[Federal Register Volume 65, Number 229 (Tuesday, November 28, 2000)]
[Proposed Rules]
[Pages 70954-70982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29876]



[[Page 70953]]

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Part II





Environmental Protection Agency





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40 CFR Parts 261, 266, and 268



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Requirements for Zinc Fertilizers Made From Recycled Hazardous 
Secondary Materials; Proposed Rule

  Federal Register / Vol. 65 , No. 229 / Tuesday, November 28, 2000 / 
Proposed Rules  

[[Page 70954]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 261, 266, and 268

[FRL-6905-3]
RIN 2050-AE69


Requirements for Zinc Fertilizers Made From Recycled Hazardous 
Secondary Materials

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is today proposing 
to revise the existing regulations that apply to recycling of hazardous 
wastes to make zinc fertilizer products. This proposal would establish 
a more consistent regulatory framework for this practice, and establish 
conditions for excluding hazardous secondary materials that are used to 
make zinc fertilizers from the definition of solid waste under the 
Resource Conservation and Recovery Act (RCRA). Today's proposal also 
solicits comments on regulating mining wastes that are used to make 
fertilizers.

DATES: EPA will accept public comment on this proposed rule until 
February 26, 2001.

ADDRESSES: Commenters must send an original and two copies of their 
comments referencing docket number F-2000-RZFP-FFFFF to: RCRA Docket 
Information Center, Office of Solid Waste (5305W), Environmental 
Protection Agency Headquarters (EPA, HQ), 401 M Street, SW., 
Washington, DC 20460. Hand deliveries of comments should be made to the 
Arlington, VA, address below. EPA may conduct a public hearing on this 
proposed rule during the comment period, if there is sufficient 
interest on the part of commenters.
    Comments may also be submitted electronically through the Internet 
to: [email protected]. Comments in electronic format should 
also be identified by the docket number F-2000-RZFP-FFFFF. All 
electronic comments must be submitted as an ASCII file avoiding the use 
of special characters and any form of encryption.
    Commenters should not submit electronically any confidential 
business information (CBI). An original and two copies of CBI must be 
submitted under separate cover to: RCRA CBI Document Control Officer, 
Office of Solid Waste (5305W), U.S. EPA, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.
    Public comments and supporting materials are available for viewing 
in the RCRA Docket Information Center (RIC), located at Crystal Gateway 
I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. 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, DC metropolitan area, call (703) 412-9810 
or TDD (703) 412-3323. For more detailed information on specific 
aspects of this proposed rulemaking, contact Dave Fagan, U.S. EPA 
(5301W), 1200 Pennsylvania Ave. NW., Washington, DC 20460; (703) 308-
0603, or e-mail: [email protected].

SUPPLEMENTARY INFORMATION: The index and the following supporting 
materials are available from the RCRA Information Center:
    The official record for this action will be kept in paper form. 
Accordingly, EPA will transfer all comments received electronically 
into paper form and place them in the official record, which will also 
include all comments submitted directly in writing. The official record 
is the paper record maintained at the address in ADDRESSES at the 
beginning of this document.
    EPA responses to comments, whether the comments are written or 
electronic, will be published in a notice in the Federal Register or in 
a response to comments document placed in the official record for this 
proposed rulemaking. EPA will not immediately reply to commenters 
electronically other than to seek clarification of electronic comments 
that may be garbled in transmission or during conversion to paper form, 
as discussed above.
    The contents of today's action are listed in the following outline:

I. Statutory Authority
II. Background
    A. What Is the Intent of Today's Regulatory Proposal?
    B. What Is the Scope of This Proposed Rule?
    C. How Is Recycling of Hazardous Wastes To Make Fertilizer 
Currently Regulated?
    D. What Are EPA's Goals for This Rulemaking?
    E. How Would Today's Proposal Affect Producers and Consumers of 
Zinc Fertilizer?
III. Settlement Agreement for the Phase IV Administrative Stay
IV. Detailed Description of Today's Proposal
    A. Removal of Exemption for K061-Derived Fertilizers
    1. Background
    2. Today's Proposed Action
    B. Conditional Exclusion for Recycled Zinc-Bearing Hazardous 
Secondary Materials
    1. Background
    2. Proposed Conditional Exclusion
    a. Applicability of Conditional Exclusion
    b. Reporting and Recordkeeping
    c. Conditions to the Exclusion
    i. Speculative Accumulation
    ii. Conditions Applicable to Generators of Excluded Hazardous 
Secondary Materials
    iii. Conditions Applicable to Manufacturers of Zinc Fertilizers 
or Zinc Fertilizer Ingredients Made From Excluded Secondary 
Materials
    d. Alternatives Considered
    e. Implementation and Enforcement Hazardous
    C. Conditional Exclusion for Zinc Fertilizers Made From Excluded 
Hazardous Secondary Materials
    1. Contaminant Limits
    a. Product Specifications for Non-Nutritive Metals in 
Conditionally Excluded Zinc Fertilizers
    b. Product Specifications for Dioxins in Conditionally Excluded 
Zinc Fertilizers
    2. Testing and Recordkeeping
V. Mining Wastes Used To Make Fertilizer: Request for Comments
VI. Relationship With Other Regulatory Programs
VII. State Authority
    A. Statutory Authority
    B. Effect of Today's Proposed Rule
VIII. Administrative Assessments
    A. Executive Order 12866
    B. Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et. seq.
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act
    E. Federalism--Applicability of Executive Order 13132
    F. Executive Order 13084: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Risks and Safety Risks
    H. National Technology Transfer and Advancement Act of 1995
    I. Executive Order 12898

[[Page 70955]]

I. Statutory Authority

    These regulations are proposed under the authority of sections 
3001, 3002, 3003, and 3004 of the Solid Waste Disposal Act of 1970, as 
amended by the Resource Conservation and Recovery Act of 1976 (RCRA), 
as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 
42 U.S.C. 6921, 6922, 6923 and 6924.

II. Background

A. What Is the Intent of Today's Regulatory Proposal?

    Today's proposed rule is one component of the Environmental 
Protection Agency's ongoing assessment of contaminants in fertilizers. 
Prior to this proposed rulemaking the Agency studied available 
information on contaminants in a wide range of fertilizer products 
(including waste derived fertilizers), application rates for 
fertilizers, and how fertilizers are regulated in the United States and 
in foreign countries. See ``Background Document on Fertilizer Use, 
Contaminants and Regulation'' (EPA 747-R-98-003, January 1999). In 
addition, EPA developed a risk assessment of contaminants in 
fertilizers, which was released in August 1999. These documents are 
both available on EPA's website; their respective website addresses are 
http://www.epa.gov/opptintr/fertilizer.pdf, and http://www.epa.gov/epaoswer/hazwaste/recycle/fertiliz/risk/report.pdf.
    Based on these and similar studies, such as those recently issued 
by the State of Washington (``Screening Survey for Metals and Dioxins 
in Fertilizer Products and Soils in Washington State,'' April 1999) and 
the State of California (``Development of Risk Based Concentrations for 
Arsenic, Cadmium and Lead in Inorganic Commercial Fertilizers,'' 
California Department of Food and Agriculture, March 1998), EPA has 
tentatively decided that the relatively small risks associated with 
contaminants in fertilizers do not warrant a broad new federal 
regulatory effort in this area (such as under the authority of the 
Toxic Substances Control Act). However, as part of EPA's overall 
assessment of the fertilizer contaminant issue, the Agency reexamined 
the current RCRA regulatory requirements that apply specifically to 
recycling of hazardous wastes to make fertilizer products. This 
reexamination was based on the Agency's own experience with 
implementing the current RCRA regulations, as well as views expressed 
by regulated industry, public interest groups, state regulatory 
officials and others (see ``EPA Stakeholder Meetings on Hazardous Waste 
Derived Fertilizers, November 12-13, 1998, Meeting Summaries''). From 
this review EPA has decided to propose certain revisions to the current 
regulations for hazardous waste derived fertilizers, for the following 
reasons:
     The RCRA standards that now apply to most hazardous waste 
derived fertilizers, known as the ``land disposal restrictions'' (LDR) 
standards, were developed based on ``best demonstrated available 
technology'' for treating hazardous wastes prior to disposal in 
hazardous waste landfills. The LDR standards were thus not developed 
specifically for fertilizers.\1\ A number of stakeholders have argued 
persuasively for contaminant standards that are more appropriate and 
specific to fertilizers. In today's action, EPA is proposing to set new 
standards for fertilizer contaminants based on the levels that can be 
readily achieved using demonstrated manufacturing practices.
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    \1\ The purpose of the RCRA LDR standards is to assure that 
threats posed by disposal of hazardous wastes are minimized before 
disposal. RCRA section 3004(m). However, EPA has long acknowledged 
that these standards are not ideal for hazardous waste derived 
products used in a manner constituting disposal, but rather are the 
minimum needed to satisfy section 3004(m). 53 FR 17578, 17605 (May 
17, 1988): see also Association of Battery Recyclers v. EPA, 208 F. 
3d 1047 (D.C. Cir. 2000) (acknowledging special risks posed by uses 
constituting disposal justifying stricter LDR Standards).
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     The current regulations are inconsistent. As discussed 
above, hazardous waste derived fertilizers must meet the applicable 
RCRA LDR treatment standards before they may be used as fertilizer 
products. There is one exception to this requirement, however: 
Fertilizers made from electric arc furnace dust (also known by its RCRA 
waste code as K061) are specifically exempted from having to meet the 
LDR standards. EPA believes that the original basis for exempting K061-
derived fertilizers from these standards is no longer valid (for 
reasons explained further in section IV.A of this preamble), and that 
fertilizers made from K061 should be subject to the same standards that 
apply to other hazardous waste derived fertilizers.
     Regulating fertilizer feedstocks as hazardous wastes 
creates unnecessary disincentives to legitimate and beneficial 
recycling practices. Currently, hazardous waste feedstocks that are 
used in fertilizer manufacture are subject to full hazardous waste 
management requirements, which include generator requirements, 
manifests (when such wastes are transported), and permits for 
manufacturers who store such materials prior to incorporation into 
fertilizer. However, fertilizer manufacturers and their suppliers often 
have strong incentives to avoid being subject to such RCRA 
requirements, for reasons explained later in this preamble. The net 
effect is that many such companies simply avoid the use of zinc-rich 
secondary materials to make fertilizer if they carry the label of RCRA 
``hazardous waste.'' EPA believes that the regulations that govern this 
recycling practice should be revised so that appropriate environmental 
safeguards are maintained, while removing unnecessary regulatory 
constraints on legitimate and beneficial recycling practices.

B. What Is the Scope of This Proposed Rule?

    Today's proposed regulatory amendments address only one type of 
fertilizer that is made from recycled hazardous wastes; specifically, 
zinc micronutrient fertilizer. According to the information that EPA 
has reviewed, zinc fertilizers account for the great majority of 
fertilizers that are made from recycled hazardous wastes. Another 
reason for limiting the scope of this proposal to zinc fertilizers is 
the Agency's judgment that developing recycling standards for this one 
type of fertilizer product should be relatively straightforward from a 
technical standpoint, and it may thus be possible to promulgate final 
rules for such products in a relatively short time frame. The Agency is 
aware, however, that some manufacturing of other types of fertilizers 
from hazardous industrial wastes may be taking place, and that 
regulatory revisions to address these other recycling practices may 
also be in order. However, developing appropriate regulations that 
could apply to virtually any fertilizer made from recycled hazardous 
wastes would be a more complex, longer-term effort. The Agency has 
chosen to avoid regulatory delays for zinc fertilizers by proceeding 
with today's limited-scope rulemaking proposal. Comment is invited on 
this aspect of today's proposal. EPA may address other types of 
hazardous waste derived fertilizers in a follow-up rulemaking. Until 
then, the current RCRA regulatory framework will continue to apply to 
recycling of hazardous wastes to make fertilizers other than zinc 
micronutrient fertilizers. These regulations are described in detail in 
following sections of this preamble.

[[Page 70956]]

    The Agency is also aware that at least one iron fertilizer product 
is currently being produced from a mining waste that is exempted from 
hazardous waste regulation, despite evidence that the product exhibits 
a hazardous waste characteristic when tested according to the Toxicity 
Characteristic Leaching Procedure (TCLP) (Oregon Department of 
Environmental Quality Laboratory, Case Number 980474, July 31, 1998). 
Today's proposal invites comment on whether this type of waste 
recycling practice should be regulated under RCRA.

C. How Is Recycling of Hazardous Wastes To Make Fertilizers Currently 
Regulated?

    EPA's longstanding policy is to encourage legitimate recycling of 
hazardous wastes, as a means of recovering valuable resources (for 
example, zinc), and lessening the need for extraction of virgin 
materials to make products. The Agency continues to believe that 
recycling of hazardous wastes in fertilizer manufacture can be (and is) 
a safe and beneficial practice, when proper environmental safeguards 
are observed.
    With regard to recycling hazardous wastes to make fertilizer, 
current RCRA regulations place controls on the management of the 
hazardous wastes prior to incorporation of the waste into a fertilizer, 
and define when fertilizers made from recycled hazardous wastes are 
legitimate products. These regulatory requirements are specified in 40 
CFR Part 266, Subpart C.
    Under RCRA, placement of hazardous wastes on the land is generally 
regulated as a disposal practice, and thus the regulations that apply 
to this type of recycling practice are generally referred to as the 
``use constituting disposal'' (UCD) regulations. Fertilizers produced 
from hazardous waste (i.e., incorporating hazardous wastes as one of 
their ingredients) are one example of a use constituting disposal. 
Hazardous waste derived asphalt is another example of such a product. 
See 63 FR at 28609-610 (May 26, 1998); Association of Battery 
Recyclers, 208 F.3d 1047 (DC Cir. 2000), upholding LDR rules applied to 
hazardous waste derived asphalt.
    Products made from recycled hazardous wastes whose intended use 
involves placement on the land may create risks that are potentially 
higher than for other types of recycled products (actual risk potential 
depends, of course, on concentrations of toxic constituents in the 
products and a number of other factors). Regulating these products as 
hazardous wastes, however, would have the effect of prohibiting their 
use altogether. See 50 FR at 628 (January 4, 1985). Rather than 
prohibiting their use, current regulations require that these products 
meet the same treatment standards they would have to meet if they were 
disposed in a landfill.
    In the final rule on the definition of solid waste (50 FR 614, Jan. 
4, 1985), EPA asserted jurisdiction over all hazardous secondary 
materials, and over products that contain these wastes, when they are 
applied to the land. However, in the preamble to that rule, the Agency 
noted that we hoped eventually to develop standards or specification 
levels for toxic constituents in waste-derived products whose use on 
the land may cause substantial harm (50 FR 628). Based on the 
information described elsewhere in this preamble, we have decided to 
propose specific levels (discussed elsewhere in this preamble) at which 
waste-derived zinc fertilizers should be considered products, rather 
than wastes.
    Under the current UCD regulations, hazardous wastes that are going 
to be recycled to make fertilizers must be managed in accordance with 
all applicable hazardous waste management requirements, until they are 
incorporated into a fertilizer. Generators of the hazardous wastes must 
comply with the RCRA generator requirements (see 40 CFR Part 262), off-
site shipments of the wastes must be manifested (Subpart B of Part 
262), and storage of these materials by fertilizer manufacturers 
generally requires a RCRA permit. In addition, the fertilizers produced 
from hazardous wastes must meet the LDR treatment standards prior to 
being land disposed.
    The requirements for hazardous waste derived fertilizers to meet 
LDR treatment standards were first promulgated in the ``First Third'' 
LDR rule (August 17, 1988, 53 FR 31138). The standards were revised in 
the ``Third Third'' LDR rule, which established treatment standards for 
metals in characteristic hazardous wastes (June 1, 1990, 55 FR 22520). 
In the Third Third rule the treatment standards for hazardous waste 
derived fertilizers were specified as the toxicity characteristic 
levels (i.e., the levels that identified when wastes are considered 
``hazardous'' according to the TCLP). The Agency changed those 
standards in the ``Phase IV'' LDR rule (May 26, 1998, 63 FR 28556), 
which set new (and for most constituents, more stringent) treatment 
standards for metals in toxicity characteristic wastes.
    In response to the Phase IV LDR rule, affected fertilizer 
manufacturers submitted information to the Agency arguing that the 
Phase IV standards could actually have negative environmental 
consequences by eliminating relatively ``clean'' zinc fertilizers from 
the market, and encouraging the use of fertilizers with higher levels 
of contaminants (e.g., K061 derived fertilizers) that were not subject 
to the LDR standards. In response, the Agency administratively stayed 
the effectiveness of the Phase IV rule as it applied to zinc 
micronutrient fertilizers (63 FR 46332, August 31, 1998).
    In that notice EPA announced its intent to address more broadly the 
requirements for recycling of hazardous wastes into fertilizer through 
a rulemaking process, as manifested by today's proposal. The effect of 
the Phase IV administrative stay was that the Third Third treatment 
standards (i.e., the characteristic levels) continue to apply to zinc 
fertilizers made from recycled hazardous wastes. A petition for review 
of this part of the final Phase IV rule, which challenged the stay, was 
subsequently filed in the D.C. Circuit Court of Appeals by several 
petitioners. Further discussion of this petition and its resolution is 
presented in section III of this preamble.
    As mentioned previously, fertilizer products made from one 
particular type of hazardous waste (K061, or electric arc furnace dust) 
are exempt from having to meet the LDR treatment standards. However, 
management of the K061 feedstocks prior to recycling is subject to the 
same hazardous waste management standards described above for other 
hazardous wastes used as components of fertilizers. Further discussion 
of the regulatory exemption for K061 derived fertilizers is contained 
in section IV.A. of this preamble.

D. What Are EPA's Goals for This Rulemaking?

    EPA hopes to achieve the following through this rulemaking effort:
     More regulatory consistency. Today's proposal is intended 
to create a ``level playing field'' with regard to how the recycling of 
hazardous waste into zinc fertilizers is regulated. Removing the 
current exemption for K061 derived fertilizers is one aspect of today's 
proposal that should result in a more comprehensive and more consistent 
regulatory framework for hazardous waste derived zinc fertilizers. In 
this same vein, today's proposal requests comments on eliminating the 
current exemption from the definition of solid waste for mining wastes 
that exhibit a hazardous characteristic and that are used to make 
fertilizer products.
     Limits on contaminants in recycled zinc fertilizers that 
are based on

[[Page 70957]]

demonstrated manufacturing practices. Today's proposed limits on metals 
in recycled zinc fertilizers are based on levels that have been 
demonstrated to be technically and economically achievable by the 
industry, are protective of human health and the environment, and will 
result in overall reductions in the volumes of heavy metals that are 
applied to the nation's farmlands from hazardous waste derived zinc 
fertilizers.
     More appropriate controls on management of hazardous 
secondary materials used in legitimate zinc fertilizer recycling 
practices. Today's proposal should serve to better define ``legitimate 
recycling'' for zinc fertilizers, and streamline current regulatory 
restrictions on management of hazardous secondary materials used as 
feedstocks in zinc fertilizer manufacturing.

E. How Would Today's Proposal Affect Producers and Consumers of Zinc 
Fertilizer?

    We believe that today's regulatory proposal should have very few 
negative impacts on fertilizer manufacturers, the waste generators who 
supply them, or on farmers who use zinc fertilizers. In fact, many 
elements of today's proposal are expected to have a positive effect on 
the zinc fertilizer market. However, the Agency is interested in any 
further information that commenters may be able to provide on such 
impacts, either positive or negative. A more detailed discussion of the 
economic impact analysis prepared in support of this rulemaking is 
presented in section VIII.A. of this preamble.
    RCRA regulations affect only a portion of the overall zinc 
fertilizer industry. It is estimated that roughly one half of the total 
zinc fertilizer produced in the United States is made from hazardous 
secondary materials, such as K061, brass fume dust and other zinc oxide 
materials. (Land Application of Hazardous Waste Derived Micronutruent 
Fertilizers, Bay Zinc Company and Tetra Technologies, Inc.; November 
19, 1999) The balance of zinc fertilizer production is made from 
secondary materials (or in some cases, ``virgin'' mineral concentrates) 
that are not hazardous wastes, and thus are not subject to RCRA 
controls. An example of a non-hazardous waste that is commonly used to 
make zinc fertilizer is zinc oxide ``skimmings,'' a by-product from 
galvanizing of various steel products. Manufacturers of high-purity 
zinc fertilizers (such as zinc sulfate monohydrate, or ZSM) typically 
can use either hazardous or non-hazardous secondary materials; the 
resultant fertilizer products are essentially identical (Ibid.).
    EPA recognizes that regulating one half of the industry while the 
other half is essentially unregulated has the potential for creating 
distortions in the zinc fertilizer market. One of the Agency's concerns 
in this regard is that imposing stringent regulations on recycling of 
hazardous material feedstocks can create a strong economic incentive 
for manufacturers to use feedstock materials that carry no RCRA 
regulatory ``baggage.'' This can be detrimental environmentally, if 
unregulated fertilizers with higher concentrations of toxic 
constituents have a market advantage. This partial regulation could 
also lead to greater reliance on non-RCRA regulated feedstock materials 
from foreign sources. Ultimately, such distortions in the market would 
likely result in lower volumes of zinc-bearing wastes being 
beneficially recycled.
    EPA believes that the regulatory amendments proposed today could 
greatly reduce these deleterious effects on the industry and its 
customers, and may encourage beneficial recycling by zinc fertilizer 
producers and their suppliers, while ensuring appropriate environmental 
protections.

