifically, EPA has found cases where land storage (surface 
impoundments and piles) of hazardous secondary mineral processing 
materials awaiting recycling increase the potential for groundwater 
contamination, contaminated runoff, windblown dust, and soil 
contamination and increase the cost of cleanup. (See Damage Cases and 
Environmental Releases, EPA, 1997).
    In the case of piles, the storage practice of allowing secondary 
materials to erode due to rainfall and to be carried away by the 
prevailing winds can pose actual or potential threats to human health 
and environment and are suggestive of waste disposal practices. (See 
Damage Cases and Environmental Releases, EPA, 1997). The same is true 
for surface impoundments where materials are allowed to migrate to 
contaminate soils and groundwater. In contrast to these practices, most 
other industries which generally store secondary materials destined for 
recycling in tanks, containers, or buildings. Further, and more 
importantly, these land-based storage practices can result in the types 
of environmental damage that RCRA was designed to prevent.1 
Such materials can be viewed as ``part of the waste disposal problem'' 
when stored in land-based units, and hence ``discarded'' (within the 
meaning of the statutory definition of solid waste, RCRA section 1004 
(27)). American Mining Congress v. EPA, 907 F.2d 1179, 1186 (D.C. Cir. 
1990). The Agency is proposing conditions that would better define when 
discard is not occurring, such as storage in a tank, container, or 
building.
---------------------------------------------------------------------------

    \1\ See RCRA Section 1003(b), 42 U.S.C. 6902(b) (``The Congress 
hereby declares it to be the national policy of the United States 
that, wherever feasible, the generation of hazardous waste is to be 
reduced or eliminated as expeditiously as possible. Waste that is 
nevertheless generated should be treated, stored, or disposed of so 
as to minimize the present and future threat to human health and the 
environment.'')
---------------------------------------------------------------------------

    The Agency received sufficient comment on the jurisdictional solid 
waste issues in the January 25, 1996 rule and requests that commenters 
direct their comments solely to the new options in today's notice.
    As noted earlier, EPA initially found that land-based units at 
mineral processing sites have historically been a significant part of 
the production processes typical of the mining and mineral processing 
industries. (See 61 FR at 2340-41). The Agency reasoned that land-based 
units were necessary due to 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) and historical practices for the 
mineral industry. However, the Agency also noted that there is a trend 
for some mineral processing facilities to manage secondary materials in 
tanks or other units which provide containment integrity. The Agency 
believes that the trend toward storage of secondary materials in tanks, 
containers, and buildings is a function of technological advances, 
process changes, and sometimes in response to increasing environmental 
liability.
    The Agency's review of comments on the volumes and the management 
practices of secondary materials generated support the observation that 
facilities are less likely to use land-based units and are managing 
more hazardous secondary materials in contained units. Based on the 
comments received and further evaluation of new data, the Agency has 
found the volumes of hazardous secondary materials from mineral 
processing to be much lower than earlier believed. Specifically, EPA 
found that of the 119 hazardous waste streams, 117 (98 percent) were 
generated in quantities lower than the respective Bevill high volume 
cutoffs for solid and liquids. Even more demonstrative is that 79 (48 
solid wastes and 31 liquid wastes) of the 119 waste streams are 
generated in quantities less than 5,000 tons per year. (See 
Characterization of Mineral Processing Wastes and Materials, EPA, 
1997).
    EPA's assumption that there was production-related necessity for 
mineral processing facilities to utilize land-based storage units is 
also called into question by comparison of other industries' storage 
practices with respect to comparable metal-bearing wastes which are 
likewise recycled for metal recovery. For example, electric arc furnace 
dust from steel smelting (K061) is a similar metal-bearing waste that 
is also re-processed. K061 is generated at the average rate of 4,662 
tons per facility per year. However, K061 is stored in tanks, 
containers, and buildings, not on the land. There is no evidence that 
such management poses an undue burden on the generators or processors 
of K061. Further, there are many similarities between the recycling of 
K061 and the recycling of hazardous secondary materials by the mineral 
processing industry. In both cases, metal-bearing dust that bears 
resemblance to the raw material metal concentrate being smelted is 
generated as part of a smelting process.
    The Agency has seen a trend for mineral processing wastes to be 
placed in tanks upon generation and treatment. This is the case for 
spent potliners K088 listed waste, a primary mineral processing waste 
and one of the remanded smelting wastes. Approximately 23 facilities 
generate an average of 5,400 tons per year of K088, an aggregate of 
125,000 tons per year.2 One facility, Reynolds Metal 
Company,

[[Page 26050]]

is able to store and treat almost the entire nation's production of 
K088 in tanks, containers, and buildings. In the case of spent aluminum 
potliners, the industry does not appear to be unduly burdened by 
storing this waste in tanks, containers, or buildings.
---------------------------------------------------------------------------

    \2\ EPA Background Document for Capacity Analysis for Land 
Disposal Restrictions, Volume 1, February 1996.
---------------------------------------------------------------------------

    Commenters presented little in the way of data or compelling 
technical reasons why mineral processing hazardous secondary materials 
cannot be stored in units other than land-based units. One commenter 
stated that molten copper slag needs to be poured onto the ground 
because no container would withstand the heat during the cooling 
process. However, the Agency finds this example unpersuasive because 
copper slag is one of the special 20 mineral processing wastes and 
therefore isn't subject to subtitle C regulation (See 261.4(b)(7)). In 
any case, the copper slag is stored and transported in metal containers 
prior to being land applied, indicating that land storage is not an 
exclusive alternative. In addition, the slag is typically put back into 
the beneficiation or smelting operation within 24 hours, which is a 
practice indicating immediate reuse and not discard. (Additional 
discussion on the concept of immediate reuse can be found in Section 
IV.A.4-Class of Materials Outside of RCRA Jurisdiction.) One commenter 
stated that red and brown muds from bauxite refining required surface 
impoundment due to large volumes. Here also the Agency finds this 
example unpersuasive because red and brown muds are included in the 
special 20 mineral processing wastes and therefore are not subject to 
subtitle C regulation (See 261.4(b)(7)). Commenters did not identify 
any other materials for which land-based storage was a compelled mode 
of management.
2. Criteria for High Volumes of Bevill-Exempt Mining and Mineral 
Processing Wastes
    High volume is the principal indicator of whether a particular 
waste is amenable to management under Subtitle C of RCRA. In developing 
the high volume criterion for special mineral processing waste, the 
Agency evaluated four methodological issues: (1) The appropriate degree 
of aggregation of waste streams; (2) the basis for quantitative 
analysis (facility specific vs. industry wide); (3) the units of 
measure; and, (4) the types of other wastes to be used as the basis for 
comparison. (For a detailed discussion on establishing the high volume 
criteria see 54 FR 15327-31, April 17, 1989). The Agency established a 
high volume cutoff for solid wastes from mineral processing at 45,000 
tons per facility waste stream per year and the high volume cutoff for 
liquids at one million tons per facility waste stream per year. In the 
case of extraction/beneficiation wastes, the Agency published a 
determination that regulation of such wastes under Subtitle C of RCRA 
was not warranted, primarily because traditional hazardous waste 
controls applied to large volume mining wastes may be technically 
infeasible or economically impractical. July 3, 1986 (51 FR 24496). In 
today's rule, the Agency is soliciting comment on whether large volume 
secondary materials from mineral processing should similarly be given 
special consideration. The Agency is soliciting comment on whether 
large volume secondary materials from mineral processing may require 
land-based storage because of technical infeasibility or production-
related necessity.
    Under this new option, (actually a subset of the January 25 
proposal) those mineral processing secondary materials that meet or 
exceed the high volume criteria would be eligible for the conditional 
exclusion as proposed in the January 25, 1996 Proposed Rule (61 FR 
2338). Specifically, if large volume secondary materials are stored on 
the land, such storage unit must meet either risk based performance 
standards, or minimum design criteria, or receive a site-specific 
determination that the unit is a process unit and not a waste disposal 
unit. 61 FR at 2345-47. The generally applicable conditions related to 
legitimate recycling and speculative accumulation would also apply. 61 
FR at 2342-45. In essence, today's proposal applies one additional 
condition: to be stored in a land-based unit, the secondary material 
must be generated on a per waste stream annual basis that meets or 
exceeds the high volume criteria. The Agency solicits comments on this 
proposed regulatory approach.
3. Containment Units
    EPA has collected information on a variety of tanks, containers, 
and buildings. The unit must function as a process unit and should be 
designed to contain the material placed in it with reasonable 
certainty, that is, the secondary materials must be stored in a way 
that distinguishes the unit from a waste disposal unit. Generally, a 
containment unit should be an engineered unit made of non-earthen 
materials providing structural support. The Agency believes that most 
containment units currently in use by the mineral industry would meet 
this description. The Agency's review of currently available tanks, 
containers, and buildings indicates that wide variety of commercially 
available units meet or exceed these criteria. The capacity, design, 
and function of these containment units are as varied as the 
construction materials. (See Non-RCRA Tanks, Containers, and Buildings, 
EPA, 1997). This report provides examples of what the Agency considers 
to be acceptable containment units for the storage of mineral 
processing secondary materials.
    As discussed in this report, an acceptable tank or container must 
be free standing and not a surface impoundment, be manufactured of a 
material suitable for storage of its contents, and meet comparable 
specification as those established by ASTM, API, or other industry 
standards. Additional descriptions of these standards and examples of 
acceptable storage units are described in EPA's technical background 
document. (See Non-RCRA Tanks, Containers, and Buildings, EPA, 1997.) 
An acceptable building containment unit must be a man-made structure 
and foundation constructed from non-earthen materials, have walls 
(which may be removable), and have a roof suitable for diverting 
rainwater away from the foundation. In considering criteria for tanks, 
containers, and buildings, EPA is placing special emphasis upon 
practical considerations, such as the need to transport materials in 
and out of the unit in a reasonable fashion. The Agency believes that 
buildings with one or more open doors or removable walls accessible to 
machinery, such as a front-end loader, are acceptable. The Agency 
solicits comment as to whether a three sided concrete bunker, with no 
roof, used to store flue dust is an acceptable building or whether a 
tank or container needs to be covered or have a fixed or removable lid. 
Such containment units may be acceptable in geographic regions with 
sparse rainfall.
    The Agency would not require that these units meet full Subtitle C 
requirement for storage units of hazardous wastes. Specifically, the 
Subpart J requirements for tanks at 40 CFR 265.190-265.201 would not be 
required. The Agency believes that an appropriate indicia of 
containment should include a comparison of how this industry stores its 
primary feedstocks and products, which is typically in non-subtitle C 
tanks, containers, or buildings. The Agency believes that it is 
reasonable not to condition an exclusion on using units that meet all 
of the subtitle C standards. These standards were not created to 
demarcate a line between wastes and non-wastes, and, similarly, are not 
the

[[Page 26051]]

necessary benchmark for ascertaining if a unit functions as part of a 
production process or is being used as a mode of discard. Indeed, even 
raw materials containment structures would not meet all of the subtitle 
C requirements. The Agency solicits comment on this approach.
4. Class of Materials Outside of RCRA Jurisdiction
    In the January 25 proposal, the Agency stated that the statutory 
definition of solid waste, as well as the judicial opinions construing 
it, must be taken into account in addressing EPA's jurisdiction over 
mineral processing secondary materials. 61 FR 2341. In American Mining 
Congress v. EPA, 824 F. 2d 1177 (D.C. Cir. 1987) (``AMC I''), the court 
found that EPA's jurisdiction does not extend to materials that are 
destined for immediate reuse in another phase of the industry's ongoing 
production process. 824 F. 2d at 1186. Subsequent judicial opinions 
have clarified the narrow 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 n2. In the January 25 rule, the 
Agency focused its attention on land-based units which by their very 
nature are unable to prevent releases of secondary materials. 61 FR 
2342. While storage of secondary materials on the land is one 
indication of discard, other practices such as lack of immediate reuse 
is an indication that unit is part of the waste management problem. The 
Agency has damage case information involving the environmental release 
of product-like materials being stored for extended periods of time. 
(See Damage Cases and Environmental Releases, EPA, 1997). Conversely, 
materials that are immediately reused in a process is a practice 
indicative of on-going processing that is outside the scope of RCRA 
subtitle C.
    Based on the Agency's study of mineral processing industry 
practices and review of comments on this subject from the January 25 
proposal, the Agency believes initially that there are two categories 
of materials that are included in the definition of immediate reuse. 
The first are materials that by their very nature are being continually 
processed and whose management practices indicate that discard is not 
occurring. These materials have always been outside of RCRA 
jurisdiction and are unaffected by this or the January 25 proposal. An 
example are copper reverts, a refined copper material that falls on the 
ground when molten copper is transferred within the 
smelter.3 The common industry practice is to pick up reverts 
on an hourly basis and put them back into the smelting process. These 
are not secondary materials (sludges, spent materials, or byproducts) 
at all but rather some type of in-process material that is being put to 
further use. There is no use for reverts other than to be added to a 
copper smelting operation for continued refining. Further, the Agency 
is not aware of any case where reverts have been abandoned, discarded, 
or whose land storage has contributed to environmental problems. Copper 
reverts have always been outside of RCRA jurisdiction.
---------------------------------------------------------------------------

    \3\ Reverts are matte and copper spilled in the converter aisle 
in the process of being transferred to ladles from one part of the 
smelting process to another. See Memorandum from Roderick Dwyer, 
National Mining Association, to James Berlow, EPA, August 31, 1995.
---------------------------------------------------------------------------

    The second category are secondary materials whose management 
practices indicate that ongoing process immediate reuse is occurring. 
An example of an immediately reused secondary material would be copper 
flue dust generated from smelting operations. Most facilities routinely 
store flue dusts for very short periods of time before returning the 
material to the smelting process. Similar to reverts, copper flue dust 
has no other use other than to be returned to the smelting process for 
continued refining. However, unlike reverts, the Agency has information 
indicating that some flue dusts are stored for extended periods of time 
and have contributed to environmental problems. (See Damage Cases and 
Environmental Releases, EPA, 1997). The Agency believes that 
environmental releases are a function of the length of storage time for 
these materials.
    Defining a particular time period that constitutes immediate reuse 
raises several considerations. The Agency has found that most mineral 
processing facilities operate 365 days per year, 24 hours per day. 
Because of this continuous production schedule, secondary materials 
that are destined for immediate reuse are routinely placed back into 
the process on an hourly basis and most are recycled within one or two 
days. The Agency believes that a time period of two days is an 
appropriate standard for immediate reuse. This means that a secondary 
material that is put back into production within two days of generation 
is outside of RCRA jurisdiction, regardless of whether it is stored on 
the land. The Agency believes that while most facilities could comply 
with a much shorter time period, the two day period allows flexibility 
to perform the major steps necessary for recycling. The Agency believes 
that there are generally five major steps: (1) Generation of the 
secondary material; (2) sampling of the material (3) chemical and 
property analysis of the material; (4) processing decisions; and (5) 
placing material back into the process.4 Even if only one of 
the steps were to occur in a separate eight hour shift the entire 
sequence would require 40 production hours, which is well within the 
two day allowable period. The Agency believes that this is a worst case 
scenario, and certainly within the zone of reasonable durations from 
which EPA could select a value, because most facilities process 
materials in a much shorter time period than the two day (48 hour) 
period.
---------------------------------------------------------------------------

    \4\ These steps are based upon information obtained from the 
Society of Mining Engineers Mineral Processing Handbook, Volume 2, 
Section 30--Sampling and Testing, and Section 14G--Purchase of 
Copper Concentrates and Cement Copper (1985); By-products Recycling 
at ASARCO. Processing of Drosses, Slages, and Dusts, G. Archer, B. 
Dunn, and F. Ojebuoboh, The Minerals, Metals, and Materials Society 
(1991).
---------------------------------------------------------------------------

    The Agency realizes there are occasions where a processing device 
must be taken off line for maintenance. There are occasions where 
machinery breaks down and extensive repair is needed. In such cases, 
the facility usually has parallel or backup devices to continue 
production. Nevertheless, the Agency realizes that this may not always 
be the case and that sometimes production stops for extended periods of 
time. The point is that notwithstanding the main line production 
stoppages, secondary materials destined for immediate reuse are 
routinely put back into production expeditiously. To make allowance for 
production stoppages, the Agency is proposing that the tolling of the 
two day period for immediate reuse would also stop. The tolling would 
continue on the next production day. Put another way, a production day 
counts towards one day of the two day limit.
    In today's proposal, the Agency is limiting the two day immediate 
reuse exclusion only to on-site processing, that is, where a material 
is generated and reused in the same or similar process at the same 
facility. EPA believes that this is a reasonable interpretation of the 
``immediate reuse'' test articulated in the judicial opinions. Once 
secondary materials are transferred off-site, the transaction is less 
continuous, and elements of discard

[[Page 26052]]

such as use of land-based storage can be assessed in determining if 
management of the material has become part of the waste disposal 
problem. AMC II, 907 F. 2d at 1186. Further, the exclusion does not 
apply to secondary materials in either category that are managed in a 
way indicative of disposal.
    The Agency solicits comment on the appropriateness of a two day 
time period; whether there are more practical or appropriate measures 
of immediate reuse; and whether this exclusion should apply beyond on-
site processing. Further, the Agency solicits comment on what other 
specific materials would qualify under the immediate reuse exception.

B. New Option--Non-Bevill Materials Used as Alternative Feedstocks

    The Agency is proposing an option related to the case where a 
process which generates a waste exemption from subtitle C regulation 
under the Bevill amendment uses as partial feedstock something other 
than a Bevill raw material. An example would be a copper beneficiation 
mill which uses by-products from primary zinc manufacture as an 
auxiliary feedstock along with copper ore. This new option would limit 
availability of the Bevill exemption to wastes generated exclusively 
from the use of Bevill raw materials, namely ores and minerals. Because 
of the potential additive risk posed by the co-processing of non-Bevill 
materials, the Agency is proposing an option that would `prevent 
contaminants from non-Bevilled materials to be afforded the Bevill 
exclusion. This option is not an alternative to the option of 
restricting use of land-based storage units discussed in the section 
entitled ``New Option--Land Storage of Secondary Materials.'' It is an 
independent proposal which could be adopted regardless of the Agency's 
decision on land-based storage units.
    In the January 25 proposal, the Agency discussed one option for 
evaluating wastes generated from these types of co-processing 
operations. 61 FR at 2351. In order for the waste to qualify for the 
Bevill exclusion under that proposal, the Agency proposed the following 
criteria: (1) The waste needs to result from operations that process 
greater than 50% beneficiation raw materials; (2) the material being 
co-processed would have to meet the tests for legitimate recycling 
proposed in the January 25 notice; and (3) the resulting waste could 
not be ``significantly affected'' by addition of the co-processed, 
alternative feedstock. This ``significantly affected'' test involved 
comparing wastes generated by processing exclusively Bevill raw 
materials with wastes from co-processing alternative feedstocks and 
showing that the addition of the alternative feedstocks did not have 
either a statistically significant effect, or, in the alternative, an 
environmentally significant effect. Wastes not ``significantly 
affected'' remained the type of waste EPA had determined warrant 
Subtitle C exemption. 61 FR at 2351.
    Most industry commenters supported the 50 percent criteria but 
disagreed with the need for a quantified legitimacy test and the 
significantly affected test. Further, industry commenters argued that 
these tests were unworkable as applied to their wastes. Industry 
commenters also argued that Congress intended the Bevill Amendment to 
be interpreted broadly, to include not only solid waste from the 
extraction, beneficiation, and mineral processing of ores and minerals 
but also wastes generated when (1) non-Bevill feedstocks are added to a 
unit that generates a Bevill waste and (2) non-Bevill wastes are added 
directly to a Bevill waste.
    At the outset, it is important to note the distinction between 
these two scenarios. The new option discussed in today's proposal 
addresses the first scenario in which non-Bevill feedstocks are co-
processed with Bevill raw materials in a unit that generates a Bevill 
waste. The second scenario, which refers to direct disposal of a non-
Bevill waste with a Bevill waste, was addressed in the January 25, 1996 
proposed rule and EPA's proposed approach for dealing with that 
scenario is not being modified by today's notice.5
---------------------------------------------------------------------------

    \5\ See Proposed Amendment to Bevill Mixture Rule, 61 FR at 
2352. The Agency proposed that Subtitle C requirements would apply 
when non-Bevill hazardous wastes are disposed with, stored with, 
mixed with or otherwise combined with Bevill-exempt solid wastes.
---------------------------------------------------------------------------

    Under today's new option, in order for a waste to qualify for the 
Bevill exclusion, all feedstocks entering the unit must be solely 
derived from the extraction, beneficiation or processing of a virgin 
ore or mineral. This means that only extracted virgin ores used as a 
feedstock to a beneficiation operation and only concentrates derived 
from beneficiation and then used as a feedstock to mineral processing 
would be eligible for the Bevill exclusion. If alternative materials 
are used as feedstocks, the resulting waste would not be eligible for 
the Bevill exclusion. For purposes of this proposal, alternative 
feedstocks include secondary materials generated from mineral 
processing operations and any materials generated in industries other 
than mining or mineral processing, regardless of whether the material 
exhibits a hazardous characteristic.
    Under this option, the 50 percent criteria for Bevill eligibility, 
as discussed in the January 25, 1996 proposed rule at 61 FR 2351, would 
not be applicable. Similarly, the significantly affected test proposed 
at 61 FR 2351 would no longer be applicable. Since under today's 
proposal, any addition of a non-Bevill feedstock would disqualify the 
resulting wastes from the Bevill exemption, the 50 percent and 
significantly affected tests would be redundant.
    This proposal is based on the following principles. First, the 
Bevill exemption allows for management of what would otherwise be 
hazardous waste outside of subtitle C controls. This uncontrolled 
management has led to instances of, widespread, and serious 
environmental damage. (See Damage Cases and Environmental Releases, 
EPA, 1997). In light of this, EPA believes it is sound policy to 
interpret the scope of the exclusion to the narrowest permissible in 
order to limit the amount of hazardous waste escaping regulatory 
control. Second, the Bevill amendment creates an unfortunate incentive 
to maximize volume of Bevill waste generated. Put another way, there is 
an incentive to maximize the volume of material processed through the 
Bevill circuit because the resulting wastes are accorded Bevill exempt 
status. Compounding the problem, the co-processing can frequently make 
the resulting wastes more toxic. Again, given the exempt status of the 
wastes, EPA believes it makes sense to limit the scope of the exemption 
and reduce this incentive for waste maximization. These points are 
discussed more fully below. Co-processing of non-Bevill feedstock has 
changed significantly since the Agency performed its Congressionally 
mandated studies. When EPA studied extraction, beneficiation, and 
mineral processing wastes in the 1985 and 1990 Reports to Congress, the 
Agency did not specifically study the practice of co-processing 
alternative feedstock with Bevill feedstocks. In the case of 
beneficiation, the Agency believed this practice was conducted on such 
a small scale as to warrant little or no mention in the 1985 Report to 
Congress and 1986 Regulatory Determination. For mineral processing the 
Agency believed that both co-processing and co-disposal of hazardous 
materials was performed on such a small scale that it addressed both 
situations under a general Bevill mixture rule. (See 54 FR 36622-23 and

