[Federal Register Volume 63, Number 100 (Tuesday, May 26, 1998)]
[Rules and Regulations]
[Pages 28556-28753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12575]



[[Page 28555]]

_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



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



Land Disposal Restrictions Phase IV: Final Rule Promulgating Treatment 
Standards for Metal Wastes and Mineral Processing Wastes; Mineral 
Processing Secondary Materials and Bevill Exclusion Issues; Treatment 
Standards for Hazardous Soils, and Exclusion of Recycled Wood 
Preserving Wastewaters; Final Rule

Federal Register / Vol. 63, No. 100 / Tuesday, May 26, 1998 / Rules 
and Regulations

[[Page 28556]]



ENVIRONMENTAL PROTECTION AGENCY

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

[EPA-F-98-2P4F-FFFFF; FRL-6010-5]
RIN 2050 AE05


Land Disposal Restrictions Phase IV: Final Rule Promulgating 
Treatment Standards for Metal Wastes and Mineral Processing Wastes; 
Mineral Processing Secondary Materials and Bevill Exclusion Issues; 
Treatment Standards for Hazardous Soils, and Exclusion of Recycled Wood 
Preserving Wastewaters

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule promulgates Land Disposal Restrictions treatment 
standards for metal-bearing wastes, including toxicity characteristic 
metal wastes, and hazardous wastes from mineral processing. The set of 
standards being applied to these wastes is the universal treatment 
standards. These standards are based upon the performance of the Best 
Demonstrated Available technologies for treating these, or similar, 
wastes. This rule also revises the universal treatment standards for 
twelve metal constituents, which means that listed and characteristic 
wastes containing one or more of these constituents may have to meet 
different standards than they currently do.
    In a related section regarding wastes and secondary materials from 
mineral processing, EPA is amending the rules to define which secondary 
materials from mineral processing are considered to be wastes and 
potentially subject to Land Disposal Restrictions. The intended effect 
is to encourage safe recycling of mineral processing secondary 
materials by reducing regulatory obstacles to recycling, while ensuring 
that hazardous wastes are properly treated and disposed. EPA also is 
finalizing decisions on a set of mineral processing issues wastes which 
courts have been remanded to EPA. These include retaining the Toxicity 
Characteristic Leaching Procedure as the test for identifying the 
toxicity characteristic for mineral processing wastes, and readdressing 
the regulatory status of a number of miscellaneous mineral processing 
wastes.
    This rule also amends the LDR treatment standards for soil 
contaminated with hazardous waste. The purpose of this revision is to 
create standards which are more technically and environmentally 
appropriate to contaminated soils than those which currently apply.
    Finally, this rule excludes from the definition of solid waste 
certain shredded circuit boards in recycling operations, as well as 
certain materials reused in wood preserving operations.

EFFECTIVE DATES: This final rule is effective on August 24, 1998.
    Compliance dates:

--For prohibition on underground injection of certain wastes at 40 CFR 
148.18: May 26, 2000;
--For definition of solid waste provisions at 40 CFR 261.2, 
261.4(a)(15), and 261.4(b): November 27, 1998;
--For exclusion of recycled wood preserving wastewaters at 40 CFR 
261.4(a)(9): May 26, 1998;
--For prohibition on land disposal of wastes from elemental phosphorus 
processing and on mixed radioactive wastes at 40 CFR 268.34(b): May 26, 
2000; and
--For land Disposal Restrictions treatment standards at 40 CFR 268.49 
for soil contaminated with previously prohibited wastes: May 26, 1998.

ADDRESSES: 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 docket 
information number is F-98-2P4F-FFFFF. The RIC is open from 9 a.m. to 4 
p.m., Monday through Friday, excluding 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 docket at no charge. Additional copies cost $0.15/
page. The index and some supporting materials are available 
electronically. See the ``Supplementary Information'' section for 
information on accessing them.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing 
impaired). In the Washington, D.C. metropolitan area, call (703) 412-
9810 or TDD (703) 412-3323.
    For more detailed information on specific aspects of this 
rulemaking, contact 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, contact Elaine 
Eby (703) 308-8449 or Anita Cummings at (703) 308-8303. For questions 
on land disposal restrictions (LDR) treatment standards for mineral 
processing wastes, radioactive mixed wastes, and grab versus composite 
sampling methods, contact Anita Cummings at (703) 308-8303. For 
information on treatment standards for manufactured gas plant wastes, 
contact Rita Chow at (703) 308-6158. Contact Rhonda Minnick at (703) 
308-8771 for information on improvements and corrections to the Land 
Disposal Restrictions. For information on secondary mineral processing 
materials and Bevill issues, call Ashley Allen at 703-308-8419 or 
Stephen Hoffman of the Industrial and Extractive Wastes Branch at (703) 
308-8413. For questions on treatment standards for hazardous soil, 
contact Elizabeth McManus of the Permits and State Programs Division at 
(703) 308-8657. Contact Stephen Bergman of the Hazardous Waste 
Identification Division at (703) 308-7262 for questions on the 
exclusion for wood preserving wastewaters. For information on the 
capacity analyses, contact Bill Kline at (703) 308-8440 or C. Pan Lee 
at (703) 308-8478. 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.

Table of Contents

I. Introduction to the Phase IV Rule
II. Potentially Regulated Entities
III. Revised Land Disposal Restrictions (i.e., Universal Treatment 
Standards) for Metal Constituents in all Hazardous Wastes, Including 
Toxic Characteristic Metals
    A. History of Metal Treatment Standards
    B. Applicability of Metal Treatment Standards
    C. Development of New Treatment Standards for Hazardous Wastes 
Containing Metals
    1. Measuring Compliance by Grab or Composite Sampling
    2. Development of Treatment Standards for Metal Wastes
    a. Final Universal Treatment Standard for Nonwastewater Forms of 
Antimony
    b. Treatment Standard for Wastewater Forms of Arsenic Waste
    c. Treatment Standards for Barium Waste
    d. Final Universal Treatment Standard for Nonwastewater Forms of 
Beryllium Waste

[[Page 28557]]

    e. Treatment Standards for Cadmium Wastes
    f. Treatment Standards for Chromium Wastes
    g. Final Treatment Standards for Lead Wastes
    h. Treatment Standards for Wastewater and Nonwastewater Forms of 
Mercury Waste
    i. Final Universal Treatment Standard for Nonwastewater Forms of 
Nickel
    j. Final Treatment Standards for Selenium Wastes
    k. Final Treatment Standards for Silver Wastes
    l. Final Universal Treatment Standard for Nonwastewater Forms of 
Thallium
    m. Final Treatment Standard for Nonwastewater Forms of Vanadium 
in P119 and P120 Wastes
    n. Final Treatment Standard for Nonwastewater Forms of Zinc in 
K061 Waste
    D. Use of TCLP to Evaluate Performance of Treatment Technology 
for Treating Hazardous Metal Constituents
IV. Application of Land Disposal Restrictions to Characteristic 
Mineral Processing Wastes
    A. Proposal, Comments, and Responses
    B. Clarification That Universal Treatment Standards Apply to 
Ignitable, Corrosive, and Reactive Characteristic Mineral Processing 
Wastes
    C. Use of TCLP to Evaluate Performance of Treatment Technology 
for Treating Hazardous Metal Constituents in Mineral Processing 
Wastes
V. Other LDR Issues That May Affect Both Toxic Characteristic Metal 
Wastes and Characteristic Mineral Processing Wastes
    A. Treatment Standards for Soil Contaminated with TC Metal 
Wastes or Characteristic Mineral Processing Wastes
    1. Summary
    2. Discussion of Today's Approach
    B. LDR Treatment Standards for Manufactured Gas Plant Waste 
(MGP)
    1. Summary
    2. Background
    3. Public Comments and EPA Responses
    C. Treatment Standards for Debris Contaminated with Phase IV 
wastes
    D. Treatment Standards for Radioactive Mixed Waste
    1. Background
    2. Proposal and Issues Discussed by Comments
    E. Underlying Hazardous Constituents in TC Metal Wastes and 
Characteristic
    Mineral Processing Wastes
    1. Background
    2. Discussion of Today's Approach
VI. Issues Relating to Newly-Identified Mineral Processing Wastes
    A. Introduction
    B. Overview of Today's Rule
    1. Issues Related to Which Mineral Processing Secondary 
Materials are Subject to LDRs
    2. Issues Related to Whether Materials are Within the Scope of 
the Bevill Exclusion
    a. Use of Non-Bevill Materials as Feedstocks to Operations Whose 
Waste is Bevill Exempt
    b. Uniquely Associated
    c. Bevill Mixtures
    d. Response to Court Remands Dealing with Other Issues Relating 
to Mineral Processing and to Scope of Bevill Exclusion
    e. Reexamination of Bevill Exempt Wastes
    C. Analysis of and Response to Public Comments
    1. Jurisdiction
    a. EPA Authority to Regulate Mineral Processing Secondary 
Materials Reclaimed Within the Industry
    b. Are There Limits on Jurisdiction? (Response to Public 
Interest Group Position)
    c. Immediate Reuse
    d. Relation to the Current Regulatory Definition of Solid Waste
    e. Otherwise Excluded Mineral Processing Units Which Serve as 
Disposal Units
    2. Scope of This Rule
    a. Mineral Processing Wastes Covered by This Rule
    b. Wastewater Treatment Surface Impoundments
    c. Materials Outside the Scope
    3. Mineral Processing Secondary Material Volumes and 
Environmental Damages
    a. Volume of Secondary Materials and Large Volume Exemption
    b. Reliability of Damage and Environmental Release Reports
    4. Conditions to the Exclusion
    a. Legitimacy
    b. Design and Construction Standards
    c. Units Eligible for Conditional Exclusion and Conditions 
Attached to Such Units
    d. Speculative Accumulation
    e. One Time Notification
    5. Bevill Related Issues
    a. Uniquely Associated
    b. Addition of Mineral Processing Secondary Materials to Units 
Processing Bevill Raw Materials
    c. Bevill Mixture Rule and Disposal
    d. Remining
    6. Responses to Court Remands
    a. Applicability of the Toxicity Characteristic Leaching 
Procedure (TCLP) to Mineral Processing Wastes
    b. Remanded Mineral Processing Wastes
    c. Lightweight Aggregate Mineral Processing Wastes
    d. Mineral Processing Wastes From the Production of Titanium 
Tetrachloride
VII. LDR Treatment Standards for Soil
VIII. Improvements and Corrections to LDR Regulations
    A. Typographical Error in Sec. 261.1(c)(10)
    B. Typographical Error in Sec. 268.4(a)(2)(ii) and (a)(2)(iii)
    C. Clarifying Language Added to Sec. 268.7
    D. Correction to Section 268.40--Treatment Standards for 
Hazardous Waste
    E. Removal of California List Requirements and de minimis 
Provision from Sec. 268.42
    F. Typographical Errors and Outdated Cross-references in 
Sec. 268.45
    G. Correction to Sec. 268.48 to Explain That Sulfides are not 
Regulated as Underlying Hazardous Constituents in Characteristic 
Wastes
    H. Cross References in Sec. 268.50(e)
    I. Mistakes in Appendices VII and VIII
    J. Clarification Regarding Point of Generation of Boiler 
Cleanout Rinses
IX. Capacity Determination for Phase IV Land Disposal Restrictions
    A. Introduction
    B. Available Capacity for Surface Disposed Wastes
    1. Stabilization
    2. Vitrification
    3. Metal Recovery
    4. Thermal Treatment
    C. Required Capacity and Variance Determination for Surface 
Disposed TC Metal Wastes
    D. Required Capacity and Variance Determination for Surface 
Disposed Mineral Processing Wastes
    E. Phase IV Mineral Processing and TC Metal Wastes Injected Into 
Underground Injection Control (UIC) Class I Wells
    F. Mixed Radioactive Wastes
    G. Summary
X. Change to Definition of Solid Waste to Exclude Wood Preserving 
Wastewaters and Spent Wood Preserving Solutions From RCRA 
Jurisdiction
    A. Summary of the Proposal
    B. Modifications to the Proposal
    1. Notification
    2. Conditions Under Which the Exclusion Would No Longer Apply
    C. Other Comments
    1. Oil Borne Facilities
    2. Application of the Conditions to Units Other Than the Drip 
Pad
    3. Relationship of Today's Exclusion to Previous Industry 
Exclusions
    4. Units That May Be Visually or Otherwise Determined to Prevent 
Release
    5. CESQG Status
    D. State Authorization
XI. Clarification of the RCRA Exclusion of Shredded Circuit Boards
XII. Regulatory Requirements
    A. Regulatory Impact Analysis Pursuant to Executive Order 12866
    1. Methodology Section
    2. Results
    B. Regulatory Flexibility
    C. Unfunded Mandates Reform Act
    D. Paperwork Reduction Act
XIII. Environmental Justice
    A. Applicability of Executive Order 12898
    B. Potential Effects
XIV. State Authority
    A. Statutory Authority
    B. Effect on State Authorization
    C. Authorization Procedures
    D. Streamlined Authorization Procedures
XV. Submission to Congress and General Accounting Office
XVI. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
XVII. National Technology Transfer and Advancement Act

I. Introduction to the Phase IV Rule

    In the 1984 Hazardous and Solid Waste Amendments (HSWA) to the 
Resource Conservation and Recovery Act (RCRA), Congress specified that 
land disposal of hazardous waste is prohibited unless the waste first 
meets

[[Page 28558]]

treatment standards established by EPA or is disposed in units from 
which there will be no migration of hazardous constituents for as long 
as the waste remains hazardous. The HSWA amendments require 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.
    Today's Phase IV final rule is the latest in a series of LDR rules 
that establish treatment standards for wastes identified or listed as 
hazardous after the date of the 1984 amendments. (See RCRA 
Sec. 3004(g)(4)). EPA proposed the Phase IV rule in four Federal 
Register notices, and issued three NODAs setting out additional data 
relevant to this proceeding. In two Federal Register notices prior to 
today's, EPA promulgated various rules proposed in the Phase IV 
proposals: treatment standards for wood preserving wastes, paperwork 
reduction, and clarification of treatability variances. Today's final 
rule promulgates regulations addressing most of the remaining issues 
discussed in Phase IV proposals and NODAs. The table at the end of this 
introduction lists references for all the Phase IV Notices, plus others 
cited frequently in the preamble.
    This final Phase IV preamble contains five major, interrelated 
sections. The first section explains the new land disposal restrictions 
treatment standards for wastes identified as hazardous because they 
exhibit the toxicity characteristic for metals (referred to as ``TC 
metal wastes''). The section also revises the universal treatment 
standards (UTS) for 12 metal constituents in all hazardous wastes. The 
TC metal wastes will now be required to meet the universal treatment 
standards as do most other hazardous wastes. The second major preamble 
section establishes the prohibition on land disposal plus treatment 
standards for a particular type of newly identified hazardous waste: 
mineral processing waste that exhibits a characteristic of hazardous 
waste. The third section addresses additional issues affecting both TC 
metal wastes and characteristic mineral processing wastes. The fourth 
section amends the rules defining when secondary materials being 
recycled are solid wastes. It states that secondary materials from 
mineral processing which are generated and reclaimed within that 
industry are not solid wastes unless they are managed in land disposal 
units before being reclaimed. Such materials are not subject to 
regulation as hazardous wastes. That part of the preamble also 
addresses other issues related to mineral processing. The final major 
preamble section promulgates amended treatment standards for soil that 
contains hazardous waste or which exhibits a characteristic of 
hazardous waste.
    Today's rule also includes two brief sections on hazardous waste 
issues unrelated to the major sections. One clarifies that a 
previously-promulgated exclusion from hazardous waste regulation for 
recycled shredded circuit boards also applies to whole circuit boards 
under certain conditions. The other section promulgates an exclusion 
from RCRA jurisdiction for certain wood preserving wastewaters and 
spent wood preserving solutions when recycled.

                                                     Table of Selected LDR Federal Register Notices                                                     
--------------------------------------------------------------------------------------------------------------------------------------------------------
            Common name                     Title of rule in Federal Register                          Date                            Citation         
--------------------------------------------------------------------------------------------------------------------------------------------------------
Third Third LDR Final Rule.........  Land Disposal Restrictions for Third Third      June 1, 1990...........................  55 FR 22520.              
                                      Scheduled Wastes; Rule.                                                                                           
Phase II LDR Proposal..............  Land Disposal Restrictions for Newly            September 14, 1993.....................  58 FR 48092.              
                                      Identified and Listed hazardous Waste and                                                                         
                                      hazardous soil; Proposed Rule.                                                                                    
Phase III LDR Proposal.............  Land Disposal Restrictions Phase III:           March 2, 1995..........................  60 FR 11702.              
                                      Decharacterized Wastewaters, Carbamate and                                                                        
                                      Organobromine Wastes, and Spent Potliners;                                                                        
                                      Proposed Rule.                                                                                                    
Phase IV Original Proposal.........  Land Disposal Restrictions--Phase IV: Issues    August 22, 1995........................  60 FR 43654.              
                                      Associated With Clean Water Act Treatment                                                                         
                                      Equivalency, and Treatment Standards for Wood                                                                     
                                      Preserving Wastes and Toxicity Characteristic                                                                     
                                      Metal Wastes; Proposed Rule.                                                                                      
Phase IV First Supplemental          Land Disposal Restrictions--Clarification of    January 25, 1996.......................  61 FR 2338.               
 Proposal.                            Bevill Exclusion for Mining Wastes, to the                                                                        
                                      Definition of Solid Waste for Mineral                                                                             
                                      Processing Wastes, Treatment Standards for                                                                        
                                      Characteristic Mineral Processing Wastes, and                                                                     
                                      Associated Issues.                                                                                                
HWIR Media Proposal................  Requirements for Management of Hazardous        April 29, 1996.........................  61 FR 11804.              
                                      Contaminated Media.                                                                                               
Phase IV NODA #1...................  Land Disposal Restrictions Phase IV Proposed    May 10, 1996...........................  61 FR 21417.              
                                      Rule--Issues Associated With Clean Water Act                                                                      
                                      Treatment Equivalency, and Treatment                                                                              
                                      Standards for Wood Preserving Wastes and                                                                          
                                      Toxicity Characteristic Metal Wastes; Notice                                                                      
                                      of Data Availability.                                                                                             
Phase IV NODA #2...................  Land Disposal Restrictions--Phase IV:           March 5, 1997..........................  FR 62 10004.              
                                      Treatment Standards for Characteristic Metal                                                                      
                                      Wastes; Notice of Data Availability.                                                                              
Phase IV LDR Wood Preserving Final   Land Disposal Restrictions Phase IV: Treatment  May 12, 1997...........................  62 FR 25998.              
 Rule.                                Standards for Wood Preserving Waste,                                                                              
                                      Paperwork Reduction and Streamlining,                                                                             
                                      Exemptions from RCRA for Certain Processed                                                                        
                                      Materials; and Miscellaneous Hazardous Waste                                                                      
                                      Provisions; Final Rule.                                                                                           
Phase IV Second Supplemental         Land Disposal Restrictions Phase IV: Second     May 12, 1997...........................  62 FR 26041.              
 Proposal.                            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.                                                                                                    

[[Page 28559]]

                                                                                                                                                        
Phase IV NODA #3...................  Land Disposal Restrictions Phase IV: Second     November 10, 1997......................  62 FR 60465.              
                                      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; Notice of Data Availability.                                                                       
Treatability Variance Final Rule...  Clarification of Standards for Hazardous Waste  December 5, 1997.......................  62 FR 64504.              
                                      Land Disposal Restriction Treatment Variances.                                                                    
--------------------------------------------------------------------------------------------------------------------------------------------------------

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 or definitive with 
respect to every case-specific circumstance. Rather, it is a general 
guide for readers regarding 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, and failure to mention 
them in the table should not be taken as any type of regulatory 
determination on the part of the Agency.

                        Table of Entities Potentially Affected by the Phase IV Final Rule                       
----------------------------------------------------------------------------------------------------------------
                                                                                       Examples of entities     
          Section of the rule                           Category                       potentially affected     
----------------------------------------------------------------------------------------------------------------
LDR treatment standards for TC metal    Generators of Toxicity Characteristic     Facilities in the following   
 hazardous wastes, characteristic        (TC) metal hazardous wastes (D004--       industries: primary mineral  
 mineral processing wastes, and other    D011), characteristic mineral             processing, chemical         
 metal-bearing wastes.                   processing waste, or any hazardous        manufacturers, pharmaceutical
                                         waste required to meet the LDR            producers, paint producers,  
                                         treatment standard for antimony,          manufacturers of motor       
                                         barium, beryllium, cadmium, chromium,     vehicle parts, blast furnaces
                                         lead, nickel, selenium, silver,           and steel mills, metal       
                                         thallium, vanadium, or zinc.              plating and polishing, and   
                                                                                   aircraft parts and equipment.
                                        Facilities that treat and/or dispose of   Hazardous waste treatment and 
                                         TC metal hazardous wastes,                disposal facilities.         
                                         characteristic mineral processing                                      
                                         wastes, and other metal-bearing                                        
                                         hazardous wastes.                                                      
LDR treatment standards for hazardous   Entities managing hazardous soil........  Private or public parties     
 soil.                                                                             remediating sites containing 
                                                                                   hazardous soil               
Mineral Processing Secondary Materials  Facilities that generate, store, and/or   Copper smelters, gold         
                                         recycle secondary materials from          refiners, and other primary  
                                         primary mineral processing.               metals producers that return 
                                                                                   wastestreams to units for    
                                                                                   additional recovery          
Exclusion for Recycled Wood Preserving  Wood Preserving Facilities..............  Facilities that generate and  
 Process Wastewaters.                                                              reclaim drippage and         
                                                                                   wastewaters on-site from the 
                                                                                   wood processing industry.    
----------------------------------------------------------------------------------------------------------------

III. Revised Land Disposal Restrictions (i.e., Universal Treatment 
Standards) for Metal Constituents in all Hazardous Wastes, 
Including Toxic Characteristic Metals

Summary

    There are two purposes to today's new treatment standards for 
metal-containing wastes. First, EPA is revising the numerical standards 
because new data are available on which to base more accurate 
standards. Second, EPA is including a new set of wastes in the current 
treatment standard regime, continuing EPA's efforts to apply the same 
LDR treatment standards when technically and legally possible. (In a 
subsequent section of this rule, EPA is expanding the treatment 
standard regime to include yet another set of wastes. These are 
characteristic mineral processing wastes that are not currently subject 
to land disposal restrictions.)
    The numerical standards that EPA is revising are the universal 
treatment standards (UTS) for 12 metal constituents. The new UTS will 
apply to nonwastewater forms of any listed or characteristic hazardous 
waste that is already required to meet the UTS for those constituents 
in the waste. The revised UTS are less stringent for 7 constituents, 
and more stringent for 5. The rule does not affect the UTS for 
wastewater forms of these wastes, and does not change the UTS for any 
other constituents, including any of the organics.
    The new set of wastes that EPA is bringing into the current LDR 
regime is the group of 8 wastes known as TC metal wastes--wastes 
identified as hazardous because they exhibit the toxicity 
characteristic due to the presence of the metals enumerated in 261.24 
(Waste codes D004-D011). These are wastes that exhibit the toxicity 
characteristic because of high toxic metal content. By today's rule, 
that key metal must be treated to the UTS for that metal. Furthermore, 
any underlying hazardous constituents (UHCs) must be treated to UTS 
levels as well, whether these UHCs are organics or metals. Both 
wastewater and nonwastewater forms of the TC metal wastes are affected 
by today's rule, except for arsenic, for which only the wastewater 
forms are affected.
    Hazardous wastes that exhibit both the TC for metals and the 
predecessor characteristic based on the Extraction Procedure (EP) are 
presently only required to be treated to reduce metal levels to below 
the characteristic level. Today's rule, for the most part, will require 
additional treatment of these metal constituents before land disposal 
can occur.
    The Agency also finds that the treatment standards established in

[[Page 28560]]

today's rule are not established below levels at which threats to human 
health and the environment are minimized. See Hazardous Waste Treatment 
Council v. EPA, 886 F.2d 355, 362 (D.C. Cir. 1990). That case held that 
the statute can be read to allow either technology-based or risk-based 
LDR treatment standards, and further held that technology-based 
standards are permissible so long as they are not established ``beyond 
the point at which there is no `threat' to human health or the 
environment.'' Id. at 362. EPA's finding that today's standards are not 
below a ``minimize threat'' level is based on the Agency's inability at 
the present time to establish concentration levels for hazardous 
constituents which represent levels at which threats to human health 
and the environment are minimized. As the Agency has explained a number 
of times, determining these levels on a national basis--which requires 
determination of relevant exposure pathways and potential receptors for 
all hazardous constituents in hazardous wastes, with all the attendant 
uncertainties involved in such a national determination--has not yet 
proven possible. See, e.g., 55 FR at 6642 (February 26, 1990). Thus, 
the Agency continues to find that technology-based standards remain the 
best approach for the national treatment standards since such standards 
eliminate as much of the inherent uncertainty of hazardous waste land 
disposal and so fulfill the Congressional intent in promulgating the 
land disposal restrictions provisions. Id. However, the Agency believes 
that it may be possible to make valid determinations that threats to 
human health and the environment are minimized on an individualized 
basis in the context of certain site-specific remediations, and 
accordingly has provided in this rule a variance from technology-based 
treatment requirements for contaminated soils generated in certain 
remediations. See section VII below.

A. History of Metal Treatment Standards

    Land disposal of hazardous wastes is largely prohibited by statute, 
unless the wastes meet the applicable treatment standards established 
by EPA prior to land disposal. See RCRA sections 3004(d)-(g), (m); (the 
exception for no-migration units is not relevant to today's rule). 
Until today's rule, metals that were characteristic because they failed 
the Toxicity Characteristic Leaching Procedure (TCLP) and also failed 
the Extraction Procedure (EP)--which preceded the use of the TCLP as a 
means of identifying whether a waste exhibited a characteristic of 
hazardous waste--were subject to treatment standards at levels equal to 
the TC levels (55 FR 22520, June 1, 1990). (Note that wastes that were 
characteristic according to the TCLP but did not fail the EP were 
considered, until promulgation of today's rule, to be newly identified 
wastes, and were not subject to the LDR requirements. Today's rule 
makes these wastes subject to LDR). However, the TC levels are 
typically higher than those treatment levels for which threats posed by 
land disposal of the wastes are minimized. (Waste Management v. EPA, 
976 F.2d 2, 13-14, 26-27, 32 (D.C. Cir. 1992). Consequently, treatment 
to levels lower than the characteristic levels normally is required. 
Id.
    In an effort to make treatment standards as uniform as possible 
while adhering to the fundamental requirement that the standards must 
minimize threats to human health and the environment, EPA developed the 
UTS. Under the UTS, whenever technically and legally possible, the 
Agency adopts the same technology-based numerical limit for a hazardous 
constituent regardless of the type of hazardous waste in which the 
constituent is present (see 40 CFR 268.40; and 59 FR 47982, September 
19, 1994). In the original Phase IV proposal, EPA proposed to apply the 
metal UTS, as measured by the TCLP (60 FR 43582, August 22, 1995; see 
40 CFR 261.24), to all TC metal wastes. The TCLP measures the 
possibility that a waste may leach toxic metals above a designated 
concentration level under certain assumed disposal conditions, and so 
is a measure of the potential mobility of toxic metals in a waste.
    Commenters in response to the original proposal took issue with the 
Agency's use of data previously used to establish metal UTS as a basis 
for establishing the treatment standards for characteristic metal 
wastes. The commenters raised three basic issues with regard to the 
data transfer. First, they said that characteristic metal wastes are 
extremely variable and the data used to calculate the treatment 
standards were not representative of the diversity of TC metal wastes. 
Second, the commenters said that although two treatment technologies--
high temperature metals recovery (HTMR) and stabilization--were 
determined to be Best Demonstrated Available Technology (BDAT), the 
current metals UTS were based solely on HTMR, a technology not 
commercially available for many TC metal wastes. Finally, commenters 
asserted that individual metal UTS values 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 more fully characterize the 
diversity of treatment of these nonwastewaters. 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. 
While extensive, the data unfortunately was based on composite samples 
and could not be used as the basis for treatment standards (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 and 62 FR 26041 for a 
discussion of grab and composite sampling).
    The Agency, however, was convinced that additional data were needed 
to further assess the treatment of TC metal nonwastewaters. During 
September 1996, EPA conducted site visits at three hazardous waste 
treatment facilities and collected additional treatment performance 
data. One facility was a large commercial TSDF that employed 
conventional stabilization techniques to treat a wide array of 
inorganic metal wastes. 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.
    Treatment data were collected for the following types of hazardous 
waste: mineral processing waste, baghouse dust, battery slag, soils, 
pot solids, recycling by-products, and sludge. See the memorandum, 
Final Revised Calculation of Treatment Standards Using Data Obtained 
From Rollins Environmental's Highway 36 Commercial Waste Treatment 
Facility and GNB's Frisco, Texas Waste Treatment Facility, March 10, 
1997 and the memorandum, Transferability of UTS to Mineral Processing 
Wastes, January 28, 1997 for a complete description of the waste 
constituents and concentrations. Most of the wastes contained multiple 
metals in various concentrations while some had

[[Page 28561]]

significant concentrations of typically two metal combinations, 
including lead and cadmium, barium and lead, and chromium and antimony. 
In addition, between October 1994 and December 1995, the Agency 
obtained performance data from one HTMR facility; (other HTMR data 
became available very late in 1997). The assessment of the new data 
sets began with the calculation of treatment standards for each of the 
two data sets representing stabilization and HTMR. The same 
methodology, sometimes called ``C 99,'' and used in past LDR 
rulemakings, was used to calculate the treatment levels (see 56 FR 
41164, August 18, 1991, and the BDAT Background Document for K061, 
dated August, 1991). Next, the Agency compared the treatment levels for 
stabilization verses HTMR. Based on this comparison, the Agency 
selected the highest level for each metal as the proposed UTS to allow 
for waste and process variability and detection limit difficulties. 
This approach is consistent with the legislative goal of providing 
substantial treatment through standards that are achievable by an array 
of well-performing, available treatment technologies. See 130 Cong. 
Rec. S 9184 (Daily ed., July 25, 1984) (statement of Senator Chafee).
    As a result, the Agency issued a Second Supplemental Proposal on 
May 12, 1997 (62 FR 26041). In it, EPA proposed to change the numerical 
limits for all nonwastewater wastes containing the following metal 
constituents: antimony, barium, beryllium, cadmium, chromium, lead, 
nickel, selenium, silver, and thallium. (62 FR at 26047, May 12, 1997). 
The Agency also reproposed to change the numerical limits for vanadium 
in P119 and P120 nonwastewaters, and for zinc in K061 nonwastewaters. 
(62 FR at 26047, May 12, 1997). EPA also proposed these same UTS 
treatment standards for TC metal wastes identified as hazardous due to 
concentrations of barium, cadmium, chromium, lead, selenium and silver.
    The Agency would like to correct in today's rule a prior error that 
was discovered in calculating the metals treatment levels using the 
HTMR treatment data. As previously stated, in the Second Supplemental 
and in today's preamble, in determining the treatment levels for each 
metal constituent, the Agency compared the treatment standards 
calculated with data from HTMR and stabilization. Based on this 
comparison, the highest level for each metal was chosen as the 
treatment standard. In reviewing the calculations from the HTMR data 
set, the Agency discovered an error in the calculations. When applying 
the methodology presented in USEPA, ``Final Best Demonstrated 
Technology (BDAT) Background Document for Quality Assurance/Quality 
Control Procedures and Methodology,'' dated October 23, 1991, it was 
discovered that the Agency failed to conduct a ``Z-score test'' to 
remove any outliers--data that is either so high or so low that it is 
not considered to be representative of the population from which the 
data are drawn. EPA uses this statistical method to confirm that 
certain data do not represent treatment by a well-operated system, or 
reflect anomalously low levels which are not typically achievable. This 
error was found to have occurred only in the calculation of the 
treatment standards based on the performance of HTMR; the treatment 
standards based on the performance of stabilization were properly 
calculated. The proposed treatment standards for cadmium, chromium, 
nickel, and silver were affected. The application of the Z-score 
outlier test resulted in 2 data points out of 40 being eliminated as 
outliers for both cadmium and chromium. For nickel, 5 out of 122 data 
points were identified as outliers.
    For silver, 3 out of 114 data points were identified as outliers. 
Three of the resulting, calculated treatment standards changed slightly 
and are slightly more stringent than the proposed standards: cadmium 
from proposed 0.20 to corrected 0.11 mg/L TCLP; chromium from proposed 
0.85 to corrected 0.60 mg/L TCLP; and nickel from proposed 13.6 to 
corrected 11 mg/L TCLP. Silver, on the other hand, changed from the 
proposed 0.11 mg/L TCLP to a corrected, slightly less stringent 0.14 
mg/L TCLP. (Note: In re-calculating this standard, the Agency added an 
additional 74 data points which were submitted by the INMETCO Company 
(a high temperature metal reclaimer) in their comments to the May 12 
supplemental proposal.) The Agency believes that these re-calculations 
are not significant because these four revised standards are each still 
achievable. See Memorandum, ``Calculation of Universal Treatment 
Standard (UTS) for HTMR Residues Using Data Submitted by Horsehead 
Research Development (HRD) Co., Inc. And INMETCO,'' December 17, 1997.

B. Applicability of Metal Treatment Standards

    As noted earlier, today's rule finalizes LDR treatment standards in 
two ways. First, it revises the UTS levels for 10 metal constituents in 
nonwastewater forms of hazardous wastes. The 10 include antimony, 
barium, beryllium, cadmium, chromium, lead, nickel, selenium, silver, 
and thallium. These treatment standards will replace the existing UTS 
values. In addition, EPA is applying UTS for the first time to 8 TC 
metal wastes: arsenic, barium, cadmium, chromium, lead, mercury, 
selenium, and silver. The UTS apply to both wastewater and 
nonwastewater forms of the wastes (except for TC arsenic wastes, for 
which the UTS apply to wastewater forms only), and to both organic and 
metal underlying hazardous constituents in them. No TC metal wastes 
have had to meet standards for underlying hazardous constituents before 
today, and wastes exhibiting only the TC and not the EP were not yet 
prohibited. (Note, some subcategories of mercury and arsenic TC metal 
wastes have treatment methods requiring use of a specified technology, 
and are not affected by today's rule.) The Agency is also adjusting the 
treatment standards for vanadium in P019 and P020 nonwastewaters as 
well as zinc in K061 nonwastewaters.
    The metal treatment standards being promulgated today have broad 
applicability. They apply to the following metal-containing hazardous 
wastes: (1) characteristic metal wastes, including both the newly 
identified wastes that, heretofore, were not prohibited from land 
disposal; and metal wastes that were identified as hazardous under the 
predecessor leaching protocol, the Extraction Procedure (EP), which 
remain hazardous because they also exhibit the TC by the TCLP; (2) 
mineral processing wastes which exhibit the toxicity characteristic for 
metal (this is actually a subset of wastes in (1) above); (3) listed 
hazardous wastes which have metal constituents; (4) underlying 
hazardous constituents (UHCs) that are metals in any characteristic 
hazardous waste (including mineral processing waste which exhibit a 
characteristic) that is disposed in other than a Clean Water Act (CWA) 
or CWA-equivalent wastewater treatment system (see 40 CFR 268.2(i); 59 
FR 47982, September 19, 1994); and (5) radioactive wastes mixed with 
the wastes mentioned in (1)-(4) above.

C. Development of New Treatment Standards for Hazardous Wastes 
Containing Metals

1. Measuring Compliance by Grab or Composite Sampling
    As explained in the May 12, 1997 Second Supplemental Phase IV 
proposal, EPA establishes treatment standards using data obtained by 
grab sampling, not composite sampling, and

[[Page 28562]]

likewise assesses compliance with these standards using grab sampling. 
62 FR at 26047. This approach was sustained by the D.C. Circuit Court 
of Appeals in Chemical Waste Management v. EPA, 976 F. 2d at 34, and 
EPA did not and is not reopening the issue in this proceeding. The 
Agency has now obtained requisite grab sampling data. As a result, the 
treatment standards promulgated in this rule are all based upon 
treatment performance that was measured through the use of grab 
sampling. All compliance likewise will be based on grab sampling.
2. Development of Treatment Standards for Metal Wastes
    All of the metals described below are on the UTS list and some are 
also TC metals. This section discusses development of both the TC and 
UTS treatment standard levels. The Agency is presenting the metal 
treatment standards alphabetically by constituent. Depending on the 
constituent, one or more treatment standards is discussed. For example 
in the section entitled, ``Treatment Standards for Barium Waste,'' the 
Agency discusses the promulgation of three treatment standards: (1) 21 
mg/L TCLP for nonwastewater forms of D005 waste (based on the UTS); (2) 
1.2 mg/L for wastewater forms of D005 waste (also based on the UTS); 
and (3) a revised UTS of 21 mg/L TCLP for barium nonwastewaters. If a 
metal constituent is not one of the TC metals, its presence cannot be 
the basis for determining if a waste exhibits the toxicity 
characteristic--but it could be an underlying hazardous constituent in 
the waste, in which case that constituent would need to meet the 
standard for that metal in today's rule before the waste could be land 
disposed.
    a. Final Universal Treatment Standard for Nonwastewater Forms of 
Antimony. The Agency proposed in the Second Supplemental (62 FR 26041, 
May 12, 1997), to change the UTS for nonwastewaters containing antimony 
from 2.1 mg/L TCLP to 0.07 mg/L TCLP. This proposed change was a result 
of new data collection efforts conducted by the Agency to gather 
performance data that was representative of the diversity of metal-
containing wastes.
    In response, the Agency received several comments. Two commenters 
supported the proposed change; however the remaining commenters argued 
against the proposed level for antimony of 0.07 mg/L TCLP for a number 
of reasons. One commercial waste management facility stated that very 
few of the waste streams they treat using conventional stabilization 
techniques, including furnace ash, incinerator ash, scrubber brine 
sludge, furnace baghouse dust, and stripper rinse waters, would meet 
the proposed standard. The commenter submitted 48 data points 
supporting its claim. A third commenter stated that meeting the 
standard would significantly increase their compliance costs. Another 
stated that commercial stabilization techniques were not capable of 
meeting the proposed UTS for antimony. In general, these commenters 
suggested a higher UTS for antimony in the range of 1.3 mg/L TCLP to 
2.98 mg/L TCLP.
    In response to the commenters' concerns regarding the difficulty in 
treating antimony wastes, the Agency has conducted a thorough review of 
its BDAT data set and has determined that while it represents a diverse 
collection of waste streams containing metals, the concentration of 
antimony in the 9 data points used to calculate the proposed standard 
may not be representative of the most difficult to treat antimony 
waste. The data used by the Agency to calculate the proposed UTS of 
0.07 mg/L TCLP, showed a range of antimony concentrations in the 
untreated waste of between 0.2440 mg/L TCLP and 16.1 mg/L TCLP. While 
the Agency, at the time, believed that these data were sufficient to 
establish a treatment standard, new data submitted by a commercial 
hazardous waste treatment facility provide a compelling argument to 
amend this standard. The new data consist of 48 additional data points 
representing various multiple metal waste streams, including 
incinerator or furnace ash, scrubber brine sludge, lab pack waste, 
stripper rinse water and baghouse dust. These wastes have all been 
treated with conventional stabilization techniques and meet the 
proposed UTS values for all metal constituents except for antimony. The 
Agency has reviewed the data, the treatment technology, and the QA/QC 
information submitted by the commenter and believes that the data 
should be incorporated into the existing BDAT data set. After doing so, 
the Agency recalculated the treatment standard for antimony 
nonwastewaters and is today promulgating a revised standard of 1.15 mg/
L TCLP. All data available to the Agency indicate that the revised 
treatment standard for antimony nonwastewaters can be achieved by 
either stabilization or HTMR processes and addresses the commenter's 
concerns.
    b. Treatment Standard for Wastewater Forms of Arsenic Waste.The 
Agency proposed in the original Phase IV proposal (60 FR 43683, August 
22, 1995), to change the treatment standard for wastewater forms of 
toxicity characteristic arsenic (D004) waste from the characteristic 
level of 5.0 mg/L established in the Third Third rule (55 FR 22520 June 
1, 1990) to the previously promulgated UTS for arsenic wastewaters of 
1.4 mg/L. The Agency did not propose to change the treatment standard 
for nonwastewater forms of toxicity characteristic arsenic (D004) waste 
in that the UTS of 5.0 mg/L TCLP was the same as the TC level. The 
Agency received no comment on the proposed change to D004 wastewaters. 
Therefore, the Agency is today promulgating as proposed the UTS 
standard of 1.4 mg/L for D004 wastewaters.
    c. Treatment Standards for Barium Waste. (i) Treatment standards 
for TC Barium (D005) Waste. In 60 FR 43684 (August 22, 1995), EPA 
proposed to change the treatment standards for wastewater forms of TC 
metal barium waste (D005) from the characteristic level of 100 mg/L 
(established in the Third Third rule, 55 FR 22520, June 1, 1990) to the 
previously promulgated UTS for barium of 1.2 mg/L. Likewise, EPA 
proposed for D005 nonwastewaters a change from the characteristic level 
of 100 mg/L TCLP (55 FR 22520, June 1, 1990) to the previously 
promulgated UTS of 7.6 mg/L TCLP. In support of these revised treatment 
standards, the Agency had performed a comprehensive re-evaluation of 
the available treatment performance data from wastes containing 
significant concentrations of barium.
    For D005 wastewaters, the Agency determined that the existing UTS 
level for barium (1.2 mg/L) was appropriate, based on the performance 
of lime conditioning followed by sedimentation and filtration as BDAT. 
For D005 nonwastewaters, the Agency determined that the existing UTS 
level of 7.6 mg/L TCLP, based on treatment of barium in K061 (electric 
arc furnace dust) using HTMR was also appropriate. The Agency believed 
that these treatment standards could be routinely met by industry. 
Additionally, the Agency reviewed stabilization data and determined 
that the treatment standards for barium could be achieved by 
stabilization for a wide variety of waste matrices. (See Proposed Best 
Demonstrated Available Technology (BDAT) Background Document for 
Toxicity Characteristic Metal Wastes D004-D011, July 26, 1995.)
    The Agency received no significant comment on the proposed change 
to the wastewater standard for D005. However, as previously discussed 
in Section III.A of today's rule, new data collection efforts and new 
analysis of BDAT data

[[Page 28563]]

for nonwastewaters resulted in a reproposal of the barium treatment 
standard in the Phase IV Second Supplement (62 FR 26047) . In this 
notice, the Agency proposed to revise the treatment standard for barium 
nonwastewaters to 21 mg/L TCLP based on stabilization. The Agency 
received no comments in response to the reproposal. Therefore, the 
Agency today is promulgating a nonwastewater treatment standard of 21 
mg/L TCLP as proposed in 62 FR 26041. In addition, the treatment 
standard of 1.2 mg/L for wastewater forms of D005 is promulgated as 
proposed in 60 FR 43654.
    (ii) Universal Treatment Standard (UTS) for Barium Nonwastewaters. 
(Please refer to the discussion above about the development of the 
treatment standard for D005 for additional information on the 
development of the barium UTS levels.) The Agency proposed to change 
the UTS for barium nonwastewaters from 7.6 mg/L to 21 mg/L TCLP (see 62 
FR 26041). It was proposed that such a treatment standard would better 
reflect the diversity of metal-containing waste streams and their 
treatment.
    The Agency received no significant comment in response to the 
reproposal. Therefore, the Agency is today promulgating a nonwastewater 
UTS of 21 mg/L TCLP, as proposed.
    d. Final Universal Treatment Standard for Nonwastewater Forms of 
Beryllium Waste. The Agency proposed in the original Phase IV proposal 
(60 FR 43683, August 22, 1995), to revise the UTS for nonwastewaters 
containing beryllium from 0.014 mg/L TCLP to 0.04 mg/L TCLP. As 
previously discussed, new data collection efforts and new analysis of 
BDAT data resulted in a reproposal of the beryllium treatment standard 
to 0.02 mg/L TCLP in the Phase IV Second Supplemental (62 FR 26041, May 
12, 1997).
    The Agency received numerous comments on the proposed revision. One 
commenter supported the proposed treatment level for beryllium, but 
stated that current stabilization technologies could achieve lower 
treatment levels. Several other commenters stated that while the 
proposed standard for beryllium was consistent with the data considered 
by the Agency, the stabilization data for beryllium were quite limited 
and reflected the treatment of wastes having very low beryllium 
content. Commenters further questioned whether the proposed standard of 
0.02 mg/L TCLP could be met by conventional stabilization techniques if 
higher concentrations of beryllium were treated. Other commenters 
stated that they could not support the treatment standards because EPA 
has not demonstrated that existing commercial technologies were capable 
of achieving the proposed standards or that technologies were otherwise 
available.
    In light of the comments received, the Agency conducted a review of 
the data set used to calculate the proposed standard. The review 
indicated that, consistent with the commenter's concerns, the data used 
by the Agency to calculate the standard were based on wastes containing 
low concentrations of beryllium (between 0.0050 and 0.5 mg/L TCLP). 
These concentration levels and the subsequent treatment standard 
developed from them does not appear to adequately account for the 
difficulty in treating wastes containing higher concentrations of 
beryllium. Data generated and submitted by Brush Wellman, Inc., 
consisting of seven data points, showed characteristic wastes (D008) 
with concentrations of beryllium ranging from 32 to 95 mg/L TCLP. When 
treated with conventional stabilization techniques, treatment resulted 
in beryllium levels ranging from 0.05 mg/L to 0.31 mg/L TCLP. As a 
result of these data, the proposed UTS for beryllium must be revised to 
reflect a more difficult-to-treat or high-concentration beryllium 
waste. Accordingly, the Agency is today promulgating a revised UTS for 
beryllium nonwastewaters of 1.22 mg/L based on this newly acquired 
data. All treatment performance data available to the Agency indicates 
that this revised treatment standard can be met, thereby addressing 
concerns raised by the commenters to the proposal. It should be noted 
that the UTS for beryllium wastewaters remains unchanged at 0.82 mg/L.
    e. Treatment Standards for Cadmium Wastes. (i) Treatment standards 
for TC Cadmium (D006) Waste. The Agency proposed to change the 
treatment standards for wastewater forms of TC cadmium (D006) waste 
from the characteristic level of 1.0 mg/L (established in the Third 
Third rule (55 FR 22520. June 1, 1990) to the previously promulgated 
UTS for cadmium wastewaters of 0.69 mg/L. EPA also proposed to change 
the treatment standard for D006 nonwastewaters from the characteristic 
level of 1.0 mg/L TCLP (55 FR 22520 (June 1,1990)) to the previously 
promulgated UTS for cadmium nonwastewaters of 0.19 mg/L TCLP. In 
support of these revised treatment standards, the Agency had performed 
a comprehensive re-evaluation of the available treatment performance 
data from wastes containing significant concentrations of cadmium.
    For D006 wastewaters, the Agency determined that the existing UTS 
for cadmium (0.69 mg/L) based on a BDAT of lime conditioning followed 
by sedimentation was appropriate. The treatment standard for 
nonwastewater forms of D006 wastes was based on a transfer from the UTS 
for cadmium of 0.19 mg/L TCLP based on the K061-HTMR treatment standard 
data. The Agency chose to use these data because they represented 
performance of an HTMR treatment unit. The UTS based on K061-HTMR could 
be routinely met by industry. Additionally the Agency reviewed 
stabilization performance data and determined that the UTS for cadmium 
could be achieved by stabilization for a wide variety of waste 
matrices. See Proposed Best Demonstrated Available Technology (BDAT) 
Background Document for Toxicity Characteristic Metal Waste D004-D011 ( 
July 26, 1995).
    The Agency received no comments on the proposed change to the 
wastewater standard for D006. However, for reasons previously discussed 
in Section III.A of today's preamble, the Agency in the Phase IV Second 
Supplemental proposed to revise the treatment standard for cadmium 
nonwastewaters to 0.20 mg/L TCLP based on HTMR.
    All comments received in response to the revised standard for 
cadmium supported the change. However, as discussed earlier in Section 
III.A of today's preamble, the Agency discovered an error in the 
calculation of the treatment standard. In applying the LDR methodology 
for calculating a treatment standard, the Agency failed to conduct a 
``Z-score'' outlier test. With the application of this test, 2 out of 
the 40 data points were determined to be outliers, resulting in a 
revised treatment standard for cadmium nonwastewaters of 0.11 mg/L 
TCLP. (The proposed treatment standard of 0.20 mg/L TCLP was based on 
all 40 data points.) The Agency has reviewed the comments in light of 
this amended treatment standard and believes that it can be achieved by 
both HTMR and stabilization treatment. Data submitted by commenters in 
support of this rule does clearly indicate that the standard can be 
achieved. See supporting information contained in docket for this rule. 
Therefore, the Agency is today promulgating a nonwastewater treatment 
standard of 0.11 mg/L TCLP for D006. In addition, the treatment 
standard of 0.69 mg/L for wastewater forms of D006 waste is being 
promulgated as proposed in 60 FR 43654.

[[Page 28564]]

    (ii) Universal Treatment Standard (UTS) for Nonwastewaters 
Containing Cadmium. The reader is referred to the above discussion 
about the development of the treatment standard for D006 nonwastewaters 
for additional information of the development of the UTS level for 
cadmium nonwastewaters. EPA is promulgating an UTS of 0.11 mg/L TCLP 
for nonwastewaters containing cadmium. No change was proposed for the 
cadmium wastewater UTS; therefore it remains at 0.69 mg/L.
    f. Treatment Standards for Chromium Wastes. (i) Treatment Standards 
for TC Chromium Wastes (D007). In 60 FR 43654 (August 22, 1995), the 
Agency proposed to change the treatment standards for wastewater forms 
of toxicity characteristic chromium (D007) waste from the 
characteristic level of 5.0 mg/L (established in the Third Third rule 
(55 FR 22520. June 1, 1990) to the previously promulgated UTS for 
chromium (total) wastewaters of 2.77 mg/L. EPA also proposed to change 
the treatment standards for D007 nonwastewaters from the characteristic 
level of 5.0 mg/L TCLP (55 FR 22520, June 1,1990) (a standard remanded 
by the D.C. Circuit as insufficiently stringent in Chemical Waste 
Management v. EPA, 976 F. 2d at 32) to the previously promulgated UTS 
for nonwastewater forms of chromium (total) of 0.86 mg/L TCLP. In 
support of these revised standards, the Agency had performed a 
comprehensive re-evaluation of the available treatment performance data 
from wastes containing significant concentrations of chromium.
    For D007 wastewaters, the Agency determined that the existing UTS 
(2.77 mg/L) based on a BDAT of lime conditioning followed by 
sedimentation was appropriate. The treatment standard for D007 
nonwastewaters was based on a transfer from the UTS for chromium 
(total) of 0.86 mg/L TCLP based on the K061-HTMR treatment standard 
data. In addition, the Agency reviewed stabilization performance data 
and determined that the UTS for chromium (total) could be achieved by 
stabilization for a wide variety of waste matrices. See Proposed Best 
Demonstrated Available Technology (BDAT) Background Document for 
Toxicity Characteristic Wastes D004-D011, July 26, 1995.
    The Agency received no comments on the proposed change to the 
wastewater standard for D007. However, as previously discussed in 
Section III.A of today's preamble, new data collection efforts and 
further analysis of BDAT data, resulted in a proposed revision to the 
treatment standard for nonwastewater containing chromium to 0.85 mg/L 
TCLP based on a BDAT of stabilization (62 FR 26041).
    In response to the reproposal, the Agency received no significant 
comments. However, as discussed earlier in Section III.A of today's 
preamble, the Agency discovered an error in the calculation of the 
treatment standard. In applying the LDR methodology for calculating a 
treatment standard, the Agency failed to conduct a ``Z-score'' outlier 
test. With the application of this test, 2 out of the 40 data points, 
originally used to calculate the standard, were determined to be 
outliers, resulting in a revised treatment standard for chromium 
nonwastewaters of 0.60 mg/L TCLP. The Agency has reviewed the comments 
in light of this amended standard and believes that it can be achieved 
by both HTMR and stabilization technologies. Data submitted by 
commenters in response to this proposal also support this conclusion. 
See supporting information contained in the docket for this rule. 
Therefore, the Agency is today promulgating an amended nonwastewater 
treatment standard of 0.60 mg/L TCLP. In addition, EPA is also 
promulgating a treatment standard of 2.77 mg/L for wastewater forms of 
D007 as proposed in 60 FR 43654.
    (ii) Universal Treatment Standard (UTS) for Chromium 
Nonwastewaters. (Please refer to the discussion above about the 
development of the treatment standard for D007 for additional 
information on the development of the chromium UTS levels.) The Agency 
proposed to change the UTS for chromium (total) nonwastewaters to 0.85 
mg/L TCLP to better reflect the diversity of metal-containing waste 
streams and their treatment (see 62 FR 26041). No change was proposed 
for the chromium wastewater UTS.
    The Agency received no significant comments on the reproposal. 
However, as a result of an error in the calculation of the proposed 
treatment standard, as previously discussed, the Agency is today 
promulgating a revised chromium nonwastewater UTS of 0.60 mg/L TCLP. 
The chromium wastewater UTS remains unchanged at 2.77 mg/L.
    g. Final Treatment Standards for Lead Wastes. (i) Treatment 
standards for TC Lead Wastes (D008). In 60 FR 43654 (August 22, 1995), 
the Agency proposed to change the treatment standards for wastewater 
forms of toxicity characteristic lead (D008) waste from the 
characteristic level of 5.0 mg/L established in the Third Third rule 
(55 FR 22520, June 1, 1990) to the previously promulgated UTS for lead 
wastewaters of 0.69 mg/L. EPA also proposed to change the treatment 
standard for D008 nonwastewaters from the characteristic level of 5.0 
mg/L TCLP (55 FR 22520, June 1, 1990) (a standard remanded by the D.C. 
Circuit as insufficiently stringent in Chemical Waste Management v. 
EPA, 976 F. 2d at 27) to the previously promulgated UTS for lead 
nonwastewaters of 0.37 mg/L TCLP. In support of these revised treatment 
standards, the Agency had performed a comprehensive re-evaluation of 
the available treatment performance data from wastes containing 
significant concentrations of lead.
    For D008 wastewaters, the Agency determined that the existing UTS 
for lead (0.69 mg/L) based on a BDAT of lime conditioning followed by 
sedimentation was appropriate. The treatment standard for nonwastewater 
forms of D008 waste was based on a transfer from the UTS for lead of 
0.37 mg/L TCLP, which in turn, was based on K061-HTMR treatment 
standard data. The Agency believed that the UTS could be routinely met 
by industry using HTMR. Additionally, the Agency reviewed stabilization 
performance data and determined that the UTS for lead could also be 
achieved by stabilization for a wide variety of waste matrices. See 
Proposed Best Demonstrated Available Technology (BDAT) Background 
Document for Toxicity Characteristic Metal Wastes D004-D011, July 26, 
1995.
    The Agency did not receive any comments on the proposed change for 
D008 wastewaters. However as previously discussed in today's preamble, 
numerous comments on the proposed nonwastewater treatment standard were 
submitted. As a result, the Agency in the Phase IV Second Supplemental 
proposed to change the D008 nonwastewater standard to 0.75 mg/L TCLP 
based on new BDAT stabilization data (62 FR 26047) collected by the 
Agency. The Agency felt that these data better reflected the diversity 
of lead-containing waste streams and their treatment.
    Numerous commenters concurred with the Agency's reproposal. 
However, other commenters, specifically those representing various 
sectors of the secondary lead industry, argued that EPA's proposed 
treatment standard for lead was not achievable. In particular, comments 
from Battery Council International (BCI) and the Association of Battery 
Recyclers (ABR) argued that new data developed by their association 
members showed that no facility in the secondary lead industry could 
meet EPA's proposed treatment standard for lead. Instead, they 
supported setting a treatment standard of 8.39 mg/L TCLP for D008 
nonwastewaters based on

[[Page 28565]]

stabilization. The commenters argued that smelter slag has chemical and 
physical characteristics distinctly different from the wastes used to 
develop the treatment standard and that because of its physical 
variability, treatment of secondary smelter slag through stabilization 
was much less effective than other types of D008 wastes. The commenter 
further questioned EPA's decision to ignore data submitted by BCI, ABR 
and others in response to the original Phase IV proposal, stating that 
these data were much more comprehensive and representative. The 
commenter stated that these data contained 276 composite data points 
for lead from secondary smelter slag, with a 99th percentile confidence 
interval for stabilized slag of 2.97 mg/L TCLP. Another commenter, 
which uses a chemical fixation process on the generated blast furnace 
slag, argued that they could only meet a 2.0 mg/L TCLP for lead, based 
on composite rather than grab sampling.
    In response to the commenters' concerns, the Agency would first 
like to respond to the commenters' statement that data previously 
submitted to the Agency was ignored. The Agency is careful to review 
and analyze all data that are submitted in support or response to its 
rulemakings. In fact, the referenced data were analyzed extensively, 
but were found to be so seriously lacking in form and quality 
assurance/quality control prerequisites that it was impossible to use 
them for BDAT development. (In the docket for this rule see the 
documents, ``Draft--Overview of Five Data Sets Submitted in Response to 
the Land Disposal Restrictions Phase IV Proposed Rule: Treatment of 
Metals,'' November 1996; and correspondence from Michael Petruska, 
USEPA to David B. Weinberg, Battery Council International Re: Request 
for Additional Data in Support of the Previous Submitted Data in 
Response to the Land Disposal Restriction Phase IV,'' July 22, 1996). 
Specifically, the data submitted to the Agency were (1) based on 
composite samples rather than grab samples, the latter being the only 
type used to develop treatment standards; (2) lacking in any quality 
assurance/quality control (QA/QC) documentation; and (3) not 
accompanied with specific treatment information, or any indication that 
performance of the treatment process was in fact optimized. As such, 
the Agency was unable to utilize these data.
    Other additional data were subsequently submitted by the commenter 
in response to the ``Second Supplemental'' and analyzed by the Agency. 
These data were based on grab sampling, but there were no specifics on 
the type of stabilization treatment conducted on the waste. The data 
does indicate that secondary smelter slags can be treated to meet 
today's treatment standards for all metals except lead and thallium. 
With respect to lead, approximately 24 out of 83 samples have treated 
lead values greater than 0.75 mg/L TCLP, but less than the 
characteristic level of 5.0 mg/L TCLP. No information was provided for 
the majority of the thallium data sets. Based on these data, the 
commenter proposed a treatment standard of 8.39 mg/L TCLP for lead 
nonwastewaters and 0.79 mg/L TCLP for thallium nonwastewaters. However, 
these data failed to show effective treatment of the thallium and lead 
constituents. (In the docket for this rule, see memorandum to Nick 
Vizzone, USEPA from Howard Finkel of ICF, ``Calculation of Universal 
Treatment Standard (UTS) for Stabilized Secondary Lead Slag Using Data 
Submitted by the Battery Council International and Association of 
Battery Recyclers,'' December 5, 1997).
    Commenters have failed to provide reliable and convincing data or 
information to persuade the Agency that stabilization can not meet the 
proposed treatment standard of 0.75 mg/L TCLP for lead slags. While the 
physical variability of the slag may indeed affect treatment 
performance, the Agency is unconvinced that the commenter's data were 
the result of optimized treatment conditions and, therefore, are not 
indicative of true treatment difficulties. EPA's own performance data 
from treatment of D008 battery slags (which were used in part for the 
calculation of the treatment standard) clearly support the view that 
slags from secondary battery recyclers can be treated to meet the 
nonwastewater standard of 0.75 mg/L TCLP. These data indicate that 
slags with lead concentrations ranging from 5 to 846 mg/L TCLP (a range 
similar to that associated with the data submitted in response to the 
May 12 Second Supplemental proposal and which are discussed above) can 
be treated with stabilization techniques to levels less than 0.01 mg/L 
to 0.3 mg/L TCLP. Furthermore, data and information available to the 
Agency suggest that with optimized treatment these standards should be 
achievable regardless of the waste matrix. (See ``Treatment Technology 
Background Document'', January 1991, for a discussion of Waste 
Characteristics Affecting Performance (WCAPS and other pertinent 
material). As such, the Agency is unpersuaded by the commenter's 
arguments and is today promulgating as proposed a treatment standard of 
0.75 mg/L TCLP for D008 nonwastewaters and a standard of 0.69 mg/L for 
D008 wastewaters. The Agency notes that if a particular waste is unique 
or possesses properties making it unusually difficult to treat by the 
treatment technologies whose performance was used to develop the 
treatment standard, the affected party may petition the Agency, on a 
case-by-case basis, for a treatment variance as provided in 40 CFR 
268.44.
    (ii) Final Universal Treatment Standard (UTS) for Nonwastewaters 
Containing Lead. (Please refer to the discussion above about the 
development of the treatment standard for D008 for additional 
information on the development of the lead UTS levels.) The Agency 
proposed to change the UTS for lead nonwastewaters from 0.37 mg/L TCLP 
to 0.75 mg/L TCLP to better reflect the diversity of metal-containing 
waste streams and their treatment (see 62 FR 26041). In response to the 
proposed revision, the Agency did receive a number of comments on the 
nonwastewater level, discussed above. For reasons also discussed above, 
the Agency is today promulgating a lead nonwastewater UTS of 0.75 mg/L 
TCLP as proposed.
    (iii) Secondary Smelter Battery Slag--Additional Issue. EPA 
published a Notice of Data Availability (NODA) on May 10, 1996 (61 FR 
21419) that discussed, among other things, an issue regarding 
application of the LDR standards to slags resulting from the smelting 
of lead acid batteries. The LDR treatment standard, established in the 
Third Third Rule in 1990, for lead acid batteries is RLEAD (see 40 CFR 
268.40 and 268.42, Table 1), which means recovery of lead. The NODA 
stated that ``[o]nce the batteries are smelted, the LDR requirements 
have been satisfied, and, therefore, the slag resulting from this 
smelting need not be treated further. The standards proposed under 
Phase IV (i.e., compliance with UTS) would not apply to this slag, even 
if the slag exhibits a characteristic of hazardous waste (i.e., 
contains lead in amounts greater than 5.0 mg/L).'' This position was 
based on EPA's usual interpretation that ``when EPA specifies a 
treatment method as the treatment standard, residues resulting from the 
required treatment method are no longer prohibited from land disposal 
unless EPA should otherwise specify.'' (emphasis added) 55 FR at 22538 
(June 1, 1990).
    After the publication of the May 10, 1996 NODA, EPA realized that 
it had, in fact, ``otherwise specified'' that lead slags resulting from 
the smelting of lead

[[Page 28566]]

acid batteries would be a separate treatability group in the Third 
Third rule, and they would indeed require further treatment if the 
slags exceeded the TC for lead (5.0 mg/L) as generated. See 55 FR at 
22568 (June 1, 1990). The Third Third rule states that ``The residuals 
from the recovery process are a new treatability group (i.e., the 
residues are not lead acid batteries) and, therefore, their status as 
prohibited or nonprohibited is determined at the point the residues are 
generated. Such residues would thus only be prohibited and therefore 
require further treatment if they exhibit a characteristic.'' This 
point was clarified both in person and in a letter, dated July 31, 
1996, sent to representatives of Battery Council International. The 
letter explained that the Agency had mischaracterized the status of 
lead slags in the May 10, 1996 NODA and requested comment on the 
appropriate treatment standard for these lead slags.
    EPA published the Phase IV Second Supplemental Proposed Rule on May 
12, 1997, and among other things, used new data from the treatment of 
lead slags in revising the treatment standards for lead. In response to 
this issue, one commenter stated that EPA was prohibited under RCRA 
3004(m) from requiring further treatment for residuals that resulted 
from a treatment process that was determined to be BDAT (such as 
RLEAD). The commenter believes RCRA 3004(m) states that once threats 
are minimized, EPA cannot require further treatment of the residuals 
after the specified BDAT treatment has been performed on the waste, or 
the BDAT numerical level has been achieved. Because the Agency's data 
on lead slag residuals show concentrations of 283 mg/L TCLP lead are 
not uncommon, potential threats from treated lead slag (using RLEAD 
only) are clearly not minimized. In fact, the concentrations of lead in 
these residuals resulting from RLEAD of lead acid batteries are among 
the most concentrated TC lead wastes for which the Agency has data. The 
Agency only is requiring further treatment of slag residuals which 
exhibit the characteristic for lead (i.e., contain lead in amounts 
greater than the TC level of 5.0 mg/l). Those residuals, by definition, 
are still hazardous and potential threats posed by their land disposal 
have not been minimized.
    Another commenter raised the issue of whether there had been 
adequate notice and comment given regarding the status of lead slag 
residuals. The Agency believes that adequate notice and opportunity to 
comment were given in light of the facts recited. We note also that all 
comments received on the Phase IV second supplemental rule regarding 
lead slag residuals took issue with the treatment standard for lead and 
the data used to develop the standard, but did not question that the 
slags could be required to be treated further. Commenters appeared to 
clearly understand that slags are covered by the Phase IV rule 
establishing standards for TC lead wastes.
    Therefore, lead slag residuals resulting from the smelting of lead 
acid batteries are included under today's rulemaking. If such residuals 
exhibit a lead toxicity characteristic (i.e., have lead levels 
exceeding 5.0 mg/L) after RLEAD is employed, they would have to be 
treated again for lead and any other underlying hazardous constituents 
present in waste until the treatment standards are achieved. For a 
discussion on the development of these numerical standards being 
promulgated today; see the discussion in section (i) above.
    (iv) Addition of Iron Filings to Stabilize Lead-Containing Wastes. 
Today, the Agency is codifying the principle that the addition of iron 
metal, in the form of fines, filings, or dust, for the purpose of 
ostensibly achieving a treatment standard for lead is ``impermissible 
dilution'' under 40 CFR 268.3. The Agency has determined that this 
waste management practice does not minimize threats posed by land 
disposal of lead-containing hazardous waste because the practice 
essentially ``blinds'' the analytic method but would not in fact 
prevent lead from leaching under actual disposal conditions. Affected 
wastes include: toxic characteristic lead wastes (D008), any 
characteristic waste containing lead as an underlying hazardous 
constituent, and listed wastes for which lead is regulated.
    On March 2, 1995, EPA published the LDR Phase III proposal (60 FR 
11702). Among other things EPA proposed that the addition of iron dust 
to stabilize lead in characteristic hazardous waste constituted 
impermissible dilution, rather than treatment legitimately meeting the 
LDR treatment standards (60 FR 11731). In the proposal, the Agency 
stated that certain industries were adding iron dust or iron fines to 
some characteristic hazardous waste (nonwastewaters) as an ostensible 
form of treatment for lead. As an example, the Agency noted that 
foundries were known to mix iron dust or filings with the D008 sand 
generated from their spent casting molds, viewing this practice as a 
form of stabilization. In the proposal, the Agency stated that such 
stabilization practices were inadequate to minimize threats posed by 
land disposal of metal-containing hazardous waste, and proposed to 
clarify that waste management practice as ``impermissible dilution'' 
under 40 CFR 268.3.
    In response to the proposal, the Agency received numerous comments. 
Commenters in support of the ``impermissible dilution'' designation 
agreed with EPA's discussion in the preamble that no chemical or 
pozzolanic reaction was possible from iron dust or filings and that 
standard chemistry showed that metals such as lead were not bound in a 
non-leachable matrix when using iron dust or filings as a stabilizing 
agent. One commenter further mentioned many instances where generators 
have avoided treatment costs by adding iron to their metal and cyanide-
bearing waste streams, thus providing the short-term ability to, as the 
commenter stated, ``fool'' the test for both amenable cyanide and 
leachable metals. The commenter pointed out that EPA's adoption of a 
total cyanide treatment standard had essentially solved the issue of 
ineffective treatment of cyanide using iron, but the issue of metals 
treatment still remained. The commenter concluded that the prohibition 
on the use of iron dust and filings would promote more treatment of 
toxic metal-bearing wastes.
    Other commenters discussed analytical concerns with the TCLP test 
when used on iron-treated wastes. One commenter stated that the 
addition of iron to D008 waste sand may mask the presence of lead in 
two ways: first, iron is more easily oxidized than lead so that under 
the conditions of the TCLP test, iron may be preferentially leached out 
into solution, leaving the lead in an insoluble, undetectable state. A 
second problem with the presence of iron in the TCLP test is spectral 
interference with the analysis of lead, which could result in positive 
interference and a raised detection limit for lead.
    Numerous commenters representing the foundry industry, however, 
argued extensively against the ``impermissible dilution'' designation 
for iron treatment of characteristic metal wastes. The commenters 
stated that EPA's position was neither justified nor supported by any 
technical documentation. The commenters further stated that: (1) iron 
added to lead bearing waste foundry sand effectively immobilizes the 
lead and yields a treatment residue that consistently passes the TCLP; 
(2) TCLP tests, run on foundry sand that was treated with iron and 
landfilled 8-10 years ago, yielded lead results below the 5 ppm level; 
(3) analytical results for total iron from landfill samples clearly 
show the iron has not oxidized after

