[Federal Register Volume 63, Number 168 (Monday, August 31, 1998)]
[Rules and Regulations]
[Pages 46332-46334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23084]


      

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Part IV





Environmental Protection Agency





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40 CFR Part 268 Hazardous Waste Recycling; Land Disposal Restrictions; 
Final Rule

  Federal Register / Vol. 63, No. 168 / Monday, August 31, 1998 / Rules 
and Regulations  

[[Page 46332]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 268

[FRL-6153-2]
RIN 2050-AE05


Hazardous Waste Recycling; Land Disposal Restrictions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency is issuing an amendment to 
the final rule, published on May 26, 1998 (63 FR 28556), which, in 
part, amended the Land Disposal Restriction (LDR) treatment standards 
for metal-bearing hazardous wastes which exhibit the characteristic of 
toxicity. EPA is amending the rule only insofar as it applies to zinc 
micronutrient fertilizers which are produced from these toxicity 
characteristic wastes. The Agency is taking this action because it 
appears that the new treatment standards are not well suited for zinc 
micronutrient fertilizers, and also could result in greater use of zinc 
fertilizers that contain relatively higher concentrations of hazardous 
constituents. The Agency expects to develop a more consistent and 
comprehensive approach to regulating hazardous waste-derived 
fertilizers, and currently intends to leave this amendment in place 
until those new regulations are adopted. In the interim, the 
fertilizers affected by this amendment would remain subject to the 
previous treatment standards for toxic metals.

EFFECTIVE DATE: August 21, 1998.

ADDRESSES: The public docket for this rule is available for public 
inspection at EPA's RCRA Information Center, located at Crystal 
Gateway, First Floor, 1235 Jefferson Davis Highway, Arlington, 
Virginia. The regulatory docket for this rule contains a number of 
background materials. To obtain a list of these items, contact the RCRA 
Docket at 703 603-9230 and request the list of references in EPA Docket 
#F-98-PH4S-FFFFF.

FOR FURTHER INFORMATION CONTACT: For general information contact the 
RCRA Hotline at (800) 424-9346 (toll free) or (703) 920-9810 in the 
Washington, DC metropolitan area. For information on this notice 
contact David M. Fagan (5301W), Office of Solid Waste, 401 M Street, 
SW, Washington DC 20460, (703) 308-0603.

SUPPLEMENTARY INFORMATION:

Availability of Rule on Internet

    This notice is available on the internet, at: www: http://
www.epa.gov/oswer/hazwaste/ldrmetal/facts.htm

Table of Contents

I. Background
II. Today's Action
III. Legal Authority
IV. Analysis under Executive Order 12866, Executive Order 12875, the 
Paperwork Reduction Act of 1995, National Technology Transfer and 
Advancement Act of 1995, Executive Order 13045, and Executive Order 
13084: Consultation and Coordination with Indian Tribal Governments.
V. Submission to Congress and the General Accounting Office

I. Background

    Under RCRA, hazardous wastes are prohibited from land disposal 
unless they meet treatment standards established by EPA. (The major 
exception, not relevant here, is if the wastes are disposed in a unit 
from which there will be no migration of hazardous constituents for as 
long as the wastes remain hazardous.) See RCRA sections 3004(g)(5) and 
(m); 63 FR 28557-28558. The land disposal restriction treatment 
standards also apply to certain products that are made from hazardous 
wastes, and that are placed on the land. See 40 CFR 266.20(b). This 
``use constituting disposal'' provision in the RCRA regulations, which 
was promulgated on August 17, 1988, was intended to provide an 
additional degree of environmental protection for hazardous waste-
derived products that are used in this manner (i.e., that are 
introduced directly into the environment by being placed on the land).
    One particular category of hazardous waste-derived products that 
have been subject to these regulatory provisions are zinc micronutrient 
fertilizers that are produced from or which otherwise contain hazardous 
wastes. See 40 CFR 261.2(c)(1)(B) (defining hazardous secondary 
materials used in this manner as solid wastes for purposes of RCRA 
subtitle C). This type of fertilizer can be manufactured from several 
types of hazardous wastes that have high zinc content, such as dusts 
collected in emission control devices (``baghouse dust'') from electric 
arc steel making furnaces and brass foundries, ash from combustion of 
used tires, and other sources. These fertilizers can also be made from 
waste materials that are not classified as hazardous wastes, as well as 
from virgin raw materials such as refined zinc ores.
    Prior to promulgation of the May 26, 1998 rule (commonly referred 
to as the ``Phase IV'' LDR rule), zinc micronutrient fertilizers made 
from hazardous waste secondary materials were subject (with one 
specific exemption, described below) to the treatment standards 
promulgated by EPA in the ``Third Third'' LDR rules (see 55 FR 22688, 
June 1, 1990, establishing prohibitions for wastes which exhibit the 
toxicity characteristic for metals). Those regulations essentially 
required that the fertilizer products be treated such that they no 
longer exhibited a hazardous waste characteristic before they could be 
applied to the land. However, the Phase IV regulations (which revised 
the standards in Sec. 268.40 that apply to toxicity characteristic 
metal wastes) now require treatment below the hazardous waste 
characteristic levels. Such treatment standards are consistent with the 
D.C. Circuit's ruling in Chemical Waste Management v. EPA, 976 F. 2d 2, 
13-14 (D.C. Cir. 1992), that hazardous wastes must be treated so that 
threats posed by land disposal of their hazardous constituents are 
minimized (within the meaning of RCRA section 3004(m)), and treating to 
the hazardous waste characteristic level does not always guarantee that 
the requisite minimization has occurred. (See also RCRA Docket document 
#F93TTCFS0008, stating that this principle applies to hazardous wastes 
used in a manner constituting disposal.)
    Since zinc micronutrient fertilizers often contain measurable 
levels of lead and cadmium (which are hazardous constituents and are 
not agriculturally beneficial), the new Phase IV treatment standards 
for these metals are particularly relevant with regard to fertilizers 
that are made from characteristic hazardous wastes. Under the Phase IV 
rules, such fertilizer products would have to meet the treatment 
standards of .75 ppm for lead and .11 ppm for cadmium, both as measured 
by the toxicity characteristic leaching procedure (TCLP). These 
treatment standards would supersede the existing standards of 5ppm for 
lead, and 1ppm for cadmium (also measured in leachate).
    As mentioned above, fertilizers made from one particular type of 
hazardous waste--electric arc furnace dust (RCRA hazardous waste code 
K061)--are not currently subject to the LDR treatment standards. See 40 
CFR 266.20(b), final sentence. EPA decided to provide this exemption in 
1988, since based on the data available at the time it did not appear 
that fertilizers using K061 as an ingredient were significantly 
different, with respect to concentrations of hazardous constituents, 
than other zinc