III. Settlement Agreement for the Phase IV Administrative Stay

    On December 18, 1998, a petition for review of the Phase IV 
administrative stay (described in Section II.C above) was filed by the 
Washington Toxics Coalition, the Sierra Club and the Environmental 
Technology Council. Since the objectives of the petitioners to ensure 
protection of human health and the environment are generally consistent 
with EPA's, and in order to avoid protracted litigation on this matter, 
a settlement agreement was reached on June 20, 2000, in which the 
Agency committed to address several issues relating to hazardous waste 
derived fertilizers in this rulemaking effort. In summary, in the 
settlement agreement the Agency agreed to:

 Sign a notice of proposed rulemaking (NPRM) by November 15, 
2000;
 Propose in the NPRM:
    --Technology-based standards for certain metal contaminants in 
hazardous waste derived zinc fertilizers;
    --Elimination of the current exemption from LDR treatment standards 
for K061 derived zinc fertilizers;
    --Standards for dioxins in hazardous waste derived zinc 
fertilizers; and
    --Record keeping and reporting requirements.
 In the NPRM, solicit comments on a regulatory option that 
would establish a comprehensive reporting and record keeping system for 
generators, transporters and manufacturers involved with production of 
any fertilizer made from hazardous waste, based on the RCRA Biennial 
Reporting system.
 In the NPRM, solicit comment on eliminating the current 
exemption from Subtitle C regulation for fertilizers made from mining 
wastes;
 In the NPRM, discuss the option of retaining the current 
generator, transportation and storage requirements, if the Agency 
proposes to modify those requirements;
 Sign a Notice of Final Rulemaking that addresses the above 
provisions no later than May 15, 2002.

    Today's proposed rule is consistent with the terms of this 
agreement. Pursuant to Administrative Procedures Act regulations, the 
Agency has not committed to promulgating any specific regulatory action 
in the final fertilizer rulemaking. The final rulemaking will reflect 
the comments and data submitted during the public comment period on 
this proposal, as well as any new analyses conducted by the Agency. A 
copy of the settlement agreement is included in the docket for today's 
proposed rule.

IV. Detailed Description of Today's Proposal

A. Removal of Exemption for K061-Derived Fertilizers

1. Background
    Electric arc furnace dust, known by its RCRA waste code as K061, is 
a zinc-rich waste collected in air emission control baghouses and 
scrubbers at electric arc steel making plants. K061 was listed by EPA 
as a hazardous waste in 1980, due to relatively high concentrations of 
heavy metals such as lead, cadmium and chromium. More recent data 
indicate that the levels of heavy metal contaminants in K061 have 
generally declined, as generators have made advances in removing such 
contaminants from the scrap metal feedstocks used in this type of 
steelmaking process. However, concentrations of lead in excess of one 
percent (by weight) are still reported to be relatively common in K061 
used by the fertilizer industry (``Land Application of Hazardous Waste 
Derived Micronutrient Fertilizers, Bay Zinc Company and Tetra 
Technologies Inc., November 19, 1999, Appendix A).

[[Page 70958]]

    Measurable levels of dioxin contaminants have also been reported in 
a limited number of K061 samples: Data from the State of Washington's 
recent study of fertilizer contaminants (``Screening Survey for Metals 
and Dioxins in Fertilizer Products and Soils in Washington State,'' 
April 1999) indicated dioxin levels in one sample of raw K061 at over 
800 ppt, and a sample of K061-derived fertilizers at approximately 340 
ppt. Other types of zinc fertilizers that were tested showed far lower 
(in many cases, non-detect) levels of dioxins.
    Manufacturing zinc fertilizer from K061 typically involves treating 
the material with sulfuric acid to form a granular zinc ``oxy-sulfate'' 
fertilizer product. Thus, the manufacturing process does not involve 
any processing to remove heavy metal contaminants. K061 fertilizers are 
only partially soluble in water, since much of the zinc remains in an 
oxide or ferrite (a zinc-iron compound) form, which is less water 
soluble than zinc sulfate. Recent trends in the zinc fertilizer 
industry indicate a shift away from K061 oxy-sulfate products, and 
increased production of zinc sulfate monohydrate (ZSM) products, which 
typically have much lower levels of heavy metal contaminants (Ibid). 
Further discussion of zinc fertilizer manufacturing processes, and ZSM 
fertilizer products in particular, is presented in section IV.B. of 
today's preamble.
    It should be noted that K061 can be processed thermally (e.g., in 
multiple hearth furnaces) to reclaim iron and produce a zinc oxide 
material that is amenable to further processing to manufacture high-
purity zinc fertilizer such as ZSM. Although this is not yet a 
widespread practice, it further illustrates that the purity of zinc 
fertilizer is largely a function of how feedstock materials are 
processed, rather than the type of feedstock itself.
    In 1988, as part of the ``First Third'' land disposal restrictions 
final rule, EPA exempted fertilizers made from K061 from having to meet 
the LDR treatment standards applicable to other types of hazardous 
waste derived fertilizers. EPA's decision to promulgate this exemption 
was based on an analysis of then-available data that indicated heavy 
metal contaminant levels in K061-derived fertilizer were comparable to 
(and in some cases were lower than) contaminant levels in zinc 
fertilizers made from non-hazardous waste feedstocks. Thus, it was 
concluded that eliminating K061 fertilizers from the market (as would 
have been likely absent the regulatory exemption) would not have had 
any net environmental benefit. EPA also concluded at that time that, 
based on available information, agricultural application of K061 
fertilizers did not appear to pose significant risks for either ground 
water or food chain contamination pathways (see 53 FR 31164, August 17, 
1988).
2. Today's Proposed Action
    Today's proposed rule would amend the current regulations at 
Sec. 266.20, by removing the provision that exempts fertilizers made 
from K061 from having to meet applicable land disposal restrictions 
standards. In effect, this proposal would require all zinc fertilizers 
made from recycled hazardous secondary materials to meet the same set 
of contaminant standards. This aspect of today's proposal is in accord 
with the Agency's objective of creating a more consistent regulatory 
framework for this particular recycling practice.
    EPA's rationale for eliminating the current regulatory exemption 
for K061 derived fertilizers also rests on the fact that the 
composition of zinc fertilizers on the market has changed significantly 
since the exemption was granted in 1988. Current data on zinc 
fertilizer composition clearly indicate that levels of certain heavy 
metal contaminants in K061 fertilizers are considerably higher than 
those in other types of zinc fertilizers that are now widely marketed. 
For example, total concentrations of lead in K061 fertilizers commonly 
exceed one percent (10,000 mg/kg) by weight, while available data 
suggest that lead levels in zinc sulfate monohydrate fertilizers (which 
are also widely marketed) rarely exceed 100 mg/kg in dry product (see, 
for example, ``Land Application of Hazardous Waste Derived 
Micronutrient Fertilizers,'' Bay Zinc Company and Tetra Technologies, 
Inc., November 19, 1999).
    Such higher purity zinc fertilizers were not widely available as 
substitutes for K061-derived fertilizers in 1988. Today's proposal to 
eliminate the exemption for K061 derived fertilizers has also been made 
in consideration of the levels of dioxins in K061 fertilizers that were 
identified in the State of Washington's report ``Screening Survey of 
Metals and Dioxins in Fertilizer Products and Soils in Washington 
State,'' (April 1999).
    As discussed further in Section VII.A. of this preamble and in the 
Regulatory Impact Analysis (RIA) prepared in support of today's 
proposal, EPA believes that subjecting K061 zinc fertilizers to the 
same regulatory controls as other types of hazardous waste derived 
fertilizers will have the benefit of creating a more consistent 
regulatory framework for this type of zinc fertilizer manufacturing, 
and will not create undue hardships for the zinc fertilizer industry.
    At the present time EPA is aware of only one manufacturer (Frit 
Industries of Ozark, AL) currently using K061 to produce zinc oxy-
sulfate fertilizer. Although this company would need to modify its 
manufacturing practices to comply with this regulatory change, EPA 
believes that this should not cause undue economic hardship for either 
the company or for zinc fertilizer consumers. In any case, we do not 
believe that it is sensible to exempt this type of fertilizer from 
having to meet contaminant limits, while other zinc fertilizers of 
greater purity would be required to meet them. In addition, the 
provisions in today's proposal that would streamline regulatory 
controls on management of hazardous feedstocks in zinc fertilizer 
manufacture should benefit the industry by increasing the availability 
of alternative hazardous feedstock materials (e.g., brass foundry 
dusts).
    Some stakeholders have advocated a total ban on the use of K061 to 
make zinc fertilizer, largely because of concerns about measured 
concentrations of dioxin contaminants in two samples of these 
fertilizers, which were analyzed as part of the State of Washington's 
previously cited screening study. The Agency considered this option, 
but is not proposing it. EPA believes that K061 can be a suitable 
feedstock for manufacturing zinc fertilizer, provided that it is 
processed sufficiently to address metal and dioxin contaminants. In 
fact, at least one steel manufacturer in the United States is currently 
thermally processing K061 to recover its iron content and to produce a 
zinc oxide material that can be further refined to make high-quality 
zinc fertilizer (Illinois Pollution Control Board, AS99-3, May 5, 
1999). The Agency does not believe that there is any environmental 
reason to discourage recycling of K061 to make fertilizer; in fact, we 
hope that this rulemaking may serve to encourage beneficial metals 
recovery from K061 that might otherwise be landfilled.
    In summary, given the relatively high contaminant levels in K061 
fertilizers, and the availability to the industry of alternative 
hazardous waste (and other) feedstock materials, EPA sees no compelling 
reason to continue subjecting K061 fertilizers to less stringent 
regulatory controls than other types of hazardous waste derived zinc 
fertilizers. The Agency requests comment on this provision of today's 
proposal.

[[Page 70959]]

B. Conditional Exclusion for Recycled Zinc-Bearing Hazardous Secondary 
Materials

1. Background
    a. General. As discussed in Section II.C. of this preamble, the 
``use constituting disposal'' (UCD) requirements of Sec. 266.20 
currently apply to management of any RCRA hazardous waste that is 
recycled to make fertilizer. This in effect requires the wastes to be 
managed according to all applicable hazardous waste regulations, 
including requirements for generation, transportation and storage of 
the wastes prior to recycling. The recycling processes themselves are 
generally not subject to RCRA regulation.
    EPA's rationale for regulating these materials as hazardous wastes 
is that the end disposition of the waste closely resembles uncontrolled 
land disposal, which is the classic type of discard under RCRA. 
(January 4, 1985, 50 FR at 627-28; August 17, 1988, 53 FR at 31198). At 
the time these regulations were promulgated, however, EPA was unsure as 
to how to regulate the end disposition of the waste-derived products, 
since full Subtitle C regulation would essentially prohibit their use 
as products (January 4, 1985; 50 FR at 646). The original regulatory 
scheme consequently applied RCRA Subtitle C regulation only to persons 
generating, transporting and storing hazardous wastes before they were 
incorporated into the waste-derived products. Id. At 646-47. As 
explained earlier, because the use of waste-derived products on the 
land is a type of land disposal, EPA in 1988 amended these regulations 
to require all such waste-derived products (with the exception of K061 
derived fertilizers) to meet LDR treatment standards \2\.
---------------------------------------------------------------------------

    \2\ EPA is reciting this history as an aid to readers; EPA is 
not accepting comment on these past determinations; or otherwise 
reopening these issues.
---------------------------------------------------------------------------

    As mentioned previously, zinc fertilizers can be manufactured from 
a variety of different feedstock materials--some are ``virgin'' 
materials such as refined ores, while others are secondary materials 
generated from emission control devices or other industrial processes. 
While their origins may differ, the physical and chemical 
characteristics of these materials are generally quite similar--for the 
most part they are dry, powdery solid materials containing a high 
percentage of zinc in oxide or chloride form, along with lower levels 
of non-nutritive contaminants such as lead, cadmium and other heavy 
metals. The zinc content of these materials typically ranges from 50% 
to 80% by weight.
    Levels of metal contaminants in these feedstocks vary considerably, 
even from batch to batch; on average, contaminant levels in non-
hazardous feedstocks are slightly lower than those in hazardous 
feedstocks. Levels of lead (for example) in non-hazardous galvanizer 
ash typically range between one and two percent, while levels in 
hazardous brass foundry dust can be as high as six percent (letter from 
George M. Obeldobel, March 6, 2000). As a general matter, however, we 
believe that any potential risks posed by hazardous and non-hazardous 
zinc feedstock materials would be substantially similar, which argues 
for more consistent regulation of these materials under RCRA.
    In EPA's view, more consistent regulation of zinc fertilizer 
feedstocks is also appropriate since the current regulatory structure 
tends to discourage legitimate and beneficial recycling of those 
materials that are now classified as hazardous wastes. As mentioned 
previously, the current UCD regulations that apply to this recycling 
practice were originally promulgated in 1985. A thorough, prospective 
examination of the potential impacts of the UCD regulations 
specifically on the zinc fertilizer industry was beyond the scope of 
that original rulemaking.
    Since 1985 the Agency has gained considerable insight as to how the 
UCD regulations have affected manufacturers of zinc fertilizers and 
their suppliers. Based on this experience with implementing the UCD 
requirements, EPA has concluded that the existing UCD regulatory 
structure unnecessarily constrains legitimate recycling in the zinc 
fertilizer industry, as discussed in more detail below.
    Under the current regulations, companies that use hazardous wastes 
to make fertilizers typically will need a RCRA permit for storage of 
the material prior to recycling. This can have important implications 
for zinc fertilizer manufacturers. Obtaining a RCRA permit can be 
costly and time consuming. In addition, a RCRA permit carries with it 
other obligations, such as the requirement for facility-wide corrective 
action, which can incur further substantial costs. Most companies (and 
fertilizer manufacturers are no exception) thus have a strong incentive 
to avoid the RCRA permit requirement for their facilities whenever 
possible.
    One way for a zinc fertilizer manufacturer to avoid the RCRA permit 
requirement is to simply use non-hazardous feedstock materials. These 
materials are generally more expensive than hazardous waste feedstocks, 
which increases the price of zinc fertilizer products. For 
manufacturers who do accept hazardous feedstock materials, the RCRA 
permit requirement can also be avoided by selling the end product for 
purposes other than fertilizer. ZSM, for example, can also be used as 
an animal feed supplement, which does not trigger the UCD regulatory 
requirements. This creates the anomalous situation in which a 
manufacturer of ZSM would be subject to full regulation under RCRA if 
the product is sold as fertilizer, but is not regulated at all if the 
identical product is sold as animal feed. EPA does not believe that 
there is a convincing environmental rationale for perpetuating this 
somewhat artificial regulatory distinction between zinc products that 
trigger the UCD requirements and those that do not, particularly when 
the composition of the products may be identical.
    The current UCD regulations create similar disincentives for 
generators of hazardous zinc secondary materials. Such generators 
typically prefer not to have such materials classified as hazardous 
waste, since they are then less valuable as a commodity, are subject to 
stringent hazardous waste management requirements, and in many states 
are assessed hazardous waste generation fees. These generators 
therefore tend to avoid selling their material to companies that make 
fertilizer products. However, fertilizer is by far the largest market 
for ZSM. Since this market is effectively closed for many generators, 
and alternative recycling options are limited, generators of zinc-
bearing secondary materials can often be forced to dispose of the 
material as hazardous waste, rather than sell it to fertilizer 
manufacturers. In EPA's view, such distortions in the market for 
recyclable hazardous secondary materials are both environmentally and 
economically non-productive.
    b. Reporting and Recordkeeping. As discussed above, under current 
regulations hazardous wastes that are used to make fertilizers are 
subject to the RCRA ``cradle to grave'' requirements for tracking and 
recordkeeping prior to being recycled. The following is a summary of 
these requirements:

 Generators of such hazardous wastes must:
--Manifest off-site shipments of hazardous waste (Sec. 262.20-23);
--Submit exception reports for any unconfirmed deliveries of waste 
shipments (Sec. 262.42);

[[Page 70960]]

    --Maintain copies of manifests, exception reports, biennial reports 
and any data used to make hazardous waste determinations, for at least 
three years (Sec. 262.40); and
    --Submit a biennial report describing all hazardous wastes 
generated and the facilities they were shipped to every other year 
(Sec. 262.41).
 Manufacturers of hazardous waste derived fertilizers must:
    --Maintain copies of manifests for at least three years 
[Sec. 264.71(b)(5)];
    --Submit a report for each shipment of hazardous waste received 
without a manifest (Sec. 264.76) and each shipment with significant 
manifest discrepancies (Sec. 264.72); and
    --Submit a biennial report for each odd-numbered year describing 
all hazardous wastes received from any off-site generators, and who the 
generators were.

    These RCRA requirements were designed to be a ``cradle to grave'' 
tracking system, to document and ensure that hazardous wastes shipped 
from a generator's facility actually arrive at their intended 
destination (e.g., a hazardous waste disposal facility), and do not 
become ``lost'' or dumped indiscriminately. The biennial reporting 
requirement is intended to provide information to the public on 
hazardous waste generation and movement, and to enable EPA to report to 
Congress with national profiles of these activities. While these 
requirements apply when the recycled end product is subject to the UCD 
regulations, such cradle-to-grave requirements generally do not apply 
if such wastes are used to make other types of products. Thus, the RCRA 
tracking system does not apply to many hazardous waste streams that are 
recycled but are exempt or excluded from regulation because the end 
products are not used on the land.
    With regard to monitoring and tracking hazardous wastes that are 
used to make fertilizers (and other recycled products), the current 
RCRA regulations have certain limitations. For example, hazardous waste 
generators who supply fertilizer manufacturers are not required to 
notify regulatory agencies of the practice, so identifying the sources 
of hazardous waste feedstock materials involves reviewing individual 
manifests, which are typically maintained at the fertilizer 
manufacturer's facility. Tracking such waste movements may be 
especially difficult in cases where there is a middleman (e.g., a waste 
broker or processor) involved, who may aggregate or blend wastes from 
various sources before shipping them to a fertilizer manufacturer.
    In addition, generators are required to identify only the facility 
to which their wastes are shipped, but do not need to identify what 
their wastes may be used for. Many facilities that receive such wastes 
make a variety of products in addition to fertilizers, which makes it 
difficult for regulators (and others) to determine whether or not a 
particular waste shipment was used specifically for fertilizer 
manufacture. The biennial reporting system has similar limitations for 
much the same reasons, and in addition only applies to hazardous waste 
management activities that occur every other year.
    In summary, the existing regulatory framework provides regulators 
and others with only limited means of identifying and monitoring 
generators who supply manufacturers of hazardous waste derived 
fertilizers, or what they are supplying. Furthermore, the current 
biennial reporting system is admittedly only marginally useful for 
identifying at an aggregate national level who is engaged in these 
practices, what wastes are being used, or what products are being 
produced. EPA believes that the current recordkeeping, reporting and 
tracking system (as it applies to recycling of hazardous wastes in zinc 
fertilizers) can be streamlined and greatly improved with relatively 
minor modifications.
    To this end, EPA is today proposing (as discussed below) a new set 
of reporting and recordkeeping requirements specifically for this 
industry that should enhance oversight capabilities of regulatory 
agencies, and provide more complete, more accurate and more accessible 
information to regulators and others on this particular type of 
hazardous waste recycling. In addition, as discussed in section VIII.C. 
of this preamble, we believe that the proposed new requirements would 
actually result in less overall paperwork burden on industry than the 
current system. EPA requests comments on whether the new set of 
reporting and recordkeeping requirements in today's proposal is 
necessary, and on the potential impacts of such requirements.
2. Proposed Conditional Exclusion
    EPA is today proposing in Sec. 261.4(a)(20) a conditional exclusion 
from the definition of solid waste for hazardous secondary materials--
that is, spent materials, sludges and byproducts--that are recycled to 
make zinc fertilizers or zinc fertilizer ingredients. We believe 
excluding these materials from being classified as wastes is 
appropriate, for the reasons outlined above. However, we do not believe 
that a total exclusion (which would allow unrestricted management of 
these materials) is appropriate, given the Agency's recent experience 
with at least three cases of environmental damage caused by improper 
management of such materials by zinc product manufacturers (these cases 
are discussed further in the economic impact analysis prepared for this 
proposed rule).
    As mentioned previously, these materials are typically dry zinc 
oxide dusts that contain significant levels of non-nutritive metals 
such as lead, cadmium and arsenic, often in soluble form. They are thus 
susceptible to wind and water dispersion if not managed properly. The 
damage cases that the Agency has dealt with have primarily involved 
situations where the secondary material feedstocks and/or wastes 
generated from fertilizer manufacturing processes have been stored 
outdoors, usually in uncovered, unlined piles. These cases have 
resulted in contamination of soils, sediments and ground water via 
uncontrolled dispersal, a form of ``throwing away'' inconsistent with 
the notion that these zinc-containing materials were valuable 
feedstocks (``Report of RCRA Compliance Inspection at American 
Microtrace Corporation,'' US EPA Region VII, December 4, 1996). In 
summary, today's proposal would replace the current Subtitle C 
regulatory controls on these materials with conditions designed to 
ensure that the unprocessed materials do not become discarded.
    EPA is not aware of any damage cases that may have occurred from 
mismanagement of hazardous waste derived zinc fertilizers themselves. 
EPA requests information on any other proven damage cases due to 
mismanagement of secondary material feedstocks and/or wastes generated 
from fertilizer manufacturing processes, or proven damage cases 
involving mismanagement of hazardous waste derived zinc fertilizers.
    a. Applicability of Conditional Exclusion. The conditional 
exclusion proposed today would be an exclusion only from the RCRA 
Subtitle C regulations, and not from the emergency, remediation and 
information-gathering sections of the RCRA statute (sections 3004(u), 
3007, 3013, and 7003). This restates the principle already codified for 
other excluded secondary materials--that the exclusion is only from 
RCRA regulatory provisions, and not from these statutory authorities. 
See section 261.1(b).