[[Page 28567]]

several years; and (4) iron treatment has long-term stability. The 
commenters further stated that no evidence either from leaching tests 
or from real-world experience showed that iron treatment is not a 
successful long-term treatment for brass foundry sand when the 
treatment is conducted in an appropriate manner. On March 5, 1997, the 
Agency addressed the issue and industry arguments in Land Disposal 
Restriction--Phase IV Treatment Standards for Characteristic Metal 
Wastes; Notice of Data Availability (NODA) (62 FR 10004). In this NODA, 
new studies and data were presented on the issue of the treatment 
adequacy of adding iron to characteristic metal wastes as a method of 
treatment. As explained in the Phase III proposed rule (60 FR 11702), 
and again in the NODA of March 5, 1997, the addition of iron seems to 
temporarily retard the leachability of lead in spent foundry sand, thus 
allowing the waste to pass the TCLP test, but not to be permanently 
treated. At the time of the Phase III final rule, EPA decided not to 
finalize a determination that the practice was a form of impermissible 
dilution in the Phase III final rule without studying the issue 
further. See 61 FR 15569, April 8, 1996. In the March 5, 1997 NODA, two 
studies were noticed that had recently been completed.
    One study was developed by Dr. John Drexler of the University of 
Colorado and the other by Dr. Douglas Kendall of the National 
Enforcement Investigation Center (NEIC). The results of these studies 
indicated that the addition of iron filings or iron dust to spent 
foundry sands (D008) did not constitute adequate treatment of the waste 
because high concentrations of lead remained available to the 
environment and indeed have been shown to leach in actual field testing 
of units receiving the spent foundry wastes. (The reader is referred to 
62 FR 10004, March 5, 1997 for a full discussion of the studies).
    Specifically, Dr. Drexler's study concluded: (1) the spent foundry 
wastes placed in Nacodoches Municipal Landfill remained hazardous; (2) 
the addition of iron filings to spent foundry sand does not cause 
chemical reduction (i.e., the hazardous lead remains oxidized); (3) the 
addition of iron filings to the spent foundry sand promoted a 
physicochemical dilution of the sample during the TCLP by producing 
significant increases in surface area sorption sites; (4) the addition 
of iron filings to the waste artificially altered the environmental 
character of the TCLP test by increasing pH and lowering Eh (redox 
potential) and DO (dissolved oxygen); and (5) in-vitro testing shows 
that these ``treated'' wastes maintain a high bioavailability of lead.
    Dr. Kendall's study concluded that the addition of iron is not a 
permanent way to treat lead-contaminated waste. Specifically, he 
concluded that: (1) no reaction occurs when metallic iron is mixed with 
lead-contaminated foundry sand (D008); (2) during the TCLP process, 
lead begins to leach into the solution and if metallic iron is present, 
the lead concentration in solution will decrease by an oxidation/
reduction reaction to levels below the lead characteristic; (3) only if 
fresh metallic iron is regularly introduced into the mixture, can 
soluble lead be kept at low levels; and (4) upon placement of the waste 
in a landfill and left alone, the iron will oxidize, losing its ability 
to reduce lead ions.
    Peer review of the studies concurred with the findings that the 
addition of iron filings to spent foundry sand is not treatment of 
hazardous waste and that the scientific data presented in the studies 
were based on sound scientific research and support the conclusions 
made. (See ``Peer Review Report, September 3, 1996, submitted by A.T. 
Kearney, Inc., Dallas, Texas to Rena McClurg, Regional Project Officer, 
USEPA, Dallas, Texas.)
    The Agency received several comments in response to the NODA. One 
State agency commented that based on the evidence gathered by the EPA, 
the addition of iron fines as treatment of lead containing wastes 
appears to be unacceptable under most disposal criteria. Furthermore, 
it was the commenter's contention that the method in question should be 
rejected where disposal of wastes so treated may be subjected to acid 
leaching and chemical oxidation, in particular disposing of wastes in a 
municipal solid waste landfill. The commenter did note however that 
data exist to support the contention that the treatment may be 
acceptable for brass foundries under specified monofill disposal 
criteria. Another commenter requested clarification as to whether iron-
bearing lead waste products, i.e., from the steel bridge blast cleaning 
and painting industry, would be impacted. The commenter recommended 
that all waste debris from any lead abatement project be deemed 
hazardous and treated appropriately regardless of the type of abrasive 
blast media used.
    Two commenters argued that the conclusions drawn from the studies 
conducted by Drs. Kendall and Drexler were erroneous or misplaced from 
a regulatory standpoint. In particular the commenters argued, among 
other things, that given the biased sampling, i.e., sampling of only 
``hot spots'' in the landfill and disregard for SW-846 statistical 
analysis, EPA should reconsider its view on the treatment of foundry 
sands with iron filings. (The reader is referred to the ``Comment 
Response Document'' for this final rule for a more complete discussion 
of the comments received on this issue.)
    EPA has evaluated all the comments on the subject studies and on 
the issue of iron filings as a treatment method for lead 
nonwastewaters. The regulatory issue at hand--and the focus of the 
studies--is whether or not adding iron metal is adequate treatment for 
LDR purposes. Several commenters have elected to take issue with points 
that are not the central focus of the two studies. While a statistical 
evaluation is used to determine if a waste is hazardous, all parts of 
the waste must be treated to meet the applicable standards, not just a 
representative sample. Thus, if results show that ``hot spots'' remain, 
this is presumptive evidence that treatment was not effective and there 
is noncompliance with the LDR treatment requirements. In the preceding 
determination of whether a waste is hazardous, the Agency guidance in 
SW-846 provides basic sampling strategies for simple and stratified 
random sampling of the waste as a whole. However, in application of the 
land disposal treatment standards, all portions of the waste must meet 
the applicable treatment standards, i.e., no portion may exceed the 
regulatory limit. See 40 CFR 268.40. Hence, commenters that focused on 
the SW-846 sampling issue largely misconstrued the central findings of 
the studies.
    In response to comments pointing to the disposal of a waste in a 
monofill, while data may suggest that disposal of iron treated waste in 
this type of controlled environment may be protective in some 
scenarios, RCRA section 3004(m)(1) requires treatment to 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. This statutory requirement has not been met 
with iron addition plus placement in a monofill since ultimate 
placement of the waste in a monofill is not germane to the key issue at 
hand--is the treatment prior to land placement effective.
    With respect to this key issue, the Agency's determination that the 
addition of elemental iron in the form of fines, filings, etc., 
constitutes impermissible dilution is predicated on the fact that the 
adsorption of soluble

[[Page 28568]]

lead on to the iron surface is a reversible reaction and once the iron 
surfaces oxidize (which naturally occurs when the treated waste is 
exposed to air), the ability of the additive (iron) to scavenge soluble 
metals is diminished. Therefore, the treatment is not permanent. In 
addition, adsorption alone is not a reliable method of permanently 
immobilizing lead which both studies conclude. The authors have also 
concluded, and the Agency agrees, that the prohibition should apply to 
any lead-containing waste. As stated by Dr. Kendall in his response to 
comments, ``Lead-contaminated foundry sand is no different from any 
other waste which fails the TCLP test because of excessive amount of 
extractable lead. The addition of iron metal (zero valence iron) is not 
a permanent treatment because iron oxidizes. Since iron addition is not 
a permanent treatment, it should not be allowed for hazardous wastes 
which are to be land disposed, regardless of their origin.'' (See 
memorandum from Samuel Coleman, USEPA to James R. Berlow, USEPA Re: 
``Reply to Comments Concerning Prohibition of Land Disposal of Iron 
Treated Lead Contaminated Wastes''. November 17, 1997.)
    As indicated above, the addition of iron metal is not a permanent 
treatment because the iron inevitably oxidizes and loses its 
adsorptivity for soluble lead ions. After oxidation of the iron 
surfaces, surface adsorption of lead ions ceases and the lead-bearing 
waste returns to its original state; all pretext of treatment is lost. 
Since iron addition is not effective, it cannot be allowed for 
hazardous lead-containing hazardous wastes that are to be land 
disposed, regardless of their origin (i.e., all lead-bearing wastes, 
not just foundry sands).
    The Agency concludes that addition of iron metal, in the form of 
fines, filings, or dust, fails to provide long-term treatment for lead-
containing hazardous wastes. EPA is codifying this determination by 
calling the practice impermissible dilution, and so invalidating it as 
a means of treating lead in lead-containing hazardous wastes. It can 
also be simply viewed as a type of treatment that fails to minimize the 
threats to human health and the environment posed by disposal of lead-
containing hazardous wastes, because lead mobility is not substantially 
reduced when the waste is disposed.
    In response to comments whether use of iron-containing abrasives to 
remove lead-based paint, for example from the steel bridge blast 
cleaning and painting industry, may be a type of impermissible 
dilution, the Agency notes that the dilution prohibition does not apply 
to processes which generate a waste, only to processes that treat a 
waste which already has been generated. See S. Rep. No. 284, 98th Cong. 
2d Sess. 17 (1984). As such, it would not appear that abrasive blasting 
is impermissible dilution since it is part of the process generating 
the waste, i.e., the removed paint. If generators added iron filings/
dust or discarded, off specification steel shots to lead-based paint 
waste (similar to the current foundry practices), it is analogous to 
impermissible dilution and this rule bans such practice. However, 
addition of iron filing/dust to a hazardous waste (before the hazardous 
waste determination) is a lot different from using steel pellets/shots, 
silica-containing products, and other abrasive materials for paint 
removal.
    The Agency has been pursuing several specific efforts to evaluate 
the environmental hazards caused by disposal of lead-containing wastes, 
including evaluation of damage case information included in the 1996 
Hazardous Waste Characteristic Scoping Study, re-examination of the 
risk modeling used for the 1995-proposed Hazardous Waste Identification 
rule, and evaluation of fate and transport in other environmental media 
from industrial nonhazardous solid waste disposal facilities. Upon 
completion of these activities, the Agency will be in a better position 
to decide whether disposal of lead-containing waste is a health and 
environmental concern warranting listing or whether revising the TC 
regulatory limit would be more appropriate.
    In addition, the Agency notes that a determination that a waste is 
not hazardous (here because addition of iron during a generating 
process results in a determination that paint waste does not exhibit a 
characteristic) may not be a shield against future liability, if the 
disposal results in environmental damage. Note that under CERCLA, not 
just generators are liable for any environmental damage caused by the 
release of hazardous material into the environment. CERCLA liability is 
independent of any hazardous waste determination that previously may 
have been made. EPA believes that in light of CERCLA liability and the 
available environmental contamination data, it would be prudent for 
generators to examine their waste generation and management practices 
with an eye toward segregation of lead-based paint waste and iron dust/
flakes or steel shots, and potential re-smelting of the lead-bearing 
residuals.
    As a final matter, it has been argued to the Agency that the 
proposed (and now final) action regarding addition of iron filings is 
analogous to treatment of fluoride in a process for treating aluminum 
spent potliner waste (K088) operated by Reynolds Metals Company. See 
generally Docket P33F-S0069 p. 6 (July 7, 1997) and 62 FR 37694, 37697 
(July 14, 1997) (responding to comment and establishing October 8, 1997 
as the date prohibition of land disposal of K088 wastes takes effect). 
The argument goes that in the Reynolds treatment process, reagents are 
added to the process that only allow the fluoride to meet the LDR 
treatment standard by blinding the analytical method (the TCLP), but do 
not result in permanent reduction of fluoride mobility in the treated 
wastes. See 62 FR at 37695, noting that levels of fluoride in the 
leachate from actual disposal are well in excess of the levels 
established in the treatment standard (as measured by the TCLP). Hence, 
it is asserted, this process must be an example of impermissible 
dilution.
    The Agency disagrees. First, EPA calculated that the process did 
reduce fluoride mobility on the order of 28%. Docket P33F-S0064. This 
estimate may in fact understate the extent of treatment. The maximum 
amount of fluoride detected in actual leachate from the disposed 
treatment residue is 2228 mg/L. 62 FR 37695. However, untreated 
potliners leached fluoride at concentrations ranging from 7730-8860 mg/
L when exposed to the same type of leaching medium (simulated monofill 
leaching medium). Docket P33F-S0049 data set J. Thus, EPA finds that 
the process is resulting in non-dilutive treatment of fluoride. In 
addition, the reagent used for fluoride treatment serves another 
legitimate function in the process--as a fluxing agent to prevent 
agglomeration of material in the rotary kiln. 62 FR at 37695. Dilution 
which is a necessary part of a treatment process is normally 
permissible. 51 FR at 40592 (November 7, 1986); 62 FR at 37697. 
Consequently, EPA does not regard the treatment of fluoride in the 
Reynolds K088 treatment process to be a form of impermissible dilution.
    h. Treatment Standards for Wastewater and Nonwastewater Forms of 
Mercury Waste. The Agency, in the original Phase IV rule, proposed to 
change the treatment standard for one subcategory of TC mercury 
wastewaters (D009--All Others) from the characteristic level of 0.20 
mg/L (established in the Third Third rule (55 FR 22520. June 1, 1990) 
to the previously promulgated UTS for mercury wastewaters (Mercury--All

[[Page 28569]]

Others) of 0.15 mg/L. (60 FR 43654, August 22, 1995.) The Agency 
received no comments on this proposed change. As such, the Agency is 
promulgating a treatment standard of 0.15 mg/L for wastewater forms of 
D009--All Others.
    The Agency also proposed to revise the treatment standard for TC 
mercury nonwastewaters (D009--All Others) from the characteristic level 
of 0.20 mg/L TCLP to 0.025 mg/L TCLP. The nonwastewater UTS for mercury 
is based on the mercury standard developed from K071 waste treatment 
data. The only comments received on the achievability of this proposed 
change were regarding the application of this treatment standard to TC 
mercury soil. TC soils are subject to specific treatment standards 
being finalized elsewhere in today's rule. More detail can be found on 
the mercury soil comments in the Response to Comments Background 
Document. Therefore, the Agency is promulgating a treatment standard of 
0.025 mg/L TCLP for nonwastewater forms of D009--All Others in today's 
rule.
    With respect to the broader issue of mercury treatment, the Agency 
plans to conduct an intensive review of traditional and innovative 
technologies over the next year or so. Outreach to various industry, 
academic, and other groups is also being investigated as to its 
feasibility. Key information, when available, on this effort can be 
obtained from the RCRA Hotline, and notices of significant public 
events will be placed in the Federal Register and on EPA's Internet 
home page.
    i. Final Universal Treatment Standard for Nonwastewater Forms of 
Nickel. The Agency proposed in the Phase IV Second Supplemental to 
change the UTS for nonwastewaters containing nickel from 5.0 mg/L TCLP 
to 13.6 mg/L TCLP. This revision to the UTS was based on new 
performance data obtained by the Agency and presented in that notice. 
The Agency did not receive any significant comments on this issue. 
However, as discussed in an earlier section of today's preamble, the 
Agency discovered an error in the calculation of the treatment 
standard. In applying the LDR methodology for calculation of a 
treatment standard, the Agency failed to conduct a ``Z-score'' outlier 
test. With the application of this test, 5 out of the 122 data points 
originally used in the calculation of the standard, were determined to 
be outliers. This error resulted in a revised treatment standard for 
nickel nonwastewaters of 11.0 mg/L TCLP. In light of this amended 
standard, the Agency has reviewed all of the comments and data 
submittals, and has determined that all the treatment data for nickel 
is below 11.0 mg/L TCLP. Accordingly, the Agency is today promulgating 
a final UTS for nickel nonwastewaters of 11.0 mg/L TCLP. No change was 
proposed for nickel wastewater; therefore, the UTS remains at 3.98 mg/L 
for these wastes.
    j. Final Treatment Standards for Selenium Wastes. (i) Treatment 
standards for TC Selenium Wastes (D010). The majority of commenters 
supported the Agency proposal to maintain the 5.7 mg/L TCLP level for 
D010 nonwastewaters. They strongly agreed with the Agency's reasoning, 
and urged EPA to adopt the proposed treatment standard.
    One commenter, however, maintains that the Agency should establish 
a ``High Selenium Greater Than 200 ppm'' subcategory for 
nonwastewaters, with a corresponding treatment standard of 10 mg/L 
TCLP. The commenter has cited technical problems in achieving the 
proposed treatment standard level for highly contaminated selenium 
wastes. The commenter states that, since 1995, they have consistently 
experienced problems treating waste streams from glass manufacturing 
companies with wastes that contain high concentrations of selenium. The 
commenter provided treatability testing data from a selenium waste 
stream, containing 80 mg/L TCLP, which showed that 16 different 
treatment recipes were tested prior to finding one that would treat a 
selenium waste to below 5.7 mg/L TCLP. The other data, from three 
different generators of selenium waste, suggest TCLP values of 
untreated waste of between 465-1064 ppm TCLP, with treated wastes 
achieving between 2.5 and 45.6 mg/L TCLP.
    The Agency has reviewed all the treatment data and, for the most 
part, waste streams containing selenium exist either in relatively low 
concentrations (0.1-0.13 mg/L TCLP) or in extremely high concentrations 
(greater than 450 mg/L TCLP). Because of the highly divergent nature of 
these wastes and the difficulty in treating selenium with multiple 
metals at almost any concentration, it seems unreasonable to mandate 
that one treatment standard could be applicable to both. Calculations 
of a revised treatment standard, based only on the newly submitted 
treatment data for the high selenium concentration wastes, would yield 
a standard of 77.0 mg/L TCLP for selenium nonwastewaters. If a 
calculation is done after pooling all selenium data (including low 
concentration selenium data), a standard of 261 mg/L TCLP would result. 
The Agency is reluctant to establish a treatment standard for selenium 
nonwastewaters of either 77.0 mg/L or 261 mg/L TCLP on a national 
level. Earlier data suggest and commenters concur that for the majority 
of selenium wastes the proposed standard of 5.7 mg/L TCLP for selenium 
nonwastewaters is appropriate. Furthermore, only three high selenium 
concentration waste streams that could apparently not be treated to 
this level. Therefore, there is little reason to pool all treatment 
data or to engage in bifurcation of the selenium standard.
    Accordingly, the Agency is promulgating a treatment standard of 5.7 
mg/L TCLP for nonwastewaters containing selenium. The Agency, however, 
is convinced that the high-level selenium waste streams for which data 
were submitted to EPA will be unable to be treated to achieve the 5.7 
mg/L TCLP standard. Therefore, in a Federal Register notice that will 
be published shortly, the Agency will be requesting comment on a 
proposal to grant a site-specific treatment variance for Waste 
Management, Inc. for the treatment of some D010 wastes containing high 
concentrations of selenium.
    The Agency also is promulgating as proposed a wastewater treatment 
standard of 0.82 mg/L for D010 wastewaters. No comments were received 
on this issue.
    (ii) Universal Treatment Standard (UTS) for Selenium. As noted 
above, in the May 12, l997 reproposal of the Phase IV rule, the Agency 
proposed to change the UTS for selenium nonwastewaters from 0.16 mg/L 
to 5.7 mg/L TCLP. For the reasons discussed above for D010 
nonwastewaters, 5.7 mg/L TCLP is a better reflection of treatability of 
difficult-to-treat selenium waste streams than 0.16 mg/L TCLP. This is 
the level being promulgated today for the selenium nonwastewater UTS. 
(It should be noted that because the UTS is above the TC level for 
selenium, selenium is not considered an ``underlying hazardous 
constituent'' (UHC) in characteristic waste, according to the 
definition at 268.2(i)). The wastewater UTS for selenium remains 
unchanged at 0.82 mg/L.
    k. Final Treatment Standards for Silver Wastes. (i) Treatment 
standards for TC Silver Wastes (D011). In today's final rule, EPA is 
promulgating a nonwastewater treatment standard of 0.14 mg/L TCLP for 
characteristic silver (D011). For wastewaters, EPA is promulgating a 
treatment standard of 0.43 mg/L as proposed in the original Phase IV 
proposal on August 22, 1995 (60 FR 43684). EPA is in the process of 
determining whether silver should

[[Page 28570]]

remain on the TC list at 40 CFR 261.24(b) Table 1 or whether the 
current TC level should be altered. If EPA alters the status of silver 
on that TC list, EPA will revisit the treatment standards for silver.
    (ii) Proposals, Comments, and Responses. Until today's notice, the 
treatment standards for wastewater and nonwastewater forms of D011 have 
both been 5.0 mg/L TCLP, which is the TC level. In 1995, EPA proposed a 
treatment standard of 0.43 for wastewaters and 0.30 mg/L for 
nonwastewater, based on the best treatment data in EPA's possession at 
that time (60 FR 43684). EPA received comments urging the Agency to 
refrain from setting a treatment standard lower than the TC level and 
instead suggesting that EPA remove silver from the TC list altogether 
due to new information on the low risk of silver to human health.
    In a 1996 Notice of Data Availability (NODA), EPA presented the 
option of retaining the 5.0 mg/L treatment standard for D011 wastes (61 
FR 21420, May 10, 1996). Comments were divided in two groups: those 
which supported the option, and those which stated that EPA had no firm 
basis for such a decision, given the potential toxicity of silver to 
aquatic life.
    Since receipt of the comments on the NODA, EPA acquired more recent 
treatment data on TC metals, including silver. Based on these data, EPA 
learned that D011 nonwastewaters could be successfully treated to a 
level of 0.11 mg/L using HTMR, and EPA proposed revising the UTS for 
silver in its Phase IV Second Supplemental proposal. The grab data used 
to establish this treatment standard was submitted to the Agency by an 
HTMR facility (62 FR 26041) (Background Documents from Second 
Supplemental proposal). Commenters on the Second Supplemental 
reiterated that silver should not be on the TC list. However, the 
commenters continued, if silver remains on the list for now, EPA should 
not set a more stringent standard than the current one of 5.0 mg/L, but 
rather it should choose a risk-based standard. Commenters explained 
further that little D011 is disposed, because silver is generally 
recovered from silver wastes.
    In response to the reproposal, the Agency received no significant 
comment on the technical aspects of achieving the proposed treatment 
standard; however the Agency did receive from International Metals 
Company (INMETCO) an additional 74 grab data points on the treatment of 
silver using HTMR. (See memorandum from Howard Finkel, ICF, Inc., to 
Nick Vizzone, USEPA Re: ``Calculation of Universal Treatment Standards 
(UTS) for HTMR Residues Using Data Submitted by Horsehead Research 
Development Company, Inc. and INMETCO,'' December 17, 1997.) The Agency 
used INMETCO data for the calculation of the proposed treatment 
standard and determined that this additional data should be included in 
the data pool. As previously discussed in Section III.A. of today's 
preamble, the Agency discovered an error in the calculation of the 
treatment standard. In applying the LDR methodology for calculating a 
treatment standard, the Agency failed to conduct a ``Z-score'' outlier 
test. With the application of this test and the inclusion of the 74 
additional data points, 3 out of the 114 data points, were determined 
to be outliers, resulting in a revised treatment standard for silver 
nonwastewaters of 0.14 mg/L TCLP. The Agency has reviewed the comments 
in light of this amended standard and believes that it can be achieved 
by both HTMR and stabilization technologies. Data submitted by 
commenters in response to this proposal also support this conclusion. 
See supporting information contained in the docket for this rule.
    The Agency does not have an adequate basis for taking the actions 
recommended by some commenters, i.e. to remove silver from the TC list, 
or regulate it at a less stringent level than the proposed technology-
based treatment standard. EPA is in the process of determining whether 
silver should remain on the TC list at 40 CFR 261.24(b) Table 1, or 
whether the current TC level should be altered. In addition, EPA 
continues its work on the Hazardous Waste Identification Rule (HWIR) to 
establish risk-based exit levels for hazardous wastes. The Agency is 
not yet able to establish a nationally-applicable risk-based level for 
silver that fulfills the statutory charge of minimizing threats of 
hazardous waste to human health and the environment.
    The process of establishing such a level is technically complex; 
EPA is currently modeling the ecological and human health effects of 
exposure to silver through numerous pathways. Several issues remain 
unresolved concerning human health and environmental risk. EPA is 
continuing to investigate these issues. The Agency recently acquired 
studies indicating that silver may be connected to central nervous 
system and other non-cancer effects in humans. The draft Reference Dose 
for these effects have not been finalized by the Agency for use in risk 
assessments. (A Reference Dose is a benchmark level for chronic 
toxicity that is protective of human health.) In addition to potential 
adverse human health effects, uncertainties and concerns also remain 
for potential adverse environmental effects. Although EPA removed the 
Maximum Contaminant Level (MCL) for silver in drinking water, the 
Ambient Water Quality Criteria remain in effect due to potential 
aquatic toxicity. Further areas of uncertainty are how silver speciates 
after release (i.e. which valence state of silver would be present). 
The issue could be important since potential toxic effects differ 
depending on the species of silver present. In short, EPA's work on 
understanding risks from disposal of silver-containing hazardous wastes 
is ongoing, and it would be premature to establish a treatment standard 
based on risk at this time.
    In the absence of such ``minimize threat'' levels for hazardous 
constituents, the Agency establishes standards based on Best 
Demonstrated Available Technology (BDAT). (See full explanation in the 
preamble of the Phase II Final LDR rule at 59 FR 47986, September 19, 
1994.) The fact that the UTS for nonwastewater forms of silver is being 
lowered (made more stringent) from the existing level of 0.30mg/L to 
0.14 mg/L is due to new data on what treatment technology achieves. As 
explained in the summary of this preamble section (Section III: Revised 
Land Disposal Restrictions for Metal Constituents in All Hazardous 
Wastes, Including Toxic Characteristic Metals), technology-based 
standards are the best assurance that threat is minimized, given the 
uncertainty as to the level at which threats of hazardous waste 
disposal are minimized.
    EPA expects that the new treatment standard for silver wastes will 
have little, if any impact on the regulated community. As stated by 
commenters, high-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. Moreover, the Regulatory Impact Analysis for 
this rule estimated that the new, more stringent UTS levels for metal 
constituents, including silver, will not increase compliance costs. 
This is because the current treatment methods already achieve the new 
standard of 0.14 mg/L in silver nonwastewaters. (Achievability of the 
UTS for TC silver wastewaters is not an issue; EPA received no comments 
nor data on its proposal to apply the existing UTS of 0.43 mg/L.)
    Thus, the Agency is promulgating the wastewater standard of 0.43 
mg/L as proposed and the nonwastewater

[[Page 28571]]

standard of 0.14 mg/L. If EPA changes the status of silver on the TC 
list, EPA will revisit the treatment standards for silver wastes.
    (iii) Universal Treatment Standard (UTS) for Silver Nonwastewaters. 
(Please refer to the discussion above about the development of the 
treatment standard for characteristic silver for information on the 
development of the UTS levels.) In today's final rule, EPA is 
promulgating a nonwastewater UTS of 0.14 mg/L TCLP for silver.
    l. Final Universal Treatment Standard for Nonwastewater Forms of 
Thallium. The Agency proposed in the Second Supplemental Proposed Rule 
to change the UTS for thallium-containing nonwastewaters from 0.078 mg/
L TCLP to 0.20 mg/L. (The original standard was based on composite 
sampling from an HTMR facility). This proposal was based on new data 
obtained by the Agency and presented in that notice. Several commenters 
supported the change. However, two commenters argued that EPA had not 
demonstrated that existing commercial technologies were capable of 
achieving the proposed standards or that technologies were otherwise 
available. The Agency remains unconvinced by the arguments of the 
commenters and notes that they supplied no treatment data in support of 
their contentions. Accordingly, the Agency is today promulgating as 
proposed a revised UTS for nonwastewaters containing thallium of 0.20 
mg/L TCLP. No change was proposed for wastewater containing thallium; 
therefore the UTS remains 1.4 mg/L.
    m. Final Treatment Standard for Nonwastewater Forms of Vanadium in 
P119 and P120 Wastes. The Agency proposed in the Second Supplemental 
Proposed rule to change the UTS for nonwastewaters containing vanadium 
in P119 and P120 wastes from 0.23 mg/L TCLP to 1.6 mg/L TCLP. This 
proposal was based on new data obtained by the Agency and presented in 
that notice. Commenters were supportive of the change. The treatment 
standard of 1.6 mg/L TCLP is being promulgated as proposed. No change 
was proposed for wastewater containing vanadium in P119 and P120 
wastes, therefore, the UTS remains 4.3 mg/L. The Agency would like to 
point out that vanadium is not an ``underlying hazardous constituent'' 
in characteristic waste, according to the definition at 268.2(i).
    n. Final Treatment Standard for Nonwastewater Forms of Zinc in K061 
Waste. The Agency proposed in the Second Supplemental Proposed rule to 
change the treatment standard for zinc nonwastewaters in K061 waste 
from 5.3 mg/L to 4.3 mg/L . This proposal was based on new data 
obtained by the Agency and presented in that notice. One commenter was 
supportive of the change, while two other commenters were concerned 
with zinc being identified as an UHC. Still another commenter, a major 
HTMR facility, submitted data (152 data points) showing 100% compliance 
with the standard after 6 high statistical outliers were removed. 
Indeed, the great majority of these data showed zinc at levels an order 
of magnitude below the promulgated standards. EPA believes these data 
confirm the achievability of today's standard. Therefore, the Agency is 
today promulgating a revised nonwastewater treatment standard of 4.3 
mg/L TCLP for K061 waste. No change was proposed for wastewater 
containing zinc in K061; therefore the UTS remains 2.61 mg/L. In 
response to the comments regarding zinc as an UHC, the Agency would 
like to point out that zinc is only regulated in K061 waste; it is not 
defined as an ``underlying hazardous constituent'' in characteristic 
waste, according to the definition at 268.(i).

                           Universal Treatment Standards for Twelve Metal Constituents                          
          [Affecting Nonwastewater TC Metal Wastes and Nonwastewater Metal Constituents in All Wastes]          
----------------------------------------------------------------------------------------------------------------
                                                                                           2nd                  
                                                                        Existing UTS  supplemental    Final UTS 
            Waste code                  Constituent       TC level (mg/  level (mg/L  proposed UTS   level (mg/L
                                                               L)           TCLP)      level (mg/L      TCLP)   
                                                                                          TCLP)                 
----------------------------------------------------------------------------------------------------------------
D005.............................  Barium...............         100           7.6          21.0          21.0  
D006.............................  Cadmium..............           1.0         0.19          0.20          0.11 
D007.............................  Chromium.............           5.0         0.86          0.85          0.60 
D008.............................  Lead.................           5.0         0.37          0.75          0.75 
D009- all others.................  Mercury..............           0.2         0.025         0.025         0.025
D010.............................  Selenium.............           1.0         0.16          5.7           5.7  
D011.............................  Silver...............           5.0         0.30          0.11          0.14 
                                   Antimony.............                       2.1         * 0.07          1.15 
                                   Beryllium............                       0.014       * 0.02          1.22 
                                   Nickel...............                       5.0          13.6          11.0  
                                   Thallium.............                       0.078         0.20          0.20 
                                   Vanadium **..........                       0.23          1.6           1.6  
                                   Zinc **..............                       5.3           4.3           4.3  
----------------------------------------------------------------------------------------------------------------
* 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.                                                 
Note: Treatment standards for TC metal wastewaters have also been revised in today's rule, but are not reflected
  in this table.                                                                                                

D. Use of TCLP to Evaluate Performance of Treatment Technology for 
Treating Hazardous Metal Constituents

    Commenters did not question the appropriateness of using the TCLP 
as a means of evaluating the performance of the treatment technology 
used to treat metal hazardous constituents in hazardous wastes. EPA is 
addressing the issue sua sponte to set out why the recent opinion of 
the D.C. Circuit in Columbia Falls Aluminum Co. v. EPA (No. 96-1234, 
April 3, 1998) does not affect use of the TCLP for this purpose.
    Columbia Falls presented an unusual set of facts. EPA had 
established treatment standards for spent aluminum liners (waste K088), 
which standards used the TCLP to measure performance of the treatment 
technology for several hazardous constituents, including arsenic and 
fluoride. All of the commercial treatment capacity for this waste was 
provided by a single facility, and all of the treatment residue from 
this single process was disposed at a single location. Slip op. at p. 
6; 62 FR

[[Page 28572]]

at 1993 (Jan. 14, 1997). Notwithstanding that the treatment process was 
able to achieve the treatment standards for arsenic and fluoride as 
measured by the TCLP (i.e., the treatment residue, when tested with the 
TCLP, never exceeded the regulatory levels), actual leachate from the 
disposal site contained significantly higher levels of these 
constituents. Id. EPA also had not offered any substantive explanation 
for continued use of the TCLP to measure performance of the treatment 
process for these constituents after the extreme disparities in actual 
performance in the field became known. Id. p. 18. Under these 
circumstances, the court held that it was arbitrary and capricious to 
continue to use the TCLP because it bore no rational relationship to 
what was actually occurring. Id. p. 19.
    None of these circumstances are present here. The TCLP has not been 
shown here to be underpredictive of performance of treatment technology 
for key hazardous constituents for any wastes, much less, as in 
Columbia Falls, to be drastically underpredictive (for two 
constituents) for 100 % of the wastes to which the test applied. 
Moreover, the wastes affected by the standard in today's rule will not 
uniformly be going to a single disposal environment where actual 
leaching of key constituents is shown to be higher than the regulatory 
level. Rather, the wastes will be decharacterized and so can be 
disposed in any landfill: municipal, subtitle D or subtitle C. Given 
the enormous diversity of characteristic wastes and the diversity of 
likely disposal environments, the TCLP will not pervasively 
underpredict as was the case with spent potliners. Unlike the situation 
in Columbia Falls, therefore, there is no argument that application of 
the TCLP to measure treatment performance will fail to minimize threats 
posed by these wastes' land disposal.1
---------------------------------------------------------------------------

    \1\Nor is there a legitimate argument that the TCLP is 
impermissibly overpredictive. Indeed, since the TCLP has already 
been upheld as a means of identifying many of these metal-containing 
wastes as hazardous, Edison Electric Inst. v. EPA, 2 F.3d 438, 444-
45 (D.C. Cir. 1993), and since the `minimize threat' requirement in 
section 3004(m) is a more stringent test, HWTC III, 886 F.2d at 363, 
a fortiorari it is reasonable to use the TCLP as part of the process 
of assuring that threats posed by land disposal of these wastes are 
minimized.
---------------------------------------------------------------------------

    EPA also emphasizes that the LDR treatment standards are 
technology-based, not risk-based. A key role of the TCLP in the 
treatment standard is to measure whether the best demonstrated 
treatment technology has been properly applied to the waste. Thus, 
unlike the situation when the test is used as a means of identifying 
whether or not wastes are hazardous, the TCLP is not principally 
serving a predictive function when it is used as a component of an LDR 
treatment standard. The test is normally a good measure of evaluating 
the performance of treatment technology both because it is a widely-
available test for metal mobility, and also because it is typically 
somewhat aggressive (Edison Electric, 2 F.3d at 445). Thus, it is a 
useful tool for measuring whether metal mobility has been substantially 
reduced in order that threats posed by land disposal be minimized (as 
required by section 3004 (m)). In the Agency's view, therefore, 
questions as to the validity of the TCLP as a component of LDR 
treatment standards are raised only under the extreme circumstances 
present in Columbia Falls, where, for all wastes and all disposal 
scenarios affected by the standard, large disparities between actual 
environmental field results and the treatment standard raise 
significant questions as to whether treatment is minimizing threats. 
These questions are not present for the metal-containing wastes here.

IV. Application of Land Disposal Restrictions to Characteristic 
Mineral Processing Wastes

Summary

    EPA is today finalizing its proposal to apply the Universal 
Treatment Standards (UTS), as revised in part today, to the newly 
identified characteristic mineral processing wastes. In earlier rules 
and a Report to Congress, EPA has determined which mineral processing 
wastes are not excluded in the Bevill Amendment and are thus considered 
``newly identified'' wastes subject to RCRA regulations. (See 54 FR 
36592, September 1, 1989; 55 FR 2322, January 23, 1990; and Report to 
Congress on Special Wastes from Mineral Processing, USEPA, July 31, 
1990.) The treatment standards being promulgated today are located in 
the table ``Treatment Standards for Hazardous Wastes'' at 268.40 in the 
regulatory language for today's rule. The wastes are identified by 
characteristic waste code (e.g. D002 corrosive waste, or D008 TC lead 
waste); there is no separate section in that table for characteristic 
mineral processing wastes.

A. Proposal, Comments, and Responses

    In the original Phase IV, EPA proposed to apply the metal UTS, as 
measured by the TCLP (60 FR 43582, August 22, 1995) to all TC metal 
wastes. On January 25, 1996, EPA further proposed to apply the existing 
UTS to the newly identified mineral processing wastes, i.e., mineral 
processing wastes that exhibit a characteristic and do not have Bevill 
status and are not excluded from being a solid wastes due to recycling. 
The Agency stated in this proposal that existing data showed that these 
``newly identified'' mineral processing wastes were similar to those 
wastes for which the UTS was achievable, and consequently the UTS 
fairly reflected the performance of Best Demonstrated Available 
Technology (BDAT) for these wastes. (See 61 FR 2338 for a complete 
discussion of the Agency's rationale for extending the UTS to both 
wastewater and nonwastewater forms of ``newly identified'' mineral 
processing wastes.)
    Many commenters in response to this proposal took issue with the 
Agency's conclusions that the existing data demonstrated that the UTS 
was achievable for the newly identified mineral processing wastes and 
stated that the record for the rulemaking reflected no such showing. 
The commenters further argued that to develop representative treatment 
standards for mineral processing wastes, the Agency must: (1) Collect 
and analyze a representative mineral processing waste characterization 
and treatability data set; (2) analyze that data using well-reasoned 
and documented methods for determining the treatability of the subject 
wastes; (3) make a determination as to whether the UTS or some other 
LDR treatment standards are appropriately applied to mineral processing 
wastes; and (4) provide notice and an opportunity to comment on that 
determination prior to imposing any LDR treatment standards on such 
wastes. Several other commenters took issue with the Agency's use of 
only HTMR data to develop the treatment standards.
    As a result of these comments and others received in response to 
the original Phase IV rule, the Agency decided to further assess the 
treatment of TC metal wastes and mineral processing wastes. As 
previously discussed in today's preamble, the Agency collected actual 
stabilization performance data during three site visits conducted in 
September 1997. In particular, treatment data were collected for the 
following primary mineral processing wastes: cadmium sponge residue, 
cupel and crucibles from fire assay laboratories, slag from fire assay 
laboratory, soil and debris contaminated with sulfuric acid, blast 
furnace slag, baghouse dust, lead/bromide residue, and gold ore leach 
tailings. In addition, treatment data from the following secondary 
mineral processing wastes

[[Page 28573]]

were also collected: lead slag waste, lead-bearing assay laboratory 
wastes, lead contaminated wastes, cupels, and debris; blast furnace 
slag, lead recycling by-products, lead contaminated soils, and lead 
battery recycling slag waste. Many of these wastes were particularly 
difficult to treat due to high total and leachable levels of metals, 
extreme Ph, and presence of multiple hazardous metal constituents.
    As previously discussed in an earlier section of today's preamble, 
the Agency assessed two data sets representing performance of 
stabilization and HTMR for the treatment of metal-containing waste 
streams. This assessment began with the calculation of treatment 
standards for each of the two data sets. Next, the Agency compared the 
treatment levels for stabilization versus HTMR. Based on this 
comparison, the Agency selected the highest level for each metal as the 
proposed UTS to allow for process variability and detection limit 
difficulties. As noted earlier, this approach is consistent with the 
legislative goal of providing substantial treatment through standards 
that are achievable by an array of well-performing available treatment 
technologies.
    On May 12, 1997, the Agency issued a Second Supplemental Proposal 
(62 FR 26041). In it, EPA proposed to change the numerical limits for 
all nonwastewater wastes containing the following metal constituents: 
antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, 
nickel, selenium, silver, thallium, vanadium, and zinc. EPA also 
proposed these same UTS treatment standards for TC metal wastes 
identified as hazardous due to the concentration of barium, cadmium, 
chromium, lead, selenium, or silver. Based on the data collection 
efforts, the methodology used to develop these revised standards, and 
the preponderance of mineral processing treatment data used to 
calculate the standards, the Agency was convinced that the 
transferability of the universal treatment standards to mineral 
processing wastes was well supported.
    In response to these revised treatment standards and their 
application to mineral processing wastes, the Agency received few 
comments. Several commenters supported the Agency's decision to apply 
the LDR treatment standards to mineral processing wastes. A limited 
few, however, continued to argue that EPA's application of the LDR 
program to mineral processing wastes was not supported by the record. 
The commenters' position is unsubstantiated, relying entirely upon 
assertions that the standards are not achievable. No data was submitted 
to support the commenters' position. Conversely, the data in hand (some 
of which reflect successful treatment of hard-to-treat mineral 
processing wastes) show that the treatment standards are achievable 
using either stabilization or HTMR for mineral processing wastes. As a 
result, the Agency is today finalizing the applicability of the 
existing UTS to the newly identified mineral processing wastes.
    The reader is referred to an earlier section of today's preamble 
for a complete discussion of treatment standards for metal wastes being 
promulgated today.

B. Clarification That Universal Treatment Standards Apply to Ignitable, 
Corrosive, and Reactive Characteristic Mineral Processing Wastes

    As discussed above, the treatment standards promulgated in this 
rule will apply to all the newly identified characteristic wastes from 
mineral processing operations. This includes not only the mineral 
processing wastes exhibiting the toxicity characteristic (TC), but also 
wastes that exhibit the characteristic of ignitability (D001); 
corrosivity (D002); or reactivity (D003). (See definitions of these 
characteristics at 40 CFR 261.20 through 261.23.) The treatment 
standards found in 40 CFR 268.40 require removal of the characteristic 
as well as meeting the treatment standards for all underlying hazardous 
constituents (UHCs) reasonably expected to be present at levels above 
the UTS. The Agency received no comment on this issue at proposal (see 
61 FR 2338, January 25, 1996). Therefore, the Agency has no reason to 
believe that the UTS are not achievable for mineral processing wastes 
also exhibiting the characteristic of ignitability, corrosivity and/or 
reactivity. As such, the Agency is today promulgating the application 
of UTS to D001, D002, and D003 mineral processing wastes.

C. Use of TCLP to Evaluate Performance of Treatment Technology for 
Treating Hazardous Metal Constituents in Mineral Processing Wastes

    Part of this rulemaking involves consideration of what the 
appropriate regulatory test is to determine if mineral processing 
wastes exhibit the toxicity characteristic. The Agency addresses this 
issue in detail later in this preamble when discussing retention of the 
TCLP for this purpose. Here, we confirm that the Agency will also 
continue to use the TCLP as part of the LDR treatment standard for 
these wastes. Although commenters did not raise this issue, the Agency 
feels that addressing it is appropriate in light of the D.C. Circuit's 
recent decision in Columbia Falls Aluminum Co. v. EPA (No. 96-1234, 
April 3, 1998).
    The critical component in making waste identification 
determinations (i.e., to determine whether a waste should be regulated) 
is ascertaining a plausible mismanagement scenario for the waste if 
unregulated, and finding a predictive model that can reasonably 
evaluate whether the waste is capable of posing substantial present or 
potential harm to human health and the environment under those 
conditions. Edison Electric Inst., 2 F. 3d at 444. This issue simply 
does not arise in the LDR context since the wastes subject to LDR are 
regulated hazardous wastes, and the issue of where and how they would 
have been managed absent Subtitle C regulation is irrelevant.
    In the LDR context, all land disposal (except that occurring in no-
migration units) is defined as being unprotective (see, e.g. RCRA 
section 3004(d)(1)), largely due to the ``long-term uncertainties 
associated with land disposal'' (id.). For this reason, treatment 
standards reflecting performance of Best Demonstrated Available 
Technology provide an objective means of removing as much of this 
inherent ``long-term uncertainty'' as possible, and so permissibly 
achieve the ultimate requirement of minimizing threats posed by land 
disposal of hazardous wastes. HWTC III, 886 F. 2d at 362-65; 55 FR at 
6642 (Feb. 26, 1990). The principal role of the TCLP in these treatment 
standards is assuring the performance levels achievable from use of 
these best treatment technologies, not predicting environmental fate in 
the disposal environment.
    As discussed earlier, the TCLP is historically accepted as being 
well-suited for evaluating performance of treatment technology for 
metals given its availability and general aggressiveness for mobilizing 
metals. Also, we note that since the TCLP serves a different purpose in 
the LDR treatment standards than it serves for identifying wastes as 
hazardous, and since it is well-suited for that purpose, there would be 
no contradiction in using it as part of the LDR standard even if a 
different test were to be used (presumably in the future) for waste 
identification.
    Nor does the Columbia Falls opinion undercut use of the TCLP as a 
component of treatment standards for mineral processing wastes. As 
noted earlier with respect to other toxic metal-containing wastes, EPA 
does not view Columbia Falls as requiring a change in

[[Page 28574]]

use of the TCLP as part of the LDR treatment standards. The TCLP has 
not been shown generally to be underpredictive of performance of 
treatment technology for key hazardous constituents for any wastes, 
much less, as in Columbia Falls, to be drastically underpredictive (for 
two constituents) for 100% of the wastes to which the test applied. For 
all mineral processing wastes to which it was applied, the TCLP test 
has not been shown to be underpredictive either, and so would be part 
of the mechanism for assuring that treatment minimizes threats posed by 
land disposal of these wastes. Moreover, it should be noted that 
mineral processing wastes can be and are treated commercially, and the 
treatment residues are then disposed along with other wastes in 
different types of disposal units. See, e.g. the document entitled, 
``Background Documents Supporting the Phase IV Final Rule: Metal 
Treatment Standards'' in the RCRA Docket (commercial treatment company 
treating mineral processing wastes along with other metal-containing 
wastes and disposing of commingled treatment residues). These units 
certainly can generate mildly acidic leachate. 51 FR at 40594 (Nov. 7, 
1986). Given these circumstances, the TCLP is an appropriate part of a 
standard which minimizes threats posed by land disposal of these 
wastes.

V. Other LDR Issues That May Affect Both Toxic Characteristic Metal 
Wastes and Characteristic Mineral Processing Wastes

A. Treatment Standards for Soil Contaminated With TC Metal Wastes or 
Characteristic Mineral Processing Wastes

1. Summary
    EPA has decided that the LDR treatment standards (i.e., UTS) for 
toxicity characteristic metals (D004-D011) and newly identified mineral 
processing wastes being promulgated in today's rulemaking will not 
apply to soils contaminated with these hazardous wastes. Instead, these 
contaminated soils will be subject to the treatment standards for soil 
originally proposed in a separate rulemaking entitled the Hazardous 
Waste Identification Rule for Contaminated Media (``HWIR-Media'') (61 
FR 11804, April 29, 1996). These treatment standards are being 
finalized in a separate section of today's rule. However, because of 
their impacts on TC metal and mineral processing wastes, a brief 
introductory discussion is warranted at this point.
2. Discussion of Today's Approach
    In the Phase IV proposed rule (60 FR 43682, August 22, 1995), the 
Agency did not specifically exempt soil contaminated with TC metal 
wastes from the newly proposed LDR standards; thus, the UTS standards 
for metals would have applied to TC metal soils. In the Phase IV First 
Supplemental Proposal (61 FR 2338, January 25, 1996), the Agency 
proposed applying existing universal treatment standards to newly 
identified mineral processing wastes, i.e., to mineral processing 
wastes that exhibit a characteristic, do not have Bevill status, and 
are not excluded from being solid wastes due to recycling. As a 
consequence, soils contaminated with these newly identified mineral 
processing wastes would also have been subject to UTS.
    In today's rule, the Agency is finalizing alternative treatment 
standards for contaminated soil reproposed in the HWIR-Media 
rulemaking. (See the section of this preamble on treatment standards 
for contaminated soil.) These treatment standards for hazardous 
contaminated soils are being finalized for all hazardous wastes, 
including TC metal and newly identified mineral processing wastes.

B. LDR Treatment Standards for Manufactured Gas Plant Waste (MGP)

1. Summary
    Today, the Agency is promulgating treatment standards for hazardous 
MGP wastes and soils, i.e., wastes and contaminated soils that resulted 
from processing coal to produce gas and that exhibit a characteristic 
of hazardous waste. Typically these operations were conducted at 
manufactured gas plants until the 1950s, and wastes remain at those 
closed MGP sites. MGP wastes are among the mineral processing wastes 
which the Agency determined in 1989 and 1990 to be subject to RCRA 
jurisdiction because they are not excluded from RCRA by the Bevill 
Amendment. See 54 FR 36592 (September 1, 1989). Hence, they are a 
subset of the newly identified mineral processing wastes covered by the 
prohibitions and treatment standards promulgated in this rule.
    On January 25, 1996, EPA proposed to apply LDR treatment standards 
to MGP wastes (61 FR 2360). MGP wastes are no longer being produced, 
since manufactured gas plants are no longer in operation. The Agency 
notes that the LDRs only apply at closed MGP sites that are excavated 
and managed in a way that constitutes placement in a land disposal unit 
(See 61 FR 18805, April 29, 1996.) The LDRs would require that actively 
managed MGP wastes be treated to eliminate any characteristics and to 
achieve the UTS for any underlying hazardous constituents prior to land 
disposal. Today's rule finalizes the UTS for MGP wastes that exhibit 
the toxicity characteristic. However, for soils contaminated with MGP 
wastes, EPA is today promulgating treatment standards specifically for 
hazardous soil. These soil standards, generally, require treatment to 
achieve 90 percent reduction of hazardous constituent levels, or 10 
times the UTS levels. See Section VII of this preamble.
    Today's rule does not alter the Agency's 1993 memorandum that 
interpreted existing rules to say that the ash that results from 
burning MGP remediation wastes along with coal in utility boilers 
remains covered by the Bevill amendment and hence is not regulated 
under Subtitle C rules. (See memorandum, dated April 26, 1993, entitled 
``Remediation of Historic Manufactured Gas Plant Sites'', from Sylvia 
K. Lowrance, Director of the Office of Solid Waste, to EPA Regional 
Waste Management Division Directors. The memorandum is located in the 
RCRA docket for the Phase IV Supplemental Proposal dated January 25, 
1996; 61 FR 2338.) Such residuals are considered to be covered by the 
Bevill amendment because they result primarily from the combustion of 
coal (assuming, if the MGP remediation wastes that are co-burned are 
hazardous, the residues are not significantly affected by burning the 
MGP wastes, within the meaning of 40 CFR section 266.112).
2. Background
    Manufactured gas plants were designed to generate gas from coal. 
The coal tar residuals generated from the process remain at these 
historic MGP sites. Many of these sites have soils contaminated with 
these coal tar residuals. The majority of these contaminated soils will 
come from the cleanup of historic MGP sites. A significant portion of 
the soil is nonhazardous, but approximately 15 percent of the soils 
fail the toxicity characteristic leaching procedure test for benzene. 
These toxicity characteristic (TC) soils also typically contain PAHs, 
heavy metals, inorganics, volatile aromatics, and phenolics. At certain 
closed MGP sites, there can be non-soil hazardous wastes, e.g., coal 
tars in tar holders, which may need to be treated to UTS levels if they 
are actively managed and land disposed.

[[Page 28575]]

3. Public Comments and EPA Responses
    Commenters expressed several major concerns about the Phase IV 
proposal to apply UTS to MGP wastes. First, they urged the Agency to 
delay implementing the soil standards until the final HWIR-media rule 
becomes effective. In addition, commenters requested that EPA re-affirm 
the Agency's 1993 co-burning memorandum for MGP wastes. Finally, 
commenters urged the Agency to establish specified treatment methods 
for those MGP wastes that will not be managed according to the Agency's 
1993 co-burning memorandum, rather than making the wastes subject to 
the UTS concentration levels as proposed. One commenter identified 
several methods of management that could be specified: ``recycling 
technologies including the use of coal tar residuals to manufacture 
asphalt, bricks, and cement; and combustion technologies that include 
utility boiler co-burning, incineration and thermal desorption.'' The 
commenter stated that specified methods would preserve flexibility for 
managing MGP site remediations and remove regulatory barriers to 
expeditious site cleanups.
    Regarding the commenter's concern about the coordination of Phase 
IV standards and the HWIR-media rule, the Agency is finalizing 
treatment standards for hazardous contaminated soils in a separate 
section of today's rule. Also, although the Agency did not reopen the 
issue, the Agency confirms that the 1993 co-burning interpretation 
remains in effect.
    The Agency has studied carefully the comment urging the Agency to 
specify incorporation of MGP waste into asphalt, bricks, or concrete as 
a designated method of treatment, which would have the effect of making 
wastes so treated not subject to meeting numerical treatment standards 
for hazardous constituents. The recycling of hazardous waste-
contaminated soil in asphalt, brick, or cement manufacturing produces 
products that potentially could be applied or placed on the land. These 
recycling practices incorporate the contaminated soils into the 
products, and, thus, are considered to be a ``use constituting 
disposal'' (see section 261.2 (c) (1)). The use constituting disposal 
practice (assuming legitimate recycling is occurring) is regulated per 
the provisions of 40 CFR sections 266.20 through 266.23. This issue is 
discussed in more detail in section VII of the preamble.
    At this time, the Agency does not have adequate information on 
asphalt, brick, or cement produced from MGP hazardous waste to 
determine whether these waste-derived products minimize threats posed 
by land disposal of MGP wastes. (See also response to USWAG comment 
#00035 in ``Phase IV Response to Comments'' in the docket to this 
rule.) Until the Agency can further study the issue, it is not 
designating production of these materials from MGP soils as a specified 
method of treatment. Existing 266.23 (a) continues to apply. And, as 
noted earlier, for MGP sites in particular, the Bevill exclusion still 
applies for MGP wastes co-burned in coal-fired utility boilers.
    EPA is aware that the regulated community has requested various 
types of flexibility from LDR treatment standards in managing their 
site-specific cleanup, remediation, and/or removal activities of these 
wastes and contaminated soils. With the possible exception of use 
consituting disposal scenarios, the Agency continues to believe that 
more complete relief for remediation wastes is needed, particularly 
with respect to the land disposal restrictions and is best provided by 
targeted statutory change. Thus, the Agency will continue to 
participate in discussion of potential legislative solutions on this 
important issue.
    Please refer to the Phase IV response to comments document that is 
available at the RCRA docket for responses to other issues raised by 
commenters.

C. Treatment Standards for Debris Contaminated With Phase IV wastes

    The Agency is clarifying that debris contaminated with TC metal or 
characteristic mineral processing wastes can be disposed if it meets 
the treatment standards established in this rule, but also can be 
disposed if it meets the standards for debris set out at 40 CFR 268.45.

D. Treatment Standards for Radioactive Mixed Waste

1. Background
    Radioactive mixed wastes are wastes which satisfy the definition of 
radioactive waste subject to the Atomic Energy Act (AEA) 10 CFR Part 61 
and also contain waste that is either listed as a hazardous waste in 
Subpart D of 40 CFR Part 261, or that exhibits any of the hazardous 
characteristics identified in Subpart C of 40 CFR Part 261. Since the 
hazardous portions of the mixed waste are subject to RCRA, the land 
disposal restrictions apply to the mixed waste. Today's rule 
promulgates revised treatment standards for radioactive wastes that are 
mixed with metal characteristic wastes and do not currently have a 
method of treatment (i.e. HLVIT) specified as BDAT.
    Treatment standards for radioactive waste mixed with metal-bearing 
waste were first promulgated in the Third Third rule at 55 FR 22626 
(June 1, 1990). That rule established a subcategory of mixed wastes for 
a specific high level wastestream at the Savannah River site, for which 
a specified method of treatment is currently required. This method is 
HLVIT (vitrification of high-level radioactive waste) for radioactive 
high-level wastes generated during the reprocessing of fuel rods mixed 
with characteristic metal wastes. This was done because of the human 
health hazards associated with sampling that would be required if 
numerical standards were applied. The Third Third rule stated that all 
the promulgated treatment standards in that rule for RCRA listed and 
characteristic wastes apply to the RCRA hazardous portion of mixed 
radioactive (high-level, TRU, and low-level) wastes, unless EPA has 
specifically established a separate treatability group for a specific 
category of mixed waste. Thus, that rule required that radioactive 
waste mixed with metal characteristic waste would have to comply with 
the LDR treatment standard for the metal characteristic waste, as well 
as any requirements set forth by the NRC for the radioactive component 
of the mixed waste.
    Because today's rule revises the treatment standards for metal 
characteristic wastes (i.e., revising certain metal numeric treatment 
standards, and applying UTS levels to underlying hazardous constituents 
in the characteristic waste), the treatment standards for radioactive 
waste mixed with metal characteristic waste that were not specifically 
subcategorized in the Third Third rule are also affected. Today's rule 
also revises treatment standards for twelve metal constituents in all 
wastes, including radioactive mixed wastes. In conclusion, unless 
specifically noted in Section 268, the treatment standards promulgated 
today apply to all mixed wastes.
2. Proposal and Issues Discussed by Comments
    In addition to revising metal characteristic treatment standards 
that apply to mixed waste, the Phase IV proposal also discussed mixed 
radioactive and characteristic metal wastes which have been previously 
stabilized to meet the LDR requirements, and are now being stored until 
disposal capacity becomes available. The rule proposed to allow this 
particular category of stabilized

[[Page 28576]]

characteristic metal mixed wastes to comply with the LDR metal 
standards that were in effect at the time the waste was stabilized. 
More simply, they would require no further treatment to comply with the 
newly promulgated TC metal standards. The proposal stated that mixed 
radioactive/characteristic metal wastes that are stabilized after the 
effective date of Phase IV would be subject to the metal treatment 
standards promulgated in the Phase IV rulemaking.
    The majority of commenters agreed with this approach. The Agency 
believes that requiring facilities to re-treat the wastes could pose 
significant threats to human health and the environment (worker 
exposure, environmental releases). Essentially, requiring these wastes 
to meet the newly promulgated treatment standards could necessitate 
treaters opening sealed drums of stabilized mixed waste, grinding the 
stabilized material, and re-treating to comply with the treatment 
standards for the few constituents for which EPA is lowering the 
standards. One commenter wanted the exemption to be broadened to 
include wastes that were treated by methods other than stabilization. 
Because the exposure concerns of re-treating the previously stabilized 
waste primarily center around the idea of first grinding up the 
stabilized material to retreat it and the potential added radiological 
exposures attendant thereto, the broadening of this exemption without 
more specific information is not warranted at this point. Of course, if 
any wastes already meet the applicable treatment standards, for example 
macroencapsulation, then there is no need to initiate further 
treatment. It is important to emphasize that the Agency does not want 
any more handling of this material than is necessary, and we will 
entertain site-specific treatment variances to ensure that the 
appropriate balance is struck to ensure minimization of threats.
    As noted, the majority of commenters agreed that hazards from added 
worker radiation exposure associated with re-treatment (i.e., opening 
drums, grinding already treated masses of mixed waste) would probably 
offset any gain in protection of human health and the environment 
resulting from compliance with the new metal treatment standards 
proposed in Phase IV. It was pointed out by one commenter that this is 
consistent with the Storage Prohibition (40 CFR 268.50(e) ), where 
wastes that have met the applicable treatment standards are excluded 
from the storage prohibition. In addition, one commenter stated that 
these wastes have been treated to meet the LDR standards in place at 
the time of treatment, and the only reason they have not already been 
land disposed is that capacity has not been available. The one 
commenter who disagreed with the proposal stated that neither 
retreatment nor an exemption from the new standards are reasonable 
options, but prefers retreatment. The commenter did not provide 
support, and the Agency is not persuaded that retreatment is 
environmentally preferable. Thus, the Agency is promulgating the 
exemption as proposed. In response to comments, EPA is also indicating 
that the same principle applies with regard to listed wastes stabilized 
to meet a previous treatment standard, which standard is affected by 
this rule because the metal UTS have changed. Again, retreating these 
wastes would likely create new threats, not minimize them.
    One DOE facility requested that the Agency clarify whether a waste 
required to be treated by a specific technology (i.e., HLVIT) would be 
required to be further treated for any UHCs present in the waste above 
UTS levels. The Agency is not imposing additional treatment 
requirements on those wastes for which a method of treatment (HLVIT) is 
specified.
    Four facilities are concerned that uranium mills tailings will not 
remain exempt under RCRA. These wastes are by-product materials from 
uranium mining (i.e., waste acids from solvent extractions, barren 
lixiviants, slimes from solvent extraction and waste solvents generated 
in the beneficiation process during the extraction of uranium ore) and, 
therefore, are excluded from the treatment standards being promulgated 
today for TC metal wastes. With respect to the radioactive mineral 
processing wastes, RCRA Section 1004 (27) as codified in 40 CFR 
261.4(a)(4) states that ``...source, special nuclear or by-product 
material as defined by the Atomic Energy Act of 1954 as amended, 42 
U.S.C. 2100 et seq...'' are not solid wastes. Therefore, such excluded 
materials are not subject to this rule. However, all other wastes not 
excluded under 40 CFR 261.4 are subject to today's rulemaking (assuming 
the waste is otherwise subject to today's rule).
    Therefore, the Agency is today finalizing as proposed numerical 
treatment standards for radioactive waste mixed with metal-bearing 
characteristic waste for which no method of treatment has been 
established as the treatment standard.

E. Underlying Hazardous Constituents in TC Metal Wastes and 
Characteristic Mineral Processing Wastes

    Summary: As with other characteristic wastes, TC metal wastes 
(D004--D011) and newly identified mineral processing wastes cannot be 
land disposed until the characteristic is removed and any underlying 
hazardous constituents (UHCs) are below universal treatment standards.
1. Background
    In 1993, EPA began requiring that, in addition to removing the 
characteristic in the characteristic wastes, treatment must ensure that 
UHCs are below their UTS levels. (58 FR 29860; see also 59 FR 47982. 
See also Chemical Waste Management v. EPA, 976 F. 2d at 13-14, 16-18 
(treatment standards may be lower than the level at which waste is 
identified as hazardous, and underlying hazardous constituents must be 
treated to minimize threats posed by land disposal)). UHCs are any 
constituents in 40 CFR 268.48 that are reasonably expected to be 
present at levels above the UTS at the point of generation of the 
characteristic waste. See 40 CFR 268.2(i). EPA's review of the 
treatment data on TC metal and mineral processing wastes shows that 
these wastes often contain underlying hazardous constituents, and that 
UTS are achievable for the UHCs.
2. Discussion of Today's Approach
    In the August 22, 1995 Phase IV proposed rule, EPA proposed to 
apply treatment standards to all TC metal wastes, and on January 25, 
1996, EPA further proposed the same for characteristic mineral 
processing wastes. See 60 FR 43654 and 61 FR 2338. Furthermore, EPA 
proposed that when the new treatment standards were promulgated, all of 
those newly identified wastes would have to be treated not only to meet 
the proposed treatment standards, but also to meet treatment standards 
for any UHCs reasonably expected to be present (at levels above UTS) in 
those wastes at the wastes' point of generation. See 60 FR 43654.
    One commenter disagreed with the Agency's proposal, stating that 
the TC metal wastes that also contain organic UHCs would have to be 
treated by combustion technologies to achieve the organic UTS levels. 
The Agency disagrees. The organic UTS levels were based on the 
performance of combustion as well as other removal and destruction 
technologies. These other removal and destruction technologies can be 
used to treat organic UHCs to UTS levels in TC

[[Page 28577]]

metal wastes. Thus, pretreatment of the waste can be used to achieve 
the organic UTS levels. In addition, the commenter believed there would 
be difficulties in stabilizing incinerator ash to meet the finalized 
UTS levels for the metals. The Agency does not agree. In determining 
the UTS numbers for each metal, the wastes with the most difficult to 
treat metal constituents were treated by HTMR and stabilization 
technologies. The higher value between the two technologies was 
selected as the treatment standard. Thus, treatment using either HTMR 
or stabilization is expected to achieve the final metal UTS levels. It 
should be noted that selenium is not being regarded as a UHC since its 
treatment standard is above its characteristic level. Thus, a selenium 
characteristic waste will always be hazardous unless the selenium 
concentration is below the characteristic level of 1 mg/L TCLP. 
Fluoride, vanadium, and zinc are other metals not considered UHCs in 
characteristic wastes because these three metals are not on the 
Hazardous Constituents Table, 40 CFR 261 Appendix VIII (i.e., they are 
not ``hazardous constituents''). (See Background Document for Phase IV 
Second Supplemental Proposed Rule.)

VI. Issues Relating to Newly-Identified Mineral Processing Wastes

    As explained above, EPA considers mineral processing hazardous 
wastes to be newly identified or listed for purposes of determining 
when LDR prohibitions apply, since their status as hazardous wastes was 
not established until after 1984. Today's rule establishes prohibitions 
and treatment standards for these wastes, pursuant to RCRA section 
3004(g)(4).
    However, there are a series of important threshold issues in 
determining what these prohibitions and treatment standards apply to, 
generally involving the issues of whether primary mineral processing 
secondary materials are solid and hazardous wastes. There are three 
main issues. A fundamental first issue is whether, if a mineral 
processing secondary material (which would otherwise be a hazardous 
waste) is recycled within the mineral processing industry sector, it is 
a solid waste. Of particular importance in assessing applicability of 
the LDR program, is a second issue: whether there is land placement of 
the mineral processing secondary material before recycling, or during 
the recycling process. If the material is a waste, a third issue is 
relevant: is the waste a beneficiation/extraction waste or one of 20 
mineral processing wastes that are excluded from subtitle C regulation 
under the Bevill exclusion (see RCRA 3001 (b)(3)(A)(ii)).
    In this rulemaking, EPA also is addressing certain sub-issues that 
are related to determining whether a particular mining waste is subject 
to the Bevill exclusion, including whether a waste is ``uniquely 
associated'' with mining, how the introduction of non-exempt, mineral 
processing feedstocks into a Bevill process may affect the Bevill 
status of the waste generated from the process, and how the mixture of 
Bevill wastes with other hazardous wastes affects the Bevill status of 
the resulting wastes when disposed.
    As stated in the January 1996 proposal, EPA is not reopening in any 
respect the Bevill determinations previously made by the Agency, 
including the Agency's articulation in 1989 of the functional 
distinctions between beneficiation and mineral processing. See 61 Fed. 
Reg. 2354. Some commenters misinterpreted EPA's statements in the 
proposal generally describing the beneficiation/processing distinction 
as somehow reinterpreting the scope of the Bevill amendment. That 
discussion was intended, however, merely to restate principles 
articulated by EPA in 1989 (see 54 Fed. Reg. 36619), not to reopen in 
any way the distinctions as articulated previously by the Agency. 
Whether a particular waste is from beneficiation or mineral processing 
will continue to be determined based on 40 CFR 261.4(b)(7) and criteria 
articulated by EPA in the 1989 preamble.
    The following sections of the preamble discuss these threshold 
issues.