[[Page 26053]]

also 61 FR 2352). The Agency's continued study of mining and mineral 
processing indicates that co-processing of non-Bevill feedstocks is 
becoming much more prevalent. This could be because as EPA has 
implemented the LDR program, generators have sought alternative outlets 
for waste rather than paying for the required treatment. For example, 
copper smelting operations currently process a substantial portion of 
the nation's F006 listed hazardous electroplating wastes, a practice 
that did not exist when EPA studied the Bevill special waste, copper 
slag, produced by this smelting. Based on environmental damages from 
copper slag and other Bevill wastes, the Agency is concerned about the 
contribution of contaminants from non-Bevill sources. The Agency seeks 
additional data on the types, quantities, and management practices of 
non-Bevill feedstock which are co-processed by units that generate 
Bevill wastes.6
---------------------------------------------------------------------------

    \6\ EPA notes that it has established a different type of rule 
covering the status of cement kiln dust generated when a cement kiln 
co-processes hazardous waste fuel along with its normal raw 
materials. In this case, the cement kiln dust retains Bevill status 
so long as the dust is not ``significantly affected'' by the 
hazardous waste co-processing. 40 CFR 266.112. There is an important 
distinction between this situation and co-processing in the 
beneficiation/mineral processing setting which justifies a different 
regulatory approach. A cement kiln which burns hazardous waste must 
obtain a subtitle C permit for its hazardous waste storage and 
combustion activities, and must subject its entire facility 
(including cement kiln dust management) to RCRA corrective action in 
the event of releases. There thus are substantial environmental 
safeguards present which justify a more lenient interpretation of 
Bevill status.
---------------------------------------------------------------------------

    The Agency believes that the addition of hazardous substances from 
non-Bevill sources only makes the risk posed by exempt mining wastes 
greater. In light of the environmental damages caused by Bevill wastes, 
the high cost of remediation, and the contribution of contaminants from 
non-Bevill feedstocks, the Agency is taking comment on a rigorously 
narrow reading of the Bevill exemption and proposing this option which 
removes the Bevill exclusion for wastes that are generated from a unit 
or device that co-processes non-Bevill alternative feedstocks. Under 
this option, non-Bevill feedstocks may still be processed in a Bevill 
device or unit; however, the resulting wastes will not be afforded the 
Bevill exclusion. The Agency found cases where alternative feedstocks 
may have contributed to the quantities of hazardous constituents found 
at mining and mineral processing sites. (See Damage Cases and 
Environmental Releases, EPA, 1997.) In addition, the Agency has 
reviewed other damage cases from beneficiation and mineral processing 
sites and similarly found that non-Bevill materials may have 
contributed to the environmental problems at these sites. Id. Because 
of the potential additive risk posed by the co-processing of non-Bevill 
materials, the Agency is proposing an option that would prevent 
contaminants from non-Bevill materials being afforded the Bevill 
exclusion.
    The Agency believes that co-processing even nonhazardous 
alternative feedstocks can also potentially pose additional risks when 
co-processed in a unit generating Bevill waste. Some alternative 
feedstocks, while not exhibiting a RCRA hazardous characteristic, often 
still contain hazardous constituents that ultimately are disposed with 
the Bevill wastes. These hazardous constituents are found in 
remediation wastes at mining sites, adding to the cleanup costs. (See 
Damage Cases and Environmental Releases, EPA, 1997). The Agency's views 
are influenced in part on Horsehead Resources Corp. v. Browner 16 F.3d 
1246, 1258 where the Court held that ``it simply makes no sense to 
permit Bevill devices to become inadequately regulated dumping grounds 
for hazardous materials.'' The Agency is proposing that the co-
processing of alternative feedstocks, even those that do not exhibit a 
characteristic under RCRA, results in the loss of the Bevill exemption 
for the resulting wastes. The Agency solicits comment on this approach.
    There are situations where secondary materials generated from 
mineral processing would be given Bevill protection. This is when the 
secondary material is independently classified as a Bevill waste, for 
example, it is one of the enumerated special mineral processing wastes 
streams or a beneficiation waste. (See Sec. 261.4(b)(7)). Under today's 
proposal, the use of a Bevill waste as an alternative feedstock does 
not change the Bevill status of a resulting waste. For example, copper 
slag (a special 20 waste) used as an alternative feedstock for a copper 
beneficiation operation would not change the Bevill status of the 
resulting tailings. The Agency believes that use of a Bevill waste as 
an alternative feedstock does not have an overall impact on the 
toxicity of the resulting waste since any Bevill waste can be land-
disposed without regard to co-disposal with another Bevill waste.
    The benefits to the option proposed today include a reduction of 
hazardous substances found in the resulting Bevill wastes and a 
potential reduction of environmental risks. The environmental cleanup 
costs due to hazardous substances found at mine and mineral processing 
sites is significant (See Costs of Remediation at Mine Site, EPA, 
1997).
    The Agency also believes that this approach could assist in more 
simpler application of the exemption. The application of the Bevill 
exemption poses many practical difficulties, especially where non-
Bevill feedstocks are co-processed and other industrial wastes are 
stored and mixed with Bevill feedstocks. There can be a significant 
implementation burden (e.g., analytical testing, assessing a facility's 
material balance and operating costs) associated with discerning in 
some cases whether co-processing of alternative feedstocks is a 
legitimate form of recycling or simply a method of disposal.
    In these instances, as noted earlier, the Bevill exemption creates 
an incentive to maximize generation of wastes. Any secondary materials, 
including those that are low volume and highly toxic, that are used as 
a feedstock in a beneficiation unit are afforded the same Bevill 
protection as a large volume mining waste. Given that beneficiation 
units generally recover only a fraction of material in a feedstock 
(often less than one percent of the volume or weight) the majority of 
the alternative feedstock ultimately is discarded along with the Bevill 
waste. Further, the remainder often has contaminant concentrations 
greater than the Bevill waste. (See Characterization of Mineral 
Processing Wastes and Materials, EPA, 1997) By clearly defining which 
feedstocks are derived from the mining of an ore or mineral and 
therefore Bevill eligible, regulators would be more readily able to 
determine which wastes found at a mine or mineral processing sites 
qualify for the Bevill exemption and which do not.
    However, there would be negative aspects of this restriction on 
alternative feedstocks. First, there are limits to EPA's knowledge of 
environmental damage caused by Bevill wastes. Most Bevill wastes are 
disposed of in land-based units and the Agency can measure the degree 
of contamination caused by the overall disposal practice. In many cases 
it is difficult to distinguish between the contribution of contaminants 
from alternative feedstocks and contaminants from Bevill-exempt wastes. 
Some alternative feedstocks may not pose any additive risk to the 
resulting Bevill wastes, and this option may needlessly restrict 
legitimate recycling and cause industry to forgo economical recovery of 
minerals. This may be especially true in the case where the alternative 
feedstock does not exhibit the toxicity

[[Page 26054]]

characteristic (TC). Removing Bevill-exempt status if such materials 
are used as an alternative feedstock may therefore not result in 
improved environmental management. A useful means of recycling the 
alternative feedstock also might be eliminated. The Agency solicits 
comment on this proposed option generally as well as the specific 
proposal to eliminate the applicability of Bevill for co-processing 
nonhazardous materials.
    This restriction would not be applicable to materials such as water 
or acid that are otherwise effective substitutes for commercial 
products; these materials are not being reclaimed and are not solid 
wastes. (See 261.2(e)(ii)). The Agency solicits comment on whether 
there may be situations where water or acid is a solid waste because 
they are being reclaimed in a Bevill unit and whether the alternative 
feedstock restriction should apply.
    The Agency seeks comment on this option, which would remove the 
Bevill exclusion for wastes resulting from the co-processing of non 
Bevill feedstocks. As previously stated, the Agency also seek comments 
on whether this restriction should apply to all non-Bevill feedstock or 
only to those that exhibit a hazardous characteristic, specifically the 
TC. (261.24).

C. High Risk Mining Wastes Excluded by the Bevill Amendment

1. General Discussion
    The Agency is presenting new information on threats to human health 
and the environment from Bevill mining and mineral processing wastes 
and posing the question of whether certain wastes currently excluded 
under Bevill warrant further study or regulatory controls. The Agency 
also is soliciting comment on whether a high volume test or other 
method should be applied to wastes in order to determine Bevill 
eligibility.
    As part of the information gathering efforts under the Phase IV 
rulemaking, the Agency has continued to learn more about management 
practices in the mining and mineral processing industry, and has 
reached the point where public input would help focus the Agency's 
future efforts in determining how best to address the risks posed by 
Bevill wastes. The Agency's concerns include issues involving 
environmental and natural resource damages from acid mine drainage, the 
use of cyanide and other toxic chemicals, radioactivity, stability of 
tailings and waste rock piles, and in-situ mining methods. The Agency 
prepared a report that includes a history of the Bevill Amendment and 
the Agency's activities, description of mining practices, information 
about actual and potential environmental threats caused by mining and 
mineral processing wastes, and information about new risk assessment 
techniques that may be applicable to mining wastes. This report is 
presented in the RCRA docket for review and comment. (See Risks Posed 
by Bevill Mining Wastes, EPA, 1997). Any regulatory activity regarding 
the examination of risk posed by Bevill wastes would be addressed in a 
future rulemaking other than Phase IV.
    Based on the information in this report, the Agency is therefore 
seeking comment on whether reexamination of some Bevill wastes is 
warranted. In today's notice, the Agency is not proposing any specific 
change to the current Bevill exclusion nor has it concluded that any 
particular course of action is most appropriate. Rather, the Agency is 
presenting new information on risks posed by Bevill wastes and is 
posing the question of whether some waste streams require additional 
study or regulatory controls given the availability of new risk 
assessment techniques. Conversely, the Agency is also soliciting 
comment on whether more protective environmental practices have been 
put in place and, if so, whether future regulatory actions are 
necessary.
2. Wastes Eligible for the Bevill Exclusion
    Commenters on the January 25 proposed rule contend that the Agency 
was proposing to narrow the current Bevill exemption by identifying 
certain wastes in its technical background documents that would be 
subject to Subtitle C requirements. The Agency includes a discussion in 
that document and made it available to the public because EPA believes 
that it is helpful for all parties to understand which wastes are 
indeed eligible for the Bevill exclusion for purposes of this rule when 
finalized. As discussed in previous sections of today's notice, small 
volume hazardous waste may contribute to the overall risk posed by some 
Bevill wastes and reduction of these waste streams would be desirable. 
The Agency currently determines whether Bevill is applicable on a case-
by-case qualitative basis. The Agency is soliciting comment on whether 
to maintain the current qualitative assessment, or establish some other 
method to determine Bevill eligibility.
    In addressing the issue of whether certain wastes should be 
eligible for the Bevill exclusion, the D.C. Circuit Court of Appeals 
found that Congress intended the Bevill Amendment to be limited to 
``special wastes'' that are high volume and low hazard.7 The 
Agency subsequently defined special wastes to include only extraction/
beneficiation wastes and 20 mineral processing wastes. The Agency 
developed a high volume, low hazard criteria (e.g., 45,000 tons per 
year for solids, one million tons per year for liquids as generated) 
for mineral processing waste, consistent with the direction from the 
D.C. Circuit decisions, but did not apply these criteria on a 
wastestream by wastestream basis for the previously addressed 
extraction/beneficiation wastes. 54 FR 36619. Courts have also found 
that small volume hazardous wastes are outside the scope of 
Bevill.8 It is clear from the legislative history that both 
EPA and Congress intended the ``special waste'' concept to have a 
finite scope that did not encompass wastes from operations that produce 
wastes in volumes similar to other manufacturing operations. 54 FR 
15325. Further, the Court in Horse head Resources v. Browner (16 F.3d 
1246, 1258) held that the large volume criteria applies to all Bevill 
wastes, and not just those from mineral processing.
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    \7\ ``[T]he structure of the Bevill Amendment suggests that 
Congress intended to single out high-volume `special wastes' for 
regulatory suspension when it excluded `solid waste from the 
extraction, beneficiation and processing of ores and minerals.' '' 
Environmental Defense Fund v. EPA, 852 F.2d 1316, 1327 (D.C. Cir. 
1988). The Court also decided that ``[t]he legislative history of 
the Bevill Amendment establishes that the key to understanding 
Congress' intent is the concept of ``special waste'' articulated in 
the regulations proposed by EPA on December 18, 1978 following the 
enactment of RCRA.'' Id. See 43 FR 58911 (1978) and 50 FR 40293 
(1985).
    \8\ The D.C. Circuit Court of Appeals held that the Agency's 
attempt to exclude six low volume, high hazard smelting wastes was 
an ``impermissibly over broad interpretation of the Bevill 
Amendment.'' EDF II at 1330. ``Since EPA found that those six 
smelter wastes are low volume and high hazard wastes, it cannot 
refuse to list them [as hazardous wastes].'' EDF II at 1327. The 
Agency notes that these six smelting wastes (which includes K088 
potliners and K064 acid plant blowdown) are generated in quantities 
greater than most of the non-Bevill secondary materials at issue. 
``Because the Court explicitly determined that the six smelting 
wastes are not high volume, low hazard wastes, the generation rates 
of these wastes can and should serve as a lower bound below which 
wastes should not be afforded Bevill status.'' 54 FR 15330 April 17, 
1989.
---------------------------------------------------------------------------

    Under section 3001(b)(3)(A)(ii) of RCRA, the Bevill exclusion is 
available for ``solid waste from the extraction, beneficiation and 
process of ores and minerals'' (emphasis added). In determining whether 
a particular waste is, in fact, from one of these processes, the Agency 
has generally evaluated whether the waste is ``uniquely

[[Page 26055]]

associated'' with the enumerated processes. The Agency defines non-
uniquely associated wastes to be non-indigenous to mining, small in 
volume, and generated by many other non-Bevill industrial operations. 
(See 45 FR 76619, November 19, 1980 and 54 FR 36623, September 1, 
1989). Examples of non-uniquely associated wastes include spent 
solvents, pesticide wastes, and discarded commercial chemicals. In the 
Agency's view, these wastes are logically viewed as not being ``from'' 
mineral processing, beneficiation or extraction and therefore are not 
subject to the Bevill exclusion.
    When applied to ancillary operations located at a mine site, such 
as degreasing solvents from vehicle maintenance, it is relatively 
straightforward to apply the uniquely associated principle and 
determine that the spent solvents are not uniquely associated with 
mining and therefore are not eligible for the Bevill exclusion. In this 
example the solvents are small volume, highly toxic, not indigenous to 
the ore being mined, and commonly generated from other industrial 
sectors.
    However, it becomes more difficult to make such determinations when 
a small volume material comes into contact with a beneficiated ore or 
mineral during normal operations. Through contact the small volume 
material may acquire some of the chemical composition of the Bevill 
waste (e.g., a solvent absorbs some of the Bevill waste). Having 
acquired some of the chemical properties of the Bevill waste, under 
what circumstances, if any, should the solvent be considered a Bevill 
waste when discarded? Some commenters contend that Congress intended 
the Bevill Amendment to be interpreted broadly and that the Agency's 
application of the uniquely associated principle is an impermissible 
interpretation.9
---------------------------------------------------------------------------

    \9\ Comments of the National Mining Association on the 
supplemental Proposal to Phase IV, April 24, 1996. Docket F-95-PH4A-
FFFFF.
---------------------------------------------------------------------------

    In its studies of the mineral industry, the Agency found several 
small volume wastes that come into contact with a Bevill 
waste.10 These include lead anodes, spent kerosene solvent, 
and crud from copper solvent extraction and electrowinning; and 
crucibles, cupels, and acid cleaning solution from gold heap leach 
operations. All of these small volume wastes are inherently hazardous 
(they would be hazardous waste when disposed regardless of whether 
contact occurred). The Agency believes that these wastes may be viewed 
as not being uniquely associated with mineral processing, beneficiation 
and extraction, and this conclusion is reflected in the technical 
background document to the Phase IV proposal. As stated in the previous 
section, the Agency believes it is sound policy to interpret the scope 
of the exclusion narrowly in order to prevent Bevill waste from being a 
dumping ground for hazardous waste and to reduce any incentives for 
waste maximization. The Agency believes that, given the extent of 
interest in EPA's practice in this area, solicitation of public comment 
would help ensure that EPA's application of the Bevill exclusion in 
particular cases is based on sound policies reflecting public input.
---------------------------------------------------------------------------

    \10\ Identification and Description of Mineral Processing 
Sectors and Waste Streams, EPA, 1995.
---------------------------------------------------------------------------

    Recognizing that the ``uniquely associated'' principle can be 
difficult to apply in certain cases, the Agency is considering whether 
a simple application of the high volume thresholds to determine Bevill 
eligibility for beneficiation and extraction wastes discussed above 
might be preferable to application of the uniquely associated 
principle. Under this option, there would be no need to consider the 
non-uniquely associated principle because any waste stream from the 
extraction, beneficiation, or processing of an ore or mineral that is 
not high volume would not be a Bevill waste. This option has the 
advantage of being simple to apply and is consistent with the broad 
parameters of Congressional intent that Bevill generally applies only 
to high volume wastes. This option would help prevent additional toxic 
constituents being disposed with Bevill wastes, encourage recycling, 
and may result in reduction of cleanup costs. The Agency solicits 
comment on whether a large volume standard should be a determining 
factor for Bevill eligibility and, if so, whether the mineral 
processing high volume standards of 45,000 tons per year per waste 
stream for solids and one million tons per year per waste stream for 
liquids are appropriate measures of high volume.
    The Agency also solicits public input regarding other potential 
approaches that could be applied in evaluating whether a particular 
waste is uniquely associated, and therefore excluded under the Bevill 
Amendment. One approach would be to adhere to a principle that any 
material that comes into contact with a Bevill waste, feedstock, or 
product during normal process operations becomes a uniquely associated 
Bevill waste when discarded. This approach would be consistent with 
past determinations that non-contact operations are non-uniquely 
associated, such as degreasing solvents from vehicle maintenance. The 
approach, however, would alter some determinations contained in the 
technical background document to the Phase IV Supplemental Proposal 
involving contact operations. Lead anodes, spent kerosene solvent, and 
crud from copper solvent extraction and electrowinning; and crucibles, 
cupels, and acid cleaning solution from gold heap leach operations, 
would all be considered uniquely associated and therefore Bevill wastes 
under this approach. A variation of this approach would be to utilize 
the contact principle, as stated above, but to consider small volume 
wastes that exhibit a hazardous characteristic both before and after 
contact with the Bevill waste, feedstock, or product, as being non-
uniquely associated. This option would maintain the determination that 
non-contact wastes are non-uniquely associated. Where contact is 
involved, the option may increase the number of uniquely associated 
wastes identified in the technical background document to the Phase IV 
Supplemental Proposal. However, lead anodes, spent kerosene solvent, 
and crud from copper solvent extraction and electrowinning, and 
crucibles, cupels, and acid cleaning solution from gold heap leach 
operations would be considered non-uniquely associated (all of these 
small volume wastes are inherently hazardous--they would be hazardous 
waste when disposed regardless of whether contact occurred). The Agency 
solicits comment on whether to stay with the existing qualitative 
approach, or whether any of the above options provides a clearer and 
more appropriate definition of the uniquely associated principle. The 
Agency solicits comment on this and other potential analytical 
frameworks that the Agency and States could utilize in evaluating 
whether a particular waste is subject to the Bevill exclusion.

VI. Proposed Exclusion of Wood Preserving Wastewaters and Spent Wood 
Preserving Solutions From Classification as Solid Waste Under RCRA

    Summary: EPA is proposing to amend the regulations under the 
Resource Conservation and Recovery Act (RCRA) to provide an exclusion 
from the definition of solid waste for certain materials generated and 
recycled by the wood preserving industry. Specifically, the provisions 
would exclude wood preserving wastewaters and spent wood preserving 
solutions from classification as solid waste under RCRA, provided that 
they are recycled and reused on-site in the production process for 
their original intended purpose, the materials are managed to prevent 
release, and

[[Page 26056]]

they meet other conditions specified in the following section. The 
Agency seeks public comment on this proposal.

A. Background

    EPA first raised the possibility of providing a regulatory 
exclusion from the definition of solid waste for the wood preserving 
industry's recycled wastewaters in the August 22, 1995 Land Disposal 
Restrictions (LDR) Phase IV proposed rule (60 FR 43654). In that 
proposed rule EPA stated that it may be inappropriate to regulate a 
reclamation process under RCRA when that process is an essential part 
of production and the materials being reclaimed are not part of the 
waste disposal problem. We acknowledged that under the current system, 
it is possible for a wood preserving plant that reclaims its 
wastewaters as an essential step in the production process to 
successfully petition EPA for a site-specific variance (even though 
these wastes contact a drip pad, which is a regulated hazardous waste 
management unit), provided that the reclamation operation meets the 
standards and criteria identified under 40 CFR 260.31(b).
    Under the current regulatory program, EPA may grant site-specific, 
case-by-case variances from the definition of solid waste (and 
therefore from the regulations under RCRA to which persons handling 
solid and hazardous waste are subject) for materials that are recycled 
in certain ways, (see 40 CFR 260.30 and 40 CFR 260.31). Any solid waste 
generator may petition EPA for a variance from the definition of solid 
waste based upon these criteria.
1. Request for Comment in Land Disposal Restrictions Phase IV Proposed 
Rule
    In the August 22, 1995 LDR proposal, EPA requested comment on 
granting an exclusion from the definition of solid waste for production 
wastewaters being reclaimed by the wood preserving industry if the wood 
preservers could demonstrate on an industry-wide basis that reclamation 
of these wastewaters when reclaimed meet the eight variance criteria 
under Sec. 260.31(b). EPA asked for comment on the extent to which the 
industry as a whole could meet the criteria. We expressed particular 
interest in the extent to which the industry could show that its 
reclamation operations meet the criterion under Sec. 260.31(b)(3). This 
provision requires a demonstration that a material is handled in a 
manner that minimizes loss before reclamation.
    EPA received comments from the wood preserving industry, a state 
regulatory agency, and a national environmental organization. These 
comments were noticed in a May 10, 1996 Notice of Data Availability 
(NODA) at 61 FR 21418 for the LDR proposed rule and were made available 
for public review as part of the docket for that rule. All comments 
received to date concerning a possible exclusion for recycled wood 
preserving wastewaters are currently available in the docket for the 
August proposal or the NODA.
2. Statutory Remedy Considered by Congress
    While EPA was soliciting comment on the feasibility of an exclusion 
for the industry's recycled wastewaters, Congress was considering 
action to provide a statutory exclusion from the definition of solid 
waste for these materials. Congressional staff asked EPA to provide 
technical review and advice as they developed H.R. 2335, a bill that 
would have exempted ``materials contained, collected, and reused in an 
on-site production process that prevents releases to the environment'' 
from the definition of solid waste.
    As part of this process, EPA staff participated in a number of 
meetings with Congressional staff and representatives from the wood 
preserving industry and was able to gather additional information to 
assist EPA in determining whether or not the industry would be able to 
successfully meet the evaluation criteria EPA had discussed in the 
August 22, 1995 Federal Register notice. EPA added this information, 
submitted by both EPA and industry representatives at the request of 
Congressional staff, to the LDR Phase IV rulemaking docket. This 
information was not referenced in the May 10, 1996 NODA because EPA had 
not yet gathered it. It is currently available for review in the docket 
for the May 10, 1996 NODA.

