[Federal Register Volume 63, Number 174 (Wednesday, September 9, 1998)]
[Rules and Regulations]
[Pages 48124-48127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24045]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 268
[FRL-6155-7]
Characteristic Slags Generated From Thermal Recovery of Lead by
Secondary Lead Smelters; Land Disposal Restrictions; Final Rule;
Extension of Compliance Date
AGENCY: Environmental Protection Agency (EPA).
ACTION: Extension of compliance date of final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is issuing an
extension of the compliance date until November 26, 1998 for a limited
portion of the Phase IV 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 exhibiting the
toxicity characteristic. EPA is extending the date for treatment
standards only for secondary lead slags exhibiting the toxicity
characteristic for one or more metals that are generated from thermal
recovery of lead-bearing wastes (principally batteries). The Agency is
taking this action because there appear to be short-term logistical
difficulties resulting in a temporary shortage of available treatment
capacity for these particular wastes. In the interim, the slags
affected by this extension remain subject to the treatment standards
for toxicity characteristic metals promulgated in the Third Third Final
Rule (55 FR 22520; June 1, 1990) and codified at 40 CFR 268.40.
EFFECTIVE DATE: August 28, 1998.
ADDRESSES: The public docket for this document extending the effective
date 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 contains a number
of background materials pertinent to this action. 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-LABS-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 Elaine Eby, Anita Cummings or Katrin Kral (5302W), Office of
Solid Waste, 401 M Street, SW, Washington DC 20460. Elaine Eby may be
reached at (703) 308-8449; Anita Cummings may be reached at (703) 308-
8303; and Katrin Kral may be reached at (703) 308-6120.
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
FTP: ftp.epa/gov
[[Page 48125]]
Login: anonymous
Password: your Internet address
Table of Contents
I. Background
II. Today's Action
III. Legal Authority and Rationale for Immediate Effective Date
IV. Analyses 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;
Congressional Review Directory Act
I. Background
On May 26, 1998, the Agency promulgated the Land Disposal
Restrictions (``LDR'') Phase IV Final Rule. This rule revises universal
treatment standards (``UTS'') for 12 metal hazardous constituents. The
Phase IV Final Rule also requires toxicity characteristic (``TC'')
metal wastes--those wastes exhibiting the characteristic levels set out
in 261.24, as measured using the Toxicity Characteristic Leaching
Procedure (``TCLP'')--to meet the UTS levels for those metal
constituents prior to land disposal. In addition, the LDR rules require
that underlying hazardous constituents (``UHCs'')--hazardous
constituents that are present below characteristic levels but still
present at levels higher than those necessary to minimize threats posed
by land disposal (see 40 CFR 268.2 (i) (defining ``underlying hazardous
constituent'')--present in TC metal wastes must also meet UTS levels
before land disposal. Because the Agency found that there was ample
stabilization capacity available to treat these metal-bearing wastes,
this rule took effect 90 days from the date of promulgation, i.e.,
August 24, 1998, which date corresponded generally to the time needed
to make logistical arrangements for treatment of wastes that were
affected by Phase IV (see 63 FR at 285624-25, May 26,1998).
Prior to Phase IV, TC metal wastes were only subject to treatment
standards if the wastes exceeded the characteristic level for the
various hazardous metals, as established in the Third Third Final Rule
(55 FR 22520, June 1, 1990). There was also no requirement to treat
these wastes for underlying hazardous constituents. The Phase IV rule
amends most of the standards for metals to make them more stringent,
and also requires treatment of UHCs in all TC metal wastes. For
example, of most relevance here, the treatment standard for lead
nonwastewaters exhibiting the Toxicity Characteristic is now 0.75 mg/L
(measured by the TCLP), rather than 5.0 mg/L (measured by either the
TCLP or the predecessor Extraction Procedure). Further, all UHCs in
characteristic lead wastes have to be treated to meet the standards for
hazardous constituents set out in Section 268.48. The rule thus assures
that threats posed by land disposal of these wastes will be minimized
as required by RCRA section 3004 (m). See Chemical Waste Management v.
EPA, 976 F. 2d 2, 16, 27, 32 (D.C. Cir. 1992) (holding first that
treatment to characteristic levels was insufficient to minimize threats
within the meaning of RCRA section 3004 (m), particularly when further
increments of treatment are demonstrated and available, and second that
treatment of underlying hazardous constituents was required (id. at 16-
18)).
The secondary lead industry consists of lead smelters that recover
lead metal from secondary materials, primarily spent lead acid
batteries. Secondary lead smelters generate slag as a by-product of
this process. Secondary lead slags sometime exhibit the toxicity
characteristic for lead, and occasionally for other metals as well.