A. Introduction

    In July of 1988, the U.S. Court of Appeals, for the D.C. Circuit in 
Environmental Defense Fund v. EPA (EDF II), 852 F.2d 1316 (D.C. Cir. 
1988), cert. denied, 489 U.S. 1011(1989), ordered EPA to restrict the 
scope of the Bevill mining waste exclusion, as it applied to mineral 
processing wastes, to include only ``large volume, low hazard'' wastes. 
In response, the Agency promulgated several rules that delineated the 
scope of the Bevill exemption for extraction/beneficiation and mineral 
processing wastes. In these rulemakings, the Agency applied high-
volume/low toxicity criteria for determining whether a particular waste 
was subject to the Bevill exemption. The Agency also described the 
general characteristics that would distinguish extraction/beneficiation 
wastes from mineral processing wastes. The rules also evaluated which 
specific mineral processing wastes were in conformance with these high 
volume/low toxicity criteria and thus were eligible for the exclusion 
provided by RCRA 3001(b)(3)(A)(ii) (the ``Bevill exclusion'').
    These rules were promulgated on September 1, 1989 (54 FR 36592) and 
on January 23, 1990 (55 FR 2322). EPA was required to prepare a Report 
to Congress which further studied mineral processing wastes identified 
in the 1990 rule to determine their regulatory status under the Bevill 
exclusion. This report was issued on July 31, 1990 (Report to Congress 
on Wastes from Mineral Processing). EPA fully considered information 
from, and comments on, the Report to Congress in a regulatory 
determination published on June 13, 1991(56 FR 27300). The list of 
Bevill exempt activities and wastes is set out at 40 CFR 261.4(b)(7).
    Many mineral processing wastes that EPA determined did not fall 
within the Bevill exclusion as a result of the 1991 rule appear to 
exhibit the toxicity characteristic due to metal content (D004-D011), 
and also exhibit corrosivity (D002), and/or reactivity (D003). For 
purposes of LDR applicability, these wastes are ``newly identified'' 
because they were brought into the RCRA Subtitle C system after the 
date of enactment of the Hazardous and Solid Waste Act Amendments on 
November 8, 1984. (See 55 FR at 22667 (June 1, 1990). Hence, their land 
disposal has not been prohibited until today's rule.
    The Agency is currently required by a court approved consent decree 
(EDF v. Browner, No. 89-0598 (D.D.C.)) to promulgate LDR restrictions 
for characteristic and listed mineral processing wastes, and metal 
wastes hazardous under the revised toxicity characteristic, by April 
15, 1998. On April 14, 1998, EPA filed an unopposed motion requesting 
the Court to extend the deadline to April 30, 1998 to establish Land 
Disposal Restrictions for newly identified mineral processing wastes by 
April, 1998. The legal obligation to establish prohibitions on land 
disposal and treatment standards for newly identified mineral 
processing wastes is established by statute. RCRA section 3004(g)(4).

B. Overview of Today's Rule

1. Issues Related to Which Mineral Processing Secondary Materials are 
Subject to LDRs
    As noted above, a threshold question when considering whether 
wastes are prohibited from land disposal is whether the mineral 
processing secondary materials are ``solid wastes''

[[Page 28578]]

under RCRA. The issue is of importance with respect to land disposal 
prohibitions for the mineral processing industry because this industry 
recycles mineral processing secondary materials that exhibit hazardous 
waste characteristics, and sometimes uses land-based units--piles and 
impoundments--to store these materials before recycling. Thus, there is 
an issue as to whether such materials are solid wastes subject to the 
land disposal prohibition (as well as to the rest of Subtitle C). The 
Agency issued two proposals (61 FR 2338, January 25, 1996, and 62 FR 
26041, May 12, 1997) which discussed potential RCRA jurisdiction over 
secondary materials from mineral processing that are reclaimed within 
the industry sector and sought comment on a proposed conditional 
exclusion from the definition of solid waste.
    We now further summarize how today's rule deals with issues raised 
by whether and when mineral processing secondary materials, when placed 
in land-based storage units, are subject to the LDR standards and other 
Subtitle C controls. The rationale for the Agency's decisions are 
described below.
    To be a hazardous waste, a material must first be a solid waste. 
RCRA section 1004 (5). To be a ``solid waste'' a material must in some 
sense be ``discarded.'' RCRA section 1004 (27). A material is not 
``discarded'' if it is ``destined for immediate reuse in another phase 
of the industry's ongoing production process and [has] not yet become 
part of the waste disposal problem.'' American Mining Congress v. EPA, 
907 F. 2d 1179, 1186 (D.C. Cir. 1990).
    This rule amends the current RCRA rules (existing 40 CFR 
261.2(c)(3)) defining which ``secondary materials''--sludges, by-
products and spent materials--being generated by and reclaimed by 
mineral processing or beneficiation facilities are solid wastes. The 
rule does so by creating a conditional exclusion to the regulatory 
definition of solid waste, so that:
    (a) Mineral processing secondary materials may not be stored on the 
land before they are reclaimed. The rule provides a partial exception 
to this principle: if the pile is placed on a pad which has been 
approved as protective by an EPA Region or a State with an authorized 
program, the pile would not be considered to be storing solid or 
hazardous waste, and so would be outside RCRA jurisdiction. Thus, if 
storage is used prior to reentry into a mineral processing reclamation 
process, to be excluded, all mineral processing secondary materials 
must be placed in tanks, containers, buildings, or approved piles 
resting on pads;
    (b) Mineral processing secondary materials must be legitimately 
recycled to recover metal, acid, cyanide, water, or other values:
    (c) Mineral processing secondary materials cannot be accumulated 
speculatively; and
    (d) Facilities utilizing this conditional exclusion must submit a 
one-time notification of their recycling activities to EPA or the 
authorized State describing: the materials being recycled and the 
processes into which they are recycled; where storage units are located 
and their design. Facilities must update the notification if their 
recycling activities change.
    EPA is thus essentially disclaiming authority over mineral 
processing secondary materials that are reclaimed within the mineral 
processing or mining/beneficiation industry sector, so long as there is 
no land-based storage preceding reclamation. Further, potential 
jurisdiction affects only storage. EPA is not asserting authority over 
any mineral processing production unit, even if the unit is land-based.
2. Issues Related to Whether Materials are Within the Scope of the 
Bevill Exclusion
    a. Use of Non-Bevill Materials as Feedstocks to Operations Whose 
Waste is Bevill Exempt. Today's rule also allows secondary materials 
from mineral processing to be co-processed with normal raw materials in 
beneficiation operations which generate Bevill exempt wastes, without 
changing the exempt status of the resulting Bevill waste, provided that 
legitimate recovery of the mineral processing secondary material is 
occurring, and provided that primary ores and minerals account for at 
least 50 percent of the feedstock. The Agency voiced concern at 
proposal that the addition of mineral processing secondary materials 
into a Bevill exempt extraction/beneficiation process could have the 
potential to increase the risk of the resulting wastes. The Agency 
proposed adding a condition--the use of a significantly affected test 
(similar to the existing test used in the Burning in Industrial 
Furnaces (BIF) Rule (see 40 CFR 266.112))--as a means of assuring that 
resultant Bevill wastes were not adversely impacted by co-processing. 
EPA also considered simply limiting eligibility for Bevill status to 
situations where Bevill raw materials comprised the sole feedstock to 
the process.
    After considering public comments, the Agency has decided to adopt 
the general approach proposed in January 1996, with one change. The 
Agency now does not believe that the use of the ``significantly 
affected'' test would appreciably reduce risks posed by the resulting 
wastes, and the Agency is concerned that it would severely disrupt 
legitimate recycling practices within beneficiation and mineral 
processing industries. Even in situations where a constituent may 
increase due to recycling, the increase may not be environmentally 
significant, may be balanced by the lowering of other constituents, or 
may be off-set by having to dispose of the material and utilize 
additional raw material feedstocks.
    b. Uniquely Associated. The Bevill exclusion for the primary metal 
sector is limited to extraction/beneficiation wastes and 20 mineral 
processing wastes. Under Section 3001(b)(3)(A)(ii) of RCRA, the Bevill 
exclusion is available for ``solid waste from the extraction, 
beneficiation and processing of ores and minerals.'' Under the Agency's 
longstanding interpretation, a waste must be ``uniquely associated'' 
with mining and processing of ores and minerals to be subject to the 
Bevill exclusion. The Agency currently uses a qualitative approach (see 
45 FR 76619 and 54 FR 36623) to determine if a waste is uniquely 
associated. Because of public interest in how the Agency makes these 
determinations, the Agency sought comment on alternative approaches for 
making ``uniquely associated'' determinations.
    The Agency is retaining and clarifying in this rule its use of its 
qualitative approach. The Agency recognizes that determining whether a 
particular waste is uniquely associated with extraction, beneficiation, 
and processing involves an evaluation of the specific facts of each 
case. While the Agency discussed, in the May 1997 proposal, several 
options that would establish a bright line for making this 
determination, the Agency is concerned that any of these tests could 
potentially be either over- or under-inclusive of the wastes that, in 
EPA's view, are best viewed as uniquely associated.
    In the Agency's view the following qualitative criteria should be 
used to make such determinations on a case-by-case basis:
    (1) Any waste from ancillary operations are not ``uniquely 
associated'' because they are not properly viewed as being ``from'' 
mining or mineral processing.
    (2) In evaluating wastes from non-ancillary operations, one must 
consider the extent to which the waste originates or derives from 
processes that serve to remove mineral values from the ground, 
concentrate or otherwise enhance their characteristics to remove 
impurities,

[[Page 28579]]

and the extent to which the mineral recovery process imparts its 
chemical characteristics to the waste.
    c. Bevill Mixtures. EPA first addressed mixing of hazardous wastes 
with Bevill wastes in 1989 (see 54 FR 36622-23). That rule provided 
that mixtures of Bevill wastes and listed wastes would be considered a 
hazardous waste unless and until the mixture was delisted. A mixture of 
Bevill waste and non-excluded characteristic hazardous waste, however, 
would be considered hazardous if it exhibited a characteristic of the 
non-excluded waste, but not if it exhibited a characteristic imparted 
to it by the Bevill waste. As explained in the proposal, this Bevill 
mixture rule was remanded to the Agency in Solite Corp v. EPA, 952 F.2d 
472, 493-94 (D.C. Cir. 1991), and an emergency reinstatement of that 
rule was vacated on procedural grounds in Mobil Oil v. EPA, 35 F.3d 579 
(D.C. Cir. 1994). Today EPA is reinstating the 1989 Bevill mixture 
rule. Under this 1989 rule, a mixture of a Bevill-exempt waste and a 
characteristic hazardous waste (or a waste listed solely because it 
exhibits a hazardous characteristic) is a hazardous waste if it 
continues to exhibit the characteristic of the non-excluded waste. 
Mixtures of Bevill wastes and other listed wastes are hazardous wastes 
unless and until delisted. In addition, the act of mixing Bevill and 
and non-Bevill wastes is subject to all normal Subtitle C consequences 
(i.e., requires a permit if it constitutes treatment, storage of 
disposal of hazardous wastes). EPA is adopting this approach because it 
preserves the Bevill exclusion for mixtures that are characteristically 
hazardous due to Bevill wastes, but nonetheless ensures that the Bevill 
Amendment is not used to allow Bevill wastes to shield/immunize non-
Bevill hazardous wastes from regulatory controls that would otherwise 
apply to those wastes.
    d. Response to Court Remands Dealing with Other Issues Relating to 
Mineral Processing and to Scope of Bevill Exclusion. (i) Toxicity 
Characteristic Leaching Procedure (TCLP) The applicability of the TCLP 
test to mineral processing wastes was challenged in Edison Electric 
Institute v. EPA, 2 F.3d 438 (D.C. Cir. 1993). In that case the Court 
held that the Agency must provide at least some factual support that 
the mismanagement scenario assumed in developing the TCLP is plausible 
when applied to mineral processing wastes or, alternatively, that 
mining wastes are exposed to conditions similar to those simulated by 
the TCLP, namely ``contact with some form of acidic leaching media''. 2 
F. 3d at 447. EPA prepared a technical background document in support 
of the January, 1996 proposal, which presented data on this issue. This 
report concluded that mineral processing wastes had in the past been 
co-disposed with municipal wastes, and due to the location of mineral 
processing plants near large urban areas, it was plausible that these 
wastes could be mismanaged with municipal wastes. EPA also solicited 
information from the public that would help the Agency evaluate 
industry comments that the Synthetic Precipitation Leaching Procedure 
(SPLP) would provide a more accurate measure of how mineral processing 
wastes behave in the environment. EPA received extremely limited data 
from the public on this issue.
    EPA has concluded, based on the information available to the Agency 
and review of public comments, that co-disposal of mineral processing 
wastes with municipal wastes is a plausible mismanagement scenario and 
that, therefore, application of the TCLP to these wastes continues to 
be appropriate. Moreover, comments from industry during the rulemaking 
stated that certain facilities co-manage mineral processing wastes with 
extraction and beneficiation wastes. Given the well-documented, acidic 
nature of some extraction and beneficiation wastes, mineral processing 
wastes disposed of in this manner may be subject to the kinds of low pH 
conditions that are reflected in the TCLP. For this additional reason, 
EPA finds that, under the plausible mismanagement standard articulated 
in Edison Electric, application of the TCLP to mineral processing 
wastes is appropriate in light of the information at the Agency's 
disposal. While the Agency has received comments seeking to compare the 
TCLP and the SPLP, the Agency has concluded, for reasons discussed 
later in this preamble, that this information is not sufficient to 
support adopting the SPLP as the appropriate test for mineral 
processing wastes at this time.
    The Agency recognizes that the methodology underlying the TCLP may 
not reflect the variety of conditions under which some types of mineral 
processing wastes are disposed. As a result, the Agency will undertake, 
and within three to five years, conclude a review of the 
appropriateness of using the TCLP and other leaching protocols in this 
and other contexts.
    (ii) Listed Hazardous Wastes. In American Mining Congress v. EPA, 
907 F.2d 1179 (D.C. Cir. 1990), the Court found that the Agency's 
record regarding the listings of five waste streams (K064, K065, K066, 
K090, K091) did not adequately address certain issues raised in 
comments. EPA indicated its intent not to list these five waste streams 
in the January, 1996 proposal and placed a technical background 
document in the docket enumerating the reasons for those decisions. 
Many of these wastes are either no longer generated, or managed in a 
fashion not warranting listing. EPA did not receive any comments 
challenging those proposed decisions. Therefore, in this rule, EPA is 
not listing these five smelting wastes as hazardous wastes. Instead, 
EPA will rely on the RCRA hazardous waste characteristics to identify 
those portions of the wastes requiring management as hazardous wastes.
    (iii) Titanium Tetrachloride. In 1989, EPA determined that wastes 
from the production of titanium tetrachloride were mineral processing 
wastes. DuPont challenged this decision, and the Court remanded EPA's 
decision for further consideration on grounds that the Agency's 
decision was unclear (see Solite Corporation v. EPA, 952 F.2d at 494-95 
(D.C. Cir. 1991)). EPA reevaluated data on wastes from the production 
of titanium tetrachloride, and placed results of this reevaluation in 
the docket in support of the January 1996 proposal. EPA also has met 
with representatives of DuPont to discuss their process further. Based 
on the Agency's reevaluation of this issue, EPA, in this rule, 
concludes that iron chloride waste acid generated from the chloride-
ilmenite process of titanium tetrachloride production should be 
classified as a mineral processing waste. The Agency has reached this 
decision because this process significantly affects the physical/
chemical structure of the raw feedstock through chlorination and this 
reaction creates new chemicals (iron chloride and titanium 
tetrachloride gases). This meets the definition of mineral processing 
rather than beneficiation.
    (iv) Air Pollution Control Dust and Sludges Generated From 
Lightweight Aggregate Production. Finally, since 1995, the Agency has 
conducted reviews of air pollution control dust and sludges generated 
from lightweight aggregate production, and has met with representatives 
of this industry sector. The Agency also has issued a Report to 
Congress and a regulatory determination on Cement Kiln Dust (CKD) (59 
FR at 709, January 6, 1994 and 60 FR at 7366, February 7, 1995). EPA 
has found that some aggregate kilns and cement kilns use hazardous 
waste fuels to fire their units. Both types of facilities generate 
dusts which may be either reintroduced

[[Page 28580]]

into the kiln or blended into the final product. While these dusts 
rarely exhibit any of the RCRA hazardous waste characteristics, the 
resultant product could be classified as hazardous waste due to the 
``derived from'' rule if listed hazardous wastes are combusted. The 
Agency is seeking a way to encourage the legitimate and environmentally 
sound reuse of dusts, from both cement and lightweight aggregate 
manufacture. In an effort to develop a consistent regulatory approach, 
EPA, therefore, has decided to defer any decision on the Bevill status 
of air pollution control dust and sludges generated from lightweight 
aggregate production until evaluation of issues related to CKD and 
lightweight aggregate dust handling, use, and disposal can be 
completed.
    e. Reexamination of Bevill Exempt Wastes. The May 12 proposal 
sought general comment on whether a reexamination of some Bevill waste 
is warranted given that additional risk assessment techniques and 
additional information are available since making the 1986 Bevill 
regulatory determination (51 FR at 24496, July 3, 1986) on mining and 
the 1991 Bevill regulatory determination on mineral processing (56 FR 
27300, June 13, 1991). EPA presented information from Superfund sites 
and other sources which indicate that some Bevill wastes continue to 
cause environmental damage (see environmental damage and risk technical 
background documents placed in the January 1996, and April, 1997 
dockets). The Agency also posed the question of whether some waste 
streams require additional study or regulatory controls. Today's rule 
is not making any changes to the status of Bevill exempt extraction and 
beneficiation wastes or the 20 exempt mineral processing wastes.

C. Analysis of and Response to Public Comments

1. Jurisdiction
    a. EPA Authority to Regulate Mineral Processing Secondary Materials 
Reclaimed Within the Industry. Many industry commenters maintained that 
EPA lacks jurisdiction over mineral processing secondary materials 
reclaimed within the industry because such materials cannot be ``solid 
wastes.'' The argument is straight-forward: a solid waste regulated 
under RCRA must be a ``discarded material,'' RCRA section 1004 (27), 
and these materials are not discarded. The comments suggest that, under 
the case law, (in particular American Mining Congress v. EPA, 824 F. 2d 
1177 (D.C. Cir. 1987) (``AMC I'')), these materials are part of an on-
going production process within the generating industry, and so cannot 
be ``discarded.''
    EPA disagrees that there is an absolute jurisdictional barrier to 
regulating any management of mineral processing secondary materials 
which are reclaimed within the industry. Although the AMC I court found 
that, in some respects EPA's 1985 rules exceeded the statutory grant of 
authority, subsequent judicial opinions have sharply limited the scope 
of AMC I. The only absolute bar on the Agency's authority to define 
recycled mineral processing secondary materials as solid wastes is for 
``materials that are `destined for immediate reuse in another phase of 
the industry's ongoing production process' and that `have not yet 
become part of the waste disposal problem.''' American Mining Congress 
v. EPA, 907 F. 2d 1179, 1186 (D.C. Cir. 1990) (``AMC II'') quoting AMC 
I, 824 F. 2d at 1186.2) The case law likewise makes clear 
that ``discarded'' is an ambiguous term, within EPA's discretion to 
interpret, consistent with RCRA's overall goals and purposes. AMC II, 
907 F.2d at 1179; American Petroleum Inst. v. EPA, 906 F.2d 726, 
741(D.C. Cir. 1990).
---------------------------------------------------------------------------

    \2\The other cases which have similarly stressed this narrow 
reading of AMC I are American Petroleum Inst. v. EPA, 906 F. 2d 726, 
741 (D.C. Cir. 1990); Shell Oil v. EPA, 950 F. 2d 741, 755-56 (D.C. 
Cir. 1991); Chemical Waste Management v. EPA, 976 F. 2d 2, 14 (D.C. 
Cir. 1992); United States v. Ilco, Inc., 996 F. 2d 1126, 1131 (5th 
Cir. 1993); and Owen Electric Steel Co. v. Browner. 37 F. 3d 146, 
149-50 (4th Cir. 1994).
---------------------------------------------------------------------------

    Applying this test, today's rule states that any mineral processing 
secondary materials which are being reclaimed immediately within the 
mineral processing industry (or within beneficiation) are not a solid 
waste. However, as explained below, EPA does not view mineral 
processing secondary materials which have been removed from a 
production process for storage as being ``immediately reused,'' and so 
such materials are not automatically excluded from jurisdiction. EPA 
reiterates that there is a jurisdictional bar against regulating the 
actual production process (see Steel Manufacturers Association v. EPA, 
27 F.3d 642, 647 (D.C. Cir. 1994); EPA also interprets the holding of 
AMC I to mandate this result), so today's rule does not assert 
authority over mineral processing production units. However, if 
production units are also used to dispose of hazardous wastes, those 
units are subject to RCRA Subtitle C.
    With respect to mineral processing secondary materials which are 
stored before being reclaimed at mineral processing or beneficiation 
facilities--i.e. that are not being immediately reused--the Agency has 
established a conditional exclusion from the definition of solid waste, 
the conditions being designed to assure that management of these 
materials are not ``part of the waste disposal problem.'' The main 
condition is that mineral processing secondary materials not be stored 
on the land (except for storage on approved pads) and not be stored in 
disposal units.
    In considering the question of scope of jurisdiction, it is useful 
to remember that this rule applies to a continuum of potential recovery 
practices. At the one end of the continuum, where EPA's authority is 
most certain, would be the situation where mineral processing company A 
sends its secondary materials to unrelated mineral processing company B 
processing a different metal than company A. The case law indicates 
that EPA retains discretion to classify the material as a solid waste. 
API, 906 F.2d at 741 (transfer of steel industry dust to a metal 
reclaimer processing exclusively steel industry secondary materials can 
involve a RCRA solid waste). It should be remembered that EPA views 
``mineral processing'' broadly in this rule to include all primary 
mineral processing sectors (see, e.g., the Agency's 1996 Identification 
and Description of Mineral Processing Sectors and Waste Streams). This 
document identified 41 different sectors involved in primary mineral 
processing. Primary mineral processing involves changing the physical 
and chemical structure of ores and minerals. For example, mineral 
processing includes the production of steel and the production of gold. 
These sectors generate very different types of wastes and recycle them 
under different conditions. Thus, the API principle of no absolute 
jurisdictional bar applies.
    Points further in on the continuum would be if companies A and B 
process the same metal but are unrelated companies (also potentially 
within the API framework), and where companies A and B are under common 
ownership but not at the same site. The point on the continuum closest 
to on-going production is where secondary materials are reclaimed at 
the generating site, but where the process is non-continuous due to 
storage of materials. Immediate recovery on-site without storage would 
then mark the other end of the continuum, and would illustrate when 
materials are immediately reused within a continuous process, and so

[[Page 28581]]

absolutely outside Subtitle C jurisdiction.3
---------------------------------------------------------------------------

    \3\ The Agency indicated in its January 1996 proposal that some 
lower value mineral processing secondary materials are from 
ancillary production operations and that those materials were often 
placed in land-based storage units. 61 FR at 2340. Industry comments 
challenged this discussion as over broad and misplaced. Upon review, 
the Agency acknowledges that mineral processing facilities generate 
a wide range of secondary materials, which also have a wide range of 
values to the facility owner.
---------------------------------------------------------------------------

    EPA believes that it has discretion to consider whether any of 
these situations short of immediate reuse involve solid wastes, this 
discretion being limited by the second part of the Court's articulated 
test: is the non-continuous management of the mineral processing 
secondary materials part of the waste disposal problem. Thus, EPA in 
today's rule has focused on the storage of these materials. The leading 
authority for this approach is AMC II, where the Court found that 
secondary materials generated and reclaimed on-site could be classified 
as solid wastes because they were stored in surface impoundments. 907 
F. 2d at 1186. The case involved a single plant which stored its 
secondary materials --sludges--in an impoundment before reclaiming all 
of the accumulated sludges in its own smelting process. 50 FR at 40292, 
40296 (October 1985). Several comenters argued that AMC II involved 
only specutlative accumulation. This is not the case. The wastes 
generated in the impoundment were actually recycled 100 percent, not 
stored with expectation of recycling. 50 FR at 40292, 40296; Brief of 
Petitioner Amercian Mining Congress in AMC II (filed March 30, 1990) 
pp. 18, 29. The Court nonetheless held that the sludges were discarded, 
stressing the special sensitivity in RCRA to land-based units such as 
surface impoundments, and explaining how storage of secondary materials 
in such units can be part of the waste disposal problem (907 F. 2d at 
1186-87). Thus, EPA believes that mineral processing secondary 
materials stored on the land are discarded.
    Land-based storage of mineral processing sludges, spent materials, 
and by-products can be viewed by EPA as being part of the waste 
disposal problem. There is no dispute that a considerable amount of 
mineral processing secondary materials contain hazardous constituents 
that can threaten human health and the environment (see U.S. EPA, 
Office of Solid Waste, Human Health and Environmental Damages from 
Mining and Mineral Processing Wastes, 1995, and Damage Cases and 
Environmental Releases, 1997). Land-based units, and impoundments in 
particular, have certain inherent indicia of discard due to their 
inability to prevent releases of contained materials. RCRA section 
1002(b)(7); AMC II, 907 F.2d at 1187; 53 FR at 521, 525 (Jan. 8, 1988). 
Surface impoundments pose essentially inherent risks of groundwater 
contamination due to the hydraulic pressure created by the contained 
liquids. Chemical Waste Management v. EPA, 919 F. 2d 158, 166 (D.C. 
Cir. 1992). There are many damage incidents which involve storage of 
mineral processing wastes in piles and surface impoundments, some of 
which involve mineral processing secondary materials stored in land-
based units before eventual reclamation. These damage incidents confirm 
that this potential harm is not hypothetical.
    It should be noted that there is Agency precedent for the 
limitation on land based storage as part of within-industry recycling 
practices. The Agency established the principle of encouraging 
recycling without allowing land-based storage at 40 CFR 261.4(a)(10). 
Any wastes from coke by-product production are not solid wastes if 
recycled to coke ovens conditioned on there being no land disposal from 
the point of generation to the point of recycling. The Agency also has 
promulgated a rule where recovered oil generated by any facet of 
petroleum exploration, production, and retailing is not a solid waste 
conditioned on no management of these materials in land-based units 
(see 59 FR 58936, July 28, 1994). The Agency has also proposed to 
extend this principle to a wider range of oil-bearing secondary 
materials (see 60 FR 57747, 57753, November 20, 1995). The condition 
likewise appears in current rules at 40 CFR 261.2(e)(iii) where it 
qualifies the exclusion for materials returned for reclamation in the 
process from which they are generated. The application of a no land 
placement condition in today's rule is, therefore, building on an 
established policy of encouraging recycling conditioned on no land 
placement.
    Putting this together, the Agency reads the statute as creating an 
absolute jurisdictional bar in two situations: where mineral processing 
or beneficiation is occurring, and where reclamation is continuous in 
the sense that there is no interdiction in time--i.e. materials moving 
from one step of a recovery process to another without a break in the 
process, as for storage. As one moves back along the continuum, EPA has 
discretion to interpret whether secondary materials may be considered 
discarded. The Agency is exercising that discretion here by putting its 
focus on whether the reclamation, or more precisely, the storage which 
precedes reclamation, is part of the waste disposal problem because it 
involves storage which can be and has been part of that problem.
    b. Are There Limits on Jurisdiction? (Response to Public Interest 
Group Position). In contrast, representatives of public interest groups 
argued that the Agency's authority was essentially unlimited. They 
believe that the authority should be extended, at a minimum, to all 
land-based units because such units are a type of disposal unit. With 
respect to mineral processing secondary materials that are managed in 
tanks, containers, or buildings (i.e. in other than land-based units), 
EPA sees no principle that compels the materials to be designated as 
solid wastes. As explained above, case law indicates that EPA has 
discretion to interpret which materials are ``discarded'' consistent 
with the overall statutory objective, API, 906 F.2d at 742. These 
objectives include not only assuring safe management of hazardous 
wastes, but also ``encouraging . . . materials recovery, [and] properly 
conducted recycling and reuse . . . .'' RCRA section 1003(a)(6). EPA's 
construction in today's rule, which rests largely on the distinction 
between land-based storage and more environmentally protective storage 
of secondary materials, is consistent with this object by encouraging 
``properly conducted recycling. . . .'' In addition, EPA reads the case 
law as allowing the Agency to make reasonable distinctions among 
secondary material handling practices in determining when a particular 
recycling practice may be considered to be ``part of the waste disposal 
problem.'' Finally, as EPA explained at proposal, there are potential 
jurisdictional constraints given that the mineral processing industry 
exists to recover mineral values from an initial raw material, and some 
aspects of recovery of mineral values from secondary materials can be 
like sequential processing of an initial raw material. 61 FR at 2342. 
Where there is no obvious element of discard present, such as land-
based storage, the Agency does not believe that it should exercise its 
interpretive discretion to assert authority.
    With respect to intra-industry reclamation practices involving 
land-based units, EPA largely is asserting authority. EPA proposed a 
series of conditions that would have allowed land-based storage units 
on the idea that there were certain unique necessities within this 
industry compelling use of such units. 61 FR at 2341. However, as the 
rulemaking progressed, it became

[[Page 28582]]

apparent that there are no such production-related necessities. Agency 
reevaluation of mineral processing secondary material volumes indicated 
that, in addition to volumes being lower than EPA initially believed, 
comparison to volumes of other industrial hazardous wastes indicated 
that these wastes were often higher in volume than mineral processing 
secondary materials and were being stored off the land. Consequently, 
the Agency is claiming authority over most land-based storage units.
    The Agency is not, however, asserting authority over piles resting 
on pads determined by a state or EPA to be protective. The reasoning is 
similar to that for not claiming authority over within-industry 
secondary materials stored in tanks, containers or buildings. Such 
materials need not be viewed as ``part of the waste disposal problem,'' 
and so, given the intra-industry recycling, need not be considered 
``discarded.'' The practice also can be viewed as a type of ``properly 
conducted recycling'' which should be encouraged. Again, EPA views this 
determination to be within its interpretive discretion.
    EPA also disagrees that it is compelled to assert control over 
land-based units that are actual production units, i.e. that actually 
recover product. The Agency is aware of only two land-based units which 
recover metals: gold heap leach piles and copper dump leach piles. 
Under prior rulemakings (54 FR 36592 and 55 FR 2322), the Agency has 
defined these land-based units as extraction/beneficiation activities. 
The Agency is unaware of any other land based process units which 
actually recover metals. The Agency believes that regulating such units 
could pose the possibility of interdicting actual production steps 
which was the particular focus of the AMC I court. EPA notes, however, 
that storage units which also make secondary materials more suitable 
for actual recovery, such as equalization basins, can remain within 
Subtitle C jurisdiction. These units, in the Agency's view, are not the 
part of the process which actually produces an end product (such as the 
smelter at a smelting facility). At most, they facilitate eventual 
recovery. The Agency does not read the case law to say that such 
storage units are in all cases outside the authority of Subtitle C.
    EPA also is not asserting authority over mineral processing 
secondary materials once they are removed from approved storage for 
reclamation. Thus, should a mineral processing plant reclaim mineral 
processing secondary materials after those materials are stored in 
land-based units (i.e. the materials defined as hazardous wastes in 
today's rule), they would no longer be solid and hazardous wastes. EPA 
believes it would be counterproductive to retain the hazardous waste 
status for mineral processing secondary materials entering reclamation. 
If the materials remain hazardous wastes, for example, the smelting 
process itself could be subject to Subtitle C regulation. EPA believes 
that it retains discretion to classify the removed materials as no 
longer being solid and hazardous wastes.
    The Agency believes it has discretion to adopt this classification 
notwithstanding the court's decision in American Petroleum Institute. 
v. EPA, 906 F.2d 726 (D.C. Cir. 1990). In that case, the Court held 
that EPA had adopted the so-called indigenous principle, whereby 
secondary materials stopped being wastes at the point they were 
utilized as feedstock in a production process related to the one that 
generated it, without sufficient justification. 906 F.2d at 741-42. 
However, in that case, EPA had made no attempt to determine which 
materials were part of the waste disposal problem, and which were not. 
Here, the Agency is making clear that storage on the land of mineral 
processing secondary materials is the environmental concern, and that 
reclaiming mineral processing secondary materials within the industry 
is ordinarily a form of proper recycling which may permissibly be 
encouraged. RCRA section 1003(a)(6).
    EPA also notes that it is possible that no mineral processing 
secondary materials will be placed in impoundments or in unapproved 
piles. Under today's rule, if a facility wishes to use a pile for 
storage (assuming the pile has not been adjudicated to be protective), 
the wastes would first have to be treated to meet Land Disposal 
Restrictions standards, probably rendering them unrecoverable. If an 
impoundment is utilized, wastes need not be pretreated, but the 
impoundment would have to meet minimum technology design standards and 
be dredged annually (RCRA section 3005(j)(11) and 40 CFR section 268.5) 
and, of course, ultimately obtain a RCRA permit. The Agency anticipates 
that facilities will use a non land-based form of storage instead.
    c. Immediate Reuse.4 In the May 1997 proposal, EPA 
suggested a different way of defining absolute jurisdictional limits, 
namely to say that secondary minerals generated by and ``immediately 
reused'' within the mineral processing industry, were not solid wastes. 
The reference to ``immediate'' was suggested as a means of interpreting 
the ``immediate reuse in another phase of the industry's ongoing 
process'' standard articulated in the case law. AMC I, at 824 F. 2d at 
1185. The Agency proposed that secondary materials that were 
legitimately recycled within 48 hours would be outside RCRA 
jurisdiction, regardless of whether they were stored between process 
steps (including storage in land-based units). See 62 FR at 26051.
---------------------------------------------------------------------------

    \4\ It should be noted that EPA is not using ``reuse'' as a term 
of art in this section of the preamble (i.e. is not using the term 
as defined in 40 CFR 261.1(a)(5)), but rather is referring to 
immediate reclamation of materials (i.e. material recovery) at a 
mineral processing facility. The key concept here is actually 
``immediate,'' which EPA is using to interpret the phrase 
``continuous process'' used in the case law.
---------------------------------------------------------------------------

    Industry and public interest groups both opposed the use of the 48-
hour time limit included in the January 1996 proposal to define 
immediate reuse. Industry renewed its categorical objections based on 
AMC I, and noted that many secondary materials are legitimately 
reclaimed long after they are generated and the time period between 
generation and reclamation in no way affected their value. For example, 
commenters stated that the gold industry generates retort slags which 
contain gold values. Comments stated that these slags are stored off 
the ground for periods up to six months after which they are 
reintroduced into their recovery process.5
---------------------------------------------------------------------------

    \5\ It should be noted that since no land-based storage is 
involved, these gold slags are not solid wastes under the final rule 
in any case (assuming that the recovery is legitimate and that the 
other conditions in the rule are satisfied).
---------------------------------------------------------------------------

    Public interest groups objected to the 48-hour limit on the basis 
that an absolute waiver of RCRA jurisdiction based on time does not 
translate to any reduction of environmental risk. Public interest 
groups also noted that the Court in AMC II granted jurisdiction to 
units holding secondary materials with the propensity to leak, and that 
the Court's opinion would extend to all land placement, since the 
continuous placement of materials on piles or other land-based units 
would result in the same ``discard'' underlying the Court's opinion.
    Although the Agency necessarily accepts that materials immediately 
reused in another phase of the industry's ongoing production process 
are beyond EPA's jurisdiction, AMC I, 824 F.2d at 1185, the Agency is 
not adopting in today's rule the proposed 48-hour approach to define 
immediate reuse. The Agency is defining ``immediate reuse'' as the 
continuous recirculation of secondary materials

[[Page 28583]]

back into recovery processes without prior storage. The plain reading 
of the words ``continuous,'' 824 F.2d at 1193, and ``immediate'' 
preclude storage. Storage by its very nature means that processes are 
not continuous; rather, storage means that materials are generated 
which must be held apart for some period of time prior to reentry into 
a process. Storage, therefore, breaks the continuous and immediate 
nature of production and reentry. In addition, land-based storage units 
have inherent elements of discard. AMC II, 907 F. 2d at 1186-87.
    The definition of ``immediate reuse'' in today's rule does not bar 
storage prior to recycling. Mineral processing industries will be able 
to store and recycle their mineral processing secondary materials 
outside RCRA Subtitle C requirements if they do so while meeting the 
conditions of the exclusion from the definition of solid waste 
contained in today's rule.
    In the May 1997 proposal, the Agency discussed the possibility that 
some molten metals that spill onto the ground could be classified as 
materials undergoing immediate reuse (see 62 FR at 26051). The Agency 
noted that copper reverts (refined copper material) can be spilled in 
the process of being transferred from one part of the smelting process 
to another. Such reverts are picked up as soon as they can be safely 
handled and are placed directly back into the smelting process. The 
Agency has reviewed smelting processes in other metal sectors and finds 
that spillage from ladles is common and that these materials are 
routinely picked up within a short time and placed back into the 
process. The Agency thus concludes that molten metal spilled onto 
smelter floors is not a solid waste if it is picked up as practical 
(given heat and worker safety factors) and is then placed back into the 
smelting process. Such a material is not a secondary material (i.e. 
sludge, by-product, or spent material), but rather remains in process. 
This interpretation parallels existing rules, which say that a spilled 
commercial chemical product is not a solid waste if it is recycled 
within a reasonable amount of time (see 40 CFR 261.33 and 55 FR at 
22671).
    Industry commenters stated that spent smelter brick was similar to 
reverts since they are often returned back into recovery processes. If 
such spent bricks are stored before being recycled, they are not being 
immediately reused (nor are they still in process, since they are spent 
and physically removed). As noted in the Agency's May 1997 proposal, 
copper flue dusts, also are stored sometimes and not immediately 
recycled. Flue dusts not meeting the immediate reuse definition are 
defined as mineral processing secondary materials (usually a sludge, 
since these dusts are usually air pollution control residue) and would 
be eligible for the conditional exclusion to the definition of solid 
waste.
    d. Relation to the Current Regulatory Definition of Solid Waste. 
(i) Distinctions among Sludges, By-products, and Spent Materials. The 
existing regulatory definition of solid waste classifies metal recovery 
operations as a type of reclamation activity, and then states that 
certain secondary materials being reclaimed are, or are not, solid 
wastes depending on the type of material being reclaimed. Spent 
materials being reclaimed are solid wastes, while characteristic 
sludges and by-products being reclaimed are not solid wastes. See, 
generally, 40 CFR 261.2(c)(3) and 50 FR at 633-34, 639-41 (January 4, 
1985).
    As EPA noted at proposal, these distinctions among types of 
secondary materials being reclaimed are not needed because they are not 
directly based on environmental distinctions. 61 FR at 2342. In this 
industry, at least, the distinctions do not relate to which of these 
materials may be part of the waste disposal problem.6 The 
more environmentally meaningful distinction, and the one adopted here, 
is between land-based storage and storage in tanks, containers, and 
buildings.
---------------------------------------------------------------------------

    \6\ Put another way, the fact that a mineral processing 
secondary material is a sludge, rather than a spent material or by-
product, does not convey any meaningful information as to the types 
of risks the material might pose if reclaimed.
---------------------------------------------------------------------------

    In this rule, the Agency is, therefore, eliminating the regulatory 
distinctions between by-products, sludges and spent materials from 
mineral processing when these materials are reclaimed. Thus, under the 
amended rule, if any secondary material--sludge, by-product, or spent 
material--is legitimately reclaimed within the mineral processing 
industry, it is not a solid waste as long as all other conditions to 
the exclusion to the definition of solid waste are satisfied. EPA 
believes that this principle not only should encourage properly 
conducted recycling within the industry, but also fulfills an Agency 
objective of reducing some of the complexity in the existing regulatory 
definition of solid waste.7
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    \7\ EPA does note the potential anomaly that non-mineral 
processing secondary materials, at least for the moment, will be 
regulated in some cases stringently than those generated and 
reclaimed within the mineral processing industry. This could come 
about because non-mineral processing industry sludges and by-
products would still not be solid wastes if reclaimed, and so could 
be stored in land-based units before reclamation without being solid 
wastes. EPA has chosen, however, to address the broader issues 
regarding the regulatory definition of solid waste in a different 
rulemaking effort, which is proceeding on a different schedule from 
this rule. EPA believes that if may legitimately proceed one step at 
a time on these issues, and so is not precluded from making needed 
changes to the regulatory definition that affect only discrete 
industry segments, in this case, the mineral processing industry.
---------------------------------------------------------------------------

    (ii) Other existing regulatory exclusions. The existing regulatory 
definition of solid waste also contains a series of exclusions in 40 
CFR 261.2(e), two of which could apply to the mineral processing 
industry. Section 261.2(e)(1) (ii) excludes from the definition of 
solid waste sludges, by-products and spent materials (i.e. secondary 
materials) which are ``used or reused as effective substitutes for 
commercial products.'' An example could be mineral processing acid 
plant blowdown substituting for commercial acid in another process 
(either mineral processing or a process in a different industrial 
category).8 Commenters from industry questioned whether this 
provision is affected by the amendments relating to mineral processing 
secondary materials being reclaimed. The answer is that the provision 
remains as an independent basis for excluding secondary materials from 
Subtitle C. EPA did not propose to change it, and the issues involved, 
in any case, would be broader than the present proceeding since the 
basis for the exclusion does not rest on the notion of a continued 
process within an industry, but on comparability of secondary and 
virgin materials (see 50 FR at 619-20 and 637-41 (Jan. 4, 1985)).
---------------------------------------------------------------------------

    \8\ This example assumes that legitimate recycling is occurring.
---------------------------------------------------------------------------

    The second existing exclusion, found at 261.2(e)(1)(iii), does 
overlap with the present rule. The exclusion is for secondary materials 
``returned [as a substitute for feedstock materials] to the original 
process from which they are generated, without first being reclaimed or 
land disposed.'' An example could be an emission control dust from 
primary smelting which is returned directly to the smelter for metal 
recovery without any interim land disposal.
    This provision is essentially consistent with, but also subsumed 
by, today's final rule (with respect to the mineral processing 
industry). It is subsumed because the activity involved, return as a 
feedstock to a smelter, is a type of reclamation activity (see 50 FR at 
639-40), the subject of this final rule.9 The existing rule 
also contains a ``no

[[Page 28584]]

land disposal'' condition similar to the conditions in this final rule 
(although today's rule excludes storage in piles in some circumstances, 
and so is more flexible than the current 261.2(e)(1)(iii) in this 
respect).
---------------------------------------------------------------------------

    \9\ The exclusion for return of secondary materials as feedstock 
was in fact adopted largely in order to exclude certain direct 
reclamation practices in the mineral processing industry. 50 FR at 
639-40.
---------------------------------------------------------------------------

    In light of this overlap, EPA is adding language to 
261.2(e)(1)(iii) to indicate that there are special provisions relating 
to reclamation within the mineral processing industry (namely those 
adopted in today's final rule), and that these provisions define the 
scope of the exclusion for mineral processing secondary materials 
generated and reclaimed within the industry, including those which are 
returned to a mineral processing operation from which they are 
generated without first being reclaimed.
    Today's rule also does not alter the regulatory status of 
recyclable materials that are reclaimed to recover economically 
significant amounts of gold, silver, platinum, iridium, osmium, 
rhodium, ruthenium, or any combination of them. 40 CFR 266.70. This 
rule was established to encourage recycling of precious metals. 
Commenters from the gold industry questioned whether this provision is 
affected by the amendments relating to mineral processing secondary 
materials being reclaimed. The answer is that today's rule redefines 
which secondary materials generated and reclaimed within the mineral 
processing industry are wastes, and so could exclude certain materials 
reclaimed within the precious metal industry which are now defined as 
solid wastes. However, to the extent any precious metal recovery 
operations remain subject to regulation after today's rule, the 
tailored regulatory provisions in 266.70 continue to apply.
    e. Otherwise Excluded Mineral Processing Units Which Serve as 
Disposal Units. As the Agency noted in the original proposal, land-
based units in the mineral processing industry not only can be related 
to a recovery process but also can serve as repositories of 
conventional wastes. 61 FR at 2340, 2342, 2347. That is, unusable 
solids settle in surface impoundments or are left in piles and in many 
cases these units become the ultimate repositories for these wastes. 
Id.
    Under current rules, when an operating product storage unit that is 
a tank also contains a hazardous waste, the waste is not subject to 
regulation until it exits the unit. 40 CFR section 261.4 (c). An 
example would be a listed distillation column bottom remaining within 
the distillation column.
    Section 261.4(c) does not apply to hazardous wastes which 
accumulate in land-based units. Thus, if wastes accumulate in piles or 
impoundments, if those wastes are hazardous (i.e. are listed or exhibit 
a characteristic of hazardous waste), and the wastes are not 
legitimately recycled, then the units are Subtitle C regulated units 
because they are being used to store or dispose of hazardous waste. The 
Agency is not altering this long-standing principle in the present rule 
(particularly given the central statutory finding that land-based 
units, and especially surface impoundments, ``should be the least 
favored method for managing hazardous wastes'; RCRA section 
1002(b)(7)). Consequently, any process impoundment that holds un-
recycled hazardous accumulated solids, the impoundment is a regulated 
unit (i.e. subject to Subtitle C) because it is disposing of a 
hazardous waste. In addition, the same principle would apply to storage 
or process piles, which likewise are ineligible for the 261.4(c) 
exemption.
2. Scope of This Rule
    This section of the preamble addresses the issue of which secondary 
materials come from ``mineral processing'' operations, and so are 
potentially within the scope of the conditional exclusion for mineral 
processing wastes being reclaimed within the mineral processing 
industry sector or in extraction/beneficiation operations. Newly 
identified wastes from mineral processing also are subject to the LDR 
prohibitions and treatment standards adopted today, and so this 
preamble section also clarifies the applicability of these LDR 
provisions.
    a. Mineral Processing Wastes Covered by This Rule. The Agency's 
1989 rule (see 54 FR 36592) applied the high volume/low toxicity 
criteria to determine which primary mineral processing wastes would 
retain the Bevill exclusion. This rule also clarified the Bevill status 
of beneficiation operations. Those mineral processing waste streams not 
meeting the high volume/low toxicity criteria are no longer Bevill 
exempt wastes and are subject to regulation under Subtitle C (except 20 
mineral processing waste streams noted at 40 CFR 261.4). Non-exempt 
Bevill mineral processing wastes are ``newly identified,'' and are now 
subject to the Land Disposal Restrictions, when land disposed. 
Therefore, only ``newly identified'' characteristic hazardous mineral 
processing wastes are potentially eligible for the conditional 
exclusion from the definition of solid waste.
    EPA established in the 1989 rulemaking the factors it would use to 
determine whether a waste is generated from extraction/beneficiation 
versus mineral processing (see 54 FR 36592, 36616-20). The Agency has 
not and is not reopening this standard. However, EPA prepared and 
noticed a report--Identification and Description of Mineral Processing 
Sectors and Waste Streams--which tentatively applied this existing test 
on a waste-by-waste basis to wastes from 41 mineral sectors (62 FR at 
2354).
    There are two principal issues raised by this report: its legal 
status and its accuracy. First, the Agency has decided that the 
Identification and Description of Mineral Processing Sectors and Waste 
Streams report should be a guidance document. Thus, the Report is not a 
rule, and it, therefore, cannot be invoked as a definitive 
determination as to whether or not a particular waste is to be 
classified as being from mineral processing or from extraction/
beneficiation. In addition, this report should not be viewed as an 
exclusive list of mineral processing and associated waste streams: 
other mineral processing waste streams may exist. Mineral processing 
facilities are obligated to determine the Bevill status of their wastes 
by utilizing applicable regulatory provisions, as clarified by the 
criteria articulated in 1989 in the Federal Register preamble cited 
above. Thus, because the document is guidance, no party could rely upon 
that document as the definitive basis for a regulatory determination.
    The Agency has fully evaluated comments suggesting that the report 
contains factual inaccuracies, and believes that the Report, as now 
revised after review of public comments, is accurate and should 
therefore, provide useful guidance to the public. EPA disagrees with 
comments contenting that the Agency adopted new criteria in reaching 
the tentative conclusions set out in the Report. This is not the case--
the same general approach used in 1989 was applied in the Report, and 
would have to be applied in making any actual regulatory determination.
    One commenter argued that considering these determinations to be 
advisory would violate EPA's duty under section 3001(b)(3) of RCRA, as 
construed by the Court in EDF V. EPA, 852 F.2d 1316, 1331 (D.C. CIR 
1988) to have made final determinations as to which mining wastes are 
subject to the Bevill exclusion. According to this commenter, reaching 
one conclusion at headquarters and a potentially different conclusion 
at EPA regions or States would undermine the intent of the Court's 
order in EDF. This commenter also asserted that such an approach would 
effectively allow States to

[[Page 28585]]

regulate less stringently than EPA, in violation of sections 3006 and 
3009 of RCRA.
    EPA believes that these comments are erroneous. EPA fulfilled some 
time ago its obligations under section 3001(b)(3) generally, and under 
the EDF decision in particular, to define the scope of the Bevill 
exclusion as it applied to mining wastes. See 51 Fed. Reg. 24496 (July 
3, 1986); 54 Fed. Reg. 36592 (Sept. 1, 1989); 55 Fed. Reg. 2322 (Jan. 
23, 1990); 56 Fed. Reg. 27300 (June 13, 1991). As discussed in those 
notices and rules, EPA's regulatory determination did not obviate the 
need to evaluate whether a particular waste was from mineral processing 
which, unless one of the 20 identified special mineral processing 
wastes, would not be exempt from Subtitle C under Bevill. Indeed, the 
Agency has extensively discussed the distinctions between beneficiation 
and mineral processing precisely to assist industry, EPA and the States 
in making such case-specific determinations. See 54 Fed. Reg. 36618-
36619 (Sept. 1, 1989). Issuance of the Identification document in the 
record for this rulemaking is simply intended to aid the industry and 
regulators in making these decisions.
    EPA acknowledges that the potential for inconsistent determinations 
exist; for this reason, EPA headquarters has assisted regional offices 
and States in making these determinations over the past decade. Section 
3001(b)(3) does not, however, require the Agency to use rulemaking to 
make each and every decision. Those decisions that are very fact-
specific may need to be made on a case-by-case basis using general 
criteria articulated nationally by EPA. It is precisely because of the 
fact-specific nature of such inquiries that EPA believes adopting the 
guidance document as ``binding'' would not be appropriate. Finally, 
nothing in EPA's approach is inconsistent with the RCRA requirement 
that authorized State programs be at least equivalent to and no less 
stringent than the federal program (see RCRA 3006 (b)).
    b. Wastewater Treatment Surface Impoundments. EPA indicated at 
proposal that wastes managed in wastewater treatment surface 
impoundments would never be eligible for a conditional exclusion from 
the definition of solid waste. 62 FR at 2348. (A wastewater treatment 
surface impoundment is one whose ultimate discharge is regulated by the 
Clean Water Act, and can include zero discharge facilities.) This 
remains EPA's position, although the issue is no longer directly 
relevant to the final rule because no impoundments are eligible for 
exclusion. As the Agency noted at proposal, the essential purpose of 
these units is waste management rather than production. 62 FR at 2348. 
See also AMC II, where the D.C. Circuit held that wastewater treatment 
surface impoundments can be classified as waste management units, 
notwithstanding that all of the entrained solids in the unit were 
eventually recycled as feedstock at the generating plant. 907 F. 2d at 
1186-87.18 \10\
---------------------------------------------------------------------------

    \10\ Waters in these impoundments are often recycled back into 
processes for their value as water. Recycling of wastewaters may be 
currently allowed under the effective substitute clause in the 
regulatory definition of solid waste (see 40 CFR 261.2(e)(1)(ii)), a 
provision unaffected by today's amendments. However, EPA reads AMC 
II and its regulations to state that impoundments where some 
wastewaters are returned to a process as an effective substitute for 
a commercial product, but which also function as wastewater 
treatment impoundments, would be regulated units (assuming there are 
hazardous wastes in the unit). This is because the unit would 
necessarily be functioning at least partially as a disposal unit 
(since wastewaters are ultimately discharged). In addition, the 
product storage regulatory exemption at 40 CFR 261.4(c) does not 
apply to surface impoundments. Notwithstanding industry comments 
that recycling of wastewater should be encouraged, the Agency notes 
the stronger policy in RCRA to assure that surface impoundments 
managing hazardous waste are managed so as to operate protectively. 
AMC II, 907 F.2d at 1187 and sources there cited.
---------------------------------------------------------------------------

    c. Materials Outside the Scope. This rule limits the use of the 
conditional exclusion to the definition of solid waste to only those 
secondary mineral processing materials generated within primary mineral 
processing. The Agency identified over 40 mineral sectors which 
potentially generate mineral processing secondary materials subject to 
this rule. The scope of this rule is therefore quite broad. The Agency 
did not receive comments opposed to the Agency including them in this 
rule.
    This rule also restricts the use of the conditional exclusion from 
the definition of solid waste to characteristically hazardous mineral 
processing materials. Thus, no listed hazardous wastes can qualify for 
the conditional exclusion.
    The National Mining Association (NMA) and the Metals Industry 
Recycling Coalition submitted comments urging the Agency to broaden the 
scope of the rule to include metal-bearing wastes generated outside of 
primary mineral processing as well as allowing the reprocessing of 
listed hazardous wastes. The Agency is not extending the exclusion 
contained in this rule because the Agency did not propose addressing 
wastes generated outside of primary mineral processing, since at the 
time of proposal the Agency indicated that these wastes would be 
addressed under a different rulemaking. While metal-bearing wastes 
generated outside of primary mineral processing, and listed hazardous 
wastes are not within the scope of this rule, the Agency will continue 
to assess how best to encourage their legitimate recycling.
    Commenters indicated they were unsure how this rule would affect 
the application of 40 CFR 261.2 to secondary materials generated from 
outside the mineral processing industry sector. As discussed earlier in 
the preamble, today's rule does not amend Sec. 261.2 for any secondary 
materials other than those generated within the mineral processing 
sector. Thus, when fully implemented, a mineral processing facility can 
use the conditional exclusion to the definition of solid wastes and can 
utilize Sec. 261.2 to recycle other wastes.
3. Mineral Processing Secondary Material Volumes and Environmental 
Damages
    a. Volume of Secondary Materials and Large Volume Exemption. In the 
Agency's May 1997 proposal, land placement of secondary mineral 
processing materials would be prohibited except for materials exceeding 
the high volume criteria (45,000 tons per facility waste stream per 
year for solid wastes and one million tons per facility per waste 
stream per year for liquids). The May 1997 proposal would have allowed 
high volume secondary materials to be placed in land-based units if 
those units meet the integrity standards noted in the January proposal 
and meet other proposed conditions. In today's rule, the Agency is 
adopting a no land placement condition for mineral processing secondary 
materials without any volume exemption.
    As noted in the May 1997 proposal (see 62 FR at 26049), the Agency 
reevaluated the volumes of mineral processing secondary materials as a 
result of comments submitted by public interest groups which asserted 
that volumes of these materials were considerably less than EPA 
originally believed (see Characterization of Mineral Processing Wastes 
and Materials, U.S. EPA, 1998). Based on this reevaluation, the Agency 
finds that mineral processing wastes are not generated in the high 
volumes that we previously believed to be the case. EPA found that of 
the 119 hazardous wastes streams it studied, 117 were generated in 
volumes lower than the proposed high volume cutoff. Further, comments 
from public interest groups on the Agency's May 1997 proposal indicate 
that two remaining waste streams that

[[Page 28586]]

the Agency had classified as high volume may not in fact meet the high 
volume cutoff. The Agency reassessed how it estimated the volumes of 
these waste streams and acknowledges that it used very conservative 
approaches to estimate these volumes. It is, therefore, possible that 
none of the 119 waste streams studied meet the high volume cutoff. The 
Agency proposed using the high volume cutoff as an indicator that land 
storage may be an economic necessity because when volumes are high, 
alternatives to land placement are costly and not practical. In fact, 
the Agency now finds that mineral processing secondary materials are 
generated at volumes where there is no reason that they cannot be 
managed in non-land based units (except for solids placed on approved 
pads).
    Industry comments maintained that it is impractical to place 
mineral processing secondary materials in tanks, containers, and 
buildings. Based on the storage of similar volumes and types of 
hazardous wastes generated in other industries, the Agency does not 
agree. The Agency presented its analyses of volumes in its report 
entitled, Characterization of Mineral Processing Wastes and Materials, 
1997. This report noted that listed hazardous wastes, such as spent 
potliners, and electric arc furnace dusts, are generated at volumes 
which generally exceed that of mineral processing secondary materials 
yet are stored in tanks and buildings. Further, this report noted that 
the volumes generated by other industries that use tanks, containers, 
and buildings to store hazardous wastes are not substantially different 
than volumes generated by the mineral processing industry.
    b. Reliability of Damage and Environmental Release Reports. 
Industry commenters to the May 12, 1997 proposal sought to refute or 
minimize the degree of contamination caused by the land storage of 
mineral processing secondary materials. Despite these objections, the 
Agency still finds that land-based storage and management practices of 
mineral processing secondary materials and wastes can or may create or 
exacerbate soil and ground water contamination.
    The Agency issued two separate reports in 1995 and 1997 (Office of 
Solid Waste, U.S. EPA, Human Health and Environmental Damages from 
Mining and Mineral Processing Wastes (1995), and Office of Solid Waste, 
U.S. EPA, Damage Cases and Environmental Releases (1997)) which 
presented information on damage cases and environmental releases of 
mineral processing and mining wastes. The data tended to fall into two 
general classes: (1) information that illustrates that environmental 
damages have occurred, and (2) information that discusses the types and 
magnitude of mineral processing materials that have been released into 
the environment. In some cases, a combination of feedstock, in-process 
materials, secondary materials, and wastes contribute to ground water, 
surface water, or soil contamination. Also, in some cases, 
contamination occurred through episodic or continuing mismanagement of 
hazardous and other solid wastes (e.g., commercial chemical spills). 
Industry commenters objected to the use of these damage cases 
contending that they reflect historic practices and not current 
operations.
    The Agency disagrees that storage of mineral processing wastes, and 
in some cases secondary materials, on the ground, which was reflected 
in these reports, no longer occurs. After careful reevaluation, the 
Agency finds that the record and, in particular, these reports, clearly 
indicate that the storage on the ground of mineral processing wastes 
and secondary materials continues as a management practice and has 
caused environmental damage or has the potential to do so. These 
reports identify cases where mineral processing wastes and secondary 
materials were eroded by rain, were carried by wind, or, in the case of 
surface impoundments, migrated to contaminate ground water. The vast 
majority of newly identified mineral processing wastes are liquids and 
their placement in impoundments presents actual or potential threats to 
the environment. The Agency concludes that placement of secondary 
mineral processing materials in impoundments may contribute to the 
waste management problem.11
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    \11\ Of course, those mineral processing facilities that have in 
fact improved their storage practices for mineral processing 
secondary materials being reclaimed by using tanks, containers, or 
buildings instead of impoundments to store secondary materials would 
be essentially unaffected by this rule, since such units would be 
excluded from regulations.
---------------------------------------------------------------------------

    EPA is also not impressed by comments stating that most of the 
damage incidents involved wastes no longer utilized within a process, 
not secondary materials awaiting reclamation, and therefore are 
irrelevant to this rule. The damage incidents certainly show that when 
hazardous mining and mineral processing wastes and mineral processing 
secondary materials are stored in piles or in surface impoundments, 
hazardous constituent releases and consequent damage has occurred in 
this industry. Piles and impoundments do not automatically become safer 
if the materials stored in them are secondary materials awaiting 
recycling rather than wastes. Rather, the risk comes from the nature of 
the storage unit.
    The Agency compared the toxic and hazardous properties of newly 
identified mineral processing wastes with a limited number of RCRA 
listed hazardous wastes in the 1997 technical background document, 
Characterization of Mineral Processing Wastes and Materials. This 
report was used to support the May 1997 proposal. In order to easily 
compare the listed waste leachate concentrations with the leachate 
concentrations of the newly identified mineral processing wastes, a 
combined mean and maximum range of chromium, cadmium, and lead 
concentrations for the seven listed wastes were calculated. The mean 
leachate concentrations for chromium, cadmium, and lead range from 6.03 
mg/l to 273.23 mg/l, <0.01 mg/l to 117.5 mg/l, and 1.47 mg/l to 259.83 
mg/l, respectively. Likewise, the maximum leachate concentrations for 
chromium, cadmium, and lead range from 12 mg/l to 4250 mg/l, <0.01 mg/l 
to 268 mg/l, and 2.10 mg/l to 1550 mg/l, respectively. The report then 
compared the ranges in constituent concentrations exhibited by the 
listed wastes and the newly identified mineral processing wastes. The 
report states that 15 of the 23 mineral processing wastes exhibit 
leachate concentrations of chromium, cadmium, and lead at levels that 
are equal to or greater than those levels exhibited by the seven listed 
wastes. Therefore, the Agency has concluded that some mineral 
processing secondary materials exhibit hazardous properties similar to 
listed hazardous wastes, and have the same or greater potential of 
leaching metals into the environment when they are improperly placed on 
the land.
    In addition, mineral processing secondary materials often contain 
metal compounds and other constituents which, due to processing steps, 
become more mobile in the environment (see 54 FR 36614-36619, September 
1, 1989). By the very nature of mineral processing, heavy metals are 
continuously concentrated and waste streams tend to contain higher 
metal loadings than those found in raw ore. Since the resultant wastes 
have higher concentrations of metals, they likewise have a higher 
potential to leach higher concentrations of metals into the environment 
if they are not adequately stored. Finally, the record also shows that 
a wide range of mineral processing secondary materials are released 
into the environment. Such releases do not necessarily mean that 
environmental

[[Page 28587]]

damage has occurred; however, the Agency believes it must take 
appropriate steps to minimize such releases to reduce the potential for 
damage to occur, just as the Agency does with other hazardous wastes. 
RCRA is a preventive statute, designed to assure safe management of 
hazardous waste from cradle to grave to prevent the need for 
remediating releases. Based on the information noted above, the Agency 
therefore has finalized in today's rule a ``no land placement'' 
condition for the storage of mineral processing secondary materials.
    Comments from public interest groups pointed out that a 
considerable amount of information shows that releases result from 
fugitive dusts and that control of dusts was not adequately addressed 
in the proposals. The Agency agrees that the release of fugitive dust 
should be addressed and believes that placement in tanks, containers or 
buildings will adequately address this concern. Mineral processing 
secondary materials stored in tanks or containers must be stored in a 
manner which effectively manages fugitive emissions. Moreover, as at 
proposal, if the site-specific pile approval process is utilized, the 
possibility of harm via an air exposure must be considered, and, if 
necessary, controlled. See 62 FR at 2372 (proposed 
261.4(a)(15)(iv)(A)(3)).
4. Conditions to the Exclusion
    In the January 1996 and May 1997 proposals, the Agency sought 
comment on how to establish a conditional exclusion to the definition 
of solid waste which would encourage recycling of mineral processing 
secondary materials and be protective. In today's rule the Agency is 
establishing a conditional exclusion to the definition of solid waste. 
The conditions relate to legitimacy of recycling, land placement, 
speculative accumulation, and notification, and are discussed below.
    a. Legitimacy. It goes virtually without saying that only mineral 
processing secondary materials which are reclaimed legitimately would 
be excluded under today's rule. This is because sham recycling is 
simply waste treatment or disposal conducted under the guise of 
recycling. See U.S. v. Self, 2 F. 3d 1071, 1079 (10th Cir. 1993).
    The Agency currently uses a qualitative approach for determining 
whether a material is being legitimately recycled. Factors the Agency 
considers typically relevant in making such determinations are found at 
50 FR 638 (Jan. 4, 1985); 53 FR 522(Jan. 8, 1988); 56 FR 7145, 7185 
(Feb. 21. 1991). Use of these factors to assess whether a particular 
activity is to be viewed as recycling rather than treatment or disposal 
was emphatically sustained by the Court in Marine Shale Processors v. 
EPA, 81 F. 3d 1371, 1381-83 (5th Cir. 1996) and United States v. Marine 
Shale Processors, 81 F. 3d 1361, 1366(5th Cir. 1996).
    The main issue in this rulemaking was whether the Agency should 
develop quantified criteria for use in assessing legitimacy of 
reclamation activities within the mineral processing industry. The 
Agency proposed quantitative criteria including the potential use of an 
ore grade cut-off, normal operating range, efficiency standard, and an 
economic test. 62 FR at 2342-44. In addition to metal values, the 
Agency also solicited comment on legitimate recycling of acid, water, 
and other values.
    The mineral processing industry noted in their comments that their 
products must meet international quality standards and they would not 
risk affecting product quality by introducing materials which would 
adversely affect that quality, and therefore that legitimacy can be 
assumed in essentially all cases. They also opposed the proposed 
quantified criteria.
    While the Agency agrees that market forces generally may limit the 
introduction of materials which could adversely affect product quality, 
mineral processing facilities by their nature process large volumes of 
materials, EPA is concerned that small volumes of wastes could be 
placed into processes without contributing mineral values in order to 
treat or dispose of them. Obviously, this is not recycling, as noted by 
the Court in U.S. v. Marine Shale Processors, 81 F. 3d at 1366. The 
Agency, therefore, does not agree that there is no need to apply some 
type of reasonable legitimacy criteria.
    Industry commenters also noted that application of quantitative 
criteria would be burdensome, are not necessary, and could not be 
effectively implemented. The Agency agrees that implementation of the 
proposed quantitative tests would have required significant testing of 
materials (and resultant costs) and that due to uncertainty in 
evaluating test results, companies may decide not to recycle any 
materials to protect the Bevill status of their resultant wastes. 
Application of an ore grade cutoff criteria could restrict the gold 
industry's ability to recover gold values from secondary materials that 
contain gold at levels below those found in ore. Such recovery could 
nevertheless be cost effective. Industry commenters stated that the 
application of a normal operating range test would be difficult to 
implement since operating parameters at large mineral processing 
facilities change often related to differences in feed. There also was 
little support from industry for the proposed efficiency test because 
such facilities may be recovering a specific metal at one recovery rate 
while they are recovering other metals at a different rates. Industry 
commenters also rejected the proposed use of an economic test because 
recycling need not be profitable to be legitimate. They specifically 
pointed out the cases where recycling was economical only relative to 
disposal, and yet, the company was legitimately reusing the recycled 
materials.
    For these reasons the Agency has declined to adopt any of the 
proposed quantitative tests. In today's rule, the Agency is not 
adopting quantitative criteria and will continue to use the qualitative 
approach for evaluating whether an activity is legitimate recycling. In 
addition, the Agency believes that legitimate recycling may occur for 
reasons other than to recover metal values-- recovery of acids, 
cyanide, or water, for example. With no quantitative tests for such 
recycling, the Agency believes the qualitative criteria best cover the 
broad array of situations being addressed. Situations most likely to be 
deemed sham recycling would, thus, be those involving low amounts of 
recoverable material plus the presence of non-contributing hazardous 
constituents in the waste (particularly hazardous constituents not 
otherwise present in the normal feedstock of the process). See 
generally, 53 FR at 522(January 8, 1988).
    b. Design and Construction Standards. In the January 1996 proposal, 
the Agency assumed that land-based storage of mineral processing 
secondary materials was a necessity within the mineral processing 
sector, and proposed three different types of conditional mechanisms 
whereby these land-based units could be deemed ``process units'' that 
would be excluded from Subtitle C jurisdiction. 62 FR at 2345-48. More 
specifically, these alternative conditions were an environmental 
performance standard, a design and operating standard, or an ad hoc, 
site-specific standard developed by an EPA Region or authorized State. 
The environmental performance standard would have used a ground water 
protection standard as a determinant of whether a land-based unit was 
involved in discard. If ground water monitoring determined that there 
was an exceedance of the MCL (background levels if background exceeded 
the MCL) at a designated point of compliance,