[[Page 70961]]

    EPA is repeating that principle here in the interests of clarity, 
not to reopen the issue. The legal basis for the distinction of the 
Agency's authority under these provisions is that they use the broader 
statutory definition of solid waste (and hazardous waste as well) and 
so need not (and should not) be read as being limited by the regulatory 
definition. See, for example, 50 FR 627; January 4, 1985.
    b. Reporting and Recordkeeping. Today's proposed rule includes 
conditions for reporting and recordkeeping by generators and 
manufacturers that are designed to ensure that government oversight 
over the handlers of excluded materials (e.g., generators and 
manufacturers) is not compromised. These conditions would replace the 
current hazardous waste regulatory requirements for reporting and 
recordkeeping. As discussed below, the proposed conditions are in fact 
designed to improve the accountability system, and government oversight 
capabilities, over the handling of secondary materials used to make 
zinc fertilizers.
    Today's proposal would replace the existing tracking system with a 
set of reporting and recordkeeping requirements (i.e., conditions to 
the exclusion) to specifically identify zinc fertilizer manufacturers 
who receive excluded hazardous secondary materials and the generators 
who supply them, to track shipments of these materials, and to provide 
a much more detailed accounting of the types and volumes of hazardous 
secondary materials that are actually used to make zinc fertilizer 
products. The proposal also specifies recordkeeping requirements for 
finished zinc fertilizer products that are made from excluded 
materials, as discussed below in section IV.C.2.
    The proposed conditions on reporting and recordkeeping are not 
expected to impose substantial new paperwork burdens on affected 
companies, since we believe they rely primarily on standard business 
record keeping practices. At the same time, however, it should be 
understood that the proposed requirements would be unique, in that no 
other RCRA-regulated recycling practice is subject to such an expanded, 
industry-specific accountability system. EPA solicits comments on 
whether such an accountability system is warranted, whether it would 
necessitate substantial changes to current business practices, and on 
any other potential impacts of such a system.
    c. Conditions of the Exclusion.
    i. Speculative Accumulation. Today's proposal would prohibit 
speculative accumulation (as defined in existing Sec. 261.1(c)(8)), 
which generally requires an annual recycling rate of 75% of all 
hazardous secondary materials accumulated as of the first day of each 
calendar year. This proposed provision is mainly for emphasis and 
clarity; a general provision classifying secondary materials 
accumulated speculatively as solid wastes already appears at 
Sec. 261.2(c)(4). See generally 50 FR at 634-37; January 4, 1985.
    ii. Conditions Applicable to Generators of Excluded Hazardous 
Secondary Materials.
    Overview. As discussed above, under today's proposal generators 
would no longer be subject to current hazardous waste management 
regulations, provided that the generator met the specified conditions 
relating to accumulation, storage, transportation, reporting and 
recordkeeping of excluded materials. The following is a general, 
simplified reiteration of how requirements for generators would change 
under these proposed rules, followed by a more detailed explanation of 
each of the proposed conditions.
    Accumulation/Generation. Currently, generators of hazardous wastes 
used to make zinc fertilizers may accumulate the wastes on-site for no 
more than 90 days without triggering the need for a RCRA permit. In 
addition, a number of states levy fees on all such generated wastes, 
which are typically based on the volumes generated in a given year. 
Under today's proposal, these requirements would no longer apply to 
generators (unless a state chose to adopt more stringent requirements).
    Storage. On-site storage (e.g., in tanks or containers) of 
hazardous waste accumulations is currently allowed if the generator 
meets the management requirements for such units at interim status 
facilities. Under today's proposal, these storage requirements would be 
replaced by a set of more general, performance-based conditions 
intended to ensure that excluded materials are stored safely at 
generator facilities.
    Transportation. Off-site shipments of hazardous wastes (e.g., from 
a generator to a fertilizer manufacturer) currently must be manifested 
according to the requirements of 40 CFR Part 262, Subparts B and C. 
These requirements include provisions for packaging, labeling, marking, 
and placarding of waste shipments, as well as procedural requirements 
such as those for dealing with manifest discrepancies. Under today's 
proposal hazardous waste manifests and the requirements associated with 
their use would not apply. The generator would, however, need to 
document shipments of excluded materials and maintain copies of 
shipping papers, analogous to the current manifesting requirements.
    Reporting and Recordkeeping. Under current regulations, generators 
of hazardous wastes used to make zinc fertilizers must provide notice 
to the authorized agency of their hazardous waste management activity 
(Sec. 262.12), submit biennial report information every other year 
(Sec. 262.41), and maintain manifest records for at least three years 
(Sec. 262.40). These requirements would no longer apply under today's 
proposal. Instead, generators would need to: (a) Submit a one-time 
notice of their intent to manage (now excluded) materials according to 
the proposed conditions; and (b) maintain shipping records (containing 
information analogous to that in manifests) for at least three years.
    The following is a more detailed explanation of today's proposed 
conditions for generators.
    Storage. Under today's proposal (Sec. 261.4(a)(20)(ii)(A)), storage 
of excluded hazardous secondary materials at a generator's facility 
would, as a condition of the exclusion, only be allowed in tanks, 
containers or in buildings. These units would have to be constructed 
and maintained in a way intended to prevent releases of the material 
into the environment from occurring. This is in effect a general 
performance standard for such units, coupled with a few broad design 
conditions.
    EPA expects that in most cases generators will choose to store 
their feedstock materials inside buildings, either in bulk (i.e., in 
piles) or in ``supersack'' containers. Supersacks are reusable woven 
resin bags that can contain approximately one ton of dry material, and 
are typically handled with forklifts, cranes or other heavy machinery. 
As mentioned previously, the damage cases known to the Agency that 
involved hazardous zinc feedstock materials have all resulted from 
outside storage, typically in uncovered, unlined piles. Storage of 
these materials inside well-designed and maintained buildings should 
adequately prevent against releases of such materials into the 
environment. Thus, the proposed storage condition is that any such 
building be engineered to have a floor, walls and a roof made of non-
earthen materials, such that dispersal or contact by rainwater are 
prevented. These buildings may, however, have doors or removable 
sections to enable access by trucks or machinery.
    Excluded secondary materials could also be stored in tanks that are 
not located inside buildings. Such tanks are often used for receiving 
shipments of

[[Page 70962]]

bulk material from trucks or rail cars. A tank (as defined in 
Sec. 260.10) subject to this exclusion would have to be structurally 
sound, and have a roof or cover that prevents wind or water dispersal.
    Outside storage of secondary materials in containers at generating 
facilities would also be allowed, with some restrictions. Such 
containers would have to have lids or covers to prevent dispersal of 
the contents, and be constructed of metal or other rigid materials. 
This last requirement is intended to prevent the use of supersacks or 
similar types of containers for outside storage. This is because 
supersacks are to some extent porous, and do not have sealed openings. 
They are not waterproof or airtight, and can rupture if mishandled. EPA 
believes that this type of container does not offer secure enough 
storage under outside conditions, and so is proposing not to allow 
their use for outdoor storage of excluded materials.
    EPA believes that the proposed conditions on storage of excluded 
hazardous secondary materials at generator facilities would be 
protective of human health and the environment. However, we recognize 
that the proposed conditions do not address every possible circumstance 
that could lead to releases of these materials at a generator's 
facility. The same can be said, of course, for permitted hazardous 
waste management facilities. An example might be an accident during 
loading or unloading of material that causes spillage or wind 
dispersal, and (at least potentially) contamination of soils. In all 
cases, unless the owner/operator of the facility responds immediately 
to clean up the released material, these situations would be considered 
an act of discard under RCRA. Such materials would then be considered 
waste (i.e., the conditional exclusion would not longer apply), and the 
owner/operator would potentially be subject to enforcement action for 
illegal disposal of hazardous waste. EPA invites comment on all aspects 
of today's proposed storage requirements for generators.
    One-time notification. The proposed rule would require generators 
of excluded hazardous secondary materials to submit a one-time notice 
(Sec. 261.(4)(a)(20)(ii)(B)) to the EPA Regional Administrator (or the 
state Director in an authorized state) identifying the name, location 
and EPA ID number of the generating facility, and the type (e.g., brass 
foundry dust) and estimated annual volume of material that is expected 
to be excluded under these fertilizer recycling regulations. This 
condition is intended to enable regulatory agencies to readily identify 
the generators who supply (or intend to supply) excluded secondary 
materials to zinc fertilizer producers. If the generator anticipates 
shipping excluded materials off-site, the generator would also have to 
certify in the notice that he will only ship excluded materials to 
states that are authorized to administer these regulations (i.e., if 
that state were not authorized, the material would not be excluded in 
that state and would have to be managed as hazardous waste in that 
state).
    With regard to off-site shipments, the DOT requirements for 
transportation of hazardous materials (which generally involve proper 
identification of such materials in case of emergency incidents) could 
potentially apply. The shipments would not be subject to RCRA manifest 
requirements (since the materials would not be hazardous wastes), 
although similar shipping papers would be required for tracking 
purposes, as discussed below.
    This proposed reporting requirement is generally analogous to the 
current requirement for generators of excluded secondary materials that 
are placed on the land (see Sec. 268.7(a)(7)), which requires the 
generator to place a similar one-time notice in the generator 
facility's on-site files. However, the proposed requirement should have 
the effect of enhancing regulatory agencies' tracking and oversight 
capabilities, since the information would be submitted directly to the 
overseeing agency, rather than being maintained in the facility's 
files.
    EPA considered alternatives to this one-time notice requirement, 
such as requiring periodic (e.g., yearly, or once every five years) 
notices, or a new notice whenever a significant change occurs, such as 
process changes that could change the product's composition. The one-
time notice is consistent, however, with similar conditional exclusions 
(e.g., for comparable fuels--see Sec. 261.38(c)(1)(i)(A)), and it is 
not clear that additional notices from generators would be necessary 
for regulatory oversight purposes. We solicit comment on the need for a 
one-time notice to the regulating agency, as well as the content and 
frequency of this reporting condition.
    Recordkeeping. Today's proposal would require generators to 
maintain records of all shipments of excluded hazardous secondary 
materials for a minimum of three years. These proposed recordkeeping 
conditions should enable regulatory agencies to more easily investigate 
shipments of excluded materials for compliance and enforcement 
purposes. We believe that these recordkeeping conditions should be 
generally consistent with normal business recordkeeping practices, and 
thus would not be expected to impose significant additional paperwork 
burdens on generators. We invite comment on this issue.
    As specified in Sec. 261.4(a)(20)(ii)(C), these records would have 
to identify for each shipment the name of the transporter, date of the 
shipment, the quantity shipped and a brief description of the excluded 
material in the shipment, name and location of the fertilizer 
manufacturer who received the shipment, a notice to the receiving 
manufacturer that the shipped materials are subject to the conditions 
specified in this rule, and documentation confirming receipt of the 
shipment by the manufacturer. These conditions are analogous to the 
current requirements for shipping hazardous wastes under manifests and 
maintenance of manifest records. Copies of manifests are typically kept 
at the generator's facility, though some states require copies of 
manifests to be submitted to the state agency.
    The proposed recordkeeping conditions would require generators of 
excluded hazardous secondary materials to verify that each off-site 
shipment of excluded material was received as intended at the 
destination fertilizer manufacturing facility. This is intended to 
ensure a clear, documented chain of custody between the generator and 
the fertilizer manufacturer. In addition, under the proposed conditions 
generators would need to provide for each shipment a notice to the 
receiving manufacturer that the material is a hazardous secondary 
material excluded from hazardous waste regulations only as long as 
certain conditions are met. This is intended to ensure that 
manufacturers are fully aware of the regulatory status of each shipment 
of material, the obligations associated with receiving it, and the 
consequences of failing to meet the exclusion conditions.
    These conditions may have particular implications for generators 
who ship their wastes to or through middlemen, such as waste brokers or 
transfer facilities. The conditions are not intended to prevent this 
practice--the use of a middleman to facilitate shipments from generator 
to fertilizer manufacturer would be allowed, provided that the 
manufacturer receives the same wastes that the generator shipped. If 
excluded wastes were to be mixed with other materials, all of the mixed 
materials would need to be managed in accordance with the exclusion 
conditions (or in accordance

[[Page 70963]]

with Subtitle C requirements, if they were mixed with hazardous 
wastes).
    Other issues could arise with regard to shipments of material 
through middlemen. For example, a generator of zinc fume dust might 
send secondary material to a treatment facility that recovers lead, 
with the treated material then sent to a manufacturer of zinc 
micronutrient fertilizer. As explained below, under today's proposal 
the intermediate processor in this scenario would be considered a 
manufacturer of fertilizer ingredients, and would need to meet the 
conditions applicable to manufacturers in order to maintain the 
excluded status of the secondary material. If the processed secondary 
material was still hazardous after the intermediate processing (i.e., 
if it exhibited a hazardous characteristic, or if it would be 
considered a listed hazardous waste were it not excluded), the 
processor would be considered both a manufacturer and a generator, and 
would need to meet both sets of conditions in order to maintain the 
material's excluded status. If the processor rendered the material non-
hazardous, however, the conditions for generators would not apply to 
the processor, since there would be no need to further exclude the 
material.
    Although we believe that a clear chain of custody between generator 
and fertilizer manufacturer is important to maintaining the integrity 
and effectiveness of today's conditional exclusion, we recognize that 
the conditions described above could have consequences for generators 
and other entities that we have not yet fully evaluated. For example, 
it is possible that some intermediate handlers could blend excluded 
hazardous secondary materials with other bulk materials before they are 
shipped to a fertilizer manufacturer. In such a case the blended 
material would all be subject to the conditions in today's proposal in 
order to maintain the excluded status of the material. This could 
create problems for the intermediate handler (and perhaps the 
manufacturer) in accurately tracking the shipments of excluded 
materials and maintaining the excluded status of all such blended 
materials. We therefore invite comment on this aspect of today's 
proposal having to do with intermediate processors, as well as on the 
other proposed conditions (described above) that generators would have 
to comply with to maintain the excluded status of their secondary 
materials.
    iii. Conditions Applicable to Manufacturers of Zinc Fertilizers and 
Zinc Fertilizer Ingredients Made From Excluded Hazardous Secondary 
Materials. Today's proposal specifies certain conditions that 
manufacturers of zinc fertilizers and zinc fertilizer ingredients would 
need to meet in order for hazardous secondary materials that they 
handle at their facilities to be excluded from regulation as hazardous 
wastes. The following is a general, simplified discussion of how 
requirements for fertilizer manufacturers would change under these 
proposed rules, followed by a more detailed explanation of each 
proposed condition.
    Permits. Currently, zinc fertilizer manufacturers typically need 
RCRA permits for storage of hazardous wastes prior to recycling. Under 
today's proposal, a manufacturer would not be subject to RCRA 
permitting requirements, provided that the manufacturer met the 
proposed conditions.
    Storage. Manufacturers who are subject to RCRA permit requirements 
under the current regulations need to comply with specific requirements 
for storage (e.g., in tanks or containers) at permitted facilities. 
Under today's proposal, these storage requirements would not apply; 
storage of excluded hazardous secondary materials prior to recycling 
would instead need to be conducted according to the more general, 
performance-based conditions proposed today.
    Transportation. Manufacturers must now comply with manifest 
requirements for shipments of hazardous wastes from off-site, including 
procedural requirements and those pertaining to retention of manifest 
records. Under today's proposal, these transportation requirements 
would be replaced with less prescriptive conditions for documenting and 
maintaining records of shipments of excluded materials.
    Reporting and Recordkeeping. Under current regulations, 
manufacturers of hazardous waste derived fertilizers must: (a) Submit a 
notice of waste management activity and obtain an ID number 
(Sec. 262.11); (b) submit a one-time notice and certification relating 
to compliance with land disposal restrictions (LDRs) standards 
(Sec. 268.7); (c) notify the authorized agency of each shipment of 
product made from recycled hazardous waste (Sec. 268.7(b)(6)); and (d) 
submit biennial report information (Sec. 264.75).
    Under today's proposal the manufacturer would instead need to: (a) 
submit a one-time notice to the authorized agency; (b) maintain 
shipping records; and (c) Submit an annual report of recycling activity 
to the authorized agency.
    Applicability of conditional exclusion. The proposed conditions 
would apply to both manufacturers of finished zinc fertilizer products, 
as well as manufacturers of chemicals or materials that are in turn 
used as ingredients in zinc fertilizers. The distinction between 
fertilizer manufacturers and those who manufacture fertilizer 
ingredients may in this context be important for some companies. In 
some cases, zinc refiners or zinc metal producers that are not in the 
business of making fertilizers may manufacture chemicals (e.g., ZSM) 
that are then sold to fertilizer manufacturers as ingredients. Such 
producers are currently subject to the UCD regulations in the same way 
as zinc fertilizer manufacturers, since they make a product from 
hazardous waste that ultimately is used on the land. Similarly, some 
facilities may process or reclaim hazardous secondary materials (e.g., 
K061) to make them amenable for recycling into zinc fertilizers; these 
would also be considered manufacturing facilities for the purpose of 
this conditional exclusion. Note that if the same processed or 
reclaimed materials are used for other purposes than to make zinc 
fertilizer, the conditional exclusion would not apply (and would 
probably not be needed unless the materials are used for some other 
purpose subject to UCD regulatory requirements).
    In the situations described above involving manufacturers of zinc 
fertilizer ingredients, it is possible that in some cases the 
manufacturer of the ingredient may sell the product to another company, 
unaware that it will be used to make fertilizer. We believe that such 
cases will be rare, given the relatively small size of the industry and 
the limited number of uses for such zinc products. We invite comment, 
however, as to how common this scenario might be and what impacts 
today's proposed regulations might have on business transactions such 
as these.
    For the reasons outlined above, EPA believes today's proposal 
should extend to manufacturers of zinc fertilizer ingredients, as well 
as to manufacturers of finished fertilizer products. We invite comment 
on this aspect of the proposed rule, including the need for such a 
provision, as well as information on which companies or facilities 
might be affected by such a provision, and any implementation issues 
that might occur as a result.
    Storage. Under today's proposal, manufacturers of zinc fertilizers 
or ingredients would need to meet the same storage requirements for 
excluded hazardous secondary materials that

