[Federal Register Volume 66, Number 224 (Tuesday, November 20, 2001)]
[Rules and Regulations]
[Pages 58258-58300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27833]



[[Page 58257]]

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Part III





Environmental Protection Agency





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40 CFR Part 148 et al.



Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste: Inorganic Chemical Manufacturing Wastes; Land Disposal 
Restrictions for Newly Identified Wastes; and CERCLA Hazardous 
Substance Designation and Reportable Quantities; Final Rule

  Federal Register / Vol. 66, No. 224 / Tuesday, November 20, 2001 / 
Rules and Regulations  

[[Page 58258]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 148, 261, 268, 271, and 302

[SWH-FRL-7099-2]
RIN 2050-AE49


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste: Inorganic Chemical Manufacturing Wastes; Land Disposal 
Restrictions for Newly Identified Wastes; and CERCLA Hazardous 
Substance Designation and Reportable Quantities

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is listing as 
hazardous three wastes generated from inorganic chemical manufacturing 
processes. EPA is promulgating these regulations under the Resource 
Conservation and Recovery Act (RCRA), which directs EPA to determine 
whether certain wastes generated by inorganic chemical manufacturing 
industries may present a substantial hazard to human health or the 
environment. The effects of listing these three wastes as hazardous are 
to subject them to: comprehensive management and treatment standards 
under Subtitle C of RCRA; and emergency notification requirements for 
releases to the environment under the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA). This final rule 
also adds the toxic constituents found in the wastes being listed as 
hazardous to the list of constituents that serves as the basis for 
classifying wastes as hazardous and establishing treatment standards 
for the wastes. Additionally, EPA is making final determinations not to 
list the remainder of wastes generated by inorganic chemical 
manufacturing processes that were described in our proposed listing 
determination.
    Finally, EPA is applying universal treatment standards (UTS) under 
the Land Disposal Restrictions program to the inorganic chemical 
manufacturing wastes listed in this rulemaking. The listed wastes must 
be treated to meet these treatment standards for specific constituents 
prior to land disposal.
    At this time, however, we are deferring final action on all 
elements of the proposal related to manganese, including the proposal 
to add manganese to Appendix VII of 40 CFR 261 as a basis for listing 
K178, to add manganese to Appendix VIII of 40 CFR 261, to add manganese 
to the UTS and to the BDAT standards for F039, and to set an RQ 
standard in Sec. 302.4 for manganese.

EFFECTIVE DATE: This rule is effective on May 20, 2002.

ADDRESSES: Supporting materials to this final rule are available for 
viewing in the RCRA Information Center (RIC), located at Crystal 
Gateway I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. 
The Docket Identification Number is F-2001-ICMF-FFFFF. The RIC is open 
from 9 a.m. to 4 p.m., Monday through Friday, excluding federal 
holidays. To review docket materials, it is recommended that the public 
make an appointment by calling (703) 603-9230. The public may copy a 
maximum of 100 pages from any regulatory docket at no charge. 
Additional copies cost $0.15/page. The docket index and some supporting 
materials are available electronically. See the beginning of the 
Supplementary Information section for information on accessing them.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA/Superfund Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing 
impaired). In the Washington, DC, metropolitan area, call (703) 920-
9810 or TDD (703) 412-3323. For information on specific aspects of the 
rule, contact Ms. Gwen DiPietro, Office of Solid Waste (5304W), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460. [E-mail address and telephone number: 
[email protected] (703-308-8285).] For technical information on the 
CERCLA aspects of this rule, contact Ms. Lynn Beasley, Office of 
Emergency and Remedial Response (5204G), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, [E-mail 
address and telephone number: [email protected] (703-603-9086).]

SUPPLEMENTARY INFORMATION: Whenever ``we'' is used throughout this 
document, it refers to the Environmental Protection Agency (EPA).
    The docket index and some supporting documents in the docket for 
this proposal are available in electronic format on the Internet 
at:http://www.epa.gov/epaoswer/hazwaste/id/inorchem/pr2000.htm>.
    We will keep the official record for this action in paper form. The 
official record is the paper record maintained at the RCRA Information 
Center, also referred to as the Docket, at the address provided in the 
ADDRESSES section at the beginning of this document.

Acronyms Used in the Rule

AWQC--Ambient Water Quality Criteria
BDAT--Best Demonstrated Available Technology
BHP--Biodegradation, hydrolysis, and photolysis
CERCLA--Comprehensive Environmental Response, Compensation, and 
Liability Act
CFR--Code of Federal Regulations
CMBST--Combustion
CWA--Clean Water Act
DAF--Dilution and attenuation factor
ED--Environmental Defense
EPA/USEPA--United States Environmental Protection Agency
HSWA--Hazardous and Solid Waste Amendments
HWIR--Hazardous Waste Identification Rule
HQ--Hazard quotient
HBL--Health-based level
ICP--Inductively Coupled Plasma
IRIS--Integrated Risk Information System
Kd--Soil-water distribution coefficients
kg--Kilogram
LDR--Land Disposal Restrictions
mg--Milligrams
MT--Metric ton
MTR--Minimum technology requirement
ng--Nanograms
NPDES--National Pollutant Discharge Elimination System
NPRM--Notice of Proposed Rulemaking
NRC--National Response Center
NTTAA--National Technology Transfer and Advancement Act of 1995
OSWER--Office of Solid Waste and Emergency Response
PDF--Probability density function ppm--Parts per million
RFA--Regulatory Flexibility Act
RfD--Reference dose
RQ--Reportable Quantity
RCRA--Resource Conservation and Recovery Act
RIC--RCRA Information Center
SBREFA--Small Business Regulatory Enforcement Fairness Act of 1996
SPLP--Synthetic Precipitation Leaching Procedure
TCDD--2,3,7,8-Tetrachlorodibenzo-p-dioxin
TEQ--Toxicity equivalence
TC--Toxicity Characteristic
TCLP--Toxicity Characteristic Leaching Procedure
TSDF--Treatment, storage, and disposal facility
g--Micrograms
UMRA--Unfunded Mandates Reform Act of 1995
UTS--Universal treatment standards
USC--United States Code
WHO--World Health Organization

Contents of this Final Rule

I. Overview

[[Page 58259]]

    A. Who Will be Affected by this Final Rule?
    B. What is the ``Readable Regulations'' Format?
    C. What are the Statutory Authorities for this Final Rule?
    D. How does the ED v. Whitman Consent Decree Impact this Final 
Rule?
II. Summary of Today's Action
III. Summary of Proposed Rule
    A. What Wastes Associated with the Inorganic Chemicals 
Manufacturing Industries Were Determined to be Outside the Scope of 
the Consent Decree for the Proposed Rule?
    B. Which Wastes Did EPA Propose to List as Hazardous?
    1. Baghouse Filters from the Production of Antimony Oxide
    2. Antimony Slag that is Speculatively Accumulated or Disposed
    3. Non-wastewaters from the Production of Titanium Dioxide by 
the Chloride-ilmenite Process
    C. Which Constituents Did EPA Propose to Add to Appendix VIII of 
40 CFR part 261?
    D. What Was the Proposed Status of Landfill Leachate from 
Previously Disposed Wastes?
    E. What Were the Proposed Treatment Standards Under RCRA's Land 
Disposal Restrictions Standards?
    F. What Risk Assessment Approach Was Used for the Proposed Rule?
    IV. What is the Rationale for Today's Final Rule?
    A. Final ``No List'' Determinations
    B. Deferral of Final Action on Manganese-related Elements of 
Proposed Rule
    C. Final Antimony Oxide Listing Determinations
    1. K176 Baghouse Filters
    2. K177 Slag
    3. Scope Issues--production of intermediates
    4. Scope--offsite recycling
    D. Final Titanium Dioxide Listing Determination
    1. Overview of Listing Determination
    2. Overview of K178 Comments
    3. Overview of K178 Waste Subcategories
    4. Management Scenarios
    5. Scope Issues--Exempt Mineral Processing Wastes
    6. Comments Related to the Constituents of Concern and Modeling 
Issues
    7. Wastewater Treatment Sludge
    8. Ferric Chloride Residues
    9. Conclusions
    10. RCRA versus HSWA Listing
    E. What is the Status of Landfill Leachate Derived From Newly-
listed K176, K177, and K178 Wastes?
    F. What are the Final Treatment Standards Under RCRA's Land 
Disposal Restrictions for the Newly-Listed Hazardous Wastes?
    1. What are EPA's Land Disposal Restrictions (LDRs)?
    2. What are the Treatment Standards for K176?
    3. What are the Treatment Standards for K177?
    4. What are the Treatment Standards for K178?
    G. Is There Treatment Capacity for the Newly Listed Wastes?
    1. Introduction
    2. What are the Capacity Analysis Results for K176, K177, and 
K178?
    3. What is the Capacity Analysis Result due to the Proposed 
Revision of the F039 Standard?
V. When Must Regulated Entities Comply With the Provisions in 
Today's Final Rule?
    A. Effective Date
    B. Section 3010 Notification
    C. Generators and Transporters
    D. Facilities Subject to Permitting
    1. K176 and K177: Facilities Newly Subject to RCRA Permit 
Requirements
    2. K178: Facilities Newly Subject to RCRA Permit Requirements
    3. K176 and K177: Existing Interim Status Facilities
    4. K178: Existing Interim Status Facilities
    5. K176 and K177: Permitted Facilities
    6. K178: Permitted Facilities
    7. K176, K177 and K178: Units
    8. K176 and K177: Closure
    9. K178: Closure
VI. How Will This Rule be Implemented at the State Level?
    A. Applicability of Rule in Authorized States
    B. Authorization of States for Today's Final Rule
VII. What are the Reportable Quantity Requirements for the Newly-
Listed Wastes under the Comprehensive Environmental Response, 
Compensation, and Liability Act?
    A. When do I have to Report my Releases?
    B. What was the Basis for the RQ Adjustment?
    C. What if I know the Concentration of the Constituents in my 
Waste?
VIII.Administrative Assessments
    A. Executive Order 12866
    1. Methodology Section
    2. Results
    B. Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 12898: Environmental Justice
    F. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    G. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    H. Executive Order 13132: Federalism
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act
    K. Executive Order 13211: Energy Effects

I. Overview

A. Who Will Be Affected by This Final Rule?

    Today's final action will affect those who handle the wastes that 
we are adding to EPA's list of hazardous wastes under the RCRA program. 
This action also will affect entities that need to respond to releases 
of these wastes as CERCLA hazardous substances. These potentially-
affected entities are described in detail in the Economics Background 
Document placed in the docket in support of today's final rule. A 
summary is shown in Table I--1 below:

 Table I--1: Summary of Facilities Potentially Affected by the US EPA's
     2000 Inorganic Chemical Manufacturing Waste Listing Final Rule
------------------------------------------------------------------------
                                                              Number of
                                                                 U.S.
                                                               Relevant
         SIC Code/NAIC Code           Industry Sector Name    Inorganic
                                                                 Mfg.
                                                              Facilities
------------------------------------------------------------------------
2816/325131........................  Inorganic Pigments/               1
                                      Ingoranic Dye and
                                      Pigment Manufacturing.
2819/325188........................  Industrial Inorganic          \1\ 3
                                      Chemicals, not
                                      elsewhere classified/
                                      Other.
------------------------------------------------------------------------
\1\ Other SIC/NAICS codes may be used by impacted facilities (e.g., 3339/
  3331419).

    The list of potentially affected entities in the above table may 
not be exhaustive. Our aim is to provide a guide for readers regarding 
entities likely to be regulated by this action. This table lists those 
entities that we are aware of that potentially could be affected by 
this action. However, this action may affect other entities not listed 
in the table. To determine whether your facility is regulated by this 
action, you should examine 40 CFR parts 260 and 261 carefully in 
concert with the final rules amending these regulations that are found 
at the end of this Federal Register document. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding section entitled FOR FURTHER 
INFORMATION CONTACT.

B. What Is the ``Readable Regulations'' Format?

    Today's preamble and regulations are written in ``readable 
regulations'' format. The authors tried to use active rather than 
passive voice, plain language, a question-and-answer format, the 
pronouns ``we'' for EPA and ``you'' for the owner/generator, and other 
techniques to make the information in today's rule easier to read and 
understand. This format is part of our efforts toward regulatory 
improvement. We believe this format helps readers understand the 
regulations, which should then increase compliance, make enforcement 
easier, and foster better

[[Page 58260]]

relationships between EPA and the regulated community.

C. What Are the Statutory Authorities for This Final Rule?

    Today's hazardous waste regulations are promulgated under the 
authority of sections 2002(a), 3001(b), 3001(e)(2), 3004(d)-(m) and 
3007(a) of the Solid Waste Disposal Act, 42 U.S.C. 6912(a), 6921(b) and 
(e)(2), 6924(d)-(m) and 6927(a), as amended several times, most 
importantly by the Hazardous and Solid Waste Amendments of 1984 (HSWA). 
These statutes commonly are referred to as the Resource Conservation 
and Recovery Act (RCRA), and are codified at Volume 42 of the United 
States Code (U.S.C.), sections 6901 to 6992(k) (42 U.S.C. 6901-
6992(k)).
    Section 102(a) of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9602(a) is 
the authority under which the CERCLA aspects of this rule are 
promulgated.

D. How Does the ED v. Whitman Consent Decree Impact This Final Rule?

    The 1984 Hazardous and Solid Waste Amendments (HSWA) to RCRA 
require EPA to make listing determinations for several specified 
categories of wastes, including ``inorganic chemical industry wastes'' 
(see RCRA section 3001(e)(2)). In 1989, Environmental Defense (ED) 
filed a lawsuit to enforce the statutory deadlines for listing 
decisions in RCRA section 3001(e)(2) (ED v. Whitman; D.D.C. Civ. No. 
89-0598). To resolve the listing issues in the case, ED and EPA entered 
into a consent decree, which has been amended several times to revise 
deadlines for EPA action. Paragraph 1.g (as amended) of the Consent 
Decree addresses the inorganic chemical industry:

    EPA shall promulgate a final listing determination for inorganic 
chemical industry wastes on or before October 31, 2001. This listing 
determination shall be proposed for public comment on or before 
August 30, 2000. The listing determination shall include the 
following wastes: sodium dichromate production wastes, wastes from 
the dry process for manufacturing phosphoric acid, phosphorus 
trichloride production wastes, phosphorus pentasulfide production 
wastes, wastes from the production of sodium phosphate from wet 
process phosphoric acid, sodium chlorate production wastes, antimony 
oxide production wastes, cadmium pigments production wastes, barium 
carbonate production wastes, potassium dichromate production wastes, 
phenyl mercuric acetate production wastes, boric acid production 
wastes, inorganic hydrogen cyanide production wastes, and titanium 
dioxide production wastes (except for chloride process waste 
solids). However, such listing determinations need not include any 
wastes which are excluded from hazardous waste regulation under 
section 3001(b)(3)(A)(ii) of RCRA and for which EPA has determined 
that such regulation is unwarranted pursuant to section 
3001(b)(3)(C) of RCRA.

Today's final rule satisfies EPA's duty under paragraph 1.g to 
promulgate listing determinations for inorganic chemical industry 
wastes. Moreover, compliance with the Consent Decree fulfills EPA's 
duty to make listing determinations for the inorganic chemical industry 
under section 3001(e)(2) of RCRA.

II. Summary of Today's Action

    In today's notice, EPA is promulgating regulations that add three 
wastes generated by or closely related to the inorganic chemicals 
industries to the list of hazardous wastes in 40 CFR 261.32. Below are 
the wastestreams EPA is listing as hazardous with their corresponding 
EPA Hazardous Waste Numbers.