[[Page 28588]]

then the unit would be required to implement unit-specific corrective 
action. 62 FR at 2345-46.
    The Agency also proposed, in lieu of compliance with the ground 
water standard, design and construction standards. EPA proposed that 
surface impoundments be constructed with a transmissivity equivalent to 
a 40 mil geomembrane liner placed on top of 12 inches of a material 
with a 10-5 hydraulic conductivity. Piles could be constructed on 
concrete, asphalt, or soil any of which would have to have the 
equivalent transmissivity of three feet of clay with 10-7 cm/sec 
hydraulic conductivity. Id. at 2346.
    The final alternative allowed for an authorized State or EPA Region 
to make a site-specific determination that the unit can be operated in 
a manner that is protective. The Agency proposed this option to allow 
for flexibility because there are a range of site-specific 
characteristics, such as depth to groundwater and rainfall, which can 
affect the design of a unit and affect the risks posed by such units. 
Id. at 2347.
    EPA finds now, however, that the premise of volumetric necessity 
was mistaken (see the earlier section of this preamble). As such, the 
Agency is adopting its traditional jurisdictional demarcation point of 
not allowing exclusions for land-based storage units. As discussed 
earlier, land-based storage units are so fraught with indicia of 
discard--including elements of outright disposal via both air and 
groundwater exposure pathways (borne out by damage cases as well), plus 
no longer being part of the actual production operation--that EPA views 
this demarcation as strongly justified once it is clear that there is 
no necessity to use such units. The sole exception in the final rule 
which allows for conditional exclusion for a land-based storage unit is 
for piles resting on pads which are approved by an authorized State or 
EPA Region, as discussed in the section below.
    c. Units Eligible for Conditional Exclusion and Conditions Attached 
to Such Units. (i) Tanks, Containers and Buildings. Today's rule states 
that mineral processing secondary materials reclaimed within the 
industry can be excluded if they are stored in any of the following: 
tanks, containers, buildings, or piles resting on pads when such piles 
are evaluated and approved on a site-specific basis by an authorized 
State or EPA Region. (As noted in the May 12, 1997 proposal, this is 
conceptually the same as the rule EPA proposed for the oil-bearing 
secondary materials generated by and recycled within the petroleum 
industry. See 62 FR at 26048 (May 12, 1997) and 60 FR 57753 (November 
20, 1995)). Tanks, containers, building, and approved pads do not have 
to meet the design and operating standards for units storing RCRA 
Subtitle C wastes.
    EPA also is adopting certain minimal conditions on these units' 
design to assure basic unit integrity and so assure that tanks, 
containers, and buildings do not serve as conduits for massive material 
release (i.e. disposal units). An acceptable tank must be free standing 
and not be a surface impoundment, and be manufactured of a material 
suitable for containment of its contents. An acceptable container must 
be free standing and be manufactured of a material suitable for 
containment of its contents. An acceptable building must be a man-made 
structure and have floors constructed from non-earthen materials, have 
walls, and have a roof suitable for diverting rainwater away from the 
foundation. A building may also have doors or removable sections to 
enable trucks or machines access. The Agency's technical report Non-
RCRA Tanks, Containers, and Buildings, U.S. EPA, 1998, provides 
examples of acceptable units for the storage of mineral processing 
secondary materials.
    EPA disagrees with comments from public interest groups stating 
that nothing short of RCRA Subtitle C standards could assure 
protectiveness and so demonstrate that these non-land-based storage 
units were not part of the waste management problem. The plenary 
conditions urged by the public interest group commenters are indeed 
those necessary for protective management of hazardous wastes, but the 
Agency's task here is different. It is to delineate discard from non-
discard (i.e. wastes from non-wastes), and, as noted at proposal, not 
only is this a different test than determining protective waste 
management conditions, but there are jurisdictional constraints on the 
types of conditions EPA can impose when considering the situation 
presented here, i.e., secondary materials generated and reclaimed 
within a single industry sector. 62 FR at 2342. Thus, the conditions 
EPA is adopting are designed to assure that these units are not 
essentially sieves functioning as means of disposal.
    The Agency discussed its definition of non-RCRA tanks, containers 
and buildings in its Technical Background Document (See 62 FR at 26050, 
Non-RCRA Tanks Containers, and Buildings, 1997). Industry commenters 
requested clarification on whether their smelter or refiner buildings 
would meet the definition of ``building'' if tanks, containers or 
buildings were required. As set out in the final rule, a building is a 
structure with four walls, a roof, and floor constructed of non-earthen 
materials. Smelter and refinery buildings are quite large and include 
floor areas which, in part, use earthen materials. As long as mineral 
processing secondary materials (i.e. those sludges, by-products, and 
spent materials which would otherwise be identified as hazardous 
wastes) are stored in those sections of the smelter and refinery 
building that do have floors constructed of non-earthen materials, 
these structures would qualify for the exclusion included in today's 
rule as non-RCRA buildings.
    Industry commenters also noted that the Agency made reference to 
tanks and containers having to meet applicable industry standards for 
their construction and operation, such as those established by the 
American Society of Testing Materials (ASTM) or the American Petroleum 
Institute (API)(See 62 FR at 26050). They pointed out that API 
standards deal specifically with tanks, while ASTM standards relate 
more specifically to testing procedures. The commenters argued that 
units storing mineral processing secondary materials do not need to 
comply with these standards to be safe. The Agency agrees that the 
references to applicable industry standards such as ASTM and API were 
overly broad and has not included them in today's rule. Industry 
commenters requested clarification on whether tanks and containers 
needed covers to meet the condition of ``no land placement.'' The 
Agency expects that the storage of mineral processing secondary 
materials will prevent uncontrolled fugitive emissions. Tanks and 
containers do not need covers as long as the materials stored in them 
are managed to reduce fugitive emissions. The facility operator will 
therefore need to determine if covers are needed to effectively control 
fugitive emissions. For example, tanks and containers placed inside 
buildings may not need covers.
    The gold and copper industries stated that their secondary 
materials would meet legitimacy conditions and that they do not need to 
store these materials prior to placement back onto gold heap leaches or 
copper dump leaches. The final rule indicates that process units, as 
opposed to storage units, are excluded from RCRA Subtitle C. EPA 
believes that the heap and dump leach units are process units, 
notwithstanding the fact that they are land-based. This is because dump 
and heap leach piles simultaneously produce products and waste. The 
issue is also academic with respect to these units. This is because

[[Page 28589]]

the Agency determined that these units are extraction/beneficiation 
activities in 1986 and reiterated that position in 1989 (see 51 FR 
24496 and 54 FR 36592), and their Bevill regulatory status is unchanged 
by today's rule. Thus, if the heap leach pile becomes a disposal unit 
because wastes remain there permanently, those wastes presently have 
Bevill status. The Agency continues to be concerned that there may be 
environmental risks related to dump and heap leaching, but has 
determined that this rule is not the appropriate means to address those 
concerns.
    Industry commenters also raised concern that under the ``no land 
placement'' option, described in the May 1997 proposal, they would no 
longer be able to place slags on the ground. This is an incorrect 
reading of the regulations and the proposals since at 40 CFR 
261.4(b)(7), iron and steel, copper, lead, zinc, and elemental 
phosphorus slags are all classified as Bevill exempt mineral processing 
wastes and would not be affected by this rule. The management of these 
slags on the ground can continue as long as they meet other applicable 
federal and state regulations.
    (ii) Solid Mineral Processing Secondary Materials Resting On Pads. 
As noted, EPA proposed at 61 FR 2346 to allow land-based units which 
had been approved as protective on a site-specific basis by an 
authorized State or EPA Region. The Agency is retaining a portion of 
that proposal in the final rule in order to allow solid mineral 
processing secondary materials resting on pads to be used for storage 
of mineral processing secondary materials being reclaimed within the 
industry. The Agency defines ``solid mineral processing secondary 
materials'' as those mineral processing secondary materials containing 
no free liquids. The provision functions effectively as a variance to 
allow conditionally excluded storage using pads to occur.
    Industry comments pointed out that there are materials which can be 
placed on concrete or asphalt pads in a manner that provides the 
equivalent protection of a tank, container, or building. The Agency is 
aware that in the arid Southwest, the copper industry places materials 
on pads to dry them prior to their reentry into processes. The Agency 
agrees with industry comments that a degree of flexibility is needed 
regarding the storage of solid mineral processing secondary materials 
in this sector, particularly given the number of such storage units 
presently used in arid conditions, and (to a lesser degree of 
importance) given the number of existing piles used by this industry 
which conceivably could be upgraded to operate protectively and for 
which a more flexible approach could be warranted.12
---------------------------------------------------------------------------

    \12\ EPA has not provided for this type of site-specific 
approval of land-based storage units in other rules providing for 
conditioned exclusion from the regulatory definition of solid waste. 
In some cases, this is because management of solids was not at issue 
(proposed petroleum listing rule and rules on recovered oil), or the 
industry sector did not use piles for solids management (steel 
industry coke-byproducts listing rule). As noted in the text above, 
EPA believes that there are certain factors peculiar to the mineral 
processing industry that have persuaded EPA to allow for a site-
specific authorization process, but this provision should not be 
considered to be a precedent for any other industry sector.
---------------------------------------------------------------------------

    In today's rule EPA is adopting a provision whereby persons storing 
only solid mineral processing secondary materials (those mineral 
processing secondary materials containing no free liquids) on pads 
prior to legitimate reclamation in a mineral processing process may 
seek a determination from an authorized State or (if the pile is 
located in an unauthorized State) EPA Region such that the unit is 
approved as protective and materials stored in the unit are 
conditionally excluded from the regulatory definition of solid waste 
provided that the pad is not serving as a mode of discard.
    Minimum design criteria for pads are as follows; (1) Pads must be 
designed of non-earthen materials which are compatible with the 
chemical nature of the mineral processing secondary material being 
stored, (2) Pads must be capable of withstanding physical stresses 
associated with placement and removal, (3) Pads must have run on/runoff 
controls, (4) Pads must be operated in a manner which controls fugitive 
dust, and (5) Owner/operators must conduct inspections and maintenance 
programs to ensure the integrity of the pads.
    The decision-maker would evaluate the application for storage on 
pads against a general environmental performance standard: whether the 
pad is located, designed, constructed and operated so as to be 
protective of human health and the environment and is not used for 
disposal. A broad benchmark of performance would be that the approved 
pad must afford the same degree of protectiveness as non-RCRA tanks, 
containers and buildings eligible for exclusion.
    The decision-maker would have to consider potential releases via 
groundwater, surface water, and air exposure pathways. Factors to be 
considered for assessing the groundwater, surface water, air exposure 
pathways are:

--The volume and physical and chemical properties of the secondary 
material, including its potential for migration off the pad;
--The potential for human or environmental exposure to hazardous 
constituents migrating from the pad via each exposure pathway, and the 
possibility and extent of harm to human and environmental receptors via 
each exposure pathway.13

    \13\ As proposed, these general decision factors are drawn from 
the environmental performance standard in the row-revoked 40 CFR 
267.10.62 FR at 2347. Commenters noted correctly that Part 267 is no 
longer codified, so that these requirements should not be placed in 
regulatory language (or preamble) by means of a cross-reference to 
the revoked provisions.
---------------------------------------------------------------------------

    Thus, under this regime, a State could approve placement of solid 
mineral processing secondary materials (those materials containing no 
free liquids) on a pad where, after consideration of relevant exposure 
pathways, a determination is made that the mode of storage will not 
adversely affect human health and the environment, and where the 
operator has demonstrated compliance with the minimum design and 
operating criteria. Approval would be more problematic if a pad was 
located in an area which experiences flooding, or in an area where 
ground water was close to the surface and used for drinking water 
purposes.
    The Agency is confident that site-specific determinations can be 
accomplished as part of existing State regulatory programs. The 
situations eligible for this variance are considerably more 
circumscribed than at proposal, and the decision criteria consequently 
more focused, meeting some of the objections in comments from public 
interest groups on the proposals. Today's rule only allows the 
placement of mineral processing secondary materials that are physical 
solids, and the rule also specifies certain minimum conditions such 
pads must meet to be approved. Further, the rule identifies the factors 
a State must consider prior to making such determinations. The Agency 
will review a State's regulatory authorities it intends to use in 
implementing this determination to assure that an authorized state can 
effectively implement this element of the rule.
    As proposed, EPA is requiring that there be opportunity for public 
participation in the evaluation and approval process of pads storing 
solid mineral processing secondary materials. 62 FR at 2366. The Agency 
believes it is important that those citizens who may be directly 
affected by these determinations be notified of them and

[[Page 28590]]

participate in the process, and notes further that this requirement is 
fully consistent with RCRA's strong preference for public 
participation. See RCRA section 7004(b).
    On the other hand, EPA is not adopting any site-specific approval 
process for storage of mineral processing secondary materials in 
surface impoundments. The Agency has concluded that storage in 
impoundments would likely lead to their contributing to the waste 
management problem. Many damage incidents in this industry involve the 
use of impoundments (see damage case on phosphorus impoundments in 
Idaho). Furthermore, the Agency has determined that there are no 
engineering or economic constraints on requiring liquid mineral 
processing secondary materials to be placed in tanks.
    d. Speculative Accumulation. In this rule, the Agency is 
establishing a condition that mineral processing secondary materials 
cannot be accumulated speculatively as defined in 40 CFR 261.1(c)(8). 
EPA proposed this condition, 61 FR at 2372, and indeed, this condition 
already applies to every other secondary material being recycled which 
is excluded from being a solid waste. See, e.g., 261.2 (e). Industry 
comments noted that the 12-month limit on speculative accumulation was 
overly restrictive and that many mineral processing secondary materials 
need to be stored until economic conditions warrant their recycling. 
The Agency rejects these comments because no data were presented that 
would indicate that the volumes of materials being generated could not 
be efficiently recycled within a 12-month period. In the 12 years the 
speculative accumulation provision has been in effect, the Agency is 
unaware of other industries suffering economic burdens by complying 
with the limits placed on speculative accumulation. Nor is EPA aware of 
any mineral processing facility which has applied, pursuant to the 
variance provision in 40 CFR 260.30(a) and 260.31(a) (which allow an 
extension of the 12-month speculative accumulation period), to extend 
the existing 12-month requirement for currently excluded mineral 
processing secondary materials (like unlisted sludges and by-products). 
The Agency infers that the existing 12-month requirement is not 
imposing any type of significant constraint on this industry.
    e. One Time Notification. EPA proposed that mineral processing 
plants generating mineral processing secondary materials and utilizing 
the conditional exclusion to the definition of solid waste provide EPA 
(or an authorized State) with a one-time notification which describes 
the mineral processing materials to be recycled and the recycling 
processes being used. (See 61 FR at 2345). The Agency is finalizing 
this provision in today's rule. It applies to any facility utilizing 
the conditional exclusion.
    Today's rule requires that the one time notification must specify 
the types and amounts of mineral processing secondary materials to be 
recycled and the location and type of unit storing mineral processing 
secondary material. The notice should be submitted to the appropriate 
EPA regional office or authorized State. An amended notification would 
not be required unless the facility has significant process changes 
affecting the generation, location, or recovery of mineral processing 
secondary materials.
    The reason the provision is needed is to assure that the 
conditioned-exclusion approach in today's rule can be feasibly 
implemented. To do so, EPA or States must know what secondary materials 
are being stored, and where storage is occurring, in order to determine 
whether the other conditions in the rule are being satisfied. As 
described above, these other conditions are necessary to assure that 
secondary material storage within the industry does not become part of 
the waste management problem. In this very real sense, the notification 
condition is likewise necessary to assure that the storage is not part 
of the waste management problem, since notification is necessary to 
successfully implement the other conditions.
    Industry comments opposed this condition, not so much on grounds of 
unreasonable burden, but based on the argument that the Agency lacks 
legal authority over non-waste activities. Since EPA finds that the 
notification condition is an integral part of a group of conditions 
necessary to assure that storage of these hazardous secondary materials 
does not become part of the waste management problem, EPA has legal 
authority to adopt it. In addition, the Agency notes that RCRA section 
3007(a) provides authority to enter facilities and obtain information 
needed to assist in the enforcing of provisions of Subtitle C. This 
provision can reasonably be read to apply to gathering information to 
determine whether or not a particular hazardous secondary material is a 
waste. The notification condition obtains this same type of information 
by regulatory condition. The Agency thus believes that section 3007(a) 
(implemented here by rule, pursuant to the Agency's general rulemaking 
authority under RCRA section 2002(a)) likewise provides authority to 
adopt this condition.
    In the January 1996 proposal, the Agency solicited comment on 
whether a Facility Operating Plan should be required for facilities 
that generate, store, or process hazardous mineral processing secondary 
materials. (See 61 FR at 2345) Under this approach, a Facility 
Operating Plan would include: a spill prevention plan and procedures; 
types, quantities, and analysis of recycled materials; product 
specifications; speculative accumulation and storage requirements; 
closure plan; and record keeping and reporting for off-site shipments. 
In today's rule, the Agency is not requiring the preparation of such a 
plan. This requirement is not necessary given the burden of proof under 
existing 40 CFR section 261.2(f) that a facility must meet to comply 
with the conditions of legitimacy, containment, and speculative 
accumulation. The Agency does, however, strongly encourage facilities 
to develop a plan or at least components of a plan as part of 
responsible environmental management.
5. Bevill Related Issues
    a. Uniquely Associated. Under the Agency's longstanding 
interpretation of the Act, the Bevill amendment applies to special 
wastes that are uniquely associated with extraction/beneficiation and 
certain mineral processing activities. Because the decision whether a 
particular waste is uniquely associated may determine whether a 
particular waste is subject to Subtitle C controls, the Agency believed 
that it was important and useful to receive public input regarding the 
manner in which EPA and authorized States apply this principle and 
solicited comment regarding the criterion for determining whether a 
waste is uniquely associated with mineral operations. The Agency has 
described non-uniquely associated wastes at 45 FR 76619, November 19, 
1980 and 54 FR 36623, September 1, 1989. In the May 1997 proposal, the 
Agency noted examples of non-uniquely associated wastes, which include 
spent solvents, pesticide wastes, and discarded commercial chemicals. 
As stated in the May 1997 proposal, in the Agency's view, these wastes 
are logically viewed as not being ``from'' extraction, beneficiation, 
or mineral processing, and, therefore, are not subject to the Bevill 
exclusion. (See 62 FR 26054-56, May 12, 1997).
    In May 1997, the Agency proposed several alternative approaches to 
determining whether a waste was uniquely associated. One option to 
determine if a waste is uniquely

[[Page 28591]]

associated was the simple application of the high volume threshold used 
in the Agency's 1989 rulemaking. Under this option, the volume 
criterion would obviate the need to consider the uniquely associated 
principle further.
    The Agency based this option on the fact that Congress and the 
courts have established that only large volume special wastes should be 
eligible for the Bevill exclusion (62 FR 26041, May 12, 1991; 
Environmental Defense Fund v. EPA, 852 F.2d 1316 (D.C. Cir 1988), cert. 
denied 489 U.S. 1011, Solite Corporation v. EPA, 952 F.2d 473, 494-495 
(D.C. Cir 1991)). The Agency reasoned that a large volume criterion is 
simple to apply and is consistent with the broad parameters of 
Congressional intent. Further, this approach would help prevent 
additional toxic constituents from being disposed with Bevill wastes, 
potentially encouraging recycling, and may result in reduction of 
cleanup costs.
    Industry commenters voiced strong opposition to the use of a volume 
criterion to determine whether a waste was uniquely associated. 
Commenters stated that the Bevill exclusion was intended to exempt all 
mining wastes, regardless of their volume or toxicity. As the 
regulatory history of EPA's implementation of the Bevill exemption 
makes clear, however, this is not the case. (see 54 FR 36592, September 
1, 1989).
    Nonetheless, while the Agency has used volume to make certain 
Bevill determinations, it has not in the past used the high volume 
criterion to make uniquely associated determinations. The Agency 
assessed the impact of applying a high volume criteria in making 
uniquely associated determinations and found that such an application 
would make virtually all such wastes non-uniquely associated and 
subject to Subtitle C controls, regardless of the extent to which the 
waste was, in fact, associated with mining and mineral processing. EPA 
does not believe that it would be appropriate to ignore altogether the 
extent to which a particular waste is associated with mining and 
mineral processing activities that are subject to the Bevill exclusion, 
since that exclusion on its face applies to wastes from those 
processes. In addition, the Agency believes that a certain degree of 
flexibility is needed for making uniquely associated determinations due 
to the complex and varied mineral operations and site-specific factors 
that must be considered in making these decisions. In today's rule, the 
Agency is, therefore, not adopting the use of a volume criterion to 
determine whether a waste is uniquely associated.
    The Agency also proposed an option where a waste would be uniquely 
associated if it came into direct contact with an ore or mineral or 
wastes from the extraction, beneficiation, or processing of ores and 
minerals. Several commenters expressed the view that, while contact can 
be one useful indicator of whether a waste is uniquely associated with 
mining, such contact should not be required in all cases. These 
commenters believed that the test should be whether the conduct of 
mining and mineral processing necessitates the generation of a 
particular waste; if so, then the waste should be considered uniquely 
associated. Other commenters believed that the ``contact'' principle 
was potentially overly broad, since it would have the potential to 
sweep into Bevill wastes that typically would not be considered 
uniquely associated. As proposed, however, the contact option would 
consider only contact that occurred as part of a processing operation.
    After consideration of public comments, the Agency has concluded 
that a strict application of the ``contact'' principle, while appealing 
because of its simplicity, would not provide the best means of 
determining whether a waste is uniquely associated with mining or 
mineral processing. The Agency is concerned that, while contact may be 
one indicator of when a waste is associated with the mineral recovery 
process where, for example, the contact with the process imparts 
chemical characteristics to the waste, EPA agrees with commenters that 
simple application of the contact principle has the potential to be 
over-inclusive of wastes that are properly viewed as ``uniquely 
associated.'' The Agency has not, therefore, adopted that criterion as 
being determinative of whether a waste is uniquely associated.
    The other option in the May 1997 proposal would modify the contact 
principle to exclude, as non-uniquely associated, wastes that only 
exhibit the same hazardous characteristic both before and after contact 
with the Bevill waste, feedstock, or product. This ``modified contact'' 
approach may reduce the potential for Bevill wastes to be dumping 
grounds for non-Bevill hazardous wastes. Under this approach, wastes 
that are inherently hazardous prior to contact with a Bevill waste, and 
which retain the same hazardous characteristic after contact, would be 
subject to Subtitle C regulation when discarded.
    Commenters pointed out that the Agency had never before proposed to 
use the hazardous characteristic to determine whether a waste was 
uniquely associated, nor had the Agency used this criterion in making 
uniquely associated determinations since 1980. They also pointed out 
that the Agency had already studied the hazardous characteristics of 
uniquely associated wastes but nevertheless stated that these wastes 
should not be subject to RCRA Subtitle C (51 FR 24496).
    Some commenters also contended that the real issue is whether the 
waste is indigenous to the mining and mineral recovery process--i.e., 
whether it is necessary to generate the waste in order to conduct the 
process--and that the hazardousness of a material prior to its use in 
the process is, therefore, irrelevant.
    EPA agrees, in part, with these commenters that the characteristics 
of a material (i.e., whether it is hazardous) prior to use in mineral 
recovery processes should not be solely determinative of whether the 
wastes are ``uniquely associated.'' As a general matter, the closer the 
nexus between a particular waste and the mineral recovery process, the 
more likely it is ``uniquely associated'' within the meaning of Bevill. 
The Agency recognizes, however, that one fact that might help evaluate 
the relationship between a particular waste and the mineral recovery 
process is the extent to which the properties of a particular waste can 
be attributed to the process itself. Thus, while the Agency does not 
believe that hazardousness of a material prior to use in the mineral 
recovery process should be determinative of its Bevill status after 
use, the extent to which the material has acquired attributes through 
its involvement in that process is relevant.
    Based on consideration of all the public comments, the Agency 
believes that it is appropriate to evaluate whether a particular waste 
is uniquely associated with mining and mineral processing as follows. 
First, any waste from ancillary operations are not ``uniquely 
associated'' because they are not properly viewed as being ``from'' 
mining or mineral processing. In evaluating wastes from non-ancillary 
operations, one must consider the extent to which the waste originates 
or derives from processes that serve to remove mineral values from the 
ground, concentrate or otherwise enhance their characteristics or 
remove impurities, and the extent to which the mineral recovery process 
imparts its chemical characteristics to the waste. Under this test, the 
greater the extent to which the

[[Page 28592]]

waste results from the mineral recovery process itself, and the more 
the process imparts to the waste its chemical characteristics, the more 
likely the waste is ``uniquely associated.''
    The Agency believes that this approach provides a reasonable basis 
to determine whether a waste is ``uniquely associated.'' The Agency 
believes that these factors touch on the full range of facts that are 
likely to be relevant in any particular case. As is evident from the 
criteria summarized above, judgment must be exercised where the 
question is whether a waste from a non-ancillary operation is uniquely 
associated. EPA believes that this is appropriate because of the fact-
specific nature of this determination and the myriad circumstances that 
can arise. However, as noted above, the Agency believes that wastes 
generated from ancillary operations (such as truck maintenance shops at 
a mine and not from the mining or mineral recovery process itself), are 
not uniquely associated. Such circumstances would likely present the 
most readily identifiable cases of non-uniquely associated wastes.
    The approach noted above reflects the longstanding principle, based 
on the clear language in Section 3001 of RCRA, that uniquely associated 
wastes must result from mining and mineral processes themselves. This 
approach also is generally consistent with industry's underlying 
contention that the uniquely associated concept should exempt wastes 
that are ``indigenous'' to mining. EPA disagrees, however, with 
industry's contention that uniquely associated wastes are any wastes 
that are unavoidably generated by mining operations. For example, 
arguably, it is unavoidably necessary to conduct maintenance on 
machinery that supports mining at a site (e.g., used to transport ores 
and minerals among processes); however, such maintenance is not 
necessarily part of the mining or mineral recovery process itself. EPA 
believes that the proper focus should be the extent to which a waste is 
generated as part of the mining and mineral recovery process, not the 
extent to which a facility must conduct an activity as part of its 
operation.
    The elements of the ``contact'' options discussed in the preamble 
to the proposal, as well as regulatory language contained in the May 
1997 proposed rule (see proposed 40 CFR 261.4(b)(7) (stating that 
exempt extraction and beneficiation wastes must ``originate from the 
extracted ore or mineral'')) may affect uniquely associated 
determinations. While, as discussed above, the Agency believes that 
sole reliance on a contact principle would be unjustifiably rigid, 
consideration of the extent to which the mineral recovery imparts to 
the waste its chemical characteristics provides a useful means of 
evaluating whether a waste is uniquely associated. The greater the 
extent to which the waste acquires its chemical characteristics from 
the process from the processing of an ore or mineral, the more likely 
that waste would be uniquely associated with the Bevill process. 
Conversely, the less a particular waste originated from or acquired its 
characteristics from such processes, the less likely it is uniquely 
associated.
    Some commenters asserted that the Agency's proposal represented a 
sharp departure from past Agency practice under the uniquely associated 
principle and would constitute, in effect, a revision of prior Bevill 
regulatory determinations. Neither contention is correct. While the 
Agency has articulated here its approach to the uniquely associated 
principle in more detail than previously, the Agency believes that the 
approach is fundamentally the same as how the Agency has applied the 
uniquely associated principle in the past. Second, the Agency is not, 
through the uniquely associated principle, seeking to revise past 
regulatory determinations that exempted extraction and beneficiation 
wastes and certain mineral processing wastes from Subtitle C 
regulation. The list of exempt extraction/beneficiation processes and 
mineral processing wastes in section 261.4(b)(7) is not altered by this 
approach. Even under these existing regulatory provisions, it was 
necessary to determine in certain cases whether a particular waste 
stream was, in fact, ``from'' (i.e., ``uniquely associated'' with) one 
of the enumerated Bevill processes. EPA's past regulatory 
determinations did not, therefore, obviate the need for determining the 
applicability of Bevill to particular waste streams. In this rule, EPA 
is simply ensuring that the uniquely associated criteria have the 
benefit of full public notice and comment; we have not, however, 
altered the scope of prior regulatory determinations through this 
process.
    Industry commenters nonetheless had concerns about certain 
applications of the uniquely associated principle articulated in the 
mineral processing identification document contained in the docket at 
proposal. In particular, commenters expressed concerns that the 
document concluded that spent kerosene in copper solvent extraction, 
crud from electrowinning, crucibles and cupels, and acid cleaning 
solutions from gold heap leaches are not uniquely associated. All of 
the wastes just noted are generated as a result of beneficiation. It 
should be noted that all wastes generated after the commencement of 
mineral processing are mineral processing wastes. As a result of the 
Agency's 1989 rule (54 FR 2322), all mineral processing wastes, except 
those noted in 40 CFR 261.4(b)(7), are subject to RCRA Subtitle C, if 
they exhibit a hazardous characteristic. Therefore, the effect of the 
uniquely associated principle is of less import than at beneficiation 
facilities.
    The Agency received numerous comments challenging the Agency's 
position that these wastes were not uniquely associated. Comments from 
the copper industry noted that slimes/muds, crud, and spent kerosene 
generated from copper solvent extraction and electrowinning were 
uniquely associated because these wastes had been determined by the 
Agency in 1989 (see 54 FR 36592) to be wastes from extraction and 
beneficiation. Based on these comments, the Agency has reassessed its 
prior conclusions regarding these wastes and agrees with the copper 
industry that slimes/muds, crud, and spent kerosene generated from 
copper solvent extraction and electrowinning are uniquely associated. 
40 CFR 261.4 states that wastes from solvent extraction and 
electrowinning are extraction/beneficiation wastes and are not subject 
to regulation under Subtitle C. Applying the approach described above, 
it is clear that solvent extraction and electrowinning are clearly not 
ancillary activities since their sole purpose is to concentrate copper 
values out of pregnant leach solution. The ``uniquely associated'' 
nature of these wastes is also supported by the degree to which the 
wastes originate and derive from the mineral recovery process. Thus, 
the Agency's view is that these wastes are ``uniquely associated'' with 
beneficiation.
    Comments received from the gold industry noted that acid wash 
solutions are generated solely from processes used to concentrate gold 
values from cyanide leach solutions. Again, the Agency has reassessed 
its earlier interpretation and now believes that acid wash solutions 
from gold heap leaching are uniquely associated. The Agency came to 
this conclusion in light of the non-ancillary nature of the process 
generating these wastes (carbon columns must be kept ``clean'' for the 
gold to be effectively recovered), the extent to which the wastes 
originate and derive from this mineral recovery process, as well as the 
fact that the process imparts some

[[Page 28593]]

chemical characteristics to the waste (i.e., the ore material that is 
cleaned from the carbon).
    Based on the approach articulated above, the Agency now believes 
that other wastes are best viewed as non-uniquely associated. For 
example, the Agency believes that lead anodes used in the 
electrowinning process are not non-uniquely associated wastes. While 
lead anodes are used in the mineral recovery process and thus could be 
viewed as uniquely associated based on this consideration in isolation, 
a countervailing consideration is that the mineral recovery process 
imparts virtually no characteristics to these materials. Lead anodes 
are virtually identical both before and after being used in the 
process. On balance, the Agency concludes that lead anodes are not 
uniquely associated with mining and mineral processing.
    The Agency also reassessed the status of cupels and crucibles and 
finds that they remain non-uniquely associated wastes. These wastes are 
the result of laboratory testing. Cupels and crucibles are also used in 
other industries (e.g., jewelry companies test the precious metal 
content of metals using cupels). These wastes are from an ancillary 
operation, laboratory analyses, and are not generated due to the direct 
recovery of gold and, therefore, fail to meet the Agency's uniquely 
associated criteria. It should also be noted that the Agency has 
consistently found that laboratory wastes are generally non-uniquely 
associated.
    As stated previously, the applications of the ``uniquely 
associated'' principle articulated here reflect the Agency's 
interpretation of the criteria as applied to those particular wastes 
based on the best current information available to EPA. Like the 
positions articulated in the Identification Document, these calls 
represent the Agency's current best evaluation of whether these wastes 
are ``uniquely associated,'' based on available information. However, 
the discussion above and in the Identification Document simply provides 
guidance on these issues, and therefore, the determinations are not 
legally binding on decisionmakers, the public, or the courts.
    Finally, one commenter argued that the uniquely associated 
principle as discussed by EPA is an impermissible reading of the Act to 
the extent it would authorize EPA to consider factors other than high 
volume/low toxicity in making Bevill determinations. The Agency 
disagrees with this position. The Court in EDF II directed the Agency 
to apply a high volume/low toxicity criteria to determine if a mineral 
processing waste would retain the Bevill exclusion. The uniquely 
associated inquiry is somewhat different. The question here is the 
threshold issue whether a particular waste is ``from'' extraction, 
beneficiation or mineral processing in the first place. The Agency does 
not believe that the decision in EDF II spoke to that inquiry. Rather, 
EDF II was concerned solely with the circumstances under which a waste 
that is ``from'' these processes qualifies for the Bevill exclusion. 
Stated another way, a waste is only subject to the Bevill exclusion if 
it is, in fact, ``uniquely associated'' with extraction/ beneficiation 
or one of the 20 exempt mineral processing wastes. Thus, the uniquely 
associated principle does not expand the scope of the Bevill exemption, 
and the Agency's approach is, therefore, entirely consistent with the 
decision in EDF II.
    b. Addition of Mineral Processing Secondary Materials to Units 
Processing Bevill Raw Materials. The question addressed in this section 
is: if a Bevill extraction/beneficiation process uses as feedstock a 
mineral processing secondary material which otherwise would be a 
hazardous waste, would the resulting wastes still be considered to be 
from extraction/beneficiation and hence Bevill exempt?
    There are two bases for potential environmental concern prompting 
this question. The narrower issue is that if otherwise-hazardous wastes 
are used as partial feedstocks, could they change the resulting wastes' 
character in a manner such that the existing exclusion should no longer 
apply, or, put another way, is the Bevill exemption being used to 
shield disposal of non-exempt hazardous wastes? The broader issue is 
whether the Bevill amendment, which creates an exemption from rules 
designed to protect the public and the environment from unsafe 
hazardous waste disposal practices, should be interpreted any more 
broadly than necessary given that the effect is to exempt more waste 
from protective controls.
    EPA proposed two different answers to these questions. In the 
January 1996 proposal, the Agency proposed to apply the same 
``significantly affected'' test used in the partially analogous context 
of a Bevill device which co-processes hazardous waste along with normal 
raw material feedstock. 61 FR at 2351 and 40 CFR section 266.112. So 
long as resulting wastes from the extraction/beneficiation process were 
not ``significantly affected'' by the addition of hazardous secondary 
materials, resulting wastes would remain exempt. Id. Significantly 
affected meant either that the resulting wastes reflecting co-
processing were statistically different over the non-waste baseline, or 
that there was an environmentally significant increase in hazardous 
constituents over the non-waste baseline. Id.
    The May 1997 proposal would have gone further and interpreted the 
Bevill amendment narrowly (a common rule of construction when 
construing exceptions to plenary protective regulatory schemes to apply 
only to situations when extraction/beneficiation raw material 
feedstocks are utilized) to apply only to situations when extraction/
beneficiation raw material feedstocks are utilized (see 62 FR at 
26052).
    After reviewing the public comments, the Agency has decided not to 
adopt either of these alternatives. As explained below, EPA ultimately 
has decided that the likely result of either proposal would be 
unwarranted disruption to legitimate (and desirable) recovery practices 
within the industry. Nonetheless, as discussed in the final subsection 
of this part of the preamble, the Agency retains concerns that the 
Bevill amendment not be used as a means of shielding disposal of non-
Bevill hazardous wastes, and therefore cautions that the Agency intends 
to scrutinize especially carefully claims of legitimate recycling when 
hazardous secondary materials are co-processed in extraction/
beneficiation operations.
    (i) Should the Bevill amendment apply only when virgin materials 
are processed in extraction/beneficiation operations? In the Agency's 
May 1997 proposal, EPA sought comment on whether a narrow reading of 
the Bevill exclusion should be implemented which would limit the 
availability of the Bevill exemption to wastes generated exclusively 
from the use of Bevill raw materials, namely ores and minerals. Under 
this approach only 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 any alternative materials were used as feedstocks, 
the resulting waste would not be eligible for the Bevill exclusion. 62 
FR at 26052.
    In today's rule, the Agency is declining to pursue this option. 
Industry comments were uniformly opposed. Industry noted that since 
1989, the Agency has established a clear use of the 50 percent rule and 
was well aware that the co-processing of a range of materials was 
occurring at both extraction/beneficiation and mineral processing 
facilities when it finalized its

[[Page 28594]]

1989 rulemaking (see 54 FR 33620, September 1, 1989). Industry further 
pointed out that in the 1989 rulemaking the Agency found that 20 
mineral processing wastes (see 40 CFR 261.4(b)(7)) would retain their 
Bevill exempt status even though co-processing was occurring. Industry 
also noted that the Agency had not presented any data to confirm that 
the co-processing of virgin and non-virgin materials would actually 
increase risks to the environment. Public interest groups on the other 
hand indicated that the proposed option more closely follows the intent 
of Congress to limit the Bevill exemption to high volume, low toxicity 
wastes.
    The Agency has reviewed the data on co-processing of non-virgin and 
virgin material and finds that it did evaluate co-processing issues in 
its 1990 Report to Congress on Wastes from Mineral Processing (EPA 
Office of Solid Waste, July 31, 1990). This review, as it relates to 
the 20 mineral processing waste streams that are still exempt, found 
that co-processing had not significantly changed the hazardous 
properties of the resultant wastes.
    The Agency noted in its proposal that it was unaware of the extent 
of co-processing at extraction/beneficiation facilities, particularly 
after 1985. Industry comments noted that background reports to the 
Agency's 1985 ``Report to Congress on Extraction and Beneficiation 
Wastes'' (EPA Office of Solid Waste, December 31, 1985) discussed this 
co-processing issue. Agency review of these documents indicates that 
while some references to feedstocks are discussed, the Agency was not 
aware of the extent of this practice until it began to restudy mining 
and mineral waste management practices in 1989 and initiated a series 
of visits to mines and mineral processing facilities in 1991-92.
    Industry also submitted comments indicating that implementing this 
option would have significant adverse impacts on the mining and mineral 
processing industries. The Agency assessed industry comments and 
conducted its own economic analysis. The Agency found that 
implementation of this option may reduce current recycling in the 
copper and lead sectors, and could cause potentially serious economic 
disruption to industry. (See EPA's Regulatory Risk Impact Analyses.) 
Both the gold and copper sectors pointed out that they routinely 
reintroduce mineral-bearing streams from their processing activities 
into their beneficiation plants to further recover metal values. Such 
practices would diminish if this option were implemented, since 
affected extraction/beneficiation operations would not recycle 
secondary materials if the result is to lose Bevill status of the 
resulting wastes. It makes little sense for the Agency to implement a 
program which may reduce recycling where its knowledge of the 
environmental benefit of the approach is limited.
    (ii) Significantly Affected. Under the Agency's January 1996 
proposal, mineral processing secondary materials could be introduced 
into beneficiation units generating Bevill-exempt wastes (without 
affecting the wastes' Bevill status) if they were legitimately 
recycled, secondary materials comprised less than 50% of the total feed 
to the unit, and the resulting wastes were not ``significantly 
affected'' by the recycling practice.
    EPA has decided to adopt the proposed approach except the Agency 
has decided not to adopt the proposed ``significantly affected'' test 
in today's final rule. It should be pointed out that small volumes of 
mineral processing secondary materials likely to be recycled at 
beneficiation facilities would be processed along with enormous 
quantities of raw ore. Therefore, the probability that the introduction 
of such materials would affect the characteristic of the resultant 
wastes is very low.
    Given the likelihood of minimal environmental effect, the Agency 
must therefore judge whether the benefits of encouraging recycling 
these materials outweigh the potential additive risks that, however 
unlikely, could potentially occur in unusual cases. The Agency has 
decided that, from both an implementation and an overall environmental 
perspective, not requiring a ``significantly affected'' evaluation 
makes sense. While it is possible that adoption of a ``significantly 
affected'' test might catch the unusual circumstance where addition of 
secondary materials substantially changes the characteristics of the 
resultant wastes, imposing such a requirement could potentially have a 
chilling effect on the amount of secondary material that the industry 
recycles. This is because industry would not risk imperilling Bevill 
status, since a consequence could be RCRA permitting and facility-wide 
corrective action potentially affecting areas of historic 
contamination. From an environmental perspective, EPA believes that the 
benefits of recycling such materials are substantial, and far outweigh 
the largely marginal benefits that could be associated with requiring a 
``significantly affected'' analysis on a waste stream by waste stream 
basis.
    EPA originally viewed the situation presented here as analogous to 
when hazardous wastes are co-processed in Bevill units, and so proposed 
the identical test for resulting residues. 61 FR at 2351. On 
reflection, there are important distinctions between the two fact 
patterns. EPA applies the ``significantly affected'' tests when what 
are admittedly hazardous wastes are co-processed. The usual case is 
when a hazardous waste fuel is burned in a Bevill unit (like a cement 
kiln) which also processes normal raw materials. The hazardous wastes 
can contribute more and different hazardous constituents not normally 
found in the raw materials. In the extraction/beneficiation example, 
however, the mineral processing secondary materials are being used as 
feedstock precisely because those materials share attributes found in 
raw materials (i.e., recoverable amounts of metals). Because the rule 
limits co-processing to mineral processing secondary materials, such 
materials would typically be similar in nature to the raw materials 
being processed, making it far less likely that co-processing would 
significantly alter the attributes of resulting wastes. In addition, 
unlike the burning in furnaces example noted above, the mineral 
processing secondary materials being recycled are not hazardous wastes. 
Although they are secondary materials, the Agency has decided to 
exclude them from the regulatory definition of solid waste (assuming 
legitimate recycling) because the activity resembles normal reclamation 
practices within the industry. Put another way, since the mineral 
processing secondary materials are from the same industry sector and 
are being reclaimed within the same industry, they can be viewed as 
secondary materials which are not wastes. It is, thus, less appropriate 
to apply a significantly affected test to these non-waste feedstocks.
    EPA also was unable to apply the ``significantly affected'' test in 
a manner that would focus on those secondary materials that actually 
could cause significantly increased environmental risks. The proposed 
test was the Burning in Furnaces (BIF) 2-part test, which would 
function in a different manner in this rule. Under the BIF rule, the 
concern was with the use of hazardous wastes from outside industries, 
and residuals rarely fail the second part of the test, exceeding the 
hazardous characteristic. Here, we are dealing with materials from 
within the industry, metal values are reclaimed, and wastes typically 
exhibit a hazardous characteristic. Since mineral processing

[[Page 28595]]

secondary materials often contain other metals in them, the resultant 
wastes from co-processing may show statistical increases or decreases 
in the metals content of the resultant wastes. The increases or 
decreases in metal constituents, however, does not necessarily mean 
that risk has increased. An increase in one constituent may be offset 
by a decrease in another constituent or by additional volumes of raw 
material feedstocks that would be needed to replace the mineral 
processing secondary materials. The application of the proposed test 
therefore could not be effectively used to determine if risks would 
increase if secondary materials are co-processed at beneficiation 
facilities.
    (iii) Conclusion. For these reasons, the Agency has decided to 
retain as a condition for retaining Bevill status the standard 
requirement that an extraction/beneficiation unit processes at least 50 
percent raw material. 54 FR at 33620 (Sept. 1, 1989); 50 FR at 49190 
(Nov. 25, 1985); and 56 FR at 7198 (Feb. 21, 1991) (previous instances 
where EPA has used this test); 61 FR at 2351 (proposal of that test 
here). If the 50 percent criterion is met, the resulting waste would 
still be from extraction/beneficiation and hence exempt. Raw materials 
can be mineral processing secondary materials and be placed into units 
generating Bevill-exempt wastes provided that the facility legitimately 
recycles these materials.
    The proviso is important. EPA repeats that the Bevill amendment is 
not to serve as a means of disposing of non-Bevill hazardous wastes. As 
explained later in the preamble, if a hazardous waste is mixed with a 
Bevill waste, the mixing is regulated under RCRA Subtitle C, and the 
mixed wastes may be Subtitle C hazardous wastes. While the mixture rule 
does not apply when materials are placed in a beneficiation unit for 
legitimate recycling, it would apply if a hazardous secondary material 
is not being recycled legitimately. See U.S. v. Self, 2 F.3d at 1071, 
1079 (10th Cir. 1993)(sham recycling is simply hazardous waste disposal 
or treatment).
    It should also be pointed out that today's rule prohibits the 
storage on the ground of any characteristically hazardous mineral 
processing secondary material. Should a beneficiation facility wish to 
legitimately reclaim such materials, it should be aware that placement 
of these materials in raw material piles may change the RCRA status of 
the pile.
    c. Bevill Mixture Rule and Disposal. Disposal of waste mixtures is 
the focus of this section. The Agency promulgated the Bevill mixture 
rule in 1989 (see 54 FR 36592). That rule was remanded to the Agency in 
Solite Corp v. EPA, 952 F.2d 473, 493-94 (D.C. Cir. 1991). EPA 
reinstated the mixture rule in 1992; however, this reinstatement was 
found to be procedurally defective in Mobil Oil v. EPA, 35 F. 3d 579 
(D.C. Cir. 1994).
    In the January 1996 proposal, the Agency proposed that if any 
mineral processing hazardous waste, or indeed any hazardous waste, is 
mixed with and disposed with a Bevill waste, the resulting waste is, 
under certain circumstances, regulated under RCRA Subtitle C. The 
Agency further stated that the mixture of Bevill wastes and hazardous 
wastes would normally be regulated as a form of treatment subject to 
regulation under Subtitle C. The Agency stated its concern about the 
potential human health and environmental risks due to increased 
hazardous constituents resulting from the disposal of mixtures of 
hazardous waste with Bevill-exempt wastes. The Agency based the 
proposal on the policy that Bevill wastes not be allowed to serve as an 
unregulated dumping ground for hazardous wastes. Cf. Horsehead Resource 
Development Co. v. Browner, 16 F. 3d at 1258.
    The rule being adopted today is a reinstatement of the mixture rule 
promulgated in 1989. The Agency continues to believe that the approach 
adopted in 1989 is sound, and properly balances the objectives of the 
Bevill amendment with those of RCRA as a whole. While commenters 
criticized EPA on the grounds that the prior mixture rule has twice 
been struck down by the courts, those decisions did not address the 
merits of the Bevill mixture rule.
    One clarification of statements in the 1996 proposal is in order. 
The Agency stated that the proposed rule differed from the 1989 Bevill 
mixture rule in that the earlier rule had exempted mixtures of Bevill 
wastes and characteristic hazardous wastes from requirements pertaining 
to treatment. See 61 Fed. Reg. 2352. This statement was, however, in 
error. The Agency stated in the 1989 rulemaking that such mixing would, 
in fact, constitute treatment of a hazardous waste, and would be 
subject to the appropriate regulation for treatment storage and 
disposal of hazardous wastes, including obtaining a permit. 54 Fed. 
Reg. 36622. Thus, the Agency is not taking a more stringent approach to 
regulating mixtures than was taken in 1989. As in 1989, moreover, the 
Agency is not amending in any way the definition of treatment, storage, 
or disposal of hazardous wastes; nor is the Agency promulgating any 
specific provisions related to how those definitions apply to mineral 
processing wastes. The Agency is simply stating that mixtures of Bevill 
and non-Bevill wastes can, depending upon the particular facts, 
constitute treatment, storage or disposal under the existing regulatory 
program.
    Industry commenters generally opposed the proposed mixture rule. 
Several commenters argued that the proposed rule was contrary to the 
Act because it undermined the protection that the Bevill amendment was 
intended to provide the industry. These commenters argued that the 
legislative history indicates Congress intended the Bevill amendment to 
be read broadly, to incorporate waste products generated in the ``real 
world,'' and that Congress recognized co-management of wastes practiced 
by the industry occurred in the ``real world.'' According to these 
commenters, integrated facilities conducting extraction, beneficiation 
and processing operations at a single location have historically co-
managed wastes from these operations, including certain newly 
identified mineral processing wastes, and the proposed rule would 
effectively undermine the protections of the Bevill amendment for these 
operations. One commenter contended that the mixture rule would subject 
``high volume/low hazard'' waste mixtures from the mining and mineral 
processing industry to Subtitle C regulation without having conducted 
the special study and regulatory determination process set forth in 
section 3001 of RCRA. Since such mixtures of wastes are ``high volume/
low hazard,'' these commenters argued that section 3001, as construed 
by the Court in EDF v. EPA, 852 F.2d 1316 (D.C. Cir. 1988), mandates 
exclusion of those wastes from regulation under Subtitle C.
    After careful consideration of these comments, EPA has concluded 
that they misconstrue the scope of the Bevill amendment, and that the 
proposed approach to Bevill mixtures is a reasonable one. First, the 
Agency disagrees with these commenters' interpretation of the Bevill 
amendment as applying to not only to ``special wastes'' themselves, but 
also to any other hazardous waste that may be co-managed with them. 
Congress simply provided that ``solid waste from extraction, 
beneficiation and processing of ores and minerals'' are not subject to 
Subtitle C. RCRA Sec. 3001(b)(3)(A). Congress did not, as these 
commenters suggested, apply this exclusion to such wastes ``and other 
hazardous wastes that may be co-managed'' with them. Rather, Congress 
endorsed EPA's conclusion that high volume/low toxicity ``special 
wastes'' deserved special treatment

[[Page 28596]]

under the Act by virtue of the difficulties that would be associated 
with managing these wastes under the Subtitle C program. Moreover, 
EPA's decade-long effort to demarcate the line between special wastes 
and non-excluded wastes was premised on the notion that the line 
between them is of some significance. If any hazardous waste can come 
within the scope of the Bevill amendment simply by being mixed with 
Bevill waste, that line becomes blurred, potentially creating a 
universe of excluded wastes far beyond that envisioned by Congress when 
it enacted the Bevill amendment.
    The Court in EDF II indicated that those mineral processing wastes 
which did not meet the high volume/low toxicity criteria should be 
fully subject to Subtitle C. The Agency, in today's rule, has taken 
prudent steps to encourage the legitimate recycling of hazardous 
secondary materials. If hazardous mineral processing wastes can not be 
recycled and must be disposed, the Agency finds nothing in EDF II which 
precludes the Agency from treating these hazardous wastes like any 
other hazardous wastes. It should also be pointed out that today's rule 
does not affect the disposal of extraction/beneficiation wastes as long 
as there is no mixing of non-exempt hazardous wastes with them. EPA 
believes that this rule is consistent with the scope of the Bevill 
amendment because it maintains the Bevill exclusion for mixtures that 
are hazardous due solely to any hazardous constituents of the Bevill 
waste. The fact that these resulting wastes retain their Bevill status 
does not mean, however, that the act of storing, treating, or disposing 
of hazardous wastes with Bevill wastes should be exempted from normal 
Subtitle C controls.
    EPA also disagrees with the notion advanced by some commenters that 
EPA is required by section 3001 to conduct a study to determine whether 
mixtures of Bevill and other wastes meet the high volume/low toxicity 
test and thereby merit being covered by the Bevill amendment. EPA reads 
section 3001 as mandating that EPA study wastes generated by the mining 
and mineral processing industry for purposes of determining whether 
particular waste streams are subject to the Bevill amendment. EPA has 
done so and determined that mineral processing wastes that do not meet 
the high volume/low toxicity threshold are not subject to Bevill. EPA's 
orderly decision-making (see 54 FR 36592 and 55 FR 2322), would be 
undermined if the Agency were then required to revisit these 
determinations based upon how facilities happen to manage their wastes.
    Stated another way, EPA reasonably based its Bevill regulatory 
determinations on the volumes of each type of mineral processing waste 
generated within the industry; the Agency does not believe it is 
reasonable to interpret section 3001 as mandating that EPA disregard 
the volumes in which wastes are generated and instead base its 
determinations on the vagaries of how those waste streams may be 
aggregated through industry's disposal practices. Such a result would 
be counter to EPA's special waste concept, and ignore the fact that 
mineral processing wastes streams that are not generated above Bevill's 
high volume/low toxicity threshold would, in fact, be amenable to 
management under Subtitle C. Thus, the commenter's interpretation would 
effectively allow the mining and mineral processing industry to 
``bootstrap'' smaller volume wastes into Bevill simply by co-disposing 
them with Bevill wastes. The Agency and the courts have never 
interpreted Bevill in such an awkward fashion, and the Agency declines 
to follow such an approach here.
    The Agency does not agree with comments that any change to the 
Bevill mixture rule would effectively eliminate Bevill for integrated 
facilities. Today's rule does not change the Bevill status of 
extraction/beneficiation wastes nor does it alter the Bevill status of 
20 mineral processing wastes (see 40 CFR 261.4). Since a large number 
of ``newly identified'' mineral processing waste streams become subject 
to the LDR, the Agency took steps to clarify the status of non-exempt 
``Bevill'' wastes (i.e. mineral processing wastes not within the scope 
of the Bevill amendment) in this rulemaking. The Identification report, 
placed in the docket in January 1996, was developed by the Agency to 
assist companies in determining if wastes were or were not exempt. The 
Agency sought comment on the draft Identification document and has 
finalized this report. This report is, however, guidance. Mineral 
processing companies now have the ability to identify the status of 
each waste stream and to cease mixing non-exempt hazardous wastes with 
exempt waste streams.
    Regarding commenters' critique of the concerns expressed by EPA in 
the proposal justifying the proposed mixture rule, the Agency continues 
to be concerned about the mixture of hazardous wastes with Bevill 
exempt wastes for treatment, storage or disposal. The Agency has noted 
earlier that it is not imposing the significantly affected option 
because the mixture of hazardous secondary materials with feedstocks 
does not appear to adversely affect risk. This is so because the 
mixtures are destined for legitimate recovery of metal, acid, water or 
cyanide, or other values. Mixtures destined for disposal will not have 
any of their hazardous constituents removed or other values utilized 
and may contribute to the waste disposal problem. Nor is there the 
slightest indication in law that normal Subtitle C rules should not 
apply to disposal of normal Subtitle C hazardous wastes.
    Commenters did point out several errors made by EPA in the proposed 
rule language. Many commenters noted that there was an inconsistency 
between the preamble of the January proposal and its proposed 
regulatory language. The proposed regulatory language inadvertently 
omitted language in the general mixture rule stating that mixture of a 
solid waste with a hazardous wasted listed solely because it exhibits a 
characteristic identified in Part 261 subpart C is a hazardous waste 
``unless the resultant mixture no longer exhibits any characteristic of 
hazardous waste. . . `` 40 C.F.R. 261.3(a)(2)(iii). It was not EPA's 
intent to propose deleting this language, and it therefore is included 
in the final rule.
    In addition, as pointed out by commenters, the proposed language 
failed to track the preamble discussion of mixtures of Bevill wastes 
and characteristic hazardous wastes (as well as wastes that are listed 
because they exhibit a hazardous characteristic). Under the proposed 
rule language, mixtures of Bevill wastes and hazardous wastes would be 
a hazardous waste whenever it exhibited a hazardous waste 
characteristic, even where that characteristic was imparted to it 
solely from the Bevill waste. (See proposed section 261.3(i).) As shown 
by the preamble, this was clearly not EPA's intent, which was to 
preserve the Bevill exclusion for mixtures that are hazardous solely 
because of the Bevill component of the mixture. See 61 FR 2352-53.
    Conversely, the preamble, although ambiguous in spots on this 
issue, did say at one point that mixtures of characteristic hazardous 
waste and Bevill wastes would be considered hazardous waste only if the 
mixture continued to be hazardous due to characteristics imparted to it 
by the non-Bevill waste. 61 FR at 2352. If the mixture exhibited a 
hazardous characteristic due solely to the Bevill waste, the Agency did 
not intend to designate the mixture as a hazardous waste.

[[Page 28597]]

    Consistent with that discussion, under today's rule, the Agency has 
decided that if Subtitle C hazardous waste exhibiting a characteristic 
is mixed with Bevill-exempt waste exhibiting the same characteristic 
and the mixture continues to exhibit that common characteristic, then 
the entire mixture should be considered to be non-exempt hazardous 
waste. This result is consistent with normal rules on when wastes are 
hazardous, which state that if a waste exhibits a hazardous waste 
characteristic, it remains a hazardous waste unless and until it no 
longer exhibits a characteristic. 40 CFR 261.3(d)(1). In addition, such 
a principle will make this rule easier to administer (should this 
situation actually occur), since enforcement officials will not have to 
parse out which portion of the waste mixture is imparting the 
characteristic property. Finally, the result is consistent with the 
overall object of today's rule: not to let Bevill wastes be used as a 
means of allowing unregulated management of normal Subtitle C hazardous 
wastes.
    Several commenters noted concern that existing exemptions to the 
Agency's mixture rule, such as that given to totally enclosed treatment 
facilities and elementary neutralization units, would be eliminated 
under this rule. The Agency reiterates that this rule does not alter in 
any way the current Agency mixture rule. The purpose of this rulemaking 
is to place the mixing of hazardous wastes that may occur at mineral 
processing plants on the same status as all other hazardous waste 
management.
    (i) Illustrations of how today's rule operates. Although the 
regulatory parlance for today's rule has always been the ``Bevill 
mixture rule'', the greatest practical consequence of the rule is 
probably on the units where mixing occurs. This is because units (i.e. 
tanks, impoundments, piles, landfills, etc.) where hazardous wastes are 
placed will (absent some exemption or exclusion other than that 
provided by the Bevill amendment) be regulated units, i.e. units 
subject to Subtitle C standards for treatment, storage, and/or 
disposal. This point is illustrated by the following examples, which 
also illustrate the effect of the rule on the resulting mixtures:

    Example 1. Facility A generates F 001 listed spent solvents 
which it mixes with a solid waste that has Bevill exempt-status. The 
mixing occurs in a landfill.
    The landfill is a regulated unit because hazardous waste--F 
001--is being disposed in it. (Among other things, this means that 
the F 001 wastes could not be placed in the landfill until the LDR 
treatment standard is satisfied.) In addition, all of the wastes 
with which the F 001 wastes are mixed are hazardous wastes carrying 
the F 001 waste code by application of the mixture rule.
    Example 1a. Same facts as in example 1, except that the waste 
being mixed is F 003 spent solvent, a waste listed only because it 
exhibits a characteristic of hazardous waste.
    The landfill becomes a regulated unit for the same reason as in 
example 1. (See Chemical Waste Management v. EPA, 976 F.2d at 20 n.4 
and 24 n. 10 (placement of waste which is hazardous for any amount 
of time in a unit subject that unit to Subtitle C regulation); 61 FR 
at 2352 (same). However, the status of the resulting waste mixture 
is determined by the principles for characteristic hazardous wastes, 
illustrated below.
    Example 2. Facility B generates a characteristic ignitable 
solvent which it adds to a surface impoundment containing a Bevill-
exempt waste that would exhibit the TC for lead. The resulting 
mixture exhibits TC for lead but is no longer ignitable.
    The surface impoundment is a regulated unit, since it is engaged 
in treatment (elimination of the ignitability characteristic) and 
disposal (the placement of the ignitable waste). The remaining 
wastes in the unit retain their Bevill-exempt status because they do 
not exhibit the characteristic property of the non-Bevill hazardous 
waste. Thus, if the waste were to be removed from the impoundment 
and disposed elsewhere, disposal need not occur in a regulated unit.
    Example 3. Facility C generates a characteristic hazardous waste 
exhibiting TC for lead which it mixes in a tank with Bevill-exempt 
wastes which also would exhibit the TC for lead. The resulting 
mixture continues to be TC for lead.
    The tank is engaged at least in storage of hazardous waste, and 
possibly treatment (depending on how the D008 hazardous waste is 
affected by the mixing). If waste is removed from the tank, it 
remains subject to Subtitle C because it continues to exhibit the 
characteristic of the non-exempt hazardous waste.

    d. Remining. The Agency clarified in its January 1996 proposal that 
the removal of historically land placed mineral processing wastes for 
the purposes of mineral recovery would not constitute disposal for 
purposes of triggering Subtitle C. Moreover, removal of wastes would 
not render the historic disposal unit subject to RCRA hazardous waste 
requirements (see 53 FR at 51444, December 21, 1988). The Agency is 
today again clarifying that removal of waste from a unit does not 
constitute disposal for the purposes of triggering Subtitle C 
regulation.
    Commenters noted that the proposed mixture rule would in effect 
eliminate opportunities for remining. The Agency disagrees. As noted 
previously, the mixture restrictions in today's rule deals primarily 
with disposal of mixtures. The mixture rule therefore, will not affect 
the co-processing of historically disposed mineral processing secondary 
materials with other feedstocks.
6. Responses to Court Remands
    a. Applicability of the Toxicity Characteristic Leaching Procedure 
(TCLP) to Mineral Processing Wastes. In the January 1996 proposal, the 
Agency proposed to continue using the TCLP (SW-846 Test Method 1311) as 
the basis for determining whether mineral processing wastes and 
manufactured gas plant wastes exhibit the toxicity characteristic (TC) 
of hazardous wastes, and developed a record supporting this position. 
When the Agency promulgated the TCLP method for testing whether wastes 
exhibit the toxicity characteristic, the applicability of the TCLP test 
to mineral processing wastes was challenged in Edison Electric 
Institute v. EPA, 2 F.3d 438 (D.C. Cir. 1993) (``Edison''). The Court 
held that the information in the record at the time was insufficient to 
show a rational relationship between the TCLP and a likely 
mismanagement scenario for mineral processing wastes.
    Under the Court's holding, the Agency must at least provide some 
factual support that such a mismanagement scenario is plausible (2 F.3d 
at 446-47). The Agency is addressing this remand in today's final rule 
because any applicable land disposal restrictions would have little 
meaning unless the Agency has a basis for determining whether these 
mineral processing wastes are hazardous, and, therefore, subject to the 
restrictions.
    Under the Court's ruling in Edison, the application of the TCLP 
test to mineral processing wastes is appropriate if the evidence 
available to EPA shows that disposal of such wastes in municipal solid 
waste landfills (MSWLF) is a ``plausible'' mismanagement scenario (not 
necessarily requiring that it be typical or common) 2 F.3d at 446. 
Moreover, it is sufficient if there is ``evidence or explanation on the 
record to justify a conclusion that mineral wastes ever come into 
contact with any form of acidic leaching medium.'' Id. at 447.
    In considering the plausibility of this mismanagement scenario, the 
Agency has first carefully evaluated those circumstances that industry 
has argued make such mismanagement implausible. Industry has argued 
that co-disposal with municipal solid waste is not plausible because 
the huge volumes in which the wastes are generated could simply not be 
handled by an MSWLF. EPA has, however, conducted a comprehensive review 
of such wastes and concluded that many wastestreams are generated at 
low volumes. (See

[[Page 28598]]

Characterization of Mining and Mineral Processing Wastestreams, USEPA, 
1998.) Thus, the volumes in which mineral processing wastes are 
generated do not render disposal in an MSWLF implausible.
    Industry comments also indicated that the location of its 
facilities were remote and not close to municipal landfills. Based on 
physical location alone, industry suggested that disposal of their 
wastes in municipal landfills was very unlikely. This contention is 
not, however, supported by the facts. The Agency evaluated the location 
of mineral processing facilities and found that a considerable number 
of them are located east of the Mississippi River and some are located 
in or near urban areas. (see Population Studies of Mines and Mineral 
Processing Sites, 1998, U.S. EPA.) This report indicates that there is 
factual information which rebuts the industry's position that the 
location of mineral processing facilities is routinely so remote so as 
to make co-disposal with municipal solid waste implausible. Thus, based 
on the Agency's population study noted above, the Agency concludes that 
some mineral processing facilities are in fact located in or near urban 
areas and their location in such urban areas means that it is plausible 
that their wastes could be disposed of in urban landfills.
    Factual information collected by the Agency (made available for 
public comment) supports the conclusion that mineral processing wastes 
may plausibly be disposed of with municipal solid wastes. Industry 
comments contested EPA's factual basis for the landfill disposal cases 
found in Applicability of the Toxicity Characteristic Leaching 
Procedure to Mineral Processing Waste, U.S. EPA, 1998. Industry 
commenters contended that the cases presented by the Agency do not 
reflect current waste management practices (which primarily involve on-
site disposal). Industry commenters also argued that the facts of 
particular cases did not, in fact, support the conclusion that co-
disposal had occurred. EPA has reviewed the information and concluded 
some of these comments had merit, and EPA has deleted from the final 
document those cases for which there was not sufficient information to 
be relied upon by the Agency. However, even after a careful sifting of 
the case studies, there continues to be evidence to support the 
conclusion that co-disposal of mineral processing wastes with municipal 
solid waste is plausible. While most mineral processing wastes are 
generated in large volumes and disposed on-site as industry contends, 
the Agency has found that some mineral processing wastes are placed in 
dumpsters, or similar containers, and shipped off-site for commercial 
disposal.
    These cases include, but are not limited to, co-disposal of mineral 
processing wastes from the refining of alumina, copper, gold, ferrous 
metals, lead, silver, and zinc. Such wastes have been disposed in 
MSWLFs in various states throughout the United States. The Agency also 
found several cases where manufactured gas plant wastes were disposed 
in MSWLFs. (See Applicability of the Toxicity Characteristic Leaching 
Procedure to Mineral Processing Waste, U.S. EPA, 1998.)
    EPA acknowledges that the information obtained by the Agency does 
not show that the mismanagement scenario is either typical or common, 
but such a level of proof is not required. Edison, 2 F.3d at 446. It 
is, moreover, not surprising that the practice does not appear to be 
widespread because, since 1989, disposal of any non-Bevill hazardous 
mineral processing wastes in a municipal solid waste landfill has been 
illegal. Nonetheless, since some mineral processing facilities are 
located near urban areas and generate low volume wastes, and some of 
these facilities appear to have, in fact, co-disposed of these wastes 
in this manner, EPA believes it is reasonable to conclude that 
application of its mismanagement scenario to mineral processing wastes 
is reasonable; that is, if these wastes were no longer identified as 
hazardous by means of the TCLP, then the type of improper disposal 
which occurred in the past could resume.
    Industry commenters further contend that an alternative test, the 
Synthetic Precipitation Leaching Procedure (SPLP), is more appropriate 
for mineral processing wastes. The National Mining Association (NMA) 
noted in its comments that the leach solution used in the SPLP test 
protocol would more accurately reflect the environmental exposure of 
mineral processing wastes. The SPLP test uses a leach solution which 
mimics acid rain, while the TCLP uses a leach solution which mimics 
acids formed in municipal landfills. The TCLP test therefore uses a 
leach solution which is more acidic that the SPLP test. However, 
``[n]othing in [RCRA] requires EPA to tailor the TCLP to the conditions 
to which mineral wastes are typically exposed.'' Edison, 2 F.3d at 443. 
If that were the case, it would not have been appropriate for EPA to 
even have adopted a generic mismanagement scenario as the basis for 
establishing its approach for testing for the hazardous characteristic. 
This approach has, however, been upheld as a reasonable exercise of the 
Agency's discretion. Id.
    Industry commenters supplied data indicating that the TCLP is more 
aggressive than the SPLP for most metals and especially lead. Certain 
states supported use of the test under all or limited circumstances. 
EPA received very limited data comparing the leach tests. Because these 
data were extremely limited, the Agency still does not have data 
broadly comparing TCLP results to SPLP results for a range of mineral 
processing waste streams. Industry-supplied data appear to indicate 
that the SPLP test generates results which show lower levels of lead 
than comparable results using the TCLP. Thus, due to the limited amount 
of data, the Agency is unable to determine if the SPLP would routinely 
show lower levels of lead, or how the two tests compare when analyzing 
other metals or whether such lower levels would, in fact, better 
reflect actual field conditions than would the TCLP. At bottom, the 
fundamental issue is not whether one test is more conservative than the 
other. Rather, the issue is whether it is plausible that mineral 
processing wastes may be disposed of in environments reflected by the 
conditions mimicked in the TCLP.
    Aside from the plausibility of the Agency's mismanagement scenario, 
application of the TCLP to mineral processing wastes is supported by 
comments from industry submitted during the rulemaking regarding 
disposal practices that are taking place or advantageous at integrated 
mineral processing/beneficiation facilities in the industry. The 
proposed (and now final) rule regarding mixtures of Bevill wastes with 
non-Bevill hazardous wastes (including mineral processing hazardous 
wastes) effectively prohibits such mixing. Some commenters opposed the 
proposed mixture rule on the grounds that integrated facilities 
typically co-dispose of hazardous mineral processing wastes (including 
those exhibiting the TC) with extraction and beneficiation wastes, and 
desired to continue this practice or to have mixing available as a 
management option for these mineral processing hazardous wastes. It is 
well-documented that extraction and beneficiation wastes can often 
generate highly acidic environments. (See Acid Rock Drainage 
Prediction, U.S. EPA, 1994) Disposal of mineral processing wastes with 
such wastes means that the mineral processing wastes would be subject 
to acidic conditions that, in some cases, may be comparable to the 
acidic leacheate medium utilized in the TCLP (if not somewhat more 
aggressive). This