[[Page 70964]]

would apply to the generators of such materials (described above), as a 
condition of the exclusion. Again, the general intent of these storage 
conditions is to ensure that the materials are managed securely at 
fertilizer manufacturing facilities, and that releases of the materials 
into the environment are avoided. EPA solicits comments on the need for 
and approach to these proposed storage conditions, and specifically 
whether additional conditions (e.g., controls on fugitive dust 
emissions from production buildings) may be necessary to ensure 
adequate protections.
    One-time notification. As a condition of the exclusion, 
manufacturers would also need to submit a one-time notice to the 
authorized agency that identifies the name and location of the 
manufacturing facility, and estimated annual quantities and types 
(e.g., generating industrial processes) of excluded materials that are 
expected to be used in zinc fertilizer production. The intent of this 
one-time notice is to provide regulators with general knowledge of 
which manufacturers intend to make use of the conditional exemption, as 
well as background information on the nature and scale of their 
intended recycling operations. This notice would in effect replace and 
streamline the current notification requirements for hazardous waste 
recyclers who make products used in a manner constituting disposal, as 
specified in Sec. 268.7(b)(6).
    Under those requirements manufacturers of hazardous waste derived 
fertilizers must submit to the overseeing agency an LDR certification 
statement (see Sec. 268.7(b)(4)), and certain other information 
relating to compliance with LDR treatment standards, for each shipment 
of fertilizer products. While we believe that it is reasonable and 
desirable for regulatory agencies to be informed as to which companies 
are making zinc fertilizer from excluded secondary materials and what 
materials they intend to use, we do not believe that it is necessary to 
require reporting on every shipment of fertilizer products, especially 
in light of the proposed annual reporting requirement for manufacturers 
(see following discussion).
    EPA considered alternatives to this proposed one-time notice 
requirement, similar to the alternatives described above for the 
proposed one-time notice requirement for generators. We solicit comment 
on the need for a one-time notice to the regulating agency, as well as 
the content and frequency of this reporting requirement.
    Recordkeeping. Under today's proposal manufacturers would need to 
retain for a minimum of three years records of all shipments of 
excluded hazardous secondary materials that were received by the zinc 
fertilizer manufacturer during that period (Sec. 261.4(a)(20)(iii)(C)). 
These records would need to include information identifying the names 
and addresses of the generators and transporters of excluded wastes 
received by the manufacturer, the date each shipment was received, and 
information on the types and quantities of excluded materials in each 
received shipment. This recordkeeping condition is also intended to 
enhance the capability of regulatory agencies to (when necessary) 
account for shipments of excluded secondary materials. We believe that 
the condition is consistent with standard business practices, and thus 
should not be burdensome to fertilizer manufacturers. We request 
comment as to whether such a recordkeeping provision is needed, on the 
impacts of such a requirement, and on the alternatives that might be 
available.
    Annual report. Under proposed Sec. 261.4(a)(20)(iii)(D), each zinc 
fertilizer manufacturer who uses excluded hazardous secondary materials 
would need to submit to the appropriate regulatory agency an annual 
report that identifies the types, quantities and origins of all such 
excluded materials that were received by the manufacturer in the 
preceding year. This would also be a new type of report, intended to 
ensure an adequate tracking and accountability system for these 
excluded materials. EPA requests comment on this proposed condition, 
particularly with regard to whether such a requirement is necessary, 
and/or whether additional information (e.g., material composition data) 
should be required.
    d. Alternatives Considered. EPA considered several regulatory 
approaches as alternatives to the conditional exclusion approach 
outlined in today's proposed rule. For each of the alternatives, EPA is 
interested in the views of potentially regulated entities and the 
public regarding the costs, benefits and other impacts of such 
alternatives. The following is a description of the alternatives 
considered:
     Maintain current regulatory structure. EPA considered 
retaining the current UCD regulatory approach for zinc fertilizer 
recycling, as an alternative to today's proposed conditional exclusion. 
As explained previously, under the current regulations hazardous 
secondary materials that are recycled to make zinc fertilizer are 
considered hazardous wastes, and thus must be managed in accordance 
with all applicable RCRA Subtitle C regulations. Note that under this 
regulatory option the LDR standards for product contaminants could be 
retained, or other product contaminant limits (such as those proposed 
today) could be applied, in which case the limits would be regulatory 
standards, rather than conditions for exclusion.
    The main advantage of retaining Subtitle C controls over these 
materials prior to recycling into zinc fertilizer is presumably the 
greater certainty that they will be managed properly. The RCRA permit 
requirement for off-site storage (i.e., at the manufacturing facility) 
additionally imposes facility-wide corrective action obligations on the 
owner/operators of such facilities.
    EPA believes that the disadvantages of retaining the current UCD 
regulatory structure for zinc fertilizer recycling outweigh the 
potential advantages. The Agency is persuaded that the current UCD 
regulations have created unnecessary impediments to safe and legitimate 
recycling, as discussed previously in this preamble. We also believe 
that the conditional exclusion proposed today would be protective and 
would result in greater volumes of hazardous secondary materials 
legitimately and beneficially recycled into valuable products. It must 
be remembered that encouraging ``properly conducted recycling and 
reuse'' is a statutory objective. RCRA section 1003(a)(5).\3\ Further, 
today's proposal is expected to enhance government oversight 
capabilities over these practices through more complete reporting and 
recordkeeping by generators and fertilizer manufacturers.
---------------------------------------------------------------------------

    \3\ This objective is tempered by the specific goals that such 
properly conducted recycling is expected to achieve: increased waste 
minimization and decreased land disposal. It could be argued that 
because these fertilizers are placed on the land (land disposal 
under section 3004(k)), the policy of encouraging this type of 
recycling carries less weight. Nonetheless, EPA believes the 
conditional exclusion approach available to both secondary material 
generators and fertilizer manufacturers will encourage safe and 
legitimate use of these zinc-containing secondary materials, and 
that this result is therefore in keeping with RCRA's recycling 
goals.
---------------------------------------------------------------------------

    EPA requests comment on the alternative of retaining the current 
UCD regulatory structure for hazardous wastes that are used to make 
zinc fertilizers.
     Maintain current UCD requirements, with additional 
reporting, recordkeeping and testing requirements for all hazardous 
waste derived fertilizers. Under this option the current UCD regulatory 
framework would be retained (i.e., management of hazardous waste 
fertilizer feedstocks prior to

[[Page 70965]]

recycling would be subject to RCRA regulation), the K061 exemption 
would be removed, and today's proposed fertilizer contaminant limits 
would apply. More importantly, under this regulatory alternative, 
expanded biennial reporting requirements (see Sec. 262.41) would be 
required for all manufacturers of hazardous waste derived fertilizers 
(not just zinc fertilizer manufacturers), and the hazardous waste 
generators that supply them. The main objective of such expanded 
requirements would be to collect much more detailed information on zinc 
fertilizer recycling practices, and provide greater public access (as 
well as access by regulatory agencies) to that information. The 
following is an outline of the expanded biennial reporting requirements 
that would be required:
    1. Applicability. Generators of hazardous wastes being sent to 
fertilizer manufacturers, waste brokers and receivers [i.e., hazardous 
waste treatment, storage or disposal (TSD) facility owner/operators] 
who use hazardous wastes to make fertilizers would be subject to the 
enhanced reporting, recordkeeping and testing requirements.
    2. General reporting requirements. Generators and facility owner/
operators who are currently required to submit biennial reports (see 
Sec. 262.41) would be required to submit additional information in 
those reports, in electronic format (consistent with electronic 
reporting procedures that are currently being developed by EPA). Such 
information would include (asterisk indicates items already required):

--EPA ID Number *
--Company Name *
--Street Address *
--Mailing Address
--City, State, Zip *
--County
--Tax ID
--Contact Name and Title and Telephone #, ext.*
--Dunn and Bradstreet Number
--Industry SIC Codes * (one code for the overall production of the site 
and one code for the specific industrial process that generated the 
waste)
--Parent Company Name
--Parent Company Dunn and Bradstreet Number
--Latitude and Longitude
--Regulatory Status (under what laws reports are made)

    3. Additional requirements for generators (only):

--Type of waste (waste code) and amount of total hazardous waste 
generated and shipped for use in fertilizer manufacture. If the waste 
is made into fertilizer on-site by the same company, this information 
would be reported under the ``receiver'' section. If the facility does 
not know how much might be used for fertilizer (e.g., if they send it 
to a waste broker) they would have to report the total amount shipped 
that could be made into fertilizer.
--EPA ID # of facility waste is shipped to --Chemical specific 
information (CAS code):
--Chemical composition data for shipped wastes, including data on 
concentrations as well as the total weight of each contaminant in each 
shipment of waste (see testing requirements)

    4. Additional requirements for receivers (only):

--Type (waste code) and amount of hazardous waste received from any 
source (i.e., including waste brokers) for use as fertilizer, and 
amount that was actually used to manufacture fertilizer.
--EPA ID # of waste generator facility
--Total amount of fertilizer produced from hazardous waste
--Chemical specific information (CAS code):
--Chemical composition data for hazardous waste received, and for 
finished fertilizer products made from hazardous wastes (see testing 
requirements)
--Fertilizer specific information: Brand name, guaranteed analysis, 
type of fertilizer, batch number and date received.

    5. Testing requirements. Chemical analyses would have to be 
performed by the generator and the facility owner/operator on the types 
and amounts of chemicals in hazardous wastes before they are made into 
fertilizers, as well as the finished fertilizer products. Chemicals to 
be tested for would include: arsenic, beryllium, cadmium, cobalt, 
chromium-6, lead, manganese, molybdenum, zinc, boron, antimony, barium, 
nickel, copper, aluminum, iron, selenium, sodium, silver, magnesium, 
strontium, thallium, titanium, vanadium, cyanide, chloride, benzene, 
toluene, xylene, styrene, ethylene glycol, phenol, aldehydes 
(formaldehyde), vinyl chloride, chlorinated hydrocarbons (including 
trichloroethylene, perchlorethylene, 1,1,1 trichloroethane, methylene 
chloride, and chloroform), phthalates, dioxins and furans, PACs, PCBs, 
hexachlorobenzene, radioactivity, fluoride, and ketones.
    6. Data management. The data would be accessible to the public in 
hard copy form and maintained in a searchable database accessible 
through the EPA Web Site. This database would also need to be 
accessible and available in electronic form (i.e., on diskette or CD).
    7. Labeling. Labels (i.e., on consumer product packaging) or 
product disclosure documents (i.e., for farmers) would identify that 
the fertilizer is made from hazardous waste. The labels and documents 
would also identify the chemical composition of the fertilizer, 
including concentrations of plant nutrient chemicals and regulated 
contaminants.
    EPA requests comment on this regulatory alternative. Specifically, 
EPA is interested in the views of affected entities and the public on 
the need for, potential impacts of, and incremental benefits of each 
requirement in this alternative compared with the other options 
discussed in the preamble.
     Exclusion without conditions. EPA also considered the 
option of simply excluding from the definition of solid waste hazardous 
secondary materials that are recycled to make zinc fertilizer. 
Recycling such materials to make zinc fertilizer would then be 
regulated the same as recycling them to make other types of zinc 
products, such as animal feed or zinc metal for galvanizing. This 
option would not include regulatory contaminant limits for fertilizers, 
since other recycled zinc products do not have such limits.
    One rationale for this regulatory option would be that hazardous 
wastes used to make zinc fertilizers do not need to be regulated under 
RCRA Subtitle C, since they have commodity value and are essentially 
the same as alternative, non-hazardous feedstock materials. It could be 
further argued that restrictions on managing hazardous feedstock 
materials are unnecessary, since the original concern behind the UCD 
regulations had more to do with uncontrolled use of contaminated 
products on the land than management of feedstock materials prior to 
recycling.
    EPA does not prefer this regulatory option, for several reasons. 
Damage cases involving mismanagement of hazardous zinc fertilizer 
feedstocks are evidence of the need for some system of controls over 
these materials. In addition, eliminating all reporting, recordkeeping 
or storage requirements would compromise the ability of regulatory 
agencies (and others) to monitor these recycling practices. EPA does 
not believe that eliminating virtually all controls and accountability 
over hazardous waste fertilizer feedstocks would serve the public's 
(and regulators') interest in ensuring proper management of these 
materials. These

[[Page 70966]]

factors argue convincingly, in our opinion, for maintaining enforceable 
conditions over hazardous secondary materials prior to recycling into 
fertilizers. Nevertheless, we request comments on this alternative, 
including information on tradeoffs between the level of regulation and 
the potential for risks.
    e. Implementation and Enforcement.
     Implementation. If finalized, today's proposed conditional 
exclusion for hazardous secondary materials could have important 
implications for facilities that are currently in this business and are 
subject to the UCD hazardous waste regulatory requirements. As a 
general matter, once the regulatory changes become effective and 
facilities begin complying with the exclusion conditions, the affected 
activities of those facilities (some facilities might be managing 
hazardous wastes that are not affected by this rule) would no longer be 
subject to hazardous waste management regulations.
    Under this proposal, a RCRA-permitted facility that is now managing 
hazardous waste, but which under the new rules would be managing only 
excluded hazardous secondary materials, would not be required to 
maintain the operating portion of its permit, since it would no longer 
be engaged in hazardous waste management. In these cases the permit 
should be modified to reflect the changes in the facility's hazardous 
waste management operations. The type of modification necessary will 
depend upon facility-specific circumstances, as described below.
    For permitted facilities that manage excluded secondary materials 
in addition to regulated hazardous wastes, changes to the facility's 
permit would be relatively minor. These facilities would still need 
operating permits--only those units used solely to manage excluded 
materials would be relieved of permitting requirements. In this case, 
the facility owner/operator might seek a permit modification to remove 
the formerly subject unit(s) from the permit.
    As mentioned above, a permitted facility that would no longer be 
considered a hazardous waste management facility (e.g., a facility that 
now managed only excluded hazardous secondary materials) would no 
longer need a hazardous waste operating permit. However, where such a 
facility has not yet completed facility-wide corrective action (see 40 
CFR 264.101), the obligation to conduct such cleanup continues. 
Therefore, one approach would be to modify the permit to remove the 
requirements applicable to hazardous waste storage, but not to 
eliminate the corrective action portion of the facility's permit. In 
such a case, the facility would thereafter have a corrective action-
only-permit that would expire only when facility-wide corrective action 
is determined to be complete.
    A similar situation could occur in the case of permits that have 
long-term ``post-closure'' requirements for monitoring or remediating 
groundwater contamination from RCRA-regulated units such as landfills. 
In cases like these the authorized agency would also have the option of 
eliminating only the provisions of the permit relating to the affected 
storage units holding excluded materials at the facility, while leaving 
in effect the permit conditions for post-closure care.
    EPA recognizes that there may be practical issues associated with 
transitioning a RCRA-permitted facility to a facility that no longer 
would be subject to hazardous waste regulations under the provisions of 
today's conditional exclusion. One issue in particular could be that 
the terms of the facility's permit (a legally enforceable document) 
would technically remain in effect until the authorized agency took 
action to modify or terminate the permit. Such permit conditions could 
include unit-specific requirements (e.g., design, operating and closure 
requirements for storage tanks), as well as general facility 
requirements such as financial assurance, security and personnel 
training. This could potentially put the owner/operator (and the 
authorized agency) in the awkward situation of being subject to two 
sets of overlapping and inconsistent regulatory requirements, that is, 
the hazardous waste permit requirements and the conditions of today's 
proposed rule.
    Current RCRA regulations do not provide an explicit mechanism for 
automatically eliminating permit conditions in these situations. We 
expect that such situations would be temporary and relatively rare, and 
an authorized agency should be able to deal with them in a common-sense 
manner, without legal difficulties. It is possible, however, that some 
problems could arise under some circumstances. EPA is therefore 
considering (and solicits comment on) whether a more explicit 
regulatory provision is necessary to address these potential transition 
issues.
    One approach to more explicitly deal with this issue might involve 
amending the current permit requirements in 40 CFR Part 270 to specify 
that permit conditions pertaining to any active hazardous waste 
management activity at a facility in this type of situation would 
automatically be eliminated, without the need for any action on the 
part of the authorized agency. Such a regulatory amendment would not 
relieve owner/operators of permit obligations that do not pertain to 
active hazardous waste management in the unit in question, such as 
corrective action requirements. Alternatively, permit termination could 
be accomplished through the Class I permit modification process 
(Sec. 270.42(a)).
    A facility that is operating under RCRA interim status would be 
affected by promulgation of today's proposed rule in much the same way 
as permitted facilities, and the issue of corrective action would be 
addressed in a similar manner. In this case, Part 265 interim status 
standards that apply to the affected unit and the general facility 
standards would be moot and no longer in effect. Under RCRA 
regulations, however, cessation of hazardous waste operations alone 
does not eliminate a facility's interim status. See 40 CFR 270.73. A 
facility that wishes to no longer be in ``interim status'' could seek a 
denial of its pending permit application. Since the Agency believes it 
appropriate to ensure that corrective action is addressed prior to 
denying a permit under these circumstances, we would expect to grant 
the denial only when we concluded that corrective action obligations 
have been satisfied \4\.
---------------------------------------------------------------------------

    \4\ EPA notes that, in a recent Federal Register preamble, the 
Agency may have implied that RCRA section 3008(h) authority ceases 
whenever a facility's application for a permit has been denied. See, 
63 FR 56712 & 56716 (October 22, 1998). The Agency, however, did not 
intend by that notice to opine on the scope of the Agency's 
authority under section 3008(h). The statements reflect the Agency's 
general practice of ensuring that any necessary corrective action 
has been completed prior to denying a permit application. Where 
cleanup has been completed prior to permit denial, further action 
under section 3008(h) is obviously unnecessary.
---------------------------------------------------------------------------

    In addition to the above described issues relating to permits and 
corrective action, today's proposed rule may also have implications 
with regard to closure of hazardous waste storage units at affected 
facilities. If today's rule were finalized, wastes currently managed as 
hazardous wastes would no longer be so classified as long as the 
facility complies with the proposed exclusion conditions. Such a 
conditional exemption could be read as triggering the existing closure 
requirements, since owners/operators of non-land based hazardous waste 
units (e.g., tanks, containers, containment buildings) must begin 
closure within 90 days of receiving the unit's final volume of 
hazardous wastes. 40 CFR 264.113(a) and 265.113(a).

[[Page 70967]]

    EPA is concerned that requiring closure of units in these 
situations would serve little environmental purpose since, after 
closure, the unit would be immediately reopened and be used to store 
the same (now excluded) material. It should also be noted that, under 
today's proposal, units storing excluded materials would be considered 
essentially the same as similar units used to store products. Thus, we 
do not believe that requiring these particular units to close through 
RCRA Subtitle C procedures is necessary to protect human health and the 
environment.
    For these reasons, EPA is considering an explicit regulatory 
exemption from RCRA closure requirements for units that store hazardous 
wastes that subsequently become conditionally excluded under this rule. 
EPA's closure regulations fit into the broader RCRA hazardous waste 
``cradle-to-grave'' management system by minimizing or eliminating 
potential threats to human health and the environment and the need for 
future corrective action at the site after active hazardous waste 
management activities cease. See 52 FR 8712, 8713. The Agency is today 
proposing that hazardous secondary materials do not warrant 
classification as hazardous waste when managed in compliance with the 
specified conditions of today's rule, and that storage units containing 
excluded materials do not warrant regulation under the closure 
standards when they cease storing hazardous wastes. We therefore 
request comment as to whether a more explicit regulatory exemption from 
RCRA closure requirements may be appropriate for units that once stored 
hazardous wastes but now store only conditionally excluded materials.
    Another option would be to treat such units comparably to those at 
generator facilities that cease managing hazardous wastes. When this 
occurs such storage units are subject to unit-specific removal and 
decontamination standards (40 CFR 262.34(a)). Under this option, a 
hazardous waste storage unit that subsequently is used to store only 
excluded material would have to meet the removal and decontamination 
standards at the point when the unit no longer is used to manage 
excluded materials. EPA does not favor this approach, however, since we 
do not believe it necessary or appropriate for such RCRA regulatory 
requirements to remain in effect (for what could be a long period of 
time) after such a unit ceases managing hazardous wastes. In addition, 
any concerns about hazardous waste spills and contamination from these 
units would be dealt with through corrective action requirements. 
Therefore, EPA is not proposing this approach.
    Finally, EPA is also considering revising the ``delay of closure'' 
rules, set forth at 40 CFR 265.133(d) and (e), to allow units storing 
only conditionally exempt wastes to postpone closure until the unit is 
taken out of service. Such an approach would involve certain procedural 
steps built into the delay-of-closure rule, but it would avoid 
triggering closure for units that are managing now conditionally exempt 
waste, while at the same time requiring that such units eventually 
undergo formal RCRA closure under Subtitle C. EPA questions the need 
for this approach, however, especially since the delay of closure 
regulations are based on the assumption that hazardous waste remains in 
the closing unit, which is not the case here.
    EPA requests comment on all of the implementation issues described 
above.
    Enforcement. With regard to generators and fertilizer manufacturers 
who would be interested in making use of the conditional exclusion 
provisions of today's proposed rule, it should be understood that 
failure to meet one or more of the conditions specified in the rule 
could have serious consequences. Each condition must be met in order to 
maintain the excluded status of the hazardous secondary materials used 
to make zinc fertilizers. Thus, failure to meet any of the conditions 
would have the effect of removing the exclusion, and the secondary 
materials would be considered hazardous wastes subject to regulation 
under RCRA Subtitle C. If, for example, a fertilizer manufacturer 
failed to store hazardous secondary materials according to the 
conditions in the rule, the manufacturer could be required to obtain a 
RCRA permit, and begin managing the waste materials according to 
applicable hazardous waste regulations. As a general matter, if a 
facility's conditional exclusion were to be revoked under circumstances 
like these such an action would typically not affect the excluded 
status of the material before it was received at the manufacturer's 
facility. In other words, in the above example the generator of the 
material would typically be allowed to retain the excluded status of 
the material at the generating facility, provided that the generator 
continued to meet the applicable conditions.
    An owner/operator of a generating or manufacturing facility who 
chooses to use the exclusion would need to be able to demonstrate to 
the appropriate regulatory agency that the conditions are being met. 
Thus, for the purpose of clarity, proposed Sec. 261.4(a)(21)(iv) 
specifies that in an enforcement action the facility owner/operators 
claiming the exclusion would bear the burden of proof with regard to 
demonstrating conformance with the conditions specified in the rule.
    It should be noted that for fertilizer manufacturers the proposed 
exclusions in today's rule would apply only to the secondary materials 
being recycled and to the finished fertilizer products. Manufacturers 
(or intermediate processors) would not be relieved of the existing 
obligation to make a hazardous waste determination for all wastes 
generated from the fertilizer manufacturing process. Under current 
regulations, any such wastes that exhibit a hazardous waste 
characteristic would have to be managed in accordance with all 
applicable hazardous waste regulations.
    EPA requests comment on these enforcement issues.