K176  Baghouse filters from the production of antimony oxide, including 
filters from the production of intermediates (e.g., antimony metal or 
crude antimony oxide). (E) 1-2
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    \1-2\ As per 40 CFR 261.3(b), the code (E) indicates that this 
waste is being listed because it exhibits the toxicity 
characteristic; the code (T), designated for K176 and K177, 
indicates that these wastes are being listed because they are toxic 
wastes.
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K177  Slag from the production of antimony oxide that is speculatively 
accumulated or disposed, including slag from the production of 
intermediates (e.g., antimony metal or crude antimony oxide). (T)
K178  Solids from manufacturing and manufacturing-site storage of 
ferric chloride from acids formed during the production of titanium 
dioxide using the chloride-ilmenite process. (T)

    EPA is listing these wastes as hazardous based on the criteria set 
out in 40 CFR 261.11. As described in the September 14, 2000 proposed 
rule (65 FR 55684), we assessed and considered these criteria for each 
of the residuals generated by the inorganic chemicals industries to 
determine which wastes warranted listing. This process involved 
reviewing more than 170 categories of residuals generated in the 14 
inorganic chemical manufacturing sectors. Because of the large number 
of residuals, we first determined whether any of these residuals fell 
outside the scope of our Consent Decree obligations. We then evaluated 
the risks posed by each of the remaining residuals. In some cases we 
used quantitative or qualitative screening methods. For 18 wastes we 
conducted full-scale modeling to predict risks.
    After assessing public comments submitted in response to our 
proposal, we are finalizing hazardous waste listings for the three 
wastes noted above. Two of the wastes were evaluated using full-scale 
risk assessment modeling and the resultant hazardous waste listings for 
these wastes are finalized based on 40 CFR 261.11(a)(3). The remaining 
waste (K176) warrants listing based on 40 CFR 261.11(a)(1) because it 
exhibits hazardous waste characteristics.
    Upon the effective date of today's final rule, wastes meeting the 
listing descriptions will become hazardous wastes and must be managed 
in accordance with RCRA subtitle C requirements. (Based on our data, 
residuals newly listed as K176 exhibited one or more of the hazardous 
waste characteristics prior to the effective date of today's rule, and, 
as such, currently are subject to hazardous waste control.) Also, 
please note that the listing for K178 becomes has a different effective 
date; it does not become effective until authorized states revise their 
programs to add the listing. With certain limited exceptions, residuals 
from the treatment, storage, or disposal of these newly listed 
hazardous wastes also will be classified as hazardous wastes pursuant 
to the ``derived-from'' rule (40 CFR 261.3(c)(2)(i)). Also, with 
certain limited exceptions, any mixture of a listed hazardous waste and 
a solid waste is itself a RCRA hazardous waste (40 CFR 261.3(a)(2)(iii) 
and (iv), ``the mixture rule'').
    Today's rule also takes final action on decisions not to list as 
hazardous, as discussed in the proposal, the wastes from the following 
sectors:
--wastes from the production of antimony oxide (with the exception of 
baghouse filters--K176, and slag--K177)

--wastes from the production of barium carbonate
--wastes from the production of boric acid
--wastes from the production of cadmium pigments
--wastes from the production of hydrogen cyanide
--wastes from the production of phenyl mercuric acetate
--wastes from the production of phosphoric acid
--wastes from the production of phosphorous trichloride
--wastes from the production of phosphorous pentasulfide
--wastes from the production of potassium dichromate

[[Page 58261]]

    --wastes from the production of sodium chlorate
    --wastes from the production of sodium dichromate
    --wastes from the production of sodium phosphate
    --wastes from the production of titanium dioxide (with the 
exception of a related waste from subsequent manufacture of ferric 
chloride acid--K178)

Descriptions of the specific wastestreams can be found in the listing 
background documents for each sector, available in the docket for the 
rulemaking. Responses to relevant comments regarding these listings can 
be found in the Response to Comments Background Document, also 
available in the docket.
    We also are promulgating other changes to the RCRA regulations as a 
result of the final listing determinations. These changes include 
adding constituents to Appendix VII of part 261, and setting land 
disposal restrictions for the newly listed wastes. We are adding the 
following constituents to Appendix VII of 40 CFR 261 due to the fact 
that these constituents serve as the basis for new listings and can 
pose hazards to human health and the environment: arsenic and lead 
(K176), antimony (K177), and thallium (K178). Section IV.E of today's 
rule describes the changes to the land disposal restrictions 
establishing treatment standards for the specific constituents in the 
newly-listed hazardous wastes.
    As explained below in section IV.B., we are deferring final action 
on all elements of our proposal that are specifically related to the 
waste constituent manganese. We received numerous comments related to 
the risk associated with manganese and the economic impact to many 
industries, including the steel industry, of adding manganese to the 
Universal Treatment Standards requirements and to 40 CFR 261, Appendix 
VIII. Although we continue to believe that manganese poses significant 
issues that ultimately should be resolved, the court-ordered schedule 
under which we are operating provides us with no flexibility to take 
additional time to explore these topics more fully. As a result, we 
have chosen to defer final action on adding manganese to Appendix VII 
of 40 CFR 261 as a basis for listing K178; on adding manganese to 
Appendix VIII of 40 CFR 261; on adding manganese to the treatment 
standards for K178, to the UTS and to the BDAT standards for F039; and 
on setting an RQ standard in Sec. 302.4 for K178 that addresses 
manganese.
    Also as a result of this final rule, these listed wastes become 
hazardous substances under CERCLA. Therefore, in today's rule we are 
designating these wastes as CERCLA hazardous substances, and adjusting 
the one-pound statutory default RQs for two of these wastestreams (K176 
and K177). The CERCLA RQ adjustments for the K176 and K177 wastes were 
proposed in the September 14, 2000 proposed rule (65 FR 55684, 55773-
55774). We did not propose an adjusted RQ for K178 at that time because 
we had not yet developed a ``waste constituent RQ'' for manganese, one 
of the constituents of concern in the K178 waste. Thus we are 
finalizing the statutory default RQ for K178 and are not finalizing an 
RQ adjustment for K178 in today's rule. These changes are described in 
section VII of today's final rule.

III. Summary of Proposed Rule

    In the September 14, 2000 proposed rule (65 FR 55684), EPA proposed 
to list three wastes generated by the inorganic chemicals manufacturing 
industries as hazardous wastes under RCRA. The wastes that we proposed 
to list as hazardous were:

     K176--Baghouse filters from the production of antimony 
oxide.
     K177--Slag from the production of antimony oxide that is 
disposed of or speculatively accumulated.
     K178--Non-exempt, nonwastewaters from the production of 
titanium dioxide by the chloride-ilmenite process (this listing does 
not apply to chloride process waste solids from titanium tetrachloride 
production exempt under section 261.4(b)(7)).
A summary of these proposed listing determinations is presented below. 
More detailed discussions are provided in the preamble to the proposed 
rule and in the Background Documents included in the docket for the 
proposed rule.
    In connection with the proposed K178 listing, EPA proposed to amend 
Appendix VIII of 40 CFR 261 to add manganese to the list of hazardous 
constituents.
    We proposed to establish treatment standards for each of the three 
candidate listings. We also proposed to add manganese to the Universal 
Treatment Standards (UTS) Table in 268.48 and to the F039 treatment 
standards applicable to hazardous waste landfill leachate. The effect 
of adding manganese to the UTS Table would be to require all 
characteristic hazardous wastes that contain manganese as an underlying 
hazardous constituent above the UTS level to be treated for manganese 
prior to land disposal.
    We proposed to add the three candidate hazardous wastes to the list 
of CERCLA hazardous substances. We also proposed adjusted Reportable 
Quantities (RQs) for two of the wastes (K176 and K177).

A. What Wastes Associated With the Inorganic Chemicals Manufacturing 
Industries Were Determined To Be Outside the Scope of the Consent 
Decree for the Proposed Rule?

    As explained in the preamble to the proposed rule, the Consent 
Decree does not tell EPA which specific inorganic chemical 
manufacturing wastes it must evaluate, although it does identify 
sectors to be assessed. Paragraph 1.g of the Consent Decree contains 
one exemption (from the Agency's listing determination obligation) for 
wastes found to be exempt from hazardous waste regulation in previous 
EPA actions implementing the so-called ``Bevill exemptions'' for 
mineral processing wastes.
    After identifying all of the residuals associated with inorganic 
chemical manufacturing through data collection and facility 
investigations, we reviewed the list of residuals and determined the 
scope of our efforts. We found that some residuals are exempt 
``Bevill'' wastes and we, therefore, did not need to address them.\3\ 
We found that other wastes are associated with the manufacture of other 
materials and not associated with the inorganic chemical manufacturing 
processes identified in the Consent Decree. With few exceptions, we 
chose not to evaluate any wastes that are outside the scope of the 
Consent Decree.
---------------------------------------------------------------------------

    \3\ Bevill exempt wastes include wastes generated by mining 
operations that are produced during extraction and beneficiation 
operations and an additional 20 categories of wastes generated 
during mineral processing operations that EPA has determined meet 
``high volume/low toxicity'' criteria. The ``Bevill'' exemptions are 
codified at 40 CFR 261.4(b)(7).
---------------------------------------------------------------------------

    Wastes generated by each of the inorganic chemical manufacturing 
industries that we determined to be outside the scope of the Consent 
Decree and, therefore, did not evaluate for the proposed rule are 
identified and described in the discussions of sector-specific listing 
determination rationales presented in section III.F of the proposed 
rule (65 FR 55701, September 14, 2000). Except as discussed below in 
this preamble, we received no comments that persuaded us to change our 
positions on any of our proposed findings on the scope of the Consent 
Decree.

[[Page 58262]]

B. Which Wastes Did EPA Propose To List as Hazardous?

1. Baghouse Filters From the Production of Antimony Oxide
    We proposed to list as hazardous baghouse filters from the 
production of antimony oxide. We proposed to list this waste because it 
exhibits one or more of the characteristics of hazardous waste, and the 
waste is not consistently managed as a hazardous waste in compliance 
with RCRA Subtitle C regulations. The hazardous waste listing criterion 
at 40 CFR 261.11(a)(1) provides that EPA may list a waste as hazardous 
based upon the fact that it exhibits any of the hazardous waste 
characteristics. Sampling and analysis undertaken by EPA for this rule 
show that baghouse filters from the production of antimony oxide 
exhibit the toxicity characteristic for lead and/or arsenic. 
Information gathered from RCRA Sec. 3007 questionnaire responses 
indicated that of the four antimony oxide production facilities 
generating baghouse filters, none designate their baghouse filters as 
hazardous waste. Two of the facilities send their baghouse filters to 
nonhazardous waste disposal facilities. The other two recycle the 
baghouse filters.
    EPA proposed to list baghouse filters from the production of 
antimony oxide solely based upon the fact that the waste exhibits the 
toxicity characteristic and generators are not complying with hazardous 
waste regulations. The Agency did not conduct risk assessment modeling 
to estimate potential risks to human health from plausible waste 
management practices. We did not need to model risks posed by lead and 
arsenic because leachate levels for these constituents exceeded the 
toxicity characteristic levels. Moreover, in analyzing samples of the 
waste collected by EPA, we determined that antimony levels in the waste 
are high (total concentrations can equate to 12% of the waste). 
Leachate levels for antimony in baghouse filters are up to 48,000 times 
the drinking water HBL. In the preamble to the proposed rule, we 
indicated that such high levels of antimony would provide a long-term 
source of the metal for leaching into ground water and would likely 
result in risk if modeled.
2. Antimony Slag That Is Speculatively Accumulated or Disposed
    We proposed to list as hazardous waste slag from the production of 
antimony oxide that is disposed of or speculatively accumulated. We 
based our decision to list this waste as hazardous on the results of 
modeling of an on-site industrial landfill disposal scenario and a 
ground-water exposure pathway. Our modeling showed significant risk for 
antimony with a hazard quotient \4\ of 9.4 for life-time non-cancer 
risk for an exposed child. The antimony hazard quotient for adult non-
cancer risk is 4.5.
---------------------------------------------------------------------------

    \4\ Hazard quotient is defined as the ratio of the estimated 
dose of a given chemical to an individual to the reference dose for 
that chemical.
---------------------------------------------------------------------------

    As explained in the preamble to the proposed rule, our modeling 
approach for the risk assessment assumed that the antimony slag is 
placed in an unlined, industrial landfill. At the time of proposal, we 
knew of one antimony oxide production facility that was speculatively 
accumulating the slag, storing the waste in drums over several years. 
The facility operating permit issued by the state mining program 
required construction of a lined on-site land-based unit for storing 
the waste in the future. We did not take into account the liner 
described in the mining permit because our most recent information at 
that time indicated that construction had not yet been initiated and we 
believed that it was feasible that the facility could instead choose to 
landfill the waste offsite. We also noted more general concerns 
regarding the uncertain efficacy of engineered liners over the modeled 
risk assessment period, which covers 10,000 years. (See 65 FR 55703 for 
additional details.)
    In addition to the risk assessment results, our proposed listing 
determination was based on the high total concentrations of antimony in 
this waste. Our sampling and analysis results showed that the antimony 
levels in the slag exceed ten percent (up to 127,000 mg/kg) of one 
waste, by weight. The SPLP antimony concentration exceeds the drinking 
water HBL by a factor greater than 35,000. We also considered the fact 
that antimony is persistent in the environment and will not degrade.
3. Non-wastewaters From The Production of Titanium Dioxide by the 
Chloride-Ilmenite Process
    We proposed to list as hazardous waste certain solid wastes 
generated from the production of titanium dioxide using the chloride-
ilmenite process. The proposed listing covered wastes generated at 
three facilities and included three components in the commingled solids 
stream: (1) Coke and ore solids removed from the gaseous titanium 
tetrachloride process stream commingled with a non-exempt vanadium 
waste; (2) solids removed from ferric chloride acid, if removed from 
the acid stream after the initiation of chemical manufacturing and/or 
ancillary operations; and (3) wastewater treatment sludges, to the 
extent they are generated from oxidation and finishing wastewaters.
    Our risk assessment showed potential significant risks to human 
health and the environment from two constituents in these wastes, 
manganese and thallium, when managed in an industrial solid waste 
landfill. In the case of manganese, the high-end hazard quotient for 
risks to a child was 3.3. The high-end hazard quotient for risk to a 
child from thallium was 2.4. Our qualitative assessment of risks 
associated with a municipal solid waste landfill indicated these risks 
might be higher by an order of magnitude. Similarly, we qualitatively 
expressed concerns regarding measured levels of chlorinated dioxins and 
furans in these wastes.
    We proposed to limit the scope of the listing to the non-exempt 
portions of these wastes (i.e., the portions of the wastes not covered 
by the Bevill exemption). We did not extend the scope of the listing to 
include exempt mineral processing wastes associated with the chloride-
ilmenite process (``chloride process waste solids from titanium 
tetrachloride production,'' see 40 CFR 261.4(b)(7)(S))\5\. As explained 
in the preamble to the proposed rule, all exempt mineral processing 
wastes generated by inorganic chemical manufacturing facilities are 
outside the scope of the Consent Decree and were not evaluated as part 
of the Agency's listing determination for wastes generated by this 
industry.
---------------------------------------------------------------------------

    \5\ See 65 FR 55750 for a more detailed explanation of which 
wastes generated during the production of titanium dioxide are 
exempt mineral processing wastes.
---------------------------------------------------------------------------

C. Which Constituents Did EPA Propose To Add to Appendix VIII of 40 CFR 
part 261?

    EPA proposed to add one constituent, manganese, to the list of 
hazardous constituents at 40 CFR part 261, Appendix VIII. We proposed 
to find that manganese was a constituent of concern in the titanium 
dioxide waste that EPA proposed to list as hazardous. Based on our 
assessment of the available toxicity data, we believed that manganese 
met the Sec. 261.11(a) criteria for inclusion on Appendix VIII. 
Therefore, we proposed to add manganese to Appendix VIII of 40 CFR 261.

D. What Was the Proposed Status of Landfill Leachate From Previously 
Disposed Wastes?

    We proposed to amend the existing exemption from the definition of

[[Page 58263]]

hazardous waste for landfill leachate generated from certain previously 
disposed hazardous waste (40 CFR 261.4(b)(15)) to include leachate 
collected from non-hazardous waste landfills that previously accepted 
the three proposed listed wastes (K176, K177, K178). We proposed to 
temporarily defer the application of the proposed new waste codes to 
such leachate to avoid disruption of ongoing leachate management 
activities.
    The Agency proposed the deferral because information available to 
EPA at the time indicated that each of the wastes proposed to be listed 
as hazardous may have been managed previously in non-hazardous waste 
landfills. Leachate derived from the treatment, storage, or disposal of 
listed hazardous wastes is classified as hazardous waste by the 
derived-from rule in 40 CFR 261.3(c)(2). Without such a deferral, we 
were concerned about forcing pretreatment of leachate even though 
pretreatment is neither required by nor needed under the CWA.