[[Page 28599]]

is because water contacting the acidic waste would thereupon become 
acidic itself (an example being acid mine drainage). EPA's concern is 
that if the mineral processing wastes are no longer identified as 
hazardous because a test other than the TCLP is used, then these wastes 
could be disposed with the acidic extraction/beneficiation wastes and 
be exposed to metal-mobilizing acidic leaching conditions as water 
percolates through the mixture. Given the evident economies noted in 
the public comments in disposing of mineral processing wastes along 
with extraction/beneficiation wastes, such a scenario is at least 
plausible. Such a disposal scenario, which industry states is not only 
plausible, but is typical of some facilities, provides an additional 
justification for the application of the acidic leachate approach 
reflected in the TCLP.
    EPA recognizes that the TCLP utilizes organic acids, while the 
disposal scenario discussed above would involve exposure to mineral 
acids. In part because of this difference, EPA utilized the SPLP in 
screening low hazard wastes as part of its 1989 Bevill determination. 
See 54 FR 36592 (Sept 1, 1989). Commenters have pointed to this 
statement as undercutting any application of TCLP to mineral processing 
wastes.
    EPA made clear in 1989, however, that the TCLP was still the 
appropriate test for determining whether a particular mineral 
processing waste is a hazardous waste subject to Subtitle C. Morever, 
EPA believes that the general statement contained in the 1989 preamble 
arguably swept too broadly in its conclusions. Notwithstanding that 
statement, standard chemistry texts establish that certain metals are 
highly soluble in acidic environments, including inorganic acids. 
Numerous factors can affect the precise solubility of a particular 
metal, and it is generally not possible to generalize whether organic 
or inorganic acids would cause more or less of a particular metal 
compound to solubilize. Based on generally accepted chemistry 
principles, however, a highly acidic environment, whether organic or 
mineral in nature, can be aggressive towards certain metals typically 
found in mineral processing wastes. Given that acidic leaching media 
can result when mineral processing wastes are co-disposed with 
extraction/beneficiation wastes, EPA believes that the acidic leachate 
procedure utilized in the TCLP can be appropriate for characterizing 
mineral processing wastes.
    EPA also notes a further policy justification in its choice of the 
TCLP. The final rule seeks to encourage properly conducted recycling of 
mineral processing secondary materials, and the scheme in the final 
rule (whereby recovery can occur provided facilities do not utilize 
land-based storage units) can be implemented at reasonable cost. (See 
the Regulatory Impact Analysis for the final rule, summarized later in 
this preamble.) However, the Agency is concerned that if integrated 
facilities have a lower cost option of simply disposing these mineral 
processing secondary materials with extraction/beneficiation wastes, 
facilities will choose this alternative. Thus, not only will the 
mineral processing wastes be potentially exposed to acidic leaching 
conditions, but properly conducted metal recovery will be foregone. 
(See RCRA section 1003 (a) (6) noting the statutory goal to encourage 
properly conducted recycling of hazardous wastes.)
    In addition to questioning the choice of a leaching medium, 
commenters questioned certain other features of the test, notably a 
particle size feature which mirrors freeze/thaw cycles, and a dilution/
attenuation factor which is premised on human receptors potentially 
living relatively proximate to the disposal site. These issues are 
addressed in greater detail in responses to comments and technical 
background documents. However, the Agency has documented in the record 
that many mineral processing facilities are located in parts of the 
country where freeze/thaw cycles which reduce particle size occur, and 
are also located near populations reflecting the degree of dilution and 
attenuation used in the model. (See Population Studies of Mines and 
Mineral Processing Sites, 1998, U.S. EPA)
    Finally, EPA notes that nothing in the recent decision Columbia 
Falls Aluminum Co. v. EPA (no. 96-1234) (April 3, 1998) is contrary to 
this determination. Columbia Falls does not stand for the proposition 
that EPA must customize a test for particular wastes to reflect 
individual or even typical disposal circumstances, a proposition 
expressly rejected in Edison, 2 F. 3d at 445. Rather, Columbia Falls 
approvingly cites Edison for the proposition that ``the TCLP must bear 
some rational relationship to mineral wastes in order for the Agency to 
justify the application of the toxicity test to those wastes.' '' 
Columbia Falls, slip op. at 18; see also Huls America Inc. v. Browner, 
83 F. 3d 445, 454 (Edison involved an instance ``where the record was 
barren of any rational relationship between the methodology used by the 
EPA to set regulatory levels and the known behavior of the substance to 
which this methodology was applied''). EPA has rectified the record 
deficiencies noted in Edison, showing how the TCLP ``bears a rational 
relationship to the reality it purports to represent.'' Columbia Falls, 
slip op. at 18. Today's action is thus consistent with both Edison and 
Columbia Falls.
    EPA is making the decision to retain the TCLP as the test for 
identifying mineral processing wastes effective within 90 days, co-
extensive with the LDR prohibition effective date. This effective date 
can be complied with feasibly within 90 days since the TCLP is already 
the applicable test for mineral processing wastes (since it was 
remanded, not vacated, by the Edison ruling). Thus, the regulated 
community does not need six months to come into compliance. See RCRA 
section 3010(b)(1).
    b. Remanded Mineral Processing Wastes. In the January 1996 
proposal, the Agency proposed to revoke the current hazardous waste 
listings for five court-remanded smelting wastes. The Agency also 
proposed not to re-list them as hazardous stating that these wastes 
would be regulated as hazardous wastes if they exhibit a characteristic 
of a hazardous waste.
    In 1980, the Agency listed as hazardous eight wastes generated by 
primary metal smelters (45 FR 33066, 33124, 47832-34, (1980)). The 
Agency listed the wastes pursuant to 40 CFR 261.11(a)(3) because they 
contained one or more of the hazardous constituents listed in 40 CFR 
261, Appendix VIII. The eight wastes are described as follows:

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

    In October of 1980, in response to Congressional enactment of the 
Bevill Exclusion, the Agency suspended its listing of the eight wastes 
(46 FR 4614-15, 27473 October, 1980). In 1985, EPA proposed a new rule 
that would relist

[[Page 28600]]

six of the eight wastes (50 FR 40292, 40295, October 2, 1985). (The 
Agency chose not to propose to re-list two of the original eight waste 
streams (electrolytic anode slimes/sludges, K067, and cadmium plant 
leach residue, K068, from primary zinc production) because it found 
that industry was routinely recycling these secondary materials in an 
environmentally sound manner.) However, the Agency withdrew its 1985 
proposal on October 9, 1986 (51 FR 36233).
    In Environmental Defense Fund v. EPA, 852 F.2d 1316 (D.C. Cir. 
1988) EPA was ordered to make a final decision regarding whether to re-
list the six metal smelting wastes that it had proposed to list in 
1985, and to reduce the scope of the Bevill exemption as it applies to 
mineral processing wastes. The Agency complied with this order when it 
re-listed the six wastes.
    The American Mining Congress (AMC) challenged these listings. In 
American Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir., 1990) the 
Court upheld the Agency's decision to re-list waste K088, spent 
potliners from primary aluminum reduction, but found that the Agency's 
record for the five remaining waste streams did not adequately address 
certain issues raised in comments during the rulemaking. Since the 
Court did not vacate the listings, they technically remain in effect.
    In today's rule, the Agency is revoking the five remanded waste 
listings. The Agency has found that several of these wastes are still 
generated and in some cases land disposed, but there is a lack of 
information demonstrating threats to human health or the environment 
that would justify a listing at this time. The Agency believe that some 
wastes, specifically copper acid plant blowdown (K064) and surface 
impoundment solids at primary lead smelters (K065), are inherently 
hazardous due to the presence of arsenic and lead, respectively. These 
wastes can be effectively regulated under RCRA Subtitle C if they 
exhibit a hazardous characteristic.
    The Agency received no comments opposing the proposed rule. To 
summarize, the Agency is revoking the listing for, and is not re-
listing: copper acid plant blowdown (K064); surface impoundment solids 
at primary lead smelters (K065); acid plant blowdown from primary zinc 
production (K066); emission control dust and sludge from ferrochromium-
silicon production (K090); and emission control dust or sludge from 
ferrochromium production (K091). However, as explained previously, 
should these wastes exhibit a characteristic of a hazardous waste, they 
will be subject to hazardous waste regulations, including the hazardous 
waste mixture rule.
    c. Lightweight Aggregate Mineral Processing Wastes. In the January 
1996 proposal, the Agency proposed that air pollution control dust and 
sludge from the production of lightweight aggregate be classified as a 
mineral processing waste that is no longer eligible for the Bevill 
exemption. Lightweight aggregate air pollution control (APC) dust and 
sludge were among the many mineral processing wastes made conditionally 
exempt from RCRA Subtitle C requirements under the 1980 Bevill 
Amendment to RCRA. In 1990, following more detailed study of the 
generation rates for this waste, the Agency determined that it did not 
qualify for the Bevill exemption (55 FR 2322, 2340, January 23, 1990). 
In 1991, the D.C. Circuit directed the Agency to reconsider, after 
providing notice and soliciting comments, whether these wastes qualify 
for the Bevill exemption. (Solite Corporation v. EPA, 952 F.2d at 500 
(D.C. Cir. 1991)).
    In the January 1996 proposal, the Agency stated that the wastes 
from lightweight aggregate production do not meet the high volume 
criterion for excluded mineral processing wastes. For purposes of EPA's 
1989 and 1990 rules concerning Bevill eligibility for mineral 
processing wastes, high volume is defined as greater than 45,000 metric 
tons per year per facility, for a solid waste, or 1,000,000 metric tons 
per year per facility, for a liquid waste, averaged across all 
facilities generating a particular waste.
    To determine whether APC dust and sludge from lightweight aggregate 
production satisfied the high volume criterion, the Agency analyzed 
data from its 1989 National Survey of Solid Wastes from Mineral 
Processing Facilities (SWMPF Survey) and data from public comments 
submitted by affected companies. The Agency finds that the lightweight 
aggregate wastes do not meet the high volume criterion.
    None of the methods used resulted in a volume estimate that is 
greater than 45,000 metric tons per year per facility, the high volume 
criterion for mineral processing wastes. SWMPF survey data, which 
includes Confidential Business Information (CBI) from two facilities 
have been included in a separate analysis. The results, which remain 
confidential, are not substantially different from the results 
presented previously.
    Solite acknowledged in comments that data do not support a 
determination that lightweight aggregate air pollution control (APC) 
dust and sludge is generated in volumes that meet the high volume 
cutoff. However, Solite requested that the Agency delay making a final 
determination on the Bevill status of its wastes due to other Agency 
rulemaking activities dealing with cement kiln dusts, which Solite 
contends would be addressing similar issues to those posed by 
lightweight aggregate air pollution control (APC) dust and sludge.
    The Agency is aware that both cement kiln and aggregate kilns may 
both burn hazardous wastes fuels and that the dusts from air pollution 
control devices are often blended into final products. Under existing 
regulations, if these dusts resulting from burning listed hazardous 
waste fuels are blended into products that are used on the land, the 
product would be subject to RCRA's ``derived from'' rules which would 
render the product a hazardous waste. Since both cement and light 
weight aggregate products are usually placed on the land, the potential 
impacts on their use could be significant. The Agency noted in its 1993 
Report to Congress on Cement Kiln Dust (CKD) that it did not have 
evidence that CKD was materially different when generated from kilns 
burning hazardous wastes as fuel and those which did not. The Agency 
does not have similar comparable analysis of light weight aggregate 
dusts and sludges, and can not at this point in time conclude that 
there is no difference between dusts and sludges from units burning 
hazardous waste fuels and those that do not. The Agency wants to 
encourage the sound recycling of these dusts and requires additional 
time to assess how to ensure that aggregate and cement kiln dusts are 
managed to ensure protection of human health and the environment. The 
Agency is currently developing a regulatory program for the safe 
management of cement kiln dusts and anticipates issuing a proposed rule 
in 1998. The Agency further anticipates that it will seek comment on 
how to best manage both wastes in this proposal and will seek 
information it needs to make a final determination on the status of 
lightweight aggregate wastes. The Agency is not finalizing its 
technical background document, Lightweight Aggregate Production and Air 
Pollution Control Wastes (1995), at this time.
    d. Mineral Processing Wastes From the Production of Titanium 
Tetrachloride. (i) Summary. In 1989, following a study of this waste's 
circumstances of generation, the Agency determined that titanium 
tetrachloride waste acid did not qualify for the Bevill exemption 
because it was a mineral

[[Page 28601]]

processing waste, not an extraction/beneficiation waste, and did not 
meet the high volume/low hazard criteria for determining eligibility 
for the Bevill exemption. (See 54 FR 36592, September 1, 1989.) One 
producer of titanium tetrachloride, DuPont, requested a determination 
that waste from its production process be categorized as beneficiation 
waste on the ground that, unlike processes used by other manufacturers, 
their process included a beneficiation step which generated the wastes 
at issue. However, EPA determined that DuPont's waste acids were 
mineral processing wastes. DuPont challenged this decision, and the 
Court remanded EPA's decision for further consideration on the grounds 
that the Agency's explanation for its decision was unclear. Solite 
Corporation v. EPA, 952 F.2d 473,494-95 (D.C. Cir. 1991).
    DuPont submitted comments on the January 1996 proposal that contend 
its processes do not destroy the structure of the mineral as it is 
placed into its processes. The Agency does not accept this contention, 
and, as described below, finds that the waste iron chloride acid is a 
mineral processing wastes.
    There are four sequential steps in DuPont's chloride-ilmenite 
process, the first two of which occur within the same vessel: (1) 
chlorine gas reacts with iron from the ilmenite ore to form iron 
chloride gas; (2) chlorine gas reacts with titanium in the ilmenite ore 
to form titanium tetrachloride gas; (3) the iron chloride is condensed 
and separated to form a waste iron chloride acid; and finally (4) the 
titanium tetrachloride is condensed and processed to form titanium 
oxide pigment, the saleable product. The issue remanded in Solite is 
whether the iron chloride acid waste, which is produced in gaseous form 
at step (1) but removed from the vessel as a liquid at step (3), is a 
mineral processing waste that does not qualify for the Bevill 
exemption, or is a beneficiation waste covered by the Bevill exclusion 
under 40 CFR 261.4(b)(7).
    (ii) Proposal. In the January 1996 proposal, the Agency proposed 
that iron chloride waste acid from the production of titanium 
tetrachloride be classified as a mineral processing waste that is not 
eligible for the Bevill exemption. In the chloride-ilmenite production 
of titanium tetrachloride, the Agency found that mineral processing 
began with the chlorination of the iron in the ilmenite ore and the 
resulting acid is a waste from mineral processing. Specifically, the 
Agency found that the acid wastes from this process are not physically 
or chemically similar to the feedstocks entering the operation, which 
is indicative that mineral processing has occurred.
    (iii) Response to Comments. One commenter agreed with EPA's 
proposed conclusion that Du Pont's process is properly classified as 
mineral processing because the reaction of ilmenite ore with chlorine 
gas forms new chemical compounds, namely titanium tetrachloride and 
ferric or ferrous chloride. The commenter remarked that such a reaction 
is a chemical processing step that fundamentally alters the make-up of 
the feedstock ore. The commenter said that EPA correctly drew the 
analogy between the mineral processing that occurs in the chloride-
ilmenite operation and the mineral processing that occurs in other 
metallurgical operations.
    One commenter noted that no beneficiation occurs in the chloride-
ilmenite process at all and that the iron chloride waste stream is not 
eligible for the Bevill exemption. The commenter said that it too 
produces a waste iron chloride acid in the production of titanium 
tetrachloride but its waste acid is neutralized in a waste treatment 
unit. The commenter provided data showing that its treatment of waste 
iron chloride acid meets all proposed Land Disposal Restrictions (LDR) 
treatment standards for underlying hazardous characteristics.
    DuPont objected to the Agency's proposed classification. DuPont 
claims that the removal of iron from the ilmenite ore is more 
appropriately classified as beneficiation. DuPont remarked that the 
separation of the iron chloride from the titanium ore grains results in 
a beneficiated ore, similar in nature to commercially available 
beneficiated ores that EPA has determined are Bevill exempt. The Agency 
disagrees with this characterization, and concludes that since the ore 
is chlorinated, that chlorination step changes the physical and 
chemical structure of ore. The Agency's rationale for this decision is 
discussed below.
    The Agency reiterates its broad standard for making mineral 
processing determinations described in 54 Fed. Reg. 36592, 36616, 
September 1, 1989. Specifically, beneficiation operations typically 
serve to separate and concentrate the mineral values from waste 
material, remove impurities, or prepare the ore for further refinement. 
Beneficiation activities do not, however, change the chemical structure 
of the ore. Mineral processing operations, in contrast, generally 
follow beneficiation and serve to change the concentrated mineral value 
into a more useful chemical form and change the chemical composition of 
the waste. In contrast to beneficiation operations, processing 
activities often destroy the physical structure of the incoming ore or 
mineral feedstock such that the materials leaving the operation do not 
closely resemble those that entered the operation. Typically, 
beneficiation wastes are earthen in character, whereas mineral 
processing wastes are derived from melting or other chemical changes.
    Today, the Agency again finds that DuPont's chloride-ilmenite 
operation is mineral processing. In DuPont's process, chlorine gas is 
reacted with the iron in the ore in the first step to produce a new and 
significantly different chemical compound than the feedstock ore, 
namely liquid waste iron chloride acid. The iron is more than simply 
removed; the solid iron in the ore undergoes a chemical reaction with 
the chlorine gas to form a new compound that is highly reactive and 
non-earthen in character, namely iron chloride gas. This reaction is 
the beginning of a significant change to the physical and chemical 
structure of the ore. This change is similar to the reaction of 
chlorine gas with solid titanium to form titanium tetrachloride gas. 
The Agency finds that the net result of the reaction of chlorine gas 
with both iron and titanium, which occur in the same vessel, destroys 
the physical and chemical nature of the ore.
    DuPont contends that the formation of iron chloride gas is simply a 
process to remove an impurity from the ore. DuPont noted in its 
comments that activities which remove impurities from ores and minerals 
are classified as beneficiation and all wastes from beneficiation are 
exempt from regulation under RCRA Subtitle C (see 40 CFR 261.4). DuPont 
therefore contends that their processes are in fact beneficiation and 
should not be classified as mineral processing.
    As noted earlier, the Agency clarified the definition of 
beneficiation and mineral processing in its 1989 rulemaking. That rule 
clearly indicated that beneficiation serves to remove impurities as 
long as the resultant materials remained earthen in nature and had not 
undergone a physical/chemical change. The Agency studied the DuPont 
process numerous times and met with the company several times to assure 
that the Agency fully understood DuPont process. The Agency concludes 
that chlorination of the ore causes a significant physical/chemical 
change to the ore, and therefore the process is more indicative of 
mineral processing than beneficiation. Further, in the DuPont case, the 
removal of impurities is taking place simultaneously with

[[Page 28602]]

other reactions generating titanium gases. This reaction alone would 
classify the process as mineral processing since the ore and titanium 
gas are clearly physically and chemically dissimilar from that point on 
in the process. The Agency stated in 1989 that once mineral processing 
began, all wastes generated after that point would be classified as 
mineral processing wastes, even those wastes which are similar to those 
generated in beneficiation.
    Thus, all wastes associated with the chloride-ilmenite production 
of titanium tetrachloride are mineral processing wastes. They are 
neither high volume nor low toxicity and therefore are not eligible for 
the Bevill exemption.

VII. LDR Treatment Standards for Soil

    This section discusses final regulations establishing land disposal 
treatment standards specific to contaminated soil. Contaminated soil is 
subject to the land disposal restrictions, generally, when it contains 
a listed hazardous waste or when it exhibits a characteristic of 
hazardous waste. (Throughout this discussion, the specific term 
``hazardous contaminated soil'' refers to soil which contains a listed 
hazardous waste or exhibits a characteristic of hazardous waste; the 
more general term ``contaminated soil'' refers to both hazardous 
contaminated soil and other soils--such as decharacterized soil--which 
may be subject to the land disposal restrictions.) Prior to today's 
rule, contaminated soil subject to LDRs was subject to the same land 
disposal restriction treatment standards that apply to industrial 
hazardous waste: soil contaminated by listed hazardous waste was 
subject to the standards that apply to those listed wastes and soil 
that exhibited a characteristic of hazardous waste was subject to the 
same standards that apply to the characteristic waste. Today's final 
rule establishes a new treatability group--contaminated soils--and 
establishes land disposal restriction treatment standards specifically 
tailored to that treatability group. Although EPA believes generators 
of contaminated soil will typically choose to comply with the new soil 
treatment standards promulgated today, under today's final rule, they 
have the option of complying either with the existing treatment 
standards for industrial hazardous waste (i.e., the universal treatment 
standards) or the soil treatment standards. This is consistent with the 
approach the Agency took in promulgating LDR treatment standards for 
hazardous contaminated debris. 57 FR 37221, August 18, 1992.
    EPA first proposed tailored land disposal restriction treatment 
standards for contaminated soil in September 1993. 59 FR 48122--48131 
(September 14, 1993). In the September 1993 proposal, EPA requested 
comment on three soil treatment standard options. These three options 
involved various combinations of percent reduction requirements for 
hazardous constituents (typically ninety percent--90%) and multipliers 
of the universal treatment standards (typically ten times the UTS--10 x 
UTS). In response to comment on the September 1993 proposal, EPA 
deferred a final decision on soil treatment standards to the Agency's 
broader evaluation of application of RCRA requirements to remediation 
wastes, the Hazardous Waste Identification Rule for Contaminated Media, 
or HWIR-Media.
    On April 29, 1996, as part of the HWIR-Media proposal, EPA again 
proposed tailored land disposal restriction treatment standards for 
contaminated soils. 61 FR at 11804 (April 29, 1996). In the April 29, 
1996 proposal, soil-specific treatment standards would have required 
reduction in concentrations of hazardous constituents by 90% with 
treatment for any given constituent capped at ten times the universal 
treatment standard. Id. This is commonly referred to as ``90% capped at 
10 times UTS.''
    In 1995, 1996 and 1997, EPA proposed new land disposal restriction 
treatment standards for waste identified as hazardous because of metal 
content and for mineral processing wastes. 60 FR 43654 (August 22, 
1995) for metal wastes; 61 FR 2338 (January 25, 1996) for mineral 
processing wastes; and, 62 FR 26041 (May 12, 1997) supplemental 
proposal for both types of waste. In these proposals, soil contaminated 
with metal or mineral processing waste would have been subject to the 
new treatment standards for those wastes. This was consistent with the 
way EPA had historically addressed contaminated soil and, at the time, 
considered proper given that the proposals to establish soil-specific 
treatment standards were not yet resolved.
    EPA did not reopen the issue of whether LDRs apply to contaminated 
soil or whether it is appropriate to require that contaminated soil 
achieve the same LDR treatment standards as the contaminating waste 
(soil contaminated by listed waste) or the characteristic property 
(soil that exhibits a characteristic of hazardous waste) in the August 
22, 1995, January 25, 1996, or May 12, 1997 proposals. Commenters, 
nonetheless, strongly opposed application of the new LDR treatment 
standards for metal and mineral processing wastes to soil contaminated 
with those materials. At about the same time, EPA decided to go forward 
with the soil-specific LDR treatment standards proposed in April 1996. 
Therefore, the Agency is promulgating the land disposal restriction 
treatment standards tailored to contaminated soils proposed on April 
29, 1996 (i.e., 90% capped at 10xUTS) today, with the new LDR treatment 
standards for metal and mineral processing wastes. The soil-specific 
treatment standards promulgated today may be applied to any 
contaminated soil that is restricted from land disposal, including but 
not limited to soil contaminated by metal and mineral processing 
wastes.
    The land disposal restriction treatment standards for contaminated 
soil promulgated today differ from the standards proposed on April 29, 
1996 in three major ways. First, the Agency proposed that the soil 
treatment standards would be available only for contaminated soil that 
was managed under an approved cleanup plan (termed a remediation waste 
management plan, or RMP). In today's final rule, the Agency is making 
the soil treatment standards available for all contaminated soil that 
is restricted from land disposal. Second, the Agency proposed that, for 
soil contaminated by listed hazardous waste, treatment would be 
required only for the hazardous constituents that originated from the 
contaminating listed hazardous waste. When the soil treatment standards 
are used, today's final rule requires all hazardous contaminated soil, 
including soil contaminated by listed hazardous waste, to be treated 
for each underlying hazardous constituent reasonably expected to be 
present when such constituents are initially found at concentrations 
greater than ten times the universal treatment standard. Third, in 
response to comments asserting that the proposed regulations governing 
the applicability of LDRs to contaminated soils were difficult to 
understand, the Agency has reformatted these regulations into an 
easier-to-read table. These changes, as well as other significant 
issues associated with the soil treatment standards and responses to 
comments, are discussed below.
    Today's promulgation of land disposal restriction treatment 
standards specific to contaminated soil is largely based on the April 
29, 1996 proposal (62 FR at 18804-18818). It also relies on the 
Agency's first effort to establish soil-specific treatment standards, 
the LDR Phase II proposal (58 FR 48092, September 14, 1993). Today's 
action

[[Page 28603]]

resolves the portions of the April 29, 1996 and September 14, 1993 
proposals that address land disposal restriction treatment standards 
for contaminated soil. However, other elements of the April 29, 1996 
proposal remain open and will be acted on in a future rulemaking. 
Responses to comments submitted on the soil treatment standards 
proposals are included in the Soil Treatment Standards Response to 
Comments Background Document, available in the docket for today's 
action.

A. Application of Land Disposal Restriction Treatment Standards to 
Contaminated Soil and Justification for Soil Specific LDRs

    Prior to today's rule, soil that contained listed hazardous waste 
or exhibited a characteristic of hazardous waste were prohibited from 
land disposal unless they had been treated to meet the treatment 
standards promulgated for pure industrial hazardous waste. This means 
the same treatment standards which apply to a pure, industrial 
hazardous waste were also applied to contaminated soil. 61 FR at 18804 
(April 29, 1996) and other sources cited therein. In most cases then, 
contaminated soils were subject to the treatment standards listed in 40 
CFR 268.40, and the associated treatment standards in 40 CFR 268.48(a) 
table Universal Treatment Standards (UTS).14
---------------------------------------------------------------------------

    \14\ The exception is when waste contaminating soil is subject 
to a specified treatment method; in that case, the contaminated soil 
would also be subject to the specified treatment method.
---------------------------------------------------------------------------

    As EPA has discussed many times, the treatment standards developed 
for pure, industrial hazardous waste may be unachievable in 
contaminated soil or may be inappropriate for contaminated soil due to 
particularities associated with the soil matrix and the remediation 
context under which most contaminated soil is managed, as discussed 
below. For that reason, EPA is promulgating today's LDR treatment 
standards specifically tailored to contaminated soil and to the 
remedial context.
    With respect to the soil matrix, the treatment standards developed 
for pure hazardous waste (i.e., the universal treatment standards) are 
generally either technically unachievable or technically or 
environmentally inappropriate. For metal constituents, the UTS may not 
be achievable in contaminated soil even using model technologies such 
as stabilization or high temperature metal recovery. Stabilization 
technologies are sensitive to soil characteristics such as the presence 
of oxidizing agents and hydrated salts, the distribution of soil 
particle size and the concentrations of sulfate and chloride compounds. 
Various combinations of soil characteristics can impair the 
effectiveness or rate of reaction in stabilization technologies. For 
example, insoluble materials, such as materials that will pass through 
a number 200 mesh sieve, can delay setting and curing during 
stabilization, or small soil particles can coat larger soil particles 
weakening bonds between particles and cement or other reagents. High 
temperature metal recovery technologies may not be appropriate for some 
contaminated soil given the low concentrations of metals that might be 
present in the soil. In addition, clay and silt content in some soil 
matrices may add undesired impurities to the metal concentrates or 
alloys that are formed during high temperature metal recovery.
    Although EPA has data showing that some soils can be treated to the 
existing universal treatment standards for metals using stabilization 
15 and high temperature metals recovery, the Agency 
continues to believe that tailored soil treatment standards are 
appropriate for metal contaminated soil to ensure that the wide variety 
of soils can be effectively treated to meet the treatment standards. In 
addition, the soil treatment standards will have the added 
environmental benefit of encouraging greater use of innovative soil 
treatment technologies such as soil or enhanced soil (acid) washing. 
See, Proposed BDAT Background Document for Hazardous Soils, August 
1993; Technical Resource Document: Solidification/Stabilization and its 
Application to Waste Materials, EPA/530/R-93/012, June 1993; and, 
Technology Screening Guide for Treatment of CERCLA Soils and Sludges, 
EPA 540/2-88/004, September 1988.
---------------------------------------------------------------------------

    \15\ These soil treatment data have been claimed as confidential 
business information.
---------------------------------------------------------------------------

    For soil contaminated with organic constituents, EPA has noted many 
times that, notwithstanding the fact that such soils can be treated by 
combustion to meet the universal treatment standards, it is generally 
unsuitable or impractical from a technical standpoint to combust large 
volumes of mildly contaminated soil. See, for example, 55 FR at 8760 
and 8761 (March 8, 1990) and 61 FR 18806-18808 (April 29, 1996). In 
addition, the Agency has documented potential difficulties that may 
arise from the combustion of soil due to soil/contaminant 
characteristics that affect incineration performance such as the 
concentrations of volatile metals, the presence of alkali salts, fine 
particles of soils such as clays and silts, and the ash fusion point of 
the contaminating waste. For example, operation of an incinerator at or 
near the waste ash fusion temperature can cause melting and 
agglomeration of inorganic salts; the loading of clays and silts in 
some soils may also result in high loadings of particulate matter in 
flue gases. Proposed BDAT Background Document for Hazardous Soils, 
August 1993 and Technology Screening Guide for Treatment of CERCLA 
Soils and Sludges, EPA 540/2-88/004, September 1988.
    With respect to the remedial context, EPA, the states, and the 
regulated and environmental communities have long recognized that 
application of the LDR treatment standards developed for pure, 
industrial hazardous waste to contaminated soil can be 
counterproductive. See, for example, ``Hazardous Waste: Remediation 
Waste Requirements Can Increase the Time and Cost of Cleanups' U.S. 
General Accounting Office, GAO/RCED-98-4, October 1997. Application of 
LDRs developed for pure, industrial hazardous waste to contaminated 
soil often presents remediation project managers with only two choices: 
pursue a legal option of capping or treating hazardous contaminated 
soil in place thereby avoiding a duty to comply with LDRs, or excavate 
the soil and treat it to the full extent of best demonstrated available 
technology, usually, for organic constituents, incineration. EPA has 
found that this situation often creates an incentive to select remedies 
that minimize application of LDRs (e.g., remedies that involve capping 
or leaving untreated soil in place) a result obviously not contemplated 
by Congress in enacting the LDR program.16 62 FR at pages 
64505-64506 (Dec. 5, 1997) and 61 FR at 18808 (April 29, 1996) and 
other sources cited therein.
---------------------------------------------------------------------------

    \16\ As discussed in the April 29, 1996 proposal, EPA has, in 
the past, justified the existing treatment standards, in part, 
because they create an incentive to generate less of the affected 
waste in the first instance. See, Steel Manufactures Association v. 
EPA, 27 F.3d 642, 649 (D.C. Cir. 1994). In the remedial context, the 
waste is already in existence; therefore waste minimization is not 
an issue. Thus, application of the current LDR treatment standards 
to remediation waste can have the perverse effect of creating an 
incentive to avoid ``generating'' waste by leaving it in the ground. 
The Agency believes that the goals of remediation are better served 
by more aggresive remedial approaches, such as excavation and 
management (including some degree of treatment) of remediation 
wastes, that generally result in more permanent remedies. Such 
approaches should, therefore, be encouraged.
---------------------------------------------------------------------------

    Because of the differences between the remedial context (responding 
to wastes which have already been released to the environment) and

[[Page 28604]]

regulation of wastes generated by on-going industrial process 
(preventing wastes from being released into the environment in the 
first instance), EPA has rejected the conclusion that treatment 
standards for soil must be based upon the performance of the ``best'' 
demonstrated available treatment technology in the way the Agency has 
historically interpreted these terms. Instead, the Agency has chosen to 
develop soil treatment standards that can be achieved using a variety 
of treatment technologies which achieve substantial reductions in 
concentration or mobility of hazardous constituents and, because they 
are generally used to treat contaminated soils in remedial settings, do 
not present site managers with the type of dilemma described above. As 
EPA has long maintained, the strong policy considerations that argue 
for using the traditional BDAT analysis as the basis for LDR treatment 
standards for hazardous wastes generated by on-going industrial 
operations do not apply when evaluating BDAT in the remedial context. 
In the remedial context, for example, waste minimization is not an 
issue and the additional increment of treatment necessary to achieve 
traditional BDAT may yield little if any environmental benefit over 
other treatment options that adequately protect human health and the 
environment. 54 FR 41568 (October 19, 1989). Indeed there is a 
legitimate question as to whether a technology whose use results in 
foregoing other substantial environmental benefits (such as more 
aggressive, permanent remedies) can be considered a ``best'' 
technology. Portland Cement Association v. Ruckelshaus, 486 F. 2d 375, 
385-86 at n. 42 (D.C. Cir. 1973); Essex Chemical Corp. v. Ruckelshaus, 
486 F. 2d 427, 439 (D.C. Cir. 1973). This issue was discussed fully in 
the April 29, 1996 proposal and in a number of other EPA documents, 
see, for example, 54 FR 41568 (October 19, 1989) and 61 FR at 18808 
(April 29, 1996) and other sources cited therein.
    The soil treatment standards promulgated today will significantly 
improve management of contaminated soil and remediations that involve 
contaminated soil. However, the Agency emphasizes that today's rule 
does not resolve the larger, more fundamental issues associated with 
application of RCRA Subtitle C to remediation generally. The Agency 
maintains that additional reform is needed to address, more 
fundamentally, the application of certain RCRA subtitle C requirements 
to all remediation wastes, including contaminated soil. The Agency will 
continue to participate in discussions of potential legislation to 
promote this additional needed reform. If legislation is not 
forthcoming, the Agency may reexamine its approach to remediation waste 
management, including the soil treatment standards.

B. Detailed Analysis of Soil Treatment Standards

    All land disposal restriction treatment standards must satisfy the 
requirements of RCRA section 3004(m) by specifying levels or methods of 
treatment that ``substantially diminish the toxicity of the waste or 
substantially reduce the likelihood of migration of hazardous 
constituents from that waste so that short-term and long-term threats 
to human health and the environment are minimized.'' As EPA has 
discussed many times, the RCRA Section 3004(m) requirements may be 
satisfied by technology-based standards or risk-based standards. This 
conclusion was upheld in Hazardous Waste Treatment Council v. EPA, 886 
F.2d 355, 362-64 (D.C. Cir. 1989), where technology-based LDR treatment 
standards were upheld as a permissible means of implementing RCRA 
Section 3004(m) provided they did not require treatment beyond the 
point at which threats to human health and the environment are 
minimized. Today's treatment standards for contaminated soils are 
primarily technology-based; however, a variance from the technology-
based standards is allowed when EPA or an authorized state makes a 
site-specific determination that threats posed by land disposal of any 
given volume of contaminated soil are minimized at higher 
concentrations.
1. Technology Basis for Soil Treatment Standards
    The land disposal restriction treatment standards for soil require 
that concentrations of hazardous constituents subject to treatment be 
reduced by ninety percent (90%) with treatment for any given 
constituent capped at ten times the universal treatment standard (10 X 
UTS). In other words, if treatment of a given constituent to meet the 
90% reduction standard would reduce constituent concentrations to less 
than 10 X UTS, treatment to concentrations less than 10 X UTS is not 
required. This is commonly referred to as ``90% capped by 10xUTS.''
    As first discussed in the September 14, 1993 proposal, the Agency 
has not used the statistical methods historically used in the land 
disposal restriction program to establish the soil treatment standards. 
In the past, the Agency has typically evaluated treatability data to 
identify the ``most difficult to treat'' waste and established 
treatment standards based on a statistical analysis of data from the 
best demonstrated available treatment technology for that waste. See, 
for example, 55 FR 26594 and 26605, June 23, 1989. While the existing 
regulations allow treatment using any technology that will satisfy the 
treatment standards, the practical impact of that approach is that 
treatment using the most aggressive treatment technology available 
(i.e., for organic constituents, destruction of organic constituents 
based upon the performance of incineration) is often necessary to 
achieve the treatment standards.
    For contaminated soil, the Agency has chosen to establish 
technology-based soil treatment standards at levels that are achievable 
using a variety of common remedial technologies which destroy, remove 
or immobilize substantial amounts of hazardous constituents. 58 FR 
48129 (September 14, 1993). The levels chosen--90% reduction capped at 
10 X UTS--are within the zone of reasonable levels the Agency could 
have selected as treatment standards for contaminated soil.
    Soil treatability data from EPA's Soil Treatment Database indicate 
that the soil treatment standards are achievable and that the Agency 
has selected a reasonable level of performance for the standard. After 
screening the Database to eliminate data from tests reflecting poorly 
designed or operated treatment, tests where EPA believes inappropriate 
technologies were applied (for example, data from ``immobilization'' of 
organic constituents), and other inappropriate data, the Agency was 
left with 2,541 data pairs representing treatment of eighty hazardous 
constituents including nine BDAT list metals.17 EPA then 
analyzed these data to determine if the soil treatment standards could 
be reliably achieved using demonstrated soil treatment technologies. 
Based on this analysis, the Agency concluded that the soil treatment 
standards can be reliably achieved using a variety of available soil 
treatment technologies. The Agency concluded that the soil treatment 
standards can be reliably achieved using: biological treatment, 
chemical extraction, dechlorination, soil washing, stabilization and 
thermal desorption. Of course, since soil treatment is generally matrix 
dependent, the exact treatment technology which

[[Page 28605]]

might be applied to any given contaminated soil will depend on the 
specific properties of the soil and the hazardous constituents of 
concern. Choices about which soil treatment technology to apply should 
be informed by appropriate use of bench and pilot scale studies and 
good engineering judgement. EPA acknowledges that the treatment 
efficiency necessary to achieve the soil treatment standards will 
depend on, among other things, the initial concentrations of hazardous 
constituents in any given volume of contaminated soil. Thus, not all 
soil treatment technologies will be capable of treating every 
contaminated soil to meet the standards adopted in this rule. However, 
the Agency finds that the soil treatment standards typically can be 
achieved by at least one of the demonstrated technologies, even in the 
case of hard-to-treat hazardous constituents such as dioxins and 
furans, polychlorinated biphenyls, and polynuclear aromatics.
---------------------------------------------------------------------------

    \17\ A complete discussion of the Agency's method for screening 
the Soil Treatment Database can be found in the LDR Phase II 
proposal (58 FR 48129--48131, September 14, 1993) and the Best 
Demonstrated Available Technology Background Document for Hazardous 
Soil (August 1993).
---------------------------------------------------------------------------

    Furthermore, the Agency has concluded that it is appropriate to 
express the soil treatment standards as a treatment performance goal 
capped by specific treatment levels. More specific standards, for 
example, a single numerical standard for all soil, could be 
counterproductive--less often achievable--given the varying 
combinations of hazardous constituents and soil properties that might 
be encountered in the field. 58 FR 48130 (September 14, 1993). An 
express objective of this rule is to increase the range of appropriate 
treatment alternatives available to achieve the LDR treatment standards 
in soil to increase the likelihood that more remediations will include 
treatment as a component of the remedy. This objective could be impeded 
by adopting single numeric values as treatment standards, since that 
approach would reduce needed flexibility. The resulting soil treatment 
standards, while still technology-based, thus depart from EPA's past 
methodology developed for process wastes in that they are not based 
exclusively on the application of the most aggressive technology to the 
most difficult to treat waste and are not expressed as a single numeric 
value.
    Like any land disposal restriction treatment standard, the soil 
treatment standards may be achieved using any treatment method except 
treatment methods which involve impermissible dilution (e.g., addition 
of volume without destroying, removing or immobilizing hazardous 
constituents or transfer of hazardous constituents from soil to another 
medium such as air). For organic constituents, the soil treatment 
standards for volatile organic constituents are based on the 
performance of biotreatment, chemical extraction, dechlorination, 
thermal desorption or soil vapor extraction. The standards for 
semivolatile organic constituents are based on the performance of 
biotreatment, chemical extraction, dechlorination, soil washing, 
thermal desorption, or soil vapor extraction. The standards for 
organochlorine pesticides are based on the performance of biotreatment, 
dechlorination, hydrolysis, or thermal desorption. The standards for 
phenoxyacetic acid pesticides are based on the performance of 
dechlorination. The standards for polychlorinated biphenyls are based 
on the performance of chemical extraction, dechlorination, or thermal 
desorption. The standards for dioxins and furans are based on the 
performance of dechlorination or thermal desorption. EPA does not have 
specific data in the record on treatment of organophosphorous 
insecticides. Because they are based on a similar chemical structure, 
these contaminants, however, are likely as difficult to treat as other 
polar nonhalogenated organic compounds and are expected to respond to 
treatment in a manner similar to other polar nonhalogenated phenols, 
phenyl ethers, and cresols. Therefore, EPA believes that 
organophosphorous insecticides can be treated using the same 
technologies as would otherwise be used to treat polar nonhalogenated 
organics, i.e., biotreatment, chemical extraction, or thermal 
desorption. For all organic constituents the soil treatment standards 
are also achievable using combustion. EPA notes also that a number of 
judicial opinions have upheld EPA's extrapolation of achievability 
results for technology-based treatment standards based on chemical 
structure and activity similarity, as has been used here. See, e.g., 
Chemical Manufacturers Ass'n v. EPA, 870 F. 2d 177, 248 (5th Cir. 1989) 
and National Ass'n of Metal Finishers v. EPA, 719 F. 2d 624, 659 (3d 
Cir. 1983). For metals, the soil treatment standards are based on the 
performance of stabilization, and for mercury, chemical extraction. 
Achievability of the soil treatment standards is discussed, in detail, 
in section VII.B.8 of today's preamble.
    a. Measuring Compliance With the Soil Treatment Standards For 
hazardous constituents which have a treatment standard measured by 
total waste analysis (i.e. standards for organic constituents and for 
cyanide), compliance with the 90% reduction standard should generally 
be measured using total constituent concentrations. For hazardous 
constituents which have a treatment standard measured based on 
concentrations in a TCLP extract (i.e., standards for metals and for 
carbon disulfide, cyclohexanone and methanol), compliance with the 90% 
reduction standard should generally be measured in leachate using the 
toxicity characteristic leaching procedure. The exceptions to these 
rules would be, for example, if soils contaminated with metal 
constituents were treated using a technology which removed or 
destroyed, rather than stabilized, metals. In an example like this, 
compliance with the 90% reduction standards should generally be 
measured using total constituent concentrations.
    EPA takes this opportunity to clarify that when establishing the 
concentrations of hazardous constituents in any given volume of 
contaminated soil from which the 90% reduction will be measured, normal 
soil characterization techniques and procedures for representative 
sampling should be used. For example, it is not necessary to measure 
the 90% reduction from the soil sample with the lowest concentrations 
of hazardous constituents. EPA will publish additional guidance on 
establishing and validating 90% reduction levels for contaminated soil 
in the near future.
    Today's rule does not change existing policies or guidance on soil 
sampling or site characterization. Although soil is often characterized 
using composite sampling, EPA notes that, consistent with the way the 
Agency measures compliance with other LDR treatment standards, 
compliance with the soil treatment standards will be measured and 
enforced using grab samples. This is appropriate because well-designed 
and well-operated treatment systems should ensure that soil is 
uniformly treated.
    b. Major Comments A number of commenters expressed concern about 
the achievability of the soil treatment standards and/or the 
methodology EPA used to develop the soil treatment standards. These 
concerns are discussed in Section VII.B.8 of today's preamble and in 
the response to comments document, available in the docket for today's 
rulemaking.
2. The Soil Treatment Standards Satisfy RCRA Section 3004(m) 
Requirements
    The technology-based ``90% capped by 10 X UTS'' treatment standard 
for contaminated soil is sufficiently stringent to satisfy the core 
requirement of RCRA Section 3004(m) that short-term and long-term 
threats to human health and the environment posed by

[[Page 28606]]

land disposal are minimized. Technology-based standards provide an 
objective measure of assurance that hazardous wastes are substantially 
treated before they are land disposed, thus eliminating the ``long-term 
uncertainties associated with land disposal.'' Eliminating these 
uncertainties was a chief Congressional objective in prohibiting land 
disposal of untreated hazardous wastes. Hazardous Waste Treatment 
Council v. EPA, 886 F.2d at 361-64. In addition, the extent of 
treatment required, 90 % reduction capped at treatment to 
concentrations within an order of magnitude of the UTS, 
``substantially'' reduces mobility or total concentrations of hazardous 
constituents within the meaning of RCRA Section 3004(m)(1).
    EPA has made two changes from proposal which strengthen the soil 
treatment standards to assure that they minimize threats to human 
health and the environment. First, the Agency has modified its approach 
to which hazardous constituents will be subject to treatment. In 
today's rule, when the soil treatment standards are used, EPA requires 
treatment for all hazardous constituents reasonably expected to be 
present in contaminated soil when such constituents are initially found 
at concentrations greater than ten times the universal treatment 
standard. This treatment is required both for soil contaminated by 
listed hazardous waste and soil that exhibits (or exhibited) a 
characteristic of hazardous waste. Constituents subject to treatment 
are discussed further in Section VII.B.4 of today's preamble.
    To further ensure that contaminated soil treated to comply with the 
soil treatment standards is safely managed, EPA has included additional 
restrictions on the use of treated contaminated soil in hazardous 
waste-derived products that are used in a manner constituting disposal 
(i.e., when such products will be placed on the land). The restrictions 
on use of treated contaminated soil in hazardous waste-derived products 
that are used in a manner constituting disposal are discussed in 
Section VII.B.5 of today's preamble.
    Finally, the Agency reiterates that, in the remediation context, in 
assessing whether threats posed by land disposal have been minimized, 
one should appropriately consider the risks posed by leaving previously 
land disposed waste in place as well as the risks posed by land 
disposal of waste after it is removed and treated. 62 FR at 64506 
(December 5, 1997). For example, if a treatment standard for organic 
constituents based on performance of incineration typically results in 
already land disposed materials such as contaminated soils being capped 
in place rather than more aggressively remediated, threats posed by 
land disposal of the waste ordinarily would not be minimized. 
Conversely, a treatment standard that results in substantial treatment 
followed by secure land disposal can be said to minimize threats, 
taking into account the totality of threats posed (i.e. including those 
posed if the soil were left in place untreated). Id. The soil treatment 
standards will ordinarily ensure that contaminated soil is 
appropriately treated within the meaning of RCRA Section 3004(m), 
considering both the threats posed by new land disposal of treated soil 
and the threats posed by on-going land disposal of existing 
contaminated soil (e.g., if the soil were left in place untreated).
    EPA recognizes that some people may be concerned that a situation 
may arise where the soil treatment standards are at levels that are 
higher than those that EPA or an authorized state believes should be 
required for soil cleanup under a cleanup program. The Agency 
acknowledges that this may occur. The soil treatment standards, like 
other land disposal restriction treatment standards, are based on the 
performance of specific treatment technologies. As discussed earlier in 
today's preamble, technology-based standards have been upheld as a 
permissible means of implementing RCRA Section 3004(m). Most soil 
cleanup levels are based not on the performance of specific treatment 
technologies but on an analysis of risk. For this reason, technology-
based treatment standards will sometimes over-and sometimes under-
estimate the amount of treatment necessary to achieve site-specific, 
risk-based goals.
    The purpose of the land disposal restriction treatment standards is 
to ensure that prohibited hazardous wastes are properly pre-treated 
before disposal (i.e., treated so that short- and long-term threats to 
human health and the environment posed by land disposal are minimized). 
As discussed above, the Agency believes the soil treatment standards 
promulgated today fulfill that mandate for soil that contains 
prohibited listed hazardous waste or exhibits a characteristic of 
prohibited hazardous waste. However, technology-based treatment 
standards are not necessarily appropriate surrogates for site-specific 
risk-based cleanup levels. In a circumstance where the soil treatment 
standards result in constituent concentrations that are higher than 
those determined, on a site-specific basis, to be required for soil 
cleanup, existing remedial programs such as RCRA Corrective Action, 
CERCLA and state cleanup programs could be applied to ensure that 
remedies are adequately protective. These programs already ensure 
protection of human health and the environment when managing most 
contaminated soils--i.e., soils that are not subject to the LDRs--and 
other remediation wastes. Furthermore, as discussed later in today's 
rule, treated contaminated soil would remain subject to regulation 
under RCRA Subtitle C unless and until EPA or an authorized state made 
an affirmative decision that the soil did not contain hazardous waste 
or, in the case of characteristic soil, no longer exhibited a hazardous 
characteristic.
3. Variance From the Soil Treatment Standards at Risk-Based Levels
    EPA has long indicated that its preference would be to establish a 
complete set of risk-based land disposal treatment standards at levels 
that minimize short- and long-term threats to human health and the 
environment. See, for example, 55 FR at 6641 (Feb. 26, 1990). However, 
the difficulties involved in establishing risk-based standards on a 
nationwide basis are formidable due in large part to the wide variety 
of site-specific physical and chemical compositions encountered in the 
field and the uncertainties involved in evaluating long-term threats 
posed by land disposal. Id.; 60 FR 66380--66081 (Dec. 21, 1995). For 
these reasons the Agency has chosen to establish land disposal 
restriction treatment standards based on the performance of specific 
treatment technologies. Although technology-based treatment standards 
are permissible, they may not be established at levels more stringent 
than those necessary to minimize short and long-term threats to human 
health and the environment. Hazardous Waste Treatment Council, 886 F. 
2d at 362 (land disposal restriction treatment standards may not be 
established, ``beyond the point at which there is not a ``threat'' to 
human health or the environment'').
    While using risk-based approaches to determine when threats are 
minimized on a national basis has proven extremely difficult, these 
difficulties will diminish when evaluating risks posed by a specific 
contaminated soil in a particular remediation setting since, during 
remediation, one typically has detailed site-specific information on 
constituents of concern, potential human and environmental receptors, 
and potential routes of exposure. For this reason, EPA is establishing 
a site-specific variance from the technology-based soil treatment 
standards, which

[[Page 28607]]

can be used when treatment to concentrations of hazardous constituents 
greater (i.e., higher) than those specified in the soil treatment 
standards minimizes short- and long-term threats to human health and 
the environment. In this way, on a case-by-case basis, risk-based LDR 
treatment standards approved through a variance process could supersede 
the technology-based soil treatment standards. This approach was first 
discussed in the September 14, 1993 proposal, where EPA proposed that 
determinations that contaminated soil did not or no longer contained 
hazardous waste could supersede LDR treatment standards, if the 
``contained-in'' level also constituted a ``minimized threat'' level. 
It was repeated in the April 29, 1996 proposal where the Agency 
proposed that, in certain circumstances, variances from land disposal 
restriction treatment standards could be approved in situations where 
concentrations higher than the treatment standards minimized 
threats.\18\ 58 FR at 48128 (September 14, 1993) and 61 FR at 18811 and 
18812 (April 29, 1996).
---------------------------------------------------------------------------

    \18\ In the April 29, 1996 proposal, the Agency proposed to 
limit variances based on a site-specific minimize threat 
determination to contaminated soils where all concentrations of 
hazardous constituents were below a ``bright line,'' that is, below 
a certain risk level. The Agency also requested comment on extending 
site-specific minimize threat variances to other contaminated soils. 
Based on further consideration and consideration of comments, the 
Agency is persuaded that a site-specific minimize threat variance 
should be available to all contaminated soils. The Agency believes 
this is proper because the outcome of a site-specific, risk-based 
minimize threat variance--alternative, site-specific LDR treatment 
standards based on risk--will be the same regardless of the initial 
concentrations of hazardous constituents. In any case, the Agency is 
not, at this time, taking action on the portion of the April 29, 
1996 proposal that would have established a ``bright line'' to 
distinguish between higher- and lower-risk media. If, in the future, 
the Agency takes action to establish a bright line, it will address 
the relationship of a bright line to site-specific minimize threat 
variances.
---------------------------------------------------------------------------

    At this time, EPA is allowing the risk-based variances only for 
contaminated soils. The Agency believes this limitation is appropriate 
for a number of reasons. First, contaminated soils are most often 
generated during agency overseen cleanups, such as CERCLA cleanups, 
RCRA corrective actions or state overseen cleanups. This type of 
involvement in cleanups positions EPA and authorized states to 
appropriately consider site-specific, risk-based issues. Second, during 
remediation, experts and field personnel typically gather detailed 
site-specific information on risks posed by specific hazardous 
constituents or combinations of hazardous constituents, potential 
direct and indirect exposure routes, risk pathways and human and 
environmental receptors. Through application of this information, 
overseeing agencies can eliminate many of the long-term uncertainties 
associated with land disposal and, therefore, make appropriate risk-
based decisions regarding the extent of treatment needed to minimize 
short- and long-term threats to human health and the environment from 
any given hazardous constituent or combination of hazardous 
constituents. EPA and state officials already routinely make these 
types of decisions when developing site-specific, risk-based cleanup 
levels and when making decisions about whether any given contaminated 
medium contains hazardous waste.19 After experience 
implementing the site-specific minimize threat variance for 
contaminated soil, the Agency may consider extending it to other 
environmental media and remediation wastes.
---------------------------------------------------------------------------

    \19\ While not forbidden, the Agency believes that site-
specific, risk-based minimize threat determinations will rarely be 
made in the context of an independent or voluntary cleanup action, 
since, in these types of actions, an overseeing Agency will not, 
typically, have been involved in the identification exposure 
pathways and receptors of concern or the calculation of site-
specific, risk-based cleanup levels. Of course, generators could 
apply for a site-specific, risk-based minimize threat variance 
during an independent or voluntary cleanup and, provided EPA or an 
authorized state agreed that the proposed alternative treatment 
standards minimized threats considering appropriate exposure 
pathways and receptors, a variance could be approved.
---------------------------------------------------------------------------

    Some commenters expressed concern that allowing site-specific, 
risk-based minimize threat determinations would abrogate the Agency's 
responsibilities under RCRA Section 3004(m). The Agency strongly 
disagrees. RCRA Section 3004(m) requires EPA to establish ``levels or 
methods of treatment, if any. * * *.'' In the case of contaminated 
soil, EPA is establishing those levels today based on the performance 
of available, appropriate soil treatment technologies. Providing a 
variance process to modify a level or method of treatment on a case-by-
case basis reduces the likelihood that in any particular situation 
technology-based treatment standards will result in treatment beyond 
the point at which threats are minimized. The Agency is requiring that 
minimize threat variance determinations for contaminated soils be 
evaluated using the existing site-specific variance process set out in 
40 CFR 268.44(h). EPA recently added language to this provision to 
clarify that variances cannot be approved without opportunity for 
public participation, including notice by appropriate means, 
opportunity for public comment and adequate explanation of an ultimate 
determination. 62 FR at 64507 (Dec. 5, 1997).
    While not required, EPA anticipates that decisions about site-
specific minimize threat decisions variances will often be combined 
with decisions that soil no longer contains hazardous waste. As 
discussed later in today's preamble, Agency guidance on ``contained-
in'' determinations is essentially the same as the requirements for 
site-specific, risk-based minimize threat determinations promulgated 
today. For that reason, EPA believes it will always be appropriate to 
combine a contained-in determination with a site-specific, risk-based 
minimize threat variance. In these cases, EPA encourages program 
implementors and facility owners/operators to include information about 
the ``contained-in'' decision in the public notice of the site-specific 
minimize threat variance. In cases where a site-specific minimize 
threat variance is combined with a decision that a soil no longer 
contains hazardous waste, once treated to comply with the treatment 
standard imposed by the variance, the soil would no longer have any 
obligations under RCRA Subtitle C and could be managed--including land 
disposed--without further control under RCRA Subtitle C. The contained-
in policy is discussed in more detail in Section VII.B.8 and Section 
VII.E of today's preamble.
    EPA reminds program implementors that, consistent with the rest of 
the land disposal restriction program, site-specific determinations 
that threats are minimized cannot be based on the potential safety of 
land disposal units, or engineered structures such as liners, caps, 
slurry walls or any other practice occurring after land disposal. 
American Petroleum Inst. v. EPA, 906 F.2d 729, 735-36 (D.C. Cir. 1990) 
(land treatment cannot be considered in determining whether threats 
posed by land disposal have been minimized because land treatment is a 
type of land disposal and section 3004(m) requires that threats be 
minimized before land disposal occurs); see also S. Rep. No. 284, 98th 
Cong. 1st sess. at 15, stating that engineered barriers cannot be 
considered in assessing no-migration variances because ``[a]rtificial 
barriers do not provide the assurances necessary to meet the 
standard.'' This means that site-specific minimize threat 
determinations must be based on the inherent threats any given 
contaminated soil would pose. The Agency recognizes that this will have 
the effect of precluding site-specific minimize threat variances for 
remedies that rely, even in part, on capping, containment or other 
physical or institutional controls. In

[[Page 28608]]

addition to being compelled by the statute, the Agency believes this 
approach is proper, in that it may encourage remedy choices that rely 
more predominantly on treatment to permanently and significantly reduce 
the concentrations (or mobility) of hazardous constituents in 
contaminated soil. The Agency has a strong and longstanding preference 
for these types of more permanent remedial approaches.
    In addition, at a minimum, alternative land disposal restriction 
treatment standards established through site specific, risk-based 
minimize threat variances should be within the range of values the 
Agency generally finds acceptable for risk-based cleanup levels. That 
is, for carcinogens, alternative treatment standards should ensure 
constituent concentrations that result in the total excess risk from 
any medium to an individual exposed over a lifetime generally falling 
within a range from 10-4 to 10-6, using 
10-6 as a point of departure and with a preference, all 
things being equal, for achieving the more protective end of the risk 
range. For non-carcinogenic effects, alternative treatment standards 
should ensure constituent concentrations that an individual could be 
exposed to on a daily basis without appreciable risk of deleterious 
effect during a lifetime; in general, the hazard index should not 
exceed one (1). Constituent concentrations that achieve these levels 
should be calculated based on a reasonable maximum exposure scenario--
that is, based on an analysis of both the current and reasonably 
expected future land uses, with exposure parameters chosen based on a 
reasonable assessment of the maximum exposure that might occur. The 
Agency believes these represent an appropriate range of minimum values 
for site-specific, risk-based minimize threat determinations because 
sites cleaned up to these levels are typically released from regulatory 
control under the Federal CERCLA program and the RCRA corrective action 
program. See, for example, the National Contingency Plan (55 FR 8666, 
March 8, 1990) the 1990 RCRA Corrective Action Subpart S Proposal (55 
FR 30798, July 27, 1990), and the 1996 RCRA Corrective Action Subpart S 
ANPR (61 FR 19432, May 1, 1996). In addition to achieving protection of 
human health, alternative treatment standards must ensure that 
environmental receptors are protected and must also ensure that no 
unacceptable transfer of contamination from one medium to another, for 
example, from soil to ground water, will occur.\20\ Protection of 
environmental receptors and against cross-media contamination may, in 
some cases, require more stringent (i.e., lower) alternative treatment 
standards than would be necessary to protect human health alone. The 
Agency recognizes that this approach is different from the approach 
used in developing national risk-based minimize threat levels proposed 
in the Hazardous Waste Identification Rule (HWIR-Waste). 60 FR 66344 
(December 21, 1995). This difference is proper, in that the HWIR-Waste 
proposal contemplated nationally-applicable risk-based LDR treatment 
standards and, therefore, had to consider the myriad of potential 
exposure pathways and receptors which might occur at any given site, 
nation wide. A site-specific minimize threat determination is informed 
by actual and reasonable potential exposure pathways and receptors at a 
specific land disposal location.
---------------------------------------------------------------------------

    \20\ Unacceptable cross-media transfer would include, for 
example, transfer of contaminants from soil to air in excess of 
applicable air emission standards.
---------------------------------------------------------------------------

    Although not expressly limited to land disposal of contaminated 
soil on-site, EPA anticipates that site-specific minimize threat 
variances will, most often, be applied to these activities. The basis 
for developing an alternative land disposal restriction treatment 
standard during the site-specific minimize threat variance is 
application of risk information about specific exposure pathways and 
receptors of concern. To apply such a variance to off-site land 
disposal, the treatment standard would have to be informed by the 
exposure pathways and receptors present at the off-site land disposal 
areas (assuming no physical or engineered structures or other post-
land-disposal controls). While such an analysis is allowed, this 
information is not, to the Agency's knowledge, routinely gathered 
during site remediation.
    Most commenters supported the concept of using a treatment variance 
to reduce the likelihood that, in any particular case, technology-based 
soil treatment standards might prompt treatment beyond the point at 
which threats to human health and the environment are minimized.
    One commenter was concerned that establishing a risk-based minimize 
threat variance without adequate minimum standards would be contrary to 
law and impossible to oversee. EPA was, in part, persuaded by these 
comments and has added a requirement that, at a minimum, alternative 
LDR treatment standards approved through a site-specific minimize 
threat variance be within the range of acceptable values the Agency 
typically uses for cleanup decisions, as discussed above. In addition, 
as discussed above, the Agency has clarified that, unlike some CERCLA 
or RCRA corrective action remedies, site-specific minimize threat 
variances may not rely on post-land disposal controls.
4. Constituents Subject to Treatment
    For soil contaminated by listed hazardous waste, EPA proposed that 
treatment would be required for each hazardous constituent originating 
from the contaminating waste. For soil which exhibits (or exhibited) a 
characteristic of hazardous waste, EPA proposed that treatment would be 
required: (1) in the case of TC soil, for the characteristic 
contaminant; (2) in the case of ignitable, reactive or corrosive soil, 
for the characteristic property; and, (3) in both cases, for all 
underlying hazardous constituents. 61 FR at 18809 (April 29, 1996). 
Under the 1996 proposal, treatment would have been required only when 
those constituents were initially present at concentrations greater 
than ten times the universal treatment standard. EPA also requested 
comment on, among other things, whether, for soil contaminated by 
listed hazardous waste, treatment should be required for all underlying 
hazardous constituents present at concentrations above ten times the 
UTS. Underlying hazardous constituent is defined in 40 CFR 268.2(i) as, 
``any constituent listed in 40 CFR 268.48 table UTS, except fluoride, 
sulfides, vanadium, selenium, and zinc, which can reasonably be 
expected to be present at the point of generation of the hazardous 
waste, at a concentration above the constituent-specific UTS treatment 
standards.''
    Many commenters supported the proposed approach. Some commenters, 
however, expressed concern that, because contaminated soil often 
contains numerous hazardous constituents from a variety of sources, 
limiting treatment of soil contaminated by listed hazardous waste to 
constituents originating from the contaminating waste might result in 
soil contaminated with listed waste undergoing less treatment than soil 
which exhibits (or exhibited) a characteristic of hazardous waste. One 
commenter also asserted that the proposed approach to constituents 
subject to treatment was, in the case of soil contaminated by listed 
hazardous waste, inconsistent with the Chemical Waste opinion. On 
further consideration, EPA was persuaded that it is prudent to apply 
the logic of the

[[Page 28609]]

Chemical Waste opinion both to soil contaminated by listed hazardous 
waste and to soils which exhibit a characteristic of hazardous waste.
    As the Agency explained in the 1996 proposal, contaminated soils 
are potentially contaminated with a wider range of hazardous 
constituents than most pure hazardous wastes generated by on-going 
industrial processes--in no small part because contaminated soils 
generally reflect uncontrolled disposal settings. 58 FR at 48124 
(September 14, 1993). Since the Chemical Waste opinion addressed a 
similar situation (certain characteristic hazardous wastes that might 
contain a variety of hazardous constituents), the Agency is persuaded 
that it is prudent to apply the logic of the Chemical Waste opinion to 
contaminated soil and require treatment of all underlying hazardous 
constituents. See Chemical Waste Management v. US EPA, 976 F.2d at 16-
18 (D.C. Cir 1992). Therefore, when the soil treatment standards are 
used, today's final rule requires that all contaminated soil subject to 
the LDRs be treated to achieve the soil treatment standards for each 
underlying hazardous constituent reasonably expected to be present in 
the soil when such constituents are initially found at concentrations 
greater than ten times the universal treatment standard. In addition to 
treatment of all underlying hazardous constituents as discussed above, 
as proposed, characteristic soil must also be treated, in the case of 
TC soil, for the TC constituent and, in the case of ignitable, 
corrosive, or reactive soil, for the characteristic property.
    Although, when the soil treatment standards are used, treatment is 
now required for each underlying hazardous constituent when such 
constituents are initially found at concentrations greater than ten 
times the universal treatment standard, it will not be necessary to 
monitor soil for the entire list of underlying hazardous constituents. 
Generators of contaminated soil can reasonably apply knowledge of the 
likely contaminants present and use that knowledge to select 
appropriate underlying hazardous constituents, or classes of 
constituents, for monitoring. This is consistent with the approaches 
EPA typically takes in remedial programs, where it emphasizes that 
remediation managers should focus investigations on constituents of 
concern and with regulations that allow generators to rely on knowledge 
to determine whether any given solid waste is hazardous. Cf. 61 FR at 
19444 where EPA encouraged remediation managers to ``tailor [facility 
investigations] to the specific conditions and circumstances at the 
facility and focus on the units, releases, and exposure pathways of 
concern.''
    For nonanalyzable constituents, EPA is promulgating the approach 
discussed in both the September 14, 1993 and the April 29, 1996 
proposals. In situations where contaminated soil contains both 
analyzable and nonanalyzable organic constituents, treating the 
analyzable constituents to meet the soil treatment standards is also 
reasonably expected to provide adequate treatment of the nonanalyzable 
constituents. In situations where contaminated soil contains only 
nonanalyzable constituents (i.e., soil contaminated only by 
nonanalyzable U or P listed wastes), treatment using the specified 
method for the appropriate U or P listed waste is required. 61 FR at 
18810, April 29, 1996. Most commenters supported this approach.
5. Relationship of Soil Treatment Standards to Naturally Occurring 
Constituents
    In the April 29, 1996 proposal EPA requested comment on whether 
concentrations of naturally occurring constituents should be evaluated 
when identifying constituents subject to treatment. Commenters who 
addressed this issue overwhelmingly recommended that, for naturally 
occurring constituents, EPA cap LDR treatment requirements for soil at 
natural background concentrations. After considering these comments, 
EPA was persuaded that treatment to comply with LDRs should not be 
required if constituent concentrations fall below naturally occurring 
background concentrations, provided the soil will continue to be 
managed on site or in an area with similar natural background 
concentrations. If soil will be sent for land disposal off-site, 
compliance with LDRs is required, since the Agency believes that 
natural background concentrations on-site will not automatically 
correspond to natural background concentrations at a remote land 
disposal facility.
    The Agency notes that, for purposes of this discussion, natural 
background concentrations are constituent concentrations that are 
present in soil which has not been influenced by human activities or 
releases. Since these constituent concentrations are present absent 
human influence and EPA has determined that soil (like other 
environmental media) is not, of itself, a waste but may be regulated as 
hazardous waste under RCRA only when it contains (or contained) waste, 
EPA is not convinced the Agency would have the authority to require 
compliance with LDRs when constituent concentrations fall below 
background concentrations even if it felt compelled to do so. (Of 
course, such constituents could be regulated as hazardous constituents 
under state and Federal cleanup authorities, including RCRA corrective 
action and other authorities.)
    Since natural background concentrations may vary across geographic 
areas, and to ensure that LDRs will only be capped at background where 
appropriate, EPA will require that individuals who wish to cap LDR 
treatment at natural background concentrations apply for and receive a 
treatment variance. EPA will presume that when LDRs would require 
treatment to concentrations that are less than natural background, such 
a variance will be appropriate, based on the finding that it is 
inappropriate, for contaminated soil, to require treatment to 
concentrations less than natural background concentrations. This issue 
has been clarified in today's final regulations, see 40 CFR 
268.44(h)(4).
6. Restrictions on Use of Treated Hazardous Contaminated Soil in 
Products Used in a Manner Constituting Disposal
    Although, as discussed earlier in today's preamble, EPA believes 
the soil treatment standards satisfy the requirements of RCRA Section 
3004(m), EPA has determined that additional restrictions are necessary 
for hazardous contaminated soils that are used to produce products 
which are, subsequently, used in a manner constituting disposal (i.e., 
used to produce products which are placed in or on the land). Under 
current regulations, hazardous waste-derived products that are used in 
a manner constituting disposal must, among other things, comply with 
the applicable land disposal restriction treatment standards in 40 CFR 
part 268.40, that is, the Universal Treatment Standards. See 40 CFR 
266.23(a). EPA has concluded that hazardous contaminated soil used to 
produce products which are, subsequently, used in a manner constituting 
disposal must continue to meet the universal treatment standards. Such 
products, then, are not eligible for the soil treatment standards 
promulgated today. EPA has made this decision for several reasons. 
First, EPA has chosen technology-based treatment standards (such as 
today's soil treatment standards) as a means of implementing the LDR 
statutory requirements in order to eliminate as many of the 
uncertainties associated with land disposal of hazardous waste as 
possible.