C. Conditional Exclusion for Zinc Fertilizers Made From Hazardous 
Wastes or Excluded Hazardous Secondary Materials

    As mentioned previously, under current regulations manufacturers of 
zinc fertilizers made from recycled hazardous wastes must comply with 
the following requirements for the manufactured fertilizer products: 
(a) The fertilizer must meet the applicable LDR treatment standards 
before they may be used (Sec. 268.40), and (b) notice of each shipment 
of product must be submitted to the authorized agency 
(Sec. 268.7(b)(6)). Under today's proposal manufacturers would need to: 
(a) meet the proposed technology-based contaminant limits, and (b) 
maintain analytical data and analyses demonstrating compliance with the 
limits. The following is a more detailed discussion of today's proposed 
conditions.
1. Contaminant Limits
    As discussed previously in this preamble, the current regulations 
require fertilizers made from recycled hazardous wastes to meet the LDR 
treatment standards applicable to the hazardous wastes which they 
contain. This applies to hazardous waste-derived products made from 
characteristic hazardous waste, even if the product no longer exhibits 
a hazardous waste characteristic. Chemical Waste Management v. EPA, 976 
F.2d2, 12-14. The LDR standards also apply to fertilizers made from 
listed hazardous wastes, with the exception of those made from K061, as 
discussed elsewhere in this preamble. Under today's proposal, these LDR 
treatment

[[Page 70968]]

standards would be replaced with a new set of product specification 
contaminant limits for metals and dioxins. These contaminant limits 
would apply to zinc fertilizer products in their ``pure'' or 
manufactured form; in other words, before they are blended with other 
types of fertilizers prior to application. Thus, compliance with the 
standards could not be achieved simply by diluting a conditionally 
excluded zinc fertilizer with other products, such as primary nutrient 
(nitrogen, phosphorous or potassium) fertilizers.
    It should also be noted that the proposed product specification 
limits would apply to manufacturers of zinc fertilizer products, but 
would not apply to manufacturers of fertilizer ingredients. The reason 
for this is that ingredient manufacturers who use excluded hazardous 
secondary materials would likely not be able to control the content of 
the end product that is sold as fertilizer. We believe that meeting the 
proposed product specifications should be the responsibility of the 
product manufacturer; requiring manufacturers of fertilizer ingredients 
to meet the specification limits would likely be duplicative and 
unnecessary. We understand, however, that in some cases fertilizer 
``manufacturers'' may buy ZSM (or other zinc compounds) in bulk from 
zinc chemical suppliers, and simply package it and market it as 
fertilizer. In these situations it might make sense to require the 
company that actually manufactured the product to demonstrate 
compliance with the proposed exclusion conditions. We invite comment on 
this issue.
    a. Product Specifications for Non-Nutritive Metals in Conditionally 
Excluded Zinc Fertilizers. Today's proposal would establish product 
specifications (i.e., contaminant concentration limits) for non-
nutritive metals as a condition for excluding from the RCRA definition 
of solid waste zinc fertilizers that are made from excluded hazardous 
secondary materials. The proposed specifications are based on 
contaminant levels that have been demonstrated to be technically (and 
economically) achievable, that will reduce the volumes of heavy metals 
applied to agricultural lands from these products, and that are 
protective of human health and the environment. The approach used to 
develop these proposed contaminant limits is described in detail below.
    The proposed standards for metal constituents in conditionally 
excluded zinc fertilizers are:

------------------------------------------------------------------------
                                                              Maximum
                                                             allowable
                                                               total
                                                           concentration
                    Metal constituent                            in
                                                            fertilizer,
                                                           per unit (1%)
                                                              of zinc
                                                               (ppm)5
------------------------------------------------------------------------
Lead.....................................................           2.8
Cadmium..................................................           1.4
Arsenic..................................................           0.6
Mercury..................................................           0.3
Nickel...................................................           1.4
Chromium.................................................          0.6
------------------------------------------------------------------------
\5\ A zinc unit in this context represents one percent (by weight) of
  zinc in the fertilizer product that is applied to the land. Thus, for
  example, an excluded fertilizer containing 10% zinc could contain no
  more than 28 ppm of lead.

    These contaminant limits are expressed as total concentrations of 
the metal in the zinc fertilizer product. This is in contrast to the 
current LDR standards, which are expressed as levels in a leachate 
extract, using the ``toxicity characteristic leaching procedure 
(TCLP).'' See 63 FR at 28609 (May 26, 1998) (noting that total 
concentration limits are often the more appropriate measure for 
minimizing threats posed by uses constituting disposal, in light of 
exposure pathways other than leaching to groundwater); Association of 
Battery Recyclers v. EPA, 208 F.3d, 1047, D.C. Circuit 2000 (noting 
special risks posed by use constituting disposal situations). We 
believe that establishing these limits as total concentrations, rather 
than as concentrations in leachate, is more appropriate for the purpose 
of today's rulemaking.
    For wastes containing hazardous metal constituents, compliance with 
LDR standards typically requires adding some type of stabilizing 
material to the waste (such as concrete), thereby reducing the 
leachability of the metal contaminants once the waste is disposed in a 
landfill. Stabilization is obviously an impractical way to limit 
contaminants in zinc fertilizers, since the zinc content of the 
fertilizer would also be stabilized, and thus would be useless as 
fertilizer. In addition, the TCLP was intended to simulate the fate and 
transport of hazardous constituents in a municipal landfill, a scenario 
quite unlike fertilizer application to agricultural land. For these 
reasons, the Agency believes that standards for total concentrations of 
contaminants in fertilizers are more appropriate for this rule than 
standards based on a leachate test. Comments are solicited on this 
aspect of today's proposal.
    The product specifications in today's proposal specify maximum 
allowable concentrations in conditionally excluded zinc fertilizer for 
six metals: lead, cadmium, arsenic, mercury, nickel, and chromium. 
Although the Agency considered setting standards for other metals 
(e.g., selenium, beryllium and vanadium), we did not have sufficient 
data on levels of such metals in ZSM fertilizers to establish numerical 
standards for them, nor are we aware of evidence of such metals in any 
appreciable amounts in zinc fertilizers. The Agency solicits additional 
data on metals concentrations in ZSM fertilizers, including metals for 
which we are not proposing standards, and on the associated risks that 
such metals pose in fertilizers under typical application scenarios.
    At this time, we believe that establishing standards for the six 
metals listed above should be sufficient for the purpose of this 
rulemaking. Several recent studies report that the primary metals of 
concern for fertilizers are lead, cadmium and arsenic. In fact, a 
recent screening study done by the State of California concluded that 
only those three metals are found in fertilizer products at levels that 
merit regulation under California law. (``Development of Risk Based 
Concentrations for Arsenic, Cadmium and Lead in Inorganic Commercial 
Fertilizers''; California Department of Food and Agriculture, March 
1998). Today's proposal addresses the three additional metals generally 
because they were specifically highlighted in the settlement agreement 
discussed earlier in this preamble. In any case, because of the 
chemical purification processes that are used to manufacture ZSM, it is 
highly likely that fertilizers which meet the specifications for lead, 
cadmium and arsenic would also meet the specifications for these 
additional metals, without the need for additional processing.
    Since the current RCRA standards for metal contaminants in 
fertilizers are expressed as concentrations in leachate (measured 
according to the TCLP), and today's proposed constituent limits are 
expressed as total concentrations in the fertilizer product, comparing 
the two sets of limits with regard to their ``stringency'' is not 
entirely straightforward. The main reason for this is that, using the 
TCLP, not all of the metals in a given test sample are actually 
extracted or leached, especially those that are relatively non-soluble. 
Perhaps the simplest way to compare the numbers, however, is to assume 
that 100% of the metals in a TCLP sample become dissolved in the tested 
leachate. Since the acidic test medium used in the TCLP dilutes the 
concentration of the metals by a factor of twenty, the maximum total 
concentration of metals

[[Page 70969]]

in a given sample can be assumed to be twenty times the TCLP leachate 
concentration.
    Thus, under the assumption that 100% of the metals are leached, the 
maximum contaminant level for a toxic metal in fertilizer would be 
twenty times the toxicity characteristic limit. For lead, for example, 
this would be 100 ppm (5 ppm  x  20) total concentration. In reality, 
of course, the concentration of lead in an actual tested fertilizer 
sample would likely be considerably higher than 100 ppm, since it is 
likely that not all of the lead in the sample would leach. The 
following is a comparison of today's proposed conditional limits for 
metals in 35.5% zinc fertilizer (the typical zinc content of most dry 
ZSM fertilizers \6\), and the highest levels that would be allowed 
under the current regulations using this very conservative approach to 
comparing leachate levels to total concentration levels \7\.
---------------------------------------------------------------------------

    \6\ Other zinc fertilizers have lower zinc contents and would, 
therefore, have proportionally lower exclusion levels.
    \7\ Note that the exclusion levels listed in the table would be 
lower for a fertilizer that contained less than 35.5% zinc. For 
example, the limit for lead in a 20% zinc fertilizer would be 56 ppm 
(i.e., 2.8  x  20).

------------------------------------------------------------------------
                                                  Proposed
                                                 exclusion   20  x  TCLP
                                                   levels     limit, mg/
                     Metal                         (35.5%       kg dry
                                                 zinc), mg/     weight
                                                 kg dry wt.
------------------------------------------------------------------------
Arsenic.......................................         21.3        100.0
Cadmium.......................................         49.7         20.0
Chromium......................................         21.3        100.0
Lead..........................................         99.4        100.0
Mercury.......................................         10.7          4.0
Nickel........................................         49.7         (1)
------------------------------------------------------------------------
1 No limit.

    Using this simplistic comparison method, most of the proposed 
exclusion levels are at or below the maximum levels allowed by the 
current regulations. The proposed levels for cadmium and mercury exceed 
the worst-case TCLP standards, but are well within the same order of 
magnitude, and could be lower than what is actually allowed under the 
current standards, depending on the leachability of the metals in the 
tested fertilizers. Thus, EPA considers the exclusion levels proposed 
today to be more stringent than the existing standards, for the purpose 
of state authorization (see discussion in Section VII of this 
preamble). EPA requests comments on the incremental benefits to having 
more stringent standards, as well as the costs of such an approach. 
Note that fertilizer manufacturers would always have the opportunity to 
continue using current standards.
    The proposed product specifications are expressed as concentrations 
of metals in product, per unit of zinc. In this case one unit of zinc 
equals one percent. The primary reason for expressing the standards in 
this way is that the zinc content of fertilizers varies widely. If the 
standards were not tied to the percentage of zinc in the product, 
fertilizers with low zinc content could much more easily comply with 
the standards due to the dilution effect of the other materials in the 
fertilizer. EPA requests comments on the relative merits of basing 
exclusion levels on zinc concentrations versus the total product 
content.
    For reasons explained below, the Agency has decided to base today's 
proposed product specifications for metals in conditionally excluded 
zinc fertilizers on the levels that have been demonstrated as 
technically (and economically) achievable in ZSM fertilizers. See 
Sec. 261.38 (specifications for toxic constituents in fuels based on 
levels in commercial fossil fuels). ZSM is a common, commercially 
available product manufactured by several companies in the United 
States and elsewhere. It can be made from hazardous waste feedstocks, 
as well as a variety of non-hazardous raw material or secondary 
material feedstocks. ZSM fertilizers are marketed in solid (granular or 
powdered) form or in a liquid solution. Since zinc fertilizer is 
applied sparingly to agricultural land (i.e., a few pounds per acre per 
year), it is almost always blended with other fertilizers before 
application, either by manufacturers or in the field by fertilizer 
applicators. It should be noted that ZSM is also widely used as an 
animal feed supplement, and can be used as an ingredient in a variety 
of consumer products as well.
    In recent years there has been a marked increase in manufacturing 
capacity of ZSM fertilizers, combined with a downward trend in 
production of oxy-sulfates made from K061 and other materials. For 
example, one major manufacturer (Bay Zinc of Moxee, WA), citing 
changing market conditions, recently changed its manufacturing process 
to begin producing a line of ZSM products, and is phasing out its 
production of other types of zinc fertilizers. The manufacturing 
process for ZSM involves a series of chemical purification steps that 
remove the great majority of non-nutritive metals. This is generally 
not the case for other types of zinc fertilizers, such as oxy-sulfates 
made from recycled K061. Thus, the concentrations of non-nutritive 
metals in ZSM are typically much lower than in other types of zinc 
fertilizers. To illustrate, several manufacturers guarantee a lead 
content in ZSM fertilizers (35.5% zinc content) of less than 50 ppm, 
while lead concentrations in K061-derived fertilizers (which often have 
lower zinc content) are often above 10,000 ppm.
    The proposed concentration limits for metals in conditionally 
excluded zinc fertilizers are based on the Agency's analysis of ZSM 
contaminant data from a number of different sources, and represent 
products marketed at the time of sampling by at least nine different 
companies. The concentration limits were calculated to include a small 
margin to account for variabilities in the manufacturing process. A 
summary of available data on contaminant levels in ZSM products is 
included in the record for today's proposal.
    By basing today's product specifications on contaminant levels that 
can be routinely and reliably achieved in ZSM fertilizer products, the 
Agency in effect is using a technology-based approach to setting 
specifications for these products. The proposed specifications are not 
intended to represent the very lowest levels of contaminants that could 
technically be achieved. Rather, they are intended as a reasonable 
measure of fertilizer product quality from both a commercial and 
environmental standpoint. It is entirely possible that some 
manufacturers could achieve significantly lower levels than those 
proposed today--for example, the average lead levels in ZSM (35.5% 
zinc) made by at least two different manufacturers typically do not 
exceed 10 ppm, while the proposed standard would be approximately 100 
ppm of lead. For the purpose of this rulemaking, however, the Agency 
does not believe that it is necessary from an environmental perspective 
to set standards based on the very lowest levels that may technically 
be achieved. We do not believe that levels below those proposed would 
result in any significant gain in environmental protection. In 
addition, establishing more stringent standards for metal contaminants 
could force some manufacturers to make substantial additional 
investments to ensure that the standards were met. As discussed further 
in section VIII.A of this preamble, this could result in unnecessary 
dislocations in the zinc fertilizer market, and could raise the prices 
that farmers must pay for zinc fertilizer, with virtually no 
commensurate environmental benefit.
    EPA also acknowledges the possibility that the proposed product 
specifications

[[Page 70970]]

for metal contaminants may not sufficiently account for process 
variabilities, and could thus be unnecessarily stringent. The proposed 
specifications were based on a qualitative assessment of the 
variability of contaminant levels in ZSM fertilizers; for each metal 
the specification was set at slightly above the ``high end'' range of 
concentration levels, based on available data. For example, the 
distribution of lead levels in ZSM (35.5% zinc) indicates that most 
samples contained well below 50 ppm lead, with a few samples in the 80 
to 90 ppm range. The proposed specification for lead in such products 
would be approximately 100 ppm, to account for such variabilities.
    Some ZSM manufacturers have argued that significantly higher limits 
(e.g., 500 ppm lead) should be established to account for these 
variabilities (``Land Application of Hazardous Waste Derived 
Micronutrient Fertilizer,'' Bay Zinc Company and Tetra Technologies, 
Inc., November 19, 1999). The Agency solicits comment (and supporting 
data) as to whether the proposed product specification limits for 
metals are unnecessarily stringent, and what alternative contaminant 
concentration limits may be more appropriate for this rulemaking.
    Alternatives Considered. The Agency examined several different 
approaches to setting limits on metals in conditionally excluded zinc 
fertilizers. These included: (a) Developing new risk-based limits 
specifically for fertilizers; (b) using the EPA standards for biosolids 
applied to agricultural land under section 405 (d) of the Clean Water 
Act (codified at 40 CFR Part 503); (c) using the proposed standards for 
contaminants in cement kiln dust used as a liming agent; (d) using the 
Canadian fertilizer standards; and (e) developing contaminant limits 
based on background soil concentrations. These alternatives are 
discussed in more detail below.
     Risk-based standards. Risk assessment is a tool often used 
by the Agency to set standards aimed at limiting the adverse effects of 
chemicals that are (or may potentially be) introduced into the 
environment. One benefit of such an approach is that it is subject to a 
rigorous peer review process. However, risk assessments to support 
regulatory standard setting can be time and resource intensive.
    As mentioned in Section II.A of this preamble, in response to 
public concerns about possible risks from contaminants in fertilizers, 
EPA developed a risk assessment for contaminants in a wide range of 
different types of fertilizers. This assessment was released in August, 
1999. A major finding of that assessment was that, with a few 
exceptions, the contaminant levels found in fertilizer products are not 
expected to cause risks of concern. However, this risk assessment was 
not intended to support development of risk-based fertilizer standards, 
and there are a number of uncertainties in the analysis that would need 
to be addressed if it were to withstand the rigorous technical scrutiny 
involved in supporting national regulatory standards. For this proposed 
rule the Agency has chosen not to conduct the additional data gathering 
and analyses that would be needed to augment the fertilizer risk 
assessment in this way, given the time and resources that would be 
required to complete such an effort. Moreover, we do not think it 
necessary, given the conclusion from several different analyses (see 
section II.A. of this preamble) that hazardous contaminants in 
fertilizers generally do not pose unacceptable risks to human health 
and the environment, even at relatively high rates of application.\8\
---------------------------------------------------------------------------

    \8\ It is possible, of course, that excessively high rates of 
fertilizer application could result in risks of concern. We do not 
believe, however, that this is a realistic scenario, since zinc 
fertilizers are purchased as a commodity, and that is thus a strong 
incentive not to overuse such products. A massive over-application 
of such fertilizers could in some circumstances be considered a type 
of ``sham recycling'' since it could be inferred that such use is 
more akin to disposal than beneficial use of fertilizer. See Marine 
Shale Processors v. U.S., 81 F 3d 1371, 1381-83 (5th Cir. 1996) 
(sham recycling when material is used in excess of what is needed, 
or where hazardous constituents are present in concentrations 
unrelated to ostensible recycling purpose).
---------------------------------------------------------------------------

    EPA believes that risk-based contaminant limits for this rulemaking 
could potentially allow substantially higher levels of contaminants in 
excluded zinc fertilizers than are currently found in such fertlizers. 
To illustrate, proposed guidelines recently considered by the 
Association of American Plant Food Control Officials (AAPFCO), which 
have since been withdrawn, specified risk-based limits for toxic metals 
in fertilizers that would have allowed, for example, up to 26,000 ppm 
lead in zinc (35.5%) fertilizer (draft SUIP #25, AAPFCO, January 2000). 
In contrast, levels of lead in ZSM fertilizers rarely exceed 100 ppm. 
For the purpose of this proposed rulemaking, EPA does not believe that 
regulatory standards for fertilizers should allow higher risk-based 
contaminant levels in these products over current levels, when much 
lower standards can be easily achieved by ZSM fertilizers. EPA requests 
comment on this issue.
     EPA standards for biosolids used in agriculture. The 
Agency also considered using the standards that have been established 
by EPA for contaminants in biosolids (e.g., sewage sludge) that are 
applied to agricultural land (58 FR 9248). Consistent with the 
discussion above, the use of such risk-based standards for this 
rulemaking could theoretically allow zinc fertilizers to have much 
higher levels of metal contaminants than are currently found in most, 
if not all zinc fertilizers currently on the market. As discussed 
further below, EPA believes that the Sec. 503 standards are fully 
protective of human health and the environment as they apply to 
biosolids applied to the land. However, for the reasons outlined in the 
preceding discussion of risk-based standards, EPA believes that the 
technology-based standards proposed today are more appropriate than the 
Sec. 503 standards for the purpose of this rulemaking. EPA requests 
comment on this issue.
    There are also a number of technical reasons as to why standards 
for metal contaminants developed for land-applied biosolids are 
inappropriate for commercial fertilizers. Biosolids and commercial or 
manmade fertilizers are fundamentally different materials. The key 
difference between these two materials is organic matter content. 
Fertilizers can be classified into one of two categories: organic or 
inorganic. Biosolids are organic fertilizers, composed of biodegradable 
organic matter from waste products of living organisms or decay 
products of once living organisms. Most commercial fertilizers are 
inorganic. Inorganic fertilizers are derived from non-living sources 
and are essentially devoid of organic matter content. Organic and 
inorganic fertilizers exhibit different physical and chemical 
properties. Consequently, they effect the fate and mobility of chemical 
constituents (especially metals) in different ways.
    In general, biosolids exhibit greater metals adsorption capacity 
than inorganic fertilizers because organic matter provides reactive 
sites that bind metals. This binding capacity limits metals mobility in 
the fertilized soil and makes metals less available for uptake by 
plants. Organic binding sites are absent in inorganic fertilizers. 
Therefore, metals applied as a component of inorganic fertilizers tend 
to be more mobile and more readily taken up by plants. Organic and 
inorganic fertilizers also differ in chemical composition. Both contain 
varying levels of metals (e.g., As, Cd, Pb) and agricultural nutrients 
(e.g., phosphate, nitrogen). However,