B. Rationale for Proposal

    The August 22, 1995 LDR notice provided no specific regulatory 
language for an exclusion for the wastewaters generated and recycled by 
the wood preserving industry because the Agency was at that time 
soliciting information to determine whether proposing such an exclusion 
would be justified given the criteria referenced above. Based upon the 
information EPA received, EPA believes an exclusion is appropriate and 
therefore, today, EPA is soliciting public comment on a conditional 
exclusion from the definition of solid waste for wood preserving 
wastewaters and spent wood preserving solutions that are recycled and 
reused on-site at a wood preserving plant for their original intended 
purpose. Under today's approach, wastewaters and spent wood preserving 
solutions that are recycled on-site for their original intended purpose 
at a wood preserving facility are not solid wastes if they are recycled 
in a manner that meets the conditions discussed below. We believe that 
an exclusion is justified given the degree to which recycling of these 
materials as evaluated using the criteria set out in 40 CFR 260.31(b) 
is, on an industry-wide basis, an essential part of the production 
process and does not contribute to the waste management problem. It is 
important to clarify that today's proposal is for an exclusion from the 
definition of solid waste and not for a variance as provided for under 
40 CFR 260.30. EPA is simply using the Sec. 260.31(b) variance criteria 
to aid in an evaluation of whether an industry-wide exclusion is 
justified. It is only through compliance with the conditions EPA is 
presenting today that a wood preserving plant would be able to claim 
the exclusion.
    In its comments on the August 22, 1995 Federal Register (in a 
letter dated November 20, 1995, hereafter referred to as ``the AWPI 
letter''), the American Wood Preservers Institute (AWPI) addressed the 
Sec. 260.31(b) criteria and explained how the wood preservers meet them 
on an industry-wide basis. AWPI's comments are included in the docket 
for the August 1995 proposed rule.
    As mentioned above, in the August 22, 1995 Federal Register notice 
EPA expressed particular interest in the extent to which the industry 
could show that its reclamation operations meet the Sec. 260.31(b)(3) 
criterion that a material be handled before reclamation to minimize 
loss. Accordingly, EPA is today proposing conditions that should ensure 
that any facility meeting the conditions would be minimizing loss of 
its wastewaters and spent wood preserving solutions prior to 
reclamation. With respect to other criteria under Sec. 260.31(b), EPA 
believes that the recycling of wastewaters and spent wood preserving 
solutions is essential to the financial well being of waterborne wood 
preserving plants (see discussion under section D below and page eight 
of the AWPI letter) and therefore meets the criteria set out in 
Sec. 260.31(b)(1) for those plants. Without recycling their wastewater 
and preservative, wood preserving plants would have to purchase fresh 
water and preservative and pay for their disposal. It is our 
understanding that reuse of wastewaters and spent wood preserving 
solutions is standard practice at waterborne plants, which are subject 
to zero discharge

[[Page 26057]]

requirements under the federal Clean Water Act and therefore, those 
plants meet the criteria set out in Sec. 260.31(b)(2). The condition 
that these materials be recycled and reused on-site virtually assures 
close proximity of the recycling operation to the primary production 
process (Sec. 260.31(b)(5)) and that the materials are generated and 
reclaimed by the same party (Sec. 260.31(b)(7)). In its letter, AWPI 
stated that ``in both oilborne and waterborne processes, the 
reclamation operation is located within, and is an integral component 
of, the production process area.'' We are also proposing that the 
exclusion for wastewaters and spent wood preserving solutions being 
reclaimed be conditioned on the reclaimed materials being used for 
their original intended purpose when returned to the production process 
(Sec. 260.31(b)(6)). It is EPA's understanding (and is stated by AWPI 
in their letter) that the reused materials, once reclaimed, are 
returned to the process in substantially their original form 
(Sec. 260.31(b)(6)), and that the short amount of time . EPA believes 
that the industry also meets Sec. 260.31(b)(4) criteria concerning the 
amount of time between generation and reclamation and reclamation and 
return to the primary production process Sec. 260.31(b)(4)) supports 
finding that reclamation is an essential part of the production 
process. According to AWPI's letter, recoverable materials are 
reclaimed immediately upon generation at both waterborne and oilborne 
plants; and are immediately available for reuse at waterborne plants 
and are available for reuse after 24-48 hours at oilborne plants.
    EPA believes that plants meeting the conditions proposed today will 
be recycling their wastewaters and spent solutions in a manner that is 
protective of human health and the environment. Today APIARY seeking 
comment on the regulatory language proposed below that would allow for 
the implementation of this exclusion.

C. Wastes Commonly Reused by the Wood Preserving Industry

    Wood preserving wastewaters containing spent wood preserving 
solutions are commonly reused by wood preserving plants that use 
chromated copper arsenate (CCA) as a preservative and by other 
waterborne plants (as opposed to oilborne plants which use 
pentachlorophenol or creosote as a preservative). Typical pressure 
treatment processes involve the reuse of preservatives from work, 
storage, and mixing tanks for use in the retort. Preservative 
formulation lost with wastewater or through drippage into the door 
sumps (which collect liquid outside of the retort) is often collected 
and fed back into the production process. The industry also commonly 
reuses both drippage collected from drip pads (as is required under 
RCRA regulations) and wastewaters that it generates during production. 
The combination of the economic incentive to make use of existing 
resources and the regulatory requirements under the Clean Water Act 
(see 40 CFR Part 429) for the discharge of the industry's effluent 
waste, including a zero discharge requirement for waterborne plants, 
make the reuse of wastewater an attractive and necessary alternative to 
disposal.

D. Current Regulatory Status of Recycled Wastewaters and Spent Wood 
Preserving Solutions

    Under the current regulations, wood preserving wastewaters and 
spent wood preserving solutions are regulated as solid and hazardous 
wastes until they are reclaimed by filtration, oil water separation or 
other means. The reclaimed materials are no longer regulated as solid 
and hazardous wastes once the reclamation process is completed provided 
they are used to treat wood. EPA issued a Federal Register Notice 
clarifying the regulatory status of these materials on July 1, 1991 (56 
FR 30192). For example, water that is used to wash spent wood 
preserving solutions from a drip pad is regulated as a solid and 
hazardous waste under the current system. Once the water containing the 
spent solutions has been reclaimed, it is no longer considered a solid 
and hazardous waste if it is put back into the retort or otherwise used 
to treat wood. See Sec. 261.3(c)(2)(i) (final sentence). (Once the 
recycled water has been used to treat wood and is ready for discard or 
further reclamation, it is again regulated as a solid and hazardous 
waste.)

E. Proposed Exclusion of Wastewaters and Spent Wood Preserving 
Solutions That are Recycled

1. General
    Today EPA is asking for comment on amending the definition of solid 
waste to exclude wastewaters and spent wood preserving solutions that 
are recycled from regulation as solid and hazardous wastes if they are 
managed in a way that meets certain conditions. This would mean that, 
if this proposal is finalized, wastewaters and spent wood preserving 
solutions that are currently regulated as solid and hazardous wastes 
prior to reclamation, would no longer be regulated as solid and 
hazardous wastes if they are recycled according to the conditions 
discussed below.
2. Conditions for Exclusion
    a. Materials are Recycled and Reused On-Site in the Production 
Process for Their Original Intended Purpose. Under this proposal, the 
exclusion would apply only to wastewaters and spent wood preserving 
solutions that are recycled and reused on-site in the production 
process for their original intended purpose. As mentioned above, when 
EPA initially raised the possibility of developing an exclusion for in-
process wastewaters recycled on-site at wood preserving plants (60 FR 
43654), the Agency said that a decision to grant such an exclusion 
would be based upon the degree to which the industry could demonstrate 
that the handling of these materials at wood preserving plants meet the 
40 CFR 260.31(b) criteria, on an industry-wide basis. One of these 
criteria is ``whether the reclaimed material is used for the purpose 
for which it was originally produced when it is returned to the 
original process * * *'' (40 CFR 260.31(b)(6)). By requiring that these 
materials be used for their original intended purpose, it is our 
intention that they should be generally reused to treat wood. For 
example, at many wood preserving plants once water has been used to 
wash hazardous wastes off drip pads, it is collected and returned to a 
tank in order to be used to treat wood, with no releases to the 
environment. Because such a recycling operation (provided that it is 
managed to prevent releases to the environment) returns the 
preservative to the process to treat wood and adequately addresses the 
eight variance criteria, EPA is proposing an exclusion for 
appropriately managed wastewaters and wood preserving solutions that 
are reused for their original intended purpose. EPA has not evaluated 
whether any other use of these materials might merit an exclusion from 
the definition of solid waste. Therefore, for the purposes of today's 
proposal ``original intended purpose'' does not include uses other than 
treating wood.
    b. Materials are Managed to Prevent Release. The exclusion EPA is 
proposing today would only apply to those materials that are managed to 
prevent releases to the land and groundwater. This condition is to 
assure that any plant claiming this exclusion is adequately handling 
its recyclable wastewaters and spent wood preserving solutions to 
minimize loss prior to reclamation. Based on our experience, management 
to prevent releases would include, but not necessarily be limited

[[Page 26058]]

to, compliance with the standards for drip pads under Subpart W of 40 
CFR Parts 264 and 265 and maintenance of the sumps receiving the 
wastewaters and spent solutions from the drip pad and retort to prevent 
leaching into the land and groundwater.
    This exclusion would not apply to wastewaters and spent wood 
preserving solutions that are at any time managed in a surface 
impoundment. We would not consider this type of operation to be 
adequate management of these materials to minimize loss prior to 
reclamation.
    c. Units Can Be Visually or Otherwise Determined to Prevent 
Releases. In order for EPA to adequately assure compliance with the 
condition to prevent releases to the land and groundwater, the Agency 
proposes to require that any plant claiming this exemption assure that 
inspectors are able to visually or otherwise determine that the plant 
is preventing such releases. For example, an inspector should be able 
to visually or otherwise ascertain whether the bottom and sides of a 
sump (which is often made of concrete) are preventing releases to the 
land and groundwater. This could be assured by having a secondary 
containment system that could be observed or by providing a means to 
easily empty a sump to allow for inspection or through other means.
    d. Drip Pads Must Comply with Subpart W Standards. The exclusion 
that EPA is proposing today would require any plant claiming the 
exclusion and collecting or managing its wastes on a drip pad to comply 
with the regulatory drip pad standards referenced above. EPA has 
recognized that there is a potential for certain plants that are 
currently large quantity generators to be newly classified as 
conditionally exempt small quantity generators (CESQG) (see 40 CFR 
261.5) solely by virtue of the exclusion proposed today. Unless EPA 
explicitly requires compliance with the Subpart W drip pad standards as 
EPA proposes to do, were a plant to avail itself of this new generator 
status, it would not be compelled to comply with these requirements. 
The Agency is convinced that a plant's failure to comply with the drip 
pad standards under RCRA would result in failure to meet the 40 CFR 
260.31(b) variance criteria (See, e.g., 260.31(b)(3)). Therefore, the 
Agency is proposing that in order to qualify for this exclusion, a 
plant would need to comply with the Subpart W drip pad standards 
regardless of whether that plant generates no more than 100 kg of 
hazardous waste per month (which is the definition of a CESQG under 40 
CFR 261.5(a)) once its wastewaters and spent wood preserving solutions 
are excluded from the definition of solid waste under this provision.
    It is not EPA's intent or belief that the proposed exclusion for 
recycled wood preserving wastewaters and spent solutions in any way 
reduces the obligations that wood preserving plants have under 40 CFR 
Part 264, Subpart W and Part 265, Subpart W, including the requirements 
for drip pads and the requirements under Sec. 264.570(c) and 
Sec. 265.440(c) for response to infrequent and incidental drippage in 
storage yards. EPA requests comment from any party who believes it does 
reduce these requirements.
3. Process Residuals
    The Agency wishes to emphasize that today's proposed exclusion from 
the definition of solid waste for wood preserving wastewaters and spent 
wood preserving solutions which are recycled and reused on-site in the 
production process for their original intended purpose at wood 
preserving plants pertains only to these materials. The proposed 
exclusion does not apply to residuals which may be produced from, i.e., 
derived from, these wastewaters and spent wood preserving solutions. 
Process residuals derived from these excluded wastewaters and spent 
wood preserving solutions continue to meet the hazardous waste listing 
description for EPA hazardous waste numbers FO32, FO34 and FO35 (See 
Sec. 261.31(a)) and must be managed as RCRA hazardous wastes.
4. Notification
    Today the Agency is also seeking comment on whether a plant 
claiming the proposed exclusion should be required to place a 
notification form to that effect in its files on-site and/or required 
to submit it to either EPA or a state regulatory authority so that an 
inspector is able to review it. The notification form would identify, 
among other things, the specific dates for which a wood preserving 
plant was claiming this exclusion.
5. Conditions Under Which the Exclusion Would No Longer Apply
    Today EPA is also seeking comment concerning the conditions under 
which the proposed exclusion, once claimed, would no longer apply. For 
example, among other things, EPA seeks comment on whether the spill of 
a small quantity of excluded material would void the exclusion for only 
the spilled material or for all of the wastewaters and spent wood 
preserving solutions generated by the plant and, if so, for how long.

VII. Proposal to Amend Treatment Variance Rules

    Summary: EPA is also proposing today to clarify the regulatory 
standard under which variances from treatment standards adopted to 
implement the Land Disposal Restrictions (LDR) program are decided, see 
40 CFR 268. 44 (a) and (h), to explicitly reflect EPA's long-standing 
and reasonable interpretation that a treatment variance can be granted 
when treatment of the waste to the level or by the method specified in 
the regulations is not appropriate, whether or not it is technically 
feasible to treat the waste to that level or by that method. In 
addition, EPA is clarifying that, in EPA's view, the one such variance 
(involving CITGO Petroleum) adopted through rulemaking under the 
existing regulations using the ``not appropriate'' test satisfies the 
clarified regulations just as it satisfied the existing rules. To 
eliminate any ambiguity, EPA is considering recodifying the CITGO 
variance under the clarified standard; the Agency requests comment on 
this approach.

A. Background

    Under RCRA section 3004(m), EPA is required to promulgate treatment 
standards for a hazardous waste which ``specif[y] those levels or 
methods of treatment, if any, which substantially diminish the toxicity 
of the waste or substantially reduce the likelihood of migration of 
hazardous constituents from the waste so that short-term and long-term 
threats to human health and the environment are minimized.'' RCRA 
section 3004(m)(1). These treatment standards are typically expressed 
as constituent concentration limits; however, in some cases the 
treatment standard is specified as a method of treatment. LDR treatment 
standards typically must be satisfied before a hazardous waste is land 
disposed. To satisfy RCRA Section 3004(m), EPA has chosen to promulgate 
treatment standards based on performance of the ``best demonstrated 
available technology'' (BDAT), see 51 FR 40, 572, 40, 578 (Nov. 7, 
1986); provided such standards are not established at a point beyond 
which threats are minimized. See Hazardous Waste Treatment Council v. 
EPA, 886 F.2d 355, 361-66 (D.C. Cir. 1989) (upholding establishing 
technology-based treatment standards as a reasonable construction of 
section 3004(m)), cert. denied, 498 U.S. 849 (1990) (``HWTC III'').
    When EPA decided to implement RCRA section 3004(m) by means of 
technology-based treatment standards, the Agency recognized that there 
may be

[[Page 26059]]

wastes for which the treatment standards would be unachievable or for 
which the treatment standards would be inappropriate. 51 FR at 40605-06 
(Nov. 7, 1986). For such wastes, EPA established standards and 
procedures for granting so-called treatment variances. 40 CFR 268.44. A 
treatment variance establishes an alternative LDR treatment standard 
for the waste in question. 40 CFR 268.44(o). Section 268.44(a) states: 
``where the treatment standard is expressed as a concentration in a 
waste or waste extract and a waste cannot be treated to the specified 
level, or where the treatment technology is not appropriate to the 
waste, the generator or treatment facility may petition the 
Administrator for a variance from the treatment standard. The 
petitioner must demonstrate that because the physical or chemical 
properties of the waste differs significantly from the wastes analyzed 
in developing the treatment standard, the waste cannot be treated to 
specified levels or by the specified methods.''
    This same standard applies when a treatment variance is granted on 
a site-specific basis, see 268.44 (h), although site-specific variances 
may be processed without rulemaking. 53 FR at 31199-200 (August 17, 
1988).
    EPA has consistently interpreted the 40 CFR 268.44 treatment 
variance provision as creating two independent tests under which 
treatment variance applications can be considered: first, where the 
waste in question cannot be treated to the levels or by the methods 
established in the rules; and second where such treatment may be 
feasible but nevertheless ``not appropriate''. See 61 FR 55718 at 
55720-21 (Oct. 28, 1996); 53 FR at 31200 (August 17, 1988); 55 FR 8666, 
8760 (March 8, 1990); 61 FR 18780, 18811 (April 29, 1996). The test 
based on unachievability requires a demonstration that the waste's 
physical or chemical properties differ from those used to establish the 
treatment standard and must include a demonstration that the waste 
``cannot be treated to specified levels or by specified methods'' (see 
second sentence of 268. 44 (a) and (h)). The ``not appropriate'' test 
is not elaborated upon in the rule. In the Agency's experience, 
treatment variances approved under the ``not appropriate'' test are 
often based on the totality of site-and waste-specific circumstances at 
any given site. EPA has most often approved treatment variances using 
the ``not appropriate'' test in situations where imposition of BDAT 
treatment, while technically feasible, nevertheless is unsuitable or 
impractical from a technical standpoint, for example when the treatment 
standard would result in combustion of large amounts of soil or 
wastewater, given that EPA's policy is that combustion of large amounts 
of contaminated media is generally inappropriate. See 55 FR at 8760, 
8761. EPA has also approved treatment variances using the ``not 
appropriate'' test in situations where imposition of BDAT treatment 
would lead to environmentally counterproductive results, notably by 
creating disincentives to engage in remediation, see 61 FR at 55720-22; 
54 FR 15566, 15568 (October 10, 1989); 55 FR at 8760-62; 61 FR at 
18812; and EPA believes its long-standing interpretation that 40 CFR 
268.44 provides two separate, independent tests under which treatment 
variance applications can be evaluated to be a reasonable reading of 
the regulatory language. In particular, the clause in the first 
sentence of 268. 44 (a) that waste ``cannot be treated to the specified 
level'' is mirrored in the second sentence of the rule, where a 
demonstration must be made that ``waste cannot be treated to specified 
levels or by specified methods'' (emphasis added). The second sentence 
of the rule--referring to a demonstration that the waste differs 
chemically or physically--thus relates to the first treatment variance 
test: technical infeasibility. It does not (or need not be read to) 
apply to situations where treatment is ``not appropriate'', since this 
test on its face deals with situations where wastes can be treated to a 
specified level or by a specified method, but it is inappropriate to do 
so. However, commenters on previous EPA actions have pointed out that 
the language of the rule is ambiguous, in that it might be read to 
require a demonstration that a waste is physically or chemically 
different along with a showing that the waste cannot be treated to a 
specified level or by a particular method whenever a treatment variance 
is sought, even if such treatment would be inappropriate; this was not 
EPA's intent.11 Given the importance of treatment variances 
to the various EPA remediation programs, see 55 FR at 8760-61 and 
National Electrical Manufacturers Association v. EPA, 99 F.3d 1170, 
1171 (D.C. Cir. 1996), EPA presently believes it better to re-draft 40 
CFR 268.44 to explicitly conform with the Agency's long-standing and 
reasonable interpretation of the regulatory standards for treatment 
variances and to remove possible confusion. This proposed clarification 
is included in today's notice. EPA is further clarifying that the one 
national treatment variance finalized thus far using the ``not 
appropriate'' test would also satisfy the clarified regulations being 
proposed today. This is the treatment variance recently granted to 
CITGO Petroleum Co. 61 FR 55718 (Oct. 28, 1996). In EPA's view, the 
revision of the treatment variance regulations it is proposing today 
simply clarifies, and in no way changes, the current standards for 
evaluating treatment variances; therefore, by definition the variance 
already issued to CITGO under the current regulations and standard 
would satisfy the clarified regulations. However, to remove any 
ambiguity on the status of CITGO's treatment variance, and the standard 
it must meet, EPA is considering whether it would be better to re-
codify the variance under the clarified regulations (should the Agency 
finalize that part of today's proposal).
---------------------------------------------------------------------------

    \11\ The Environmental Technology Council and the Louisiana 
Environmental Action Network (LEAN) have petitioned for review of a 
particular treatability variance and are arguing that the provision 
can only be read in this manner. LEAN v. EPA, no. 97- (D.C. Cir.). 
EPA disagrees and believes its present long-standing interpretation 
to be a reasonable construction of the rule's language, and to be 
amply supported on policy grounds. 61 FR at 55721.
---------------------------------------------------------------------------

B. Clarified Regulatory Language

    EPA is proposing to revise 40 CFR 268.44 (a) and (h) to clarify 
that there are two separate and independent tests for approving 
treatment variances. The amended rule (if finalized) would thus 
explicitly conform with EPA's long-standing and reasonable 
interpretation that treatment variances may be granted for either of 
two independent reasons: 1) where, due to physical or chemical 
differences in the waste matrix, the waste cannot be treated to the 
level used as the basis for the treatment standard (or, in those few 
instances where the treatment standard is a method of treatment, where 
the method physically cannot be performed); and 2) where it is 
inappropriate to require treatment to the level or by the method set 
out in the regulations although such treatment is technically possible.
    In EPA's experience, approval of treatment variances based on the 
``inappropriate'' test depends largely on site-and waste-specific 
circumstances. Therefore, the Agency is not proposing detailed 
regulatory criteria for approving variances based on the 
``inappropriate'' standard. Based on our implementation of the program 
to date, some examples of where variances based on the 
``inappropriate'' test might be approved are where the treatment 
standard is unsuitable from a technical standpoint, as when it would 
result in combustion of large amounts of soil or