[[Page 28610]]

55 FR at 6642 (Feb. 26, 1990). These uncertainties increase sharply 
when one considers possible dispositions of hazardous waste-derived 
products used in a manner constituting disposal. These products can be 
placed virtually anywhere, compounding potential release mechanisms, 
exposure pathways, and human and environmental receptors. 62 FR at 
64506 (Dec. 5, 1997) and 53 FR at 31197-98 (August 17, 1988). For these 
reasons, the Agency in 1988 determined that these wastes should be 
treated to reflect the best treatment available, 53 FR at 31197-98, and 
the Agency believes this reasoning continues to hold with respect to 
contaminated soils. Second, EPA has determined that the soil treatment 
standards adopted in today's rule are justified, in many instances, in 
order to encourage remediation involving treatment over remedies that 
involve leaving un-treated contaminated soils in place. The Agency is 
less sure that this is a desirable incentive if the contaminated soils 
are to be used in a manner constituting disposal, again because of the 
uncertainties posed by this method of land disposal.
    Note that EPA has explained, however, that remediation activities 
involving replacement of treated soils onto the land is not a type of 
use constituting disposal, in part, because it is a supervised 
remediation instead of an unsupervised recycling activity. 62 FR 26063 
(May 12, 1997). This interpretation is not affected by today's 
rulemaking.
7. Availability of Soil Treatment Standards
    EPA proposed that soil-specific land disposal restriction treatment 
standards would be available only for contaminated soils managed under 
an agency approved, site-specific cleanup plan termed a Remediation 
Management Plan or ``RMP.'' The Agency also specifically requested 
comment on whether soil-specific treatment standards should be made 
available to all contaminated soil. 61 FR at 18813 (April 29, 1996). 
The majority of commenters who addressed this issue strongly supported 
extending the soil treatment standards to all contaminated soil. These 
commenters argued that extending soil-specific LDRs to all contaminated 
soil would encourage voluntary and independent cleanups, especially at 
low and medium priority sites where a regulatory agency might not have 
the resources to provide real-time oversight through a ``RMP.'' After 
considering these comments, EPA is persuaded that the soil treatment 
standards should be available for all contaminated soil and has revised 
the regulations accordingly.
    EPA's thinking in proposing to require a site-specific remediation 
management plan to take advantage of the soil treatment standards was 
that site-specific oversight, and potentially modification of the 
treatment standards, would be necessary to ensure that all contaminated 
soils were appropriately treated. 61 FR at 18807 (April 29, 1996). 
However, EPA now concludes that the soil treatment standards will 
ensure adequate treatment of all contaminated soils for two reasons.
    First and primarily, the residuals from treatment of hazardous 
contaminated soil will typically continue to be regulated as hazardous 
waste and will remain subject to applicable RCRA Subtitle C 
requirements. 61 FR at 18810 (April 29, 1996). Non-soil residuals, such 
as wastes generated during application of separation technologies, will 
be regulated as hazardous wastes if they exhibit a characteristic of 
hazardous waste or if they derive from treating a soil which contains 
listed hazardous waste. Therefore, these types of non-soil residuals 
will typically be subject to the universal treatment standards in 40 
CFR 268.40. See 57 FR at 37240 (Aug. 18, 1992) where EPA took the same 
approach for residues from treating contaminated debris. Soil residuals 
will also be regulated as hazardous waste unless it is determined that 
the soil does not contain hazardous waste.21 For example, 
application of a thermal desorption technology would likely generate 
two types of residuals: treated soil (soil residual) and concentrated 
contaminants removed from the soil and captured in an air pollution 
control device (non-soil residual). If the contaminated soil contained 
a listed hazardous waste or exhibited a characteristic of hazardous 
waste at the time of treatment, both residuals would continue to be 
subject to RCRA Subtitle C regulations. The non-soil residual would be 
required to comply with applicable universal treatment standards prior 
to land disposal; the soil residual would generally require land 
disposal in a Subtitle C unit unless a ``contained-in'' determination 
was made. Therefore, although a remediation management plan is no 
longer required to take advantage of the soil treatment standards, a 
site-specific decision is still required before treated contaminated 
soil can exit the system of RCRA regulations.
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    \21\ The exception would be soil residuals from treatment of 
soils which were determined no longer to contain a listed hazardous 
waste or were decharacterized and yet remained subject to LDRs. In 
this case, since the treatment would be performed on non-hazardous 
soil, the soil residuals would also be considered non-hazardous.
---------------------------------------------------------------------------

    Second, as noted earlier, EPA has extended the treatment 
requirement to all underlying hazardous constituents reasonably 
expected to be present in contaminated soils when such constituents are 
found at initial concentrations greater than ten times the universal 
treatment standard and retained current treatment requirements for 
hazardous contaminated soils used to produce products that are 
subsequently used in a manner constituting disposal.
8. Achievability of Contaminated Soil Treatment Standards
    The soil treatment standards promulgated today are based primarily 
on the data for soil treatability found in EPA's Soil Treatment 
Database (SDB). See, Best Demonstrated Available Treatment Background 
Document for Hazardous Soils, August 1993 and LDR Phase 2 proposal at 
58 FR 48122, Sept. 14, 1993. Data from the soil treatment database are 
corroborated by more recent performance data for non-combustion 
treatment of remediation wastes. See Soil Treatability Analysis: 
Analysis of Treatability Data for Contaminated Soil Treatment 
Technologies (April 1998, USEPA) and references cited in note 5 below.
    The soil treatment data base contains 6,394 pairs of data points 
(for the same sample, one datum for untreated soil and one datum for 
treated soil) describing the treatment of hazardous constituents in 
contaminated soils managed under the RCRA and the Superfund programs. 
After screening the database to eliminate data from tests reflecting 
poorly designed or operated treatment, tests where EPA believes 
inappropriate technologies were applied (for example, data from 
immobilization of organic constituents) and other inappropriate data, 
the Agency was left with 2,541 pairs of data points. These data pairs 
depict treatment of ninety-four hazardous constituents, including 
eighty-five organic constituents and nine BDAT list metals. The 
retained 2,541 pairs of data points from the soil treatment database 
represent the treatment of organic and metal constituents by various 
technologies including: combustion, biological treatment, chemical/
solvent extraction, dechlorination, thermal desorption, air/steam 
extraction, photolysis, soil washing, stabilization, and vitrification. 
The soil treatment database includes performance data from bench, 
pilot, and full scale technologies. A complete discussion of the 
Agency's method for

[[Page 28611]]

screening the Soil Treatment Database can be found in the LDR Phase II 
proposal (58 FR 48129-31, September 14, 1993) and the Best Demonstrated 
Available Technology Background Document for Hazardous Soil (August 
1993).
    A number of commenters were concerned that aggregated data, i.e., 
the 2,541 pairs of data points representing the combined performance of 
combustion and non-combustion technologies, may mask the performance of 
non-combustion technologies alone. Commenters urged EPA to disaggregate 
these performance data to allow for more accurate analysis of non-
combustion technology performance. As a result, EPA has disaggregated 
the combustion and non-combustion treatment data for purposes of 
analyzing the achievability of today's soil treatment standards. See 
generally, Soil Data Analysis: Soil Treatability Analysis of 
Treatability Data for Contaminated Soil Treatment Technologies (April 
1998, USEPA) and Additional Information on Treatability of Contaminated 
Soils as Discussed in Section VII.B.8. of Phase IV Final Rule Preamble 
(April 1998, USEPA).
    After separating out combustion data, the remaining non-combustion 
soil treatment data base is reduced from 2,541 to 2,143 paired data 
points. These 2,143 22 data pairs depict the treatment of 72 
organics 23 and nine metals in contaminated by biological 
treatment, chemical and solvent extraction, dechlorination, thermal 
desorption, air and steam stripping, hydrolysis, photolysis, soil 
washing, and stabilization.
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    \22\ One single datum from the vitrification of p,p'DDT was not 
included since it appears to have resulted from treatment that was 
not optimally designed or conducted.
    \23\ Out of 85 organic constituents, only 13 were treated 
exclusively by combustion. See, however, the discussion later in 
this preamble with regard to presence of data from incineration and 
extrapolation of data among organic constituents.
---------------------------------------------------------------------------

    As discussed earlier in today's preamble, EPA did not use the 
traditional BDAT approach to develop the soil treatment standards. 
Instead, the Agency evaluated data from the 2,143 non-combustion data 
pairs in the soil treatment database to identify, generally, the level 
of performance non-combustion soil treatment technologies achieve. In 
light of our multi-faceted objectives regarding remediation of 
contaminated soils (discussed earlier in this preamble), this approach 
and methodology are appropriate. As noted earlier in today's preamble, 
the numerical values chosen for soil treatment standards--90% reduction 
capped at ten times the UTS--are within the zone of reasonable values 
from which the Agency can properly select.
    For soil contaminated with organic constituents, the retained 2,143 
data pairs from the soil treatment database show generally that soils 
with moderate levels of contamination are more amenable to treatment by 
non-combustion technologies than soils with high levels of 
contamination. However, the data also show that the soil treatment 
standards promulgated today can be achieved by non-combustion 
technologies even in cases when soils contain elevated levels of 
harder-to-treat organic hazardous constituents, such as dioxins and 
furans, polychlorinated biphenyls (PCBs), and polynuclear aromatics 
(PNAs). The available data on the performance of non-combustion 
technologies suggest that some technologies are more effective with 
certain organics within specific families or chemical functional 
groups. For example, while many organic treatment technologies were 
effective in removing volatile organics from the soils, dechlorination 
is more effective than other non-combustion treatment technologies for 
treating chlorinated organics. For soil contaminated by metals, the 
retained 2,143 data points from the soil treatment database show that 
metals can typically be treated via stabilization to meet the soil 
treatment standards.
    Although, for the reasons discussed earlier in today's preamble, 
EPA has elected to base the soil treatment standards on the performance 
of non-combustion technologies, combustion of soil is not prohibited. 
This is consistent with all other numerical treatment standards, which 
can likewise be achieved through use of any technology (other than 
impermissible dilution). It may be that combustion is, in fact, chosen 
as the remedial treatment technology at certain sites, most likely 
because of economic considerations (such as in the case of low soil 
volumes where on-site treatment units are not economically viable). 
Selection of the best treatment technology for the specific soil type 
and range of contaminants present at any given remediation site is a 
site-specific decision assuming, for soils subject to the LDRs, that 
the selected technology does not involve impermissible dilution and 
that today's soil treatment standards are met. Further details about 
the results of EPA's examination of treatment technologies for 
different groups of contaminants are discussed in the succeeding 
sections.
    a. Comments. Many commenters expressed concern that the retained 
2,541 data points from the soil treatment database might not adequately 
address the many types of soils and contaminated site scenarios that 
may arise in the field. Among other things, these commenters asserted 
that: (1) the list of chemical organic constituents for which EPA has 
data may be too small to extrapolate to other organics in the list of 
underlying hazardous constituents that must meet treatment standards; 
(2) for organic constituents, many of the treatment test results 
examined by EPA involved mostly combustion rather than non-combustion 
technologies; (3) for soils with multiple hazardous constituents and 
other complex soil matrices, the soil treatment standards could only be 
met via incineration; and, (4) EPA should not pool data from bench, 
pilot, and full scale treatment applications. For the most part, these 
commenters suggested that EPA either exempt hazardous contaminated soil 
entirely from a duty to comply with land disposal restriction treatment 
standards or, if hazardous contaminated soil were to remain subject to 
LDRs, allow risk-based treatment standards to be developed entirely on 
a site-by-site basis pursuant to state oversight.
    EPA closely considered these comments and carefully re-evaluated 
the data from the soil treatment database as well as other data from 
more recent sources. These evaluations are summarized in the background 
documents for today's final rule. EPA is not, at this time, taking 
action to categorically exempt large volumes of hazardous remediation 
waste (including contaminated soil) from RCRA hazardous waste 
management requirements and, therefore, the issue of achievability of 
today's soil treatment standards is germane.
    Notwithstanding the treatment results described in this section 
below, which support the achievability of today's soil treatment 
standards, EPA realizes that national, technology-based treatment 
standards are sometimes not achievable because of site- and waste-
specific characteristics. Thus, EPA has long provided for treatment 
variances under these circumstances (see 40 CFR 268.44). In addition, 
because EPA and authorized states are in a position during remediation 
to make site-specific risk-based minimize threat determinations, the 
Agency is also adopting in today's rule a new type of variance for 
contaminated soils. This variance can be granted if, on a case-by-case 
basis, it is determined that the technology-based treatment standard

[[Page 28612]]

would prompt treatment beyond the point at which threats are minimized.
    Fundamentally, EPA agrees with many commenters that today's land 
disposal treatment standards for contaminated soil may not remove all 
of the barriers RCRA can impose on efficient and aggressive site 
remediation. As discussed earlier in today's preamble, the Agency hopes 
the application of RCRA Subtitle C requirements to remediation of 
contaminated soils and other wastes will be addressed through 
legislation. If there is no legislative action, EPA may choose to take 
additional regulatory action, which may include either a re-examination 
of the application of LDRs to contaminated soil or other remediation 
wastes or a re-evaluation of today's soil treatment standards, or both. 
In the meantime, today's rule represents a significant improvement over 
the current practice of applying the treatment standards developed for 
pure industrial hazardous waste to contaminated soil.
    b. Analysis of Data from the Soil Treatment Database. The soil 
treatment standards promulgated today are based EPA's Soil Treatment 
Database (SDB). See, Best Demonstrated Available Treatment Background 
Document for Hazardous Soils (August 1993); LDR Phase 2 proposal (58 FR 
48122, Sept. 14, 1993); and Soil Treatability Analysis: Analysis of 
Treatability Data for Contaminated Soil Treatment Technologies (April 
1998, USEPA) (hereinafter, this document is referred to as the ``Soil 
Treatability Analysis Report''). General concerns about the soil 
treatment database (and in particular, concerns about achieving the 10 
times UTS or 90% reduction standard) are addressed here. Results of our 
analysis of the soil treatment database data on treatment performance 
for various technologies are shown in Table 1 below. Results of 
additional analysis for various organic and metal contaminant groups 
are shown in Tables 2-5 below. Further details of the analysis and 
additional findings are contained in the technical background documents 
in this docket.


                                      Table 1.--Summary of Treatment Results per Technology in Soil Data Base \24\                                      
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Untreated                                     Treated                               
                                                               -----------------------------------------------------------------------------------------
                                                Total paired                         Data points       Data points       Data points       Data Points  
            Treatment technology               data points in      Data points    meeting 10 times     meeting 90%     meeting both 10   failing both 10
                                                the soil data   meeting 10 times   UTS but not 90%    reduction but     times UTS and     times UTS and 
                                                    base          UTS standard        reduction     not 10 times UTS    90% reduction     90% reduction 
                                                                                      standard          standard          standards         standards   
--------------------------------------------------------------------------------------------------------------------------------------------------------
Biological Treatment........................               250                86               176               168               109                15
Chemical Treatment..........................               242                58               226               206               200                10
Dechlorination..............................               154                53               134               100                84                 4
Stabilization...............................               269               140               250               239               232                12
Stripping...................................               236                88               206               103               103                30
Washing.....................................                35                10                21                14                11                11
Thermal Desorption..........................               957               338               833               759               692                57
                                             -----------------------------------------------------------------------------------------------------------
    Total...................................         2143 \25\               773              1846              1589              1431               139
--------------------------------------------------------------------------------------------------------------------------------------------------------



    In aggregate, the results on Table 1 indicate that the Agency's 
selection of standards are within the range of reasonable values for 
non-combustion technologies to achieve. These data show that 139 (or 
6%) paired data points out of 2143 would fail to meet the 10 times UTS 
or 90% reduction standard. Among possible reasons for these treatment 
performance deviations are that some soil samples represent cases in 
which the selected technology was not appropriate for the range of 
hazardous constituents in an organic chemical admixture. A better 
selection of treatment technology may include either a more aggressive 
non-combustion technology or may involve use of two or more technology 
trains in order to meet the soil treatment standards. It is common 
practice to employ multiple treatment trains at facilities that have 
complex chemical mixtures or soil textures at a site. As further 
explained in succeeding sections of this preamble and in various 
background documents, EPA believes that the hazardous soil treatment 
standards promulgated today are within a regime of reasonable treatment 
levels normally achieved by non-combustion technologies. See, e.g., 
Soil Treatability Analysis Report and Extrapolation of Treatment 
Performance Data in the Soil Data Base Among Hazardous Constituents in 
Contaminated Soils (April 1998, USEPA).
---------------------------------------------------------------------------

    \24\ For discussion of these treatment data, see Soil 
Treatability Analysis Report, and Extrapolation of Treatment 
Performance Data in the Soil Data Base Among Hazardous Constituents 
in Contaminated Soils (April 1998, USEPA).
    \25\ As noted earlier, EPA examined in detail up to 2,541 pairs 
of data points in total, and the number of non-combustion data pairs 
examined is 2,143.
---------------------------------------------------------------------------

    (1) Concerns About Presence of Data from Incineration and 
Extrapolation of Data to Other Constituents. As mentioned earlier, EPA 
has segregated the available treatment data (2,541 paired data points) 
so that we can better examine the 2,143 paired data points describing 
the treatment of hazardous soils by non-combustion technologies. 
Although 50 organic constituents in the original 2,541 paired data 
points were treated by combustion (i.e., incineration), only 13 of 
these 50 organics were treated exclusively by combustion. These 13 
hazardous constituents are: 1,2,4-trichloro-benzene; p,p'-DDD; p,p'DDE; 
2,4-dichlorophenol; methoxychlor; 2,4,6-trichlorophenol; 2,4,5-
trichlorophenol; carbon tetrachloride; chloroform; hexachloroethane; 
1,2-dibromo-3-chloro-propane; isodrin; and gamma-BHC. None of the data 
describing combustion of these 13 constituents or the other 37 organics 
(for which there are some combustion results) were relied upon in 
assessing achievability of today's hazardous soil treatment limits.
    With respect to commenters' concerns about extrapolating the SDB 
data to organic and inorganic constituents that will need to be 
treated, EPA analyzed the various non-combustion technologies and their 
average treatment efficiencies against various chemical clusters and 
chemical functional groups of hazardous constituents. See: (1) 
Extrapolation of Treatment Performance Data in the Soil Data Base Among 
Hazardous Constituents in Contaminated Soils (April 1998, USEPA); (2) 
Derivation of Treatment Achievability Results of Organic Functional 
Groups and Types of Compounds (April 1998, USEPA); (3) Soil 
Treatability Analysis Report (USEPA, 1998); and (4) Additional

[[Page 28613]]

Information on Treatability of Contaminated Soils as Discussed in 
Section VII.B.8. of the Final Rule Preamble (April 1998, USEPA).
    The results are summarized in Tables 2-5 below. These results show 
that non-combustion technologies can achieve today's soil treatment 
standards. 93.5% (2,004 of the 2,143 data pairs ) of the treatment test 
results meet the 10 times UTS or 90% reduction standard. Furthermore, 
non-combustion technologies can meet the soil treatment standards even 
in cases when soils contain elevated levels of harder-to-treat organic 
hazardous constituents, such as dioxins and furans, polychlorinated 
biphenyls (PCBs), and polynuclear aromatics (PNAs). See Appendix D in 
Soil Treatability Analysis Report.
    As noted earlier, available data on the performance of non-
combustion technologies treating organics also show that some 
technologies are more effective with certain organics within specific 
families or chemical functional groups, e.g., organic treatment 
technologies removing volatile organics from the soils and 
dechlorination removing halogenated organics. Treatability tests at 
certain complex sites corroborate these findings of achievability from 
the SDB.
    Regarding organics, at the Ninth Avenue Dump Site in Indiana, 
hazardous soils were contaminated with low to moderate concentrations 
of PNAs, aromatics, chlorinated aliphatics, and phthalates. Untreated 
constituents showed concentrations that were about the same or up to 
two orders of magnitude higher than today's soil treatment 
standards.26 Among the volatiles were toluene (1,100 ppm), 
total xylene (2,100 ppm), ethylbenzene ( 420 ppm), 1,1,1-
trichloroethane (120 ppm), trichloroethene (93 ppm), tetrachloroethene 
(380 ppm), 1,1-dichloroethane (81 ppm), and methylene chloride (800 
ppm). The following semivolatile organics-PNAs (and their highest 
concentration) were phenanthrene (92 ppm) and naphthalene (84 ppm). 
Bis(2-ethylhexyl) phthalate, a semivolatile phthalate, was reported at 
110 ppm. The soil particle distribution of the contaminated soil was 
not quantified, but the soil was reported as comprised primarily of 
sand and silt. Biotreatment achieved the following average treatment 
reduction efficiencies:
---------------------------------------------------------------------------

    \26\ The following constituents were present at levels below the 
soil treatment standards; fluorene, fluoranthene, pyrene, 
acenaphthalene, benzo(a)anthracene, chrysene, di-n-butyl phthalate, 
and diphenylnitrosamine.
---------------------------------------------------------------------------

     Volatile chlorinated aliphatics--99.9%;
     Ethylbenzene--100%;
     Volatile aromatics--99.9%;
     Semivolatile PNAs--97.4%;
     Bis(2-ethylhexyl)phthalate--93.2%.
    Regarding complex metal remediations, the full-scale stabilization 
study conducted at the Portable Equipment Salvage Company, a 
transformer and metal salvage operation in Oregon, involved untreated 
levels of lead up to 880 mg/l (TCLP) and zinc up to 71 mg/l (TCLP). 
Organics were also present--the highest sample showing 610 mg/l lead 
(TCLP), 14,000 ppm oil and grease, 41,000 ppm total organic carbon, and 
7.1 pH. The facility conducted treatability studies on three soil 
textures found at the site: (1) sandy loam, (2) loamy sand, and (3) 
loam. The stabilized sandy loam sample showed a concentration of 0.5 
ppm lead, a 99.72% reduction efficiency. The facility also treated two 
samples of loamy sand, one to 47 mg/l lead (TCLP) (a 93.65% reduction 
efficiency ) and the other to 2.5 mg/l lead (TCLP) (a 99.72% reduction 
efficiency ). The treated loam sample showed 0.10 mg/l lead, a 99.97% 
reduction.
    More information underlying EPA's rationale for extrapolating the 
available treatment performance data to other organic and inorganic 
hazardous constituents regulated under the land disposal restrictions 
can be found in the RCRA Docket for this rule (see Appendix D in Soil 
Treatability Analysis Report) and memorandum to docket on extrapolation 
of treatment performance data among different hazardous constituents.
    Finally, we note that even though there were treatment data on 
soils containing cyanide in the larger data base (6,394 paired data 
points), none of the retained 2,541 or 2,143 paired data points 
included treatment data on cyanide. However, the current UTS for 
cyanide is based on the performance of alkaline dechlorination, a non-
combustion technology. Cyanides can form complexes with metals and 
organics and, therefore, technologies capable of removing both organic 
and metals are also able to remove cyanide from contaminated soils. As 
a result, it is reasonable to expect that the average treatment 
performance attained by treating organics in soils will also be 
achieved for cyanide-bearing contaminated soils. We note that, for 
example, 90% reduction can be achieved based on the performance 
efficiency that thermal desorption attained in removing PNA's (with 
more than five rings) and chlorinated organics from contaminated soil. 
These constituents are among the hardest chemical species to remove via 
thermal desorption. For these reasons, the Agency has concluded that 
today's soil treatment standard for cyanide can be achieved by a non-
combustion technology as well.
    (2) Technology Scale and Soil Variability Issues. As noted earlier, 
several commenters objected to EPA's pooling of treatment data from 
pilot, bench, and full scale processes, and urged EPA to consider only 
performance data from full-scale field studies characterizing the 
treatment of soil volumes. EPA prefers, generally, to rely on full 
scale studies for the purpose of developing and promulgating treatment 
standards, and this is true with respect to the soil treatment 
standards as well. However, in this case as well as in many prior LDR 
treatment standard efforts, EPA's data base includes more than just 
full scale data upon which EPA can properly rely. Bench and pilot scale 
technologies can be appropriately considered by EPA (and EPA has 
historically done so) in setting treatment limits as long as full scale 
operations of the treatment system under consideration exist or have 
been demonstrated on wastes/soils. Except for hydrolysis,27 
the technologies in the SDB are demonstrated full scale, and the 
administrative docket contains bench, pilot, and full scale studies 
that reflect the Agency's field experiences at contaminated sites.
---------------------------------------------------------------------------

    \27\ Hydrolysis can be of normal occurrence or intentionally 
induced at hazardous waste sites. EPA does not have full-scale ex-
situ demonstration studies on this technology but considers the data 
in the SDB to be indicative of what levels can be achieved.
---------------------------------------------------------------------------

    Furthermore, in this rulemaking, given the variability of hazardous 
soils (in terms of types, concentrations and numbers of hazardous 
constituents and soil matrices), plus the special policy considerations 
associated with remediations, the Agency is adopting treatment 
standards from the zone of reasonable values that could be permissibly 
selected based upon the treatment performance data. Thus, the data are 
not being used so much to establish a precise performance level as to 
confirm the typical achievability of the promulgated standards, i.e., 
ten times UTS or 90% reduction.
    With respect to the SDB and commenters' concerns about the impact 
of soil variability on achievability of the soil treatment standards by 
non-combustion technologies, EPA collected 6,394 pairs of data point 
describing the treatment of various hazardous soils.

[[Page 28614]]

The retained 2,143 non-combustion paired data points are reasonably 
sufficient to adequately describe the treatment of metal, organics, and 
multiple metal and organic contaminants that are frequently found at 
different type of sites, including both Superfund and RCRA sites. For 
instance, the SDB has treatment data on soils with varying textures 
including top soils, silty/loam soils, and clay soils. For the 14 
different soil type groupings analyzed, only 139 out of 2,143 data 
pairs (about 6.5%) would not meet today's soil treatment standards (see 
Appendices C and D in Soil Treatability Analysis Report).
    With respect to these 6.5% data pairs, several potential reasons 
exist to explain why 90 % reduction or 10 times UTS level might not 
have been achieved. First, the treatment study objectives may not 
primarily have been to test whether these standards could be met. For 
example, the treatment study may have been designed either to assess 
the feasibility of using a particular (but not necessarily optimum) 
technology on a particular contaminated soil, or to meet a prescribed 
risk-based level under a RCRA or CERCLA site remediation plan.
    Second, a treatment technology may have been applied to soils 
contaminated with multiple hazardous constituents where the technology 
may have been inappropriate for a subset of those contaminants (and for 
which data were reported anyway). For example, air stripping is a 
technology that operates best on volatile organics within a given range 
of Henry constant values. In contrast, air stripping of semivolatile 
organics and metals is expected to be much poorer. (In this type of 
situation, a technology amendment or treatment train may be 
appropriate, i.e., air stripping may be improved if steam stripping is 
applied first to enhance the pool of semivolatiles that can respond to 
the physical separation treatment process.)
    Third, these treatment data likely include instances when a 
treatment technology encountered soil heterogeneities that resulted in 
undertreatment of portions of the soil. For instance, during the clean 
up of contaminated debris and soils, detailed sampling protocols are 
typically developed to ensure that desired treatment constituent 
concentrations are met because of the deleterious impact of 
heterogeneous soil strata and the presence of debris on treatment 
technology performance. Re-processing can often be required to comply 
with the applicable treatment standards. Another alternative is to 
optimize specific technology operating parameters that can enhance the 
ability of the technology to meet the prescribed treatment limits. 
Optimization can involve: (1) feeding the correct soil/debris particle 
size fractions to the treatment system, (2) creating more turbulence 
between soil and gaseous/liquid treatment fluids, (3) using a greater-
than-normal amount of chemical agents, (4) operating at the higher end 
of an operating temperature range, (5) adjusting the pH of the soil, 
(6) adding adequate pre-/post-treatment steps that address specific 
contaminants that may be expected to receive sub-optimal treatment, or 
(7) allowing longer residence time in the treatment unit.
    It is not possible to determine precisely how many of these 
techniques were used in the 139 instances that failed the 90% reduction 
or 10 times UTS levels. However, EPA expects that not all optimization 
measures were used since the operators of the treatment technologies 
did not have as their primary objective the attainment of these 
particular levels, which are being adopted today as the soil treatment 
standard. On balance, the weight of evidence and analysis from the SDB 
are believed to reasonably indicate that today's standards are 
achievable for soils that may exhibit variability, particularly if 
optimization techniques or treatment technology trains are fully 
considered. Of course, should an unusual situation present itself in 
which these measures are not successful, a treatment variance can be 
sought under 40 CFR 268.44(h) or under the risk-based variance 
provisions being adopted in today's rule.
    Furthermore, EPA has a number of bench and pilot studies on the 
treatment of contaminated soils from wood preserving, petroleum 
refining, and electroplating sites, which contain a wide range of 
constituents such as polynuclear aromatic, phenolic, chlorinated 
organics, spent solvents, creosote, and metals. It is reasonable to 
expect that these treatment results, showing achievability, also lend 
support to the conclusion that treatment at other RCRA and Superfund 
sites, containing these types of complex contaminant and soil 
variability scenarios, can be expected to achieve today's soil 
treatment standards.28 See also Chapter 4 in Soil 
Treatability Analysis Report.
---------------------------------------------------------------------------

    \28\ See (1) Remediation Case Studies: Bioremediation and 
Vitrification, July 1997, EPA 542-R-97-008 or PB97-177554; (2) 
Remediation Case Studies: Soil Vapor Extraction and Other In Situ 
Technologies, July 1997, EPA 542-R-97-009 or NTIS PB97-177562; (3) 
Analysis of Selected Enhancements for Soil Vapor Extraction, 
September 1997, EPA-542-R-97-007; (4) Remedial Case Studies: Thermal 
Desorption, Soil Washing, and In Situ Vitrification, March 1995, EPA 
542-R-95-005 or NITS PB95-182945; (5) Remediation Case Studies: Soil 
Vapor Extraction, March 1995, EPA 542-4-95-004 or NTIS PB95-182937; 
and (6) Remediation case Studies: Bioremediation, March 1995, EPA 
542-R-95-002 or NTIS PB95-182911.
---------------------------------------------------------------------------

    Pooled bench, pilot, and full scale data in the SDB are expected to 
depict what the various treatment technologies can achieve for other 
hazardous soils managed under CERCLA and RCRA. As noted earlier, non-
combustion technologies will behave better on a given range or class of 
organic and metal constituents. A given range of soil characteristics 
that may inhibit treatment performance can be amended to facilitate the 
treatment of hazardous soils. Available information on other full scale 
operations of the tested technologies demonstrate that optimization 
techniques can be used to overcome potential soil interferences and 
thus attain, generally, treatment design objectives. Hence, it is 
important to carefully evaluate the characteristics of each site 
against the expected capabilities of various non-combustion 
technologies, which are summarized below.
    (3) Performance Data for Organic Constituents. EPA's conclusions 
with respect to achievability of soil treatment standards for organics 
in hazardous soils are based on the performance of biological 
treatment, chemical extraction, dechlorination, soil washing, thermal 
desorption, and soil vapor extraction. Other treatment technologies 
capable of achieving the treatment limits (such as combustion) are not 
prohibited except for those that may constitute impermissible dilution. 
Tables 2 and 3 below provide an overview of the number of data points 
and the average treatment efficiency ranges that each of the technology 
categories achieved. Also, each Table below reports the range of test 
scales as well as the available treatment performance data per major 
chemical family category/cluster assigned to chemical constituents in 
the BDAT List. (For the whole list of BDAT constituents and their 
classification, see Appendix B in the BDAT Background Document for 
Hazardous Soils, August 1993.) Further details and discussion on the 
results for major chemical family categories/clusters is contained in 
the docket.

[[Page 28615]]



                                           Table 2.--Summary of Nonthermal Treatment Performance Data on Groups of Organic Hazardous Constituents \29\                                          
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Biotreatment scale:  0.01 kg     Chemical extraction scale:     Dechlorination scale:  0.1 kg  Soil washing scale:  0.08-204   Hydrolysis scale:  0.1 kg to
                                            to 1,250,000 kg             0.0075 kg to 37,000 kg               to 127,913 kg                        kg                          2.75 kg           
       BDAT organic cluster        -------------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Data       Average removal      Data       Average removal      Data       Average removal      Data      Average removal      Data      Average removal   
                                    points        efficiency        points        efficiency        points        efficiency        points        efficiency       points        efficiency     
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Volatiles.........................      48  >99%..................       9  >99%..................      13  96.3 to 99.3%.........    None  None.................    None  None                 
Semivolatiles.....................     185  55-98.2% \30\.........     163  62-98.8%..............       2  99.8%.................      13  81.8-97.2%...........    None  None                 
Organochlorine....................      12  16.7--70.2%...........    None  None..................      13  >95.2%................    None  None.................       2  67.9-91.7%           
Phenoxyacetic Acid Pesticides.....    None  None..................    None  None..................       9  98.6-99.0%............    None  None.................    None  None                 
Organo Phosphorous insecticides       None  None..................    None  None..................    None  None..................    None  None.................    None  None                 
 \31\.                                                                                                                                                                                          
Polychlorinated Biphenyls.........    None  None..................      52  71.5%-99.9%...........      69  68.8-97.1%............       1  88.5% \32\...........    None  None                 
Dioxins and Furans................    None  None..................      12  40->97%...............      48  73.7->99.8%...........       7  84.8%................    None  None                 
                                   --------                        --------                        --------                        --------                       --------                      
    Total Number of Data Points...     245  ......................     236  ......................     154  ......................      21  .....................       2                       
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


          Table 3.--Summary of Thermal Performance Data on Groups of Organic Hazardous Constituents 33          
----------------------------------------------------------------------------------------------------------------
                                Thermal desorption 34 scale: 21.6 kg to 3,823,000   Soil vapor extraction scale:
                                                       kg                               4.5 kg to >1,000 kg     
                              ----------------------------------------------------------------------------------
     BDAT organic cluster                                                                             Average   
                                 Data points       Average removal efficiency        Data points      removal   
                                                                                                     efficiency 
----------------------------------------------------------------------------------------------------------------
Volatiles....................             293  79.2-99.9%........................             189  44-99.2%     
Semivolatiles 35.............             614  50-99.4%..........................              47  0-57.2%      
Organochlorines..............              12  88.5-98.8%........................            None  None         
Phenoxyacetic Acid Pesticides            None  None..............................            None  None         
Organo Phosphorous                       None  None..............................            None  None         
 insecticides 36.                                                                                               
Polychlorinated Biphenyls....               1  87.5%.............................            None  None         
Dioxins and Furans...........              37  85.6-97.6%........................            None  None         
                              ----------------                                    ----------------              
    Total Number of Data                  957  ..................................             236               
     Points.                                                                                                    
----------------------------------------------------------------------------------------------------------------

    As shown on Tables 2 and 3, EPA lacks performance data for the 
thermal or non-thermal treatment of four organic constituents 
classified in the BDAT list as organophosphorous insecticides. These 
four constituents are disulfoton, famphur, methyl parathion, and 
phorate. However, we can determine achievability for these four organic 
constituents based upon the transfer of treatment data for other, 
similarly difficult to treat organics. Because of structural and 
chemical similarities, these four organophosphorous compounds are 
expected to behave similarly during treatment to other polar 
nonhalogenated phenols, phenyl ethers, and cresols. Thus, EPA believes 
that these four organophosphorus compounds can be treated by the same 
technologies as other polar nonhalogenated organic compounds, for which 
EPA has data. Therefore, based on the available data for polar 
nonhalogenated compounds, EPA concludes that the treatment standards 
for soils contaminated with these four organophosphorous compounds can 
be achieved by biodegradation, chemical extraction, and thermal 
desorption (semivolatiles).
---------------------------------------------------------------------------

    \29\ For a discussion of these treatment data, see the Soil 
Treatment Achievability Report; Extrapolation of Treatment 
Performance Data in the Soil Data Base Among Hazardous Constituents 
in Contaminated Soils (April 1998, USEPA); and the Additional 
Information on Treatability of Contaminated Soils as Discussed in 
Section VII.B.8. of Phase IV Final Rule Preamble, (April 1998, 
USEPA). These documents indicate the numbers and types of data pairs 
that meet the 10 times UTS level, both prior to treatment and after 
the treatment described in the table.
    \30\ Cyclical hydrocarbons with more than five rings undergo 
lower reduction efficiencies.
    \31\ EPA is transferring the available performance data from the 
chemical extraction and the biological treatment of (semivolatile) 
polar nonhalogenated organics in the hazardous solid treatment data 
base. Thus, the columns are intentionally left blank.
    \32\ Only one test was performed.
    \33\ For a discussion of these treatment data, see the Soil 
Treatment Achievability Report; Extrapolation of Treatment 
Performance Data in the Soil Data Base Among Hazardous Constituents 
in Contaminated Soils (April 1998, USEPA) and the Additional 
Information on Treatability of Contaminated Soils as Discussed in 
Section VII.B.8. of Phase IV Final Rule Preamble, (April 1998, 
USEPA). These documents indicate the numbers and types of data pairs 
that meet the 10 times UTS level, both prior to treatment and after 
the treatment described in the table.
    \34\ The term thermal desorption, as used in this table, is a 
general description of various thermal techniques. No conclusion may 
be drawn about the regulatory status or classification of a 
particular thermal desorber from the inclusion of treatment data 
from that device in this column.
    \35\ The performance of combustion and soil vapor extraction is 
less effective in treating semivolatile organics that contain 
aromatic and heterocyclical structures. The same is true for and 
nonvolatile chlorinated organics.
    \36\ EPA is transferring the available performance data from the 
chemical extraction and the biological treatment of (semivolatile) 
polar nonhalogenated organics in the hazardous soil treatment data 
base.
---------------------------------------------------------------------------

(4) Other Indicia of Achievability for Organic Constituents
    EPA also re-analyzed certain portions of the SDB with regard to 
ability of various technologies to meet today's soil treatment 
standards by looking more closely at organic treatability groups based 
on the structural features of the hazardous constituents of concern. 
The results of this analysis, presented in Table 4 below, corroborate 
those in Tables 1-3 and EPA's conclusion that the soil treatment 
standards--ten times UTS or 90% reduction--are within the zone of 
reasonable values that could have been selected. For further 
information on the derivation of Table 4, see the background document 
entitled ``Derivation of Treatment Achievability Results for Organic 
Functional Groups and Types of Compounds.''

[[Page 28616]]



                         Table 4.--Treatment Efficiency--Percent Reduction Ranges by Technology for Various Functional Groupings                        
                               [Average percent reduction in brackets; number of data points analyzed in parentheses] \37\                              
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                          Biological       Chemical                         Thermal                           Other     
                  Treatability group                       treatment      extraction    Dechlorination    desorption     Soil washing     technologies  
-------------------------------------------------------------------------------------------------------------\38\-----------------------------\39\------
Halogenated Nonpolar Aromatics........................     52.05-99.97                                                                                  
                                                               [76.01]                                                                                  
                                                                   (2)           80.42                                                                  
                                                                               [80.42]                                                                  
                                                                                   (1)       99.05-100                                                  
                                                                                               [99.53]                                                  
                                                                                                   (2)       29.19-100                                  
                                                                                                               [95.31]                                  
                                                                                                                  (29)      66.21-95.6                  
                                                                                                                               [85.41]                  
                                                                                                                                   (4)     30.13--49.68 
                                                                                                                                                [42.41] 
                                                                                                                                                    (3) 
Dioxins, Furans, PCBs, and Precursors.................            none     14.88-99.97                                                                  
                                                                               [90.13]                                                                  
                                                                                  (40)     91.66-99.88                                                  
                                                                                               [97.94]                                                  
                                                                                                  (20)        98.9-100                                  
                                                                                                               [99.57]                                  
                                                                                                                  (17)            none             none 
Halogenated Phenols, Cresols, and Other Polar                                                                                                           
 Aromatics............................................      45.1-95.14                                                                                  
                                                               [81.05]                                                                                  
                                                                   (5)     63.83-93.18                                                                  
                                                                               [79.46]                                                                  
                                                                                   (3)            none      2.71-99.93                                  
                                                                                                               [56.21]                                  
                                                                                                                  (15)      6.25-99.06                  
                                                                                                                               [73.71]                  
                                                                                                                                   (6)            96.21 
                                                                                                                                                [96.21] 
                                                                                                                                                    (1) 
Halogenated Aliphatics................................     99.87-99.99                                                                                  
                                                               [99.91]                                                                                  
                                                                   (3)     86.62-94.81                                                                  
                                                                               [91.09]                                                                  
                                                                                   (3)       89.06-100                                                  
                                                                                               [97.54]                                                  
                                                                                                   (7)       36.88-100                                  
                                                                                                               [96.49]                                  
                                                                                                                  (80)      58.68-99.4                  
                                                                                                                               [90.58]                  
                                                                                                                                   (9)         72-99.68 
                                                                                                                                                [95.66] 
                                                                                                                                                    (6) 
Halogenated Cyclic Aliphatics, Ethers, Esters, and                                                                                                      
 Ketones..............................................      9.76-99.77                                                                                  
                                                               [60.99]                                                                                  
                                                                   (8)            none            none            none            none             none 
Nitrated Aromatics and Aliphatics.....................            none            none            none            none            none             none 
Simple Nonpolar Aromatics and Heterocyclics...........       99.97-100                                                                                  
                                                                 [100]                                                                                  
                                                                  (10)     77.41-99.92                                                                  
                                                                               [90.77]                                                                  
                                                                                   (6)       96.39-100                                                  
                                                                                               [98.61]                                                  
                                                                                                  (10)       22.68-100                                  
                                                                                                                [94.3]                                  
                                                                                                                 (158)     47.74-99.91                  
                                                                                                                               [82.39]                  
                                                                                                                                  (14)             97.7 
                                                                                                                                                 [97.7] 
                                                                                                                                                    (1) 
Polynuclear Aromatic Hydrocarbons.....................      5.13-99.85                                                                                  
                                                               [67.15]                                                                                  
                                                                  (75)     51.55-99.98                                                                  
                                                                               [95.72]                                                                  
                                                                                 (125)     10.92-97.42                                                  
                                                                                               [67.47]                                                  
                                                                                                   (3)       10.14-100                                  
                                                                                                               [94.19]                                  
                                                                                                                 (301)     81.83-92.19                  
                                                                                                                               [85.74]                  
                                                                                                                                   (3)       95.9-99.55 
                                                                                                                                                [97.73] 
                                                                                                                                                    (2) 
Other Nonhalogenated Polar Organics...................            none     75.96-99.82                                                                  
                                                                               [98.35]                                                                  
                                                                                  (28)     90.81-99.89                                                  
                                                                                               [95.13]                                                  
                                                                                                  (10)       2.6-99.98                                  
                                                                                                               [82.04]                                  
                                                                                                                  (36)     51.07-99.97                  
                                                                                                                               [88.67]                  
                                                                                                                                  (10)      94.59-99.89 
                                                                                                                                                [97.24] 
                                                                                                                                                    (2) 
--------------------------------------------------------------------------------------------------------------------------------------------------------

(5) Performance Data for Metal Contaminants
    Performance data for metals contaminants are based on the 
performance of stabilization and chemical extraction (mercury) of soils 
contaminated with metals. Other metal treatment technologies are not 
prohibited (except if impermissible dilution were to occur). The 
results of EPA's analysis of the data on treatment of metals in soils 
are summarized in Table 5 below.

                                                          Table 5.--Summary of Performance Data for Hazardous Metals Constituents \40\                                                          
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Stabilization scale: bench, pilot, and full scale           Chemical extraction  scale: pilot                  Soil washing  scale: bench & pilot        
         BDAT metals cluster         -----------------------------------------------------------------------------------------------------------------------------------------------------------
                                       Data  Points       Average removal efficiency       Data  points       Average removal efficiency       Data  points       Average removal efficiency    
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Metals..............................             269  91.1-99.8%........................               4  97.7% \41\........................              14  17.9-97.2%                        
                                     ----------------                                    ----------------                                    ----------------                                   
    Total...........................             269  ..................................               4  ..................................              14                                    
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    The results in Table 5 corroborate EPA's conclusion that the soil 
treatment standards--ten times UTS or 90% reduction--are within the 
zone of reasonable values that could have been selected. For further 
information on the derivation of Table 5, see Soil Treatability 
Analysis Report.
---------------------------------------------------------------------------

    \37\ Table based on data from ``Delivery of Graphs and Data 
Tables Showing Corrected Treated Concentrations vs. Data Point 
Number Index for Selected Constituents,'' February 19, 1992 
(Administrative Record of the proposed LDR Phase 2 rules as F-93-
CS2P-S0597). See also (1) Derivation of Treatment Achievability 
Results for Organic Functional Groups and Types of Compounds, April 
1998 (USEPA); (2) Additional Information on Treatability of 
Contaminated Soils as Discussed in Section VII.B.8. of Phase IV 
Final Rule Preamble, (April 1998, USEPA); (3) Extrapolation of 
Treatment Performance Data in the Soil Data Base Among Hazardous 
Constituents in Contaminated Soils (April 1998, USEPA); and (3) Soil 
Treatability Analysis Report (April 1998, USEPA). These documents 
indicate the numbers and types of data pairs that meet the 10 times 
UTS level, both prior to treatment and after the treatment described 
in the table.
    \38\ The term thermal desorption, as used in this table, is a 
general description of various thermal techniques. No conclusion may 
be drawn about the regulatory status or classification of a 
particular thermal desorber from the inclusion of treatment data 
from that device in this column.
    \39\ These include air stripping, photolysis, and treatment 
trains.
    \40\ For a discussion of these treatment data, see the Soil 
Treatment Achievability Report; Extrapolation of Treatment 
Performance Data in the Soil Data Base Among Hazardous Constituents 
in Contaminated Soils (April 1998, USEPA); and the Additional 
Information on Treatability of Contaminated Soils as Discussed in 
Section VII.B.8 of Phase IV Final Rule Preamble, (April 1998, 
USEPA). These documents indicate the numbers and types of data pairs 
that meet the 10 times UTS level, both prior to treatment and after 
the treatment described in the table.
    \41\ Available data are exclusively for the treatment of mercury 
on soils.
---------------------------------------------------------------------------

    With respect to multiple metal constituents or organometallic 
constituents in a contaminated soil, we

[[Page 28617]]

recognize that a situation may call for two or more treatment 
technology trains to achieve the treatment standards promulgated today 
(e.g., one treatment for organics and another for metals). This must 
include proper consideration of the order in which various treatment 
processes should be applied to the contaminated soil so that treatment 
effectiveness is optimized. However, if these considerations have been 
properly made and the required treatment standards are not being met 
because, for example, of unique soil matrices or difficult to treat 
sites, then we expect that entities may elect to seek a treatment 
variance pursuant to 40 CFR 268.44(h) or a risk-based soil treatment 
variance, which is being adopted in today's rule.
    c. Data Submitted by Commenters
    At least four commenters submitted treatment data from studies 
describing the performance of innovative and conventional treatment 
technologies on hazardous soils. DuPont submitted bench, pilot, and 
full scale treatment data from various vendors describing the operation 
of soil washing. DuPont asserts these data supports the viability of 
soil washing as an innovative technology for hazardous soils.
    The Environmental Technology Council (formerly the Hazardous Waste 
Treatment Council) submitted full, pilot, and bench scale treatment 
data from various vendors of innovative treatment technologies and 
provided an extensive review of EPA's soil treatment data base. See 
document entitled, Evaluation of Proposed BDAT Soil and Process 
Treatment Technologies--Report to the Hazardous Waste Treatment 
Council, November 1993 (filed as document number CS2P00060.E in Docket 
No. F-92-CS2P-FFFFF). Based on the ETC's technical report and the 
subsequent comments of the ETC to the HWIR-Media rule (see comments 
from the Environmental Technology Council, filed as comment number MHWP 
00088 in Docket No. F-92-CS2P-FFFFF), the ETC believes that today's 
treatment standards for hazardous soils are achievable using thermal 
treatment. Although the ETC report stated that EPA may lack full-scale 
treatment data for several innovative or alternative technologies, the 
ETC data support EPA's view that the many full scale operations of non-
combustion technologies demonstrated in the field were sufficient to 
support a view that the soil treatment standards were achievable. 
Further, the ETC pointed to various examples of how various non-
combustion treatment technologies can be better optimized. EPA concurs 
with many of those observations on how non-combustion technologies can 
be optimized.
    Two other commenters submitted data in the Phase 2 rule regarding 
the performance of non-combustion technologies--USPCI and Sierra 
Environmental Services. USPCI's performance data describe the treatment 
of polynuclear organics in soils via chemical oxidation followed by 
stabilization. These data were determined to be insufficient to support 
a broad national determination that stabilization of organics can be 
considered BDAT for organics. However, use of organic stabilization 
may, in some situations, be a permissible treatment option since the 
LDRs do not specifically prohibit the use of stabilization or 
solidification to treat nonwastewaters containing hazardous organic 
constituents. See Response to Comment Document, Comment from Chemical 
Waste Management, Inc. (No. PH4P-00048). There are, however, specific 
circumstances in which stabilization or solidification would be 
considered impermissible dilution. We expect that, for these types of 
situations to be properly evaluated, it will be necessary to petition 
for a treatment variance under 40 CFR 268.44(h) or under the provisions 
for a risk-based soil treatment variance being adopted in today's rule. 
The Agency also is currently considering whether, in the near future, 
to issue guidance on when stabilization or solidification of organic-
bearing waste is appropriate and when it may constitute impermissible 
dilution.
    Sierra Environmental Services submitted performance data regarding 
the treatment of carcinogenic polyaromatic hydrocarbons (cPAH) via 
bioremediation. These data are based on in-situ treatment of a 7.5 acre 
lagoon which was divided into two cells. Although the facility 
remediated 35 volatile, 65 semivolatile organics, PCBs, and pesticides, 
the facility only submitted data describing the treatment of major 
PAHs. Based on the performance of the biotreatment process applied to 
this site, the commenter argued the proposed treatment standards, if 
promulgated as proposed, would eliminate biotreatment as an alternative 
at this facility. EPA disagrees. Remediation processes that are applied 
in-situ do not trigger land disposal restrictions. If the facility were 
biotreating the lagoon sludges ex-situ, EPA concurs that the facility 
may be unable to land dispose the treated lagoon sludges. We also note 
that, under the existing regulations and regulations being adopted 
today, the commenter may be able to avail itself of a treatment 
variance, depending on the site-specific circumstances involved.
9. Applicability of Soil Treatment Standards and Readability of Final 
Regulations
    Many commenters asserted that the proposed regulations governing 
applicability of LDRs to contaminated soil were difficult to understand 
and apply. EPA was persuaded by these comments and has reformatted the 
applicability regulations into an easier-to-read table. The Agency 
recognizes that determining whether or not LDRs apply to any given 
volume of contaminated soil can be complicated. To further assist 
program implementors and facility owners/operators, we will review and 
discuss the principles that govern LDR applicability for contaminated 
soil in this section of today's preamble.
    The following principles informed EPA's decisions concerning 
application of LDRs to contaminated soils.
    First principle: land disposal restrictions only attach to 
prohibited hazardous waste (or hazardous contaminated soil) when it is 
(1) generated and (2) placed in a land disposal unit.42 
Therefore, if contaminated soil is not removed from the land (i.e., 
generated), LDRs cannot apply. Similarly, if contaminated soil is 
removed from the land (i.e., generated) yet never placed in a land 
disposal unit, LDRs cannot apply.43 In other words, LDRs do 
not apply to contaminated soil in situ or force excavation of 
contaminated soil. If soils are excavated, however, LDRs may apply, as 
discussed below.
---------------------------------------------------------------------------

    \42\ As discussed earlier in today's final rule, all hazardous 
wastes that were listed or identified at the time of the 1984 
Hazardous and Solid Waste Amendments to RCRA have been prohibited 
from land disposal. EPA is required to prohibit hazardous wastes 
listed or identified after 1984 within six months of the wastes' 
listing or identification. RCRA Section 3004(g)(4). A table in 40 
CFR Part 268 Appendix VII. outlines the dates of LDR applicablity 
for hazardous wastes.
    \43\ Note that, as discussed later in today's preamble, nothing 
in today's final rule affects implementation of the existing ``area 
of contamination'' policy. Therefore, soil managed within areas of 
contamination, even if it is ``removed from the land'' within such 
an area, would not be considered to be ``generated.'' See the 
discussion of the area of contamination policy later in today's 
preamble.
---------------------------------------------------------------------------

    Second principle: once a decision has been made to generate and re-
land-dispose contaminated soils, LDRs generally only apply to 
contaminated soils that contain hazardous waste. The Agency considers 
soil to contain hazardous waste: (1) when it exhibits a

[[Page 28618]]

characteristic of hazardous waste; and, (2) when it is contaminated by 
certain concentrations of constituents from listed hazardous waste. The 
contained-in policy is discussed in Section VII.E of today's preamble.
    Third principle: once LDRs attach (generally, at the point of 
generation, see principle (1)) to any given hazardous waste or volume 
of hazardous contaminated soil, the LDR treatment standards continue to 
apply until they are met. This principle comes from application of the 
logic of the Chemical Waste opinion. In that opinion, the D.C. Circuit 
held that land disposal prohibitions attach at the point that a 
hazardous waste is generated and continue to apply until threats posed 
by land disposal of the waste are minimized. Chemical Waste Management 
v. EPA, 976 F.2d at 13, 14 and 24. In illustration of this principle, 
the court held that (in the case of characteristic hazardous waste) 
elimination of the property that caused EPA to identify a waste as 
hazardous in the first instance does not automatically eliminate the 
duty to achieve compliance with LDRs. As discussed later in this 
section of today's preamble, EPA has determined that, although the 
Chemical Waste opinion did not address contaminated soils per se, it is 
prudent to apply the logic of the Chemical Waste opinion to 
contaminated soils.
    Using these principles, EPA created the regulations and table that 
govern application of LDRs to contaminated soils, as discussed below.
    The regulations that address application of LDRs to soil that 
exhibits a characteristic of hazardous waste are relatively 
straightforward. Soil that exhibits a characteristic of hazardous waste 
when it is generated is subject to LDRs and must be treated to meet LDR 
treatment standards prior to land disposal. EPA's conclusion that soil 
that exhibits a characteristic of hazardous waste must be treated to 
meet LDRs prior to land disposal derives from a simple application of 
the principles above. First, LDRs have the opportunity to attach to 
contaminated soil at the point of generation (principle (1)) and, 
second, under the contained-in policy, soil that exhibits a 
characteristic of hazardous waste must be managed as hazardous waste 
(principle (2)) and, therefore, must comply with LDRs. Note that, once 
LDRs have attached to soil that exhibits a characteristic of hazardous 
waste, LDR treatment standards must be met prior to land disposal of 
the soil, even if the characteristic is subsequently eliminated 
(principle (3)).
    The remainder of today's regulations on application of LDRs to 
contaminated soil, which are in table form, apply to soil contaminated 
with listed hazardous wastes. The table lists four scenarios.
    In the first scenario, soil is contaminated with untreated listed 
hazardous waste that was prohibited from land disposal when first land 
disposed (e.g., prohibited hazardous waste that was illegally placed or 
prohibited hazardous waste that was spilled). In this case, LDRs have 
already attached to the hazardous waste. Therefore, since LDRs have 
attached to the waste and threats have not yet been minimized (i.e., 
treatment standards have not been met), under principle (3) LDRs 
continue to apply to the waste and, automatically, to any contaminated 
soil.44 The Agency has concluded that LDRs apply to soils 
contaminated in this way regardless of whether the soil is determined 
not to (or no longer to) ``contain'' hazardous waste either when first 
generated or at any time in the future. This conclusion comes from 
application of principle (3): once something is prohibited from land 
disposal, LDRs continue to apply until threats to human health and the 
environment posed by land disposal are minimized regardless of whether 
the material is at some point determined no longer to be ``hazardous.''
---------------------------------------------------------------------------

    \44\ EPA is assuming that the waste did not meet a treatment 
standard when it was placed on the soil. Wastes which meet a 
treatment standard are no longer prohibited from land disposal and, 
unless it is determined to ``contain'' hazardous waste at its point 
of generation and are subsequently land disposed, soils contaminated 
by these wastes are, likewise, not prohibited from land disposal. 
See, RCA section 3004(m)(2) (hazardous wastes meeting treatment 
standards are no longer prohibited from land disposal).
---------------------------------------------------------------------------

    In the next two scenarios, soil is contaminated with hazardous 
wastes that were not prohibited from land disposal when first land 
disposed, but, sometime after land disposal, LDRs have gone into 
effect. In these cases, whether or not LDRs apply to contaminated soil 
is governed by a determination of whether or not any given volume of 
contaminated soil ``contains'' hazardous waste at its point of 
generation. If any given volume of soil is determined to contain 
hazardous waste at its point of generation, LDRs attach (principles (1) 
and (2)) and, therefore, the LDR treatment standards must be met prior 
to placement of such soil in a land disposal unit (principle (3)). If 
any given volume of soil is determined not to contain hazardous waste 
at its point of generation, there is no hazardous waste to which a land 
disposal prohibition could attach and the soil, thus, would not be 
prohibited from land disposal (principles (1) and (2)). (It would be 
the same if a hazardous waste land disposed before the effective date 
of an applicable land disposal prohibition were delisted when first re-
generated. In that case too, there would be no hazardous waste to which 
a land disposal prohibition could attach and the delisted waste, thus, 
would not be prohibited from land disposal.) Note that, under principle 
(3), once LDRs attach to contaminated soil, the treatment standards 
must be met prior to land disposal even if the soil is, subsequently, 
determined no longer to contain hazardous waste.
    The final scenario requires no elaboration; it simply makes clear 
that if soil is contaminated by hazardous waste that was never 
prohibited from land disposal, LDRs do not apply. This is through 
application, primarily, of principle (2)--LDRs attach only to hazardous 
wastes or soil that contains hazardous waste.
    Note that, because LDRs apply to the waste ``contained-in'' soil, 
and not the soil itself (see principle (2)), LDRs do not apply to soil 
that is at any time completely separated from its contaminating waste ( 
i.e., the soil contains no solid or hazardous waste, it's ``just 
soil''). One might determine that soil contained no solid or hazardous 
waste, for example, if concentrations of hazardous constituents fall 
below natural background levels or are at non-detectable levels. Such a 
determination would terminate all RCRA Subtitle C requirements, 
including LDRs, since waste would not longer be ``contained-in'' the 
soil. See September 15, 1996 letter from Michael Shapiro (EPA) to Peter 
Wright (Monsanto Company), making this finding; see also, 61 FR 18806 
(April 29, 1996) and other sources cited therein.
    The following examples illustrate application of LDRs to 
contaminated soil:
    1. Generator A is excavating soil mildly contaminated with 
wastewater treatment sludge (listed waste F006). The sludge was land 
disposed before 1980. The soil does not exhibit a characteristic of 
hazardous waste and has been determined by an authorized state not to 
contain listed hazardous waste. The soil is not prohibited from land 
disposal. This is because, for LDR purposes, the point of generation is 
when the soil is first excavated from the land (principle (1)). Since 
no prohibited hazardous waste existed before that time (i.e., the 
contaminating waste was not prohibited) and the soil does not contain 
listed hazardous waste or exhibit a characteristic of hazardous waste 
at its point of generation, there is

[[Page 28619]]

no hazardous waste to which a land disposal prohibition could attach 
(principle (2)).
    2. Generator B is excavating soil contaminated by leaks from a 
closing hazardous waste surface impoundment. The surface impoundment 
received listed hazardous wastes K062 (spent pickle liquor) and 
characteristic hazardous waste D018 (wastes that fail the TCLP test for 
benzene). The surface impoundment stopped receiving K062 waste in 1987 
and D018 waste in 1993. The soil does not exhibit a characteristic of 
hazardous waste and has been determined by an authorized state not to 
contain listed hazardous waste. The soil is not prohibited from land 
disposal. This is because, for LDR purposes, the point of generation is 
when the soil is first excavated from the land (principle (1)). Since 
no prohibited hazardous waste existed before that time (i.e., the 
contaminating wastes were not prohibited) and the soil does not contain 
listed hazardous waste or exhibit a characteristic of hazardous waste 
at its point of generation, there is no hazardous waste to which a land 
disposal prohibition could attach (principle (2)).
    3. Generator C is excavating soil contaminated with listed 
hazardous waste F024. The F024 waste was land disposed after 1991, 
after it was prohibited from land disposal, and was not first treated 
to meet applicable land disposal treatment standards (i.e., it was 
illegally land disposed or accidentally spilled). Since the 
contaminating waste was prohibited from land disposal and treatment 
standards were not achieved prior to land disposal, the LDR prohibition 
continues to apply to any soil contaminated by the waste (principle 
(3)) regardless of whether the soil ``contains'' hazardous waste when 
generated. The soil is prohibited from land disposal and, before land 
disposal, must be treated to meet applicable technology-based treatment 
standards or until a site-specific, risk-based minimize threat 
determination is made through the variance process.
    4. Generator D is excavating soil contaminated by an accidental 
spill of benzyl chloride, which, when discarded, is listed hazardous 
waste P028 and is prohibited from land disposal. The accidental spill 
occurred yesterday. The contaminating waste was prohibited from land 
disposal and, since the treatment standards were not achieved prior to 
the accidental spill, the prohibition continues to apply to any soil 
contaminated by the waste (principle (3)). Thus, the soil is prohibited 
from land disposal and, before land disposal, must be treated to meet 
applicable technology-based treatment standards or until a site-
specific, risk-based minimize threat determination is made through the 
variance process.
    5. Generator E is excavating soil contaminated by listed hazardous 
waste F004 (generally, spent non-halogenated solvents). The F004 waste 
was land disposed in 1984, prior to the effective date of an applicable 
land disposal prohibition; however, on generation the soil contains 
high concentrations of cresols constituents, so that an authorized 
state determines it ``contains'' hazardous waste. The soil is 
prohibited from land disposal. Although the contaminating waste was not 
prohibited from land disposal, since the soil contained hazardous waste 
at the point of generation (and the waste had since become prohibited 
from land disposal), the land disposal prohibition attaches to the 
contaminated soil and, before land disposal, the soil must be treated 
to meet applicable technology-based treatment standards or until a 
site-specific, risk-based minimize threat determination is made through 
the variance process (principles (1), (2), and (3)).
    EPA acknowledges that the reading of LDR applicability to 
contaminated soil discussed above creates potential administrative 
difficulties, since, in many cases, a factual determination will be 
required as to when hazardous wastes were land disposed in order to 
determine whether they were prohibited at that time and whether, 
therefore, the prohibition continues to apply to contaminated soil. The 
Agency expects that these difficulties will be minimal because, in most 
cases, contamination will be caused by hazardous wastes placed before 
the effective date of applicable land disposal prohibitions since land 
disposal after prohibition would be illegal. The exception is 
accidental spills of hazardous waste, which the Agency believes are (1) 
rare, and (2) known, so determining dates of land disposal should not 
be problematic. This issue was discussed in detail in the HWIR-Media 
proposal. 61 FR 18805 (April 26, 1996).
    As discussed in the April 29, 1996 proposal, the Agency continues 
to believe that, if information is not available or inconclusive, it is 
generally reasonable to assume that contaminated soils do not contain 
untreated hazardous wastes placed after the effective dates of 
applicable land disposal prohibitions. This is because placement of 
untreated hazardous waste after applicable LDR effective dates would be 
a violation of RCRA, subject to significant fines and penalties 
including criminal sanctions. 61 FR at 18805 (April 29, 1996). Of 
course, program implementors and facility owners/operators cannot make 
the determination that information on the types of waste contamination 
or dates of waste placement is unavailable or inconclusive without 
first making a good faith effort to uncover such information. By using 
available site- and waste-specific information such as manifests, LDR 
records required under 40 CFR 268.7, vouchers, bills of lading, sales 
and inventory records, storage records, sampling and analysis reports, 
accident reports, site investigation reports, spill reports, inspection 
reports and logs, EPA believes that program implementors and facility 
owners/operators will typically be able to make informed decisions 
about the types of waste contamination and dates of waste placement. 
Most commenters supported this approach.
    EPA notes that it is not critical for a decision about whether 
contaminated soil contains listed hazardous waste or exhibits a 
characteristic of hazardous waste to be made without removing any of 
the soil (other than the sample volume) from the land. In an area of 
generally dispersed soil contamination, soil may be consolidated or 
managed within the area of contamination to facilitate sampling, for 
example, to ensure that soil samples are representative or to separate 
soil from non-soil materials. However, care should be taken not to 
remove hazardous contaminated soils from separate areas of 
contamination at a facility and place such hazardous contaminated soil 
into a land disposal unit unless, of course, the soil meets applicable 
LDR treatment standards. The area of contamination policy is discussed 
later in this section of today's preamble.
    A few commenters expressed concern or confusion over the 
application of LDRs to soil contaminated by accidental spills of 
hazardous wastes. The Agency clarifies that accidental spills of 
hazardous wastes (or products or raw materials) are not considered 
placement of hazardous waste into a land disposal unit since, in the 
case of a spill, prohibited waste is not being placed in one of the 
identified units named in RCRA Section 3004(m).45 See, 45 FR 
76626 (Nov. 19, 1980), issuing clarifying regulations at 40 CFR 
264.10(g) to provide that hazardous waste treatment

[[Page 28620]]

and storage activities undertaken in immediate response to an 
accidental spill are exempt from the 40 CFR Part 264 and 265 
regulations governing treatment and storage and do not require permits 
and Sept. 29, 1986 memo from J. Winston Porter (EPA Assistant 
Administrator) to Fred Hansen interpreting the 40 CFR 264.10(g) 
regulations; also see, 55 FR at 30808-30809 (July 27, 1990) (``a one-
time spill of hazardous waste would not be considered a solid waste 
management unit.'') However, contaminated soils generated through 
remediation of spills of untreated listed prohibited hazardous wastes 
are, as discussed above, subject to land disposal prohibitions since 
the LDR prohibition that had attached to the contaminating hazardous 
waste continues to apply until threats are minimized, and, therefore, 
any contaminated soil remains subject to LDRs (see principle (3)).
---------------------------------------------------------------------------

    \45\ Although, if such a spill were not cleaned up in a timely 
way, EPA or an authorized state could determine that the 
contaminated area should be considered a land disposal unit for 
purposes of requiring cleanup under RCRA Subtitle C. 55 FR at 20809 
(July 27, 1990).
---------------------------------------------------------------------------

    A number of commenters expressed concern that EPA's interpretation 
of LDR applicability to contaminated soil might preclude application of 
the existing area of contamination policy. In the area of contamination 
policy, EPA interprets RCRA to allow certain discrete areas of 
generally dispersed contamination to be considered a RCRA unit (usually 
a landfill). 55 FR 8758-8760 (March 8, 1999). This interpretation 
allows hazardous wastes (and hazardous contaminated soils) to be 
consolidated, treated in situ or left in place within an area of 
contamination without triggering the RCRA land disposal restrictions or 
minimum technology requirements--since such activities would not 
involve ``placement into a land disposal unit,'' which is the statutory 
trigger for LDR. EPA clarifies that its interpretation of LDR 
applicability for contaminated soil does not, in any way, affect 
implementation of the area of contamination policy.
    Finally, many commenters expressed concern over EPA's application 
of the LDR treatment standards to soil that is determined no longer to 
contain hazardous waste or exhibit a characteristic of hazardous waste. 
As discussed in detail in the 1996 proposal, at this time EPA has 
concluded that although the Chemical Waste opinion did not speak to 
contaminated soil specifically, it is prudent to apply the Chemical 
Waste logic--that a duty to comply with LDRs attaches to hazardous 
waste when it is first generated and elimination of the indicia of 
``hazardousness'' does not, necessarily, fulfil the statutory land 
disposal restriction treatment standard--to contaminated soil. See 
Chemical Waste Management v. EPA, 976 F.2d at 13-16. Although, as 
discussed later in today's preamble, EPA believes that contained-in 
determinations will rarely, if ever, be made at constituent 
concentrations which do not minimize threats, without codifying the 
contained-in policy, the Agency cannot make the generic finding that 
this will be the case at every site. For this reason, EPA is requiring 
that the standards and procedures promulgated today for site-specific, 
risk-based minimize threat variances alone be used to make minimize 
threat determinations. This issue is discussed in section VII.E of 
today's preamble.