These slags, however, may also be nonhazardous. Today's action applies
only to secondary lead slags that exhibit the toxicity characteristic
for one or more RCRA metals and are therefore characteristically
hazardous. See 63 FR at 28566 (May 26, 1998) (secondary lead slags
which do not exhibit a characteristic are not subject to further LDR
treatment requirements).
II. Today's Action
EPA is today amending the compliance date of the prohibition and
treatment standards for slags from secondary lead smelting until
November 26, 1998 (i.e., three months from the original effective
date). Although EPA believes that the treatment standards for these
slags are achievable through stabilization or other means and that
there is an ample amount of treatment capacity for these slags, there
are certain short-term logistical difficulties in utilizing this
capacity resulting in a short-term unavailability of treatment
capacity.
Secondary lead slag is generated in the form of large solid blocks
of material. Before the slag can be successfully stabilized to meet the
amended treatment standards, it must be crushed, a process
necessitating use of specialized equipment. One commercial treater
presently has such equipment on-site, but most commercial stabilization
facilities do not. However, a number of secondary lead plants operate
their own on-site crushing equipment. Overall there is enough available
crushing equipment to provide sufficient pretreatment capacity for the
secondary lead slag. Once the slags are crushed, there should be ample
capacity to stabilize the crushed material, either at off-site
commercial treatment facilities or on-site.
Based on these facts, EPA reiterates its finding that there is an
adequate amount of treatment capacity available to treat secondary lead
slag, within the meaning of RCRA section 3004(h)(2). Notwithstanding
the fact that this capacity is divided between different entities (i.e.
crushing equipment at one locale, stabilization capacity at another),
capacity still exists and must be utilized. The whole premise of the
Land Disposal Restrictions program is that existing treatment capacity
is to be used in lieu of land disposal of untreated hazardous wastes.
See 130 Cong. Rec. S9178 (daily ed. July 25, 1984) (statement of Sen.
Chafee); see also S. Rep. No. 198, 98th Cong. 1st Sess. 18 (1984).
Thus, EPA emphasizes that it does not (and will not) accept any
argument that treatment is unavailable because generators refuse to
perform pretreatment necessary to facilitate treatment to meet LDR
levels.
However, EPA recognizes in this particular case that the physically
separate pretreatment and treatment operations result in a situation
where additional time is needed to arrange for logistical coordination
and shipping. Prospective customers typically send waste samples to
commercial treaters, who then develop a stabilization recipe for the
waste, a process normally taking several weeks. This process has not
yet begun for several reasons. There apparently was some confusion
regarding the physical form of the waste to be treated, the result
being that at least some treatment facilities believed they would need
to treat uncrushed material, resulting in not-fully-informed refusals
to accept the waste for treatment. As a result, some limited additional
time is needed for commercial treaters to receive crushed samples,
develop treatment recipes for that sample, enter into necessary
contractual relationships with the generators of secondary lead slag,
and finalize other logistical coordination necessities, such as
shipping.
In addition, the secondary lead industry is not currently prepared
to ship pulverized slag to commercial treaters. Although the crushed
slag can readily be shipped by rail car (among other means), it will
still take the industry some time to make alternative transport
arrangements (contracting to
[[Page 48126]]
use a different type of rolling stock, etc.). The Agency estimates that
an additional 90 days is needed to resolve these logistical obstacles.
Accordingly, the Agency is extending the compliance date of the
prohibition and treatment standards for secondary lead slags exhibiting
the toxicity characteristic for one or more metals until November 26,
1998. During this time, the slags will remain subject to the existing
LDR treatment standards promulgated in the Third Third Final Rule (55
FR at 22690, June 1, 1990), which standards are codified in the present
section 268.40, and will also be subject to any other applicable,
ancillary LDR requirements (e.g. tracking and recordkeeping
requirements in Sec. 268.7).
Two other points regarding this extension should be noted. First,
today's limited extension of the compliance date of the land disposal
prohibition and treatment standards affects only the date of
compliance. It does not mandate a particular means of compliance. Thus,
secondary lead smelters are not obligated to have their characteristic
slags treated commercially if there is another means of compliance
available. Many secondary lead plants operate their own stabilization
equipment, and these on-site stabilization processes may be optimized
to achieve the amended treatment standards adopted in the Phase IV
final rule (63 FR at 28565). Secondary lead plants remain free to treat
their own slags (or to adopt some other means of compliance not
requiring shipment of pulverized slag to commercial treatment
facilities), provided of course that the waste complies with LDR
treatment standards before it is land disposed.
Second, the secondary lead industry has questioned whether the
amended UTS for lead nonwastewaters (.75 mg/l in a TCLP extract) is
achievable for secondary lead blast furnace slags and has raised this
as an issue in a petition for judicial review of the Phase IV Final
Rule. EPA believes the standard is achievable, based on the information
in the administrative record for the rule. However, today's action
briefly delaying the Phase IV compliance date also provides an
opportunity to develop further treatment data on this particular waste.