[[Page 26060]]

other media that contain hazardous waste or where imposition of the 
treatment standard can reasonably be found to increase risks for 
example, by discouraging optimized remediation of land disposal units. 
A specific example of this second situation would be at a remediation 
site where the cost of LDR treatment would lead a reasonable remediator 
to choose the legally permissible option of managing wastes within an 
``area of contamination'' (which would not trigger LDRs and would 
likely involve little or no waste treatment) over a more protective 
option of removing the wastes for treatment and disposal (which would 
trigger LDRs) (see 55 FR at 8760). Situations where imposition of the 
BDAT treatment standard (or specified treatment method) could expose 
site workers to immediate dangers, such as from explosion or fire and 
situations where an innovative technology that, while not BDAT, results 
in significant treatment and shows significant promise could be other 
examples of cases where the BDAT standard (or specified treatment 
method) might be inappropriate. EPA specifically solicits comment as to 
whether these circumstances (or other circumstances) are reasonable 
formulations of circumstances where treatment variances based on the 
``inappropriate'' test might be considered and on whether EPA should, 
in future rulemakings, further define regulatory criteria for variances 
approved based on the ``inappropriate'' test.
    In all cases, treatment variances must result in an alternative 
treatment standard which would have to be satisfied before the waste 
could be land disposed. These alternative treatment standards must 
comply with the statutory standard of RCRA Section 3004(m) by 
minimizing threats to human health and the environment.
    Some commenters on previous EPA actions have questioned EPA's legal 
authority to vary from treatment standards based on BDAT absent a 
finding that the BDAT standard is outright unachievable because of 
physical or chemical differences in the waste. EPA disagrees for the 
following reasons.
    First, the ``minimize threat'' standard in RCRA Section 3004 (m) 
allows EPA latitude in determining what levels or methods of treatment 
minimizes short-and long-term threats to human health and the 
environment. Not only is the statute ambiguous on the degree to which 
threats must be minimized (see HWTC III, 886 F.2d at 372 (concurring 
opinion)), but the legislative history to section 3004 (m) states 
explicitly that the treatment standards are not to be technology-
forcing. See 131 Cong. Rec. S 9178 (daily ed., July 25, 1984) 
(statement of Sen. Chaffee); see also 56 FR at 12355 (March 25, 1991); 
55 FR 6640-43 (Feb. 26, 1990); Chemical Waste Management v. EPA, 976 
F.2d 2, 15-16 (treatment standard need not be based on BDAT, in this 
case, treatment standards for ignitable, corrosive, or reactive wastes) 
(D.C. Cir. 1992).
    Second, EPA does not believe that RCRA Section 3004(m) requires, or 
Congress intended, that EPA impose technically inappropriate 
technologies even when they arguably could lead to lower treatment 
levels. For example, EPA has generally based the national LDR treatment 
standards for organic contaminants in wastewaters on technologies other 
than incineration (or other combustion), even though such organics 
could be treated to lower levels if the wastewaters were incinerated. 
This is because incineration (or other combustion) is not normally an 
appropriate technology for wastewaters, notwithstanding its capability 
of achieving lower constituent concentration levels than conventional 
wastewater treatment. See 55 FR 8761. Similarly, EPA has long believed 
that combustion of large volumes of contaminated soil, such as much of 
the soil routinely encountered during CERCLA remedial actions or RCRA 
corrective actions, is inappropriate and would yield little, if any, 
environmental benefit over non-combustion treatment options. In other 
situations, EPA has found that imposition of the BDAT standard, while 
technically possible, provides a strong incentive for facility owner/
operators to choose legal remedial alternatives that minimize 
applicability of the RCRA land disposal restrictions (e.g., 
consolidating and capping waste within an area of contamination), a 
result obviously not contemplated by Congress in enacting the land 
disposal restriction. EPA believes that in the limited situations where 
an existing treatment standard is reasonably found to be inappropriate 
because imposition of the BDAT standard is technically inappropriate or 
would increase risks, including risks posed by continued land disposal, 
the facts would also indicate that the alternative standard set out in 
the treatment variance legitimately minimizes threats posed by land 
disposal, taking into account both the land disposal that has already 
occurred and that which will occur. In this regard, EPA notes that the 
Agency believes it can be argued that where imposition of the BDAT 
standard results in treatment technically inappropriate to the matrix 
at hand or in foregoing other, substantial environmental benefits, that 
standard is not ``best.'' See 61 FR at 55724 and at 55721 (citing case 
authority).
    Finally, some commenters on previous EPA actions have expressed 
serious concern that considering treatment variances in situations 
where application of the nationally applicable LDR standard might cause 
a net environmental detriment could subject EPA to a form of 
``environmental blackmail,'' where the Agency might be pressured to 
adjust an appropriate treatment standard in order to allow less 
treatment as part of site remediation and, therefore, this approach 
should be precluded. While EPA agrees that the net environmental 
detriment approach should be carefully applied in consideration of 
site-and waste-specific circumstances, EPA does not agree with 
commenters who suggested it be precluded. In implementing its various 
remedial programs, EPA has found that there simply are situations where 
federal law provides a legal alternative to leave wastes in place, and 
direct application of the existing treatment standards may create an 
incentive to utilize that legal alternative. Id.; 54 FR at 41566-569. 
It is at least worth examining through the treatment variance process 
whether there is an alternative that serves the dual statutory 
objectives of safe remediation and pretreatment before land disposal.

C. The CITGO Variance Under the Proposed Standard

    It is EPA's view that the treatability variance granted to CITGO 
Petroleum, 55 FR 55718 (Oct. 28, 1996), remains valid under the 
clarified treatment variance standard proposed in this notice. CITGO 
operates a large (26 acre) surface impoundment which must be closed. 
The impoundment contains approximately 375,000 tons of wastewater 
treatment sludge listed as hazardous wastes F037 and F038. The State of 
Louisiana, EPA's Region 6, and the company all believe the best way to 
close the unit is to remove the sludge, treat it through air sparging 
to remove and destroy the most hazardous constituent (benzene) to 
levels achievable by BDAT, treat cyanide and metals to levels 
achievable by BDAT, and treat semi-volatile hazardous constituents 
significantly, although not to levels meeting the BDAT standard. (While 
the alternative treatment standards established in the treatment 
variance for semi-volatiles are, for some constituents, significantly 
higher than the treatment standard based on BDAT,

[[Page 26061]]

the semi-volatile constituents are treated and, in any case, are not 
the constituents in the CITGO waste that drive its risk to human health 
or the environment.) Treatment residues are then disposed in a 
commercial subtitle C landfill. CITGO successfully removed and treated 
approximately 600,000 tons of sludge by this method before the LDR 
prohibition for F 037/038 wastes took effect. Treatment of the 
remaining sludge to meet standards reflecting performance of BDAT (in 
this case, almost certainly some type of combustion process) is likely 
to be cost-prohibitive and, at the least, creates an incentive for the 
company to seek to avoid triggering LDR requirements even if it means 
forgoing optimal closure of the impoundment. The federal rules do 
provide closure options by means other than waste removal. The closure 
rules provide that an impoundment can close with wastes in place 
provided it can satisfy the standards for post-closure care of a 
landfill. 40 CFR 265.111, 265.228 and 265.310. EPA found that CITGO 
would likely pursue these options, delaying if not precluding closure 
by removal, and possibly resulting in no treatment of the hazardous 
sludges at all. For these reasons, EPA found that the treatment 
technology on which the standard is based is not appropriate for this 
waste because imposition of the requirement would likely result in a 
net environmental detriment. 55 FR at 55719-722. The alternative 
treatment standard requires the same level of treatment which had 
proved successful on the 600,000 tons of sludge before the LDR 
prohibition took effect.
    In EPA's view, these facts satisfy the ``not appropriate'' test in 
the clarified treatment variance regulations proposed today, just as 
they satisfy the existing rules. EPA has already found that the 
situation presented in CITGO's treatment variance application meets the 
standards of 40 CFR 268.44 (a) and (h) as the Agency interprets and 
implements them. By definition, if EPA amends 40 CFR 268.44 (a) and (h) 
to explicitly conform to the Agency's longstanding and reasonable 
interpretation of the treatment variance regulations, then the one 
national variance (CITGO) approved under the current regulations would 
meet the terms of the new, clarified, regulations. EPA, however, 
recognizes that the same ambiguity that commenters have identified in 
the current 268.44 (a) and (h) regulations underlies EPA's approval of 
the CITGO treatment variance. EPA therefore requests comment on whether 
the Agency should eliminate any ambiguity over the CITGO treatment 
variance by re-codifying the variance under the clarified regulations 
(assuming EPA finalizes this portion of today's proposal).

VIII. Ban on Use of Prohibited Hazardous Waste as Fill Material

SUMMARY: EPA is today supplementing its March 2, 1995 proposal (60 FR 
at 11732) to ban the placement of prohibited hazardous wastes (that is, 
wastes prohibited from land disposal unless they meet land disposal 
restrictions treatment standards, including wastes that initially 
exhibited a characteristic of hazardous waste but no longer do at the 
point they are placed as fill material) as a fill material. This 
proposal would ban use as fill unless the waste meets the LDR treatment 
standard applicable to it, and either of two conditions are satisfied: 
(a) The placement occurs exclusively in a regulated unit (i.e. a unit, 
like a landfill, which is subject to subtitle C regulation); or, (b) 
the person intending to utilize the hazardous waste as fill material is 
able to make a demonstration to the appropriate regulatory officials 
that the placement of the waste will be protective of human health and 
the environment (within the meaning of RCRA section 3004(d)(1)), taking 
into account the factors enumerated in RCRA section 3004(d)(1)(A), (B), 
and (C), as well as all possible exposure pathways, i.e., exposure 
pathways that may reasonably occur at the specific site. As EPA 
explains more fully in today's supplemental notice, this demonstration 
must be made ``to a reasonable degree of certainty,'' as set out in 
RCRA section 3004(d)(1). By ``fill material,'' EPA means prohibited 
waste used in place of such materials as sand or dirt which fills in 
significant levels of depression in the land, such as gullies or 
ditches. Revised regulatory language is provided to help clarify the 
scope of the proposal, and the process for demonstrating that the use 
is safe.

A. General Discussion

    The basis for this proposal is essentially the same as EPA 
originally proposed. Utilization of prohibited hazardous wastes as fill 
material is, in the abstract, the least protective type of land 
disposal in that there are no commercial specifications or necessary 
physical constraints on the placement of the waste. There thus are no 
safeguards to prevent exposure to humans or to the environment from the 
hazardous constituents that are released, and no barriers stopping the 
releases from occurring. The types of potential exposure pathways 
include direct exposure via inhalation, ingestion (particularly by 
small children), dermal contact, surface runoff, and leaching to 
groundwater. Human exposure can also occur via indirect exposure 
pathways, such as ingestion of fish, animals, fruits or vegetables 
which have been contaminated by hazardous constituents released from 
the fill area. The number of environmental exposure pathways are just 
as numerous.
    This potential for harm is confirmed by many damage incidents 
caused by utilization of wastes as fill material. The damage incidents 
include sites now on the Superfund National Priorities List, and an 
incident of direct human exposure (resulting in elevated blood lead 
levels in children) when prohibited hazardous wastes were used as fill 
material in a residential area. See summaries in the administrative 
record.
    If one assumes that utilization of wastes as fill material is a 
type of hazardous waste recycling activity,\12\ the current RCRA rules 
would classify it as a type of ``use constituting disposal.'' 40 CFR 
261.2(c)(1). The rules then provide that a use constituting disposal 
can legally occur if the hazardous wastes are incorporated into a 
product, undergo a chemical reaction so as to be inseparable by 
physical means, and meet all treatment standards established under the 
Land Disposal Restrictions (LDR) program applicable to the hazardous 
waste incorporated into the waste-derived product. 40 CFR 266.20(b). In 
adopting these standards, EPA was not certain that any of these uses 
could be conducted in a protective manner. 50 FR at 646, 647 (Jan. 4, 
1985); 53 FR at 17605 (May 17, 1988). However, the Agency was unwilling 
to prohibit all such uses--the likely effect of imposing full-scale 
subtitle C

[[Page 26062]]

controls--and also felt that imposition of the LDR treatment standard 
requirement afforded some level of protection. 53 FR at 17605.
---------------------------------------------------------------------------

    \12\ See 45 FR at 33093 (May 19, 1980); 48 FR at 14985 (April 4, 
1983); and 60 FR at 14732 (March 2, 1995) where EPA noted that in 
most cases that this activity is a sham use. This is due to the 
marginal nature of the claimed recycling activity (replacing dirt to 
fill depressions), resemblance of the activity to uncontrolled waste 
dumping, and likelihood that hazardous constituents in the wastes 
are just being gotten rid of. Thus, the threshold step in 
determining whether disposition of hazardous waste as fill material 
is legal is to determine if this is a ``use'' at all, or simply is 
sham recycling, i.e., land disposal pure and simple. See United 
States v. Marine Shale Processors, 81 F.3d 1361, 1365 (5th Cir. 
1996) (``sham recycling, as opposed to legitimate recycling, occurs 
when the hazardous waste purportedly recycled contributes in no 
significant way to the production of the product allegedly resulting 
from the recycling'') id., at 1366 (endorsing so-called toxics along 
for the ride concept, whereby it is relevant in assessing whether an 
activity is sham recycling to determine what hazardous constituents 
contribute to the alleged recycling activity and conceivably to find 
that an activity is a sham if the hazardous constituents do not 
contribute significantly).
---------------------------------------------------------------------------

    Because utilization of hazardous wastes as fill material is lacking 
in any control, EPA has concluded that this current conditioned 
deferral of regulation should not apply to the activity. This 
conclusion is directly founded in the language and policy of the LDR 
statutory provisions. Land disposal of hazardous wastes is prohibited 
unless the prohibition on disposal ``is not required in order to 
protect human health and the environment'' taking into account the 
uncertainties associated with assessing safety of land disposal, 
including the difficulty of making long-term predictions of wastes' 
behavior, and the persistence, toxicity, mobility, and bioaccumulative 
propensity of wastes' hazardous constituents. RCRA section 3004(d)(1) 
(repeated in 3004 (e)(1) and (g)(5) as well). Ordinarily, land disposal 
occurring after hazardous wastes have been treated to satisfy the 
standards established by EPA pursuant to section 3004(m) (which 
standards are to assure that short- and long-term threats to human 
health and the environment posed by land disposal of the waste ``are 
minimized'') will sufficiently ensure the requisite protectiveness. 
RCRA section 3004(m)(1). However, the ultimate requirement of 
protectiveness remains even after hazardous wastes have been treated. 
60 FR at 14473; 56 FR at 41168 (August 19, 1991); NRDC v. EPA, 907 F.2d 
1146, 1171-72 (D.C. Cir. 1990) (dissenting opinion).
    EPA is indicating here that the existing LDR treatment standards do 
not result in this requisite minimization of threats when hazardous 
wastes are to be utilized as fill material. Thus, there is no treatment 
of which EPA is aware that can be determined, in the absence of site-
specific investigation, to adequately minimize the threats posed by 
this form of land disposal. See RCRA section 3004(m)(1) which requires 
EPA to establish ``levels or methods of treatment, if any, which 
minimize short- and long-term threats' (emphasis added). Accordingly, 
EPA has proposed to modify the BDAT treatment standards for all 
hazardous wastes to make clear that wastes treated to meet these 
standards may still not be utilized as fill material absent a site-
specific demonstration as described in 40 CFR 266.20(b)(2). Similarly, 
EPA is finding that the ultimate protectiveness standard in RCRA 
sections 3004 (d)(1), (e)(1) and (g)(5) remains unsatisfied, even after 
hazardous wastes are treated to meet existing LDR standards, if the 
wastes' ultimate disposition is as fill material (again, unless the 
site-specific demonstration described above is made).

B. Deferral of Ban Pending Study

    Some commenters on the original proposal have contended that EPA 
should defer action on the proposed ban on hazardous waste as fill 
until risks could be studied further. The Agency disagrees that further 
studies are needed in order to go forward with the proposed action. 
While the commenter is correct that nonhazardous slags have been used 
for many years as fill, the Agency has the responsibility to ensure 
that residues from hazardous waste treatment are appropriately 
regulated, and this requires a minimization of threats to human health 
and the environment prior to land placement as fill, and ultimate 
protectiveness of the actual disposal.
    As EPA explained at proposal, the treatment standards do not assure 
the requisite minimization of threat or ultimate safety for a number of 
reasons. 60 FR at 14473. In particular, the standards do not regulate 
the total metal content of a waste, typically requiring only reduction 
in metal constituents' mobility, as measured by the TCLP. However, when 
evaluating use as fill material, the total concentration of metals is 
highly important due to the number of exposure pathways (including 
direct inhalation and ingestion) which do not depend on leaching to 
release hazardous constituents. Id. In addition, the TCLP (or any 
single leaching test) may not be the appropriate means of evaluating 
potential for leaching given the wide range of potential conditions to 
which hazardous waste utilized as fill could be exposed. See 62 FR at 
1994-95 (January 14, 1997). In addition, since the existing LDR 
standards are technology-based rather than risk-based, EPA does not 
believe that they are an adequate surrogate for determining that 
threats have been minimized when one takes into account the 
uncontrolled use as fill. 60 FR at 14473.
    EPA is planning to further identify and assess risks from major 
current uses of High Temperature Metal Recovery (HTMR) slags from 
treatment of K061, K062, and F006 wastes. However, EPA is concerned 
that use of any hazardous waste, including HTMR slag, as a fill 
material represents a marginal use for which regulatory authorities 
would lose the ability to understand where it is placed or how much is 
used, making generic risk analysis extremely difficult. Fill material 
might be used in any setting, without any controls. While road 
construction projects at least include supervision of activities with 
regard to, for example wetlands and waterways, fill could be placed 
directly in sensitive areas without any type of regulatory agency 
approval. Further, fill may be placed in virtually unlimited amounts, 
while use in road construction (whether road bed or top coating) often 
is limited by the extent of road being built, as well as supervision by 
highway agencies. As such, exposures and risks posed by use as fill are 
extremely dependent on site specific circumstances, and we do not think 
at this time that the Agency will be able to set national levels of 
toxic constituents that would be safe in all fill settings.

C. Site Specific Approval Process

    This is not to say, however, that it is impossible to utilize a 
treated hazardous waste as a fill material. EPA's current thinking is 
that the current treatment standards are inadequate, and that EPA is 
unable to develop other standards that would be sufficient to assure 
protection, absent further site-specific investigation. EPA noted in 
the March 2, 1995 proposal that if someone could show that a specific 
use as fill was safe, it would be allowed. EPA is proposing revised, 
more detailed regulatory language to require, in addition to requiring 
these wastes (like all other prohibited wastes) to meet LDR standards 
before disposal, that a site-specific demonstration (for each intended 
fill site) be made showing that the treatment has minimized all 
potential threats posed by the placement of the waste fill material, 
and assured ultimate safety of the disposal. This demonstration would 
be made either to the EPA Region where the fill site is located, or, in 
the case of States authorized to operate this part of the program, to 
the authorized State. The demonstration would have to address all 
potential exposure pathways posed by the particular fill site, would 
specifically have to address the land disposal protectiveness factors 
set out in the statute at section 3004(d)(1) (A), (B), and (C), plus 
address all exposure pathways to humans or to the environment that are 
reasonably likely to occur, and would have to demonstrate safety ``to a 
reasonable degree of certainty.'' The burden of making the 
demonstration is on the applicant. See RCRA section 3004(d)(1) likewise 
assigning the burden of proof to the applicant in the case of no-
migration petitions.\13\ Comments are

[[Page 26063]]

requested on the revised regulatory language.
---------------------------------------------------------------------------

    \13\ There are similarities in this type of demonstration and 
the no-migration test required to show that it is safe to dispose of 
hazardous wastes that are not treated to satisfy the treatment 
standards that EPA establishes. However, because the wastes have 
been treated, the demonstration need not satisfy the no-migration 
test. Rather, ultimate safety would have to be demonstrated, taking 
into account the specific factors Congress noted as essential to 
ultimate land disposal safety determinations and considering all 
exposure pathways that are reasonably likely to occur.
---------------------------------------------------------------------------

D. Application of the Ban To Decharacterized Wastes

    Further, EPA wishes to make clear that the proposed rule would 
apply to all hazardous wastes subject to Land Disposal Restriction 
prohibitions. This includes all wastes that are identified or listed as 
hazardous at the point they are generated, and thus includes wastes 
that are listed as a result of the mixture and derived from rules. In 
addition, the rule applies to wastes that initially exhibit a 
characteristic but no longer exhibit that characteristic at the point 
they are land disposed (i.e., used as fill material). This means that 
if a person intends to utilize a characteristic hazardous waste as fill 
material, and treats the waste so that it no longer exhibits a 
characteristic, the rule nevertheless applies. See Chemical Waste 
Management v. EPA, 976 F. 2d 2, 12-14 (land disposal prohibitions apply 
to wastes that are hazardous when generated; thus, the prohibition--
i.e., the substantive LDR requirements--continues to attach to 
characteristic wastes that no longer exhibit a characteristic when they 
are land disposed). These so-called decharacterized wastes could 
nevertheless continue to pose the same types of substantial harm when 
utilized as fill material as wastes still identified or listed as 
hazardous at the point of disposal. This is because decharacterization 
does not necessarily remove or immobilize hazardous constituents. Id., 
55 FR 22655. Consequently the proposed prohibition would apply to all 
initially hazardous wastes.

E. Clarification of Scope of Ban (definition of ``fill'')

    Commenters indicated some confusion over the definition of 
``fill.'' EPA has slightly altered the definition of ``fill material'' 
from that proposed in the March 2, 1995 notice. That definition stated 
essentially that fill material was used as a substitute for low-grade 
materials to raise land levels, fill in depressions, and so forth. 
Today's supplemental language preserves the key concept that fill 
material raises land levels, fills in significant depressions (such as 
gullies or ditches) but removes any suggestion that there is an intent 
test associated with the definition. EPA wishes to avoid situations 
where hazardous waste fills in areas but some other use is claimed for 
the material that arguably makes it a different type of activity. As 
stated at original proposal, the Agency is acting to stop prohibited 
hazardous wastes from being used in an uncontrolled manner, in 
substantial volumes to fill in space (at least without a detailed 
demonstration and finding that the use is protective). The reference in 
the definition to filling in significant spaces makes clear that uses 
which have the incidental effect of filling or leveling, such as use as 
road-base or use a fertilizer or other uses that are subject to 
commercial specifications or physical constraints but incidentally fill 
in space in addition to other functions, are not included within the 
definition of ``fill material.'' Also, the prohibition does not apply 
to materials used as legitimate ingredients in asphalt or concrete.
    Some significant concerns were raised by producers of K061-slag 
over the scope of the proposed ban, in particular as it would apply to 
road building operations. EPA wishes to clarify that (as noted above), 
use as road bed, and use as road ``top coat'' are not intended to be 
banned under the proposed fill provisions. While there may be some 
ambiguity in these terms, EPA intends to allow further study use of 
legitimate road construction materials, meeting any specification set 
by the highway department in the State in which the material is used. 
While some filling of depressions may of course occur in road 
construction, EPA would not consider this use as fill, unless the 
depressions were well beyond what is necessary for road construction. 
EPA has provided some new regulatory language to clarify the scope of 
the proposal and welcomes further comment to help refine the 
definition.
    In addition, EPA is proposing to add the prohibition to 40 CFR 
268.40, as well as to the use constituting disposal provision in 40 CFR 
266.20. This would make clear that this action both implements the LDR 
provisions and modifies the existing treatment standards to the extent 
prohibited wastes are used as fill material.