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micronutrient fertilizers. 53 FR 31164 (August 17, 1988).

II. Today's Action

    EPA is today amending Sec. 268.40 by adding a new paragraph (I), 
which will in effect stay the Phase IV rule insofar as it applies 
treatment standards for hazardous constituent metals in zinc-containing 
fertilizers that are produced from hazardous wastes which exhibit the 
toxicity characteristic. The Agency is persuaded that this particular 
stay of the Phase IV rule is appropriate, for several reasons. For one 
thing, in retrospect the Agency is not certain that these treatment 
standards are well suited for micronutrient fertilizers. Compliance 
with the new LDR standards could require that the hazardous metal 
constituents be immobilized or stabilized such that they do not leach 
above the prescribed regulatory levels. However, such treatment would 
likely also immobilize the zinc component of the fertilizer, which 
would render it unsuitable for plant food use. Cf. 50 FR 628-629 (Jan. 
4, 1985) (imposition of normal subtitle C standards on uses 
constituting disposal means in most cases that the activity will not 
occur).
    EPA is also concerned that applying the Phase IV standards to zinc 
fertilizers could have the effect of eliminating from the market 
certain fertilizer products that contain relatively low levels of 
hazardous constituents (e.g., lead and cadmium), while other fertilizer 
products that contain higher levels of contaminants, including some 
produced from hazardous wastes, would be unaffected. It is likely that 
some zinc fertilizers that are made from hazardous wastes (and that 
have been in compliance with the existing RCRA treatment standards) 
will be unable to meet the new Phase IV standards. (See letter from 
Chris S. Leason, July 6, 1998.) However, some zinc fertilizers that are 
manufactured from non-waste materials can contain considerably higher 
concentrations of non-beneficial metals than the fertilizers that would 
be affected by the Phase IV standards. Thus, by eliminating from the 
market the regulated waste-derived products, the Phase IV rules could 
actually have the effect of increasing consumption of fertilizers with 
higher contaminant levels.
    Similarly, the Phase IV rules could encourage the use of zinc 
fertilizers made from K061, which is exempt from regulation (and thus 
does not have to meet RCRA treatment standards) when used to 
manufacture fertilizer. Although not apparent in 1988 when EPA 
promulgated this exemption, further study makes clear that these 
fertilizers typically contain higher concentrations of hazardous 
constituents (e.g., lead and cadmium) than zinc-containing fertilizers 
produced from characteristic hazardous wastes. (Letter from Chris 
Leason, August 17, 1998.) Thus, the Phase IV rule, by foreclosing the 
use of these less contaminated waste-derived fertilizers, could 
actually result in greater use of K061-derived fertilizers, which 
generally contain higher levels of contaminants.
    The Agency recognizes that the Phase IV rulemaking has highlighted 
the anomalous and inconsistent nature of the current RCRA regulations 
that apply to use of hazardous wastes in fertilizer manufacture. 
Consequently, the Agency is now planning to develop a more consistent 
and comprehensive set of regulations for controlling such practices, 
and expects to publish a Notice of Proposed Rulemaking in 1999. Issues 
that we expect to examine in the context of this rulemaking process 
include the appropriateness of the exemption for recycling of K061 in 
fertilizers, whether or not the current treatment standards should be 
replaced with a set of standards more specifically tailored to 
fertilizers, and the need to clarify the applicability of current 
regulatory provisions on ``use constituting disposal'' in subpart C of 
40 CFR part 266.
    Until this regulatory proceeding is completed, the Agency believes 
that it is inappropriate to apply the Phase IV treatment standards to 
hazardous waste-derived zinc micronutrient fertilizers. Accordingly, 
EPA is staying that portion of the Phase IV regulation. As a result, 
the zinc micronutrient fertilizers affected by this administrative stay 
will continue to be subject to the regulations in effect prior to the 
Phase IV regulations.