[[Page 70971]]

biosolids also contain hydrous metal oxides which tend to bind metals 
and further increase the capacity of biosolids to limit metals 
mobility. In addition, biosolids are usually applied at much higher 
rates than fertilizers. Given the significant difference in composition 
and use between these materials, EPA believes that the pollutant 
loading limits established for biosolids are inappropriate for use as 
health based standards for inorganic fertilizers. EPA requests comment 
on this issue.
     Proposed standards for contaminants in cement kiln dust 
used in agriculture. On August 20, 1999 EPA proposed standards for 
management of cement kiln dust, or CKD (64 FR 45631). CKD can be used 
as a substitute for agricultural lime to maintain proper soil pH for 
crop production, and is typically applied at a rate of several tons per 
acre. The proposal included limits on four metal contaminants 
(thallium, lead, arsenic and cadmium) in CKD that is applied to 
agricultural land. These contaminant limits were based on a risk 
assessment conducted in support of the proposed rule.
    CKD is typically used agriculturally only under certain types of 
agronomic conditions. Thus, EPA's risk assessment evaluated risks from 
applying CKD only to acidic, sandy loam soils in a limited number of 
geographic areas and for a limited number of crop types. In contrast, 
zinc fertilizers are applied to a wide variety of different soil types 
to supply nutrient to many different types of crops in virtually every 
area of the country. Because of these limitations, EPA believes that 
the proposed CKD standards are not appropriate for establishing 
contaminant limits for metals in zinc fertilizers. In addition, the 
Agency has received numerous comments on the CKD risk assessment that 
have not yet been thoroughly evaluated, and that analysis has not yet 
been revised to reflect those comments. Until these uncertainties are 
resolved, we do not think it would be appropriate to propose in today's 
rule contaminant limits based on the CKD proposal. We invite comment on 
this regulatory option.
     Canadian standards. EPA examined the option of using the 
Canadian fertilizer standards for this rulemaking (``Standards for 
Metals in Fertilizers and Supplements,'' Trade Memorandum T-4-93; 
Canadian Food Inspection Agency, August 1996). These standards, which 
apply to all fertilizers marketed in Canada, have been in effect since 
1993, and were recently adopted (with somewhat modified assumptions for 
application rates) by the State of Washington. The Canadian standards 
are not risk-based; instead, they are based on a ``no significant 
degradation'' goal for fertilizer amended soils, assuming 45 years of 
fertilizer application. The RCRA statute does not have an analogous, 
explicit ``no significant degradation'' goal.
    The Canadian fertilizer standards are based on a number of 
assumptions regarding application rates, crop types, background levels 
of metals in Canadian agricultural soils, and other factors. In fact, 
the standards are not expressed as maximum concentrations allowed in 
fertilizer products, but rather as limits on the total amounts of 
metals that can be added to farmland over time from fertilizer 
applications. Although it would be possible to make simplifying 
assumptions (i.e., regarding application rates) to derive product 
concentration standards, translating the Canadian standards into RCRA-
style limits on product contaminants might not be entirely 
straightforward. This has, in fact, been part of the State of 
Washington's experience with implementing regulatory restrictions on 
fertilizer contaminants based on the Canadian standards. Since the 
application rate of a fertilizer is a major variable in determining the 
amount of contaminants that are deposited on farmland, it is possible 
for manufacturers to simply lower the recommended application rate for 
a product in order to meet the standards. In EPA's view this 
complexity, and the potential for manipulating application rates to 
meet contaminant standards, is inconsistent with the objective of 
establishing contaminant limits in this rule that are straightforward 
and easily enforced.
    Another issue that has been raised regarding the Canadian standards 
is that they do not reflect the highly variable agricultural practices 
and environmental conditions in the United States. Though it might be 
possible to modify the Canadian standards to fit conditions prevalent 
in the United States, doing so would be a major undertaking that would 
exceed the scope and purpose of this RCRA rulemaking. In any case, to 
date there has been little support expressed by stakeholders for using 
the Canadian standards (or some version of them) in this rulemaking 
effort (``EPA Stakeholder Meetings on Hazardous Waste Derived 
Fertilizers,'' US EPA, November 12-13, 1998). This may be due to the 
fact that there has been some controversy regarding the lack of a clear 
scientific basis for the Canadian standards. The standards were 
originally developed through an expert panel process that involved both 
qualitative and quantitative evaluations by a group of agronomists, 
soil scientists and other experts. The standards therefore are based at 
least in part on expert judgment, rather than a specific, replicable 
scientific methodology.
    Despite these potential complications, EPA requests comment on 
whether the Canadian standards for the purpose of this RCRA rulemaking 
could be a feasible alternative, and justified on the basis of 
incremental benefits and costs. The standards are closer to the levels 
that have been demonstrated as achievable by fertilizer manufacturers, 
and EPA is not aware of any studies suggesting that the Canadian 
standards are less than protective of human health or the environment. 
Such standards have been in effect for more than seven years in Canada, 
and for two years in the State of Washington. The State of Washington 
reports that its experience with implementing Canadian-based standards 
has been generally positive, as evidenced in a recent summary of 
results from the state's fertilizer review process (``Transparent 
Results of Ecology's Review Process in the 1999-2000 Fertilizer 
Registration Cycle,'' Washington Dept. of Ecology, August 2000). 
However, EPA chose not to propose the Canadian fertilizer standards as 
RCRA standards, largely because we believe that the technology-based 
approach outlined in today's proposal is simpler and more 
straightforward, and would result in lower volumes of toxic metals in 
zinc fertilizers.
     Background standards. The option of setting contaminant 
limits for conditionally excluded zinc fertilizers based on naturally 
occurring (i.e., ``background'') levels of metals in agricultural soils 
has been advocated by some stakeholder groups, and was also considered 
by EPA in the development of this proposal. In effect, this approach 
would require that fertilizers contain contaminants at concentrations 
no greater than soil background levels. This would ensure that no 
increase in soil metal concentrations could occur due to fertilizer 
use, regardless of how much or how often the fertilizers were applied, 
and regardless of the attendant risks.
    The Agency chose not to propose this approach, for several reasons. 
Achieving these standards might be technically feasible, but would 
likely require major investments in new capital equipment by 
manufacturers, which would likely result in increased prices of zinc 
fertilizers. Alternatively (and perhaps more likely), manufacturers 
could simply use non-hazardous feedstock materials to make zinc 
fertilizer, thus avoiding RCRA regulation altogether. It

[[Page 70972]]

should also be noted that the standards being proposed today may not be 
dramatically different from levels that might be developed using a 
standard based on background. EPA does not think that it is necessary 
or appropriate in this rulemaking to place new economic burdens on 
industry, or to discourage legitimate recycling practices, without 
clear evidence of any resulting environmental benefits.
    EPA solicits comments on today's proposed standards, and on the 
regulatory options outlined above.
    b. Product Specifications for Dioxins in Conditionally Excluded 
Zinc Fertilizers.
    Background. Dioxins are persistent environmental pollutants that 
are formed as byproducts during combustion of chlorinated organic 
compounds. Of the more than two hundred dioxin compounds, 2,3,7,8-
tetrachlorodibenzo-p-dioxin (2,3,7,8-TCDD) is the most toxic. Given the 
number of different dioxin compounds and their different health 
effects, dioxins are typically measured according to the ``toxicity 
equivalence'' method. This method assigns a ``toxicity equivalence 
factor'' (TEF) of one (1) to 2,3,7,8-TCDD, while the less toxic dioxin 
congeners are assigned values of less than one. In calculating a TEQ 
value, the concentration of each congener in the measured sample is 
multiplied by its TEF, and the products of all the congeners are 
summed. Thus, TEQ values essentially represent the total toxicity of 
dioxins in a given sample, rather than the actual concentrations of 
dioxins in the sample. The methodology for calculating TEFs for dioxin 
congeners is presented in the 1994 EPA publication entitled 
``Estimating Exposures to Dioxin-like Compounds'' (EPA publication 
#600/6-88/005 Ca).
    Although dioxin toxicity has been studied extensively, most studies 
have used animal test data to extrapolate adverse health effects in 
humans; uncertainty remains with regard to the actual human health 
effects of dioxins. Once EPA completes its ongoing reassessment of 
dioxin health effects, the dioxin reassessment will serve as the 
scientific and technical basis for EPA dioxin policy and programs. 
However, until the reassessment has completed scientific peer review, 
and is issued as a final EPA document, the Agency will rely on the 
existing dioxin assessment as a basis for its actions.
    The presence of dioxins in waste-derived fertilizers first came to 
light in a sampling study done by the State of Washington Department of 
Ecology (``Screening Survey for Metals and Dioxins in Fertilizer 
Products and Soils in Washington State,'' Washington Department of 
Ecology Publication #99-309, April 1999). In that study, test results 
from two samples of K061-derived fertilizers indicated the highest 
levels of dioxins of all fertilizers tested, with one product measured 
at 240 parts per trillion (TEQ). The source of dioxins in K061 is not 
definitively known, but may be formed from incomplete combustion of 
chlorine-containing contaminants in the scrap metals used as feedstocks 
in electric arc steelmaking. EPA requests data and analytical results 
regarding the possible sources of such dioxin contamination.
    Proposed product specification for dioxins. EPA is today proposing 
a product specification of eight parts per trillion (8 ppt) TEQ as a 
condition for excluding hazardous waste derived zinc fertilizers from 
regulation. Eight parts per trillion is an estimate of the national 
average background concentration of dioxins in soils in the United 
States, as presented in the EPA report ``Estimating Exposure to Dioxin-
Like Compounds, Review Draft'' (EPA/600/6-88/000Ca; June 1994). More 
detailed and more recent data indicate that rural background soil 
concentrations are somewhat lower than 8 ppt, while urban background 
soil concentrations are somewhat higher. For purposes of this 
rulemaking, the Agency believes that 8 ppt may be a reasonable, 
nationally-representative background level for dioxins in soils. We 
request comment on the validity of the 8 ppt level as a background 
level for the purpose of this rulemaking, and any data that would 
support an alternative national background level for dioxins.
    Today's proposed exclusion level for dioxins based on background 
soil levels reflects a somewhat different approach than the proposed 
exclusion levels for metals, which are in essence technology-based. We 
do not believe we currently have sufficient data on dioxin levels in 
ZSM products to establish a technology-based limit on dioxins. The 
Agency specifically solicits such data. In the absence of additional 
data, we believe that a background standard, as proposed today, should 
be readily achievable and would ensure no net increase in national 
average dioxin background levels. Other regulatory alternatives are 
presented later in this preamble. EPA requests comments, data and 
analytical results that address the proposed standard and the 
alternative options (including the option of not setting a standard).
    The State of Washington's dioxin study included analyses of two 
samples from one ZSM product, which indicated dioxin levels of 
approximately one part per trillion (TEQ) or less. More recent analyses 
conducted by fertilizer manufacturers on a small number of ZSM product 
samples produced similar results (letter from Lester Sotsky to David 
Fagan, May 16, 2000). These very low dioxin levels are not surprising, 
since available data suggest that the levels in ZSM feedstocks are 
typically very low, and the manufacturing process involves several 
chemical refining processes. EPA assumes that zinc fertilizers which 
meet the proposed conditional limits on metals (which will most likely 
be ZSM products) would be expected to have only negligible amounts of 
dioxin contaminants. We believe, therefore, that the proposed dioxin 
standard should be easily met by fertilizers that meet the proposed 
limits for metals, and should not impose significant incremental 
economic burdens on the industry. EPA invites comment on today's 
proposed limit for dioxins, and its derivation.
    Alternatives considered.
     No dioxin limits. EPA considered the option of not setting 
a limit for dioxins in this proposed rulemaking, since the available 
evidence reviewed by the Agency to date does not indicate a compelling 
need to do so. We decided, however, to propose a limit on dioxins 
because of the two samples of K061-derived fertilizer that showed high 
levels of dioxins relative to other fertilizers, the public's high 
level of concern generally over dioxins in the environment, and the 
uncertainties inherent in existing risk assessments. EPA solicits 
comments as to whether a limit on dioxins in excluded zinc fertilizers 
is necessary and appropriate, and whether any such limit on dioxins 
should be included in the final rule.
     Risk-based limits for dioxins in fertilizers. Another 
option was to develop risk-based limits specifically for zinc 
fertilizers, similar to the standards that have been proposed by EPA 
for dioxins in cement kiln dust (64 FR 45631, August 20, 1999) and in 
biosolids (64 FR 72045, December 23, 1999) used in agriculture. Based 
on admittedly limited data, it appears that a typical dioxin TEQ level 
in ZSM is approximately one part per trillion or less. It is probable 
that a risk-based dioxin standard for zinc fertilizers would be 
considerably higher than the actual levels of dioxins currently present 
in high-quality zinc fertilizers. We do not believe that the regulatory 
standards in this proposed rule should reflect substantially higher 
risk-based levels than the levels commonly found in ZSM fertilizers. In 
addition, developing risk-based dioxin standard

[[Page 70973]]

for this rulemaking would likely require considerable additional risk 
assessment studies. We question the need for such an investment in time 
and resources without a compelling need to pursue this regulatory 
alternative. Nevertheless, we are interested in comments and supporting 
information relating to this issue.
     Limits based on the proposed dioxin standard for land-
applied biosolids. EPA currently regulates the land application of 
biosolids (e.g., sewage sludge) under the authority of the Clean Water 
Act (Section 405(d) of the Clean Water Act codified at 40 CFR Part 
503). These regulations have established concentration limits for 
metals in biosolids. In 1999, EPA also proposed a rule that included a 
numerical standard of 300 parts per trillion TEQ for dioxins and 
dioxin-like compounds for land-applied biosolids. The numerical 
standard includes seven 2,3,7,8-substituted dioxins, ten 2,3,7,8-
substituted dibenzofurans, and 12 co-planar polychlorinated biphenyl 
(PCB) congeners. The proposed standard was based on a multi-pathway 
risk assessment which evaluates human health impacts and the fate and 
transport of these compounds through the environment. The proposed rule 
also included monitoring requirements for these compounds to ensure 
that the numerical standard is met. The proposed rule excluded certain 
small size categories of biosolids generators.
    EPA believes that the proposed standards for dioxins and the 
existing standards for metals in land-applied biosolids are protective 
of human health and the environment. The standards have been developed 
based on statutory direction given under section 405(d) of the Clean 
Water Act, and obligations imposed under the terms of a Consent Decree, 
which also established December 15, 2001 as the date by which the 
Agency must promulgate a final rule. EPA is currently evaluating the 
comments submitted on the proposed rule for dioxins in biosolids, in 
preparing the final rulemaking action.
    EPA chose not to base today's proposed fertilizer dioxin limits on 
the proposed biosolids standard for dioxins, for several reasons. The 
Agency received a number of comments on the proposed biosolids that are 
still being evaluated, and some additional assessment work is being 
conducted to support development of the final standard. Given the 
uncertainty about the final outcome of the proposed standard, we do not 
think it appropriate to use it as the basis for a dioxin standard in 
today's rule.
    In addition, the proposed 300 ppt biosolids standard for dioxin is 
considerably higher than today's proposed limit of 8 ppt for 
fertilizers. We believe that the 8 ppt limit for zinc fertilizers 
should be easily achievable, and are concerned about establishing much 
higher limits than are in current fertilizers. EPA requests comment on 
this issue.
     Limits based on proposed dioxin standards for cement kiln 
dust. EPA's proposed rule for cement kiln dust proposed a dioxin 
standard of 40 ppt for agriculturally applied CKD. The CKD standard was 
also based on a risk assessment, analogous to the study done to support 
the proposed dioxin standard for land-applied biosolids. EPA chose not 
to develop a dioxin limit for fertilizers based on the proposed CKD 
standard, for essentially the same reasons (discussed above) that we 
chose not to set limits on metals based on that proposed rule. We 
request comment on the appropriateness of setting a dioxin limit for 
fertilizers based on the proposed CKD standard.
     Complete ban on dioxins in fertilizers. Some stakeholders 
have argued for a complete ban on making fertilizer from any hazardous 
waste that is generated from an industrial process known to create or 
release dioxin. The Agency is not proposing such a ban, primarily 
because we do not believe that there is a convincing environmental 
rationale for doing so. A complete ban would likely eliminate, for 
example, the use of K061 as a fertilizer feedstock material. As 
explained previously, we believe that K061 can be legitimately 
processed and recycled to make high quality zinc fertilizer. We are not 
aware of any evidence that (for example) ZSM products made from 
recycled K061 contain higher levels of dioxin than other ZSM products.
    A complete ban would also require some means of determining which 
industrial processes create or release dioxins. This could become a 
highly complex technical issue involving the detection limits of 
various dioxin test methods, and resolving it would be beyond the scope 
of this rulemaking effort. In addition, it is possible, if not likely, 
that a complete ban would eliminate all recycling of hazardous wastes 
to make zinc fertilizer. The Washington dioxin study detected levels of 
dioxin in the low parts per trillion for many of the fertilizers 
tested, most of which were not waste-derived. It is therefore possible 
that almost all zinc fertilizer feedstocks could have detectable levels 
of dioxins, especially given the extraordinarily sensitive analytical 
methods available today. A complete ban in this rulemaking might thus 
prohibit the use of any hazardous secondary material as a zinc 
fertilizer feedstock, even if their dioxin levels were no higher than 
those in other available feedstock materials. This would be an 
arbitrary result, and would serve no real environmental purpose. EPA 
solicits comments and relevant data on the option of a complete ban on 
the use of hazardous secondary materials generated from industrial 
processes known to create or release dioxins, and on the other 
regulatory options discussed above.
2. Testing and Recordkeeping
    Testing. Under today's proposal, manufacturers of conditionally 
excluded zinc fertilizer products would need to periodically sample and 
analyze their products to determine whether or not they meet the 
exclusion contaminant limits. If analyses show that one or more 
contaminants in the fertilizer exceeds an exclusion limit, the 
manufacturer could choose to reprocess the fertilizer so that it meets 
the limits. An alternative would be to manage the manufactured material 
as a hazardous waste, in compliance with all applicable management 
standards.
    EPA is proposing that manufacturers test their fertilizer products 
for metals at least once every six months, and at least once per year 
for dioxins. As a practical matter, EPA believes that fertilizer 
manufacturers typically sample and analyze their products for metal 
contaminants on more or less an ongoing basis, as a means of monitoring 
quality control. Thus, we believe that twice-yearly testing for metal 
contaminants in excluded zinc fertilizers is reasonable, and would 
likely impose few, if any, additional testing burdens on manufacturers. 
We solicit comment on whether twice yearly testing of fertilizer 
products is appropriate in the context of this rule, or if more 
frequent or less frequent testing should be required.
    For dioxins, less frequent (once-per-year) testing of excluded 
fertilizers is proposed today, for several reasons. For one thing, zinc 
fertilizer manufacturers do not routinely test for dioxins, so any such 
testing requirement would impose an additional burden on industry. 
Dioxin testing is relatively expensive ($2,000 or more per sample), so 
the costs would not be inconsequential. Further, we believe more 
frequent testing for dioxins in excluded zinc fertilizers may not be 
necessary, since (as explained earlier) it is likely that fertilizers 
meeting the proposed metals standards would easily meet the 8 ppt limit 
for dioxins.

[[Page 70974]]

    With regard to the frequency of required dioxin testing, we 
considered several options. One option was to not require testing for 
dioxins as long as the limits for metal contaminants were not exceeded, 
based on the assumption that meeting the limits for metals would ensure 
that the dioxin limit is met. Other options could be to specify a one-
time only test to verify that the excluded zinc fertilizer product 
meets the dioxin standard, to allow less frequent dioxin testing (e.g., 
once every five years), or testing only when there is a manufacturing 
process change that could affect dioxin levels. We solicit comment on 
the proposed once-per-year testing condition for dioxins in excluded 
fertilizers, the alternative regulatory options outlined above, and 
other potential options.
    Test methods. Today's proposal would not require manufacturers to 
use any specific sampling and analytical procedures in demonstrating 
compliance with product specification limits for metals or dioxins. The 
proposal would instead set a performance standard for sampling and 
analysis-manufacturers would have the flexibility to select appropriate 
methods and procedures, provided they can demonstrate that they are 
unbiased, precise and representative of their products. Examples of 
EPA-recommended testing methods and procedures are contained in the EPA 
publication (``Test Methods for Evaluating Solid Waste, Physical/
Chemical Methods,'' EPA publication SW-846, 1986). EPA solicits comment 
and supporting data as to whether the final rule should specify the 
analytical procedures to be used (such as one or more of those in SW-
846, cited above), the methods used to ensure that fertilizer samples 
are representative, or otherwise specify in more detail methods for 
compliance sampling and analysis of fertilizer products.