F. Other Clarifications

    A commenter maintained that the proposed ban should not apply to 
vitrified material, arguing that by definition vitrified materials do 
not pose a threat to human health and the environment. This cannot be 
presumed a priori, however. Vitrification technology, for example, does 
not reduce total metal concentrations in treatment residue in which 
metals could be available to the environment via many of the exposure 
pathways present when the wastes are placed on the land without 
control, i.e. utilized as fill material. See the discussion above 
indicating why total metal concentrations remain critical in evaluating 
the protectiveness of this type of land disposal. Likewise, vitrified 
wastes may contain undestroyed organics, or insufficiently immobilized 
metals which likewise are capable of posing harm when placed on the 
land in this uncontrolled manner. For these reasons, at this time EPA 
does not believe vitrified material should be exempt from the ban.
    Finally, a number of commenters questioned whether the prohibition 
would apply to situations where prohibited wastes are landfilled, or 
whether it would apply to remediation activities, including those 
carried out pursuant to RCRA corrective action or Superfund 
authorities. EPA wishes to clarify that the prohibition would only 
apply to situations where recycling is involved, ``use as fill'' being 
a term of art referring to a situation where prohibited wastes are 
being legitimately recycled in a manner constituting disposal through 
use as a fill material. United States v. Marine Shale Processors, 81 
F.3d at 1365. (As noted above, see fn. 4 supra, EPA is skeptical that 
this claimed use is legitimate recycling.) Thus, the rule would not 
apply to situations where prohibited wastes are land disposed and an 
incidental effect of the disposal is to fill in depressions (as in 
remediation situations where treated soils are returned to the ground 
and raise a gradient). The policy basis for the distinction is that 
disposal of prohibited wastes is typically heavily regulated (for 
example, through subtitle C unit standards, or, in remediation 
situations, through site specific regulatory oversight; see 61 FR 18782 
(April 29, 1996)). In these situations, the existing LDR treatment 
standards should be sufficient to assure that the threats posed by land 
disposal of wastes are being minimized. Thus, the only situation 
covered by the prohibition would be the uncontrolled placement of 
prohibited hazardous wastes (including treatment residues from these 
wastes) outside the system of safeguards which normally would ensure 
that threats to human health and the environment are minimized. This 
situation is where the prohibited wastes are being recycled 
legitimately as fill material--assuming it is possible to make this 
showing--pursuant to 40 CFR 266.20(b).

[[Page 26064]]

IX. Capacity Determination

A. TC Metal Wastes

    EPA is not proposing to revise any capacity variance decision for 
TC metal wastes. However, after considering new information and 
comments in response to the originally proposed rule (August 22, 1995; 
60 FR 43654) and Notice of Data Availability (May 10, 1996; 61 FR 
21418), EPA has performed an updated capacity analysis to better 
reflect the current available and required capacity for the universe of 
wastes that would now be subject to the standards. For background 
information on data sources, methodology, and details of the capacity 
analysis for these wastes covered in this rule, see ``Background 
Document for Capacity Analysis for Land Disposal Restrictions--Phase IV 
(Second Supplemental): Toxicity Characteristic Metal Wastes and Newly 
Identified Mineral Processing Wastes (Proposed Rule).'' Based on the 
results of the capacity analysis, EPA proposes to not grant a national 
capacity variance for the TC metal wastes, including soil and debris, 
covered by today's proposed rule.

B. Mineral Processing Wastes

    As discussed in Section IV, Proposal of New Options for Mineral 
Processing, EPA is considering several regulatory options for the newly 
identified recycled mineral processing wastes. Two of these options are 
expected to significantly increase the estimate of required capacity 
discussed in the proposed rule. One option, which would require storage 
of materials to be recycled in the equivalent of RCRA regulated tanks, 
containers, or buildings prior to recycling, is expected to result in a 
moderate increase in required capacity. The other option, which would 
prohibit the introduction of any secondary material into any mining or 
mineral processing unit that generates a Bevill-exempt waste, is 
expected to result in a larger increase in required capacity. 
Nevertheless, the Agency expects that any such increases can be readily 
met by available on-site or off-site capacity, and therefore is not 
changing the proposed national capacity variance determination for most 
of these wastes.
    Three waste streams that now appear to be lacking adequate capacity 
are Medusa scrubber blowdown, Anderson filter media rinsate, and 
furnace building washdown as generated by the elemental phosphorus 
processing industry. A major generator of these waste streams, the FMC 
Corporation's Pocatello, Idaho facility, has stated that these waste 
streams pose unique treatability problems and that a two-year national 
capacity variance is needed to develop and construct treatment capacity 
(Phase IV Notice of Data Availability, 61 FR 21418, May 10, 1996). On 
August 21, 1996, FMC submitted additional data to the docket for the 
supplemental proposed rule (61 FR 2338, January 25, 1996, RCRA Docket 
F-95-PH4A-FFFFF). After careful review of the additional data, the 
Agency has initially determined that these wastes would require a 
national capacity variance, and therefore is proposing to grant a two-
year national capacity variance for these three waste streams.
    Regarding characteristically hazardous arsenic nonwastewaters and 
High Mercury Subcategory nonwastewaters (i.e., 260 mg/kg and above 
total mercury), EPA had proposed to grant a one-year national capacity 
variance. However, treatment data submitted by commenters and data 
collected by the Agency from site visits to commercial waste treatment 
facilities indicate that the newly identified mineral processing wastes 
do not contain arsenic and mercury at levels that could not be treated 
to UTS. Thus, the Agency is no longer proposing to grant a capacity 
variance for these wastes.
    Details of the methodology and estimates of affected facilities and 
waste quantities are provided in the capacity analysis background 
document.

C. Phase IV Mineral Processing and TC Metal Wastes Injected Into 
Underground Injection Control (UIC) Class I Wells

    Class I injection wells currently inject approximately 10 to 11 
million tons of newly identified mineral processing and TC metals waste 
(D004-D011). These waste volumes vary in amounts from facility to 
facility and are generally disposed on-site. None of the mineral 
processing facilities transport their waste off-site or currently have 
the necessary capacity to treat their waste on-site by BDAT. Some 
facilities generating TC metal waste that are unable to dispose or 
treat their waste on-site may send their waste to a commercial 
facility. However, these commercial facilities must be approved for the 
disposal of these restricted waste. For those facilities affected by 
the prohibitions which are unable to make a successful no-migration 
demonstration, constructing a treatment facility on-site would be the 
only permissible alternative in meeting LDR treatment standards for 
their hazardous wastes. The Agency remains steadfast in its belief that 
for those facilities affected by the Land Band prohibitions which are 
unable to make a successful no-migration demonstration, constructing a 
treatment facility on-site would require a substantial amount of 
economic resources and effort. The EPA believes that, at this time, a 
reasonable amount of time should be given to construct necessary 
treatment facilities. Therefore, the Agency is granting a two-year 
capacity variance for these wastes. The Agency requested comments on 
capacity determinations, generation, characteristics, and management of 
these wastes at Class I injection well facilities in the proposed 
supplemental rule on January 25, 1996. However, no specific applicable 
comments on potentially affected Class I facilities were received for 
the mineral processing or for TC wastes in the August 22, 1995 proposed 
rule. The Agency is again requesting this information and additionally 
asks that it include mixed-radioactive waste. This information may 
assist the Agency in determining whether the Land Disposal Program 
Flexibility Act of 1996 may further minimize the impact of this 
rulemaking on Class I injection well facilities disposing 
decharacterized waste that is presently being treated as Phase IV 
hazardous. The Agency estimates that the 10 to 11 million tons of this 
currently injected waste may be reduced by as much as 4 to 5 million 
tons annually at Class I nonhazardous facilities.

X. State Authority

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer and enforce the RCRA program within the State. Following 
authorization, EPA retains enforcement authority under sections 3008, 
3013, and 7003 of RCRA, although authorized States have primary 
enforcement responsibility. The standards and requirements for 
authorization are found in 40 CFR Part 271.
    Prior to 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.

[[Page 26065]]

    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 to do so.
    Parts of today's rule are proposed pursuant to sections 3004(d) 
through (k), and 3004(m) (42 U.S.C. 6924(d) through (k), and 6924(m)) 
of RCRA, a section added by HSWA. These parts are those provisions 
regarding the treatment standards for metal bearing wastes and mineral 
processing wastes. Therefore, the Agency is proposing to add the 
requirement to Table 1 in 40 CFR 271.1(j), which identifies the Federal 
program requirements that are promulgated pursuant to HSWA and that 
take effect in all states regardless of their authorization status. 
States may apply for interim or final authorization for the HSWA 
provisions in Table 1, as discussed in the following cection of this 
preamble. The Agency is also proposing to modify Table 2 in 40 CFR 
271.1(j) to indicate that the treatment standards are self-implementing 
provisions of HSWA.
    Other parts of today's proposed rule would not be effective in 
authorized States since the requirements would not be imposed pursuant 
to HSWA. These parts relate to the definition of solid waste and 
include storage of mineral processing secondary materials, the type of 
feedstocks used in Bevill-exempt mining units, and the exclusion of 
certain wood preserving wastewaters and spent wood preserving 
solutions. Thus, these requirements will be applicable only in those 
States that do not have final authorization. In authorized States, the 
requirements will not be applicable until the State revises its program 
to adopt equivalent requirements under State law.

B. Abbreviated Authorization Procedures

    In the Phase IV proposal dated August 22, 1995, EPA proposed a set 
of streamlined authorization procedures that would apply to new rules 
that were minor or routine in nature. This procedure was designed to 
expedite the authorization process by reducing the scope of a State's 
sebmittal for authorization, to a State certification and copies of 
applicable regulations and statutes. EPA would then conduct a short 
review of the State's request, primarily consisting of a completeness 
check (see 60 FR 43686 for a full description of the proposed 
procedures).
    In the HWIR-Media proposed rule, EPA proposed another set of 
abbreviated authorization procedures for more significant rulemakings, 
called Category 2 (see 61 FR 18780, April 29, 1996). In this latter 
proposal, EPA designated the procedures outlined in the August 1995 
Phase IV proposal as Category 1. EPA in this notice, also presented an 
expanded discussion on the need for and the intent of the streamlined 
procedures.
    Today, EPA is requesting comment regarding under which Category 
should the authorization of States for the proposed provisions be 
placed. EPA believes that the proposed revisions to the universal 
treatment standards, and the new waste exclusions should be placed in 
Category 1. EPA believes that these provisions will not significantly 
expand the scope of the RCRA program, and will be easily adopted by 
States. EPA proposed modified Category 1 authorization process for 
mineral processing wastes on January 25, 1996 (61 FR 2364). Today's 
proposal modifies the management scheme for these materials from what 
was proposed in the January 25, 1996 notice, but does not propose new 
authorization procedures, except that the procedures in the January 
1996 notice would apply only to situations in which the mineral 
processing waste volumes are high enough to be eligible for the special 
conditional exclusion made available to them at 261.4 in this proposed 
rule. EPA will consider public comments on that proposal when 
finalizing the authorization procedures. EPA will address which 
authorization procedures will apply to this rule either in the final 
HWIR-Media rule or the final Phase IV rule, whichever is promulgated 
first.

C. Effect on State Authorization

    As noted above, EPA would implement today's proposal in authorized 
States until they modify their programs to adopt these rules and the 
modification is approved by EPA. Because parts of the rule is proposed 
pursuant to HSWA, a State submitting a program modification 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 and 57 FR 
60132, December 18, 1992.)
    Section 271.21(e)(2) requires that States with final authorization 
must modify their programs to reflect Federal program changes and to 
subsequently submit the modification to EPA for approval. The deadline 
by which the State must modify its program to adopt this proposed 
regulation will be determined by the date of promulgation of the final 
rule in accordance with Sec. 271.21(e). This deadline can be extended 
in certain cases (see section Sec. 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 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 it 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.

D. Less Stringent Requirements

    Section 3009 of RCRA allows States to impose standards that are 
more stringent than the Federal program (see 40 CFR 270.1(I)). Thus, 
for those Federal changes that are less stringent or reduce the scope 
of the Federal program, States are not required to modify their 
programs. The parts of the rule that EPA views as less stringent are 
the exclusion for processed wood preserving wastewaters, and the 
revised universal treatment standards for antimony,

[[Page 26066]]

barium, beryllium, cadmium, lead, nickel, selenium, thallium, and 
vanadium. However, EPA believes that these proposed changes improve the 
RCRA program, thus EPA will strongly encourage States to adopt and 
become authorized for these provisions when they are finalized.

XI. 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: (1) Have an annual effect on the economy of $100 
million or more or adversely affect, in a material way, the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients; or 
(4) raise novel legal or policy issues arising out of legal mandates, 
the President's priorities, or the principles set forth in the 
Executive Order.''
    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 
newly listed and identified wastes affected by this rule. Newly 
identified mineral processing wastes covered under this rule include 
118 mineral processing wastes identified as potentially 
characteristically hazardous. Also covered under this rule are TC metal 
wastes including foundry sands and secondary lead slags. Finally, this 
rule covers a conditional exclusion from the definition of solid waste 
for wood preserving wastewaters and spent wood preserving solutions 
that are recycled on-site for their original purpose. EPA estimates the 
total compliance cost of the rule is $55 million annually, and 
concludes that this rule is significant according to the definition in 
E.O. 12866. The Office of Management and Budget has reviewed this rule.
    Detailed discussions of the methodology used for estimating the 
costs, economic impacts and the benefits attributable to today's 
proposed rule for newly identified mineral processing wastes, followed 
by a presentation of the cost, economic impact and benefit results may 
be found in the background document, ``Regulatory Impact Analysis of 
the Phase IV Land Disposal Restrictions Second Supplemental Proposed 
Rule for Newly Identified Mineral Processing Wastes and TC Metal 
Wastes,'' which was placed in the docket for today's proposed rule.
1. Methodology Section
    The Agency estimated the volumes of waste affected by today's rule 
to determine the national level incremental costs (for both the 
baseline and post-regulatory scenarios), economic impacts (including 
first-order measures such as the estimated percentage of compliance 
cost to industry or firm revenues), and benefits (including estimation 
of pollutant loadings reductions, estimation of reductions in 
exceedences of health-based levels, and qualitative description of the 
potential benefits.) The procedure for estimating the volumes of 
formerly Bevill-exempt mineral processing wastes, and TC metal wastes 
affected by today's proposed rule is detailed in the background 
document ``Regulatory Impact Analysis of the Proposed Phase IV Land 
Disposal Restrictions Rule for Newly Identified Mineral Processing 
Wastes and TC Metal Wastes,'' which was placed in the docket for 
today's proposed rule.
2. Results
    a. Volume Results. EPA estimates that there are 29 mineral 
commodity sectors potentially affected by today's rule, including an 
estimated 136 facilities that generate 118 streams of newly identified 
mineral processing wastes. The estimated volume is 20 million tons. 
Based on public comment and Agency research, the Agency believes that 
the potentially affected TC metal universe (other than mineral 
processing wastes) is limited to certain lead-bearing D008 hazardous 
wastes. Of the affected TC metal universe, the Agency estimates there 
are 791 non-ferrous foundries that generate approximately 300,000 tons 
of hazardous foundry sands. EPA did not prepare an estimate of volumes 
of potentially excluded wood preserving wastewaters and spent wood 
preserving solutions for this rulemaking.
    b. Cost Results. For the option presented in today's rule that 
prohibits land storage of mineral processing residues (below the high 
volume threshold) prior to being recycled, EPA estimates these expected 
case compliance costs to be $8.4 million. The estimated cost range for 
this option is between a minimum of $5.2 million and a maximum of $13 
million. This range reflects uncertainty surrounding both the quantity 
of these materials generated and the proportion of that quantity that 
is considered characteristically hazardous by EPA.
    For the option in today's rule that limits the Bevill exemption to 
wastes generated exclusively from the use of Bevill raw materials, EPA 
estimates the expected compliance costs of this option are $36.6 
million. The range of compliance costs for this option varies from a 
minimum of $31.8 million to a maximum of $42 million.
    Together, the expected case compliance costs for both options 
related to mineral processing are $45 million with a range between $37 
million and $55 million.
    For comparison, EPA evaluated two additional alternative options to 
the first EPA option in today's rule prohibiting land storage of 
mineral processing residues above high volume threshold. The first 
alternative option would require that in addition to prohibiting land 
storage, mineral processing residues would be required to be stored in 
units such as tanks, containers and buildings that meet RCRA Subtitle C 
Part 264 standards (Subpart I standards for containers, Subpart J 
standards for tanks and Subpart DD standards for containment 
buildings). In addition, this option assumed that the Bevill exemption 
is limited to wastes generated exclusively from the use of Bevill raw 
materials. EPA estimates expected case compliance costs for this option 
to be $58 million with a range of $46 million to $75 million.
    The second alternative option for which EPA estimated compliance 
costs for today's rule models the placement of newly identified mineral 
processing residues into land based units such as surface impoundments 
and waste piles. This option models no design or performance standards 
for the units and no legitimacy or ``significantly affects'' test for 
the placement of mineral processing residues into either Bevill process 
units or non-Bevill process units. EPA estimates expected case 
compliance costs for this alternative option to be $0.2 million.
    The cost results for these options are a function of two factors: 
(1) The expense associated with purchasing new storage units or 
upgrading existing storage units, and (2) the transfer of some mineral 
processing residues either from recycling to disposal resulting in 
increased costs or from disposal to recycling resulting in a cost 
savings.
    For TC metal hazardous wastes, the Agency estimates that 
incremental costs resulting from the promulgation of the

[[Page 26067]]

proposed treatment standards for TC nonwastewaters are $10 million 
annually. Based on public comment and data collected from commercial 
hazardous waste treaters EPA believes that the many D008 TC lead wastes 
are already treated to these proposed levels when waste handlers treat 
to the current treatment standards. Therefore, no additional treatment 
reagent or capital equipment associated with treatment is required with 
these wastes. Other data submitted by the American Foundrymen's Society 
indicates that additional treatment reagents may be required to meet 
proposed UTS for foundry wastes. EPA has evaluated these data and 
determined that additional reagent may be required for foundry wastes 
such as sands and baghouse dusts to treat cadmium to the proposed 
levels. Detailed information on EPA's estimate of costs associated with 
this treatment of foundry sands can be found in the regulatory impact 
analysis placed in the docket.
    For conditionally excluded wood preserving wastewaters and spent 
wood preserving solution, EPA believes that the conditional exclusion 
from the definition of solid waste will result in cost savings rather 
than imposing costs on wood preserving facilities. First, this 
conditional exclusion retains existing regulatory alternatives for the 
wood preserving industry. It is likely that the exclusion will provide 
regulatory relief to wood preserving facilities that as a result of not 
having to count spent wastewasters in their monthly hazardous waste 
generation rate are able to classify themselves as small quantity 
generators (SQGs) that generate between 100 and 1000 kilograms per 
month. For wood preserving facilities that are able to qualify as SQGs, 
no Biennial Reporting System reporting requirements apply. 40 CFR 
262.41. Furthermore, SQGs have longer accumulation times of 180 days 
compared to 90 days with large quantity generators. 40 CFR 262.34(d). 
Longer accumulation times mean less expensive transportation for off-
site shipments. Wood preserving facilities that are able to qualify as 
conditionally-exempt small quantity generators (CESQGs) would be 
subject to even fewer regulatory requirements. See 40 CFR 261.5.
    c. Economic Impact Results. Economic impacts from today's rule for 
mineral processing facilities may or may not be substantial for 
selected mineral processing sectors depending on the actual storage and 
management of mineral processing residues prior to being recycled. 
First order economic impacts are expressed in terms of a percentage of 
compliance costs to the economic value of the minerals that are 
produced. In the expected case scenario of the two proposed options 
combined to limit the exclusion from RCRA jurisdiction of wastes from 
Bevill process units to those process units to those that receive only 
virgin materials and to condition the exclusion from RCRA for mineral 
processing residues being recycled to those residues which are stored 
in non-land based units up to 5 of the 29 commodity sectors are 
expected to incur compliance costs equal to or greater than 3 percent 
of the economic value of the mineral commodities produced under the 
Agency's proposed option in today's rule. These sectors include: 
cadmium, lead, mercury, pyrobitumens, mineral waxes & natural asphalt, 
and selenium. The range of percentages in these sectors is between 3 
percent (selenium) and 173 percent (mercury). Because many of these 
sectors are actually co-processed with other mineral commodity sectors, 
these impacts may be distributed over the economic value of the other 
minerals, rather than concentrated solely on the mineral commodity 
associated with generating the waste. The exception is the primary lead 
sector would incur expected case compliance costs equal to 
approximately 13 percent of that sector's sales. EPA solicits comment 
on the economic impacts to the primary lead sector and other affected 
sectors resulting from this combined option and each option separately. 
EPA solicits specific public comment on the potential for lost revenues 
to mineral processing facilities with Bevill process units (e.g., 
beneficiation units and high volume mineral processing units) that are 
unable to receive secondary materials as alternative feedstocks that 
are generated from outside of the mineral processing industry.
    Because the Agency believes that there are no incremental costs 
associated with today's proposed rule for handlers of many D008 TC 
metal hazardous wastes and wood preserving facilities that recycle wood 
preserving wastewaters and spent wood preserving solutions, EPA 
believes that there are no economic impacts to generators of these 
materials. For TC hazardous foundry sands, EPA estimates that 
incremental costs attributable to this rule are less than one percent 
of industry revenues and therefore should not create a significant 
impact to these facilities. More detailed information on this estimate 
can be found in the regulatory impact analysis placed into today's 
docket.
    d. Risk Screen Estimate Results. The Agency has estimated the 
quantifiable individual results for newly identified mineral processing 
wastes associated with today's proposed rule to be above levels of 
concern for cancer and noncancer risks for specific mineral processing 
streams in both groundwater and nongroundwater pathways. Screening risk 
results suggest that individual cancer and non-cancer risks may be 
decreased below 1 x 10 -5 and below a reference dose ratio of 1 in a 
number of mineral processing facilities. These screening results are 
linked primarily with mineral processing wastewaters stored in surface 
impoundments prior to reuse. The data used to calculate these results 
are based on the groundwater pathway as well as other potential routes 
of exposure such as air or surface water. The risk screening results 
indicate that the highest individual risks are associated with exposure 
through groundwater and surface water pathways. These results are also 
limited to a subset of the mineral processing universe being regulated 
today where the Agency has collected data from individual mineral 
processing facilities. EPA also notes that in completing these 
individual risk results that the entire mass of hazardous constituents 
available for release in the waste management unit was available for 
release through pathway. This results in overestimation in risk due to 
double counting of constituent mass. To address this factor, EPA 
conducted mass balance calculations for all non-groundwater release 
pathways. These calculations indicate that this potential overestimate 
would result in negligible bias because only a very small percentage of 
hazardous constituents in the waste mass is available for release. In 
addition, EPA did not conduct these mass balance calculations for the 
groundwater pathway because limitations in the methodology for which 
individual groundwater risks were calculated. The Agency believes that 
the potential bias in risk results for both surface impoundments and 
waste piles is low.
    EPA requests comment on how constituents' mass should be 
partitioned across pathways to yield more accurate risk estimates. As 
stated above the Agency's efforts to evaluate benefits for mineral 
processing wastes was limited to calculations for central tendency and 
high-end individual risk. Due to data limitations, the Agency was 
unable to evaluate benefits including population benefits. In general, 
the Agency's experience has been that it is unusual to predict high 
population risks unless

