[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
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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.
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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
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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.
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\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).
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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
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\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.
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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
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\9\ Comments of the National Mining Association on the
supplemental Proposal to Phase IV, April 24, 1996. Docket F-95-PH4A-
FFFFF.
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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.
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\10\ Identification and Description of Mineral Processing
Sectors and Waste Streams, EPA, 1995.
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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).
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\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.
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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.
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\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).
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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.
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\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.
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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.
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\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.
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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