Based on reasonable assurances from industry representatives, the
Agency expects secondary lead facilities to be forthcoming in providing
proper samples (i..e., of the crushed slag) to treaters for the
verification testing described earlier, and to allow this information
to be utilized (with suitable safeguards for business confidentiality)
in confirming (or calling into question) the achievability of the Phase
IV metal treatment standards with respect to secondary lead slags. If
certain slags cannot be treated to meet the UTS lead nonwastewater of
0.75 mg/L, a treatment variance may be sought under the criteria of
Sec. 268.44(h) (i.e., physical or chemical properties of the waste
differ significantly from wastes analyzed in developing treatment
standard).
III. Legal Authority and Rationale for Immediate Effective Date
This document extending the LDR prohibition date for secondary lead
smelting slags is being issued without notice and opportunity for
general public comment. Under the Administrative Procedure Act (APA), 5
U.S.C. 553 (b) (B), an agency may forego notice and comment in
promulgating a rule when the agency for good cause finds (and
incorporates the finding and a brief statement of the reasons for that
finding into the rule) that notice and public comment procedures are
impracticable, unnecessary, or contrary to the public interest. For the
reasons set forth below, EPA finds good cause to conclude that notice
and comment would be unnecessary and contrary to the public interest,
and therefore is not required.
First, many secondary lead plants are currently in a position of
being unable to comply with the existing rule because they are not
meeting the treatment standards with their own stabilization processes
and have not been able to finalize arrangements with commercial
treaters (as explained earlier). An immediate delay of the rule's
compliance date for this particular waste is needed to provide further
time to make the administrative arrangements necessary for the
treatment capacity to become available (again as explained earlier).
EPA believes that this short-term emergency arose even though both
the generating and commercial treatment industries acted in good faith
in preparing to comply with the standards, so that this is not an
artificially manipulated situation created in the hope of delaying the
rule's compliance date. (Now that the necessary pretreatment steps are
identified and understood, however, EPA will not consider a further
extension based on generators' need for more time in making
arrangements with commercial treatment facilities.)
Second, EPA has been involved in detailed discussions with both the
generating and commercial treatment industries, so that there has been
direct notice about the possibility of today's extension to the
entities most directly affected by today's action.
EPA therefore concludes that notice and comment would be
unnecessary and contrary to the public interest in these special
circumstances. For these reasons, EPA believes that there is good cause
to issue this extension of the compliance date immediately and without
prior notice and comment.
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; Congressional Review Directory Act
This action extends the compliance date for treatment standards
established in the recently promulgated LDR Phase IV Rule for secondary
lead slags that exhibit the toxicity characteristic for metals. Since
the rule simply extends the rule's compliance date it imposes no new
costs and does not raise novel policy issues. EPA therefore does not
consider it to be a ``significant regulatory action'' for the purposes
of Executive Order 12866, and it therefore is not subject to executive
review under that Order. For the same reason, today's rule also does
not 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, as explained in Section III.
The Administrator is, therefore, not required to certify under the RFA
regarding the significance of any economic impact on small entities.
However, because today's action simply extends the rule's compliance
date for 90 days for one type of waste and does not impose any new
costs, the Agency believes that the rule will not have a significant
economic impact on a substantial number of small entities.
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
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voluntary consensus standards. There are no voluntary consensus
technical standards directly applicable to treatment of secondary lead
slags that exhibit the toxicity characteristic for metals. Therefore,
EPA did not consider the use of any voluntary standards in today's
action.
Today's action 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 limited extension of the Phase IV
compliance date for one waste is not an economically significant rule,
and it is not expected to create any environmental health risks or
safety risks that may disproportionately affect children. In that
regard, the Agency notes that secondary lead slags will continue to be
subject to the currently-existing LDR treatment standards during this
ninety day period.
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. Today's extension of the Phase IV
compliance date for one waste will not impose any new information
collection requirements and therefore EPA has met all Paperwork
Reduction Act obligations.
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 action simply delays the
compliance date of Phase IV for one waste for ninety days, and does not
significantly or uniquely affect the communities of Indian tribal
governments. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
The Congressional Review 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 document 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 28, 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--LAND DISPOSAL RESTRICTIONS
1. The authority citation for part 268 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
Subpart D--Treatment Standards
2. Section 268.34 is amended by redesignating paragraphs (b)
through (e) as paragraphs (c) through (f) and by adding a new paragraph
(b) to read as follows:
Sec. 268.34 Waste specific prohibitions--toxicity characteristic metal
wastes.
* * * * *
(b) Effective November 26, 1998, the following waste is prohibited
from land disposal: Slag from secondary lead smelting which exhibits
the Toxicity Characteristic due to the presence of one or more metals.
* * * * *
[FR Doc. 98-24045 Filed 9-8-98; 8:45 am]
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