[[Page 26068]]

there is an unusually large water well supply impacted by the facility 
because ground water contamination generally moves slowly and locally.
    Although the regulatory impact analysis completed for today's rule 
does not address benefits associated with ecological risk reduction and 
a decrease in natural resource damages, based on a review of available 
information on damage incidents associated with mining and mineral 
processing operations,14 the Agency's experience is that, 
while these types of benefits are extremely difficult to quantify, this 
rule may produce benefits in the area of ecological risk reduction and 
reduced natural resource damage.
---------------------------------------------------------------------------

    \14\ See Human Health and Environmental Damages from Mining and 
Mineral Processing Wastes, Technical Background Document Supporting 
the Supplemental Proposed Rule Applying Phase IV Land Disposal 
Restrictions to Newly Identified Mineral Processing Wastes, U.S. 
Office of Solid Waste, U.S. Environmental Protection Agency, 
December 1995; Ecological Risk Assessment Southshore Wetlands for 
the Kennecott Utah Copper Salt Lake City, Utah. Working Draft March 
4, 1996; May 7, 1996 letter from Max H. Dodson, Assistant Regional 
Administrator for Ecosystem Protection and Remediation, U.S.E.P.A, 
Region VIII to Michael Shapiro, Director, Office of Solid Waste, 
U.S.E.P.A.
---------------------------------------------------------------------------

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).
    With respect to mineral processing facilities that are small 
entities, EPA believes that EPA's proposed option in today's rule will 
not pose a significant impact to a substantial number of these 
facilities. EPA identified 22 firms owning 24 mineral processing 
facilities that are small businesses based on the number of employees 
in each firm. Under the Agency's proposed option, zero firms out of the 
24 identified incurred estimated compliance costs that exceed 1 percent 
of reported firm revenues. In assessing the regulatory approach for 
dealing with small entities affected by the TC metal treatment 
standards 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.
    Notwithstanding these statutory constraints, for the reasons 
discussed above in the economic impact section on nonferrous foundries, 
the Agency does not believe that today's proposed rule will have a 
significant impact on a substantial number of small entities in TC 
metals sector based on the results discussed above in the economic 
impact section.
    EPA has also clarified in today's rule that petitioners of 
restricted wastes that wish to obtain a treatment variance do not have 
to show technical infeasibility when the treatment technology is not 
appropriate to the waste. Because this clarification does not impose an 
adverse economic impact to any small entity that is either generator of 
restricted waste or an owner/operator of a treatment, storage or 
disposal facility managing such waste that is petitioning the Agency 
for a variance from the treatment standard, EPA is certifying that 
there is no significant impact to a substantial number of small 
entities potentially affected by this clarification.
    Finally, with respect to wood preserving facilities that recycle 
spent wood preserving solutions and wood preserving wastewaters on-site 
for their original purpose, EPA believes that today's conditional 
exclusion for these materials will not pose a significant impact on a 
substantial number of these firms. As stated above, the conditional 
exclusion does not alter existing regulatory alternatives and provides 
greater flexibility for wood preservers in calculating monthly 
generation rates of hazardous wastes. EPA believes that this will 
result in a cost savings to these firms rather than imposing additional 
waste management costs.

C. 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 the 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 does not believe that today's proposed rule will result in 
significant impacts to small governments and moreover 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 is not expected 
to incur costs exceeding $100 million per year. EPA has fulfilled the 
requirement for analysis under the Unfunded Mandates Reform Act.

D. 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. An 
Information Collection Request (ICR) document has been prepared by EPA: 
OSWER ICR No. 1442.15 would amend the existing ICR approved under OMB 
Control No. 2050-0085. This ICR has not been approved by OMB and the 
information collection requirements are not enforceable until OMB 
approves the ICR. EPA will publish a document in the Federal Register 
when OMB approves the information collection requirements showing the 
valid OMB control number. Until then, persons are not required to 
respond to collections of information in this ICR.
    Copies of this ICR may be obtained from Sandy Farmer, OPPE 
Regulatory Information Division; U.S. Environmental Protection Agency 
(2136); 401 M St., S.W.; Washington, D.C. 20460 or by calling (202) 
260-2740. Include the ICR number in any request.
    The annual public reporting and recordkeeping burden for this 
collection of information is estimated to be 16 hours per response. 
Burden means the total time, effort, or financial resources expended by 
persons to generate, maintain, retain, or disclose or provide 
information to or for a Federal agency. This includes the time needed 
to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing

[[Page 26069]]

and maintaining information, and comply with any previously applicable 
instructions and requirements, train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information. An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
    Send comments on the Agency's burden reduction, the accuracy of the 
provided burden estimates, and any suggested methods for minimizing 
respondent burden, including through the use of automated collection of 
techniques to the Director, OPPE Regulatory Information Division; U.S. 
Environmental Protection Agency (2136); 401 M St., S.W.; Washington, DC 
20460; and to the Office of Information and Regulatory Affairs, Office 
of Management and Budget, 725 17th St., N.W., Washington, D.C. 20503, 
marked ``Attention: Desk Officer for EPA.'' Include the ICR number in 
any correspondence.

XII. 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 Agencies 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.

B. Potential Effects

    Today's proposed rule covers high-metal wastes (``TC metal 
wastes,'' hazardous mineral processing wastes, and mineral processing 
materials. The rule involves not one site, but will possibly affect 
many facilities nationwide, with the potential for impacts to minority 
or low-income communities. Today's proposal is intended to reduce risks 
to human health and the environment, and to benefit all populations. It 
is not expected to cause any disproportionate impacts to minority or 
low income communities versus affluent or non-minority communities.
    The Agency is soliciting comment and input from all stakeholders, 
including members of the environmental justice community and members of 
the regulated community. The Agency is interested in receiving 
additional information and/or comment on the following:
    1. Information on facilities with surface impoundments that have 
evaluated potential ecological, human health (taking into account 
subsistence patterns and sensitive populations) and socioeconomic 
impacts to minority or low-income communities.
    2. Information on hazardous materials stored, used, and transported 
in the community.

XIII. Appendices

Appendix 1--Sampling Procedures for Horsehead Resource Development 
Company, Inc.

    EPA has established the following procedures which will be used 
by Horsehead Resource Development Company, Inc. (``HRD'') to 
demonstrate compliance with RCRA treatment standards for K061, K062, 
and F006 residuals (``the residuals''). U.S. EPA enforcement of the 
treatment standards applicable will be either on the basis of the 
Phase I and Phase II procedures, or on the Sampling Protocol below. 
Nothing in this document should be read to in any way affect EPA's 
ability to obtain samples or other information under Section 3007 of 
RCRA.

Phase I Procedure

    U.S. EPA may collect an 8-hour composite sample of dhe residuals 
as they are produced. The 8-hour composite sample will be based on 
eight grab samples, one taken every hour, with compositing and 
testing performed in accordance with the Sampling Protocol. Upon 
request, HRD will be supplied on-site with splits of all samples. 
U.S. EPA will perform a TCLP test on the 8-hour composite sample of 
the residuals. If the results of the TCLP test do not exceed the 
applicable numerical limits specified in 40 CFR 268.40 or 268.48, 
the residuals will be determined to be in compliance with the 
applicable treatment standards set forth in those provisions.
    If the results of the test exceed any of the applicable 
numerical limits specified in 40 CFR 268.40 or 268.48, such results 
will only be used to initiate the Phase II Procedure to be followed 
as described below, and will not be the basis for any determination 
of noncompliance.

Phase II Procedure

    If further action is required as a result of the Phase I 
Procedure, the following Phase II Procedure will be conducted:
    a. U.S. EPA will inform HRD of the results of the Phase I 
testing and concurrently provide HRD with copies of such results and 
all supporting information.
    b. HRD will provide to U.S. EPA, upon request, the TCLP results 
of a composite sample of the residuals collected by HRD that 
includes the period during which U.S. EPA collected the 8-hour 
composite sample. The sampling preparation and testing procedure 
used by HRD for this requested composite sample will be in 
accordance with the Sampling Protocol.
    c. If the results of the TCLP tests on the HRD composite sample 
do not exceed the applicable numerical limits specified in 40 CFR 
268.40 or 268.48, the residuals will be determined to be in 
compliance with the applicable treatment standards set forth in 
those provisions.

Sampling and Analysis Protocol

    HRD will use the following sampling and analysis protocol for 
K061, K062, or F006 residuals produced at its facilities.
    1. Grab samples of the wastes are taken every two hours of 
operation from the product stream.
    2. All of the two-hour interval samples are blended to form a 
daily composite.
    3. The daily composite is riffled down to approximately 100 
grams, which is added to the sample container used for the 
production lot composite.
    4. When the production composite is completed (four to seven 
days), the residuals in the composite sample container are riffled 
to produce approximately 300 grams composite, which is prepared for 
TCP testing.
    5. The TCLP and QA/QC procedures utilized are those described in 
Method 1311 (TCLP) of SW-846--Test Methods for Evaluating Solid 
Waste (U.S. EPA Office of Solid Waste and Emergency Response).

Appendix 2--Sampling Procedures For International Metals Reclamation 
Company, Inc.

    EPA has established the following procedures which will be used 
by International Metals Reclamation Company, Inc. (``INMETCO'') to 
demonstrate compliance with RCRA treatment standards for K061, K062, 
and F006 (``slag''). U.S. EPA enforcement of the treatment standards 
applicable will be either on the basis of Procedures I and II, or on 
the Sampling Protocol or as described below. Such demonstration will 
be deemed sufficient for compliance purposes. To the extent that 
U.S. EPA may exercise jurisdiction to determine the compliance of 
INMETCO's slag with applicable treatment standards, the compliance 
determination will be based either on the attached Sampling Protocol 
or on the procedures described below. Nothing in these procedures 
should be read to in any way affect EPA's ability to obtain samples 
or other information under Section 3007 of RCRA.

Phase I Procedure

    U.S. EPA may collect or direct the collection of a composite 
sample of INMETCO's slags as they are produced during a period of up 
to 24 hours. If U.S. EPA representatives wish to collect the samples 
themselves, they will comply with all safety requirements and 
procedures specified by INMETCO. The composite sample will be based 
on grab samples, one taken from each slag tap that occurs during the 
period of up

[[Page 26070]]

to 24 hours specified by EPA, with compositing and testing performed 
in accordance with the Sampling Protocol. EPA understands that slag 
is tapped from INMETCO's furnace most frequently during nighttime 
hours. Upon request, INMETCO will be supplied on-site with splits of 
all samples taken by EPA. U.S. EPA will perform a TCLP test on the 
composite sample of the slag. If the results of the TCLP test do not 
exceed the applicable numerical limits specified in 40 CFR 268.40 or 
268.48, the slag will be determined in compliance with the 
applicable treatment standards set forth in those provisions.
    If the results of the test exceed any of the applicable 
numerical limits specified in 40 CFR 268.40 or 268.48, such results 
will be used, if at all, only to initiate the Phase II Procedure 
described below, and will not be the basis for any determination of 
noncompliance.

Phase II Procedure

    If further action is required as a result of the Phase I 
Procedure, the following Phase II Procedure will be conducted:
    a. U.S. EPA will inform INMETCO of the results of the Phase I 
testing and concurrently provide INMETCO with copies of such results 
and all supporting information.
    b. Upon request, INMETCO will provide to U.S. EPA, the TCLP 
results for a composite sample of slags produced by INMETCO during a 
period not to exceed one month, which period may be selected by 
INMETCO provided that it will include the day on which U.S. EPA 
collected the composite sample tested during Phase I. The sample 
preparation and testing procedure used by INMETCO for this requested 
composite sample will be in accordance with the Sampling Protocol.
    c. If the results of the TCLP tests on the composite sample 
described in paragraph 2.b. above do not exceed the applicable 
numerical limits specified in 40 CFR 268.40 or 268.48, the slag will 
be determined to be in compliance with the applicable treatment 
standards set forth in those provisions.

Sampling and Analysis Protocol

    INMETCO will use the following sampling and analysis protocol 
for high temperature metals recovery slag produced at its facility.
    1. A grab sample of INMETCOs slag will be taken from every slag 
tap.
    2. The grab samples from slag taps occurring during a period not 
to exceed one month will be blended to form a composite sample of at 
least 100 grams in weight. The composite sample will be prepared for 
TCLP testing.
    3. The TCLP and QA/QC procedures utilized will be those 
described in Method 1311 (TCLP) of SW-846: Test Methods for 
Evaluating Solid Waste (U.S. EPA Office of Solid Waste and Emergency 
Response).

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 266

    Energy, Hazardous waste, Recycling, Reporting and recordkeeping

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: April 18, 1997.
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 is amended by redesignating paragraphs (a) 
through (c) as (b) through (d) respectively, and by adding paragraph 
(a) to read as follows:


Sec. 148.18  Waste specific prohibitions--newly listed and identified 
wastes.

    (a) Effective [Insert date 2 years from date of publication of the 
final rule], the wastes specified in 40 CFR part 261 as EPA Hazardous 
waste numbers D004--D011 (as measured by the Toxicity Characteristic 
Leaching Procedure); mixed D004-D011 TC/radioactive wastes; 
characteristic hazardous wastes from mineral processing operations; 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

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

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 
6938.

    4. Section 261.2(c) is amended by revising paragraph (c) (3) to 
read as follows:


Sec. 261.2  Definition of Solid Waste.

* * * * *
    (c) * * *
    (3) Reclaimed. Materials noted with a ``*'' in column 3 of Table 1 
are solid wastes when reclaimed. However, all secondary materials 
generated within the primary mineral processing industry (other than 
hazardous wastes listed in Subpart D of this part) are solid wastes 
when reclaimed unless excluded under Sec. 261.4(a) (15) and (16).
* * * * *
    4. Section 261.3(a) 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) * * *
    (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)(9)(iii), 
(a)(15), and (a)(16), and by revising paragraph (b)(7) to read as 
follows:


Sec. 261.4  Exclusions.

    (a) * * *
    (9) * * *
    (iii) Wood preserving wastewaters and spent wood preserving 
solutions that are recycled and reused on-site in the production 
process for their original intended purpose at wood preserving plants; 
provided that these wastewaters and spent wood preserving solutions are 
managed to prevent release to the land and the groundwater and that the 
units can be visually or otherwise determined to prevent such releases; 
and provided that if these wastewaters are collected or managed on drip 
pads, those pads are in compliance with the regulatory drip pad 
standards, regardless of whether the plant would generate less than 100 
kg per month of hazardous waste once such wastewaters and spent wood

[[Page 26071]]

preserving solutions are excluded under this provision.
* * * * *
    (15) Large volume streams of secondary materials (other than 
hazardous wastes listed in Subpart D of this Part) generated within the 
primary mineral processing industry from which minerals, acids, or 
water values are recovered by a primary mineral processing industry 
production process, provided that:
    (i) The material contains recoverable amounts of minerals, acids, 
or water;
    (ii) The materials are not accumulated speculatively (as defined at 
Sec. 261.1(c)(8));
    (iii) The secondary material is generated in a quantity over 45,000 
tons per year per waste stream as generated for solid wastes and one 
million tons per year per waste stream as generated for liquids wastes.
    (iv) 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; and,
    (v) The materials are 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) However, 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 generated within the primary mineral 
processing industry from which minerals, acids, or water are recovered 
and are stored in tanks, containers or buildings meeting the following 
minimum integrity standards: the tank or containment unit should be an 
engineered structure with a man-made floor, walls, and a roof all of 
which are made of non-earthen materials providing structural support, 
the tank or container must be free standing and not a surface 
impoundment (as defined in 40 CFR 260.10), be manufactured of a 
material suitable for storage of its contents, and meet appropriate 
specifications such as those established by either ASTM, API, or UL 
standards. The minimum criteria for a building is that the structure 
must be man-made, constructed from non-earthen materials, and have a 
roof suitable for diverting rainwater away from the foundation.
* * * * *
    (b) *  *  *
    (7) Solid waste from the extraction, beneficiation, and processing 
of ores and minerals (including coal, phosphate, rock, and overburden 
from the mining of uranium ore), except as provided by Sec. 266.112 of 
this chapter for facilities that burn or process hazardous waste. Solid 
wastes from the beneficiation of ores and minerals must be uniquely 
associated with and originate from the extracted ore or mineral that 
undergoes one or more of the following activities in preparation for 
mineral processing: crushing, grinding, washing, dissolution, 
crystallization, filtration, sorting, sizing, drying, sintering, 
pelletizing, briquetting, calcining to remove water and/or carbon 
dioxide, roasting, autoclaving and/or chlorination in preparation for 
leaching (except where the roasting and/or autoclaving sequence 
produces a final or intermediate product that does not undergo further 
beneficiation or processing); gravity concentration; magnetic 
separation; electrostatic separation; flotation, ion exchange; solvent 
extraction/electrowinning; precipitation, amalgamation, and heap, dump, 
vat, tank, and in situ leaching. For purposes of Sec. 261.4(b)(7), 
alternative feedstocks, which are secondary materials or materials not 
naturally occurring in the extracted ore or mineral undergoing 
beneficiation, are not eligible for the hazardous waste exclusion. For 
the purposes of Sec. 261.4(b)(7), solid waste from the processing of 
ores and minerals originate solely from a beneficiation activity and 
includes only the following wastes as generated:
    (i) Slag from primary copper processing;
    (ii) Slag from primary lead processing;
    (iii) Red and brown muds from bauxite refining;
    (iv) Phosphogypsum from phosphoric acid production;
    (v) Slag from elemental phosphorous production ;
    (vi) Gasifier ash from coal gasification;
    (vii) Process wastewater from coal gasification; (viii) Calcium 
sulfate wastewater treatment plant sludge from primary copper 
production;
    (ix) Slag tailings from primary copper processing;
    (x) Fluorogypsum from hydrofluoric acid production;
    (xi) Process wastewater from hydrofluoric acid production;
    (xii) Air pollution control dust/sludge from iron blast furnaces; 
(xiii) Iron blast furnace slag;
    (xiv) Treated residue from roasting/leaching of chrome ore;

[[Page 26072]]

    (xv) Process wastewater from primary magnesium processing by the 
anhydrous process;
    (xvi) Process wastewater from phosphoric acid production;
    (xvii) Basic oxygen furnace and open hearth furnace air pollution 
control dust/sludge from carbon steel production;
    (xviii) Basic oxygen furnace and open hearth furnace slag from 
carbon steel production;
    (xix) Chloride process waste solids from titanium tetrachloride 
production;
    (xx) Slag from primary zinc processing.
* * * * *

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

    7. The authority citation for Part 266 continues to read as 
follows:

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

    8. Section 266.20(b) is amended by redesignating the existing 
paragraph (b) as (b)(1), and adding a new paragraph (b)(2) to read as 
follows:


Sec. 266.20  Applicability.

* * * * *
    (b) * * *
    (2) In addition, prohibited hazardous waste (including wastes that 
exhibit a characteristic at the point they are generated but no longer 
exhibit a characteristic at the point they are used as fill material) 
may be used as a fill material only if the Regional Administrator or 
State Director first finds, on a site-specific basis, to a reasonable 
degree of certainty, that the fill material will be used in a manner 
protective of human health and the environment and which minimizes 
short-term and long-term threats posed by the land disposal of the 
waste as fill, considering the following factors:
    (i) The long term uncertainties associated with land disposal;
    (ii) The goal of managing hazardous waste in an appropriate manner 
in the first instance;
    (iii) The persistence, toxicity, mobility, and propensity to 
bioaccumulate of such hazardous waste and their hazardous constituents;
    (iv) All pathways of exposure to hazardous constituents to which 
human or environmental receptors could reasonably be exposed; and,
    (v) Other factors relating to protectiveness of human health and 
the environment, as appropriate.
    (vi) This approval is unnecessary if the fill area is a regulated 
unit. By, ``fill material,'' EPA means any prohibited hazardous waste 
used in place of such materials as natural soil or sand, the man-made 
addition of which to land levels the land, occupies space in the land, 
or fills in man-made or naturally occurring significant depressions in 
land (for example, ditches, gullies, channels, holes, ruts, trenches or 
the like), whether or not the addition of the prohibited hazardous 
waste is intended to achieve a purpose unrelated to the leveling land, 
occupying space in the land, or filling in man-made or naturally 
occurring depressions in land.
* * * * *

PART 268--LAND DISPOSAL RESTRICTIONS

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

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

Subpart C--Prohibitions on Land Disposal

    10. Section Sec. 268.32 is added to read as follows:


Sec. 268.32  Waste specific prohibitions--toxicity characteristic metal 
wastes.

    (a) Effective August 11, 1997, the following wastes are prohibited 
from land disposal: the wastes specified in 40 CFR 261 as EPA Hazardous 
Waste numbers D004--D011 (as measured by the Toxicity Characteristic 
Leaching Procedure) and soil and debris contaminated with these wastes; 
characteristic hazardous wastes from mineral processing operations; 
and, soil and debris contaminated with characteristic hazardous wastes 
from mineral processing operations.
    (b) Effective May 12, 1999, the following wastes are prohibited 
from land disposal: soil and debris contaminated with radioactive 
wastes mixed with EPA Hazardous waste numbers D004--D011 (as measured 
by the Toxicity Characteristic Leaching Procedure) and with 
characteristic mineral processing wastes.
    (c) Between May 12, 1997 and May 12, 1999, radioactive waste mixed 
with D004--D011 (as measured by the Toxicity Characteristic Leaching 
Procedure) wastes and/or soil and debris, or mixed with characteristic 
mineral processing wastes, may be disposed in a landfill or surface 
impoundment only if such unit is in compliance with the requirements 
specified in Sec. 268.5(h)(2) of this Part.
    (d) The requirements of paragraphs (a) and (b) 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) in excess of the applicable Universal Treatment 
Standard levels of Sec. 268.48 of this Part, the waste is prohibited 
from land disposal, and all requirements of part 268 are applicable, 
except as otherwise specified.
* * * * *

Subpart D--Treatment Standards

    11. Section 268.40 is amended by revising paragraph (e), adding 
paragraph (h), and amending the Table of Treatment Standards by 
revising the entries D004--D011; F006; F007; F008; F009; F011; F012; 
F019; F024; F032; F034; F035; F037; F038; F039; K001; K002; K003; K004; 
K005; K006; K007; K008; K015; K021; K022; K028; K046; K048; K049; K050; 
K051; K052; K061; K062; K069; K086; K087; K088; K100; K115; K161; P013; 
PO73; P074; P099; P103; P104; P110; P114; U032; U051; U144; U145; U146; 
U204; and U205 to read as follows:


Sec. 268.40  Applicability of Treatment Standards.