E. What Were the Proposed Treatment Standards Under RCRA's Land 
Disposal Restrictions Standards?

    We proposed to apply existing universal treatment standards (UTS) 
for the hazardous constituents of concern that were found to be present 
at concentrations exceeding the UTS in the proposed listed wastes. We 
proposed to apply the UTS to these wastes because the waste 
compositions were found to be similar to other wastes for which 
applicable treatment technologies have been demonstrated.
    For K176 (baghouse filters from production of antimony oxide), we 
proposed treatment standards requiring treatment to the UTS levels for 
antimony, arsenic, cadmium, lead, and mercury. For K177 (slag from the 
production of antimony oxide that is disposed of or speculatively 
accumulated), we proposed to apply the UTS as treatment standards for 
antimony, arsenic and lead. In the case of both K176 and K177, we 
requested data and comment on the stabilization of antimony, given that 
available data indicated stabilization was effective treatment for 
wastes with initial antimony concentrations below those found in K176 
and K177.
    For K178 (nonwastewaters from the production of titanium dioxide by 
the chloride-ilmenite process), we proposed to apply the UTS as 
treatment standards for thallium and the chlorinated congeners of 
dibenzo-p-dioxin and dibenzofuran. In addition, we proposed the option 
of complying with the technology standard of combustion (CMBST) for the 
chlorinated dibenzo-p-dioxin and dibenzofuran constituents in K178. 
Since K178 has metal constituents of concern which would not be treated 
by the combustion process and would remain in the combustion treatment 
residual, we proposed to retain metal treatment standards for all 
circumstances (regardless of whether or not the waste is treated by 
combustion). This approach would require facilities to conduct 
compliance testing and analysis for all regulated metal constituents in 
the combustion treatment residuals prior to disposal.
    Universal treatment standards were not previously developed for 
manganese. We proposed a manganese treatment standard of 3.6 mg/L TCLP, 
based on high temperature metals recovery technology. We also requested 
comment on an option of setting a treatment standard for manganese in 
nonwastewater forms of K178 that is identical to the UTS level for 
thallium (0.20 mg/L TCLP, based on stabilization). In the case of 
wastewater forms of K178, we proposed a treatment standard of 17.1 mg/L 
manganese, based upon sedimentation technology.
    We proposed to add the proposed manganese treatment standard to the 
existing treatment standards for multi-source leachate (F039). In 
addition, we proposed to add manganese to the UTS Table at 40 CFR 
268.48. These changes would require that all characteristic hazardous 
wastes that contain manganese as an underlying hazardous constituent 
above the UTS are treated for manganese before land disposal.
    In the case of hazardous debris contaminated with proposed K176, 
K177, and K178, we proposed that the provisions in 40 CFR 268.45 apply 
to treatment and disposal of hazardous debris. Hazardous debris treated 
in accordance with the provisions of 40 CFR 268.45 may be land disposed 
in a hazardous waste disposal facility. As a result, debris 
contaminated with proposed K176, K177, and K178 have to be treated 
prior to land disposal, using specific debris treatment technologies 
such as extraction, destruction, or immobilization. Residuals generated 
from the treatment of contaminated debris would have to meet the 
applicable UTS limits for proposed K176, K177, and K178.
    In addition, we proposed to apply the regulations at 40 CFR 268.49 
to hazardous soil contaminated with proposed K176, K177, and K178. Soil 
contaminated with these wastes would have to be treated prior to land 
disposal, meeting either alternative treatment standards (i.e., 10 
times UTS or 90 percent reduction in initial constituent 
concentrations) or the proposed standards in 40 CFR 268.40.

F. What Risk Assessment Approach Was Used for the Proposed Rule?

    We conducted human health risk analyses to support our proposed 
listing determination decisions for those inorganic chemical wastes 
where initial screening analyses indicated that further assessment of 
potential human health risks was necessary. We used a variety of 
screening methodologies to assess a large number of wastes. This 
approach was necessary because of the time constraints imposed by the 
Consent Decree schedule and the large number of wastes that needed to 
be assessed. However, we believe that the screening methodologies 
assessed risks very conservatively and that wastes that were ``screened 
out'' are not likely to present significant risks.
    We estimated risks using both ``deterministic'' and 
``probabilistic'' human health risk analyses. A deterministic analysis 
produces a point estimate of risk or hazard by assigning a single value 
to each parameter used in the analysis. A probabilistic analysis 
generates a distribution of risk or hazard by allowing one or more of 
the parameters to take on more than one value, as determined by a 
probability distribution. We used probabilistic analysis to allow us to 
quantify individual risk at selected percentiles of the risk 
distribution (for example, 50th percentile, 90th percentile, 95th 
percentile). We based our listing decisions on the probabilistic risk 
estimates. The human health risks represent incremental risks to an 
individual and are expressed as estimates of excess lifetime cancer 
risk for carcinogenic (cancer-causing) contaminants and hazard 
quotients (HQs) for those contaminants that produce other, non-cancer, 
health effects.
    The human health risk assessments that we conducted to support the 
inorganic chemicals listing determination included five primary tasks: 
(1) Conducting screening analyses and establishing whether there are 
constituents of concern in the wastes that warrant further analysis to 
determine their risk to human health; (2) establishing a scenario under 
which constituents of concern are released from a waste management unit 
and subsequently are transported in the environment to a human 
receptor; (3) estimating the concentrations of constituents to which 
the receptor might be exposed; (4) quantifying the receptor's exposure 
to constituents; and

[[Page 58264]]

(5) based on the constituent's toxicities, assessing the risks to the 
receptor. The establishment of exposure scenario assumptions depended 
on the way a particular waste is managed. For wastes managed on-site 
(e.g., disposed of in an on-site industrial landfill), we based our 
assessment of human exposures on the plausibility of ground water being 
used for drinking water within the vicinity of the facility. Where 
possible, we identified site-specific hydrogeological information and 
we determined actual distances from the facility, or waste management 
unit, to the nearest ground-water drinking water well. If we determined 
that no drinking water wells could plausibly be impacted by releases 
from the facility (e.g., we found that ground water was not a viable 
current or future drinking water resource), we assumed no human 
exposure via the ground-water pathway. In the case of wastes that could 
plausibly be managed off-site, we assumed that ground water is used for 
drinking water (or could be in the future) and we used national data on 
the distribution of distances from land disposal units to residential 
wells to assess human exposures and risk.
    The preamble to the proposed rule provided a detailed discussion of 
EPA's risk assessment for the inorganic chemicals listing determination 
(see 65 FR 55684). A full description of all risk analyses conducted in 
support of our listing determinations finalized in today's rule can be 
found in the risk assessment background documents available in the 
rulemaking docket. (See ``Risk Assessment for the Listing 
Determinations for Inorganic Chemical Manufacturing Wastes,'' August 
2000.)

IV. What Is the Rationale for Today's Final Rule?

A. Final ``No List'' Determinations

    The Agency proposed not to list as hazardous any of the wastes from 
twelve of the inorganic chemical manufacturing sectors we evaluated for 
the proposed rule. These sectors are: Barium carbonate, boric acid, 
cadmium pigments, hydrogen cyanide, phenyl mercuric acetate, 
phosphorous acid from the dry process, phosphorous pentasulfide, 
phosphorous trichloride, potassium dichromate, sodium chlorate, sodium 
dichromate and sodium phosphate from wet phosphoric acid production. We 
received no adverse comment on the proposed decisions for these wastes 
and did not independently learn of any information requiring us to 
change our position on any of these waste categories. Therefore, we are 
making final decisions not to list any wastes from these inorganic 
chemical manufacturing sectors. A few commenters asked us to clarify 
issues relating to these determinations that might have impacts outside 
the scope of this rulemaking. Responses to these comments appear in the 
Response to Comments document.
    The Agency mistakenly referred to a selenium ``standard'' (0.0050 
mg/L) in the barium carbonate section of the preamble for the proposed 
rule (65 FR 55701, September 14, 2000). This selenium level is more 
appropriately referred to as EPA's recommended Ambient Water Quality 
Criteria (AWQC) for protection of freshwater organisms from chronic 
effects (63 FR 68353 as corrected at 64 FR 19781). EPA issues the 
criteria for selenium and other constituents under the authority of the 
section 304(a) of the Clean Water Act (CWA), 33 U.S.C. 1314(a)(1). 
These recommended criteria provide guidance for States and Tribes in 
adopting water quality standards under section 303(d) of the CWA (EPA-
822-F-98-006, Compilation of National Recommended Water Quality 
Criteria and EPA's Process for Deriving New and Revised Criteria, 
December 1998).
    We also explained in the proposal that we had evaluated risks posed 
by a number of residual materials that appear to be recycled; we did 
not first determine whether these materials were ``solid wastes'' under 
the statute and implementing regulations. We received both supportive 
and critical comments on our approach to evaluating secondary materials 
that may be reused or recycled. As discussed in the proposed rule, 
these determinations are complex, time consuming and best made on a 
site-specific basis. We continue to believe that the approach used in 
the proposal is appropriate and, thus, have not made site-specific 
determinations on whether secondary materials are or are not solid 
wastes if we could more quickly determine that they did not pose a risk 
significant enough to warrant listing them as hazardous. The decision 
not to move forward with further evaluation of a specific secondary 
material because the risk is not within the range determined to be 
significant does not imply that the material is or is not a solid 
waste. Rather, this approach represents an efficient way for EPA to 
make listing determinations and ensure we meet the requirements of the 
Consent Decree.
    We received comments regarding recent case law regarding the 
definition of solid waste, which limits our jurisdiction under Subtitle 
C of RCRA. However, as discussed above and in the proposal, we did not 
make site-specific or waste-specific decisions on whether or not 
secondary materials were solid wastes, since we believed that we could 
more quickly determine whether they pose a listable risk. As a result 
of our risk-based evaluation, we decided not to list most of the wastes 
that we evaluated. It was not necessary for these decisions to 
interpret these cases, which include Association of Battery Recyclers 
v. EPA, (208 F. 3d 1047 (D.C. Cir 2000)).
    We are promulgating listings for three wastes. None of these 
decisions required us to address the limits of our statutory 
jurisdiction. In all cases we have information showing that some 
facilities dispose of the materials covered by the listings. Moreover, 
our listings do not apply to secondary materials that we currently 
consider to be outside of our Subtitle C jurisdiction (e.g., materials 
used as an effective substitute for commercial products, commercial 
chemical products being reclaimed, etc.). In one case (slag associated 
with antimony oxide production, listed as K177), we expressly 
conditioned the listing to make it clear that slags recycled by 
reclamation, an activity that we have traditionally considered to fall 
within our jurisdiction, will not be regulated by the listing, unless 
the entities involved engage in speculative accumulation. This, 
however, was a risk-based decision, and did not require us to re-
examine the limits of our jurisdiction over solid wastes.
    Finally, as mentioned above, we took the position in the proposal 
that various wastes were exempt from regulation--and outside of the 
scope of the Consent Decree--under the Bevill amendment regulations. We 
chose not to evaluate risks from these wastes. With the exception of 
comments relating to titanium dioxide wastes discussed below, we 
received no comments persuading us to change our position on the 
applicability of the Bevill exemption to any of the wastes discussed in 
the proposal.

B. Deferral of Final Action on Manganese-Related Elements of Proposed 
Rule

    We are deferring final action on all elements of our proposal that 
are specifically related to the waste constituent manganese. We 
received numerous comments related to the risk associated with 
manganese and the economic impact to many industries, including the 
steel industry, of adding manganese to 40 CFR 261, Appendix VIII. In 
addition, a number of commenters argued against our proposal to 
establish a Universal Treatment Standard (UTS) for manganese because 
they believe that our proposal provided

[[Page 58265]]

insufficient notice of this action and that we had not adequately 
assessed the potential impact to industries other than those generating 
K178. Commenters also opposed our proposal to add manganese to the 
Appendix VIII list for the same reasons. They were particularly 
concerned about potential impacts on corrective action efforts at RCRA 
sites where manganese may be present. Although we continue to believe 
that manganese poses significant issues that ultimately should be 
resolved, the court-ordered schedule under which we are operating 
provides us with no flexibility to take additional time to explore 
these topics more fully. As a result, we have chosen to defer final 
action on adding manganese to Appendix VII of 40 CFR 261 as a basis for 
listing K178; on adding manganese to Appendix VIII of 40 CFR 261; on 
adding manganese to the treatment standards for K178, to the UTS and to 
the BDAT standards for F039; and on setting an RQ standard in 
Sec. 302.4 for K178 that addresses manganese.
    By deferring final action on manganese, we can take additional time 
to review and analyze the risk and impact issues raised by commenters 
without compromising our obligations under our consent decree to 
finalize our listing determinations for the inorganic chemical 
manufacturing industry. In today's rule we are finalizing our proposal 
to list K176, K177, and K178. The final K178 listing is based solely on 
thallium risks as a result of our deferral of the elements of the 
proposal associated with manganese.

C. Final Antimony Oxide Listing Determinations

    In the proposal, we identified three waste categories associated 
with the production of antimony oxide that we determined warranted 
evaluation. We proposed to list two of these waste categories: baghouse 
filters from the production of antimony oxide and slag from the 
production of antimony oxide that is disposed of or speculatively 
accumulated. We concluded that the third waste category (empty 
supersacks) did not pose a substantial present or potential threat to 
human health or the environment and, therefore, did not warrant 
listing.
    We are promulgating final listings for the two antimony oxide 
wastes that we proposed to list. As explained below, we are revising 
the listing language slightly in response to comments. The final 
listing descriptions are:

K176  Baghouse filters from the production of antimony oxide, including 
filters from the production of intermediates (e.g., antimony metal or 
crude antimony oxide). (E)
K177  Slag from the production of antimony oxide that is speculatively 
accumulated or disposed, including slag from the production of 
intermediates (e.g., antimony metal or crude antimony oxide). (T)
1. K176  Baghouse Filters
    We are finalizing the K176 listing for baghouse filters from 
antimony oxide production, which includes filters from the production 
of intermediates (e.g., antimony metal or crude antimony oxide) (see 
section 3 below for further details about production of intermediates).
a. Proposed Rule
    In the proposal, we stated that the baghouse filters are generated 
by all four of the antimony oxide manufacturers that were producing 
antimony oxide at the time of proposal. Two of the three filter samples 
we collected exhibit the toxicity characteristic (TC) for either 
arsenic or lead. However, none of the manufacturers acknowledged that 
the waste exhibits the TC. According to responses received from 
Sec. 3007 questionnaires, two of the four facilities were not handling 
the waste as hazardous and were sending the filters to non-hazardous 
incineration or a Subtitle D (non-hazardous waste) landfill. The 
remaining two facilities were recycling all of their filters. Because 
the TC is not effectively ensuring proper management for this waste 
across the industry, we proposed to list the baghouse filters under 
261.11(a)(1) on the basis that the waste exhibits a characteristic.
b. Significant Comments and Final Rule
    One commenter supported our proposal to list this waste based on 
the potential for it to exhibit the toxicity characteristic. Another 
commenter disagreed with the proposed listing as applied to the filters 
produced at its Montana facility. This commenter raised three types of 
objections. First, the commenter stated that our sample of baghouse 
filters from the oxidation furnace did not fail the threshold limits 
for any element on the TCLP analysis and, therefore, should not be 
included within the scope of the listing. They noted that the only 
baghouse filter samples from the Montana facility to fail the TC were 
from the reduction furnace, not the oxidation furnace (see scope 
discussion under section 3 below for a discussion on the different 
types of furnaces).
    We do not agree that we should exclude from the listing filters 
from the commenter's oxidation furnace because our sample of these 
filters did not exhibit the TC. Our sampling data for the Montana 
oxidation filters shows TCLP lead levels (2.8 mg/L) that are very close 
to the TC regulatory lead level (5.0 mg/L). The commenter submitted no 
additional data supporting the assertion that its oxidation furnace 
filters do not fail the TC. Given likely variability in the waste, it 
is quite possible that other samples would have exhibited the TC for 
lead. Further, we sampled filters from a similar oxidation furnace at a 
second production facility in La Porte, TX. The La Porte filters 
contain lead at levels exceeding the TC (8.5 mg/L). The lead levels for 
both the La Porte facility and the Montana facility are close, within 
the same order of magnitude. Therefore, based on these factors, we 
think it is reasonable to assume that the filters from oxidation 
furnaces will exceed the TC for lead frequently enough to warrant 
listing, even at the Montana facility. The criteria in 261.11(a)(1) 
provide generally that EPA can list a solid waste as hazardous if it 
exhibits any of the characteristics of hazardous waste. We believe our 
data sufficiently demonstrate that the oxidation filters meet the 
261.11(a)(1) test.
    Although not directly relevant to a listing under 261.11(a)(1), we 
also note that the leachable antimony content of the baghouse filters 
from both oxidation furnaces exceed EPA's antimony health-based level 
(HBL) for human drinking water consumption by a significant margin. The 
Montana oxidation furnace filters contain up to 15% antimony and leach 
700 times above the drinking water HBL. The La Porte oxidation filters 
contain up to 9% antimony and leach 1,550 times above the drinking 
water HBL.\6\
---------------------------------------------------------------------------

    \6\ See Waste Characterization Reports for U.S. Antimony, 
Thompson Falls, MT and Laurel Industries, La Porte, TX that are in 
the docket for the proposed rule.
---------------------------------------------------------------------------

    Second, the commenter stated that it recycled all antimony-
containing baghouse filters from both the oxidation and reduction 
furnaces to its reduction furnace to recover antimony and argued that 
the listing should not apply to such filters. However, as described 
above, at least two facilities reported disposing of their baghouse 
filters as non-hazardous wastes. Therefore, we continue to view non-
hazardous disposal of baghouse filters as a plausible management 
scenario for the antimony oxide industry. As EPA acknowledged in the 
preamble to the proposed rule, some