C. Conforming and Supporting Changes

    To support the land disposal restriction treatment standards for 
contaminated soil, the Agency is today promulgating a number of 
conforming and supporting regulations, as follows.
1. Recordkeeping Requirements
    A number of commenters expressed confusion over the recordkeeping 
and reporting requirements that would apply to contaminated soil. The 
Agency is today clarifying that contaminated soil subject to the land 
disposal restrictions must comply with the same recordkeeping and 
reporting requirements as other wastes subject to the land disposal 
restrictions. That is, the recordkeeping and reporting requirements of 
40 CFR 268.7 will apply.
    EPA has clarified this in the final regulations by adding 
appropriate recordkeeping requirements for contaminated soils to the 
tables in 40 CFR 268.7(a) and 40 CFR 268.7(b). These rules specify 
that, for contaminated soil, generators and/or treaters must include 
the following information with their land disposal restriction 
paperwork: the constituents subject to treatment as described in 40 CFR 
268.49(d) and this statement, ``this contaminated soil [does/does not] 
contain listed hazardous waste and [does/does not] exhibit a 
characteristic of hazardous waste and [is subject to/complies with] the 
soil treatment standards as provided by 268.49(c) or the universal 
treatment standards.'' Note that because in some cases contaminated 
soil will continue to be subject to LDRs even after it has been 
determined not to or no longer to contain listed hazardous waste (or 
de-characterized), the statement includes a notification of whether the 
soil is still considered hazardous. This is consistent with the 
approach the Agency used when establishing land disposal restriction 
treatment standards for hazardous contaminated debris.
2. Definition of Soil
    The Agency is promulgating the definition of soil from the April 
29, 1996 proposal with one change made in response to comments. Soil is 
defined as, ``unconsolidated earth material composing the superficial 
geologic strata (material overlying bedrock), consisting of clay, silt, 
sand, or gravel size particles as classified by the U.S. Soil 
Conservation Service, or a mixture of such materials with liquids, 
sludges or solids which is inseparable by simple mechanical removal 
processes and is made up primarily of soil by volume, based on visual 
inspection.'' The Agency has added the phrase ``by volume, based on 
visual inspection'' in response to comments recommending that EPA 
explicitly conform the definition of soil with the definition of 
debris. See 57 FR 37222 (August 18, 1992). This clarification is 
consistent with the Agency's intent, as discussed in the 1996 proposal, 
that determinations of whether any material was ``soil,'' ``debris,'' 
or ``waste'' to be made in the field. 61 FR 18794 (April 26, 1996).
    The definition of soil includes the concept that mixtures of soil 
and other materials are to be considered soil provided the mixture is 
made up predominantly of soil and that the other materials are 
inseparable using simple physical or mechanical means. This approach 
allows program implementors and facility owners/operators to determine 
whether any given material is soil, waste, or debris based on the 
results of simple mechanical removal processes commonly used to 
separate materials, such as pumping, dredging, or excavation by 
backhoe, forklift or other device. It avoids requiring chemical 
analysis for soil properties in order to differentiate precisely 
between wastes, soil and debris. As discussed in the April 29, 1996 and 
September 14, 1993 proposals, the Agency believes that attempting to 
distinguish more precisely between waste, soil or debris using chemical 
analysis or other tests would be prohibitively difficult to develop and 
support and cumbersome to administer. Cf. 57 FR at 37224, August 18, 
1992, where the Agency adopted a similar classification system for 
hazardous debris. Most commenters supported this approach. Note that 
any non-soil that is separated from contaminated soil that contains 
listed hazardous waste or is found to exhibit a characteristic of 
hazardous waste should be considered hazardous waste and is subject to 
the applicable universal treatment standard.

[[Page 28621]]

    EPA also emphasizes that any dilution of a prohibited contaminated 
soil (or of a prohibited hazardous waste with soil) as a substitute for 
adequate treatment to achieve compliance with LDR treatment standards 
or to circumvent the effective date of an LDR prohibition is considered 
a type of impermissible dilution and is illegal. Therefore, any 
deliberate mixing of prohibited hazardous waste with soil in order to 
change its treatment classification (i.e., from waste to contaminated 
soil) is illegal. Existing regulations concerning impermissible 
dilution already make this point. See 40 CFR 268.3(a) and (b); see also 
57 FR at 37243 (Aug. 18, 1992) (adopting the same principle for 
contaminated debris). The Agency expects that deliberate mixing of 
hazardous waste with soil (and vice versa) will be rare because such 
actions are clearly illegal and would subject generators to substantial 
fines and penalties, including criminal sanctions. In addition, the 
resulting mixture (hazardous waste impermissible diluted by soil) would 
continue to be subject to the LDRs for the original hazardous waste 
(i.e., generally, the universal treatment standards), so no benefit in 
terms of reduced treatment requirements would occur. The Agency took a 
similar approach when promulgating treatment standards specific to 
hazardous debris. See 57 FR at 37224 (August 18, 1992).
    The Agency notes that the normal mixing of contaminated soil from 
various portions of a site that typically occurs during the course of 
remedial activities or in the course of normal earthmoving and grading 
activities is not considered intentional mixing of soil with non-media 
or prohibited soil with non-prohibited soil and, therefore, is not a 
type of impermissible dilution.

D. Seeking Treatment Variances Because the National Treatment Standard 
is Unachievable or Inappropriate

    Under existing regulations at 40 CFR 268.44, people may obtain a 
variance from a land disposal restriction treatment standard when a 
waste cannot be treated to the specified level or when a treatment 
standard may be inappropriate for the waste. With respect to 
contaminated soils, EPA has to this point presumed that a treatment 
variance would generally be needed because the LDR treatment standards 
developed for process wastes were either unachievable (generally 
applied to soil contaminated by metals) or inappropriate (generally 
applied to soil contaminated by organic constituents). See, for 
example, 55 FR 8760 (March 8, 1990); 58 FR 48092, 48125 (September 14, 
1993); 61 FR 18805-18808, 18810-18812 (April 29, 1996); and, 61 FR 
55717 (October 28, 1996). This presumption will no longer apply once 
today's soil treatment standards take effect. This is because today's 
standards were developed specifically for contaminated soils and are 
intended to specifically address the past difficulties associated with 
applying the treatment standards developed for process waste to 
contaminated soil.
    This is not to say that treatment variances based on the 
``unachievable'' or ``inappropriate'' prongs of the test are now 
unavailable for contaminated soils. For example, in some cases it may 
prove that even though an appropriate technology, suited to the soil 
matrix and constituents of concern was used, a particular soil cannot 
be treated to meet the soil treatment standards using a well-designed 
well-operated application of one of the technologies EPA considered in 
establishing the soil standards. In these types of cases, under 
existing regulations, the soil treatment standard would be considered 
``unachievable'' and a treatment variance could be approved. In other 
cases, under existing regulations, application of the soil treatment 
standards might be ``inappropriate'' in that, for example, it would 
present unacceptable risks to on-site workers.
    As noted earlier in today's preamble, alternative LDR treatment 
standards established through treatment variances must, according to 40 
CFR 268.44(m), ``minimize threats to human health and the environment 
posed by land disposal of the waste.'' In cases where an alternative 
treatment standard does not meet this requirement, a treatment variance 
will not be approved even though application of a technology more 
aggressive than the technologies on which the soil treatment standards 
are based might then be necessary. For example, in cases where the soil 
treatment standards cannot be achieved through application of a well-
designed, well-operated application of one of the model soil treatment 
technologies and application of the model technology or other non-
combustion technologies will not result in constituent concentrations 
that minimize threats, a variance would not be approved and combustion 
would be necessary. This is proper given that the soil treatment 
standards were not developed using the methodology typically used in 
the land disposal restriction program (i.e., application of the most 
aggressive treatment technology to the most difficult to treat waste), 
but, instead are designed to accommodate a variety of soil treatment 
technologies that are typically used during remediation. Variances for 
treatment of contaminated soil will be applied during the remedial 
context, where, as discussed in Section VII.B.3 of today's preamble, 
EPA and authorized states will typically have detailed information 
about the risks posed by specific hazardous constituents, direct and 
indirect exposure routes, risk pathways and human and environmental 
receptors. This information can be used to inform decisions about 
whether threats are minimized.

E. The Contained-In Policy

    The contained-in principle is the basis for EPA's longstanding 
interpretation regarding application of RCRA Subtitle C requirements to 
mixtures of contaminated media and hazardous wastes. Under the 
``contained-in'' policy, EPA requires that soil (and other 
environmental media), although not wastes themselves, be managed as if 
they were hazardous waste if they contain hazardous waste or exhibit a 
characteristic of hazardous waste. See, for example, 53 FR 31138, 31148 
(August 17, 1988) and 57 FR 21450, 21453 (May 20, 1992) (inadvertently 
citing 40 CFR 261(c)(2) instead of 40 CFR 261.3(d)(2)); see also 
Chemical Waste Management v. EPA, 869 F.2d 1526, 1539-40 (D.C. Cir. 
1989) (upholding the contained-in principle as a reasonable 
interpretation of EPA regulations). In practice, EPA has applied the 
contained-in principle to refer to a process where a site-specific 
determination is made that concentrations of hazardous constituents in 
any given volume of environmental media are low enough to determine 
that the media does not ``contain'' hazardous waste. Typically, these 
so called ``contained-in'' determinations do not mean that no hazardous 
constituents are present in environmental media but simply that the 
concentrations of hazardous constituents present do not warrant 
management of the media as hazardous waste.46 For 
contaminated soil, the result of ``contained-in determinations'' is 
that soil no longer ``contains'' a

[[Page 28622]]

hazardous waste; however, as discussed above, the result is not 
automatically that soil no longer must comply with LDRs.
---------------------------------------------------------------------------

    \46\ Of course, as noted earlier, EPA or an authorized state 
could determine, at any time, that any given volume of environmental 
media did not contain (or no longer contained) any solid or 
hazardous waste (i.e., it's just media). These types of 
determinations might be made, for example, if concentrations of 
hazardous constituents fall below background levels, or are at non-
detectable levels. Such a determination would terminate all RCRA 
Subtitle C requirements, including LDRs. See, September 15, 1995 
letter from Michael Shapiro (EPA) to Peter Wright (Monsanto 
Company), making this finding, and 61 FR 18806 (April 29, 1996).
---------------------------------------------------------------------------

    In order to preserve flexibility and because EPA believes 
legislative action is needed, the Agency has chosen, at this time, not 
to go forward with the portions of the September 14, 1993 or April 29, 
1996 proposals that would have codified the contained-in policy for 
contaminated soils. The Agency continues to believe that legislation is 
needed to address application of certain RCRA subtitle C requirements 
to hazardous remediation waste, including contaminated soil. If 
legislation is not forthcoming, the Agency may, in the future, re-
examine its position on the relationship of the contained-in policy to 
site-specific minimize threat determinations based on implementation 
experience and/or may choose to codify the contained-in policy for 
contaminated soil in a manner similar to that used to codify the 
contained-in policy for contaminated debris.
1. Current Guidance on Implementation of the Contained-in Policy
    EPA has not, to date, issued definitive guidance to establish the 
concentrations at which contained-in determinations may be made. As 
noted above, decisions that media do not or no longer contain hazardous 
waste are typically made on a case-by-case basis considering the risks 
posed by the contaminated media. The Agency has advised that contained-
in determinations be made using conservative, health-based levels 
derived assuming direct exposure pathways. 61 FR at 18795 (April 29, 
1996) and other sources cited therein. A compilation of many of the 
Agency's statements on the contained-in policy has been placed in the 
docket for today's rulemaking.
    The land disposal restriction treatment standards for contaminated 
soil promulgated today do not affect implementation of the contained-in 
policy. They are not considered, and should not be used, as de facto 
``contained-out'' concentrations although, in some cases, it may be 
appropriate to determine that soil treated to the soil treatment 
standards no longer contains hazardous waste. Remediation project 
managers should continue to make contained-in decisions based on site-
specific conditions and by considering the risks posed by any given 
contaminated media.
2. Relationship of the Contained-In Policy to Site-Specific, Risk-Based 
Minimize Threat Determinations
    As discussed above, the D.C. Circuit held in the Chemical Waste 
opinion that the RCRA Section 3004(m) obligation to minimize threats 
can continue even after a waste would no longer be identified as 
``hazardous.'' Chemical Waste Management v. EPA, 976 F.2d at 13-16. The 
Agency believes that it is prudent to apply the logic of the Chemical 
Waste opinion to contaminated soil. Therefore, when the contained-in 
policy is applied to soil that is already subject to a land disposal 
prohibition, the Agency is compelled to decide if a determination that 
soil does not or no longer ``contains'' hazardous waste is sufficient 
to determine that threats posed by subsequent land disposal of those 
soils have been minimized. As discussed earlier in today's preamble, 
EPA is not, at this time, able to make a generic finding that all 
contained-in determinations will automatically satisfy this standard. 
This is largely because, for reasons of needed administrative 
flexibility and because we believe legislation is needed, EPA has not 
codified standards for approving contained-in determinations and has 
not codified procedures for making such determinations. Absent such 
standards and procedures, the Agency cannot, at this time, make a 
generic finding that all contained-in determinations will result in 
constituent concentrations that also minimize threats within the 
meaning of RCRA Section 3004(m). These decisions, of course, could be 
made on a site-specific basis, by applying the standards and procedures 
for site-specific, risk-based minimize threat variances, promulgated 
today.
    The regulations governing site-specific, risk-based minimize threat 
determinations promulgated today are, essentially, the same as the 
Agency's guidance for making contained-in determinations. See, for 
example, 61 FR 18795 (April 29, 1996) and other sources cited therein. 
That is, decisions should be made by considering the inherent risks 
posed by any given soil, assuming direct exposure (i.e., no post-land 
disposal controls) and applying conservative information to calculate 
risk. Therefore, the Agency expects that, in most cases, a 
determination that soils do not (or no longer) contain hazardous waste 
will equate with minimize threat levels and, therefore, encourages 
program implementors to combine contained-in determinations, as 
appropriate, with site-specific, risk-based minimize threat variances.

F. Relationship of Soil Treatment Standards to the Final HWIR-Media 
Rule

    In the April 29, 1996 HWIR-Media proposal, EPA proposed to 
establish a comprehensive alternative management regime for hazardous 
contaminated media, of which the treatment standards for contaminated 
soil would have been a small part. The HWIR-Media proposal discussed a 
number of options for comprehensive management standards for hazardous 
contaminated media.
    Today's action resolves and finalizes the portion of the HWIR-Media 
proposal that addressed land disposal restriction treatment standards 
for contaminated soil. See 61 FR 18805-18814, April 29, 1996. Other 
portions of the proposal are not resolved by this action and will be 
addressed by EPA in future actions. EPA continues to emphasize that, 
while the soil-specific LDR treatment standards will improve 
contaminated soil management and expedite cleanups, the Agency also 
recognizes that additional reform is needed, especially for management 
of non-media remediation wastes like remedial sludges. The Agency will 
continue to participate in discussions on potential legislation to 
promote this additional needed reform.

VIII. Improvements and Corrections to LDR Regulations

    Summary: The regulated community has pointed out several examples 
of the LDR regulations that were unclear or had typographical errors. 
These sections are clarified and corrected below.

A. Typographical Error in Section 261.1(c)(10)

    A typographical error was found in the cross reference in the note 
in Sec. 261.1(c)(10). The first Phase IV final rule (``Minirule,'' 62 
FR 25998) said ``They are covered under the exclusion from the 
definition of solid waste for shredded circuit boards being recycled 
(261.4(a)(13)).'' The correct cross reference is to ``(261.4(a)(14).'' 
This typographical error is corrected in this final rule.

B. Typographical Error in Section 268.4(a)(2)(ii) and (a)(2)(iii)

    These paragraphs have referred to Sec. 268.8 for some time. Section 
268.8 was where the so called ``soft hammer'' provisions were once 
found in the regulations. These provisions expired in 1990, and the 
provisions have been removed from the regulations; thus there is no 
need to continue to include references to Sec. 268.8.

[[Page 28623]]

C. Clarifying Language Added to Section 268.7

    The first item in the paperwork tables requires that the EPA 
Hazardous Waste and Manifest numbers be placed on the notification 
forms. Today's changes clarify that the manifest number required to be 
placed on the notification form is that of the first shipment of waste 
to the treatment or disposal facility.
    The tables of paperwork requirements found at Sec. 268.7(a)(4) and 
(b)(3) have entries that describe what waste constituents have to be 
identified on the one-time LDR notification (see item 3 in the 
generator table at Sec. 268.7(a)(4), and item 2 in the treatment and 
storage facility table at Sec. 268.7(b)(3)). The language of these 
items has been changed to avoid confusion about whether wastes managed 
at facilities subject to the Clean Water Act (CWA), CWA-equivalent 
facilities, or wastes injected into deepwells subject to the Safe 
Drinking Water Act (SDWA) are subject to a paperwork requirement (and 
if so, what requirements). Wastes managed in these facilities are 
subject to a one-time notification requirement. This notification must 
be placed in the facility's on site files and must contain the 
information described in the paperwork tables. Therefore, the 
parenthetical language that appeared to exclude such facilities from 
the paperwork requirements has been removed from item 2 in the 
``Generator'' table, and item 3 in the ``Treatment Facility'' table.
    In addition, these items have been further clarified by adding the 
language ``in characteristic wastes'' after the clause ``and underlying 
hazardous constituents,'' to indicate exactly what type of wastes must 
be considered when determining whether underlying hazardous 
constituents are present. The title of the paperwork table at 
Sec. 268.7(b)(3) has been changed to clarify that the requirements 
apply to storage facilities as well as treatment facilities. A number 
of certifications were inadvertantly removed from Sec. 268.7(b) through 
Office of Federal Register drafting errors. Those certifications are 
reinstated because it was never the intention of the Agency that they 
were removed.

D. Correction to Section 268.40--Treatment Standards for Hazardous 
Waste

    In the Phase III Final Rule (61 FR 15566), the Agency promulgated a 
UTS of 12.0 mg/L for 1,4-dioxane wastewaters based on the performance 
of distillation. At that time, 1,4-dioxane was the only UTS constituent 
for which EPA had promulgated a nonwastewater standard but not a 
wastewater standard. However, as part of that rule, the Agency failed 
to extend the treatment standard to wastewater forms of U108 wastes. 
Today, the Agency is correcting this oversight in Section 268.40--
Treatment Standards for Hazardous Wastes, by replacing the ``NA'' 
designation under AU108 -1,4-Dioxane [email protected] with ``12.0 mg/L.'' 
As such the 1,4-Dioxane alternate treatment standard now applies to 
both wastewater and nonwastewaters forms of U108 waste.

E. Removal of California List Requirements and de minimis Provision 
From Section 268.42

    In the Phase IV rule promulgated on May 12, 1997, EPA removed the 
California List requirements because they have all been superseded by 
more specific treatment standards. The California List included liquid 
wastes containing certain metals, cyanide, polychlorinated biphenyls 
(PCBs) above specified levels, and liquid and nonliquid halogenated 
organic compounds (HOCs) above specified levels. These wastes were 
removed from the Table of Treatment Standards in Sec. 268.40; however, 
the requirements in Sec. 268.42(a)(1) and (a)(2) were overlooked. These 
paragraphs are removed by today's rule. And because these paragraphs 
are being removed, it is necessary to revise the language of 
Sec. 268.42(a) to remove references to these paragraphs.
    The de minimis provision of paragraph Sec. 268.42(a)(3) is also 
being removed by today's rule. The de minimis provision applied to 
wastewaters regulated under the Clean Water Act (CWA) mixed with high 
total organic carbon (TOC) ignitable wastes. In the Phase III final 
rule, however, wastes discharged under the CWA, or in a facility that 
is CWA-equivalent, are not subject to the LDRs (61 FR 15660, April 8, 
1996). Therefore the de minimis provision was redundant and has been 
removed by today's rule.

F. Typographical Errors and Outdated Cross-References in Section 268.45

    There is a typographical error in Sec. 268.45(a). The language has 
referred to Sec. 261.3(c)(2), a section removed from the regulations on 
September 30, 1992 (57 FR 49278). It should refer to Sec. 261.3(f)(2). 
The correction is being made in this final rule.
    In paragraphs (3) and (4) in Sec. 268.45(d) there are outdated 
cross references to treatment standards that were once found at 
Sec. 268.42 and Sec. 268.43 (the treatment standards once found in 
these sections have been consolidated into the ``Table of Treatment 
Standards'' at Sec. 268.40). These cross references have been removed 
from Sec. 268.45(d)(3) and (d)(4).
    G. Correction to Sec. 268.48 to Explain That Sulfides are not 
Regulated as Underlying Hazardous Constituents in Characteristic Wastes
    In response to a comment received on the original Phase IV 
proposal, EPA reviewed the basis for the universal treatment standard 
for sulfides in the Universal Treatment Standard Table at 40 CFR 
268.48. EPA is correcting the table in this rule. Sulfides are 
regulated only in Waste Code F039 (multi-source leachate), and not as 
underlying hazardous constituents in characteristic wastes.

H. Cross References in Section 268.50(e)

    Erroneous references appeared in this section to Secs. 268.41, 
268.42, 268.43, and 268.32. They are eliminated in this final rule.

I. Mistakes in Appendices VII and VIII

    Table 1 includes entries for F033. There is no hazardous waste with 
the EPA waste code F033. Therefore, these entries are being removed. 
The second entry for waste codes F032, the second entry for F034, and 
the first entry for K088 contained typographical errors that are being 
revised in today's final rule. In addition, two entries for waste code 
F035 are being added to the table. Table 2 is amended by revising entry 
number 9 to change the prohibition date for soil and debris 
contaminated with K088 wastes.
    The title of appendix VIII is revised to clarify that it provides 
the effective dates for wastes injected into deep wells.

J. Clarification Regarding Point of Generation of Boiler Cleanout 
Rinses

    In the May 12, 1997 final Phase IV rule, EPA included in the 
preamble an interpretive discussion regarding at what point the Agency 
considers a waste to be generated when power plant boilers are cleaned 
out using multiple rinses. 62 FR at 26006. The question is relevant to 
the issue of whether subtitle C rules apply to such waste, and also, if 
the waste is to be land disposed, whether LDR prohibitions apply. In 
essence, the interpretation is that the cleanout of the boiler is to be 
viewed as a single process, so that if the boiler cleanout liquids are 
commingled in a single tank system, the hazardousness of the resulting 
cleanout liquids is to be determined at the end of the cleaning 
process. Id.

[[Page 28624]]

    Some confusion has arisen regarding whether this interpretation 
applies to permanent storage tanks, or only to temporary tanks brought 
on-site to manage the boiler cleanout rinses. The Agency's view is that 
the interpretation applies to temporary tanks, and also to permanent 
tanks when such units are used exclusively for the management of boiler 
cleanout during the boiler cleanout process. (Such tanks could, of 
course, be engaged in other activities when they are not dedicated to 
management of boiler cleanout waste during the cleanout process.)
    EPA did state in the May 12 notice that ``[t]he interpretation * * 
* does not apply where there are permanent storage units involved.'' 62 
FR at 26007. What the Agency had in mind was a tank already engaged in 
the permanent storage of hazardous waste. However, so long as a tank is 
dedicated solely to storage of boiler cleanout rinses during the boiler 
cleanout process, there is no environmental distinction between whether 
or not a temporary or permanent tank is used for the purpose. 
Consequently, the point of generation interpretive principle announced 
in the May 12 notice applies to both permanent and temporary tanks 
systems.

IX. Capacity Determination for Phase IV Land Disposal Restrictions

A. Introduction

    This section summarizes the results of the capacity analysis for 
the wastes covered by today's rule. For a detailed discussion of 
capacity analysis-related data sources, methodology, and response to 
comments for each group of wastes covered in this rule, see the 
background document for the capacity analysis and the background 
document for the comment summary and response for capacity-related 
issues (i.e., collectively referred to as the Capacity Background 
Documents).
    In general, EPA's capacity analysis focuses on the amount of waste 
to be restricted from land disposal that is currently managed in land-
based units and that will require alternative treatment as a result of 
the LDRs. The quantity of wastes that are not managed in land-based 
units (e.g., wastewater managed only in RCRA exempt tanks, with direct 
discharge to a Publicly Owned Treatment Works (POTW)) is not included 
in the quantities requiring alternative treatment as a result of the 
LDRs. Also, wastes that do not require alternative treatment (e.g., 
those that are currently treated using an appropriate treatment 
technology) are not included in these quantity estimates.
    EPA's decisions on when to establish the effective date of the 
treatment standards (e.g., by granting a national capacity variance) 
are based on the availability of alternative treatment or recovery 
technologies. Consequently, the methodology focuses on deriving 
estimates of the quantities of waste that will require either 
commercial treatment or the construction of new on-site treatment as a 
result of the LDRs. EPA also estimates the quantities of waste that 
will be treated adequately either on site in existing systems or off 
site by facilities owned by the same company as the generator (i.e., 
captive facilities), and attempts to subtract that amount from the 
overall amount of required capacity.

B. Available Capacity for Surface Disposed Wastes

    Available capacity was estimated for four treatment technology 
categories that are expected to be used for the majority of wastes in 
today's rule: stabilization (including chemical fixation), 
vitrification, metal recovery, and thermal treatment. (Numerous other 
types of treatment also can meet the treatment standards for much of 
these wastes, although the Agency did not find it necessary to present 
the estimates of available capacity of these treatments. See the 
Capacity Background Documents for further information.)
1. Stabilization
    EPA estimates that there are at least several million mt/yr of 
available stabilization capacity, with most of it able to meet the 
treatment requirements for the TC metal wastes and newly identified 
mineral processing wastes. Furthermore, the Agency found that currently 
utilized stabilization capacity can be quickly modified (i.e., in less 
than 90 days) to meet the new treatment standards by implementing 
relatively simple changes to formulations. For additional details, see 
the Capacity Background Documents.
2. Vitrification
    EPA has determined that vitrification technology is commercially 
available for treating limited quantities of Phase IV wastes, such as 
some arsenic wastes, that are difficult to treat using stabilization 
and other techniques. EPA estimates that there are approximately 15,000 
mt/yr of available vitrification capacity.
3. Metal Recovery
    High temperature and other types of metal recovery appears to be 
the most applicable treatment for certain wastes containing high 
concentrations of metal constituents. EPA identified and reviewed 
several metal recovery technologies that are commercially available, 
and has determined that at least 800,000 mt/yr of metal recovery 
capacity exists.
    EPA recognizes, however, that not all of this capacity will be 
available for Phase IV wastes. For example, there are technical 
constraints on the metal recovery systems stemming from metal content 
limitations of the waste. Nevertheless, the Agency believes that a 
significant portion of this capacity is amenable to Phase IV wastes. 
For additional details, see the Capacity Background Documents.
4. Thermal Treatment
    EPA estimates that there are approximately 231,000 mt/yr of 
commercial sludge/solid/soil combustion capacity and 651,000 mt/yr of 
commercial liquid combustion capacity available for wastes covered by 
today's rule. Other types of thermal treatment, such as thermal 
desorption, also are available. For additional details, see the 
Capacity Background Documents.

C. Required Capacity and Variance Determination for Surface Disposed TC 
Metal Wastes

    EPA estimates that at most, 1.2 million mt/yr of TC metal wastes 
could require alternative treatment as a result of promulgation of 
today's rule. This estimate includes both wastes that are newly-
identified TC wastes (i.e., wastes that do not fail the EP test, and, 
consequently, were not part of the Third Third LDR rule) and wastes 
that fail the EP test (i.e., those wastes that were regulated in the 
Third Third LDR rule). Although only the newly identified TC wastes are 
eligible for a national capacity variance, the capacity analysis 
includes all wastes affected by the rule because estimates for each 
category are not available, and, furthermore, because all of these 
wastes need to be assessed to determine the full impact of this rule on 
the need for a capacity variance. Additionally, the 1.2 million 
estimated quantity is likely to be an overestimate because most of 
these wastes are already meeting the new treatment standards. Also, 
most of these wastes are likely to fail the EP test and, therefore, are 
no longer eligible for a capacity variance.
    The wastes that will require alternative treatment are expected to 
primarily only require optimization of existing stabilization 
formulations and systems. Also, sufficient vitrification capacity 
exists to treat the otherwise difficult-to-treat TC metal wastes, high 
temperature metal recovery capacity

[[Page 28625]]

exists for some of the TC metal wastes, and sufficient and other 
combustion capacity exists to pre-treat TC metal wastes that contain 
organic underlying hazardous constituents (UHCs). The Agency has 
determined that these conclusions also apply to TC metal contaminated 
debris. In addition, the other debris treatment technologies set out in 
268.45 are widely available.
    For TC metal contaminated soils, the Agency believes that the 
treatment standards, ten times UTS or 90% reduction, will not result in 
any capacity problems for treating metals since most soils are already 
meeting these standards and, furthermore, there is an excess of 
stabilization treatment capacity. Additionally, for treating organics 
to the alternative treatment standards, sufficient treatment capacity 
exists from use of other technologies (e.g., thermal desorption, soil 
washing, biotreatment).
    To allow facilities time to determine whether their wastes are 
affected by this rule and identify and locate alternative treatment 
capacity if necessary, EPA is providing 90 days between the publication 
of today's rule and the effective date of the treatment standards for 
the TC metal wastes, including soil and debris, covered by today's 
rule. For a detailed discussion on data sources, methodology, and 
comments and responses for these wastes, see the Capacity Background 
Documents.

D. Required Capacity and Variance Determination for Surface Disposed 
Mineral Processing Wastes

    EPA estimates that the maximum quantity of newly identified mineral 
processing wastes potentially requiring alternative treatment is 
approximately 1.9 million mt/yr. Most of these wastes (approximately 
1.8 million mt/yr) are already being treated to nonhazardous levels 
and, therefore, are not expected to require much, if any, additional 
treatment. The remaining wastes, approximately 71,000 mt/yr, will 
require treatment to meet the treatment standards. However, adequate 
on-site and off-site treatment capacity is available for these wastes. 
The Agency has determined that these conclusions also apply to debris 
contaminated with mineral processing wastes. In addition, the other 
debris treatment technologies set out in 268.45 are widely available. 
For soils contaminated with mineral processing wastes, the Agency 
believes that the treatment standards, ten times UTS or 90 percent 
reduction, will not result in any capacity problems. Nevertheless, to 
allow time for activities such as treatment system modifications or to 
identify and locate alternative treatment capacity for process wastes, 
soil, and debris, EPA is providing 90 days between the publication of 
today's rule and the effective date of the treatment standards for the 
mineral processing wastes, contaminated soil (including MGP soil; see 
discussion below), and debris covered by today's rule (one exception is 
the elemental phosphorus wastes; see discussion below). For a detailed 
discussion on data sources, methodology, and comments and responses for 
these wastes, see the Capacity Background Documents.
    EPA estimates that up to 1.2 million mt/yr of soil contaminated 
with ``de-Bevilled'' wastes may be remediated from historic 
manufactured gas plant (MGP) sites. In response to the first 
supplemental proposal, several commenters stated that more than 50 
percent of the MGP remediation sites are currently co-burning the 
wastes in on-site coal-fired utility boilers and requested the Agency 
to allow co-burning of MGP soils in coal-fired utility boilers and 
exclude them from RCRA requirements. In today's rulemaking, the Agency 
is confirming its existing (and not reopened) interpretation that 
residues from co-burning hazardous MGP soils along with coal are 
covered by the Bevill amendment (assuming the residues are not 
significantly affected by such burning, as provided in section 
266.112). In addition, as discussed elsewhere in this notice, the 
Agency is promulgating treatment standards (ten times UTS or 90 percent 
reduction) for contaminated soils. On-site treatment and existing 
commercially available treatment technologies can readily achieve--and 
to a large extent are already achieving--the treatment standards for 
contaminated MGP soil. Therefore, the Agency does not anticipate any 
capacity problems. To allow facilities time to determine whether their 
wastes are affected by this rule, to identify alternative treatment 
capacity if necessary, and to make contractual arrangements for 
transportation and other logistics, EPA is providing 90 days between 
the publication of today's rule and the effective date of the treatment 
standards for MGP soils.
    In the first supplemental proposed rule, the Agency identified the 
following three waste streams generated from elemental phosphorus 
production as lacking sufficient commercial treatment capacity: Medusa 
scrubber blowdown, Anderson filter media rinsate, and furnace building 
washdown. A major generator of these waste streams, the FMC 
Corporation's Pocatello, Idaho facility, provided a substantial amount 
of data to show that these waste streams pose unique treatability 
problems (e.g., due the presence of naturally occurring radioactive 
materials (NORM)) and that a two-year national capacity variance is 
needed to develop and construct treatment capacity. After careful 
review of the data, EPA discussed in the May 10, 1996 Notice of Data 
Availability, the possibility of a two-year national capacity variance 
for these three large volume wastewater streams. In May 1997, EPA 
proposed the second supplemental Phase IV rule (62 FR 26041) and, in 
response to this proposal, FMC submitted a comment to EPA with new 
information identifying three other waste streams (NOSAP slurry, 
precipitator slurry, and phossy water) at its Pocatello, Idaho facility 
that FMC believes would be subject to Phase IV LDR requirements. FMC 
requested that a two-year national capacity variance also be granted 
for these three new waste streams. Like the original waste streams, the 
three newly identified streams are generated in the elemental 
phosphorous production process and contain varying amounts of both NORM 
and elemental phosphorous. FMC also noted that the AFM Rinsate waste 
stream, for which FMC originally requested a national capacity 
variance, has been completely eliminated, and that therefore a national 
capacity variance would no longer be needed for this waste stream. The 
Agency made these additional data available for public comment in a 
November 10, 1997 NODA (62 FR 60465). No adverse comments were 
received. The Agency has decided to grant a two-year capacity variance 
for all five FMC wastestreams.
    Details of the methodology and estimates of affected facilities and 
waste quantities for the newly identified mineral processing wastes are 
provided in the Capacity Background Documents.

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

    Summary: EPA is granting a two-year capacity variance for UIC wells 
that inject newly identified mineral processing wastes from titanium 
dioxide production.
    There are approximately 272 Class I injection well facilities 
nationwide. The Agency identified approximately 46 of those facilities 
as potentially injecting Phase IV wastes. These injected Phase IV 
wastes account for less than 15 percent of the total injectate being 
managed by Class I wells annually. Most of these facilities potentially 
identified already have approved no-migration

[[Page 28626]]

petitions. In assessing the impact of the Phase IV rule to operators of 
UIC facilities, the Agency found that the only potentially affected 
wells are those injecting newly identified characteristic mineral 
processing wastes, since other characteristic wastewaters were already 
prohibited in 1990 and the period for possible capacity extensions for 
these wastes has run out. (See UIC background document explaining in 
detail why the other wastes are unaffected.)
    For a facility with an existing approved no-migration 
determination, the facility operator may have already incorporated the 
subject waste in the original petitions. Any facility with an approved 
no-migration determination without the waste already incorporated may 
submit a modified petition (40 CFR Part 148.20 (f)). However, if an 
injection well has received a no-migration determination, it can inject 
a newly prohibited waste only if the waste is similar to wastes 
included in the initial no-migration petition. The new wastes must 
behave hydraulically and chemically in a similar manner to those 
already included in the initial petition demonstration such that they 
will not interfere with the containment capability of the injection 
zone and the location of the waste plume will not significantly differ 
from the initial demonstration (See 40 CFR 148.20 (f) & UIC Program 
Guidance # 74)). Based on this information, promulgation of the Phase 
IV LDRs should have little impact on any facilities with approved 
petitions.
    EPA estimates that approximately five million tons of mineral 
processing wastes are being disposed annually in UIC wells. Of these, 
approximately three million tons are attributable to titanium dioxide 
production from two DuPont facilities. This volume is a conservative 
estimate based on highly complex, non-segregable waste stream mixtures. 
This total volume would be subject to the LDR treatment standards. 
Titanium dioxide (TiO2) production wastes are either generated onsite 
at facilities with injection wells, or at facilities without injection. 
For these DuPont facilities, this waste is generated and disposed 
onsite by injection wells. In order for these facilities to continue 
injection of this restricted waste, a no-migration petition must be 
approved to meet the conditions of 40 CFR Part 148.20 of the UIC 
regulations.
    For those facilities disposing restricted Phase IV TiO2 mineral 
processing waste, their options may be limited to meeting treatment 
standards (onsite or offsite), submitting a no-migration petition, 
transporting their waste to a commercial Class I hazardous disposal 
well facility, or deactivating (diluting) the waste to make it 
nonhazardous before injection (see RCRA section 3004 (g) (9), a recent 
amendment which allows such dilution). All of these options are 
resource intensive and owners/operators of these facilities will be 
faced with critical economic and business decisions. These TiO2 
facilities do not have immediate capability to treat their waste 
onsite. If they were to opt for treatment onsite, it would require 
substantial time and resources to build a treatment facility or to 
substantially modify their existing facility. It would take at least 
two years (and possibly longer) to construct such a treatment system. 
In evaluating various disposal alternatives, one DuPont facility is 
currently constructing a treatment works that will integrate a 
neutralization project based on current production. As an alternative 
to deep well injection disposal, the long term construction at this 
facility has been costly and operational start-up will require 
additional time to work out issues. See DuPont letter of Feb. 5, 1998.
    With respect to the options of managing the waste water offsite, 
severe practical constraints limit the availability of capacity to 
these DuPont Ti02 facilities. A typical volume of Ti02 wastewater is 
900,000 Gallons (3,750 tons) per day; and peak production volumes are 1 
million Gallons (4,167 tons) per day. DuPont letters of Feb. 5 & 20, 
1998. At peak production, this would take 200 tanker trucks per day for 
each affected facility to ship the volume of waste that is currently 
injected. Additionally, these trucks must be constructed with 
fiberglass or titanium tanks to be compatible to the low pH-highly 
corrosive acid waste (Note from ICF to R. E. Smith to RCRA Docket (Feb. 
17, 1998)). Indeed, it is not even certain that existing 10, 000 gallon 
tanker trucks are compatible with this wastestream, due to its weight 
(the TDS content is so high that a 10, 000 gallon tanker could only be 
half full) and corrosivity. Dupont letter of Feb. 20, 1998.
    Commercial waste management facilities normally cannot feasibly 
accommodate this daily volume. There are at least ten operating 
commercial Class I hazardous waste injection facilities nationwide, it 
is uncertain whether they have the capacity to accept 3 million tons of 
TiO2 mineral processing waste annually for disposal because of 
permitting limitations. These commercial wells also have finite 
capacity limitations. The Agency studied the operational permit 
parameters of these commercial facilities and found that individual 
injection and flow capacity rates (UICWELLS Database) may restrict 
injection of additional high volumes of waste. Rates are scientifically 
and mathematically determined to avoid damage to the well and the 
injection zone. Further study of compatibility requirements for these 
wells suggest that they have acceptable construction for most wastes 
disposed but not necessarily for the TiO2 production waste in its 
present concentration. Without pretreatment, these waste 
characteristics would require a more exotic well construction that is 
composed of fiberglass injection tubing, titanium casing and packer, 
epoxy and acid resistance compatible cement.
    EPA has also looked at commercial wastewater treatment capacity in 
the vicinity of the two DuPont facilities. For one facility, there are 
no available commercial waste water treatment plants within 200 miles. 
For the other facility, there are two treatment plants within 75 miles 
but neither has the capacity to accept the high volumes of waste 
generated by either DuPont facility (based on BSR data). Commercial 
waste water treatment facilities generally handle corrosive toxic metal 
waste waters by stabilization and neutralization techniques. Treatment 
plants managing the Ti02 production waste waters would have to be 
specially constructed and equipped not only to be amenable to a high 
volume of acidic waste but also have the capacity to manage the huge 
amount of solids that will yield from treatment. Thus, wastewater 
treatment requires having pre-storage and processing units, adequate 
chemicals to neutralize the corrosive characteristic of the waste and 
stabilization technology to immobilize the metals before they are 
either stored onsite, marketed, or landfilled. While the Agency is 
satisfied that this treatment technology is applicable to Ti02 waste 
water, there is much reservation whether DuPont's facilities could 
realistically mobilize 200 tanker trucks per day per facility to safely 
ship this waste to these treatment facilities even if treatment 
capacity were readily available at them.
    The statute also allows injection of waste waters which no longer 
exhibit a characteristic into Class I wells without meeting any other 
LDR treatment standard, and dilution may be used as a means of 
decharacterizing the waste. RCRA section 3004 (g) (9). However, 
deactivation of certain characteristic wastes through dilution is not 
always practical or even feasible. The whole waste stream process may 
not be amenable to dilution prior to injection

[[Page 28627]]

at the wellhead, and the geologic reservoirs into which the wells 
inject have a finite capacity. Sometimes filling up reservoirs with 
huge volumes of additional water shortens the life of the well 
operation because reservoir pressures build up much more quickly and 
the injection zone becomes ``overpressurized.'' EPA finds that this is 
the case for the TiO2 wastewater at issue here. Thus, the dilution 
option cannot be utilized here to find that there is adequate available 
treatment capacity for these TiO2 wastes.
    Capacity analyses usually focus on the demand for alternative 
capacity once existing on-site capacity and captive off-site capacity 
have been accounted for. However, capacity also may be unavailable if 
there is no practical means of utilizing it due to logistical problems. 
For example, in the Third Third rule, EPA relied on such logistical 
factors to determine when capacity was realistically available (see 55 
FR 22645-22646, June 1, 1990). The Agency noted that injection wells at 
on-site facilities are directly connected to the plant operations and 
that in order to realistically arrange for off-site disposition of the 
waste, the plant managers will need time to make considerable 
logistical adjustments such as, repiping, retooling, and development of 
transportation networks at the plant operations. Similarly, for TiO2 
waste facilities, the Agency doesn't believe that treatment capacity is 
available since there is no feasible way for generators to transport 
their wastes to the treatment facilities at this time, plus all of the 
other repiping that would be entailed. The Agency believes that it 
would take at least two years for the TiO2 facilities to alter their 
operations to ship wastewater to offsite facilities and for off-site 
facilities to make corresponding changes to their operations to 
accommodate the large influx of highly corrosive, high volume, dense 
wastewater (even if off-site facilities were to be willing to accept 
the waste, which is quite unclear).
    Under these circumstances, the Agency finds that there is 
inadequate treatment, recovery, or disposal capacity presently 
available for TiO2 injected waste waters currently being injected into 
Class I hazardous wells, and therefore is granting a two-year national 
capacity variance for these wastes. The Agency expects that affected 
generators will utilize this period for applying for no-migration 
petitions for their existing wells, or to construct on-site wastewater 
treatment systems.
    EPA estimates that there is approximately 2 million tons of other 
injected Phase IV mineral processing wastes (i.e. from processes other 
than TiO2 production). One facility with the largest volume of that 
injected waste has applied for and received an approved no-migration 
petition thus meeting the conditions of 40 CFR Part 148.20. The rest of 
these facilities are either applying dilution as a means of 
decharacterizing their waste (as allowed under Section 3004(g)(9)), or 
are treating their waste before disposal. Their waste volumes are much 
less than the TiO2 production waste being injected. Since the volume of 
wastes is so much less than TiO2, and the wastes are more amenable to 
conventional management, EPA does not see the same types of 
difficulties arising, and is therefore not delaying the effective date 
of the prohibition for these facilities. (See UIC background document).

F. Mixed Radioactive Wastes

    Significant uncertainty exists about quantities of mixed 
radioactive wastes containing wastes that will require treatment as a 
result of today's rule. Despite this uncertainty, any new commercial 
capacity that becomes available will be needed for mixed radioactive 
wastes that were regulated in previous LDR rulemakings and whose 
variances have already expired. Thus, EPA has determined that 
sufficient alternative treatment capacity is not available, and 
therefore is granting a two-year national capacity variance for mixed 
RCRA/radioactive TC metal wastes that are newly identified (i.e., 
wastes, soil, or debris identified as hazardous by the TCLP but not the 
EP), and newly identified characteristic mineral processing wastes 
including soil and debris.

G. Summary

    Table 1 summarizes the capacity variance determination for each 
category of Phase IV RCRA wastes for which EPA is promulgating LDR 
treatment standards.

                                 Table of Capacity Variances for Phase IV Wastes                                
                           [Note: Capacity variances begin from the publication date]                           
----------------------------------------------------------------------------------------------------------------
               Waste description                    Surface-disposed wastes         Deep well-injected wastes   
----------------------------------------------------------------------------------------------------------------
Newly identified wastes from elemental          Two years......................  Not applicable.                
 phosphorus processing.                                                                                         
Newly identified mineral processing wastes      90 days........................  Two years.                     
 from titanium dioxide production.                                                                              
Newly identified TC metal wastes (i.e., wastes  90 days........................  90 days.                       
 identified as hazardous by the TCLP but not                                                                    
 the EP), and newly identified characterisitc                                                                   
 mineral processing wastes including soil and                                                                   
 debris.                                                                                                        
Radioactive wastes mixed with newly identified  Two years......................  Two years.                     
 TC metal wastes (i.e., wastes identified as                                                                    
 hazardous by the TCLP but not the EP), and                                                                     
 mixed with newly identified characteristic                                                                     
 mineral processing wastes, including soil and                                                                  
 debris.                                                                                                        
----------------------------------------------------------------------------------------------------------------

X. Change to Definition of Solid Waste To Exclude Wood Preserving 
Wastewaters and Spent Wood Preserving Solutions From RCRA 
Jurisdiction

    Summary: As proposed on May 12, 1997 (FR 62 26055), EPA is today 
amending the definition of solid waste to exclude wood preserving 
wastewaters and spent wood preserving solutions from RCRA jurisdiction 
provided that certain conditions are met, as specified below.

A. Summary of the Proposal

    On May 12, 1997 in the Phase IV LDR second supplemental rulemaking, 
EPA proposed to amend the RCRA regulations to provide an exclusion from 
the definition of solid waste for certain materials generated and 
recycled by the wood preserving industry. Specifically, the proposal 
would exclude certain wood preserving wastewaters and spent wood 
preserving solutions from classification as solid waste under RCRA. Any 
wood preserving plant claiming the exclusion for these wastes would 
need to manage them according to the following criteria: (1) the 
materials must be recycled and reused on-site in the production process 
for their original intended purpose; (2) the materials must be managed 
to prevent release; (3) the plant must assure that the units managing 
these materials can be visually or otherwise determined to

[[Page 28628]]

prevent releases; and (4) drip pads managing these materials must 
comply with Subpart W drip pad standards regardless of whether the 
plant has been classified as a conditionally exempt small quantity 
generator (CESQG) (see 40 CFR 261.5). For a more detailed discussion of 
these conditions, please consult the relevant sections in the May 12, 
1997 proposed rule.
    As noted above, the exclusion was to be limited to wood preserving 
wastewaters and spent wood preserving solutions that are recycled and 
reused on-site at wood preserving plants in the production process for 
their original intended purpose. As EPA explained in the proposal, any 
listed wastewater or spent solution that is not recycled on-site 
according to the conditions of the exclusion is not excluded from the 
definition of solid waste. Moreover, the F032, F034 and F035 listings 
cover wastestreams other than wastewaters and spent solutions. These 
other listed wastestreams would not be eligible for exclusion even if 
recycled. This could include materials associated with wastewaters and 
spent solutions, such as residues that accumulate in a drip pad sump. 
EPA affirms this scope of the exclusion for the final rule.
    It was neither the Agency's intent nor belief that the proposed 
exclusion would in any way reduce 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 Sec. 264.570(c) and 
Sec. 265.440(c) requirements under for response to infrequent and 
incidental drippage in storage yards. The Agency specifically requested 
comment on whether the proposed exclusion would reduce these 
requirements. The Agency also sought 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 to submit 
it to either the EPA Regional Administrator or State Director to allow 
review. Finally, EPA asked for comment concerning the conditions under 
which the proposed exclusion, once claimed, would no longer apply.
    Of course, this exclusion from the definition of solid waste under 
the federal RCRA statute does not modify any regulatory requirements 
that are independently imposed under other environmental statutes.

B. Modifications to the Proposal

    The Agency received four sets of comments on the proposed exclusion 
for wood preserving wastewaters and spent wood preserving solutions. 
While some comments were supportive of the proposal, others were 
critical of the Agency for, among other things, relinquishing some 
regulatory oversight of the wood preserving industry. The comments EPA 
received on the scope of the proposed exclusion and the Agency's 
response can be found in the docket for this rulemaking. All comments 
were carefully considered. This section addresses those changes that 
EPA made to the proposed rule based on comments the Agency received. 
The next section (``Other Comments'') addresses those aspects of the 
proposal that, though they remain unchanged by today's rule, require 
further clarification based on the comments received.
1. Notification
    EPA received two responses to its request for comment on whether it 
was necessary for a plant claiming the proposed exclusion to provide 
notice to the appropriate regulatory agency and, if so, what type of 
notice that should be. One commenter suggested that the publication of 
the exclusion and its effective date by EPA in this final rule would 
serve as sufficient notice, and that notification on a plant specific 
basis is unnecessary. EPA does not consider publication of the final 
rule to provide adequate notice on the names and locations of wood 
preserving plants planning to operate under the conditional exclusion. 
Moreover, EPA is concerned that this commenter may have assumed that 
the exclusion would take effect nationwide upon publication. As 
explained below in the section titled ``state authorization,'' this is 
not correct. The exclusion will not take effect in any authorized state 
unless and until the state adopts it.
    The other commenter suggested that it is appropriate for wood 
preserving plants claiming an exclusion for their recycled wastewaters 
and spent solutions to notify the appropriate state agency. EPA 
considers notification to the appropriate regulatory agency to be 
essential to the proper implementation of this provision. To allow EPA 
and authorized states to verify that the conditions placed upon today's 
exclusion are properly met, it is important that wood preserving plants 
inform the appropriate Regional Administrator or State Director that 
they are claiming the exclusion and will therefore be reporting 
significantly lower waste generation totals. EPA is therefore revising 
the proposed exclusion to require a plant owner or operator (prior to 
operating pursuant to this exclusion) to submit to the appropriate 
Regional Administrator or State Director a one-time notification 
stating that the plant intends to claim the exclusion, giving the date 
on which the plant intends to begin operating under the exclusion, and 
containing the following language: ``I have read the applicable 
regulation establishing an exclusion for wood preserving wastewaters 
and spent wood preserving solutions and understand it requires me to 
comply at all times with the conditions set out in the regulation.'' 
The plant must maintain a copy of that document in its on-site records 
for a period of no less than 3 years from the date specified in the 
notice.
2. Conditions Under Which the Exclusion Would No Longer Apply
    EPA requested comment on conditions that void the exclusion. 
Specifically, EPA asked whether a spill should result in the loss of 
the exclusion just for the spilled material, or also for the 
wastewaters and spent solutions generated after the spill occurred. EPA 
received two comments on conditions under which the exclusion, once 
claimed, would no longer apply. One commenter stated that RCRA 
regulation should be required for all materials that are spilled or 
otherwise exit the recycling loop. The other commenter suggested that 
``a simple spill . . . is obviously not related to the normal operation 
of the drip pad . . .'' and should therefore not void the exclusion for 
wastewaters and spent solutions that are collected and not spilled or 
released.
    EPA agrees with the commenter who took the position that the 
spilled material itself should be ineligible for the exclusion. The 
spilled material inherently fails to meet the condition requiring plant 
operators to manage wastewaters and solutions so as to prevent 
releases. Although there could potentially be conditions under which a 
spilled material could still be eligible for the existing exclusions 
under Sec. 261.4(a)(9)(i) and (ii) following reclamation, such 
materials are in all cases ineligible for today's new exclusion under 
Sec. 261.4(a)(9)(iii).
    To respond to the second comment, EPA has decided to clarify the 
effect of a violation of any condition, including the condition 
prohibiting spills, on wastewaters and spent solutions generated after 
a violation occurs. EPA has decided that the exclusion should not be 
available until the plant owner or operator notifies the appropriate 
regulatory agency, and the agency determines that the problem has been 
adequately addressed. It is appropriate to impose this requirement even 
for spills, because the significance of a spill may vary greatly from 
plant to plant and from incident to incident. EPA hopes

[[Page 28629]]

that a reviewing agency would quickly reinstate the exemption after a 
one-time spill, particularly if small, and would not require specific 
actions to correct the problem. In contrast, EPA would expect the 
reviewing agency to require specific actions (such as creation and 
implementation of a spill prevention plan) for a plant that experienced 
repeated spills. EPA believes the severity of any violation and the 
precise actions needed to return the plant to compliance can best be 
assessed on a case-by-case basis. EPA has added language to the 
regulation to clarify this issue. It applies to all of the conditions 
of the exclusion.

C. Other Comments

    A number of comments indicated a need for EPA to clarify other 
aspects of the proposal that the Agency is finalizing today.
1. Oil Borne Facilities
    One commenter suggested that the exclusion that EPA is finalizing 
today applies not only to water borne wood treating plants but also to 
oil borne wood treating plants. At the time of proposal, EPA intended 
to create an exclusion only for plants using water borne preservatives. 
See, for example, the discussion at 63 FR 26057, col. 1. EPA did not 
evaluate oil borne plants at the time. It is EPA's general 
understanding that plants which use oil borne preservatives do not 
recycle wastewaters and spent solutions by using them in the work tank 
to treat wood. Rather, they reuse these wastewaters in cooling systems, 
vacuum seals, and other devices. EPA wants to limit today's exclusion 
to materials that are reused for their original intended purpose--the 
treatment of wood. EPA has not had time to investigate the 
jurisdictional and factual issues posed by the use of wastewaters for 
other, more ancillary purposes. Consequently, EPA is not expanding the 
exclusion beyond the proposal. It applies only to water borne 
processes.
2. Application of the Conditions to Units Other Than the Drip Pad
    One commenter expressed opposition to ``any language that would 
extend the EPA's RCRA authority to devices that have previously not 
been regulated under RCRA.'' In view of this comment, the Agency is 
prompted to clarify that the conditions for claiming the exclusion must 
be met with regard to any unit that comes into contact with the 
recycled wastewaters and spent wood preserving solutions excluded in 
today's rule.
    Thus, sumps or other units that are arguably part of an exempt 
wastewater treatment unit and that manage wastewaters and spent 
solutions are subject to these conditions. EPA has already stated that 
``management to prevent releases would include, but not necessarily be 
limited to, compliance with [Subpart W] and maintenance of the sumps 
receiving the wastewaters and spent solutions from the drip pad and 
retort to prevent leaching into land and groundwater.'' (62 FR 26057). 
The Agency must be able to verify that the excluded materials are being 
managed to prevent release at every step of the recycling process 
through reclamation to ensure that the basic technical and policy 
conditions underlying the exclusion are properly met.
3. Relationship of Today's Exclusion to Previous Industry Exclusions
    One commenter wanted to assure that today's exclusion would not now 
regulate units that transmit or store materials that have been excluded 
according to other, currently existing regulations. EPA does not intend 
to use today's exclusion to rescind either of the exclusions that the 
Agency has previously granted the wood preserving industry under 
Secs. 261.4(a)(9)(i) and (ii).
4. Units That May Be Visually or Otherwise Determined to Prevent 
Release
    One commenter expressed concern that the term ``units'' is an 
overly broad way to refer to those portions of the system subject to 
RCRA inspection. EPA will now clarify which ``units'' are subject to 
inspection under the conditions of this exclusion. As mentioned above, 
all units that come into contact with the excluded materials prior to 
reclamation must necessarily be subject to verification that they are 
able to contain these materials in a manner that prevents their release 
to the environment. This includes, but is not necessarily limited to, 
any drip pad, sump, retort or conduit that comes into contact with the 
wastewaters and spent solutions prior to reclamation. This also 
includes any unit that is arguably part of a plant's wastewater 
treatment system but that comes into contact with the wastewaters or 
spent solutions prior to reclamation. An inspector must be able to 
determine (by visual or other means) whether these units are managing 
the wastewaters and spent solutions in a manner that prevents release. 
When relying on a visual inspection (as opposed to a leak detection 
system or other means), it may be necessary for an inspector to require 
these units be drained or cleaned for the inspector to make an informed 
determination as to whether the unit is cracked or leaking.
5. CESQG Status
    One commenter also requested EPA to prevent wood preserving plants 
from becoming conditionally exempt small quantity generators (CESQGs) 
after claiming the exemption. The commenter was concerned that other, 
non-excluded wastestreams generated at these plants that are covered by 
the listings would no longer be subject to any hazardous waste 
regulation. As explained in more detail in the response to comment 
document, EPA lacks sufficient information about the volumes of these 
other wastes and the risks they pose to promulgate a rule creating an 
exception to the long-established CESQG exemption for them.

D. State Authorization

    Upon promulgation, this exclusion will immediately go into effect 
only for plants in those states and territories that are not currently 
authorized to implement the RCRA program (i.e., Alaska, Iowa, Hawaii, 
American Samoa, Northern Mariana Islands, Puerto Rico and Virgin 
Islands). Plants in these states are subject to the provisions of the 
federal program. Conversely, any plant located in a RCRA authorized 
state will be unable to claim the exclusion we are finalizing today 
unless and until that state amends its regulations to include the 
exclusion. Because EPA allows state programs to be more stringent than 
the federal program, it is not necessarily guaranteed that all 
authorized states will elect to adopt this exclusion.

XI. Clarification of the RCRA Exclusion of Shredded Circuit Boards

    In the May 12, 1997 final rule on Land Disposal Restrictions, the 
Environmental Protection Agency (EPA) excluded shredded circuit boards 
from the definition of solid waste conditioned on containerized storage 
prior to recovery. To be covered by this exclusion shredded circuit 
boards must be free of mercury switches, mercury relays, nickel-cadmium 
batteries or lithium batteries. On a related issue, current Agency 
policy states that whole circuit boards may meet the definition of 
scrap metal and therefore be exempt from hazardous waste regulation. In 
a parenthetical statement in the May 12, 1997 rule, the Agency asserted 
that whole used circuit boards which contain mercury switches, mercury 
relays, nickel-cadmium batteries, or lithium batteries also do not meet 
the definition of scrap metal because mercury (being a liquid metal) 
and batteries are not within the scope of the

[[Page 28630]]

definition of scrap metal. The preamble cited 50 FR 614, 624 (1985).
    Members of the electronics industry expressed concern to the Agency 
about the preamble statement regarding the regulatory status of whole 
used circuit boards which contain mercury switches, mercury relays, 
nickel-cadmium batteries, or lithium batteries. The electronics 
industry indicated that its member have developed a sophisticated 
asset/materials recovery system to collect and transport whole used 
circuit boards to processing facilities. The industry explained that 
the boards are sent to processing facilities for evaluation (continued 
use, reuse or reclamation) where the switches and the types of 
batteries are generally removed by persons with the appropriate 
knowledge and tools for removing these materials. Once these materials 
are removed from the boards, they become a newly generated waste 
subject to a hazardous waste determination. If they fail a hazardous 
waste characteristic, they are handled as hazardous waste, otherwise 
they are managed as a solid waste. Information was also provided 
regarding the quantity of mercury on these switches and on the physical 
state in which they are found on the boards. The information indicates 
that the mercury switches and relays on circuit boards from some 
typical applications contain between 0.02-0.08 grams of mercury and are 
encased in metal which is then coated in epoxy prior to attachment to 
the boards.
    In today's final rule, the Agency recognizes that the preamble 
statement in the May 12, 1997 final rule is overly broad in that it 
suggested that the scrap metal exemption would not apply to whole used 
circuit boards containing the kind of minor battery or mercury switch 
components and that are being sent for continued use, reuse, or 
recovery. It is not the Agency's current intent to regulate under RCRA 
circuit boards containing minimal quantities of mercury and batteries 
that are protectively packaged to minimize dispersion of metal 
constituents. Once these materials are removed from the boards, they 
become a newly generated waste subject to a hazardous waste 
determination. If they meet the criteria to be classified as a 
hazardous waste, they must be handled as hazardous waste, otherwise 
they must be managed as a solid waste.