* * * * *
    (e) For characteristic wastes (D001-D043) that are subject to 
treatment standards in the following table ``Treatment Standards for 
Hazardous Wastes,'' and are not managed in a wastewater treatment 
system that is regulated under the Clean Water Act (CWA), that is CWA-
equivalent, or that is injected into a Class I nonhazardous

[[Page 26073]]

deep injection well, all underlying hazardous constituents (as defined 
in Sec. 268.2(i)) must meet Universal Treatment Standards, found in 
Sec. 268.48, ``Table UTS,'' prior to land disposal as defined in 
Sec. 268.2(c) of this part.
* * * * *
    (h) The hazardous wastes included in the ``Treatment Standards for 
Hazardous Wastes'' table are prohibited from use as a fill material, as 
defined at Sec. 266.20(b) of this Part, unless and until the placement 
of the waste or waste residue is demonstrated and determined to be 
protective of human health and the environment as set out in 
Sec. 266.20(b) of this Part, or the fill area is a regulated unit.
* * * * *

                                    Treatment Standards for Hazardous Wastes                                    
                                         [Note: NA means not applicable]                                        
----------------------------------------------------------------------------------------------------------------
                                                  Regulated hazardous          Wastewaters       Nonwastewaters 
                                                      constituent          -------------------------------------
                     Waste description and --------------------------------                     Concentration in
    Waste code       treatment/regulatory                                    Concentration in    mg/kg 5 unless 
                         subcategory 1                                          mg/l3; or       noted as ``mg/l 
                                               Common name      CAS 2 No.   technology code 4      TCLP''; or   
                                                                                               technology code 4
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
D004 \9\..........  Wastes that exhibit,    Arsenic..........    7440-38-2  1.4 and meet Sec.  5.0 mg/l TCLP and
                     or are expected to                                       268.48            meet Sec.       
                     exhibit, the                                            standards \8\.     268.48          
                     characteristic of                                                          standards.\8\   
                     toxicity for arsenic                                                                       
                     based on the toxicity                                                                      
                     characteristic                                                                             
                     leaching procedure                                                                         
                     (TCLP) in SW846.                                                                           
D005 \9\..........  Wastes that exhibit,    Barium...........    7440-39-3  1.2 and meet Sec.  21 mg/l TCLP and 
                     or are expected to                                       268.48            meet Sec.       
                     exhibit, the                                            standards \8\.     268.48          
                     characteristic of                                                          standards.\8\   
                     toxicity for barium                                                                        
                     based on the toxicity                                                                      
                     characteristic                                                                             
                     leaching procedure                                                                         
                     (TCLP) in SW846.                                                                           
D006 \9\..........  Wastes that exhibit,    Cadmium..........    7440-43-9  0.69 and meet      0.20 mg/l TCLP   
                     or are expected to                                      Sec.  268.48       and meet Sec.   
                     exhibit, the                                            standards \8\.     268.48          
                     characteristic of                                                          standards.\8\   
                     toxicity for cadmium                                                                       
                     based on the toxicity                                                                      
                     characteristic                                                                             
                     leaching procedure                                                                         
                     (TCLP) in SW846.                                                                           
                    Cadmium Containing      Cadmium..........    7440-43-9  NA...............  RTHRM            
                     Batteries                                                                                  
                     Subcategory. (Note:                                                                        
                     This subcategory                                                                           
                     consists of                                                                                
                     nonwastewaters only).                                                                      
D007 \9\..........  Wastes that exhibit,    Chromium (Total).    7440-47-3  2.77 and meet      0.85 mg/l TCLP   
                     or are expected to                                      Sec.  268.48       and meet Sec.   
                     exhibit, the                                            standards \8\.     268.48          
                     characteristic of                                                          standards.\8\   
                     toxicity for chromium                                                                      
                     based on the toxicity                                                                      
                     characteristic                                                                             
                     leaching procedure                                                                         
                     (TCLP) in SW846.                                                                           
D008 \9\..........  Wastes that exhibit,    Lead.............    7439-92-1  0.69 and meet      0.75 mg/l TCLP   
                     or are expected to                                      Sec.  268.48       and meet Sec.   
                     exhibit, the                                            standards \8\.     268.48          
                     characteristic of                                                          standards.\8\   
                     toxicity for lead                                                                          
                     based on the toxicity                                                                      
                     characteristic                                                                             
                     leaching procedure                                                                         
                     (TCLP) in SW846.                                                                           
                    Lead Acid Batteries     Lead.............    7439-92-1  NA...............  RLEAD            
                     Subcategory (Note:                                                                         
                     This standard only                                                                         
                     applies to lead acid                                                                       
                     batteries that are                                                                         
                     identified as RCRA                                                                         
                     hazardous wastes and                                                                       
                     that are not excluded                                                                      
                     elsewhere from                                                                             
                     regulation under the                                                                       
                     land disposal                                                                              
                     restrictions of 40                                                                         
                     CFR 268 or exempted                                                                        
                     under other EPA                                                                            
                     regulations (see 40                                                                        
                     CFR 266.80). This                                                                          
                     subcategory consists                                                                       
                     of nonwastewaters                                                                          
                     only).                                                                                     
                    Radioactive Lead        Lead.............    7439-92-1  NA...............  MACRO.           
                     Solids Subcategory                                                                         
                     (Note: these lead                                                                          
                     solids include, but                                                                        
                     are not limited to,                                                                        
                     all forms of lead                                                                          
                     shielding and other                                                                        
                     elemental forms of                                                                         
                     lead. These lead                                                                           
                     solids do not include                                                                      
                     treatment residuals                                                                        
                     such as hydroxide                                                                          
                     sludges, other                                                                             
                     wastewater treatment                                                                       
                     residuals, or                                                                              
                     incinerator ashes                                                                          
                     that can undergo                                                                           
                     conventional                                                                               
                     pozzolanic                                                                                 
                     stabilization, nor do                                                                      
                     they include organo-                                                                       
                     lead materials that                                                                        
                     can be incinerated                                                                         
                     and stabilized as                                                                          
                     ash. This subcategory                                                                      
                     consists of                                                                                
                     nonwastewaters only).                                                                      

[[Page 26074]]

                                                                                                                
D009 \9\..........  Nonwastewaters that     Mercury..........    7439-97-6  NA...............  IMERC; OR RMERC. 
                     exhibit, or are                                                                            
                     expected to exhibit,                                                                       
                     the characteristic of                                                                      
                     toxicity for mercury                                                                       
                     based on the toxicity                                                                      
                     characteristic                                                                             
                     leaching procedure                                                                         
                     (TCLP) in SW846; and                                                                       
                     contain greater than                                                                       
                     or equal to 260 mg/kg                                                                      
                     total mercury that                                                                         
                     also contain organics                                                                      
                     and are not                                                                                
                     incinerator residues.                                                                      
                     (High Mercury-Organic                                                                      
                     Subcategory).                                                                              
                    Nonwastewaters that     Mercury..........    7439-97-6  NA...............  RMERC.           
                     exhibit, or are                                                                            
                     expected to exhibit,                                                                       
                     the characteristic of                                                                      
                     toxicity for mercury                                                                       
                     based on the toxicity                                                                      
                     characteristic                                                                             
                     leaching procedure                                                                         
                     (TCLP) in SW846; and                                                                       
                     contain greater than                                                                       
                     or equal to 260 mg/kg                                                                      
                     total mercury that                                                                         
                     are inorganic,                                                                             
                     including incinerator                                                                      
                     residues and residues                                                                      
                     from RMERC. (High                                                                          
                     Mercury-Inorganic                                                                          
                     Subcategory).                                                                              
                    Nonwastewaters that     Mercury..........    7439-97-6  NA...............  0.025 mg/l TCLP  
                     exhibit, or are                                                            and meet Sec.   
                     expected to exhibit,                                                       268.48          
                     the characteristic of                                                      standards.\8\   
                     toxicity for mercury                                                                       
                     based on the toxicity                                                                      
                     characteristic                                                                             
                     leaching procedure                                                                         
                     (TCLP) in SW846; and                                                                       
                     contain less than 260                                                                      
                     mg/kg total mercury.                                                                       
                     (Low Mercury                                                                               
                     Subcategory).                                                                              
                    All D009 wastewaters..  Mercury..........    7439-97-6  0.15 and meet      NA.              
                                                                             Sec.  268.48                       
                                                                             standards \8\.                     
                    Elemental mercury       Mercury..........    7439-97-6  NA...............  AMLGM.           
                     contaminated with                                                                          
                     radioactive                                                                                
                     materials. (Note:                                                                          
                     This subcategory                                                                           
                     consists of                                                                                
                     nonwastewaters only).                                                                      
                    Hydraulic oil           Mercury..........    7439-97-6  NA...............  IMERC.           
                     contaminated with                                                                          
                     Mercury Radioactive                                                                        
                     Materials                                                                                  
                     Subcategory. (Note:                                                                        
                     This subcategory                                                                           
                     consists of                                                                                
                     nonwastewaters only).                                                                      
D010 \9\..........  Wastes that exhibit,    Selenium.........    7782-49-2  0.82 and meet      5.7 mg/l TCLP and
                     or are expected to                                      Sec.  268.48       meet Sec.       
                     exhibit, the                                            standards \8\.     268.48 standards
                     characteristic of                                                          \8\             
                     toxicity for selenium                                                                      
                     based on the toxicity                                                                      
                     characteristic                                                                             
                     leaching procedure                                                                         
                     (TCLP) in SW846.                                                                           
D011 \9\..........  Wastes that exhibit,    Silver...........    7440-22-4  0.43 and meet      0.11 mg/l TCLP   
                     or are expected to                                      Sec.  268.48       and meet Sec.   
                     exhibit, the                                            standards \8\.     268.48 standards
                     characteristic of                                                          \8\             
                     toxicity for silver                                                                        
                     based on the toxicity                                                                      
                     characteristic                                                                             
                     leaching procedure                                                                         
                     (TCLP) in SW846.                                                                           
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
F006..............  Wastewater treatment    Cadmium..........    7440-43-9  0.69.............  0.20 mg/l TCLP.  
                     sludges from           Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     electroplating         Cyanides (Total)       57-12-5  1.2..............  590.             
                     operations except       \7\.                  57-12-5  0.86.............  30.              
                     from the following     Cyanides                                                            
                     processes: (1)          (Amenable) \7\.     7439-92-1  0.69.............  0.75 mg/l TCLP.  
                     Sulfuric acid          Lead.............    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                     anodizing of           Nickel...........    7440-22-4  NA...............  0.11 mg/l TCLP.  
                     aluminum; (2) tin      Silver...........                                                   
                     plating on carbon                                                                          
                     steel; (3) zinc                                                                            
                     plating (segregated                                                                        
                     basis) on carbon                                                                           
                     steel; (4) aluminum                                                                        
                     or zinc-aluminum                                                                           
                     plating on carbon                                                                          
                     steel; (5) cleaning/                                                                       
                     stripping associated                                                                       
                     with tin, zinc and                                                                         
                     aluminum plating on                                                                        
                     carbon steel; and (6)                                                                      
                     chemical etching and                                                                       
                     milling of aluminum.                                                                       
F007..............  Spent cyanide plating   Cadmium..........    7440-43-9  NA...............  0.20 mg/l TCLP.  
                     bath solutions from    Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     electroplating                                                                             
                     operations.                                                                                
                                            Cyanides (Total)       57-12-5  1.2..............  590              
                                             \7\.                                                               
                                            Cyanides               57-12-5  0.86.............  30.              
                                             (Amenable) \7\.                                                    
                                            Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  

[[Page 26075]]

                                                                                                                
                                            Silver...........    7440-22-4  NA...............  0.11 mg/l TCLP.  
F008..............  Plating bath residues   Cadmium..........    7440-43-9  NA...............  0.20 mg/l TCLP.  
                     from the bottom of     Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     plating baths from     Cyanides (Total)       57-12-5  1.2..............  590.             
                     electroplating          \7\.                  57-12-5  0.86.............  30.              
                     operations where       Cyanides                                                            
                     cyanides are used in    (Amenable) \7\.                                                    
                     the process.                                                                               
                                            Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                                            Silver...........    7440-22-4  NA...............  0.11 mg/l TCLP.  
F009..............  Spent stripping and     Cadmium..........    7440-43-9  NA...............  0.20 mg/l TCLP.  
                     cleaning bath          Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     solutions from         Cyanides (Total)       57-12-5  1.2..............  590.             
                     electroplating          \7\.                                                               
                     operations where                                                                           
                     cyanides are used in                                                                       
                     the process.                                                                               
                                            Cyanides               57-12-5  0.86.............  30.              
                                             (Amenable) \7\.                                                    
                                            Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                                            Silver...........    7440-22-4  NA...............  0.11 mg/l TCLP.  
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
F011..............  Spent cyanide           Cadmium..........    7440-43-9  NA...............  0.20 mg/l TCLP.  
                     solutions from salt    Chromium (Total)     7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     bath pot cleaning       \7\.                  57-12-5  1.2..............  590.             
                     from metal heat        Cyanides (Total)                                                    
                     treating operations.    \7\.                                                               
                                            Cyanides               57-12-5  0.86.............  30.              
                                             (Amenable) \7\.                                                    
                                            Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                                            Silver...........    7440-22-4  NA...............  0.11 mg/l TCLP.  
F012..............  Quenching wastewater    Cadmium..........    7440-43-9  NA...............  0.20 mg/l TCLP.  
                     treatment sludges      Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     from metal heat        Cyanides (Total)       57-12-5  1.2..............  590.             
                     treating operations     \7\.                                                               
                     where cyanides are                                                                         
                     used in the process.                                                                       
                                            Cyanides               57-12-5  0.86.............  30.              
                                             (Amenable) \7\.                                                    
                                            Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                                            Silver...........    7440-22-4  NA...............  0.11 mg/l TCLP.  
F019..............  Wastewater treatment    Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     sludges from the       Cyanides               57-12-5  1.2..............  590              
                     chemical conversion     (Total)\7\.           57-12-5  0.86.............  30               
                     coating of aluminum    Cyanides                                                            
                     except from zirconium   (Amenable)\7\.                                                     
                     phosphating in                                                                             
                     aluminum can washing                                                                       
                     when such phosphating                                                                      
                     is an exclusive                                                                            
                     conversion coating                                                                         
                     process.                                                                                   
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
F024..............  Process wastes,         *                            *  *                  *                
                     including but not      Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP   
                     limited to,            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                     distillation                                                                               
                     residues, heavy ends,                                                                      
                     tars, and reactor                                                                          
                     clean-out wastes,                                                                          
                     from the production                                                                        
                     of certain                                                                                 
                     chlorinated aliphatic                                                                      
                     hydrocarbons by free                                                                       
                     radical catalyzed                                                                          
                     processes. These                                                                           
                     chlorinated aliphatic                                                                      
                     hydrocarbons are                                                                           
                     those having carbon                                                                        
                     chain lengths ranging                                                                      
                     from one to and                                                                            
                     including five, with                                                                       
                     varying amounts and                                                                        
                     positions of chlorine                                                                      
                     substitution. (This                                                                        
                     listing does not                                                                           
                     include wastewaters,                                                                       
                     wastewater treatment                                                                       
                     sludges, spent                                                                             
                     catalysts, and wastes                                                                      
                     listed in Sec.                                                                             
                     261.31 or Sec.                                                                             
                     261.32.)                                                                                   
                                                                                                                

[[Page 26076]]

                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
F032..............  Wastewaters (except     *                            *  *                  *                
                     those that have not                                                                        
                     come into contact                                                                          
                     with process                                                                               
                     contaminants),                                                                             
                     process residuals,                                                                         
                     preservative                                                                               
                     drippage, and spent                                                                        
                     formulations from                                                                          
                     wood preserving                                                                            
                     processes generated                                                                        
                     at plants that                                                                             
                     currently use or have                                                                      
                     previously used                                                                            
                     chlorophenolic                                                                             
                     formulations (except                                                                       
                     potentially cross-                                                                         
                     contaminated wastes                                                                        
                     that have had the                                                                          
                     F032 waste code                                                                            
                     deleted in accordance                                                                      
                     with Sec.  261.35 of                                                                       
                     this chapter or                                                                            
                     potentially cross-                                                                         
                     contaminated wastes                                                                        
                     that are otherwise                                                                         
                     currently regulated                                                                        
                     as hazardous wastes                                                                        
                     (i.e., F034 or F035),                                                                      
                     and where the                                                                              
                     generator does not                                                                         
                     resume or initiate                                                                         
                     use of chlorophenolic                                                                      
                     formulations). This                                                                        
                     listing does not                                                                           
                     include K001 bottom                                                                        
                     sediment sludge from                                                                       
                     the treatment of                                                                           
                     wastewater from wood                                                                       
                     preserving processes                                                                       
                     that use creosote and/                                                                     
                     or penta-chlorophenol.                                                                     
                                            Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
F034..............  Wastewaters (except     *                            *  *                  *                
                     those that have not    Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     come into contact                                                                          
                     with process                                                                               
                     contaminants),                                                                             
                     process residuals,                                                                         
                     preservative                                                                               
                     drippage, and spent                                                                        
                     formulations from                                                                          
                     wood preserving                                                                            
                     processes generated                                                                        
                     at plants that use                                                                         
                     creosote                                                                                   
                     formulations. This                                                                         
                     listing does not                                                                           
                     include K001 bottom                                                                        
                     sediment sludge from                                                                       
                     the treatment of                                                                           
                     wastewater from wood                                                                       
                     preserving processes                                                                       
                     that use creosote and/                                                                     
                     or pentachlorophenol.                                                                      
F035..............  Wastewaters (except     Arsenic..........    7440-38-2  1.4..............  5.0 mg/l TCLP.   
                     those that have not    Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     come into contact                                                                          
                     with process                                                                               
                     contaminants),                                                                             
                     process residuals,                                                                         
                     preservative                                                                               
                     drippage, and spent                                                                        
                     formulations from                                                                          
                     wood preserving                                                                            
                     processes processes                                                                        
                     generated at plants                                                                        
                     that use inorganic                                                                         
                     preservatives                                                                              
                     containing arsenic or                                                                      
                     chromium. This                                                                             
                     listing does not                                                                           
                     include K001 bottom                                                                        
                     sediment sludge from                                                                       
                     the treatment of                                                                           
                     wastewater from wood                                                                       
                     preserving processes                                                                       
                     that use creosote and/                                                                     
                     or pentachlorophenol.                                                                      

[[Page 26077]]

                                                                                                                
F037..............  Petroleum refinery      *                            *  *                  *                
                     primary oil/water/     Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     solids separation      *                            *  *                  *                
                     sludge-Any sludge      Nickel...........    7440-02-0  NA...............  13.6 mg/l TCLP.  
                     generated from the                                                                         
                     gravitational                                                                              
                     separation of oil/                                                                         
                     water/solids during                                                                        
                     the storage or                                                                             
                     treatment of process                                                                       
                     wastewaters and oily                                                                       
                     cooling wastewaters                                                                        
                     from petroleum                                                                             
                     refineries. Such                                                                           
                     sludges include, but                                                                       
                     are not limited to,                                                                        
                     those generated in:                                                                        
                     oil/water/solids                                                                           
                     separators; tanks and                                                                      
                     impoundments; ditches                                                                      
                     and other                                                                                  
                     conveyances; sumps;                                                                        
                     and stormwater units                                                                       
                     receiving dry weather                                                                      
                     flow. Sludge                                                                               
                     generated in                                                                               
                     stormwater units that                                                                      
                     do not receive dry                                                                         
                     weather flow, sludges                                                                      
                     generated from non-                                                                        
                     contact once-through                                                                       
                     cooling waters                                                                             
                     segregated for                                                                             
                     treatment from other                                                                       
                     process or oily                                                                            
                     cooling waters,                                                                            
                     sludges generated in                                                                       
                     aggressive biological                                                                      
                     treatment units as                                                                         
                     defined in Sec.                                                                            
                     261.31(b)(2)                                                                               
                     (including sludges                                                                         
                     generated in one or                                                                        
                     more additional units                                                                      
                     after wastewaters                                                                          
                     have been treated in                                                                       
                     aggressive biological                                                                      
                     treatment units) and                                                                       
                     K051 wastes are not                                                                        
                     included in this                                                                           
                     listing.                                                                                   
F038..............  Petroleum refinery      *                            *  *                  *                
                     secondary              Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     (emulsified) oil/      *                            *  *                  *                
                     water/solids           Nickel...........    7440-02-0  NA...............  13.6 mg/l TCLP.  
                     separation sludge and/                                                                     
                     or float generated                                                                         
                     from the physical and/                                                                     
                     or chemical                                                                                
                     separation of oil/                                                                         
                     water/solids in                                                                            
                     process wastewaters                                                                        
                     and oily cooling                                                                           
                     wastewaters from                                                                           
                     petroleum refineries.                                                                      
                     Such wastes include,                                                                       
                     but are not limited                                                                        
                     to, all sludges and                                                                        
                     floats generated in:                                                                       
                     induced air                                                                                
                     floatation (IAF)                                                                           
                     units, tanks and                                                                           
                     impoundments, and all                                                                      
                     sludges generated in                                                                       
                     DAF units. Sludges                                                                         
                     generated in                                                                               
                     stormwater units that                                                                      
                     do not receive dry                                                                         
                     weather flow, sludges                                                                      
                     generated from non-                                                                        
                     contact once-through                                                                       
                     cooling waters                                                                             
                     segregated for                                                                             
                     treatment from other                                                                       
                     process or oily                                                                            
                     cooling waters,                                                                            
                     sludges and floats                                                                         
                     generated in                                                                               
                     aggressive biological                                                                      
                     treatment units as                                                                         
                     defined in Sec.                                                                            
                     261.31(b)(2)                                                                               
                     (including sludges                                                                         
                     and floats generated                                                                       
                     in one or more                                                                             
                     additional units                                                                           
                     after wastewaters                                                                          
                     have been treated in                                                                       
                     aggressive biological                                                                      
                     units) and F037,                                                                           
                     K048, and K051 are                                                                         
                     not included in this                                                                       
                     listing.                                                                                   
F039..............  Leachate (liquids that  *                            *  *                  *                
                     have percolated        Antimony.........    7440-36-0  1.9..............  0.07 mg/l TCLP.  
                     through land disposed                                                                      
                     wastes) resulting                                                                          
                     from the disposal of                                                                       
                     more than one                                                                              
                     restricted waste                                                                           
                     classified as                                                                              
                     hazardous under                                                                            
                     subpart D of this                                                                          
                     part. (Leachate                                                                            
                     resulting from the                                                                         
                     disposal of one or                                                                         
                     more of the following                                                                      
                     EPA Hazardous Wastes                                                                       
                     and no other                                                                               
                     Hazardous Wastes                                                                           
                     retains its EPA                                                                            
                     Hazardous Waste                                                                            
                     Number(s): F020,                                                                           
                     F021, F022, F026,                                                                          
                     F027, and/or F028.).                                                                       
                                            *                            *  *                  *                
                                            Barium...........    7440-39-3  1.2..............  21 mg/lTCLP.     
                                            Beryllium........    7440-41-7  0.82.............  NA.              
                                            Cadmium..........    7440-43-9  0.69.............  0.20 mg/l TCLP.  
                                            Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  