V. Mining Wastes Used To Make Fertilizer: Request for Comments

    Although zinc fertilizers are the primary focus of today's proposed 
rule, EPA is aware of one iron micro nutrient fertilizer product that 
is made from mining wastes and has been the subject of some concern by 
state regulators and others. This material, which is marketed under the 
brand name ``Aeronaut,'' is an iron micro nutrient fertilizer made from 
wastes generated from beneficiation zinc ores at a mine (now inactive) 
located in Humboldt, Arizona. The mining waste material that is used is 
exempt from regulation as hazardous waste, under the so-called 
``Belville exemption.''
    The primary reason for requesting comment on the use of mining 
wastes to make fertilizers has to do with the very high levels of 
contaminants such as arsenic in Ironite, relative to other fertilizers. 
Data compiled by EPA on fertilizer contaminants indicates that Ironite 
contains, by a wide margin, the highest levels of arsenic of all 
fertilizer products surveyed. A 1998 study by the Arizona Department of 
Health Services indicated mean arsenic concentrations in Ironite of 
4400 ppm, and mean lead concentrations of 2850 ppm (``Human Health Risk 
Assessment for Long-Term Residential Use of Ironite Lawn and Garden 
Nutrient Supplement,'' Arizona Department of Health Services, October 
8, 1998). In comparison, the California Department of Food and 
Agriculture's 1997 study indicated average arsenic concentrations in 
zinc micronutrient fertilizers (many of which are also waste derived) 
of approximately 30 ppm.
    In 1998, a TCLP analysis done by the Oregon Department of 
Environmental Quality found that Ironite exhibited the hazardous 
characteristic of toxicity for arsenic (Oregon Department of 
Environmental Quality Laboratory, Case Number 980474, July 31, 1998). 
Subsequent TCLP testing of Ironite performed by Washington State's 
Department of Ecology generated the same result, indicating at least 
the potential for arsenic to leach into groundwater at levels of 
concern.
    Arsenic is a highly toxic metal, and is also classified as a 
probable human carcinogen by EPA. Recent information indicates that 
arsenic may be of concern at levels below existing regulatory 
standards. A 1999 report by the National Research Council of the 
National Academy of Sciences, entitled Arsenic in Drinking Water 
concluded that EPA's drinking water standard of 50 ppb was not 
protective of human health, and should be revised downward. 
Subsequently, the Agency has proposed to revise the arsenic standard, 
to 5 ppb (65 FR 38887, June 22, 2000), although this standard has not 
been finalized.
    In May 1998 Washington State's Department of Ecology and Department 
of Health commissioned in vitro bioavailability tests on Ironite. The 
results of these tests indicated an up to 36% and 81% bioavailability 
of arsenic and lead, respectively. These results were similar to the 
data initially supplied by the company to the State of Washington. From 
these results, the State of Washington's Department of Health concluded 
that this level of bioavailability could pose an acute risk from direct 
ingestion of the product by children. In view of this conclusion, and 
the fact that no warning labels were on the product at the time, the 
State of Washington Department of Health issued a news release advising 
the public that Ironite ``could be dangerous to health'' under certain 
circumstances (Washington Department of Ecology press release, June 5, 
1998). The product is now labeled in accordance with the State of 
Washington's requirements.
    Arsenic concentrations such as those in Ironite clearly have the 
potential to substantially increase soil arsenic levels, especially if 
the product is improperly applied (the average background level of 
arsenic in soils in the United States is less than 10 ppm). Ingestion 
of Ironite-amended soils (or worse, ingestion of the product itself) by 
children is also a possible concern, and could potentially cause 
serious adverse health effects. As mentioned above, contamination of 
ground water from contaminants in Ironite may be another potential 
exposure pathway.
    Ironite is marketed nationally, primarily as a home and garden 
fertilizer. The company has defended the safety of the product, citing 
several studies that generally support its contention. The Arizona 
Department of Health Services report cited above concluded that `` * * 
* the accumulation of metals that may occur following prolonged use of 
Ironite does not appear to represent a health risk to child or adult 
residents of homes where it is used if the product is applied in 
accordance with the recommendations on the label.'' A separate analysis 
prepared for the Ironite Products Company reached a similar conclusion 
(``Product Safety Risk Assessment of Ironite, a Nutritional Lawn 
Supplement,'' RUST Environment and Infrastructure, June 1998). These 
studies, and other studies commissioned by the company based their 
findings in large part on the fact that much of the arsenic and lead in 
the product are present in naturally occurring arsenopyrite and galena 
mineral forms, respectively, which (according to the company and its 
supporting studies) are relatively non-bioavailable and non-toxic to 
humans. EPA has not studied this particular issue in depth, and has not 
reached any scientific conclusions as to the potential health effects 
of Ironite use.
    EPA is not currently aware of any fertilizers other than Ironite 
that are being made from zinc extraction/beneficiation wastes; it is 
possible, however, that other fertilizers that exhibit a hazardous 
characteristic could be made from other exempted extraction/
beneficiation wastes. In any case, at issue in this matter is that 
Ironite is made from mining wastes that

[[Page 70975]]

are currently exempt from regulation as hazardous wastes.
    The Bevill exemption (RCRA section 3001(b)(3)(A)(ii)) is codified 
in regulations at Sec. 261.4(b)(7), and applies generally to solid 
wastes from extraction and beneficiation of minerals, as well as the 
so-called ``special twenty'' mineral processing wastes. These types of 
wastes are therefore not regulated as hazardous under RCRA, even if 
they exhibit a hazardous waste characteristic (e.g., are toxic as 
measured by the TCLP). However, under RCRA section 3001(b)(2)(C), such 
exempted wastes may be subjected to RCRA regulation, based on a finding 
by EPA that such regulation is warranted.
    In making determinations as to whether Bevill-exempt wastes (which 
would include these types of fertilizers) should be regulated under 
RCRA Subtitle C, the RCRA statute specifies in section 8002(f) certain 
criteria that EPA must evaluate:
    (1) The sources and volume of discarded material generated per year 
from mining;
    (2) Present disposal practices;
    (3) Potential dangers to human health and the environment from 
surface runoff of leachate and air pollution by dust;
    (4) Alternatives to current disposal methods;
    (5) The cost of those alternatives in terms of the impact on mine 
product costs; and
    (6) Potential for use of discarded material as a secondary source 
of the mine product.
    After extensive study, on July 3, 1986, EPA published its final 
regulatory determination for mining wastes, according to RCRA section 
3001(b)(2)(C) (51 FR 24496). This determination concluded that 
extraction/beneficiation wastes should be regulated as non-hazardous 
solid wastes under RCRA Subtitle D. However, the Agency noted that if a 
Subtitle D program with appropriate federal enforcement and oversight 
authority is not developed for these wastes, the Agency may find it 
necessary to reexamine use of Subtitle C authority, with modified 
mining waste standards (51 FR 24501). EPA did not specifically address 
the practice of manufacturing fertilizers from these wastes in the 1986 
regulatory determination, nor was the issue examined as part of the 
study prepared in support of the determination.
    It should be understood that if EPA were to determine that removing 
the Sec. 261.4(b)(7) exemption for these types of fertilizer products 
is warranted, such a decision would affect only a very small portion of 
the universe of Bevill-exempt mining wastes. Removing the exemption in 
this case would apply only to the micronutrient fertilizer products 
that are made from extraction/beneficiation wastes; it would not affect 
the regulatory status of any exempted mining wastes prior to being 
recycled into fertilizers.
    EPA has not at this time reached any definitive conclusions as to 
whether Ironite and similar fertilizer products (if any) merit 
regulation under RCRA Subtitle C. We believe, however, that concerns 
over potential adverse health effects from exposure to fertilizers with 
extremely high arsenic levels, such as Ironite, are worthy of serious 
consideration. We therefore are requesting comments and additional 
information that may assist the Agency in making such a determination, 
either positive or negative. Comments and information that directly 
address the criteria listed above would be particularly useful, as 
would specific information on related issues, such as the following:
     Additional information on potential human health or 
ecological effects from exposure to Ironite.
     Exposure pathways that may be particularly relevant to 
assessing risks associated with the use and handling of this type of 
product.
     Information on any actual damage cases arising from use or 
misuse of Ironite or similar products.
     Information on any other fertilizers (including primary 
nutrient fertilizers containing potassium, nitrogen or phosphorous) 
that are made from Bevill-exempt hazardous extraction, beneficiation or 
mineral processing wastes.
     Information on how and where Ironite or other iron 
fertilizers are actually used, and by whom.
     Other relevant information.
    The Agency will consider all relevant comments and information 
submitted on these issues. At the time EPA finalizes today's proposal, 
we may also issue a proposed determination as to whether or not 
micronutrient fertilizer products that exhibit a hazardous 
characteristic, and that are made from Bevill-exempt extraction/
beneficiation wastes, should be subject to regulation as hazardous 
wastes under RCRA Subtitle C, as provided under section 3001(b)(3). 
Alternatively, the Agency may decide that further data and/or analysis 
is required before such a determination can be made.

VI. Relationship With Other Regulatory Programs

A. Cement Kiln Dust Regulatory Proposal

    On August 20, 1999, EPA proposed Standards for the Management of 
Cement Kiln Dust (CKD) (64 FR 45631). As part of that rulemaking we 
proposed to exclude from regulation under RCRA CKD that is used as a 
liming agent on agricultural fields, provided that such CKD meet 
specified levels for concentrations of certain hazardous constituents. 
CKD is currently used as a substitute for agricultural lime. Liming 
materials are added to agricultural soils to maintain optimum pH for 
crop production and offset the effects of fertilizers that lower soil 
pH. CKD used for pH control is applied in high volumes relative to 
fertilizers and other soil nutrients. The application rate needed to 
maintain the desired increase in soil pH is 2 to 5 tons of CKD per acre 
every 2 to 3 years. EPA has a relatively large amount of data on the 
chemical composition of CKD. This data was collected and used as part 
of EPA's Report to Congress (RTC) on CKD (59 FR 709, January 6, 1994), 
its 1994 Notice of Data Availability (NODA) (59 FR 47133, September 14, 
1994), and its 1995 Regulatory Determination on CKD (60 FR 7366, 
February 7, 1995).
    While EPA encourages environmentally sound beneficial use of 
production process waste streams, including CKD, we believe that the 
benefits from recycling CKD must be balanced against the potential 
hazards which agricultural use of CKD may present. Consequently, we 
conducted a screening level analysis of agricultural use as part of the 
RTC and NODA. That analysis suggested that some CKD, when used at 
plausible application rates, might contain sufficiently high 
concentrations of metals and dioxins to cause food chain risks. Based 
on these initial findings, EPA conducted a more detailed analysis of 
potential risks from use of CKD as an agricultural liming agent. Given 
our data on the chemical composition of CKD, and the preliminary 
results of the risk assessment, we concluded that use of a risk 
assessment conducted to identify protective levels of potentially 
hazardous constituents in CKD used as a liming agent provided the most 
appropriate way to allow for safe beneficial use of CKD.
    Results of EPA's more detailed risk assessment suggest that 
concentrations of arsenic, thallium, lead, cadmium and chlorinated 
dioxins and furans may be present in CKD above levels that pose 
potential risk to human health. Based on

[[Page 70976]]

these findings, EPA proposed to limit the concentrations of these 
compounds that can be present in CKD used to adjust soil pH. In other 
words, EPA proposed standards to limit concentrations of these 
constituents in CKD used as agricultural lime because our risk analysis 
indicated that these compounds are present in CKD in excess of levels 
that may pose risk to human health when CKD is applied at rates 
necessary to attain desired soil pH. Based on these risk findings, EPA 
expressed concern in the proposal that unregulated use of CKD as an 
agricultural liming agent may cause adverse effects on human health.
    EPA received substantial comments on this aspect of the 1999 CKD 
proposal, and is now evaluating them.

B. EPA Standards for Biosolids

    EPA currently regulates the land application of biosolids (e.g., 
sewage sludge) under the authority of the Clean Water Act (Section 
405(d) of the Clean Water Act codified at 40 CFR Part 503). These 
regulations have established concentration limits for metals in 
biosolids. In 1999, EPA also proposed a rule that included a numerical 
standard of 300 parts per trillion TEQ for dioxins and dioxin-like 
compounds for land-applied biosolids. The numerical standard includes 
seven 2,3,7,8-substituted dioxins, ten 2,3,7,8-substituted 
dibenzofurans, and 12 co-planar polychlorinated biphenyl (PCB) 
congeners. The proposed standard was based on a multi-pathway risk 
assessment which evaluates human health impacts and the fate and 
transport of these compounds through the environment. The proposed rule 
also included monitoring requirements for these compounds to ensure 
that the numerical standard is met. The proposed rule excluded certain 
small size categories of biosolids generators.
    EPA believes that the proposed standards for dioxins and the 
existing standards for metals in land-applied biosolids are protective 
of human health and the environment. The standards have been developed 
based on statutory direction given under section 405 (d) of the Clean 
Water Act, and obligations imposed under the terms of a Consent Decree, 
which also established December 15, 2001 as the date by which the 
Agency must promulgate a final rule. EPA is currently evaluating the 
comments submitted on the proposed rule for dioxins in biosolids, in 
preparing the final rulemaking action.

C. State Fertilizer Regulations

    Virtually all States have regulatory programs for fertilizers, 
which are usually administered by state agricultural agencies. 
Traditionally, the primary focus of these regulatory programs has been 
to ensure that fertilizers are accurately classified and labeled, and 
meet manufacturers' plant nutrient claims. Until quite recently, state 
regulatory programs did not explicitly address the issue of controlling 
contaminants such as heavy metals in fertilizer products. In 1998 the 
State of Washington enacted legislation to create this country's first 
comprehensive system for regulating fertilizer contaminants, to include 
limits on metal contaminants in fertilizers, labeling requirements, and 
a mandate for several research projects to study the effects of metal 
contaminants on food crop plants. The specific standards for metals in 
fertilizers were adapted from the Canadian standards. The Washington 
regulations, which apply to all fertilizers marketed in the state, also 
mandate that waste-derived fertilizers receive additional scrutiny as 
to their content and origin, as part of the fertilizer registration 
process. Washington also now maintains a publicly accessible internet 
website containing data on all fertilizers registered in the State of 
Washington, including data on levels of non-nutrient metals in each 
registered product. This database can be accessed at hhtp://www.wa.gov/80/ecology/hwtr/fertilizer/reports/products.html.
    The State of Texas has enacted similar regulations based on the 
federal standards for biosolids. The State of California has also done 
extensive research into fertilizer contaminants, and is currently 
developing a California regulatory program. A number of other states 
are likewise considering regulatory initiatives in this area.
    EPA supports State efforts to regulate contaminants in fertilizers. 
EPA regulates only a small percentage of the fertilizers currently on 
the market (perhaps as little as one percent or less of all fertilizers 
are derived from hazardous wastes, subject to RCRA requirements), and 
the potential certainly exists for contaminant problems in other types 
of fertilizers. For example, cadmium levels in certain phosphate 
fertilizers (which typically are not waste derived) have been the 
subject of some concern recently by researchers, state regulators and 
others. We believe that the State of Washington's fertilizer regulatory 
program has been highly successful in controlling, and in a number of 
cases reducing, contaminants in fertilizer products sold in that state. 
Washington has also successfully pioneered the idea of making 
fertilizer contaminant data available to the public, farmers and others 
through the internet.
    As more states develop comprehensive regulatory programs for 
fertilizers, the consistency between RCRA standards and more broadly 
applicable state standards is expected to become more and more at 
issue. We do not believe that such regulatory inconsistency makes sense 
environmentally or from a public policy perspective, and the Agency 
urges states at a minimum to adopt consistent regulatory standards for 
all zinc fertilizers.

VII. State Authority

A. Statutory Authority

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer the RCRA hazardous waste program within the State. See 40 
CFR part 271 for the overall standards and requirements for 
authorization. Following authorization, the State requirements 
authorized by EPA apply in lieu of equivalent Federal requirements and 
become Federally enforceable as requirements of RCRA. EPA maintains 
independent authority to bring enforcement actions under RCRA sections 
3007, 3008, 3013, and 7003. Authorized States also have independent 
authority to bring enforcement actions under State law. A State may 
receive authorization by following the approval process described under 
40 CFR 271.
    After a State receives initial authorization, new Federal 
requirements promulgated under RCRA authority existing prior to the 
1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that 
State until the State adopts and receives authorization for equivalent 
State requirements. The State must adopt such requirements to maintain 
authorization.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), new 
Federal requirements and prohibitions imposed pursuant to HSWA 
provisions take effect in authorized States at the same time that they 
take effect in unauthorized States. Although authorized States are 
still required to update their hazardous waste programs to remain 
equivalent to the Federal program, EPA carries out HSWA requirements 
and prohibitions in authorized States, including the issuance of new 
permits implementing those requirements, until EPA authorizes the State 
to do so. Authorized States are required to modify their programs only 
when EPA promulgates Federal requirements that

[[Page 70977]]

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 are not required to adopt 
Federal regulations, both HSWA and non-HSWA, that are considered less 
stringent.

B. Effect on State Authorization

    Today's proposal would be promulgated pursuant to non-HSWA 
authority, and contains provisions that are both more stringent and 
less stringent than the current Federal program. The elimination of the 
exemption for K061 derived fertilizers and the proposed product 
specification limits are more stringent provisions which the States 
would have to adopt if promulgated. The conditional exclusion for 
hazardous waste used in zinc fertilizers is less stringent. EPA 
strongly encourages States to adopt all of the provisions of the rule 
once they are finalized.

VIII. Administrative Assessments

A. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735 October 4, 1993) the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``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 economic analysis suggest that this rule is not economically 
significant under Executive Order 12866. OMB has deemed this rule to be 
significant for novel legal or policy issues. As such, this action was 
submitted to OMB for review. Changes made in response to OMB 
suggestions or recommendations will be documented in the public 
record.''
    Detailed discussions of the methodology used for estimating the 
costs, economic impacts and the benefits attributable to today's 
proposed rule for regulatory modifications to the definition of solid 
waste for zinc-containing hazardous waste-derived fertilizers, followed 
by a presentation of the cost, economic impact and benefit results, may 
be found in the background document: ``Economic Analysis for Regulatory 
Modifications to the Definition of Solid Waste For Zinc-Containing 
Hazardous Waste-Derived Fertilizers, Notice of Proposed Rulemaking,'' 
which was placed in the docket for today's proposed rule.
1. Methodology Section
    To estimate the cost, economic impacts to potentially affected 
firms and benefits to society from this proposed rulemaking, we 
analyzed data from zinc micronutrient producers, firm financial 
reports, trade associations and chemical production data. The Agency 
has used both model facilities and actual facilities in analyzing the 
effects of this proposed regulation.
    To estimate the incremental cost of this rule making, we reviewed 
baseline management practices and costs of potentially affected firms. 
The Agency has modeled the most likely post-regulatory scenario 
resulting from the listing (e.g., shifts to non-hazardous fertilizer 
feedstocks, shifting from zinc oxysulfate to zinc sulfate monohydrate 
production) and the estimated the cost of complying with it. The 
difference between the baseline management cost and the post-regulatory 
cost is the incremental cost of the rulemaking.
    To estimate the economic impact of today's proposed rulemaking, we 
compared the incremental cost of the rulemaking with model firm sales. 
The Agency has also considered the ability of potentially affected 
firms to pass compliance costs on in the form of higher prices.
    To characterize the benefits of today's proposal, we evaluated 
available data and presented a qualitative assessment of benefits 
including ecological benefits and protection of natural resources such 
as groundwater.
2. Results
    a. Volume Results. Data reviewed by the Agency indicates that there 
are 3 to 4 zinc micronutrient producers, one zinc producer, one steel 
mill, one waste-to-energy facility and 23 brass fume dust generators 
(ingot makers, mills, and foundries) potentially affected by today's 
proposed rule. Although the exact amount of hazardous waste used in 
zinc micronutrient fertilizer production an annual basis varies from 
year to year, in 1997, data indicate that approximately 46,000 tons of 
hazardous waste were used in the production of zinc micronutrient 
fertilizer. The principal hazardous waste feedstocks were tire ash, 
electric arc furnace dust (K061) and brass fume dust from ingot makers, 
mills and foundries.
    b. Cost Results. For the part of today's proposed rule pertaining 
to zinc micronutrient fertilizers, we estimate the total annual cost 
savings from today's proposal to be $3.24 million for all facilities. 
Costs savings for different groups are summarized in Table 1.