XII. 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 final rule to determine 
if it is a significant regulation as defined by the Executive Order. 
The analysis considered compliance costs and economic impacts for newly 
identified wastes affected by this rule, as well as media contaminated 
with these wastes. In addition, the analysis addresses the cost savings 
associated with the new soil treatment standards being promulgated in 
today's 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. Today's final rule also covers treatment standards 
for contaminated media (i.e., soil and sediment). EPA estimates the 
total cost of the rule to be a savings of $6 million annually, and 
concludes that this rule is not economically significant according to 
the definition in E.O. 12866. However, the Agency does consider this 
rule to be significant for novel policy reasons. 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 documents: (1) ``Regulatory Impact Analysis 
of the Phase IV Land Disposal Restrictions Final Rule for Newly 
Identified Mineral Processing Wastes,'' (2)''Regulatory Impact Analysis 
of the Phase IV Land Disposal Restrictions Final Rule for TC Metal 
Wastes,'' and (3) ``Regulatory Impact Analysis of the Phase IV Land 
Disposal Restrictions Final Rule for Contaminated Media,'' which were 
placed in the docket for today's final rule.
1. Methodology Section
    The Agency estimated the volumes of waste and contaminated media 
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 or risk-screens used to document the inherent hazard of 
materials being evaluated.
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 secondary materials. The estimated volume for these 
potentially affected newly identified mineral processing secondary 
materials is 22 million tons. Also, approximately 1.3 million tons of 
contaminated soil containing coal tar and other wastes from 
manufactured gas plants are potentially affected by this rule. As 
discussed below, EPA does not believe that any TC metal process wastes 
are potentially affected by today's final rule. EPA estimates that 
approximately 165,000 tons per year of soil and sediment contaminated 
with TC metals and approximately 90,000 tons per year of previously 
regulated contaminated soils is impacted by today's rule.
    b. Cost Results For the part of today's final rule that prohibits 
land storage of mineral processing residues (below the high volume 
threshold) prior to being recycled, EPA estimates these expected case 
annualized compliance costs to be $10 million. The cost results for 
this part of today's final rule 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 wastes the Agency believes that there will be no 
incremental costs associated with stabilization of these wastes from 
the promulgation of these treatment standards.\47\ In addition, EPA 
believes

[[Page 28631]]

that there will be no incremental treatment costs for the treatment of 
TC metal wastes that contain organic underlying hazardous constituents. 
Based on public comment and data collected from commercial hazardous 
waste treaters and generators, EPA believes that TC metal wastes are 
often already treated to these universal treatment standard levels when 
waste handlers treat to the current treatment standards using bona fide 
treatment reagents (e.g., portland cement).\48\ Therefore, no 
additional treatment reagent or capital equipment associated with 
stabilization is required with these wastes.
---------------------------------------------------------------------------

    \47\ One possible exception to this are producers of hazardous 
waste-derived fertilizers. This is discussed below under the 
Regulatory Flexibility section.
    \48\ December 19, 1996 letter to Anita Cummings, USEPA Office of 
Solid Waste from Michael G. Fusco, Director of Regulatory Analysis, 
Rollins Environmental Inc., p.4 of edited draft EPA trip report 
letter to Rollins Highway 36 facility in Colorado.
---------------------------------------------------------------------------

    Previously, EPA had estimated costs to the nonferrous foundry 
industry associated with complying with today's treatment standards. 
This estimate was modeled on trisodium phosphate with a ph buffer. When 
this type of treatment reagent is used, incremental quantities are 
required to achieve the universal treatment standards for cadmium 
promulgated in today's rule. However, based on contacts with trade 
associations and vendors of stabilization equipment, EPA believes that 
portland cement is equal to or less than the cost of trisodium 
phosphate and is therefore a more appropriate choice for modeling a 
compliance baseline from which to estimate the costs of the rule. 
Unlike trisodium phosphate, portland cement currently being used to 
meet existing treatment standards has been shown to meet the universal 
treatment standards without additional reagent. Accordingly, EPA 
believes that no incremental costs (or benefits) for stabilization are 
attributable to the promulgation of the universal treatment standards 
for TC metal wastes.
    Although according to the American Foundrymen's Society iron 
filings are used by many nonferrous foundries as a treatment reagent, 
for the reasons discussed above under Section III (f), EPA does not 
believe that iron filings are a legitimate and effective form of 
treatment. Therefore, the costs of switching from iron filings to 
another form of treatment reagent such as portland cement is more 
appropriately characterized as a cost of coming into compliance with 
already existing treatment standards rather than an incremental cost 
attributable to today's rule. Although EPA does not believe the cost of 
switching from iron filings to another treatment reagent is 
attributable to today's final rule, the Agency has estimated these 
compliance costs and included this information in the background 
document ``Regulatory Impact Analysis of the Phase IV Land Disposal 
Restrictions Final Rule for TC Metal Wastes,'' which was placed in the 
docket for today's final rule. EPA estimates that the annual cost to 
nonferrous foundries to switch from iron to portland cement to 
stabilize hazardous foundry sands is $11.7 million. Results from the 
risk screen for nonferrous foundry sands are discussed below.
    For TC metal hazardous wastes that contain organic underlying 
hazardous constituents, one commenter has suggested that the Phase IV 
final rule would result in costs resulting from changing from 
stabilization of these wastes to incineration. EPA has evaluated data 
from the National Hazardous Waste Constituent Survey to assess both the 
prevalence and level of organic underlying hazardous constituents in TC 
metal wastes (solid and sludges). The results indicate that organic 
underlying hazardous constituents are rarely present in these wastes. 
Only seven of 181 TC metal hazardous wastes examined contained organic 
underlying hazardous constituents. Of these seven, only three contained 
organics above the Univeral Treatment Standard. None of the three waste 
steams that contained organics above the Univeral Treatment Standard 
was present in concentrations high enough to warrant incineration. In 
short, it is unlikely that organic underlying hazardous constituents 
will be present in TC metal wastes. And if present, incineration is 
unlikely to be used to treat these wastes. For reasons, EPA believes 
that the Phase IV final rule will not result in incremental costs for 
TC metal wastes containing organic underlying hazardous constituents.
    The Agency is also promulgating new soil treatment standards in 
today's final rule. As these standards are less stringent than those 
currently required for previously regulated soils, an estimate of the 
cost savings associated with these standards has been prepared. The 
total incremental savings estimated for the new soil treatment 
standards is $25 million per year.
    For contaminated soils which exhibit a characteristic for TC metals 
(including soils containing newly identified mineral processing wastes) 
but do not contain organic underlying hazardous constituents, there is 
no incremental cost expected from today's rule. These soils are subject 
to the new treatment standards which are less stringent than current 
LDR treatment standards for contaminated soils. The one category of TC 
hazardous metal contaminated soil that is potentially impacted by 
today's rule is TC hazardous metal contaminated soil which contains 
organic underlying hazardous constituents. These soils require 
additional treatment over that received in the baseline to effectively 
treat the organic constituents of concern. The Agency estimates that 
this additional requirement will result in a $3 million per year cost 
for these wastes, occurring mainly at voluntary cleanups and Superfund 
sites.
    Manufactured gas plant contaminated soils (MGP) are a class of 
contaminated media that has heretofore not been subject to LDR 
treatment standards. EPA believes that some incremental costs may 
result from today's final rule to MGP clean ups involving the use of 
MGP soils in land applied recycling such as hot or cold mix asphalt, 
brick and concrete. It is possible that some of these soils will not 
meet the conditional exemption for waste-derived products that are used 
in a manner constituting disposal. 40 CFR Sec. 266.20(b). For this 
reason, it is also possible that owner/operators of these sites may 
select an alternative remedy such as in-situ treatment or co-burning 
which are not affected by today's rule. On balance, EPA still believes 
that the promulgation of new treatment standards will encourage 
remediation of hazardous soils. The estimated annual costs to owner/
operators of MGP sites for selecting remedies that are alternatives to 
asphalt, brick or concrete recycling are $6.2 million.
    c. Economic Impact Results. To estimate potential economic impacts 
resulting from today's final rule, EPA has used first order economic 
impacts measures such as the estimated compliance cost of the rule as a 
percentage of sales/revenues, value added (sales less and material 
cost) and profit or return on capital. EPA has applied these measures 
to newly identified mineral processing hazardous wastes.
    For recycled mineral processing secondary materials, EPA has 
evaluated the estimated compliance costs as a percentage of value (i.e. 
sales), value added and profits of the mineral commodities produced in 
each sector. In addition EPA has compared estimated compliance costs as 
a percentage of revenues to specific mineral processing firms to 
provide additional information on potential impacts.

[[Page 28632]]

    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. In the expected 
case scenario up to 5 of the 29 commodity sectors are expected to incur 
compliance costs equal to or greater than 1 percent of the economic 
value of the mineral commodities produced under the Agency's proposed 
option in today's rule. These sectors include: cadmium, fluorspar and 
hydrofluoric acid, mercury, selenium and tungsten. The range of 
percentages in these sectors is between 2 percent (cadmium) and 36 
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 secondary materials. For example, EPA has estimated that today's 
final rule may affect the cadmium and selenium sectors by imposing 
incremental costs equal to 18 percent of the value added of those 
minerals. The value added is equal to the market value of the minerals 
less the cost of the raw materials (i.e., ore concentrate). Cadmium is 
a co-product of zinc production and selenium is co-product of copper 
production; hence, these economic impacts are expected primarily to 
affect the production of these co-products and the reclamation of their 
residuals rather than the mineral processing operation as a whole. 
Because recovery for these co-product residuals is generally less 
expensive than treatment and disposal, EPA believes that the costs for 
these residuals will not significantly decrease their recovery although 
the storage costs could add to the expense.
    As stated above, the Agency believes that there are no incremental 
costs associated with today's final rule for stabilization for handlers 
of TC metal hazardous wastes. Moreover, the Agency believes that there 
are no incremental costs associated with TC metal wastes containing 
organic underlying hazardous constituents may incur costs as described 
above and corresponding impacts. Accordingly, there is no economic 
impact for waste handlers managing TC metal wastes.
    For TC hazardous foundry sands, EPA also believes that there is no 
economic impact attributable to today's final rule. As stated above, 
EPA views the cost associated from switching from iron filings to 
cement or other treatment reagent are not properly considered 
attributable to this rulemaking but rather a cost of coming into 
compliance with existing regulations. Moreover, even if these costs 
were attributable to this rulemaking, EPA estimates that incremental 
costs attributable to this switching from iron filings to portland 
cement are less than one percent of industry revenues and six percent 
of industry profits and therefore would 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.
    As previously stated, EPA does not believe there are incremental 
costs associated with today's rule for TC hazardous metal contaminated 
soils except for TC hazardous metal contaminated soils that contain 
organic underlying hazardous constituents. EPA has evaluated the 
industries generating these TC metal organometallic soils and has 
determined that incremental costs from today's final rule do not impose 
a significant impact.
    Similarly, EPA has determined for MGP site clean ups that the 
economic impact of today's rule is not a significant impact. The 
estimated percentage of compliance costs to firm sales is less than 1 
percent.
    d. Individual Risk Estimate Results. The Agency has performed an 
individual risk analysis to estimate the quantifiable central tendency 
and high-end hypothetical individual risk for mineral processing 
secondary materials associated with today's final rule to be above 
levels of concern for cancer and noncancer risks for specific mineral 
processing streams in both groundwater and nongroundwater pathways. 
Results suggest that central tendency and high-end hypothetical 
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 results are linked primarily 
with mineral processing liquid secondary materials 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 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 
each pathway. This could result in overestimation in risks 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 of 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.
    As stated above the Agency's efforts to evaluate benefits for 
mineral processing secondary materials were limited to calculations for 
central tendency and high-end individual risk. However, due to data 
limitations, the Agency has been unable to evaluate additional more 
explicit risk-reduction benefits, including populations benefits. In 
general, the Agency's experience has been that it is unusual to predict 
high population risks, unless 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 \49\, 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.
---------------------------------------------------------------------------

    \49\ 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 Ecosytem Protection and Remediation, U.S.E.P.A, 
Region VIII to Michael Sahpiro, Director, Office of Solid Waste, 
U.S.E.P.A.
---------------------------------------------------------------------------

    For TC metals, because the analysis shows that many handlers of TC 
metal wastes are already meeting the universal treatment standards 
being promulgated

[[Page 28633]]

in today's rule, EPA does not believe that there are either incremental 
costs or benefits associated with stabilization of these wastes. 
However, for TC hazardous nonferrous foundry sands, the Agency has 
completed a risk screening for groundwater releases of lead and cadmium 
resulting from the disposal of untreated or poorly treated sands in 
municipal solid waste landfills. The results of the screen indicate 
that the probability the lead and cadmium would exceed the action level 
for lead of 0.015 mg/l or the drinking water standard for cadmium of 
0.005 mg/l for untreated foundry sands was approximately 9 percent for 
lead and 14 percent for cadmium. The risk results also showed that the 
probability for hazardous foundry sands treated to the universal 
treatment standard to exceed these standards were approximately 2 
percent for lead and 7 percent for cadmium. Because of data 
limitations, EPA is not able to demonstrate population benefits 
associated with effective treatment of foundry sands. These risk 
results do, however, document the intrinsic hazard of the sands and the 
need for effective treatment of these sands. However, as indicated 
above, EPA would attribute any public health benefits associated with 
decreasing lead and cadmium concentrations from foundry sands leachate 
to coming into compliance with existing regulations rather than 
promulgation of today's universal treatment standards.

B. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. Based on the following discussion, this final rule will 
not have a significant impact on a substantial number of small 
entities.
    With respect to mineral processing facilities that are small 
entities, EPA believes that today's final 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.
    As discussed above in the cost and economic impact section on TC 
metal wastes, EPA has determined that treating TC metal wastes will not 
result in incremental costs to the regulated community. As stated 
above, data from commercial treaters and generators of TC metal wastes 
indicate that the wastes are already treated to below UTS levels. 
Moreover, today's rule will not result in increased costs from 
incinerating TC metal wastes with organic underlying hazardous 
constituents. EPA's review of data from commercial hazardous wastes 
treatment facilities indicates that TC metal wastes with organic 
underlying hazardous constituents are not prevalent and when present 
would rarely require incineration.
    Finally, after the close of the public comment period, 
representatives of small business hazardous waste-derived fertilizer 
producers met with the Agency claiming economic hardship resulting from 
the Agency's proposed UTS for metal wastes. Under existing 40 CFR 
Sec. 266.20(b) commercial fertilizers sold for public use must meet 
treatment standards in order to be placed on the land. Currently all 
such hazardous waste fertilizers (except for K061-derived fertilizers) 
are subject to treatment standards for metals at the characteristic 
level. Based on available information, the Agency has found that out of 
10 secondary small business zinc fertilizer producers only two firms in 
the United States produce a hazardous waste-derived fertilizer, meet 
the definition of a small business and are subject to this today's 
rule. Considering a limited range of regulatory responses (such as 
switching from a hazardous to a non-hazardous source of zinc waste), 
EPA believes that only one of the two firms could potentially incur a 
significant economic impact. Because only one firm in this industry is 
potentially affected by today's rule, EPA does not consider this to be 
a substantial number of small entitities.
    Additionally, there are incremental costs estimated to result from 
today's rule to facilities undergoing remediation of TC metal 
contaminated soils and sediments with organic underlying hazardous 
constituents. EPA estimates that between 34 and 93 small entities would 
be impacted by these costs. Two firms out of the 93 identified as an 
upper bound estimate incurred estimated compliance costs that exceed 1 
percent of reported firm revenues. Therefore, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal Agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this rule does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either State, local, or tribal governments in the aggregate. The rule 
would not impose any federal intergovernmental mandate because it 
imposes no enforceable duty upon State, tribal or local governments. 
States, tribes and local governments would have no compliance costs 
under this rule. It is expected that states will adopt similar rules, 
and submit those rules for inclusion in their authorized RCRA programs, 
but they have no legally enforceable duty to do so. For the same 
reasons, EPA also has determined that this rule contains no regulatory

[[Page 28634]]

requirements that might significantly or uniquely affect small 
governments. In addition, as discussed above, the private sector is not 
expected to incur costs exceeding $100 million. EPA has fulfilled the 
requirement for analysis under the Unfunded Mandates Reform Act.

D. Paperwork Reduction Act

    The information collection requirements in this 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. EPA has 
prepared an Information Collection Request (ICR) document: 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, although they are less stringent than those 
previously required by the EPA, 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. 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.
    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 Agency has estimated the average information collection burden 
of this final Phase IV rule to the private sector and the government. 
The burden of this final rule to the private sector is approximately 
4,880 hours over three years, at a cost of $943,942. The burden to EPA 
is approximately 787 hours over three years, at a cost of $29,841. The 
term ``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; process and maintain 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.
    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.

XIII. 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 rule covers high-metal wastes (``TC metal wastes,'' 
hazardous mineral processing wastes, and mineral processing materials). 
The rule will possibly affect many facilities nationwide, with the 
potential for impacts to minority or low-income communities. Today's 
rule 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.

XIV. State Authority

A. Statutory Authority

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer and enforce the RCRA hazardous waste program within the 
State. Following authorization, EPA retains enforcement authority under 
sections 3008 (a)(2), 3013, and 7003 of RCRA, although authorized 
States have primary enforcement responsibility. The standards and 
requirements for authorization are found in 40 CFR Part 271.
    Prior to the Hazardous and Solid Waste Amendments of 1984 (HSWA), a 
State with final authorization administered its hazardous waste program 
in lieu of EPA administering the Federal program in that State. The 
Federal requirements no longer applied in the authorized State, and EPA 
could not issue permits for any facilities that the State was 
authorized to permit. When new, more stringent Federal requirements 
were promulgated or enacted, the State was obliged to enact equivalent 
authority within specified time frames. New Federal requirements did 
not take effect in an authorized State until the State adopted the 
requirements as State law.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)) new 
requirements and prohibitions imposed by HSWA take effect in authorized 
States at the same time that they take effect in unauthorized States. 
Although States are still required to update their hazardous waste 
programs, EPA is directed to carry out the HSWA requirements and 
prohibitions in authorized States, including the issuance of permits, 
until the State is granted authorization.
    Authorized States are required to modify their programs only when 
EPA promulgates Federal requirements that are more stringent or broader 
in scope than existing Federal requirements. RCRA section 3009 allows 
the States to impose standards more stringent than those in the Federal 
program. See also 40 CFR 271.1(i). Therefore, authorized States can, 
but do not have to, adopt Federal regulations, both HSWA and non-HSWA, 
that are considered less stringent. Less stringent regulations, 
promulgated under both HSWA and non-HSWA authority, do not go into 
effect in authorized States until those States adopt them and are 
authorized to implement them.

B. Effect on State Authorization

    Today's rule is promulgated in part pursuant to non-HSWA authority, 
and in part pursuant to HSWA. The more stringent HSWA portions of this 
rule will become effective at the same time in all states. The new LDR 
treatment standards for metal-bearing and mineral processing wastes are 
being promulgated pursuant to section 3004 (g)(4) and (m), provisions 
added by HSWA. (Note, however, that the treatment standards, even 
though they are promulgated pursuant to HSWA, will not apply to mineral 
processing wastes unless the wastes are currently included in the 
authorized State's

[[Page 28635]]

definition of solid waste.) The application of the TCLP to mineral 
processing wastes likewise implements a HSWA provision, section 
3001(g). These requirements are being added to Table 1 in 40 CFR 
271.1(j), which identifies the Federal program requirements that are 
promulgated pursuant to HSWA, and would take effect in all States, 
regardless of authorization status. States may apply for final or 
interim authorization for the HSWA provisions in Table 1, as discussed 
in the following section of this preamble. Table 2 in 40 CFR 271.1(j) 
is also modified to indicate those provisions of this rule that are 
self-implementing provisions of HSWA. Note that there are other HSWA 
provisions that are not more stringent than the current program, such 
as the revisions to certain of the existing LDR treatment standards. 
These would not be implemented by EPA in those states authorized for 
the existing provisions prior to a State being authorized for them. 
These provisions are further discussed below.
    Today's rule contains provisions, both under HSWA and non-HSWA 
authority, that are less stringent than the current Federal program. 
First is the non-HSWA provision which would allow mineral processing 
spent materials being reclaimed within the mineral processing industry 
sector, or in beneficiation processes, to be excluded from the 
definition of solid waste. This provision can be adopted at the States' 
option, although EPA strongly encourages States to adopt this 
provision. As stated earlier in the preamble, part of the purpose of 
this rule is to eliminate distinctions among reclaimed spent materials, 
by-products, and sludges within this industry. This change, in 
combination with the conditioned exclusion for the reclaimed byproducts 
and sludges, will result in more control over land-based mineral 
processing units than exists presently, encourage additional material 
recovery within the industry, properly control land-based storage of 
mineral processing industry secondary materials awaiting intra-industry 
recovery, and also simplify the solid waste regulatory classification 
scheme. In addition, State adoption of these provisions will provide 
national consistency.
    Similarly, another less stringent non-HSWA provision in this rule 
excludes from RCRA regulation certain recycled wood preserving 
wastewaters and spent wood preserving solutions. The exclusion will not 
be effective in authorized States until they amend their regulations 
and received authorization. Although the States do not have to adopt 
these provisions, EPA strongly encourage them to do so, because the 
exclusion encourages properly conducted material recovery in the wood 
preserving industry.
    Last, the treatment standards for soil contaminated with hazardous 
waste (and the associated site-specific risk based variance provision 
for contaminated soils), promulgated under HSWA, are less stringent 
than the existing treatment standards. Although the authority for these 
standards is under HSWA, EPA will not implement them in those States 
that are authorized for the existing standards because they are less 
stringent. EPA will implement them in those States that are 
unauthorized for the applicable existing treatment standards. However, 
EPA strongly encourages States to seek authorization for these 
standards in order to encourage and speed up cleanups of contaminated 
sites based on remedies involving treatment of contaminated soils, thus 
providing more permanent remedial solutions.
    Some of today's regulatory amendments are neither more or less 
stringent than the existing Federal requirements. These are the 
revisions to the existing UTS numbers. EPA clarified in a December 19, 
1994, memorandum (which is in the docket for today's rule) that EPA 
would not implement the Universal Treatment Standards (promulgated 
under HSWA authority in the Phase II LDR rule) separately for those 
States for which the State has received LDR authorization. EPA views 
changes from the existing limits to be neither more or less stringent 
since the technology basis of the standards has not changed. 
Accordingly, EPA will not implement today's amendments to the UTS in 
those States with authorization for the treatment standards.
    Today's rule also clarifies the scrap metal exemption from solid 
waste as it applies to whole circuit boards. This part of the preamble 
simply clarifies the Agency's interpretation of the existing rules. If 
authorized for the scrap metal exemption, States do not need further 
authorization to interpret their rules in conformity with this 
interpretation.

C. Authorization Procedures

    Because portions of today's rule are promulgated pursuant to HSWA, 
a State submitting a program modification for those portions may apply 
to receive interim authorization under RCRA section 3006(g)(2) or final 
authorization under RCRA section 3006(b), on the basis of requirements 
that are, respectively, substantially equivalent or equivalent to 
EPA's. For program modifications for the non-HSWA portions of this 
rule, States can received final authorization only. The procedures and 
schedule for final authorization of State program modifications are 
described in 40 CFR 271.21. It should be noted that all HSWA interim 
authorizations will expire January 1, 2003. (See 40 CFR 271.24(c) and 
57 FR 60132, December 18, 1992.)
    Section 271.21(e)(2) requires that States with final authorization 
modify their programs to reflect Federal program changes and 
subsequently submit the modification to EPA for approval. The deadline 
by which the State would have to modify its program to adopt these 
regulations is specified in section 271.21(e). This deadline can be 
extended in certain cases (see section 271.21(e)(3)). Once EPA approves 
the modification, the State requirements become Subtitle C RCRA 
requirements.
    States with authorized RCRA programs may already have requirements 
similar to those in today's rule. These State regulations have not been 
assessed against the Federal regulations being promulgated 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.

D. Streamlined Authorization Procedures

    It is EPA's policy to provide as much flexibility as possible to 
encourage States to become authorized for rules under the hazardous 
waste program. EPA discussed an expedited authorization approach in the 
proposed Phase IV LDR rule (60 FR 43688, August 22, 1995), and the 
supplemental proposal (61 FR 2338, January 25, 1996). EPA also 
discussed streamlined authorization procedures in a more comprehensive 
fashion in the proposed HWIR-media rule (61 FR 18780, April 29, 1996). 
This expedited approach would apply to those minor or routine changes 
to the existing program that do not expand the scope of the program in 
significant ways, and was called Category 1. EPA has decided to address 
this proposed authorization procedure in the upcoming HWIR-Media rule 
rather than here, so that the expedited authorization approaches can be 
dealt with in a comprehensive manner.

[[Page 28636]]

XV. Submission to Congress and General Accounting Office

    The Congressional Review Act, 5 U.S.C. Sec. 801 et seq., as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. This rule is 
not a ``major rule'' as defined by 5 U.S.C. Sec. 804(2).

XVI. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks

    Executive Order 13045: The Executive Order 13045 applies to any 
rule that EPA determines (1) ``economically significant'' as defined 
under Executive Order 12866, and (2) the environmental health or safety 
risk addressed by the rule has a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This final rule is not subject to E.O. 13045, entitled ``Protection 
of Children from Environmental Health Risks and Safety Risks 
(62FR19885, April 23, 1997), because this is not an economically 
significant regulatory action as defined by E.O. 12866.

XVII. National Technology Transfer and Advancement Act

    Under Sec. 12(d) of the National Technology Transfer and 
Advancement Act, the Agency is directed to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, business practices, 
etc.) that are developed or adopted by voluntary consensus standard 
bodies. Where available and potentially applicable voluntary consensus 
standards are not used by EPA, the Act requires the Agency to provide 
Congress, through the Office of Management and Budget, an explanation 
of the reasons for not using such standards.
    EPA is not proposing any new test methods or other technical 
standards as part of today's final rule. Thus, the Agency has no need 
to consider the use of voluntary consensus standards in developing this 
proposed rule.

List of Subjects

40 CFR Part 148

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

40 CFR Part 261

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

40 CFR Part 266

    Energy, Hazardous waste, Recycling, Reporting and recordkeeping 
requirements.

40 CFR Part 268

    Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 271

    Administrative practice and procedure, Hazardous materials 
transportation, Hazardous waste, Penalties, Reporting and recordkeeping 
requirements.

    Dated: April 30, 1998.
Carol M. Browner,
Administrator.

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

PART 148--HAZARDOUS WASTE INJECTION RESTRICTIONS

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

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

    2. Section 148.18 is amended by redesignating paragraphs (a) 
through (f) as (c) through (h) respectively, and by adding paragraphs 
(a) and (b) to read as follows:


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

    (a) Effective August 24, 1998, all newly identified D004-D011 
wastes and characteristic mineral processing wastes, except those 
identified in paragraph (b) of this section, are prohibited from 
underground injection.
    (b) Effective May 26, 2000, characteristic hazardous wastes from 
titanium dioxide mineral processing, and radioactive wastes mixed with 
newly identified D004-D011 or mixed with newly identified 
characteristic mineral processing 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 is amended by revising Table 1 in paragraph 
(c)(4), paragraph (c)(3) and (e)(1)(iii) 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 (except as provided under 40 CFR 
261.4(a)(15)). Materials noted with a ``--'' in column 3 of Table 1 are 
not solid wastes when reclaimed (except as provided under 40 CFR 
261.4(a)(15)).
* * * * *
    (4) * * *

[[Page 28637]]



                                                     Table 1                                                    
----------------------------------------------------------------------------------------------------------------
                                                                           Reclamation (Sec.                    
                                                                             261.2(c)(3))                       
                                                                              (except as                        
                                   Use constituting    Energy recovery/       provided in         Speculative   
                                    disposal (Sec.        fuel (Sec.       261.4(a)(15) for   accumulation (Sec.
                                     261.2(c)(1))        261.2(c)(2))     mineral processing      261.2(c)(4))  
                                                                               secondary                        
                                                                              materials)                        
----------------------------------------------------------------------------------------------------------------
                                               1                   2                   3                   4    
----------------------------------------------------------------------------------------------------------------
Spent Materials.................             (*)                 (*)                 (*)                 (*)    
Sludges (listed in 40 CFR Part                                                                                  
 261.31 or 261.32...............             (*)                 (*)                 (*)                 (*)    
Sludges exhibiting a                                                                                            
 characteristic of hazardous                                                                                    
 waste..........................             (*)                 (*)                  --                 (*)    
By-products (listed in 40 CFR                                                                                   
 261.31 or 261.32)..............             (*)                 (*)                 (*)                 (*)    
By-products exhibiting a                                                                                        
 characteristic of hazardous                                                                                    
 waste..........................             (*)                 (*)                  --                 (*)    
Commercial chemical products                                                                                    
 listed in 40 CFR 261.33........             (*)                 (*)                  --                  --    
Scrap metal other than excluded                                                                                 
 scrap metal (see 261.1(c)(9))..             (*)                 (*)                 (*)                 (*)    
----------------------------------------------------------------------------------------------------------------
Note: The terms ``spent materials,'' ``sludges,'' ``by-products,'' and ``scrap metal'' and ``processed scrap    
  metal'' are defined in Sec.  261.1.                                                                           

* * * * *
    (e) * * *
    (1) * * *
    (iii) In cases where the materials are generated and reclaimed 
within the primary mineral processing industry, the conditions of the 
exclusion found at Sec. 261.4(a)(15) apply rather than this provision.
* * * * *
    5. Section 261.3 is amended by revising paragraphs (a)(2)(i) and 
(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 of this part. However, any mixture of a waste 
from the extraction, beneficiation, and processing of ores and minerals 
excluded under Sec. 261.4(b)(7) and any other solid waste exhibiting a 
characteristic of hazardous waste under subpart C is a hazardous waste 
only if it exhibits a characteristic that would not have been exhibited 
by the excluded waste alone if such mixture had not occurred, or if it 
continues to exhibit any of the characteristics exhibited by the non-
excluded wastes prior to mixture. Further, for the purposes of applying 
the Toxicity Characteristic to such mixtures, the mixture is also a 
hazardous waste if it exceeds the maximum concentration for any 
contaminant listed in table I to Sec. 261.24 that would not have been 
exceeded by the excluded waste alone if the mixture had not occurred or 
if it continues to exceed the maximum concentration for any contaminant 
exceeded by the nonexempt waste prior to mixture.
* * * * *
    (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, unless the resultant mixture no longer exhibits any 
characteristic of hazardous waste identified in subpart C of this part, 
or unless the solid waste is excluded from regulation under 
Sec. 261.4(b)(7) and the resultant mixture no longer exhibits any 
characteristic of hazardous waste identified in subpart C of this part 
for which the hazardous waste listed in subpart D of this part was 
listed. (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) and 
(a)(16) and by revising paragraph (b)(7) to read as follows:


Sec. 261.4  Exclusions.

    (a) * * *
    (9) * * *
    (iii) Prior to reuse, the wood preserving wastewaters and spent 
wood preserving solutions described in paragraphs (a)(9)(i) and 
(a)(9)(ii) of this section, so long as they meet all of the following 
conditions:
    (A) The wood preserving wastewaters and spent wood preserving 
solutions are reused on-site at water borne plants in the production 
process for their original intended purpose;
    (B) Prior to reuse, the wastewaters and spent wood preserving 
solutions are managed to prevent release to either land or groundwater 
or both;
    (C) Any unit used to manage wastewaters and/or spent wood 
preserving solutions prior to reuse can be visually or otherwise 
determined to prevent such releases;
    (D) Any drip pad used to manage the wastewaters and/or spent wood 
preserving solutions prior to reuse complies with the standards in part 
265, subpart W of this chapter, regardless of whether the plant 
generates a total of less than 100 kg/month of hazardous waste; and
    (E) Prior to operating pursuant to this exclusion, the plant owner 
or operator submits to the appropriate Regional Administrator or State 
Director a one-time notification stating that the plant intends to 
claim the exclusion, giving the date on which the plant intends to 
begin operating under the exclusion, and containing the following 
language: ``I have read the applicable regulation establishing an 
exclusion for wood preserving wastewaters and spent wood preserving 
solutions and understand it requires me to comply at all times with the 
conditions set out in the regulation.'' The plant must maintain a copy 
of that document in its on-site records for a period of no less than 3 
years from the date specified in the notice. The exclusion applies only 
so long as the plant meets all of the conditions. If the plant goes out 
of compliance with any condition, it may apply to the appropriate 
Regional Administrator or State Director for reinstatement. The 
Regional Administrator or State Director may reinstate the exclusion 
upon finding that the plant has returned to compliance with all 
conditions and that violations are not likely to recur.
* * * * *
    (16) Secondary materials (i.e., sludges, by-products, and spent 
materials as defined in Sec. 261.1) (other than

[[Page 28638]]

hazardous wastes listed in subpart D of this part) generated within the 
primary mineral processing industry from which minerals, acids, 
cyanide, water or other values are recovered by mineral processing, 
provided that:
    (i) The secondary material is legitimately recycled to recover 
minerals, acids, cyanide, water or other values;
    (ii) The secondary material is not accumulated speculatively;
    (iii) Except as provided in paragraph (a)(15)(iv) of this section, 
the secondary material is stored in tanks, containers, or buildings 
meeting the following minimum integrity standards: a building must be 
an engineered structure with a floor, walls, and a roof all of which 
are made of non-earthen materials providing structural support (except 
smelter buildings may have partially earthen floors provided the 
secondary material is stored on the non-earthen portion), and have a 
roof suitable for diverting rainwater away from the foundation; a tank 
must be free standing, not be a surface impoundment (as defined in 40 
CFR 260.10), and be manufactured of a material suitable for containment 
of its contents; a container must be free standing and be manufactured 
of a material suitable for containment of its contents. If tanks or 
containers contain any particulate which may be subject to wind 
dispersal, the owner/operator must operate these units in a manner 
which controls fugitive dust. Tanks, containers, and buildings must be 
designed, constructed and operated to prevent significant releases to 
the environment of these materials.
    (iv) The Regional Administrator or the State Director may make a 
site-specific determination, after public review and comment, that only 
solid mineral processing secondary materials may be placed on pads, 
rather than in tanks, containers, or buildings. Solid mineral 
processing secondary materials do not contain any free liquid. The 
decision-maker must affirm that pads are designed, constructed and 
operated to prevent significant releases of the secondary material into 
the environment. Pads must provide the same degree of containment 
afforded by the non-RCRA tanks, containers and buildings eligible for 
exclusion.
    (A) The decision-maker must also consider if storage on pads poses 
the potential for significant releases via groundwater, surface water, 
and air exposure pathways. Factors to be considered for assessing the 
groundwater, surface water, air exposure pathways are: the volume and 
physical and chemical properties of the secondary material, including 
its potential for migration off the pad; the potential for human or 
environmental exposure to hazardous constituents migrating from the pad 
via each exposure pathway, and the possibility and extent of harm to 
human and environmental receptors via each exposure pathway.
    (B) Pads must meet the following minimum standards: be designed of 
non-earthen material that is compatible with the chemical nature of the 
mineral processing secondary material, capable of withstanding physical 
stresses associated with placement and removal, have run on/runoff 
controls, be operated in a manner which controls fugitive dust, and 
have integrity assurance through inspections and maintenance programs.
    (C) Before making a determination under this paragraph, the 
Regional Administrator or State Director must provide notice and the 
opportunity for comment to all persons potentially interested in the 
determination. This can be accomplished by placing notice of this 
action in major local newspapers, or broadcasting notice over local 
radio stations.
    (v) 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; the type and location of the 
storage units and recycling processes; and the annual quantities 
expected to be placed in land-based units. This notification must be 
updated when there is a change in the type of materials recycled or the 
location of the recycling process.
    (vi) For purposes of Sec. 261.4(b)(7), mineral processing secondary 
materials must be the result of mineral processing and may not include 
any listed hazardous wastes. Listed hazardous wastes and characteristic 
hazardous wastes generated by non-mineral processing industries are not 
eligible for the conditional exclusion from the definition of solid 
waste.
    (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.
    (i) For purposes of Sec. 261.4(b)(7) beneficiation of ores and 
minerals is restricted to the following activities; 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 
and/or chlorination)/leaching 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.
    (ii) For the purposes of Sec. 261.4(b)(7), solid waste from the 
processing of ores and minerals includes only the following wastes as 
generated:
    (A) Slag from primary copper processing;
    (B) Slag from primary lead processing;
    (C) Red and brown muds from bauxite refining;
    (D) Phosphogypsum from phosphoric acid production;
    (E) Slag from elemental phosphorus production;
    (F) Gasifier ash from coal gasification;
    (G) Process wastewater from coal gasification;
    (H) Calcium sulfate wastewater treatment plant sludge from primary 
copper processing;
    (I) Slag tailings from primary copper processing;
    (J) Fluorogypsum from hydrofluoric acid production;
    (K) Process wastewater from hydrofluoric acid production;
    (L) Air pollution control dust/sludge from iron blast furnaces;
    (M) Iron blast furnace slag;
    (N) Treated residue from roasting/leaching of chrome ore;
    (O) Process wastewater from primary magnesium processing by the 
anhydrous process;
    (P) Process wastewater from phosphoric acid production;
    (Q) Basic oxygen furnace and open hearth furnace air pollution 
control dust/sludge from carbon steel production;
    (R) Basic oxygen furnace and open hearth furnace slag from carbon 
steel production;
    (S ) Chloride process waste solids from titanium tetrachloride 
production;
    (T) Slag from primary zinc processing.
    (iii) A residue derived from co-processing mineral processing 
secondary materials with normal beneficiation raw materials remains 
excluded under paragraph (b) of this section if the owner or operator:
    (A) Processes at least 50 percent by weight normal beneficiation 
raw materials; and,
    (B) Legitimately reclaims the secondary mineral processing 
materials.
* * * * *

[[Page 28639]]

PART 268--LAND DISPOSAL RESTRICTIONS

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

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

    8. Section 268.2 is amended by revising paragraph (i) and adding 
paragraph (k) to read as follows:


Sec. 268.2  Definitions applicable in this part.

* * * * *
    (i) Underlying hazardous constituent means any constituent listed 
in Sec. 268.48, Table UTS--Universal Treatment Standards, except 
fluoride, selenium, sulfides, vanadium, and zinc, which can reasonably 
be expected to be present at the point of generation of the hazardous 
waste at a concentration above the constituent-specific UTS treatment 
standards.
* * * * *
    (k) Soil means unconsolidated earth material composing the 
superficial geologic strata (material overlying bedrock), consisting of 
clay, silt, sand, or gravel size particles as classified by the U.S. 
Soil Conservation Service, or a mixture of such materials with liquids, 
sludges or solids which is inseparable by simple mechanical removal 
processes and is made up primarily of soil by volume based on visual 
inspection.
    9. Section 268.3 is amended by adding paragraph (d) to read as 
follows:


Sec. 268.3  Dilution prohibited as a substitute for treatment.

* * * * *
    (d) It is a form of impermissible dilution, and therefore 
prohibited, to add iron filings or other metallic forms of iron to 
lead-containing hazardous wastes in order to achieve any land disposal 
restriction treatment standard for lead. Lead-containing wastes include 
D008 wastes (wastes exhibiting a characteristic due to the presence of 
lead), all characteristic wastes containing lead as an underlying 
hazardous constituent, listed wastes containing lead as a regulated 
constitutent, and hazardous media containing any of the aforementioned 
lead-containing wastes.
    10. Section 268.4 is amended by revising paragraphs (a)(2)(ii) and 
(a)(2)(iii) to read as follows:


Sec. 268.4  Treatment surface impoundment exemption.

    (a) * * *
    (2) * * *
    (ii) Removal. The following treatment residues (including any 
liquid waste) must be removed at least annually; residues which do not 
meet the treatment standards promulgated under subpart D of this part; 
residues which do not meet the prohibition levels established under 
subpart C of this part or imposed by statute (where no treatment 
standards have been established); residues which are from the treatment 
of wastes prohibited from land disposal under subpart C of this part 
(where no treatment standards have been established and no prohibition 
levels apply); or residues from managing listed wastes which are not 
delisted under Sec. 260.22 of this chapter. If the volume of liquid 
flowing through the impoundment or series of impoundments annually is 
greater than the volume of the impoundment or impoundments, this flow-
through constitutes removal of the supernatant for the purpose of this 
requirement.
    (iii) Subsequent management. Treatment residues may not be placed 
in any other surface impoundment for subsequent management.
* * * * *
    11. Section 268.7 is amended by revising paragraphs (a)(1), 
(a)(3)(ii), (a)(7), (b)(1), (b)(2), (b)(5) and (b)(6); by revising the 
first sentence of the paragraphs (a)(2), (a)(3) introductory text, 
(a)(4), (a)(5) introductory text, (a)(6), and (b)(3) introductory text; 
by adding paragraph (a)(2)(i) and three sentences to the end of 
paragraph (b)(4) introductory text and adding paragraphs (b)(4)(iv), 
(b)(4)(v), and (e) and adding and reserving paragraph (a)(2)(ii); and 
by revising entries 1 and 3, designating entry 8 as 9, and adding entry 
8 in the table entitled ``Generator Paperwork Requirements Table'' in 
paragraph (a)(4), and by revising entries 1 and 2 designating entry 5 
as 6, and adding entry 5 in the table entitled ``Treatment Facility 
Paperwork Requirements Table'' in paragraph (b)(3)(ii) to read as 
follows:


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

    (a) * * *
    (1) A generator of hazardous waste must determine if the waste has 
to be treated before it can be land disposed. This is done by 
determining if the hazardous waste meets the treatment standards in 
Sec. 268.40, Sec. 268.45, or Sec. 268.49. This determination can be 
made in either of two ways: testing the waste or using knowledge of the 
waste. If the generator tests the waste, testing would normally 
determine the total concentration of hazardous constituents, or the 
concentration of hazardous constituents in an extract of the waste 
obtained using test method 1311 in ``Test Methods of Evaluating Solid 
Waste, Physical/Chemical Methods,'' EPA Publication SW-846, as 
referenced in Sec. 260.11 of this chapter, depending on whether the 
treatment standard for the waste is expressed as a total concentration 
or concentration of hazardous constituent in the waste's extract. In 
addition, some hazardous wastes must be treated by particular treatment 
methods before they can be land disposed and some soils are 
contaminated by such hazardous wastes. These treatment standards are 
also found in Sec. 268.40, and are described in detail in Sec. 268.42, 
Table 1. These wastes, and soils contaminated with such wastes, do not 
need to be tested (however, if they are in a waste mixture, other 
wastes with concentration level treatment standards would have to be 
tested). If a generator determines they are managing a waste or soil 
contaminated with a waste, that displays a hazardous characteristic of 
ignitability, corrosivity, reactivity, or toxicity, they must comply 
with the special requirements of Sec. 268.9 of this part in addition to 
any applicable requirements in this section.
    (2) If the waste or contaminated soil does not meet the treatment 
standard: With the initial shipment of waste to each treatment or 
storage facility, the generator must send a one-time written notice to 
each treatment or storage facility receiving the waste, and place a 
copy in the file. * * *
    (i) For contaminated soil, the following certification statement 
should be included, signed by an authorized representative:
    I certify under penalty of law that I personally have examined this 
contaminated soil and it [does/does not] contain listed hazardous waste 
and [does/does not] exhibit a characteristic of hazardous waste and 
requires treatment to meet the soil treatment standards as provided by 
268.49(c).
    (ii) [Reserved]
    (3) If the waste or contaminated soil meets the treatment standard 
at the original point of generation:
* * * * *
    (ii) For contaminated soil, with the initial shipment of wastes to 
each treatment, storage, or disposal facility, the generator must send 
a one-time written notice to each facility receiving the waste and 
place a copy in the file. The notice must include the information in 
``268.7(a)(3) of the Generator Paperwork Requirements Table in 
Sec. 268.7(a)(4).
    (4) For reporting, tracking, and recordkeeping when exceptions 
allow certain wastes or contaminated soil that

[[Page 28640]]

do not meet the treatment standards to be land disposed: There are 
certain exemptions from the requirement that hazardous wastes or 
contaminated soil meet treatment standards before they can be land 
disposed. * * *
* * * * *

                                     Generator Paperwork Requirements Table                                     
----------------------------------------------------------------------------------------------------------------
                                                           Sec.  268.7   Sec.  268.7   Sec.  268.7   Sec.  268.7
                  Required information                       (a)(2)        (a)(3)        (a)(4)        (a)(9)   
----------------------------------------------------------------------------------------------------------------
1. EPA Hazardous Waste Numbers and Manifest Number of                                                           
 first shipment.                                                                                                
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
3. The waste is subject to the LDRs. The constituents of                                                        
 concern for F001-F005, and F039, and underlying                                                                
 hazardous constituents in characteristic wastes, unless                                                        
 the waste will be treated and monitored for all                                                                
 constituents. If all constituents will be treated and                                                          
 monitored, there is no need to put them all on the LDR                                                         
 notice.................................................         ............  ............  ............
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
8. For contaminated soil subject to LDRs as provided in                                                         
 268.49(a), the constituents subject to treatment as                                                            
 described in 268.49(d), and the following statement:                                                           
 This contaminated soil [does/does not] contain listed                                                          
 hazardous waste and [does/does not] exhibit a                                                                  
 characteristic of hazardous waste and [is subject to/                                                          
 complies with' the soil treatment standards as provided                                                        
 by 268.49(c) or the universal treatment standards......         ............  ............  ............
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------

    (5) If a generator is managing and treating prohibited waste or 
contaminated soil in tanks, containers, or containment buildings 
regulated under 40 CFR 262.34 to meet applicable LDR treatment 
standards found at Sec. 268.40, the generator must develop and follow a 
written waste analysis plan which describes the procedures they will 
carry out to comply with the treatment standards. * * *
* * * * *
    (6) If a generator determines that the waste or contaminated soil 
is restricted based solely on his knowledge of the waste, all 
supporting data used to make this determination must be retained on-
site in the generator's files. * * *
    (7) If a generator determines that he is managing a prohibited 
waste that is excluded from the definition of hazardous or solid waste 
or is exempted from Subtitle C regulation under 40 CFR 261.2 through 
261.6 subsequent to the point of generation (including deactivated 
characteristic hazardous wastes managed in wastewater treatment systems 
subject to the Clean Water Act (CWA) as specified at 40 CFR 261.4(a)(2) 
or that are CWA-equivalent, or are managed in an underground injection 
well regulated by the SDWA), he must place a one-time notice describing 
such generation, subsequent exclusion from the definition of hazardous 
or solid waste or exemption from RCRA Subtitle C regulation, and the 
disposition of the waste, in the facility's on-site files.
* * * * *
    (b) * * *
    (1) For wastes or contaminated soil with treatment standards 
expressed in the waste extract (TCLP), the owner or operator of the 
treatment facility must test an extract of the treatment residues, 
using test method 1311 (the Toxicity Characteristic Leaching Procedure, 
described in ``Test Methods for Evaluating Solid Waste, Physical/
Chemical Methods,'' EPA Publication SW-846 as incorporated by reference 
in Sec. 260.11 of this chapter) to assure that the treatment residues 
extract meet the applicable treatment standards.
    (2) For wastes or contaminated soil with treatment standards 
expressed as concentrations in the waste, the owner or operator of the 
treatment facility must test the treatment residues (not an extract of 
such residues) to assure that they meet the applicable treatment 
standards.
    (3) A one-time notice must be sent with the initial shipment of 
waste or contaminated soil to the land disposal facility. * * *
* * * * *
    (ii) * * *

             Treatment Facility Paperwork Requirements Table            
------------------------------------------------------------------------
                   Required information                         Sec.    
--------------------------------------------------------------268.7(b)--
1. EPA Hazardous Waste Numbers and Manifest Number of                   
 first shipment.                                                        
2. The waste is subject to the LDRs. The constituents of                
 concern for F001-F005, and F039, and underlying                        
 hazardous constituents in characteristic wastes, unless                
 the waste will be treated and monitored for all                        
 constituents. If all constituents will be treated and                  
 monitored, there is no need to put them all on the LDR                 
 notice..................................................        
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
5. For contaminated soil subject to LDRs as provided in                 
 268.49(a), the constituents subject to treatment as                    
 described in 268.49(d) and the following statement,                    
 ``this contaminated soil [does/does not] contain listed                
 hazardous waste and [does/does not] exhibit                            
 acharacteristic of hazardous waste and [is subject to/                 
 complies with] the soil treatment standards as provided                
 by 268.49(c)............................................        
*                  *                  *                  *              
                  *                  *                  *               
------------------------------------------------------------------------

    (4) * * * A certification is also necessary for contaminated soil 
and it must state:

    I certify under penalty of law that I have personally examined 
and am familiar with the treatment technology and operation of the 
treatment process used to support this certification and believe 
that it has been maintained and operated properly so as to

[[Page 28641]]

comply with treatment standards specified in 40 CFR 268.49 without 
impermissible dilution of the prohibited wastes. I am aware there 
are significant penalties for submitting a false certification, 
including the possibility of fine and imprisonment.
* * * * *
    (iv) For characteristic wastes that are subject to the treatment 
standards in Sec. 268.40 (other than those expressed as a required 
method of treatment) that are reasonably expected to contain underlying 
hazardous constituents as defined in Sec. 268.2(i); are treated on-site 
to remove the hazardous characteristic; and are then sent off-site for 
treatment of underlying hazardous constituents, the certification must 
state the following:

    I certify under penalty of law that the waste has been treated 
in accordance with the requirements of 40 CFR 268.40 to remove the 
hazardous characteristic. This decharacterized waste contains 
underlying hazardous constituents that require further treatment to 
meet universal treatment standards. I am aware that there are 
significant penalties for submitting a false certification, 
including the possibility of fine and imprisonment.

    (v) For characteristic wastes that contain underlying hazardous 
constituents as defined Sec. 268.2(i) that are treated on-site to 
remove the hazardous characteristic to treat underlying hazardous 
constituents to levels in Sec. 268.48 Universal Treatment Standards, 
the certification must state the following:

    I certify under penalty of law that the waste has been treated 
in accordance with the requirements of 40 CFR 268.40 to remove the 
hazardous characteristic and that underlying hazardous constituents, 
as defined in Sec. 268.2(i) have been treated on-site to meet the 
Sec. 268.48 Universal Treatment Standards. I am aware that there are 
significant penalties for submitting a false certification, 
including the possibility of fine and imprisonment.

    (5) If the waste or treatment residue will be further managed at a 
different treatment, storage, or disposal facility, the treatment, 
storage, or disposal facility sending the waste or treatment residue 
off-site must comply with the notice and certification requirements 
applicable to generators under this section.
    (6) Where the wastes are recyclable materials used in a manner 
constituting disposal subject to the provisions of Sec. 268.20(b) 
regarding treatment standards and prohibition levels, the owner or 
operator of a treatment facility (i.e., the recycler) is not required 
to notify the receiving facility, pursuant to paragraph (b)(3) of this 
section. With each shipment of such wastes the owner or operator of the 
recycling facility must submit a certification described in paragraph 
(b)(4) of this section, and a notice which includes the information 
listed in paragraph (b)(3) of this section (except the manifest number) 
to the Regional Administrator, or his delegated representative. The 
recycling facility also must keep records of the name and location of 
each entity receiving the hazardous waste-derived product.
* * * * *
    (e) Generators and treaters who first receive from EPA or an 
authorized state a determination that a given contaminated soil subject 
to LDRs as provided in Sec. 268.49(a) no longer contains a listed 
hazardous waste and generators and treaters who first determine that a 
contaminated soil subject to LDRs as provided in Sec. 268.49(a) no 
longer exhibits a characteristic of hazardous waste must:
    (1) Prepare a one-time only documentation of these determinations 
including all supporting information; and,
    (2) Maintain that information in the facility files and other 
records for a minimum of three years.

Subpart C--Prohibitions on Land Disposal

    12. Section Sec. 268.34 is revised to read as follows:


Sec. 268.34  Waste specific prohibitions--toxicity characteristic metal 
wastes.

    (a) Effective August 24, 1998, the following wastes are prohibited 
from land disposal: the wastes specified in 40 CFR Part 261 as EPA 
Hazardous Waste numbers D004--D011 that are newly identified (i.e. 
wastes, soil, or debris identified as hazardous by the Toxic 
Characteristic Leaching Procedure but not the Extraction Procedure), 
and waste, soil, or debris from mineral processing operations that is 
identified as hazardous by the specifications at 40 CFR Part 261.
    (b) Effective May 26, 2000, the following wastes are prohibited 
from land disposal: newly identified characteristic wastes from 
elemental phosphorus processing; radioactive wastes mixed with EPA 
Hazardous wastes D004--D011 that are newly identified (i.e. wastes, 
soil, or debris identified as hazardous by the Toxic Characteristic 
Leaching Procedure but not the Extraction Procedure); or mixed with 
newly identified characteristic mineral processing wastes, soil, or 
debris.
    (c) Between May 26, 1998 and May 26, 2000, newly identified 
characteristic wastes from elemental phosphorus processing, radioactive 
waste mixed with D004--D011 wastes that are newly identified (i.e. 
wastes, soil, or debris identified as hazardous by the Toxic 
Characteristic Leaching Procedure but not the Extraction Procedure), or 
mixed with newly identified characteristic mineral processing wastes, 
soil, or debris 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

    13. Section 268.40 is amended by revising paragraph (e), adding 
paragraph (h), and revising the Table of Treatment Standards 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 28642]]

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 Universal Treatment Standards, prior to land 
disposal as defined in Sec. 268.2(c) of this part.
* * * * *
    (h) Prohibited D004-D011 mixed radioactive wastes and mixed 
radioactive listed wastes containing metal constituents, that were 
previously treated by stabilization to the treatment standards in 
effect at that time and then put into storage, do not have to be re-
treated to meet treatment standards in this section prior to land 
disposal.

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Footnotes to Treatment Standard Table 268.40

    \1\ The waste descriptions provided in this table do not replace 
waste descriptions in 40 CFR 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 40 CFR 
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 40 CFR 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 Sec. 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 technology 
code CMBST at Sec. 268.42 Table 1 of this Part, for nonwastewaters; 
and, biodegradation as definded by the technology 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 technology 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).

    14. Section 268.42 is amended by revising the introductory text of 
paragraph (a) and removing paragraphs (a)(1), (a)(2), and (a)(3) to 
read as follows:


Sec. 268.42  Treatment standards expressed as specified technologies.

    (a) The following wastes in the table in Sec. 268.40 ``Treatment 
Standards for Hazardous Wastes,'' for which standards are expressed as 
a treatment method rather than a concentration level, must be treated 
using the technology or technologies specified in the table entitled 
``Technology Codes and Description of Technology-Based Standards'' in 
this section.
* * * * *
    15. Section 268.44 is amended by redesignating paragraph (h)(3) as 
(h)(5), and adding new paragraphs (h) (3) and (4) to read as follows:


Sec. 268.44  Variance from a treatment standard.

* * * * *
    (h) * * *
    (3) For contaminated soil only, treatment to the level or by the 
method specified in the soil treatment standards would result in 
concentrations of hazardous constituents that are below (i.e., lower 
than) the concentrations necessary to minimize short- and long-term 
threats to human health and the environment. Treatment variances 
approved under this paragraph must:
    (i) At a minimum, impose alternative land disposal restriction 
treatment standards that, using a reasonable maximum exposure scenario:
    (A) For carcinogens, achieve constituent concentrations that result 
in the total excess risk to an individual exposed over a lifetime 
generally falling within a range from 10 -4 to 10 
-6; and
    (B) For constituents with non-carcinogenic effects, achieve 
constituent concentrations that an individual could be exposed to on a 
daily basis without appreciable risk of deleterious effect during a 
lifetime.
    (ii) Not consider post-land-disposal controls.
    (4) For contaminated soil only, treatment to the level or by the 
method specified in the soil treatment standards would result in 
concentrations of hazardous constituents that are below (i.e., lower 
than) natural background concentrations at the site where the 
contaminated soil will land disposed.
* * * * *
    16. Section 268.45 is amended by revising the introductory text of 
paragraph (a), and paragraphs (d)(3) and (d)(4) to read as follows:


Sec. 268.45  Treatment standards for hazardous debris.

    (a) Treatment standards. Hazardous debris must be treated prior to 
land disposal as follows unless EPA determines under Sec. 261.3(f)(2) 
of this chapter that the debris is no longer contaminated with 
hazardous waste or the debris is treated to the waste-specific 
treatment standard provided in this subpart for the waste contaminating 
the debris:
* * * * *
    (d) * * *
    (3) Cyanide-reactive debris. Residue from the treatment of debris 
that is reactive because of cyanide must meet the treatment standards 
for D003 in ``Treatment Standards for Hazardous Wastes'' at 
Sec. 268.40.
    (4) Ignitable nonwastewater residue. Ignitable nonwastewater 
residue containing equal to or greater than 10% total organic carbon is 
subject to the technology specified in the treatment standard for D001: 
Ignitable Liquids.
* * * * *
    17. Section 268.48 is amended by revising the table Universal 
Treatment Standards to read as follows:


Sec. 268.48  Universal treatment standards.

    (a) * * *

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BILLING CODE 6560-50-C

[[Page 28751]]

    18. Subpart D is amended by adding Sec. 268.49 to read as follows:


Sec. 268.49  Alternative LDR treatment standards for contaminated soil.

    (a) Applicability. You must comply with LDRs prior to placing soil 
that exhibits a characteristic of hazardous waste, or exhibited a 
characteristic of hazardous waste at the time it was generated, into a 
land disposal unit. The following chart describes whether you must 
comply with LDRs prior to placing soil contaminated by listed hazardous 
waste into a land disposal unit:

----------------------------------------------------------------------------------------------------------------
            If LDRs                  And if LDRs           And if                        Then you               
----------------------------------------------------------------------------------------------------------------
Applied to the listed waste      Apply to the        ..................  Must comply with LDRs                  
 when it contaminated the soil*.  listed waste now.                                                             
Didn't apply to the listed       Apply to the        The soil is         Must comply with LDRs.                 
 waste when it contaminated the   listed waste now.   determined to                                             
 soil*.                                               contain the                                               
                                                      listed waste when                                         
                                                      the soil is first                                         
                                                      generated.                                                
Didn't apply to the listed       Apply to the        The soil is         Needn't comply with LDRs.              
 waste when it contaminated the   listed waste now.   determined not to                                         
 soil*.                                               contain the                                               
                                                      listed waste when                                         
                                                      the soil is first                                         
                                                      generated.                                                
Didn't apply to the listed       Don't apply to the  ..................  Needn't comply with LDRs.              
 waste when it contaminated the   listed waste now.                                                             
 soil*.                                                                                                         
----------------------------------------------------------------------------------------------------------------
* For dates of LDR applicability, see 40 CFR Part 268 Appendix VII. To determine the date any given listed      
  hazardous waste contaminated any given volume of soil, use the last date any given listed hazardous waste was 
  placed into any given land disposal unit or, in the case of an accidental spill, the date of the spill.       

    (b) Prior to land disposal, contaminated soil identified by 
paragraph (a) of this section as needing to comply with LDRs must be 
treated according to the applicable treatment standards specified in 
paragraph (c) of this section or according to the Universal Treatment 
Standards specified in 40 CFR 268.48 applicable to the contaminating 
listed hazardous waste and/or the applicable characteristic of 
hazardous waste if the soil is characteristic. The treatment standards 
specified in paragraph (c) of this section and the Universal Treatment 
Standards may be modified through a treatment variance approved in 
accordance with 40 CFR 268.44.
    (c) Treatment standards for contaminated soils. Prior to land 
disposal, contaminated soil identified by paragraph (a) of this section 
as needing to comply with LDRs must be treated according to all the 
standards specified in this paragraph or according to the Universal 
Treatment Standards specified in 40 CFR 268.48.
    (1) All soils. Prior to land disposal, all constituents subject to 
treatment must be treated as follows:
    (A) For non-metals, treatment must achieve 90 percent reduction in 
total constituent concentrations, except as provided by paragraph 
(c)(1)(C) of this section.
    (B) For metals, treatment must achieve 90 percent reduction in 
constituent concentrations as measured in leachate from the treated 
media (tested according to the TCLP) or 90 percent reduction in total 
constituent concentrations (when a metal removal treatment technology 
is used), except as provided by paragraph (c)(1)(C) of this section.
    (C) When treatment of any constituent subject to treatment to a 90 
percent reduction standard would result in a concentration less than 10 
times the Universal Treatment Standard for that constituent, treatment 
to achieve constituent concentrations less than 10 times the universal 
treatment standard is not required. Universal Treatment Standards are 
identified in 40 CFR 268.48 Table UTS.
    (2) Soils that exhibit the characteristic of ignitability, 
corrosivity or reactivity. In addition to the treatment required by 
paragraph (c)(1) of this section, prior to land disposal, soils that 
exhibit the characteristic of ignitability, corrosivity, or reactivity 
must be treated to eliminate these characteristics.
    (3) Soils that contain nonanalyzable constituents. In addition to 
the treatment requirements of paragraphs (c)(1) and (2) of this 
section, prior to land disposal, the following treatment is required 
for soils that contain nonanalyzable constituents:
    (A) For soil that also contains analyzable constituents, treatment 
of those analyzable constituents to the levels specified in paragraphs 
(c)(1) and (2) of this section; or,
    (B) For soil that contains only nonanalyzable constituents, 
treatment by the method specified in Sec. 268.42 for the waste 
contained in the soil.
    (d) Constituents subject to treatment. When applying the soil 
treatment standards in paragraph (c) of this section, constituents 
subject to treatment are any constituents listed in 40 CFR 268.48, 
Table UTS--Universal Treatment Standards that are reasonably expected 
to be present in any given volume of contaminated soil, except 
fluoride, selenium, sulfides, vanadium and zinc, and are present at 
concentrations greater than ten times the universal treatment standard.
    (e) Management of treatment residuals. Treatment residuals from 
treating contaminated soil identified by paragraph (a) of this section 
as needing to comply with LDRs must be managed as follows:
    (1) Soil residuals are subject to the treatment standards of this 
section;
    (2) Non-soil residuals are subject to:
    (A) For soils contaminated by listed hazardous waste, the RCRA 
Subtitle C standards applicable to the listed hazardous waste; and
    (B) For soils that exhibit a characteristic of hazardous waste, if 
the non-soil residual also exhibits a characteristic of hazardous 
waste, the treatment standards applicable to the characteristic 
hazardous waste.
    19. Table 1 in Appendix VII to Part 268 is amended by removing the 
entries for waste code F033; revising the second entry for waste code 
F032, the second entry for F034, and the first entry for K088; revising 
the entries for D003-D011 and two entries for waste code F035; and, 
Table 2 is amended by revising entry number 9 and adding entries 12 and 
13 to read as follows:

[[Page 28752]]



                              Table 1.--Effective Dates of Surface Disposed Wastes                              
                       [(Non-soil and Debris) Regulated in the LDRSa--Comprehensive List]                       
----------------------------------------------------------------------------------------------------------------
              Waste code                         Waste category                       Effective date            
----------------------------------------------------------------------------------------------------------------
                                                                                                                
   *                  *                  *                  *                  *                  *         *   
D003..................................  Newly identified surface-         May 26, 2000.                         
                                         disposed elemental phosphorus                                          
                                         processing wastes.                                                     
D004..................................  Newly identified D004 and         August 24, 1998.                      
                                         mineral processing wastes.                                             
D004..................................  Mixed radioactive/newly           May 26, 2000.                         
                                         identified D004 or mineral                                             
                                         processing wastes.                                                     
D005..................................  Newly identified D005 and         August 24, 1998.                      
                                         mineral processing wastes.                                             
D005..................................  Mixed radioactive/newly           May 26, 2000.                         
                                         identified D005 or mineral                                             
                                         processing wastes.                                                     
D006..................................  Newly identified D006 and         August 24, 1998.                      
                                         mineral processing wastes.                                             
D006..................................  Mixed radioactive/newly           May 26, 2000.                         
                                         identified D006 or mineral                                             
                                         processing wastes.                                                     
D007..................................  Newly identified D007 and         August 24, 1998.                      
                                         mineral processing wastes.                                             
D007..................................  Mixed radioactive/newly           May 26, 2000.                         
                                         identified D007or mineral                                              
                                         processing wastes.                                                     
D008..................................  Newly identified D008 and         August 24, 1998.                      
                                         mineral processing waste.                                              
D008..................................  Mixed radioactive/newly           May 26, 2000.                         
                                         identified D008 or mineral                                             
                                         processing wastes.                                                     
D009..................................  Newly identified D009 and         August 24, 1998.                      
                                         mineral processing waste.                                              
D009..................................  Mixed radioactive/newly           May 26, 2000.                         
                                         identified D009or mineral                                              
                                         processing wastes.                                                     
D010..................................  Newly identified D010 and         August 24, 1998.                      
                                         mineral processing wastes.                                             
D010..................................  Mixed radioactive/newly           May 26, 2000.                         
                                         identified D010 ormineral                                              
                                         processing wastes.                                                     
D011..................................  Newly identified D011 and         August 24, 1998.                      
                                         mineral processing wastes.                                             
D011..................................  Mixed radioactive/newly           May 26, 2000.                         
                                         identified D011or mineral                                              
                                         processing wastes.                                                     
                                                                                                                
   *                  *                  *                  *                  *                  *         *   
F032..................................  All others......................  August 12, 1997.                      
                                                                                                                
   *                  *                  *                  *                  *                  *         *   
F034..................................  All others......................  August 12, 1997.                      
F035..................................  Mixed with radioactive wastes...  May 12, 1999.                         
F035..................................  All others......................  August 12, 1997.                      
                                                                                                                
   *                  *                  *                  *                  *                  *         *   
K088..................................  All others......................  October 8, 1997.                      
                                                                                                                
   *                  *                  *                  *                  *                  *         *   
----------------------------------------------------------------------------------------------------------------

* * * * *

 Table 2.--Summary of Effective Dates of Land Disposal Restrictions for 
                   Contaminated Soil and Debris (CSD)                   
------------------------------------------------------------------------
     Restricted hazardous waste in CSD             Effective date       
------------------------------------------------------------------------
                                                                        
*                    *                    *                    *        
                     *                    *                  *          
9. Soil and debris contaminated with K088   October 8, 1997.            
 wastes.                                                                
                                                                        
*                    *                    *                    *        
                     *                    *                  *          
12. Soil and debris contaminated with       August 24, 1998.            
 newly identified D004-D011 toxicity                                    
 characteristic wastes and mineral                                      
 processing wastes.                                                     
13. Soil and debris contaminated with       May 26, 2000.               
 mixed radioactive newly identified D004-                               
 D011 characteristic wastes and mineral                                 
 processing wastes.                                                     
------------------------------------------------------------------------

    20. Appendix VIII to Part 268 is amended by revising the title and 
adding in alpha numeric order the entry ``NA'' to read as follows:

Appendix VIII to Part 268--LDR Effective Dates of Injected 
Prohibited Hazardous Wastes

             National Capacity LDR Variances for UIC Wastes             
------------------------------------------------------------------------
         Waste code              Waste category        Effective date   
------------------------------------------------------------------------
                                                                        
*                    *                    *                    *        
                     *                    *                  *          
NA.........................  Newly identified       May 26, 2000.       
                              mineral processing                        
                              wastes from titanium                      
                              dioxide production                        
                              and mixed                                 
                              radioactive/newly                         
                              identified D004-D011                      
                              characteristic                            
                              wastes and mineral                        
                              processing wastes.                        
                                                                        
*                    *                    *                    *        
                     *                    *                  *          
------------------------------------------------------------------------


[[Page 28753]]

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

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

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

Subpart A--Requirements for Final Authorization

    22. 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) * * *

               Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984              
----------------------------------------------------------------------------------------------------------------
                                                              Federal Register                                  
       Promulgation date            Title of regulation           reference               Effective date        
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
May 26, 1998...................  Land Disposal              [Insert FR page       August 24, 1998.              
                                  Restrictions Phase IV      numbers].                                          
                                  Final Rule.                                                                   
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
----------------------------------------------------------------------------------------------------------------

* * * * *

                               Table 2.--Self-Implementing Provisions of the Hazardous and Solid Waste Amendments of 1984                               
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Self-implementing                                                                                           
            Effective date                      provision                RCRA citation                        Federal Register reference                
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
August 24, 1998.......................  Prohibition on land        3004(m)..................  Date of publication and FR page cite.                     
                                         disposal of newly                                                                                              
                                         identified wastes                                                                                              
                                         including TC metal                                                                                             
                                         wastes and                                                                                                     
                                         characteristic mineral                                                                                         
                                         processing wastes;                                                                                             
                                         treatment standards for                                                                                        
                                         contaminated soil.                                                                                             
May 26, 2000..........................  Prohibition on land        3004(m)..................  Date of publication and FR page cite.                     
                                         disposal of newly                                                                                              
                                         identified wastes from                                                                                         
                                         elemental phosphorus                                                                                           
                                         processing and mixed                                                                                           
                                         radioactive and newly                                                                                          
                                         identified TC metal/                                                                                           
                                         mineral processing                                                                                             
                                         wastes (including soil                                                                                         
                                         and debris).                                                                                                   
                                        Prohibition on                                                                                                  
                                         underground injection of                                                                                       
                                         newly identified mineral                                                                                       
                                         processing wastes from                                                                                         
                                         titanium dioxide                                                                                               
                                         production                                                                                                     
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 98-12575 Filed 5-22-98; 8:45 am]
BILLING CODE 6560-50-P