[[Page 58266]]

antimony-containing filters may be recycled in certain ways that would 
make them not solid wastes (and hence not regulated hazardous wastes). 
For example, when facilities process the antimony oxide product 
captured in these filters by reinserting the product-containing filters 
back into the furnace where the antimony oxide originated, without 
reclamation, these materials would not be solid wastes.\7\ If any or 
all of the commenter's filters are recycled in ways that make them not 
solid wastes under the definition of solid waste regulations (see 40 
CFR 261.2), they will not be subject to this listing.
---------------------------------------------------------------------------

    \7\ As noted above, these filters capture product materials. EPA 
does not regulate reclamation of these products. See 50 FR 14216, 
April 11, 1985: ``Under the final rules, commercial chemical 
products and intermediates, off-specification variants, spill 
residues, and container residues listed in 40 CFR 261.33 are not 
considered solid wastes when recycled except when they are recycled 
in ways that differ from their normal use--namely, when they are 
burned for energy recovery or used to produce a fuel.''
---------------------------------------------------------------------------

    Finally, the same commenter argued that its baghouse filters from 
the reduction furnace were from the production of antimony metal, not 
the production of antimony oxide. As explained below in section 3, we 
concluded that all of the baghouse filters associated with antimony 
oxide production remain within the scope of the listing, whether the 
filters are from the furnace producing the final antimony oxide or from 
the production of a process intermediate used during the production of 
antimony oxide. However, as discussed below, if the facility produces a 
batch of antimony metal which is not used in antimony oxide production, 
the wastes from that particular batch are not within the scope of the 
listing. If the facility adequately segregates these batches of 
antimony metal wastes from the listed wastes associated with antimony 
oxide production, they would not be listed wastes.
    After considering all comments, we continue to consider all filters 
associated with antimony oxide production as a single class of waste 
and to find that they warrant listing under 261.11(a)(1), as follows:

K176  Baghouse filters from the production of antimony oxide, including 
filters from the production of intermediates (e.g., antimony metal or 
crude antimony oxide). (E)
c. Impact of Recent Revisions to the Mixture and Derived-From Rules on 
K176

    The mixture rule (originally codified at 40 CFR 261.3 (a)(2(iii) 
and (iv)) subjects mixtures of listed hazardous and nonhazardous wastes 
to hazardous waste regulation. The rule, however, exempted wastes 
listed under 261.11(a)(1) because they exhibit a hazardous waste 
characteristic. Mixtures of such listed wastes generally cease to be 
regulated as hazardous wastes as soon as the mixture ceases to exhibit 
the characteristic that caused EPA to list the waste. (Mixtures of 
nonwastewaters listed because they exhibit a characteristic, however, 
needed to meet LDR requirements before being land disposed.)
    In 1999, EPA proposed to eliminate this mixture-rule exemption for 
wastes listed under 261.11(a)(1) because they exhibit the Toxicity 
Characteristic. See 64 FR 63382 (November 19, 1999). In other words, 
mixtures of wastes listed because they exhibited the TC would continue 
to be regulated even if the mixture stopped exhibiting the TC. When EPA 
proposed to list K176, we noted that this proposed narrowing of the 
mixture rule exemption, if promulgated, would affect the K176 wastes.
    EPA promulgated the revision to the mixture rule exception in May 
2001. See 66 FR 27266 (May 16, 2001) and new section 40 CFR 261.3(g). 
As a result, mixtures of K176 and nonhazardous wastes ultimately will 
not be exempt if the mixture ceases to exhibit the TC. The K176 
listing, however, will take effect before the narrowing of the mixture 
rule exemption. See the discussion of state authorization issues in 
section VI below.
2. K177 Slag
    We are promulgating the K177 listing for slag from antimony oxide 
production that is speculatively accumulated or disposed, including 
slag from the production of intermediates (e.g., antimony metal or 
crude antimony oxide) (see section 3 below for further details about 
production of intermediates).
a. Proposed Rule
    At the time we proposed this listing, all four operating antimony 
oxide production facilities produced slags from their oxidation 
furnaces during the production of the final antimony oxide product. All 
of the facilities reported further processing at least a portion of 
these slags on-site in different types of furnaces to obtain additional 
antimony to produce additional antimony oxide. In addition, three of 
the four facilities ultimately produced slags that were sent off-site 
for use in secondary lead smelting or antimony production. The 
remaining facility (Montana) ultimately produced a slag from its 
reduction furnace that had been accumulating on-site in drums for 
several years. At the time of proposal, this facility's mining permit 
required the facility to construct an on-site engineered and lined 
``slag storage pit'' for the accumulated slag.
    In the proposal, we assessed the risks posed by the on-site 
accumulation and the potential future use of the ``storage pit'' by 
modeling an on-site unlined landfill at the Montana facility. We 
documented domestic ground-water use in the area (four wells in the 
vicinity), and noted the presence of a residential drinking water well 
1.4 miles directly down-gradient from the Montana facility. We stated 
that residences and wells might be built closer to the facility in the 
future. This approach was consistent with our modeling assumptions 
elsewhere in the proposed rule where we modeled potential ground-water 
exposure based on the potential for ground-water wells to exist and be 
impacted by on-site waste management practices (e.g., 65 FR 55755). 
Thus, while our modeling was conservative for the current ground-water 
usage patterns, it predicted risk for potential future receptors. The 
results of the risk assessment for the on-site disposal scenario for 
antimony and arsenic, as stated in the proposal, are presented in Table 
IV-1:

         Table IV-1.--Probabilistic Risk Assessment Results for Speculatively Accumulated Antimony Slag
----------------------------------------------------------------------------------------------------------------
                                      Antimony hazard quotient                Arsenic--Cancer risk
             Percentile              ---------------------------------------------------------------------------
                                       Adult risk   Child risk         Adult risk               Child risk
----------------------------------------------------------------------------------------------------------------
90%.................................          2.2          4.6  4 E-07.................  3 E-07
95%.................................          4.5          9.4  1 E-06.................  9 E-07
----------------------------------------------------------------------------------------------------------------


[[Page 58267]]

    Because the modeled hazard quotient for antimony exceeded our 
listing threshold of one for both children and adults at both the 90th 
and 95th percentiles, we proposed to list this waste. For a more 
complete description of this analysis, see ``Risk Assessment for the 
Listing Determinations for Inorganic Chemical Manufacturing Wastes'' 
(August 2000) in the docket for the proposed rule.
    As noted in the proposal, the waste has high levels of total 
antimony and arsenic, and the leachable levels of antimony from this 
slag exceed the human oral ingestion HBL by a factor greater than 
35,000. In addition, the modeling showed risk at the 90th and 95th 
percentiles even with elevated dilution and attenuation factors that 
are associated with this site (DAFs of 1,960 to 3,811 at the 5th and 
10th percentiles).\8\. We reasoned that risks could be even greater in 
other potential management locations (e.g., if plans to place the 
drummed slag in the onsite ``storage pit'' were to change).
---------------------------------------------------------------------------

    \8\ See Table 4-66, ``Ground Water DAFs for Low Antimony Slag 
Managed in an Onsite Landfill--Thompson Falls, MT,'' in Risk 
Assessment for the Listing Determinations for Inorganic Chemical 
Manufacturing Wastes, August, 2000. Note that although there is not 
a direct correspondence between DAFs and risk, lower DAFs result in 
higher risk. Therefore, the 5th and 10th percentile DAFs are of 
particular interest relative to high end risks, e.g., at the 90th 
and 95th percentiles of the risk distribution.
---------------------------------------------------------------------------

b. Significant Comments and Final Rule
    One commenter questioned our risk assessment scenario for the slag. 
The commenter stated that, contrary to data we obtained from the 
Montana Ground water Information Center database, there are no 
residential wells within 4.5 miles down-gradient of the Montana 
facility. The commenter noted there is a private residential property 
with a well 1.5 miles up-gradient of the facility. In response to this 
comment, we further investigated the land use of the area surrounding 
the facility and determined that the commenter is correct that there is 
no current residential well in the down-gradient location described in 
the proposal.\9\ However, as noted in the proposal, we did not model 
releases to a particular well. We used the presence of the well we 
identified to indicate that ground water is used as a resource in the 
area. The commenter provided documentation that ground water is used as 
a resource in the area. According to the commenter, eight to ten 
residential wells are in use in the area approximately 5 miles down-
gradient from the facility, as well as the property 1.5 miles up-
gradient. In addition, as we noted in the proposal, we do not see any 
barriers to people moving closer to the facility in the future, thereby 
becoming potential receptors. Should people move closer to the 
facility, ground water almost certainly will be used for drinking 
water. We note that the facility's mining permit indicates that on-site 
water production wells are used to supply the laboratory and 
administrative buildings, which also indicates that the use of ground 
water in the immediate area is plausible. Therefore, we believe that 
the management scenario we modeled for the proposal is still plausible.
---------------------------------------------------------------------------

    \9\ See docket--notes from calls with U.S. Forest Service at 
Lolo National Forest and Montana DEQ staff dated January 2001-
February 21, 2001.
---------------------------------------------------------------------------

    In addition to wastes that are disposed, the listing captures those 
wastes that are speculatively accumulated. As noted in the proposal, 
current regulations classify some potentially recyclable materials that 
are stored on-site for more than certain timeframes set forth in 40 CFR 
261.1(c)(8) as speculative accumulation and classify materials held in 
excess of these time frames as solid wastes. We believe that the length 
of time secondary materials are accumulated before being recycled is an 
important indicator of whether or not they are wastes. This is 
supported by damage cases where secondary materials that were 
accumulated over time caused harm. (See 50 FR 614.) EPA has 
consistently taken this approach towards long-term storage of 
potentially recyclable materials. ``Under RCRA and the implementing 
regulations, permanent placement of hazardous waste, including 
perpetual ``storage'' falls into the regulatory category of land 
disposal.\10\ (See also American Petroleum Institute v. EPA, 216 F. 3d 
50 (D.C. Cir. 2000)). If slags have been speculatively accumulated 
(i.e., held beyond the timeframes specified in 40 CFR 261.1(c)(8) 
without recycling) as of the effective date of this final rule, these 
slags meet the listing description immediately.
---------------------------------------------------------------------------

    \10\ ``Above Ground Land Emplacement Facility, N.J. Law,'' 
Letter to Honorable James J. Florio, Chairman, Subcommittee on 
Commerce, Transportation, and Tourism, Committee on Energy and 
Commerce, House of Representatives, from J. Winston Porter, 
Administrator, EPA, dated March 26, 1986.
---------------------------------------------------------------------------

    As long as facilities legitimately recycle slags without 
speculatively accumulating them as defined in 40 CFR 261.1(c)(8), they 
will not be impacted by the listing. In the proposal, we discussed the 
fact that three of the four antimony oxide production facilities were 
sending slag that they could no longer process on-site to off-site 
recycling operations. Two of the facilities (La Porte, TX and New 
Jersey), both of which are still in operation, send their slag for use 
in secondary lead smelting, either for the high lead content in the 
slag or because the antimony is used as a hardening agent in lead. The 
third facility (Laredo, TX) reported that they sent their slag to an 
antimony recovery facility in Mexico. The Laredo facility is no longer 
operating. The fourth facility (Montana) had been holding slag in drums 
on-site, as described above.
    Since the release of the proposal, we have been informed by 
representatives of the Montana facility and the State that the facility 
has begun to send slag that it cannot reclaim on-site to an off-site 
facility for recycling. As noted above, slags that are legitimately 
recycled without speculative accumulation will not be affected by the 
listing. However, stockpiling of slags has occurred and we believe the 
listing is still needed to ensure that continued or future storage will 
not threaten human health and the environment.
    Moreover, we believe the listing is warranted because recycling in 
the future may be uncertain for facilities still producing antimony 
oxide in the United States. The current market for antimony oxide is 
weak. The world commodity price for antimony metal (the principal raw 
material for antimony oxide production) has been volatile but has 
mainly increased due to restrictions on Chinese exports. At the same 
time, the market price for antimony oxide remained relatively flat.\11\ 
If the industry experiences continued economic distress, individual 
facilities that remain in operation may decide to accumulate slag on-
site rather than incurring the costs of shipping the slags off-site for 
processing. In fact, we have learned that the still-operating New 
Jersey facility, which had reported recycling its slag in its response 
to our Sec. 3007 questionnaire, shipped slag off-site to a landfill for 
disposal in 1999 and is presently accumulating new slag on-site. The 
facility told EPA Regional personnel that it hopes to recycle this on-
site slag if antimony prices rise.\12\
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    \11\ See U.S. Geological Survey, Mineral Industry Surveys dated 
June 2000, December 2000 and June 2001 in the docket for the 
rulemaking.
    \12\ See phone log for conversation between Sue Burnell, EPA OSW 
and EPA Region 2 enforcement official, dated 7/3/01 in the docket 
for today's rulemaking.
---------------------------------------------------------------------------

    Finally, the two commenters that use two-step processes to produce 
antimony oxide argued that slags from the first type of furnace in 
their processes should not be listed because the slags are not 
generated during the production of

[[Page 58268]]

antimony oxide. As explained below in section 3, we were only partially 
persuaded by this argument. We are listing all slags associated with 
the production of antimony oxide, including slags from the production 
of process intermediates for antimony oxide. However, we are excluding 
from the listing slags from batches where none of the material produced 
is used in the production of antimony oxide. See section 3 for further 
details.
    Because of the documented practice of slag accumulation for long 
periods of time, the lack of certainty that any current recycling 
practices will continue absent this listing, and the results of our 
risk analysis, the listing is warranted to ensure that disposal of all 
slags associated with the production of antimony oxide as nonhazardous 
waste does not occur. Therefore, we are finalizing the listing under 40 
CFR 261.11(a)(3) as:

K177  Slag from the production of antimony oxide that is speculatively 
accumulated or disposed, including slag from the production of 
intermediates (e.g., antimony metal or crude antimony oxide). (T)
3. Scope Issues--Production of Intermediates
    Two commenters raised questions with regard to the scope of the 
antimony oxide listings as they pertain to the generation of 
intermediates in the production of antimony oxide. Both of these 
commenters operate two-step antimony oxide processes and both claim 
that slag from the furnace producing the process intermediate should 
not be included within the scope of the listing.
    The first commenter, which operates the Montana facility, 
questioned whether the waste materials generated from its reduction 
furnace fall within the scope of the listing. The commenter's position 
is that these wastes are generated during the production of antimony 
metal rather than antimony oxide and, therefore, are outside the scope 
of the listing. The commenter makes a subsequent argument that because 
the wastes from this furnace are outside the scope of the listing, our 
samples of the filters and slags from the reduction furnace should not 
be used to support either waste listing.
    We were partially persuaded by the commenter's views. This 
commenter's facility includes both reduction and oxidation furnaces. 
The reduction furnace uses a variety of feedstocks to produce antimony 
metal. The oxidation furnace uses the antimony metal produced in the 
reduction furnace as feedstock to produce antimony oxide product. The 
commenter's production process runs on a batch basis and the facility 
tracks the antimony metal production output from the reduction furnace 
based on where it is used.\13\ Approximately 90% of the antimony metal 
produced in the reduction furnace is sent to the oxidation furnace for 
the production of antimony oxide.\14\ In this case, when the antimony 
metal goes on to the oxidation furnace for antimony oxide production, 
we consider the antimony metal to be a process intermediate in the 
production of antimony oxide and we consider the two furnaces to be 
steps in a single, integrated process designed to produce antimony 
oxide. We consider the reduction furnace slag and the filters from 
these batches to be wastes from the production of antimony oxide 
falling within the scope of the Consent Decree and the listing 
determination. To eliminate any possible confusion, we have amended the 
language of the listings to expressly include filters and slag from the 
production of intermediates, although we think a straightforward 
reading of the proposed language would have included these wastes 
anyway.
---------------------------------------------------------------------------

    \13\ See Montana DEQ Hard Rock Program, Operating Permit/Field 
Inspection Report of U.S. Antimony, dated June 7, 2000 in the docket 
for today's rulemaking.
    \14\ See docket for notes from calls with U.S. Antimony dated 
February 28, 2001 and March 29, 2001.
---------------------------------------------------------------------------

    However, in the less frequent case, when none of the antimony metal 
from a particular batch produced in the reduction furnace is sent to 
the oxidation furnace for antimony oxide production, we do not consider 
this batch of antimony metal to be a process intermediate associated 
with antimony oxide production. Likewise, the wastes--both slags and 
filters--generated during such batches would not be associated with the 
production of antimony oxide. Although we have authority to consider 
such wastes for listing, we are not taking final action to list these 
wastes today. We note that we are not required to do so under the 
Consent Decree.
    As noted above, the commenter also asserted that our samples of the 
reduction furnace slag from this facility did not represent slag from 
the production of antimony oxide. However, we believe that it is 
reasonable to assume that our sample came from slags associated with 
the production of antimony oxide. As noted above, 90% of the antimony 
metal produced in the reduction furnace is used as an intermediate to 
produce antimony oxide. All of the slag associated with these batches 
falls within the scope of the listing. Further, all but a tiny fraction 
(less than one percent) of the antimony metal that is not used to make 
antimony oxide is produced on a contract furnace basis for another 
company. The two companies have an agreement that the metal and the 
slag generated during this contract production are sent to the second 
company. This agreement was in place when we sampled the reduction 
furnace slag and we received no information at the time (or 
subsequently) indicating that the material was sampled was to be 
shipped off-site. Therefore, we believe we have a reasonable basis for 
concluding that the reduction furnace slags that we sampled were 
associated with antimony oxide production.\15\
---------------------------------------------------------------------------