III. Legal Authority

    EPA is issuing this administrative stay pursuant to 5 U.S.C. 705, 
authorizing administrative agencies to stay administrative action 
pending judicial review when ``justice so requires.'' See also Rule 18 
of the Federal Rules of Appellate Procedure authorizing issuance of 
administrative stays pending review. (A petition for review has been 
filed regarding applicability of the Phase IV standards to zinc 
micronutrient fertilizers produced from characteristic hazardous 
wastes.) EPA believes that issuance of a stay for these zinc 
micronutrient fertilizers is needed because the promulgated regulation 
could result in discontinuance of use of the material and encourage use 
of a hazardous waste-derived zinc micronutrient fertilizers which are 
more contaminated. The administrative stay is needed to prevent this 
anomalous result. These same reasons provide good cause (pursuant to 5 
U.S.C. 553 (b)) to issue this administrative stay immediately, to the 
extent good cause is needed to justify issuing this immediately 
effective rule.

IV. Analysis Under Executive Order 12866, Executive Order 12875, 
the Paperwork Reduction Act, National Technology Transfer and 
Advancement Act of 1995, Executive Order 13045, and Executive Order 
13084: Consultation and Coordination With Indian Tribal Governments

    This action stays treatment standards established in the recently 
promulgated LDR Phase IV Rule for zinc micro-nutrient fertilizers (63 
FR 28556). Today's action has been deemed by the Agency as being a 
``significant regulatory action'' for the purposes of Executive Order 
12866, and is, therefore, subject to review by the Office of Management 
and Budget. Today's rule does not, however, impose obligations on 
State, local or tribal governments for the purposes of Executive Order 
12875. Furthermore, this action is not subject to the Regulatory 
Flexibility Act (RFA) since this rule is exempt from notice and comment 
rulemaking requirements for good cause which is explained in section 
III. The Administrator is, therefore, not required to certify under the 
RFA. Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Pub. L. No. 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA 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, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. 
There are no voluntary consensus technical standards directly 
applicable to metal contaminants in zinc micronutrient fertilizers. 
Therefore, EPA did not consider the use of any voluntary standards in 
this rulemaking. Today's rule is not subject to E.O. 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because this action is not an

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economically significant rule, and it is not expected to create any 
environmental health risks or safety risks that may disproportionately 
affect children. Under the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., EPA must consider the paperwork burden imposed by any information 
collection request in a proposed or final rule. This rule will not 
impose any new information collection requirements. Under Executive 
Order 13084, EPA may not issue a regulation that is not required by 
statute, that significantly or uniquely affects the communities of 
Indian tribal governments, and that imposes substantial direct 
compliance costs on those communities, unless the Federal government 
provides the funds necessary to pay the direct compliance costs 
incurred by the tribal governments. If the mandate is unfunded, EPA 
must provide to the Office of Management and Budget, in a separately 
identified section of the preamble to the rule, a description of the 
extent of EPA's prior consultation with representatives of affected 
tribal governments, a summary of the nature of their concerns, and a 
statement supporting the need to issue the regulation. In addition, 
Executive Order 13084 requires EPA to develop an effective process 
permitting elected and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.'' Today's rule does not significantly or uniquely 
affect the communities of Indian tribal governments. This action stays 
treatment standards established in the recently promulgated LDR Phase 
IV Rule for zinc micro-nutrient fertilizers (63 FR 28556). Accordingly, 
the requirements of section 3(b) of Executive Order 13084 do not apply 
to this rule.

V. Submission to Congress and the General Accounting Office

    The Congressional Review Directory Act, 5 U.S.C. 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. Section 808 allows the issuing agency to 
make a good cause finding that notice and public procedure is 
impracticable, unnecessary or contrary to the public interest. This 
determination must be supported by a brief statement. 5 U.S.C. 808(2). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefore, and thus is promulgating this administrative 
stay as a final rule. 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 action is not 
a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 268

    Environmental protection, Hazardous waste, Land disposal 
restrictions.

    Dated: August 21, 1998.
Carol M. Browner,
Administrator.

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

PART 268--[AMENDED]

Subpart D--Treatment Standards

    1. Section 268.40 is amended by adding paragraph (i), to read as 
follows:


Sec. 268.40  Applicability of treatment standards

* * * * *
    (i) Zinc-containing fertilizers that are produced for the general 
public's use and that are produced from or contain recycled 
characteristic hazardous wastes (D004-D011) are subject to the 
applicable treatment standards in Sec. 268.41 contained in the 40 CFR, 
parts 260 to 299, edition revised as of July 1, 1990.

[FR Doc. 98-23084 Filed 8-28-98; 8:45 am]
BILLING CODE 6560-50-P