   Table 1.--Estimated Incremental Costs and Cost Savings By Facility
                                Category
------------------------------------------------------------------------
                                                          Incremental
                                                         Annual Costs
           Potentially Affected  Facility               (Cost  Savings)
                                                            (1999$)
------------------------------------------------------------------------
Zinc Oxysulfate Producers...........................    ($0.29 million)
Zinc Sulfate Monohydrate Producers..................    ($0.75 million)
Primary Zinc Products...............................     ($1.0 million)
Tire Ash Generators.................................     ($0.2 million)
Brass Fume Dust Generators..........................     ($1.4 million)
------------------------------------------------------------------------
      Total.........................................    ($3.24 million)
------------------------------------------------------------------------

    Costs and cost savings to zinc oxysulfate producers are estimated 
from either shifting production to zinc sulfate monohydrate or shifting 
to nonhazardous sources of oxysulfate feedstocks. Zinc sulfate 
monohydrate producers and primary zinc producers are estimated to 
realize cost savings from shifting brass fume dust currently used in 
animal feed production to fertilizer production. Under current zinc 
sulfate markets, fertilizers are sold at a higher price than animal 
feed. Waste-to-Energy facilities that generate tire ash are expected to 
incur additional cost from having to shift their ash from fertilizer 
production to zinc oxide reclamation. And brass fume dust generators 
(mills, ingot makers, foundries) are estimated to incur cost savings 
from shifting their dust from zinc reclamation and animal feed to 
fertilizer production.
    c. Economic Impact Results. To estimate potential economic impacts 
resulting from today's proposed rule, we use a first order economic 
impacts measure: the estimated incremental costs or cost savings of 
today's proposed rule as a percentage of affected firms sales. Because 
of data limitations, EPA was unable to obtain profit information for 
potentially affected firms. EPA solicits comment about the availability 
and usefulness of profit data in

[[Page 70978]]

evaluating the economic impact of this proposal on these entities. For 
two zinc oxysulfate producers the estimated impact of the rule is 1.42 
percent in incremental costs for one firm and 0.64 percent in cost 
savings for the other. Two zinc sulfate monohydrate producers are 
estimated to realize cost savings of 0.1 and 15 percent of revenue. For 
the primary zinc producer, the rule is estimated to result in cost 
savings equal to 1 percent of firm sales. The waste-to-energy facility 
is estimated to incur costs of 1.22 percent of annual revenues. More 
detailed information on this estimate can be found in the economic 
analysis placed into today's docket.
    d. Benefits Assessment. Because EPA did not use any risk 
assessments of current or projected metals and dioxin concentrations in 
zinc fertilizers in the development of this rulemaking, the Agency 
cannot make any quantitative conclusions about the risk reduction from 
today's proposal. To estimate the benefits resulting from today's rule, 
EPA looked at available literature and records regarding hazardous 
waste feedstocks used to make zinc micronutrient fertilizers. The data 
suggest that today's rule will reduce loading of toxic non-nutritive 
constituents to the soil. Two zinc oxysulfate samples produced from 
hazardous waste and analyzed by the State of Washington had dioxin 
concentrations between 17 and 42 times background level (``Final Report 
Screening Survey for Metals and Dioxins in Fertilizer Products and 
Soils in Washington State,'' Washington State Department of Ecology, 
April 1999, Figures 1-1 and 1-2). In addition, the zinc oxysulfate 
manufacturing process does not remove any of the lead or cadmium from 
the feedstock material. If promulgated, today's proposal would reduce 
annual loadings of these metals to the soil.
    In addition, today's proposal may reduce natural resource damage 
and contamination to groundwater. EPA is aware of at least two damage 
incidents caused by land placement of hazardous waste prior to 
fertilizer production that resulted in contamination of either 
groundwater or surrounding surface water bodies adjacent to the site. 
(``Report of RCRA Compliance Inspection at American Microtrace 
Corporation,'' US EPA Region VII, December 4, 1996, Editorial, The 
Atlanta Journal/Constitution, April 11, 1993). Today's proposal may 
increase non-use values for these environmental amenities as well.
    The Agency also believes that this rule has the potential for 
reducing what may be considered low probability but high consequence 
adverse human health or environmental impact if contamination from 
hazardous secondary material used in fertilizer production should, 
because of geological conditions such as karst terrain, reach a major 
population drinking water source or sensitive environmental location. 
This proposed rule should lessen the chances of this type of event even 
though the probabilities of such occurrences and the magnitude of any 
impacts are not known.

B. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute, 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 organizations, 
and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that has 
fewer than 1000, 750, or 500 employees per firm depending upon the SIC 
code the firm is primarily classified in; (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; or 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, we have determined that this action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities'' (5 U.S.C. 
Sections 603 and 604). Thus, an agency may certify that a rule will not 
have a significant economic impact on a substantial number of small 
entities if the rule relieves regulatory burden, or otherwise has a 
positive economic effect on all of the small entities subject to the 
rule.
    There are three small entities incurring incremental costs 
resulting from this rulemaking. This first firm is Exeter Energy, a 
waste-to-energy facility that burns tires. It is estimated to incur 
annual costs of $220,000 which is slightly more than one percent of its 
annual sales. Exeter Energy is only one of two waste-to-energy 
facilities in the United States that burns tires for energy. It is 
therefore likely that this firm will be able to pass on much of this 
cost through price increases for its services. EPA does not believe 
that this firm will be significantly impacted. The second firm, Bay 
Zinc, is a zinc sulfate/zinc oxysulfate producer. The firm is estimated 
to realize costs equal to slightly more than one percent of revenues 
for its zinc oxysulfate line. However, EPA does not believe that Bay 
Zinc will be significantly impacted because its increased costs will be 
offset to some extent by the increased availability of less expensive 
(previously hazardous waste) feedstocks such as brass fume dust for its 
zinc sulfate monohydrate line. EPA has only analyzed the impact of the 
rule on this firm's zinc oxysulfate line. However the rule will affect 
both zinc fertilizer lines. The net economic impact of the rule on Bay 
Zinc is likely to be far less than 1 percent of the firm's sales 
notwithstanding the cost to its oxysulfate line. EPA also notes that 
there is currently a market trend away from zinc oxysulfate in favor of 
zinc sulfate monohydrate due to the former's higher heavy metal content 
(see www.chemexpo.com/news/newsframe.cfm?framebody=/news/profile.cfm as 
obtained August 27, 2000 for zinc sulfate). Therefore, it is likely 
that even in the absence of this proposed rulemaking, the marketability 
of zinc oxysulfate is declining in favor of zinc sulfate monohydrate 
production.
    For the reasons discussed above, I hereby certify that this rule 
will not have a significant adverse economic impact on a substantial 
number of small entities. This rule, therefore, does not require a 
regulatory flexibility analysis.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1189.08) and a copy may be obtained from Sandy Farmer by mail 
at OPPE Regulatory Information Division;

[[Page 70979]]

U.S. Environmental Protection Agency, Office of Environmental 
Information, Collection Strategies Division (2822), 1200 Pennsylvania 
Avenue, NW., Washington, DC 20460; by email at 
[email protected], or by calling (202) 260-2740. A copy may also 
be downloaded off the internet at http://www.epa.gov/icr.
    EPA is proposing the following conditions for reporting and 
recordkeeping by generators and manufacturers: The proposed rule would 
require generators to submit a one-time notice to the EPA Regional 
Administrator (or the state Director in an authorized state) and to 
maintain all records of all shipments of excluded hazardous secondary 
materials for a minimum of three years.
    As a condition of the exclusion, manufacturers would be required to 
submit a one-time notice, retain for a minimum of three years records 
of all shipments of excluded hazardous secondary materials that were 
received by the zinc fertilizer manufacturer during that period, and 
submit an annual report identifying the types, quantities and origins 
of all such excluded materials that were received by the manufacturer 
in the preceding year. The manufacturer would also be required to 
perform sampling and analysis of the fertilizer product to determine 
compliance with the contaminant limits for metals no less than every 
six months, and for dioxins no less than every twelve months. These 
conditions would replace the current hazardous waste regulatory 
requirements for reporting and recordkeeping and are designed to 
improve the accountability system, and government oversight 
capabilities over the handling of secondary materials used to make zinc 
fertilizers.
    EPA estimates that the total annual respondent burden for the new 
paperwork requirements in the rule is approximately 45 hours per year 
and the annual respondent cost for the new paperwork requirements in 
the rule is approximately $9,875. However, in addition to the new 
paperwork requirements in the proposed rule, EPA also estimated the 
burden and cost savings that generators and manufacturers could expect 
as a result of no longer needing to comply with the existing RCRA 
information collection requirements for the excluded materials. This 
cost savings of $21,149 minus the $9,875 cost for the new paperwork 
requirements would result in an overall cost savings $11,275 from the 
proposed rule. The net cost to EPA of administering the rule was 
estimated at approximately $244 per year.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
    Comments are requested on the Agency's need for this information, 
the accuracy of the provided burden estimates, and any suggested 
methods for minimizing respondent burden, including through the use of 
automated collection techniques. Send comments on the ICR to the U.S. 
Environmental Protection Agency, Office of Environmental Information, 
Collection Strategies Division (2822), 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460 and to the Office of Information and Regulatory 
Affairs, Office of Management and Budget, 725 17th St., NW., 
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.'' 
Include the ICR number in any correspondence. Since OMB is required to 
make a decision concerning the ICR between 30 and 60 days after 
November 28, 2000, a comment to OMB is best assured of having its full 
effect if OMB receives it by December 28, 2000. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 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 
must prepare a written analysis, 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 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. 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 to have meaningful and timely 
input in the development of regulatory proposals, and informing, 
educating, and advising small governments on compliance with the 
regulatory requirements.
    This rule does not include a Federal mandate that may result in 
expenditures of $100 million or more to State, local, or tribal 
governments in the aggregate, because this rule imposes no enforceable 
duty on any State, local, or tribal governments. EPA also has 
determined that this rule contains no regulatory 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. Therefore, today's proposed rule is not subject 
to the requirements of sections 202, 203, and 205 of UMRA.

E. Federalism--Applicability of Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides

[[Page 70980]]

the funds necessary to pay the direct compliance costs incurred by 
State and local governments, or EPA consults with State and local 
officials early in the process of developing the proposed regulation. 
EPA also may not issue a regulation that has federalism implications 
and that preempts State law, unless the Agency consults with State and 
local officials early in the process of developing the proposed 
regulation.
    Section 4 of the Executive Order contains additional requirements 
for rules that preempt State or local law, even if those rules do not 
have federalism implications (i.e., the rules will not have substantial 
direct effects on the States, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government). Those 
requirements include providing all affected State and local officials 
notice and an opportunity for appropriate participation in the 
development of the regulation. If the preemption is not based on 
express or implied statutory authority, EPA also must consult, to the 
extent practicable, with appropriate State and local officials 
regarding the conflict between State law and Federally protected 
interests within the agency's area of regulatory responsibility.
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This proposed rule directly 
affects primarily zinc micronutrient producers and generators of 
hazardous wastes used in zinc fertilizer production. There are no State 
and local government bodies that incur direct compliance costs by this 
rulemaking. And State and local government implementation expenditures 
are expected to be less than $500,000 in any one year (for more 
information, please refer to the background document entitled 
``Federalism Analysis (Executive Order 13132) for Zinc-Containing 
Hazardous Waste-Derived Fertilizers, Notice of Proposed Rulemaking: 
Substantial Direct Effects'', August 2000). Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.
    This proposed rule would preempt State and local law that is less 
stringent for these zinc-bearing hazardous wastes. Under the Resource 
Conservation and Recovery Act (RCRA), 42 U.S.C. 6901 to 6992k, the 
relationship between the States and the national government with 
respect to hazardous waste management is established for authorized 
State hazardous waste programs, 42 U.S.C. 6926 (Sec. 3006), and 
retention of State authority, 42 U.S.C. 6929 (section 3009). Under 
section 3009 of RCRA, States and their political subdivisions may not 
impose requirements less stringent for hazardous waste management than 
the national government. By publishing and inviting comment on this 
proposed rule, we hereby provide State and local officials notice and 
an opportunity for appropriate participation. Thus, we have complied 
with the requirements of section 4 of the Executive Order.

F. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    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 of Indian Tribal 
governments, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by the tribal governments, 
or EPA consults with those governments. If EPA complies by consulting, 
Executive Order 13084 requires EPA to 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 
officials 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 proposal would not significantly or uniquely affect the 
communities of Indian tribal governments, nor would it impose 
substantial direct compliance costs on them.

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

    The Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997) applies to any rule that EPA determines: (1) Is ``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. This proposal is not 
economically significant under Executive Order 12866.

H. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 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. EPA 
has proposed to condition exclusion on the fertilizer material based on 
contaminant levels for metals and dioxins. And after considering 
alternatives, EPA has determined that it would be impractical to use 
voluntary consensus standards for the reasons stated in Section C 
above.

I. Executive Order 12898

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all populations in the United States. 
The Agency's 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 or environmental 
impacts as a result of EPA's policies, programs, and activities, and 
that all people live in safe and healthful environments. In response to 
Executive Order 12898 and to concerns voiced by many groups outside the 
Agency, EPA's Office of Solid Waste and Emergency Response formed an 
Environmental Justice Task Force to analyze the array of environmental 
justice issues specific

[[Page 70981]]

to waste programs and to develop an overall strategy to identify and 
address these issues (OSWER Directive No. 9200.3-17).
    Today's proposed rule pertains to hazardous wastes used in zinc 
micronutrient production. It is not certain whether the environmental 
problems addressed by this rule could disproportionately affect 
minority or low-income communities. Today's proposed rule is intended 
to reduce risks of excluded hazardous secondary materials as proposed, 
and to benefit all populations. As such, this rule is not expected to 
cause any disproportionately high and adverse impacts to minority or 
low-income communities versus non-minority or affluent communities.
    The wastes proposed for exclusion will be subject to protective 
conditions regardless of where they are generated and regardless of 
where they may be managed. Although the Agency understands that the 
proposed exclusion, if finalized, may affect where these wastes are 
managed in the future, the Agency's decision to conditionally exclude 
these materials is independent of any decisions regarding the location 
of waste generators and the siting of waste management facilities. 
Today's proposed rule will reduce loadings of toxic non-nutritive 
constituents to the soil. It will also preclude outdoor storage of 
hazardous secondary materials used in zinc fertilizer production. EPA 
believes that these provisions of the proposal will benefit all 
populations in the United States, including low-income and minority 
communities.
    We encourage all stakeholders including members of the 
environmental justice community and members of the regulated community 
to provide comments or further information related to potential 
environmental justice concerns or impacts, including information and 
data on facilities that have evaluated potential ecological and human 
health impacts (taking into account subsistence patterns and sensitive 
populations) to minority or low-income communities.

List of Subjects

40 CFR Part 261

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

40 CFR Part 266

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

40 CFR Part 268

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

    Dated: November 15, 2000.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for part 261 continues to read as 
follows:

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

Subpart A--General

    2. Section 261.4 is amended by adding new paragraphs (a)(20) and 
(21) to read as follows:


Sec. 261.4  Exclusions.

    (a) * * *
    (20) Hazardous secondary materials used to make zinc fertilizers, 
provided that the following conditions are satisfied:
    (i) Hazardous secondary materials used to make zinc micronutrient 
fertilizers must not be accumulated speculatively.
    (ii) Generators of zinc-bearing hazardous secondary materials that 
are to be incorporated into zinc fertilizers must:
    (A) Store the excluded secondary material in tanks, containers, or 
in buildings. The tanks, containers or buildings must be constructed 
and maintained in a way that prevents releases of the secondary 
materials into the environment. At a minimum, any building used for 
this purpose must be an engineered structure made of non-earthen 
materials that provide structural support, and must have a floor, walls 
and a roof that prevent against wind dispersal or contact with 
rainwater. Tanks used for this purpose must be structurally sound and 
must have roofs or covers that prevent contact with wind or rain. 
Containers used for this purpose that are not located in buildings must 
be made of metal or other rigid material that has structural integrity, 
and must have lids or covers that prevent wind or water dispersal of 
the stored materials.
    (B) Submit a one-time notice to the Regional Administrator or State 
Director in whose jurisdiction the exclusion is being claimed, which 
contains the following information:
    (1) Name, address and EPA ID number of the generator facility;
    (2) Name and address of the fertilizer manufacturer(s) to which 
excluded secondary materials are expected to be shipped;
    (3) A brief description of the industrial process(s) which 
generated the secondary material, and estimated annual quantity of 
excluded secondary materials that are expected to be shipped to each 
fertilizer manufacturer; and
    (4) If excluded secondary materials are to be shipped off-site, a 
certification that the state in which the receiving facility(s) is 
located is authorized to administer the provisions of this section.
    (C) Maintain at the generating facility for no less than three 
years records of all shipments of excluded hazardous secondary 
materials. For each shipment these records must at a minimum contain 
the following information:
    (1) Name of the transporter and date of the shipment;
    (2) Name and address of the fertilizer manufacturer who received 
the excluded material, documentation confirming the manufacturer's 
receipt of the shipment, and a notice to the receiving manufacturer 
that the shipped materials are excluded from regulation, subject to the 
conditions specified in this paragraph (a)(20);
    (3) Type and quantity of excluded secondary material in each 
shipment.
    (iii) Manufacturers of zinc fertilizers or zinc fertilizer 
ingredients made from excluded hazardous secondary materials must:
    (A) Store excluded hazardous secondary materials in accordance with 
the storage requirements for generators, as specified in paragraph 
(a)(20)(ii)(A) of this section.
    (B) Submit a one-time notification to the Regional Administrator or 
State Director that, at a minimum, contains the following information:
    (1) Name, address and EPA ID number of the manufacturing facility.
    (2) Estimated annual quantities of excluded hazardous secondary 
materials to be used, and the industrial processes from which they are 
expected to be generated.
    (3) Names, locations and EPA ID numbers of generator facilities 
expected to supply such materials.
    (C) Maintain for a minimum of three years records of all shipments 
of excluded secondary materials received by the manufacturer, which 
must at a minimum identify for each shipment the name and address of 
the generating facility, name of transporter and date the materials 
were received, type and quantity received, and a brief

[[Page 70982]]

description of the industrial process that generated the waste.
    (D) Submit to the Regional Administrator or State Director an 
annual report that identifies the total quantities of all excluded 
hazardous secondary materials that were used to manufacture zinc 
fertilizer or zinc fertilizer ingredients in the previous year, the 
name and address of each generating facility, and the industrial 
process(s) from which they were generated.
    (iv) Nothing in this section preempts, overrides or otherwise 
negates the provision in Sec. 262.11 of this chapter, which requires 
any person who generates a solid waste to determine if that waste is a 
hazardous waste.
    (21) Zinc fertilizers made from hazardous wastes, or hazardous 
secondary materials excluded under paragraph (a)(20) of this section, 
provided that:
    (i) The fertilizers meet the following contaminant limits:
    (A) For metal contaminants:

------------------------------------------------------------------------
                          Constituent                             Total
-------------------------------------------------------------------\1\--
1. Lead.......................................................       2.8
2. Cadmium....................................................       1.4
3. Arsenic....................................................       0.6
4. Mercury....................................................       0.3
5. Nickel.....................................................       1.4
6. Chromium...................................................      0.6
------------------------------------------------------------------------
\1\ Maximum Allowable Total Concentration in Fertilizer, per Unit (1%)
  of Zinc (ppm).

    (B) For dioxin contaminants the fertilizer must contain no more 
than eight (8) parts per trillion of dioxin, measured as toxic 
equivalent (TEQ).
    (ii) The manufacturer performs sampling and analysis of the 
fertilizer product to determine compliance with the contaminant limits 
for metals no less than every six months, and for dioxins no less than 
every twelve months. The manufacturer may use any reliable analytical 
method to demonstrate that no constituent of concern is present in the 
product at concentrations above the applicable limits. It is the 
responsibility of the manufacturer to ensure that the sampling and 
analysis are unbiased, precise, and representative of the product(s) 
that is introduced into commerce.
    (iii) The manufacturer maintains for no less than three years 
records of all sampling and analyses performed for purposes of 
determining compliance with the requirements of (a)(21)(ii) of this 
section. Such records must at a minimum include:
    (A) The dates and times product samples were taken, and the dates 
the samples were analyzed;
    (B) The names and qualifications of the person(s) taking the 
samples;
    (C) A description of the methods and equipment used to take the 
samples;
    (D) The name and address of the laboratory facility at which 
analyses of the samples were performed;
    (E) A description of the analytical methods used, including any 
cleanup and sample preparation methods; and
    (F) All laboratory analytical results used to determine compliance 
with the contaminant limits specified in this paragraph 
(a)(21)(iii)(F).
    (iv) In an enforcement action, the burden of proof to establish 
conformance with the conditions in this paragraph (a)(21)(iv) and in 
paragraph (a)(20) of this section, shall be on the generator or 
manufacturer claiming the exclusion.
* * * * *

PART 266--[AMENDED]

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

    Authority: 42 U.S.C. 1006, 2002(a), 3004, and 3014, 6905, 6906, 
6912, 6922, 6924, 6925, and 6937.

Subpart C--Recyclable Materials Used in a Manner Constituting 
Disposal

    4. Section 266.20 is amended by removing the last two sentences of 
paragraph (b), and adding a new paragraph (d) to read as follows:


Sec. 266.20  Applicability.

* * * * *
    (d) Fertilizers that contain recyclable materials are not subject 
to regulation provided that:
    (1) They are zinc fertilizers excluded from the definition of solid 
waste according to Sec. 261.4(a)(21) of this chapter; or
    (2) For non-zinc fertilizers, the fertilizers meet the applicable 
treatment standards in subpart D of Part 268 of this chapter for each 
hazardous waste that they contain.

PART 268--[AMENDED]

    5. The authority citation for part 268 continues to read as 
follows:

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

Subpart D--Treatment Standards


Sec. 268.40  [Amended]

    6. Section 268.40 is amended by removing paragraphs (i) and (j).

[FR Doc. 00-29876 Filed 11-27-00; 8:45 am]
BILLING CODE 6560-50-P