    \15\ This same Montana facility has a historic slag pile. 
Current information suggests that the slag is from the production of 
antimony metal that was not in any way associated with the 
production of antimony oxide. (It was generated prior to initiation 
of antimony oxide production at the facility.) If the information 
proves to be correct, the pile would not be subject to the listing, 
even if actively managed after the effective date. See docket for 
notes on call with U.S. Antimony dated March 8, 2001.
---------------------------------------------------------------------------

    If the facility commingles listed and nonlisted slags or filters, 
the mixture will be subject to regulation as hazardous waste under the 
RCRA mixture rule, 40 CFR 261.3(a)(2)(iii) and (iv). If the facility 
can segregate slags and filters that are not associated with antimony 
oxide production, however, those wastes will not be regulated under 
this listing. To segregate the wastes, the facility should take steps 
such as changing filters before and after producing a batch of antimony 
metal produced on a contract basis.
    The second commenter, associated with the facility that has ceased 
operating since the time of proposal, asserted that the listing should 
not cover slag formerly produced in the blast furnace at the recently 
closed Laredo, Texas facility. The commenter explained that the blast 
furnace produced low grade or ``crude'' antimony oxide that was then 
inserted into the main antimony oxide furnace to produce salable 
antimony oxide.\16\ To the best of our knowledge, this is the only 
other facility that produced antimony oxide using a two-step process 
involving the production of an intermediate (e.g., metal or crude 
antimony oxide). The commenter argued that EPA had not evaluated blast 
furnace type operations within the proposed rule. The commenter stated 
that ``a blast furnace is designed to

[[Page 58269]]

liberate antimony from its source; therefore, the resulting slag is 
much lower in antimony content than the slags produced at later stages 
of the process.''
---------------------------------------------------------------------------

    \16\ See docket for notes from call with Cookson, dated March 
14, 2001.
---------------------------------------------------------------------------

    In response, we first note that the company operating the Laredo 
facility did not identify the historic pile in its Sec. 3007 survey. 
Thus, we did not collect data on this pile and did not assess it in the 
proposal. Next, we note that all of the crude antimony oxide from the 
Laredo blast furnace was used on-site to produce salable antimony 
oxide. Therefore, its slag is a waste associated with antimony oxide 
production. Moreover, we believe that the Laredo blast furnace closely 
resembles the Montana reduction furnace whose slag we evaluated for 
listing. Both the Laredo blast furnace and the Montana reduction 
furnace use antimony source materials plus coke or coal to make an 
intermediate product. The coke and coal serve as fuel and reducing 
agent. Kirk-Othmer's Encyclopedia of Chemical Technology categorizes 
both types of furnaces as pyrometallurgical processes for the recovery 
of antimony, supporting our belief that these processes operate on very 
similar principles, using similar raw materials and creating similar 
wastes.\17\ In the course of making listing determinations, we rely on 
process descriptions, functions, and waste characterization to 
determine whether processes are sufficiently similar to be evaluated 
together. We have never taken the position that all facilities covered 
by a single listing investigation must have identical operations; 
rather, we evaluate, as a category, facilities that engage in similar 
operations. Based on this general practice we looked at the function of 
the Laredo blast furnace and the type and composition of its waste 
compared to the Montana process and slag that we modeled for the 
antimony oxide slag listing. As stated above, both the Laredo and 
Montana furnaces produce an antimony intermediate which is used in 
further production of antimony oxide. In addition, both processes 
produce a similar waste, slag, containing the same type of 
constituents. Therefore, we have concluded that it is reasonable to 
consider the Laredo blast furnace to be in the same general category of 
antimony oxide operations that we assessed for listing.
---------------------------------------------------------------------------

    \17\ Kirk-Othmer citation.
---------------------------------------------------------------------------

    The commenter argues that its blast furnace produced slags with 
lower antimony content than the slags we assessed for the listing and 
that their slag, therefore, should not be covered by the K177 listing. 
The commenter asserted that its blast furnace slag does not present 
risks warranting listing. We disagree with this characterization of the 
Laredo slag as being significantly different from the modeled slag. The 
commenter indicated that the total level of antimony in the Laredo 
slags was in the range of 1 to 3% of the waste, by weight. In our risk 
modeling of the Montana site, we used two samples of the Montana slag 
that contained 1% antimony (sample AC-1-AO-01) and 12% antimony (sample 
AC-1-AO-06), respectively. Both samples were included in the 
distribution used to develop the probabilistic risk assessment results, 
upon which the listing is based. There is approximately a factor of 2 
difference in the SPLP measurements between the 1% antimony slag and 
the 12% antimony slag samples from the Montana facility. Since the 
results from our risk assessment exceed our level of concern (HQ=1) by 
considerably more than a factor of 2, there would still be risks of 
concern had we used only the slag with the lower amount of antimony 
(i.e., 1%). Therefore, we find the Laredo slag has the potential to 
pose significant risk. This, in concert with the site differences in 
hydrogeologic conditions as described below and in the Response to 
Comments Background Document, supports including the Laredo slag within 
the K177 listing.
    The commenter provided a comparison of the input parameters for our 
risk assessment at the Montana facility and the parameters which could 
be applied to the facility in Laredo. The commenter first argued that 
the maximum Laredo TCLP value was at least an order of magnitude below 
the SPLP levels used in the Montana risk assessment and, therefore, 
antimony risks from the Laredo facility would also be an order of 
magnitude lower than the Montana risks. They believed these lower risks 
would fall below our threshold for listing (i.e., HQ of one). The 
commenter then discussed the site conditions at the Laredo facility and 
argued that those conditions would lower the risk results even further.
    We believe that there are some important factors that the commenter 
did not consider in its analysis and the combined effect of these 
factors may not result in the lower risks assumed by the commenter. 
First, the leachate concentrations of antimony from the Laredo slag are 
significant and exceed health-based levels by orders of magnitude. The 
single SPLP level reported by the commenter for antimony in the Laredo 
slag is 2.1 mg/L. The antimony TCLP levels reported by commenter for 
the slag range from 2.8-25.9 mg/L. These SPLP and TCLP levels are 350-
4,100 times EPA's antimony HBL for drinking water (0.006 mg/L). The 
magnitude of these HBL exceedences suggests that, had we modeled the 
Laredo slag using the site conditions at Laredo or a regional off-site 
area, we likely would have found significant risks to human health.
    Second, our analysis of the Montana site used site-specific 
parameters due to the on-site waste management practice. The unique 
conditions at the Montana site resulted in extremely large dilution and 
attenuation factors (DAFs) for the risk assessment (for antimony, the 
DAFs were 1,960 to 3,811 at the 5th and 10th percentiles \18\). A DAF 
represents the ratio of the leachate concentration to the model-
predicted ground-water concentration. The Montana site has high DAFs 
because it has a porous sand and gravel aquifer that readily dilutes 
the antimony concentrations in the waste leachate. This situation at 
the Montana site favors lower risk results. Therefore, had the modeling 
been conducted using different hydrogeological parameters, such as 
those described for the Laredo facility by the commenter, we expect the 
risks would be higher than the results from the Montana site. For 
example, given the maximum antimony leachate levels reported by the 
commenter for the Laredo slag, a DAF of over 4,000 would be required to 
bring the exposure level below the HBL (0.006 mg/L). The hydrogeologic 
conditions described by the commenter are less favorable than those at 
the Montana site for generating rapid dilution of the waste leachate 
and, therefore, such a large DAF is unlikely either at the commenter's 
site or at any reasonable regional off-site location.
---------------------------------------------------------------------------

    \18\ See Table 4-66, ``Ground Water DAFs for Low Antimony Slag 
Managed in an Onsite Landfill--Thompson Falls, MT,'' in Risk 
Assessment for the Listing Determinations for Inorganic Chemical 
Manufacturing Wastes, August, 2000. Note that although there is not 
a direct correspondence between DAF's and risk, lower DAF's result 
in higher risk. Therefore, the 5th and 10th percentile DAF's are of 
particular interest relative to high end risks, e.g., at the 90th 
and 95th percentiles of the risk distribution.
---------------------------------------------------------------------------

    In addition, we do not believe that the analysis of risks from the 
Laredo slag can be limited to on-site disposal. The off-site disposal 
scenario is plausible based on the commenter's previous off-site use of 
the slag in roadbed construction, as well as discussions with the 
commenter and the State of Texas regarding the potential use of 
additional slag in off-site roadbed aggregate as part of a site-wide 
remediation effort. Therefore, considering only the on-site factors at 
the Laredo facility as discussed by the

[[Page 58270]]

commenter does not address all our concerns for the slag. Typical off-
site scenarios do not support large DAFs, as evidenced by the modeling 
results for other sectors in this listing rule. For example, the 
modeling of titanium dioxide wastes in off-site landfills resulted in 
DAFs for antimony on the order of 3 to 9 at the 5th and 10th 
percentiles.\19\ It is unlikely that the hydrogeological conditions for 
the regional area near Laredo will result in a DAF that will support 
the commenter's claim that the risks from the Laredo slag would be 
lower than what was modeled for the listing.
---------------------------------------------------------------------------

    \19\ See Table 6-24, ``Comparison of DAFs for Antimony in 
Ilmenite Process Wastewater Treatment Sludge for 100 Percent and 10 
Percent Waste Quantities,'' in Risk Assessment for the Listing 
Determinations for Inorganic Chemical Manufacturing Wastes, August, 
2000. Note that although there is not a direct correspondence 
between DAF's and risk, lower DAF's result in higher risk. 
Therefore, the 5th and 10th percentile DAF's are of particular 
interest relative to high end risks, e.g., at the 90th and 95th 
percentiles of the risk distribution.
---------------------------------------------------------------------------

    The Laredo slag also accounts for a much greater volume compared to 
the volume modeled for the Montana slag. According to the commenter, 
the waste volume for the Laredo slag is 60,000 MT (plus an additional 
60,000 MT of contaminated soil), whereas we modeled a total of 600 MT 
for the Montana facility. We would expect this greater volume of waste 
to contribute to increased risks from disposal both on-site and off-
site. Finally, the State of Texas has independently determined that 
this facility poses significant risk and has issued a corrective action 
order to clean up the site because of antimony contamination. As part 
of this order, the State is requiring remediation of the historic pile, 
suggesting that the waste poses risks.
    Based on the combination of factors described above, we believe 
that the commenter did not present a sufficient basis for excluding the 
historic slag from the blast furnace in Laredo from the K177 listing.
4. Scope--Offsite Recycling
    A third commenter requested clarification that slags from lead 
smelters who had taken antimony oxide slag to recycle the lead content 
would not be subject to the listing. In response, we note that 
throughout the proposed rule, we chose not to evaluate risks of wastes 
generated by facilities that used secondary materials from Consent 
Decree processes in their production processes. (We did, however, 
evaluate risks posed when recycling of secondary materials involved use 
as a fuel or ``use constituting disposal.'') Generally, we considered 
any wastes produced by a second facility manufacturing a different 
product to be wastes from a different industrial process, and chose not 
to evaluate them. Consequently, wastes produced by lead smelters that 
use antimony oxide slags as feedstocks are not part of today's listing. 
Since antimony oxide slags that are recycled without speculative 
accumulation are not within the scope of the listing, the antimony 
oxide slags sent to the lead smelters are not subject to the listing. 
However, if the antimony oxide slags are speculatively accumulated 
prior to use at a lead smelter, than the antimony oxide slags would be 
subject to the listing and the lead smelter slags would be captured by 
the derived from rule.

D. Final Titanium Dioxide Listing Determination

1. Overview of Listing Determination
    Our proposed rule described our assessment of the various wastes 
generated by the three titanium dioxide processes used in the United 
States.\20\ We proposed to list one waste, nonwastewaters from the 
production of titanium dioxide by the chloride-ilmenite process, with 
an exemption for solids previously identified in 261.4(b)(7) as exempt 
mineral processing waste. We proposed not to list all other titanium 
dioxide wastes. These wastes are described further in the proposal and 
in the Titanium Dioxide Listing Background Document (August 2000) which 
is available in the docket for the proposed rule.
---------------------------------------------------------------------------

    \20\ The three processes include the chloride, sulfate and the 
chloride-ilmenite processes.
---------------------------------------------------------------------------

    Today's final rule lists some of the waste material encompassed by 
the proposed K178 listing. The final rule focuses on solids removed 
from ferric chloride after the initiation of ferric chloride production 
and does not, as originally proposed, include the wastewater treatment 
sludge or the vanadium portion of the reactor solids generated during 
the production of titanium dioxide by the chloride-ilmenite process. 
Moreover, as explained above, we no longer base this listing on risks 
posed by manganese.
2. Overview of K178 Comments
    Comments relating to manganese are discussed above in section IV.B. 
Comments on other issues are summarized here. Three titanium dioxide 
manufacturers, one trade organization, and one ferric chloride acid 
distributer submitted comments on our proposed listing determination 
for the titanium dioxide manufacturing sector. The comments addressed a 
wide range of topics pertaining to the proposed K178 listing, including 
interpretations of our Bevill determination, choice of management 
scenarios for modeling, the validity of specific elements of our 
modeling, scope of the listing, and toxicity of manganese. One 
commenter submitted extensive new analytical data characterizing the 
materials potentially impacted by the listing. This commenter also 
developed additional Kd measurements for thallium. After 
closure of the comment period, this same commenter provided important 
new information regarding its management practices for the materials 
potentially impacted by the listing (all post-comment period 
communications are available in the docket for today's rule).
    We discuss the key comments influencing our final decision in the 
following discussion. We developed a separate document containing our 
responses to all public comments (see Response to Public Comments: 
Final Listing Determination for Inorganic Chemical Manufacturing Wastes 
in the docket for today's rule).
3. Overview of K178 Waste Subcategories
    At proposal, we indicated that three subcategories of solids (non-
exempt nonwastewaters) from the chloride-ilmenite process would be 
captured by the K178 listing. These three subcategories of solids were 
identified as: (1) Exempt coke and ore solids (condenser solids for the 
purposes of this discussion) removed from the gaseous titanium 
tetrachloride product stream that are commingled with a non-exempt 
vanadium stream, (2) solids generated during wastewater treatment which 
are not exempt to the extent they are derived from oxidation and 
finishing wastewaters, and (3) non-exempt ferric chloride solids 
removed from the ferric chloride acid stream. Three U.S. plants, all 
owned by E.I. du Pont de Nemours (DuPont), operate the chloride-
ilmenite process. The three plants, located in Edge Moor, Delaware; 
Johnsonville, Tennessee; and DeLisle, Mississippi, each generate the 
condenser solids and wastewater treatment sludge subcategories. The 
Delaware facility is the only facility currently generating the non-
exempt ferric chloride residues.
4. Management Scenarios
    We based our proposal to list K178 wastes on the ground-water 
ingestion risks shown in our analysis of plausible management scenarios 
for the nonexempt wastes contained in the combined solids (Iron Rich 
TM)

[[Page 58271]]

generated at the Delaware facility. Prior to the proposal, the Delaware 
facility reported actual or intended use of the Iron Rich TM 
at landfills and in other types of land-based uses in the general 
vicinity of the plant. Such uses included use as daily or final cover 
at various landfills, use in construction of berms and dikes, and use 
as fill material at municipal landfills and elsewhere. We chose to 
model risks for disposal in an off-site industrial landfill because 
this seemed a reasonable representation of the varied potential 
disposal or land-based use scenarios. We modeled hydrogeological 
conditions representative of conditions within a 100-mile radius of the 
Delaware facility. We also qualitatively assessed an off-site municipal 
landfill scenario. We found risks of concern via the ground-water 
pathway for both the industrial and the municipal landfill practices. 
Although the Delaware plant had been stockpiling their Iron Rich 
TM onsite, the facility has no active landfill capacity, and 
thus we focused our assessment on the off-site disposal scenario. Both 
the Tennessee and Mississippi facilities operate on-site landfills. 
Moreover, both of these facilities segregate their wastewater treatment 
solids from their condenser solids. We modeled risks from the disposal 
of wastewater treatment sludge, comprised of exempt and non-exempt 
solids, in an on-site landfill at the Tennessee facility for potential 
releases to surface water, but we did not find risks of concern for 
this scenario (see 65 FR 55761).
    In meetings and comments submitted after the close of the comment 
period, DuPont stated that it had reevaluated the potential for 
beneficial off-site uses of the Iron Rich TM. DuPont 
indicated that, in contrast to their plans described prior to proposal 
and in their initial comments, the company now would not pursue these 
beneficial use options because of the potential risks that their 
modeling had predicted could arise from dioxin contaminants in the 
material as it is currently formulated.\21\ DuPont stated that it is 
looking into the availability of effective treatment processes to 
reduce the concentrations of organics in the material and confirmed 
that the Delaware facility was planning to dispose of the Iron Rich 
TM in an off-site landfill located outside of the corridor 
near the plant (e.g., a commercial landfill in South Carolina was 
identified as a potential disposal site).
---------------------------------------------------------------------------