[[Page 26078]]

                                                                                                                
                                            *                            *  *                  *                
                                            Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                                            *                            *  *                  *                
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                                            Selenium.........    7782-49-2  0.82.............  5.7 mg/l TCLP.   
                                            Silver...........    7440-22-4  0.43.............  0.11 mg/l TCLP.  
                                            *                            *  *                  *                
K001..............  Bottom sediment sludge  *                            *  *                  *                
                     from the treatment of  Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                     wastewaters from wood                                                                      
                     preserving processes                                                                       
                     that use creosote and/                                                                     
                     or pentachlorophenol.                                                                      
K002..............  Wastewater treatment    Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     sludge from the        Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                     production of chrome                                                                       
                     yellow and orange                                                                          
                     pigments.                                                                                  
K003..............  Wastewater treatment    Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     sludge from the        Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                     production of                                                                              
                     molybdate orange                                                                           
                     pigments.                                                                                  
K004..............  Wastewater treatment    Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     sludge from the        Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                     production of zinc                                                                         
                     yellow pigments.                                                                           
K005..............  Wastewater treatment    Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     sludge from the        Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                     production of chrome   Cyanides (Total)       57-12-5  1.2..............  590              
                     green pigments.         \7\.                                                               
K006..............  Wastewater treatment    Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     sludge from the        Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                     production of chrome                                                                       
                     oxide green pigments                                                                       
                     (anhydrous).                                                                               
                    Wastewater treatment    Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     sludge from the        Lead.............    7439-92-1  0.69.............  NA               
                     production of chrome                                                                       
                     oxide green pigments                                                                       
                     (hydrated).                                                                                
K007..............  Wastewater treatment    Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     sludge from the        Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                     production of iron     Cyanides (Total)       57-12-5  1.2..............  590              
                     blue pigments.          \7\.                                                               
K008..............  Oven residue from the   Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     production of chrome   Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                     oxide green pigments.                                                                      
                                                                                                                
                    *         ............  *         .......   *           *         *......                   
K015..............  Still bottoms from the  *                            *  *                  *                
                     distillation of                                                                            
                     benzyl chloride.                                                                           
                                            Chromium (Total).    7440-47-3  2.77.............  0.85 mg/lTCLP.   
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                                                                                                                
*                  *                  *                    *                    *                  *            
                                                          *                                                     
K021..............  Aqueous spent antimony  Carbon                 56-23-5  0.057............  6.0.             
                     catalyst waste from     tetrachloride.                                                     
                     fluoromethanes                                                                             
                     production.                                                                                
                                            Chloroform.......      67-66-3  0.046............  6.0.             
                                            Antimony.........    7440-36-0  1.9..............  0.07 mg/l TCLP.  
K022..............  Distillation bottom     *                            *  *                  *                
                     tars from the                                                                              
                     production of phenol/                                                                      
                     acetone from cumene.                                                                       
                                            Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                                                                                                                
*                  *                  *                    *                    *                  *            
                                                          *                                                     
K028..............  Spent catalyst from     *                            *  *                  *                
                     the hydrochlorinator                                                                       
                     reactor in the                                                                             
                     production of 1,1,1-                                                                       
                     trichloroethane.                                                                           
                                            Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                                            Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                                                                                                                
*                  *                  *                    *                    *                  *            
                                                          *                                                     
K046..............  Wastewater treatment    Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                     sludges from the                                                                           
                     manufacturing,                                                                             
                     formulation and                                                                            
                     loading of lead-based                                                                      
                     initiating compounds.                                                                      
                                                                                                                
*                  *                  *                    *                    *                  *            
                                                          *                                                     
K048..............  Dissolved air           *                            *  *                  *                
                     flotation (DAF) float                                                                      
                     from the petroleum                                                                         
                     refining industry.                                                                         

[[Page 26079]]

                                                                                                                
                                            Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                                            *                            *  *                  *                
                                            Nickel...........    7440-02-0  NA...............  13.6 mg/l TCLP.  
K049..............  Slop oil emulsion       *                            *  *                  *                
                     solids from the                                                                            
                     petroleum refining                                                                         
                     industry.                                                                                  
                                            Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                                            *                            *  *                  *                
                                            Nickel...........    7440-02-0  NA...............  13.6 mg/l TCLP.  
K050..............  Heat exchanger bundle   *                            *  *                  *                
                     cleaning sludge from                                                                       
                     the petroleum                                                                              
                     refining industry.                                                                         
                                            Chromium (Total)     7440-47-3  2.77.............  0.85 mg/l TCLP.  
                                            *                            *  *                  *                
                                            Nickel...........    7440-02-0  NA...............  13.6 mg/l TCLP.  
K051..............  API separator sludge    *                            *  *                  *                
                     from the petroleum                                                                         
                     refining industry.                                                                         
                                            Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                                            *                            *  *                  *                
                                            Nickel...........    7440-02-0  NA...............  13.6 mg/l TCLP.  
K052..............  Tank bottoms (leaded)   *                            *  *                  *                
                     from the petroleum                                                                         
                     refining industry.                                                                         
                                            Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                                            *                            *  *                  *                
                                            Lead.............      7439-92  10.69............  NA               
                                            Nickel...........    7440-02-0  NA...............  13.6 mg/l TCLP.  
                                                                                                                
*                  *                  *                    *                    *                  *            
                                                          *                                                     
K061..............  Emission control dust/  Antimony.........    7440-36-0  NA...............  0.07 mg/l TCLP.  
                     sludge from the                                                                            
                     primary production of                                                                      
                     steel in electric                                                                          
                     furnaces.                                                                                  
                                            Arsenic..........    7440-38-2  NA...............  5.0 mg/l TCLP.   
                                            Barium...........    7440-39-3  NA...............  21 mg/l TCLP.    
                                            Beryllium........    7440-41-7  NA...............  0.02 mg/l TCLP.  
                                            Cadmium..........    7440-43-9  0.69.............  0.20 mg/l TCLP.  
                                            Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                                            Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                                            Mercury..........    7439-97-6  NA...............  0.025 mg/l TCLP. 
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                                            Selenium.........    7782-49-2  NA...............  5.7 mg/l TCLP.   
                                            Silver...........    7440-22-4  NA...............  0.11 mg/l TCLP.  
                                            Thallium.........    7440-28-0  NA...............  0.20 mg/l TCLP.  
                                            Zinc.............    7440-66-6  NA...............  4.3 mg/l TCLP.   
K062..............  Spent pickle liquor     Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     generated by steel     Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                     finishing operations                                                                       
                     of facilities within                                                                       
                     the iron and steel                                                                         
                     industry (SIC Codes                                                                        
                     331 and 332).                                                                              
                                            Nickel...........    7440-02-0  3.98.............  NA.              
K069..............  Emission control dust/  Cadmium..........    7440-43-9  0.69.............  0.20 mg/l TCLP.  
                     sludge from secondary  Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                     lead smelting.--                                                                           
                     Calcium Sulfate (Low                                                                       
                     Lead) Subcategory.                                                                         
                    Emission control dust/  NA...............           NA  NA...............  RLEAD.           
                     sludge from secondary                                                                      
                     lead smelting.--Non-                                                                       
                     Calcium Sulfate (High                                                                      
                     Lead) Subcategory.                                                                         
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
K086..............  Solvent wastes and      *                            *  *                  *                
                     sludges, caustic                                                                           
                     washes and sludges,                                                                        
                     or water washes and                                                                        
                     sludges from cleaning                                                                      
                     tubs and equipment                                                                         
                     used in the                                                                                
                     formulation of ink                                                                         
                     from pigments,                                                                             
                     driers, soaps, and                                                                         
                     stabilizers                                                                                
                     containing chromium                                                                        
                     and lead.                                                                                  
                                            Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                                            Lead 7439-92-1...         0.69  0.75 mg/l TCLP...                   
K087..............  Decanter tank tar       *                            *  *                  *                
                     sludge from coking                                                                         
                     operations.                                                                                
                                            Lead 7439-92-1...         0.69  0.75 mg/l TCLP...                   

[[Page 26080]]

                                                                                                                
K088..............  Spent potliners from    *                            *  *                  *                
                     primary aluminum                                                                           
                     reduction.                                                                                 
                                            Antimony.........    7440-36-0  1.9..............  0.07 mg/l TCLP.  
                                            *                            *  *                  *                
                                            Barium...........    7440-39-3  1.2..............  21 mg/l TCLP.    
                                            Beryllium........    7440-41-7  0.82.............  0.02 mg/l TCLP.  
                                            Cadmium..........    7440-43-9  0.69.............  0.20 mg/l TCLP.  
                                            Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                                            Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                                            *                            *  *                  *                
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                                            Selenium.........    7782-49-2  0.82.............  5.7 mg/l TCLP.   
                                            Silver...........    7440-22-4  0.43.............  0.11 mg/l TCLP.  
                                            *                            *  *                  *                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
K100..............  Waste leaching          Cadmium..........    7440-43-9  0.69.............  0.20 mg/l TCLP.  
                     solution from acid     Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                     leaching of emission                                                                       
                     control dust/sludge                                                                        
                     from secondary lead                                                                        
                     smelting.                                                                                  
                                            Lead 7439-92-1...         0.69  0.75 mg/l TCLP...                   
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
K115..............  Heavy ends from the     Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                     purification of        NA...............           NA  CARBN; or CMBST..  CMBST.           
                     toluenediamine in the                                                                      
                     production of                                                                              
                     toluenediamine via                                                                         
                     hydrogenation of                                                                           
                     dinitrotoluene.                                                                            
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
K161..............  Purification solids     Antimony.........    7440-36-0  1.9..............  0.07 mg/l TCLP.  
                     (including             Arsenic..........    7440-38-2  1.9..............  5.0 mg/l TCLP.   
                     filtration,                                                                                
                     evaporation, and                                                                           
                     centrifugation                                                                             
                     solids), baghouse                                                                          
                     dust and floor                                                                             
                     sweepings from the                                                                         
                     production of                                                                              
                     dithiocarbamate acids                                                                      
                     and their salts.\10\.                                                                      
                                            Carbon disulfied.      75-15-0  3.8..............  4.8 mg/l TCLP.   
                                            Dithiocarbamates            NA  0.028............  28.              
                                             (total).                                                           
                                            Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                                            Selenium.........    7782-49-2  0.82.............  5.7 mg/l TCLP.   
                                                                                                                
      *                   *                   *                   *                   *                   *     
                                                           *                                                    
P013..............  Barium cyanide........  Barium...........    7440-39-3  NA...............  21 mg/l TCLP.    
                                            Cyanides (Total)       57-12-5  1.2..............  590.             
                                             7.                                                                 
                                            Cyanides               57-12-5  0.86.............  30.              
                                             (Amenable) 7.                                                      
                                                                                                                
      *                   *                   *                   *                   *                   *     
                                                           *                                                    
P073..............  Nickel carbonyl.......  Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
P074..............  Nickel cyanide........  Cyanides (Total 7      57-12-5  1.2..............  590              
                                            Cyanides               57-12-5  0.86.............  30.              
                                             (Amenable) 7.                                                      
                                            Nickel...........    7440-02-0  3.98.............  13.6 mg/l TCLP.  
                                                                                                                
      *                   *                   *                   *                   *                   *     
                                                           *                                                    
P099..............  Potassium silver        Cyanides (Total)       57-12-5  1.2..............  590.             
                     cyanide.                7.                                                                 
                                            Cyanides               57-12-5  0.86.............  30.              
                                             (Amenable) 7.                                                      
                                            Silver...........    7440-22-4  0.43.............  0.11 mg/l TCLP.  
                                                                                                                
      *                   *                   *                   *                   *                   *     
                                                           *                                                    
P103..............  Selenourea............  Selenium.........    7782-49-2  0.82.............  5.7 mg/l TCLP.   
P104..............  Silver cyanide........  Cyanides (Total)       57-12-5  1.2..............  590.             
                                             7.                                                                 
                                            Cyanides               57-12-5  0.86.............  30.              
                                             (Amenable) 7.                                                      
                                            Silver...........    7440-22-4  0.43.............  0.11 mg/l TCLP.  
                                                                                                                

[[Page 26081]]

                                                                                                                
      *                   *                   *                   *                   *                   *     
                                                           *                                                    
P110..............  Tetraethyl lead.......  Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                                                                                                                
      *                   *                   *                   *                   *                   *     
                                                           *                                                    
P114..............  Thallium selenite.....  Selenium.........    7782-49-2  0.82.............  5.7 mg/l TCLP.   
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
U032..............  Calcium chromate......  Chromium (Total).    7440-47-3  2.77.............  0.85 mg/l TCLP.  
                                                                                                                
        *                  *                  *                  *                  *                  *        
U051..............  Creosote..............  *                            *  *                  *                
                                            Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
                                                                                                                
        *                  *                  *                  *                  *                  *        
U144..............  Lead acetate..........  Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
U145..............  Lead phosphate........  Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP.  
U146..............  Lead subacetate.......  Lead.............    7439-92-1  0.69.............  0.75 mg/l TCLP   
                                                                                                                
        *                  *                  *                  *                  *                  *        
U204..............  Selenium dioxide......  Selenium.........    7782-49-2  0.82.............  5.7 mg/l TCLP    
U205..............  Selenium sulfide......  Selenium.........    7782-49-2  0.82.............  5.7 mg/l TCLP.   
                                                                                                                
        *                  *                  *                  *                  *                  *        
----------------------------------------------------------------------------------------------------------------
Footnotes to Treatment Standards Table 268.40:                                                                  
\1\ The waste descriptions provided in this table do not replace waste descriptions in 40 CFR part 261.         
  Descriptions of Treatment/Regulatory Subcategories are provided, as needed, to distinguish between            
  applicability of different standards.                                                                         
\2\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a  
  combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only. 
\3\ Concentration standards for wastewaters are expressed in mg/l and are based on analysis of composite        
  samples.                                                                                                      
\4\ All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in  
  detail in Sec.  268.42 Table 1--Technology Codes and Descriptions of Technology-Based Standards.              
\5\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards      
  expressed as a concentration were established, in part, based upon incineration in units operated in          
  accordance with the technical requirements of 40 CFR part 264, subpart O, or part 265, subpart O, or based    
  upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A  
  facility may comply with these treatment standards according to provisions in Sec.  268.40(d). All            
  concentration standards for nonwastewaters are based on analysis of grab samples.                             
\6\ Where an alternate treatment standard or set of alternate standards has been indicated, a facility may      
  comply with this alternate standard, but only for the Treatment/Regulatory Subcategory or physical form (i.e.,
  wastewater and/or nonwastewater) specified for that alternate standard.                                       
\7\ Both Cyanides (Total) and Cyanides (Amenable) for nonwastewaters are to be analyzed using Method 9010 or    
  9012, found in ``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods'', EPA Publication SW-846,
  as incorporated by reference in 40 CFR 260.11, with a sample size of 10 grams and a distillation time of one  
  hour and 15 minutes.                                                                                          
\8\ These wastes, when rendered nonhazardous and then subsequently managed in CWA, or CWA-equivalent systems are
  not subject to treatment standards. (See Sec.  268.1(c)(3)and (4)).                                           
\9\ These wastes, when rendered nonhazardous and then subsequently injected in a Class I SDWA well are not      
  subject to treatment standards. (See 40 CFR part 148.1(d)).                                                   
\10\ Between August 26, 1996, and August 26, 1997, the treatment standard for this waste may be satisfied by    
  either meeting the constituent concentrations in this table or by treating the waste by the specified         
  technologies: combustion, as defined by the technolgy code CMBST at Sec.  268.42 Table 1 of this part, for    
  nonwastewaters; and, biodegradation as definded by the technolgy code BIODG, carbon adsorption as defined by  
  the technology code CARBN, chemical oxidation as defined by the technology code CHOXD, or combustion as       
  defined as technolgy code CMBST at Sec.  268.42 Table 1 of this part, for wastewaters.                        
\11\ For these wastes, the definition of CMBST is limited to: (1) combustion units operating under 40 CFR 266,  
  (2) combustion units permitted under 40 CFR Part 264, Subpart O, or (3) combustion units operating under 40   
  CFR 265, Subpart O, which have obtained a determination of equivalent treatment under 268.42 (b).             

* * * * *
    12. Section 268.44 (a) and (h) are revised to read as follows:


Sec. 268.44  Variance from a treatment standard.

    (a) EPA may grant a treatability variance if:
    (1) It is not physically possible to treat the waste to the level 
specified in the treatment standard, or by the method specified as the 
treatment standard. To show that this is the case, the petitioner must 
demonstrate that because the physical or chemical properties of the 
waste differs significantly from waste analyzed in developing the 
treatment standard, the waste cannot be so treated; or
    (2) It is inappropriate to require the waste to be treated to the 
level specified in the treatment standard or by the method specified as 
the treatment standard, even though such treatment is technically 
possible.
* * * * *
    (h) EPA may grant a treatability variance if:
    (1) It is not physically possible to treat the waste to the level 
specified in the treatment standard, or by the method specified as the 
treatment standard. To show that this is the case, the petitioner must 
demonstrate that because the

[[Page 26082]]

physical or chemical properties of the waste differs significantly from 
waste analyzed in developing the treatment standard, the waste cannot 
be so treated; or
    (2) It is inappropriate to require the waste to be treated to the 
level specified in the treatment standard or by the method specified as 
the treatment standard, even though such treatment is technically 
possible.
* * * * *
    13. The universal treatment standards table in Sec. 268.48 is 
amended by revising the entries in the column under ``II. Inorganic 
constituents'' for antimony, barium, beryllium, cadmium, chromium, 
lead, nickel, selenium, silver, thallium, vanadium, and zinc to read as 
follows:


Sec. 268.48   Universal treatment standards

    (a) * * *

                                          Universal Treatment Standards                                         
                                         [Note: NA means not applicable]                                        
----------------------------------------------------------------------------------------------------------------
                                                            Wastewater            Nonwastewater standard        
                                                             standard    ---------------------------------------
    Regulated constituent common name       CAS \1\ No.  ----------------                                       
                                                           Concentration     Concentration in mg/kg \3\ unless  
                                                            in mg/l \2\           noted as ``mg/l TCLP''        
----------------------------------------------------------------------------------------------------------------
                                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
II. Inorganic Constituents:                                                                                     
    Antimony............................       7440-36-0            1.9   0.07 mg/l TCLP.                       
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Barium..................................       7440-39-3            1.2   21 mg/l TCLP.                         
Beryllium...............................       7440-41-7            0.82  0.02 mg/l TCLP.                       
Cadmium.................................       7440-43-9            0.69  0.20 mg/l TCLP.                       
Chromium (Total)........................       7440-47-3            2.77  0.85 mg/l TCLP.                       
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Lead....................................       7439-92-1            0.69  0.75 mg/l TCLP.                       
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Nickel..................................       7440-02-0            3.98  13.6 mg/l TCLP.                       
Selenium \5\............................       7782-49-2            0.82  5.7 mg/l TCLP.                        
Silver..................................       7440-22-4            0.43  0.11 mg/l TCLP.                       
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
Thallium................................       7440-28-0            1.4   0.20 mg/l TCLP.                       
Vanadium \5\............................       7440-62-2            4.3   1.6 mg/l TCLP.                        
Zinc \5\................................       7440-66-6            2.61  4.3 mg/l TCLP.                        
----------------------------------------------------------------------------------------------------------------
\1\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a  
  combination of a chemical with it's salts and/or esters, the CAS number is given for the parent compound only.
                                                                                                                
\2\ Concentration standards for wastewaters are expressed in mg/l and are based on analysis of composite        
  samples.                                                                                                      
\3\ Except for Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration 
  were established, in part, based upon incineration in units operated in accordance with the technical         
  requirements of 40 CFR part 264, subpart O or 40 CFR part 265, subpart O, or based upon combustion in fuel    
  substitution units operating in accordance with applicable technical requirements. A facility may comply with 
  these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for        
  nonwastewaters are based on analysis of grab samples.                                                         
\4\ Both Cyanides (Total) and Cyanides (Amenable) for nonwastewaters are to be analyzed using Method 9010 or    
  9012, found in ``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods'', EPA Publication SW-846,
  as incorporated by reference in 40 CFR 260.11, with a sample size of 10 grams and a distillation time of one  
  hour and 15 minutes.                                                                                          
\5\ These constituents are not ``underlying hazardous constituents'' in characteristic wastes, according to the 
  definition at Sec.  268.2(i).                                                                                 
\6\ Between August 26, 1996, and August 26, 1997, these constituents are not ``underlying hazardous             
  constituents'' as defined at Sec.  268.2(i) of this Part.                                                     

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

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

    Authority: 42 U.S.C. 9602; 33 U.S.C. 1321 and 1361.

Subpart A--Requirements for Final Authorization

    15. 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, to read 
as follows:


Sec. 271.1  Purpose and scope.

* * * * *
    (j) * * *

[[Page 26083]]



               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 final   Land Disposal            [Insert FR page          [Insert date of 90 days
 rule in the Federal Register [FR].     Restrictions Phase IV    numbers]..               from date of          
                                        Second Supplemental                               publication of final  
                                        Proposal.                                         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 90 days from date of      Prohibition on land      3004(g)(4)(c) and        [Insert date of        
 publication of final rule].            disposal of TC-metal     3004(m).                 publication of final  
                                        wastes and wastes from                            rule] [Insert FR      
                                        mineral processing.                               volume and page       
                                                                                          numbers]. [Same as    
                                                                                          above]                
[Insert date 2 years from date of      .......................  3004 (m)...............                         
 publication of final rule].                                                                                    
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------

* * * * *
    16. 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 it program by applying for authorization for the 
requirements in part 268 that are in effect as of (insert effective 
date of final rule), provided a State is authorized for Land Disposal 
Restrictions rules up to and including those in effect as of May 8, 
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;
    (2) Copies of all applicable State statutes and regulations; and
    (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 on 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 section, unless a 
significant adverse comment pertaining to the State program revision 
discussed in the document 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

[[Page 26084]]

publication, publish in the Federal Register either:
    (1) A withdrawal of the immediate final decision; or
    (2) A document containing a response to comments and either 
affirming that the immediate final decision takes effect or reversing 
the decision.

[FR Doc. 97-11637 Filed 5-9-97; 8:45 am]
BILLING CODE 6560-50-P