    \21\ ``Summary of Meeting Between EPA's Office of Solid Waste 
and Representatives from DuPont, April 3, 2001. See also letters 
dated April 16, 2001 and April 27, 2001 to Lillian Bagus, EPA from 
Gregg Martin, DuPont regarding ``Edge Moor Iron Rich TM 
Staging Area Screening Assessment.''
---------------------------------------------------------------------------

    Given the recent indications from DuPont that it no longer intends 
to try to market the Iron Rich TM, and that they are now 
landfilling the material off-site, we believe that our initial 
assumptions for management of these wastes are valid. Thus, our 
evaluation of the risks presented by the waste solids in an industrial 
or municipal landfill is appropriate and represents a reasonable 
approach to assessing risks for a listing determination.
    DuPont also argued that EPA ignored the fact that the two other 
plants (in Tennessee and Mississippi) disposed of their solids in on-
site landfills, and that EPA's analysis of the wastes at the Tennessee 
plant showed no risks of concern. As described in more detail below, we 
are finalizing a listing only for the ferric chloride residues and not 
the wastewater treatment sludge or condenser solids. This means that 
the only plant that generates the listed waste is the Delaware 
facility. Therefore, the management practices at the Tennessee or 
Mississippi plants are not directly relevant to the potential risks 
from the listed solids and we did not need to determine whether or not 
it was likely that these plants would dispose of their solids off-site.
5. Scope Issues--Exempt Mineral Processing Wastes
a. Condenser Solids
    As explained in the proposal, we consider the solids from the 
initial reaction of coke and ore which are separated from the gaseous 
product stream in the condenser unit to be Bevill-exempt. However, at 
the time of proposal we thought that facilities commingled these exempt 
solids after they had been removed from the process with a separate, 
non-exempt waste stream containing vanadium impurities (generated 
during titanium tetrachloride purification). We thought gaseous 
titanium tetrachloride was recovered from this mixture of commingled 
wastes and returned to the process, and that solid materials, 
consisting of the condenser coke and ore solids, as well as the non-
titanium tetrachloride portion of the vanadium impurities stream, 
remained outside the process and were ultimately disposed of as a 
waste. We proposed that the solids derived from the vanadium impurities 
stream would be covered by the K178 listing.
    DuPont and other commenters clarified that the vanadium impurities 
stream is returned via closed pipes to the condenser unit, and is not, 
as we previously had thought, commingled with the coke and ore solids 
after they are removed from the condenser. Commenters clarified that 
the vanadium impurities stream contains significant levels of titanium 
tetrachloride; insertion of this stream into the condenser allows for 
the recovery of this product value. Solid impurities from the vanadium 
stream drop out of the condenser with the solids from the initial coke 
and ore reaction. Commenters also clarified that the cooler temperature 
of the vanadium impurities stream facilitates the operation of the 
condenser unit. Further, they explained that chloride and chloride-
ilmenite plants have been configured in this manner for at least 20 
years. Based on these factors, they argued that the vanadium impurities 
stream is not a waste until it exits the condenser with the solids from 
the coke and ore reaction.
    We now understand that the residuals from the vanadium impurities 
stream leaves the process as an integral component of the coke and ore 
solids. Consequently, we no longer consider the vanadium impurities 
stream to be a separate waste. Moreover, because the residuals from the 
vanadium impurities stream are not a separable stream when they leave 
the process, it is now clear that they are Bevill-exempt because they 
are an integral component of the coke and ore solids.
    For these reasons, we have decided to modify our proposed position 
on the Bevill status of the vanadium impurities stream. The residuals 
that exit the condenser are part of the solids from the production of 
titanium tetrachloride exempt under 40 CFR 261.4(b)(7)(S). This 
supersedes all earlier positions expressed on the Bevill status of the 
vanadium impurities stream as we now are aware that we previously 
misunderstood the details of the process.
    However, as noted in the proposed rule, we may in the future 
consider whether we should reassess the status of these wastes as 
exempt mineral processing wastes. We believe that there may be a need 
to assess whether future regulatory action is justified for the solids 
from titanium dioxide manufacturing because they contain significant 
concentrations of manganese and dioxin. The impacts associated with the 
presence of these two constituents were not considered at the time the 
Bevill exemptions were promulgated.
b. Wastewater Treatment Sludge
    In the proposal, we explained that the Bevill exemption extends to 
the portion of the wastewater treatment sludge

[[Page 58272]]

derived from treatment of titanium tetrachloride wastewaters (and 
conversely does not exempt the portion of the sludge derived from 
treatment of titanium dioxide wastewaters). Our position on this issue 
remains unchanged. Comments supporting this position were submitted by 
various manufacturers and trade organizations. We did not receive any 
negative comments on this topic. We continue to believe that this 
interpretation is consistent with the language of the 1989 Bevill 
exemption. Consequently, sludge containing solids from the production 
of titanium tetrachloride are exempt. Sludge containing solids from 
oxidation and finishing operations are non-exempt. All three facilities 
commingle their wastewaters and, therefore, generate commingled sludges 
that are partially Bevill exempt and partially non-exempt. The portion 
of the wastewater treatment sludge that is non-exempt varies at each 
facility.
c. Ferric Chloride Residues
    Solids are removed from ferric chloride acid at all three DuPont 
facilities. At the Mississippi and Tennessee plants, the solids are the 
condenser solids described previously. They are removed from the ferric 
chloride acid prior to any additional processing of the acid and are 
exempt mineral processing wastes.\22\ The Delaware facility's process 
is slightly different, generating two separate solids streams, the 
exempt condenser solids, as well as ferric chloride residues generated 
from subsequent manufacture of ferric chloride. The Delaware plant 
sells its ferric chloride as a wastewater and water treatment agent. 
Prior to sales, the Delaware plant adds a processing chemical 
(chlorine) to the acid stream, then filters the acid to remove solids. 
As described in our proposal, the residue removed from the ferric 
chloride after chlorine addition is generated from the production of 
ferric chloride. DuPont is no longer engaged in the manufacture of 
titanium tetrachloride at this point. The residue, therefore, is not a 
mineral processing waste exempt under 261.4(b)(7)(ii)(S).
---------------------------------------------------------------------------

    \22\ Sec. 261.4(b)(7)(ii)(S): Chloride process waste solids from 
titanium tetrachloride production.
---------------------------------------------------------------------------

    Although we did not consider the ferric chloride residues to be 
wastes generated during the process of producing titanium dioxide, we 
included them within the scope of the proposed K178 listing to be 
promulgated under section 3001(e) of RCRA because these residues were 
being commingled with other non-exempt residues we planned to list 
under this authority.
    In public comments, DuPont argued that the addition of chlorine 
does not affect the chemical composition of the resultant filtered 
residues and that the simple addition of chlorine is not a significant 
enough chemical step to determine that the processing of acid has 
begun. DuPont contends that we mistakenly assumed that the addition of 
chlorine to the ferric chloride stream generates or affects the 
unreacted coke and ore solids that are separated from that solution. 
DuPont noted that these solids already have been separated from 
titanium tetrachloride in the titanium dioxide production process, are 
carried along with the ``waste acid'' through the point of chlorine 
injection, are not affected by the chlorine injection, and are Bevill-
exempt whether separated from the ferric chloride solution before or 
after chlorine injection. DuPont believes we should recognize that the 
ferric chloride solids retain their same character and exempt status 
after the addition of chlorine.
    DuPont also contends that the proposal to include the solids from 
the ferric chloride, which are added to the Iron Rich TM and 
also collect in ferric chloride product storage tanks and impoundments, 
would contradict EPA's prior Bevill determinations. DuPont noted that 
during prior Bevill determinations, EPA sampled these solids and agreed 
that they were exempt. They argue the exempt status of these solids was 
understood not only by the facility and EPA but also by the regulating 
state agency.
    DuPont further contends that the proposal also would contradict the 
Agency's standards for distinguishing mineral processing from chemical 
manufacturing, 54 FR 36592, 36616 (September 1, 1989), and its 
clarification of ``uniquely associated'' wastes in the Phase IV LDR 
rule. DuPont argued that the solids, when disposed of, are solid wastes 
that originate from mineral processing operations.
    We disagree with these comments. We believe that wastes from the 
production of ferric chloride are not wastes that are exempt under the 
Bevill exemption regulations. They are not extraction and beneficiation 
wastes because the input material (waste acid containing solids from 
the titanium dioxide manufacturing process) has gone through mineral 
processing. Once mineral processing begins, all subsequent operations 
are not considered extraction/beneficiation. See 54 FR at 36619, 
September 1, 1989. Even if they were considered mineral processing 
wastes, they are not wastes from any of the 20 specific mineral 
processing wastes exempted under 261.4(b)(7)(ii). As explained in the 
proposal, we believe that once the Delaware facility adds chlorine to 
the waste acid stream, it is engaged in the manufacture of ferric 
chloride, not the manufacture of titanium tetrachloride, the material 
for which wastes are exempt under 261.4(b)(7)(ii)(S).
    In support of our position, we note that the manufacture of ferric 
chloride is in no way necessary to the manufacture of titanium 
tetrachloride or titanium dioxide. The facility does not use any of the 
ferric chloride in any step of the process that produces either of the 
two titanium products.
    Regarding the Delaware plant, the commenter asserts that the 
addition of chlorine in the process of making ferric chloride does not 
alter the solids in the waste acid that it later filters out and 
mingles with all of its other process solids. This is irrelevant. The 
issue for the purpose of the Bevill exemption is whether the facility 
is making titanium tetrachloride or some other product. In determining 
whether a waste falls within the scope of Bevill exemption for one of 
the 20 mineral processing wastes, we have never engaged in extending 
the Bevill applicability to the production of a different product based 
on an analysis of the similarities or dissimilarities of the waste 
material.
    Moreover, we disagree with this assertion. The waste matrix of 
concern contains both solids and a measurable amount of liquid waste 
acid. While we are not convinced that the solids are unaffected by the 
addition of chlorine, clearly the liquid acid portion of the waste 
solids has been chemically altered by the addition of chlorine (i.e., 
the purpose of the chlorine addition is to shift the balance between 
ferrous and ferric chloride in the acid.\23\ Therefore, we believe that 
at a minimum the acid component of the ferric chloride residue waste 
matrix does undergo some chemical change as a result of the ferric 
chloride manufacturing process.
---------------------------------------------------------------------------

    \23\ See section 4.1 of DuPont's November 13, 2000 comments, as 
well as letter dated May 8, 2001 to Lillian Bagus, EPA, and Stephen 
Hoffman, EPA, from Gregg Martin, DuPont, regarding ``Proposed K178 
Hazardous Waste Listing of Ferric Chloride Solids''.
---------------------------------------------------------------------------

    The commenter also observes that we sampled the waste solids from 
the production of ferric chloride in the mid-1980's, and, when we 
established the exemption for solid titanium tetrachloride wastes in 
1991, we did not assert that these solids were not covered by the 
exemption. The commenter may be correct that our mid-1980's sample of 
commingled solids included some

[[Page 58273]]

solids filtered out of ferric chloride production. However, we did not 
know, at the time that we promulgated the titanium tetrachloride 
exemption, that the plant filtered out the solids after it added 
chlorine to the waste acid (i.e., began the manufacture of ferric 
chloride). The regulatory language, however, is sufficiently clear: EPA 
defined the exemption as applying to solids from the manufacture of 
titanium tetrachloride, not ferric chloride production.
    Finally, the commenter asserts that the ferric chloride residues 
meet our three criteria for classification as an exempt manufacturing 
waste. The criteria as noted at 54 FR 36614-36620 (September 1, 1989) 
are: (1) Excluded Bevill wastes must be a solid waste as defined by 
EPA; (2) excluded solid waste must be uniquely associated with mineral 
industry operations; and (3) the solid waste must originate from 
mineral processing operations as defined by five specific criteria.
    We disagree. We agree with the commenter that the ferric chloride 
residues are ``solid wastes'' under the first criterion. However, the 
waste ferric chloride residues do not meet the second criterion. For a 
waste to be ``uniquely associated'' with the titanium tetrachloride 
mineral processing operation, the process that generates the waste must 
be necessary to the production of titanium tetrachloride. As explained 
above, the Delaware plant does not need to make ferric chloride to 
manufacture titanium tetrachloride, the only material produced there 
that gives rise to Bevill-exempt wastes. The plant uses no portion of 
the ferric chloride produced. Since the ferric chloride residues fail 
to meet this criterion, we have no need to determine whether they meet 
the third criterion. Moreover, we would take the position that the 
ferric chloride residues were not exempt even if we agreed that they 
``originated'' in the production of titanium tetrachloride. Residues 
removed after the facility begins the manufacture of the distinct 
ferric chloride product (by the addition of chlorine) are not solids 
from the manufacture of titanium tetrachloride.
    After the close of the comment period, representatives of the 
commenter told us that the Delaware plant planned to reconfigure its 
operations.\24\ The plant plans to remove the bulk of the residues from 
the waste acid prior to adding chlorine. The plant also might remove a 
much smaller amount of solids from the ferric chloride product stream 
after it adds chlorine. Under such a configuration, we would not 
consider solids removed from the waste acid prior to the addition of 
chlorine to be residues from the manufacturing of ferric chloride. They 
would be solids from the manufacturing of titanium tetrachloride and 
would be exempt under 261.4(b)(7)(ii)(S). They would not be subject to 
today's listing. Any residues that the facility removed after it added 
chlorine to the waste acid stream, however, would continue to be 
residues from the production of ferric chloride and would continue to 
be subject to today's listing.
---------------------------------------------------------------------------

    \24\ Letter to Lillian Bagus, EPA from Gregg W. Martin, DuPont 
regarding ``Edge Moor Iron Rich TM Staging Area Screening 
Assessment'', dated April 16, 2001. See also DuPont/EPA April 3, 
2001 meeting notes.
---------------------------------------------------------------------------

6. Comments Related to the Constituents of Concern and Modeling Issues
a. Toxicity of Manganese
    We received comments from DuPont and other commenters on our 
proposal to list K178 on the basis of human health risks stemming from 
manganese toxicity. These comments are available in the docket for 
today's rule. EPA is deferring those elements of our proposal related 
to manganese. See section IV.B. of the preamble for further 
clarification.
b. Presence of Thallium in DuPont Wastes
    DuPont submitted comments arguing that thallium is not present in 
its wastes and that thallium should not be used as a basis for listing. 
DuPont criticized our analysis for thallium in the Delaware Iron Rich 
TM sample, arguing that our thallium TCLP value for Iron 
Rich TM is artificially high and that our thallium SPLP 
value for Iron Rich TM is suspect. In light of these 
comments, we re-examined our analysis and determined that our thallium 
TCLP and SPLP results are valid. See Response to Comment Background 
Document for a more detailed discussion of our evaluation of the 
validity of DuPont's criticism of our analysis for thallium.
    DuPont also argued that its own sampling and analysis of Iron Rich 
TM shows that thallium is not present in the levels 
suggested by EPA. DuPont provided analytical data characterizing eight 
Iron Rich TM samples (plus one duplicate). These samples 
were collected from the filter press where we collected our sample of 
Iron Rich TM (DPE-SO-01) and thus are comparable to our 
sample. All 8 samples and the duplicate were analyzed for total, TCLP 
and SPLP concentrations of 20 metals, including thallium. We carefully 
reviewed DuPont's data package. DuPont conducted metals analyses using 
two analytical methods: inductively coupled plasma with mass 
spectroscopy (ICP-MS, SW-846 Method 6020B) and inductively coupled 
plasma (ICP, SW-846 Method 6010B). Our review of these data for 
DuPont's Iron Rich TM samples showed that there are numerous 
analytical problems with DuPont's ICP-MS analyses (see Assessment of 
Analytical Data Submitted by DuPont in Response to Proposed Inorganic 
Chemical Industry Hazardous Waste Determination for K178 (October 
2001), available in today's docket). Due to these problems, we chose 
not to consider the ICP-MS results and have assessed only DuPont's more 
reliable ICP results. Table IV-2 compares our ICP results.

             Table IV-2.--Thallium in Iron Rich TM, Delaware
------------------------------------------------------------------------
                                                      EPA Sample (DPE-SO-
            Analysis                   EMI-1 ~ 8              01)
------------------------------------------------------------------------
Total-6010 B (mg/kg)............  7.1...............  3.7
                                    ................  (23.6 DuPont
                                                       split)
TCLP-6010 B (mg/L)..............  0.250.............  0.28
                                    ................  (0.27 EPA
                                                       duplicate)
SPLP-6010 B (mg/L)..............  0.050.............  0.012
------------------------------------------------------------------------

    As Table IV-2 indicates, DuPont did not detect total or TCLP/SPLP 
thallium in its Iron Rich TM samples (EMI-1 to EMI-8 and 
EMI-6-Dup), although their laboratory did not achieve detection limits 
as low as our laboratory achieved. We detected total and SPLP thallium 
in our Iron Rich TM sample (DPE-SO-01) at levels that are 
lower than DuPont's detection limits for total and SPLP thallium 
analysis; we also detected TCLP thallium at a level close to

[[Page 58274]]

DuPont's detection limit for TCLP thallium analysis. Thus, DuPont's 
data fail to demonstrate that our SPLP analyses are suspect with regard 
to thallium. DuPont's newly submitted ICP total, TCLP and SPLP thallium 
results are very similar to our ICP total, TCLP and SPLP thallium 
results. The results of earlier analytical work by DuPont also show 
that our values were not artificially high. DuPont's split total 
thallium value (23.6 mg/kg) for Iron Rich TM (collected and 
analyzed at the same time our sample was collected prior to proposal) 
was even higher than our total thallium result (3.7 mg/kg). Note that 
our laboratory, in the course of analyzing the Iron Rich TM 
sample, conducted a second thallium analysis with a 10-fold dilution 
which resulted in a total thallium concentration of 18.4 mg/kg.
    DuPont also argues that, based on process knowledge, DuPont does 
not expect thallium to be present in its wastes at the levels suggested 
by EPA for any of the three chloride-ilmenite facilities. DuPont said 
its analyses of ores used in the prior year indicate that thallium 
generally is not present at levels above 0.050 mg/kg. The highest 
thallium level in ore detected by DuPont was 0.171 mg/kg, which DuPont 
estimates would correspond to a solids level of 0.350 mg/kg. DuPont's 
arguments are not convincing because: (1) No ore analyses were 
presented for review; (2) DuPont did not describe whether it's limited 
review was representative of the ores associated with our sampling 
event or ongoing operations; and (3) DuPont did not assess its other 
primary raw material, petroleum coke, for thallium. Sampling data from 
prior analyses submitted by DuPont confirm that thallium has been 
present in the Iron Rich TM \25\ and similar wastes \26\ at 
levels significantly above what DuPont estimated from its ore analyses.
---------------------------------------------------------------------------

    \25\ See Attachment to DuPont Edge Moor's Sec. 3007 survey 
entitled ``Split Metals Analyses from Region III Package,'' Sample 
No. 3228296, Iron Rich, with total thallium concentration reported 
at 23.6 mg/kg. See also January 6, 2000 letter to Michael (sic, Max) 
Diaz, EPA from Jonathan Bacher, VFL, regarding DuPont Iron-Rich 
Utilization, VFL Technology Approval Application, Attachment I: STL 
Product Analysis, Sample Number 91941001, with total thallium 
concentration reported at 28.6 mg/kg.
    \26\ See Exhibit 13-4 of ``Report to Congress on Special Wastes 
from Mineral Processing,'' July 1990. See also Tables 3.19, 3.21, 
and 3.27 of the Titanium Dioxide Listing Background Document for the 
Inorganic Chemical Listing Determination, August 2000.
---------------------------------------------------------------------------

    In summary, we disagree with DuPont's assertion that thallium is 
not present in its waste.
c. Thallium Distribution Coefficient
    DuPont submitted comments challenging our assumptions for the 
thallium soil-water distribution coefficient (Kd). We found 
that these comments had merit. As a result, we have modified our 
proposed findings for the non-exempt wastewater treatment sludge and 
ferric chloride residues with respect to the industrial solid waste 
landfill scenario. The impact of these comments was less marked for the 
municipal solid waste landfill scenario for ferric chloride residues.
    The Risk Assessment Background Document for the proposed rule 
stated that a literature search of sorption studies found no published 
data on the Kd for thallium. In lieu of published data, we 
relied on a graphical presentation of data shown in an unpublished 
draft report in order to establish a range over which to vary 
Kd and then assumed a log uniform distribution within that 
range. Out of concern for the absence of published data, DuPont 
conducted a study of thallium Kd and submitted the data and 
study documentation to EPA. The DuPont study was done on three 
different soil types representing a range of soil conditions. Although 
the data are not inconsistent with the range of Kd values we 
used in the risk assessment, the DuPont data fall in the upper half of 
the Kd distribution. Moreover, the DuPont data exhibit a 
clear concentration dependence and, for two of the three soil types, 
the data lie in the upper quartile of the Kd distribution at 
the relatively low concentrations actually found in the Iron 
RichTM leachate. In addition, DuPont submitted modeling 
analyses that show that the model-predicted ground-water concentrations 
are relatively sensitive to the value of Kd within the range 
of Kd's of the DuPont data, with higher Kd values 
producing lower ground-water thallium concentrations.
    After examining the data presented by DuPont, we agree that the 
Kd values from this study appear to be more appropriate to 
use in assessing risks from the wastes in question. Given this, the 
dilution and attenuation of thallium in the waste leachate from the 
non-exempt ferric chloride residues and the non-exempt wastewater 
treatment sludge is likely to be greater than (and consequently, the 
risks less than) that estimated in the risk assessment for the proposed 
rule. However, as explained elsewhere in today's notice, we continue to 
believe that the ferric chloride residues pose risk due to thallium in 
municipal solid waste landfills.
d. Ground-Water Mounding
    DuPont submitted comments regarding the assumptions we used in our 
ground-water modeling for infiltration and recharge rates. We agree 
that these assumptions are somewhat problematic, although we disagree 
with the remedies suggested by the commenter. This issue was important 
in our formulation of our final decisions for both the non-exempt 
wastewater treatment sludge and ferric chloride residues for the 
industrial landfill scenario, but not for the municipal landfill 
scenario.
    As explained in the Risk Assessment Background Document for the 
proposed rule, the ground-water modeling analysis at proposal for the 
combined nonexempt nonwastewaters from the Delaware facility used a set 
of infiltration and recharge rates that were generated based on a water 
balance through an assumed unlined landfill under a variety of climatic 
and soil conditions. However, depending on the characteristics of the 
underlying aquifer, the infiltration and recharge rates derived from 
the water balance may exceed the capacity of the subsurface to absorb 
the water. As a result, mounding of the water table may occur in the 
ground-water model beneath the landfill. DuPont submitted comments on 
the proposed rule stating that this model-induced mounding is excessive 
and can lead to ground-water velocities that are unrealistically high. 
In their comments, DuPont implemented several different approaches to 
mitigate the impact of mounding on the model-predicted ground-water 
concentrations, including modifying the EPACMTP ground-water model. 
These alternative approaches give larger dilution and attenuation 
factors (DAF's) than the approach used in the unmodified model for the 
proposed rule.
    We evaluated DuPont's comments and conclude that excessive mounding 
of ground water can, in fact, occur with the model. However, as 
discussed in the comment response document for today's rule, we 
disagree with the alternative approaches suggested by the commenter. 
These approaches primarily involve substantial reductions in the rate 
of waste leachate infiltration and, for this reason, they result in 
higher DAF's. We think a preferable approach within the current model 
framework is to implement a screening procedure to eliminate 
incompatible combinations of infiltration and recharge rates and 
aquifer characteristics. To evaluate what the impact of one such 
procedure might be, we implemented a simple procedure on a trial basis 
whereby all instances in

[[Page 58275]]

which the water table was calculated to rise above the ground surface 
were eliminated. As described in the Response to Comments Background 
Document, this procedure resulted in a large number of combinations 
being eliminated. However, the DAF's at the 5th and 10th percentiles of 
the distribution were not greatly affected (i.e., they were within a 
factor of two of the DAF's modeled in the proposed rule).\27\ 
Therefore, we believe that the mounding phenomena, while not 
infrequent, also is not of such magnitude that it modifies our primary 
conclusion regarding the potential risks posed by these wastes. As 
indicated elsewhere in today's notice, EPA continues to be concerned by 
potential risks from co-disposal with municipal solid waste in a 
municipal solid waste landfill, given the TCLP test results.
---------------------------------------------------------------------------

    \27\ Although there is not a direct correspondence between DAFs 
and risk, lower DAFs result in higher risks. Therefore, the 5th and 
10th percentile DAFs are of particular interest relative to high end 
risks, e.g., at the 90th and 95th percentiles of the risk 
distribution.
---------------------------------------------------------------------------

7. Wastewater Treatment Sludge
a. What Was Our Proposed Listing Determination?
    Wastewater treatment sludge is one component of the proposed 
listing for non-exempt nonwastewaters generated from the chloride-
ilmenite process. We based our proposal to list this waste component as 
hazardous on our modeling of the combined nonwastewaters generated at 
the Delaware facility, which showed that manganese and thallium leach 
from the combined waste at levels that may pose significant risk to 
human health from ground-water ingestion.
    Wastewater treatment sludges are generated at each of DuPont's 
chloride-ilmenite facilities from the treatment of commingled 
wastewaters. The wastewaters are generated from the production of 
titanium tetrachloride, as well as from the production of titanium 
dioxide. As described previously in this notice, we proposed an 
interpretation of the Bevill exemption for this sludge that stated that 
the portion of the wastewater treatment sludge derived from treatment 
of titanium tetrachloride wastewaters would be eligible for exemption, 
while the portion of the sludge derived from titanium dioxide 
wastewaters (e.g., oxidation and finishing wastewaters) would be 
nonexempt and subject to the proposed listing determination.
    DuPont submitted comments arguing that the combined solids listing 
should not include wastewater treatment sludges because they have lower 
levels of hazardous constituents and, therefore, do not contribute 
significantly to the risk posed by the combined wastestream. Moreover 
these wastes are generated separately from the condenser solids and 
ferric chloride solids. The Delaware facility commingles them with the 
other two types of solids. The Tennessee and Mississippi facilities 
dispose of them separately, as could the Delaware site (as we assume 
that they would do if we excluded them from the listing due to cost 
savings). Consequently, we assessed these sludges as if they were a 
separate wastestream. As explained below, we concluded that, as a 
separate wastestream, the wastewater treatment sludges do not present 
significant risks, and we are not taking final action to list them.
b. What Was the Technical Basis for the Proposed Listing?
    To support our proposed listing determination, we collected one 
sample of chloride-ilmenite wastewater treatment sludge from the 
Tennessee facility. This sample was taken from a pond used to dewater 
wastewater treatment sludge prior to landfilling (i.e., the ``Hillside 
Pond''). This sample contains both exempt and non-exempt wastewater 
treatment sludge. In addition, we collected a sample of the commingled 
Iron RichTM from the Delaware facility. This sample also 
contains both exempt and non-exempt wastewater treatment sludge. 
Wastewater treatment sludge accounts for ten percent of the commingled 
Iron RichTM. We did not sample the wastewater treatment 
sludge generated at the Mississippi facility. As stated in the 
proposal, we believe that our sampling and modeling of the sludges 
generated at the Tennessee and Delaware sites provides an appropriate 
surrogate for the waste generated at the Mississippi facility, given 
the similar nature of the processes at all three facilities.
    Table IV-3 provides a summary of the analytical data for the Iron 
RichTM and Hillside Pond samples that were used to support 
the proposed listing.

                    Table IV-3.--Characterization of Wastewater Treatment Sludge from the Chloride-Ilmenite Process, Titanium Dioxide
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Iron RichTM (Delaware)  (10% WWT       Hillside Pond  WWT                         AWQC (mg/L)
                                                                 solids)                    solids (Tennessee)                 -------------------------
             Constituent of concern              -----------------------------------------------------------------  HBL (mg/L)
                                                   Total (mg/                             Total (mg/                               Human       Aquatic
                                                      kg)      TCLP (mg/L)  SPLP (mg/L)      kg)      SPLP (mg/L)                  health        life
--------------------------------------------------------------------------------------------------------------------------------------------------------
Antimony........................................          0.9    \2\ 0.021         0.02          0.7        0.021        0.006        0.014          n/a
Arsenic.........................................          2.2       0.0035    \2\ 0.001          2.8   \1\ 0.0035       0.0007      1.8E-05         0.15
Barium..........................................          178      \2\ 2.4         0.92         49.6         0.12          1.1          n/a          n/a
Boron...........................................           30          1.7         0.61         24.5         0.45          1.4          n/a          n/a
Lead............................................          309    \2\ 0.032   \2\ 0.0032         42.4    \2\ 0.002        0.015  ...........       0.0025
Manganese.......................................       10,600          252         16.3        2,890          1.5          0.7         0.05          n/a
Nickel..........................................         91.8          0.5        0.005         59.8        0.007         0.31         0.61        0.052
Thallium........................................          3.7         0.28        0.012          7.2       0.0022        0.001       0.0017          n/a
Vanadium........................................          240   \2\ 0.0003        0.005        1,060        0.005         0.14          n/a          n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
n/a: not applicable
\1\ One half the detection limit was used as a screening level.
\2\ Results are less than the typical laboratory reporting limit, but are greater than the calculated instrument detection limits.

    We used our SPLP results for the Hillside Pond sample to screen the 
on-site waste management scenarios at the Tennessee site (i.e., 
industrial landfill and impoundments). The primary constituents of 
concern in the SPLP extract were antimony and manganese. Our assessment 
of potential releases of these constituents to ground-water, which 
would discharge into the nearby river did not show sufficient risk to 
human health or aquatic life to serve as

[[Page 58276]]

a basis for listing. In addition, we used our SPLP results for the Iron 
RichTM which contained 10 percent wastewater treatment 
sludge to model an off-site industrial landfill scenario for the 
Delaware waste. Based on the risk associated with this scenario for 
manganese and thallium, and the commingled nature of the wastes, we 
proposed to include the non-exempt portion of the wastewater treatment 
sludge within the scope of the listing, which would have applied to all 
three facilities.
    As described in the Titanium Dioxide Background Document, our 
analytical data also showed that chlorinated dioxins and furans are 
present in the Hillside Pond wastewater treatment sludge (402 ppt TCDD 
TEQ), as well as in the Iron RichTM (57 ppt TCDD TEQ). 
However, we concluded, based on engineering assessment of the process, 
that the vast majority of the dioxins and furans were associated with 
the Bevill-exempt portions of the wastewater treatment sludges. 
Therefore, we did not assess potential risks from the dioxins and 
furans from the non-exempt wastewater treatment sludge.
c. What Is the Basis for the Final ``No List'' Determination?
    In its comments, DuPont argued that its wastewater treatment 
sludges do not have the same composition as the Iron RichTM 
which served as the basis for the proposed listing. DuPont argued that 
the analytical data for the Iron RichTM sample is not 
characteristic of wastewater treatment sludge because Iron 
RichTM consists predominantly of coke and ore solids. DuPont 
argued that the coke and ore solids and the wastewater treatment 
sludges are not chemically similar.
    In particular, DuPont argued that the wastewater treatment sludges 
generated at its three chloride-ilmenite facilities do not contain 
manganese or thallium (the two constituents for which we proposed to 
list the waste as hazardous) at levels of concern. To support its 
conclusion, DuPont collected 53 samples of its wastewater treatment 
sludges and conducted total and SPLP leachate analyses of the samples 
for 20 metals, including manganese and thallium. DuPont used these 
analytical results to argue that our risk assessment would show 
significantly less risk if we were to assess the wastewater treatment 
sludges alone (rather than as a component of the Iron 
RichTM). (As explained below, DuPont's new totals and SPLP 
leachate data contained new information on arsenic and antimony that 
caused us to reassess risks from those constituents as well.)
    DuPont also provided sampling and analytical data for its 
wastewaters from oxidation and finishing in an attempt to demonstrate 
that the non-exempt sludges derived from treatment of these wastewaters 
would not contain significant levels of manganese or thallium.
    We assessed these new data in the context of the management 
scenarios we evaluated for the proposal and in light of the other 
comments (described above) that we believed had merit (e.g., thallium 
Kd, ground-water mounding). We reassessed the industrial 
landfill scenario using DuPont's new SPLP data for off-site management 
of the Delaware wastewater treatment sludge and on-site management of 
the Tennessee and Mississippi wastewater treatment sludges. We 
reassessed the municipal landfill scenario using DuPont's new totals 
data for off-site management of the Delaware wastewater treatment 
sludge. Because, however, of our decision to defer action on manganese 
(see section IV.B), the following discussion focuses instead on 
thallium, antimony and arsenic. The results of these assessments are 
set out below.
    We also assessed DuPont's oxidation and finishing wastewater data 
but determined that we could not draw meaningful conclusions about the 
hypothetical concentration of constituents of concern in theoretical 
wastewater treatment sludges that might form from separate disposal of 
oxidation and finishing wastewater treatment sludges, if DuPont were to 
isolate them.
(1) Assessment of Industrial Landfill Scenario for Wastewater Treatment 
Sludges
    Thallium: In its comments, DuPont contends that thallium is not 
present in its wastewater treatment sludges. DuPont provided data 
intended to support its claim that its wastewater treatment sludges do 
not contain thallium. Analytical results submitted by DuPont for the 
wastewater treatment sludges generated at all three facilities indicate 
that samples analyzed by DuPont contain no leachable thallium at levels 
above the HBL. However, as explained in our report, Assessment of 
Analytical Data Submitted by DuPont in Response to Proposed Inorganic 
Chemical Industry Hazardous Waste Determination for K178 (October 2001) 
which can be found in the docket for today's rule, we have significant 
concerns with the laboratory results provided by DuPont with regard to 
the presence of total and leachable thallium in the wastewater 
treatment sludges. Due to our concerns regarding the validity of 
DuPont's SPLP analytical results for thallium, we cannot agree that 
DuPont's data demonstrate that thallium is not present in the 
wastewater treatment sludges. For example, DuPont's ICP (SW6010) 
thallium data for the Tennessee plant showed thallium detected at 
levels below the method detection limit; the average concentration of 
these tentative detections is 0.014 mg/L. While we generally would not 
rely on these type of tentative data for the purposes of listing a 
waste, these results contradict DuPont's claim that the wastewater 
treatment sludge does not contain thallium at levels comparable to 
those we detected in the Iron RichTM sample. Therefore, we 
are continuing to use our measurement of 0.012 mg/L in Iron 
RichTM as the thallium concentration for our risk 
assessment. Table IV-4 provides a summary of the validated thallium 
SPLP data.

   Table IV.-4.--Thallium SPLP Results for DuPont Wastewater Treatment
                     Sludges and Iron RichTM (MG/L)
------------------------------------------------------------------------
                 Waste description                    DuPont      EPA
------------------------------------------------------------------------
Delaware wastewater treatment sludge..............      0.053         NA
Tennessee pond sludges............................    * 0.053     0.0022
Mississippi pond sludges..........................      0.053         NA
Delaware Iron RichTM..............................      0.050      0.012
------------------------------------------------------------------------
Thallium HBL = 0.001 mg/L.
NA: not analyzed.
* Thallium was detected in some samples at levels below the method
  detection limit.

    As described previously, DuPont argued that our thallium modeling 
results overestimate mobility, particularly as impacted by the thallium 
Kd values we used. DuPont's data indicate that at low 
concentrations (e.g., on the order of 0.01 mg/L), thallium 
Kd's lie within the upper end of the range we used in the 
risk assessment for the proposed rule (>300 to ~800 L/kg for the DuPont 
data vs. 1 to 1000 in the proposed rule). Taking these data into 
account, we expect that the hazard quotient for thallium in the 
wastewater treatment sludges (which we had estimated in the Iron Rich 
reduced volume analysis for the proposed rule as 0.9 and 1.6 for a 
child at the 90th and 95th percentiles, respectively) would be reduced 
to below our listing threshold for the industrial landfill scenario. 
Consequently, we have changed our position on thallium risks from 
wastewater treatment sludges in industrial landfill scenarios. We no 
longer believe that thallium in these wastes poses significant risks.

[[Page 58277]]

    Arsenic: The data that we collected to support the proposal at the 
Delaware and Tennessee facilities showed arsenic levels exceeding the 
HBLs. However, arsenic screened out when we assessed the ground water 
to surface water pathway at the Tennessee facility. Similarly, our 
modeling of ground-water risks at the Delaware facility did not predict 
risks of concern.
    Analytical data DuPont submitted in its comments indicate that the 
combined wastewater treatment sludges generated at the company's 
DeLisle, Mississippi facility have arsenic levels (as measured by the 
SPLP) significantly above those that we observed from our sampling and 
analysis of the Iron RichTM generated at the Delaware 
facility and the Hillside Pond sludge generated at the Tennessee 
facility. (See our review of these data in Appendix C of Assessment of 
Analytical Data Submitted by DuPont in Response to Proposed Inorganic 
Chemical Industry Hazardous Waste Determination for K178, October 
2001.) DuPont's data show that the average arsenic SPLP levels in the 
wastewater treatment sludges generated at the Mississippi facility 
range between 0.031 and 0.11 mg/L, while the HBL for arsenic is 0.0007 
mg/L.
    We do not predict that these data would support a hazardous waste 
listing determination. Based on other modeling for potential ground-
water releases at the Mississippi site, the wastes are unlikely to 
present significant risks. The Mississippi site-specific modeling for 
the proposed rule yielded relatively high dilution and attenuation 
factors (DAF) for metals. For example, the 10th percentile DAFs ranged 
from 865 to 8,859 (see Table 4-64 in the risk assessment background 
document in the docket for the proposal, Risk Assessment for the 
Listing Determinations for Inorganic Chemical Manufacturing Wastes: 
Background Document, August 2000). Therefore, it is unlikely that the 
arsenic levels found in the Mississippi facility's wastewater treatment 
sludges would present a significant risk, particularly given that we 
believe these wastewater treatment sludges will continue to be managed 
on-site. The facility reported in its Sec. 3007 survey that the 
landfill is not scheduled to close until 2014. Given this readily 
available management capacity, we do not expect the facility would 
change their current practices and incur costs associated with shipment 
and offsite commercial waste management. Therefore, we have decided not 
to list the wastewater treatment sludges based on the presence of 
arsenic in the sludges generated at the Mississippi plant.
    Antimony: As with arsenic, the data we collected in support of the 
proposal at the Delaware and Tennessee facilities showed antimony 
levels exceeding the HBLs. Antimony screened out when we assessed the 
ground water to surface water pathway at the Tennessee facility; our 
modeling of ground-water risks at the Delaware facility did not predict 
risks of concern.
    Analytical data submitted by DuPont in comments indicate that the 
combined wastewater treatment sludges generated at the DeLisle plant 
have average antimony levels (0.026 mg/L, as measured by the SPLP) 
comparable to those we observed in our sampling and analysis of the 
Iron RichTM (0.02 mg/L) and Johnsonville wastewater 
treatment sludge (0.021 mg/L). We do not believe these levels pose risk 
that warrants listing as hazardous waste.
(2) Assessment of Municipal Landfill Scenario for Wastewater Treatment 
Sludges
    We assessed the municipal landfill scenario as plausible for the 
Delaware wastewater treatment sludges. (See the discussion below 
related to the plausibility of this scenario for ferric chloride 
solids, another component of the combined solids generated by the 
Delaware facility.) For the reasons set out above, we assumed that the 
comparable Tennessee and Mississippi sludges will continue to be 
managed on site in existing DuPont landfills. Although DuPont did not 
conduct TCLP analyses of the Delaware wastewater treatment sludges, we 
were able to assess the total constituent analyses and conclude that 
these solids would not likely pose risk if managed in a municipal 
landfill.
    Thallium: DuPont did not detect thallium in any of its eight 
samples of the Delaware wastewater treatment sludges, with the 
exception of one value of 0.22 mg/kg that was qualified as questionable 
due to detection of thallium in associated analytical blanks. For the 
purposes of a worst case screening analysis, we used this qualified 
value as a theoretical maximum concentration, and then calculated a 
corresponding maximum theoretical TCLP concentration of 0.011 mg/L. To 
determine whether the commenter's concerns regarding the thallium 
distribution coefficient would reduce this hazard quotient below the 
listing threshold, we assessed the commenter's modeling runs. In their 
late comments, DuPont provided the results of a Monte Carlo run for 
thallium using a Kd of 300 L/kg (which DuPont stated was the 
appropriate value for this leachate concentration), which increased the 
10th percentile DAF that corresponds to our modeling run of 3.9 to 119, 
a 30-fold increase; this DAF would reduce the theoretical TCLP 
concentration well below the thallium HBL of 0.001 mg/L. Therefore, we 
are not concerned that thallium in the Delaware wastewater treatment 
sludges is likely to pose risk in a municipal solid waste landfill 
scenario.
    Antimony: In lieu of TCLP antimony data, we assessed the total 
antimony levels in DuPont's SW-846 Method 6010 analyses of combined 
exempt and non-exempt wastewater treatment sludge: antimony levels 
ranged from 1.9 to 3.8 mg/kg and were detected in all eight of the 
sludge samples. Each of these values was detected above the instrument 
detection limits, but below the method detection limit. See Appendix C 
of Assessment of Analytical Data Submitted by DuPont in Response to 
Proposed Inorganic Chemical Hazardous Waste Determination for K178, 
October 2001. Although we generally would not rely on this type of 
tentative data for the purposes of listing a waste, we used these 
values as worst case concentrations for the purposes of screening out 
the municipal solid waste landfill scenario for the non-exempt portion 
of the wastewater treatment sludge.
    Initially, we calculated a maximum theoretical TCLP value using the 
maximum total antimony value reported for the wastewater treatment 
sludge (i.e., 3.8 mg/L divided by 20), yielding a worst case TCLP value 
of 0.19 mg/L. While this value clearly exceeds the antimony HBL of 
0.006 mg/L, we recognized that the wastewater treatment sludge is 
comprised of exempt and non-exempt components, and that some proportion 
of this HBL exceedance would be associated with the exempt solids that 
are outside the scope of this listing determination. To isolate the 
portion of the risk that is associated with the non-exempt wastewater 
treatment sludges derived from treatment of oxidation and finishing 
wastewaters, we used DuPont's antimony analytical data for its major 
oxidation and finishing wastewater (RIN 13, dryer scrubber water) \28\ 
to estimate what the concentration of antimony would be in the 
wastewater treatment sludge if (1) all of the antimony in this 
wastewater were concentrated in the sludge, and (2) this wastewater was 
the only source of antimony contributing to the sludge antimony 
concentration. We

[[Page 58278]]

estimated this maximum theoretical total concentration of antimony from 
oxidation and finishing wastewaters in the wastewater treatment sludge 
to be 0.036 mg/kg (see Response to Comments Background Document in the 
docket for today's rule for the details of this calculation). This 
concentration is significantly lower than the measured antimony levels 
in the total wastewater treatment sludge samples, indicating that the 
non-exempt portion of the wastewater treatment sludge does not 
contribute much antimony loading to the overall sludge volume. Finally, 
to complete this screening analysis, we projected a maximum theoretical 
TCLP value of 0.002 mg/L from the maximum non-exempt antimony sludge 
concentration by dividing the total value by 20. This TCLP maximum 
value is below the HBL of 0.006 mg/L. We conclude from this analysis 
that it is unlikely that the non-exempt portion of the wastewater 
treatment sludge would pose risk from antimony if the waste were placed 
in a municipal solid waste landfill.
---------------------------------------------------------------------------

    \28\ See Appendix C of Assessment of Analytical Data Submitted 
by DuPont in Response to Proposed Inorganic Chemical Industry 
Hazardous Waste Determination for K178, October 2001.
---------------------------------------------------------------------------

    Arsenic: Although we have TCLP data for the combined Delaware 
facility wastestreams that make up Iron Rich, we have no TCLP data for 
the wastewater treatment sludge component of this waste. Also, DuPont 
did not conduct TCLP analysis of this waste in its post-proposal 
sampling effort. In lieu of such data, we estimated TCLP leachate 
values for the sludge by starting with the total arsenic levels in 
DuPont's data for Delaware wastewater treatment sludge and calculating 
a theoretical maximum TCLP value. Specifically, DuPont's ICP analysis 
indicated that arsenic was present in four of eight samples at levels 
above the instrument detection limit, but below the method detection 
limit. The average of these four values was 4.0 mg/kg. Although we 
generally would not rely on this type of tentative data for the 
purposes of listing a waste, we used these values as worst case 
concentrations for the purposes of our screening analysis. The 
theoretical maximum TCLP value associated with this average total 
concentration is 0.2 mg/L (4.0 mg/kg /20). We then used this value 
(instead of the measured Iron RichTM TCLP value) to 
extrapolate risk from the risk values calculated for the proposal. This 
worst case analysis indicated that there could be risk (i.e., 2E-04) 
higher than our listing threshold; however, this analysis seriously 
overstated the potential risk associated with placing the non-exempt 
portion of the Delaware wastewater treatment sludge in a municipal 
solid waste landfill for a number of reasons. The actual risk 
associated with arsenic in this waste would likely not exceed the 
listing threshold if we conducted full-scale risk assessment without so 
many compounding conservative assumptions. These assumptions include: 
(1) We do not have actual TCLP data for this wastewater treatment 
sludge and have made worst case assumptions by assuming all the arsenic 
would leach out; (2) this screening analysis overestimates risk because 
it was based on the entire volume of Iron Rich, while the wastewater 
treatment sludge volume only accounts for 10 percent of the Iron Rich, 
and the non-exempt portion of the wastewater treatment sludge volume is 
very small; (3) this analysis relies on total arsenic concentrations 
that we estimated from analytical results that were below the method 
detection limit, which increases their uncertainty; (4) correcting the 
ground-water mounding problem identified by the commenter (see section 
6.d above) also would tend to lower the estimated risk. After 
considering all of these factors, we do not believe we have sufficient 
evidence to list the non-exempt portion of the wastewater treatment 
sludge based on arsenic risk. The details of this analysis are provided 
in the docket for today's rule.
(3) What Is the Final Listing Determination for Wastewater Treatment 
Sludges?
    We have made a final decision not to list the non-exempt wastewater 
treatment sludges because we do not believe this waste is likely to 
pose risk in either an industrial solid waste landfill or a municipal 
solid waste landfill, the plausible management scenarios for this 
waste.
8. Ferric Chloride Residues
    Since we concluded that the vanadium component of the combined 
waste solids was Bevill-exempt, and found that the wastewater treatment 
sludge component did not pose risks justifying a listing, we assessed 
the last component of the combined solids separately. As explained 
below, we concluded that this component does pose significant risks, 
and we are taking action to list it today.
a. Where Are Non-Exempt Ferric Chloride Residues 
Generated?TM
    Ferric chloride residues that are subject to today's listing are 
generated at the Delaware plant wherever solids settle or are removed 
from the acid stream after initiation of ferric chloride manufacturing. 
Examples include residues that accumulate in acid storage tanks or 
surface impoundments. Ferric chloride residues also have been 
accumulating at the Delaware site in the facility's Cherry Island 
staging area as a component of Iron RichTM. To the extent 
that the accumulated Iron RichTM is actively managed after 
the effective date of today's rule, those residues also will be subject 
to the listing.
    In addition, while the Delaware facility is the only site currently 
impacted by this final listing, if other chloride-ilmenite plants began 
manufacturing ferric chloride for sales, any residues separated from 
their ferric chloride after initiation of ferric chloride manufacturing 
also would be subject to the listing.
    Several commenters requested that we clarify whether the listing 
will impact solids that may settle out of or be removed from ferric 
chloride after the acid has been sold and transferred off-site. We 
intended to list only solids from the manufacture of ferric chloride. 
Our listing covers only residues generated while ferric chloride is 
being made and additional residues that settle out while the product is 
stored on-site at the ferric chloride manufacturing facilities (since 
that on-site storage is associated so closely with the manufacturing of 
the product). We did not intend for the listing to extend to residues 
that might be generated after this product is sent off-site. We have no 
data on management practices used off-site to ascertain how frequently 
ferric chloride purchasers or intermediates store ferric chloride 
purchased from various sources in the same tank. Nor do we have any 
analytical data to characterize any residues that might settle out from 
these off-site storage tanks. Therefore, we are clarifying that the 
listing does not include residues removed from ferric chloride after 
sale and transfer off-site. Note that residues generated off-site from 
storage and use of the ferric chloride acid product are not subject to 
the Consent Decree requirements for today's final rule because ferric 
chloride use was not covered by the Consent Decree. We also note that 
such residues would be subject to regulatory control if they exhibit 
any of the hazardous waste characteristics.
b. Summary of Available Data
    We conclude that the ferric chloride residues closely resemble the 
Iron RichTM samples that we collected, as well as those Iron 
RichTM samples collected by DuPont. Coke and ore solids are removed 
from the titanium tetrachloride process in several steps at the 
Delaware facility (all other chloride and chloride-ilmenite plants 
generate these solids in one step). The bulk of the solids are removed 
in a primary solids

[[Page 58279]]

separation step at the Delaware facility, and the ferric chloride 
residues are removed in the subsequent condenser step.\29\ The only 
difference between these streams is that: (1) The ferric chloride 
residue contains the contribution of vanadium impurities (described 
previously in section 5.a above); and (2) the ferric chloride residue 
would also contain potentially higher concentrations of iron chlorides. 
The risks we are assessing are not related to either vanadium or iron 
chloride compounds. Both categories of waste are commingled to form 
Iron RichTM. DuPont described both categories of waste as 
being ``coke and ore'' and provided no arguments to the effect that the 
ferric chloride residues were more or less contaminated than the 
primary solids. We, therefore, conclude that the data characterizing 
the commingled Iron RichTM, which is 80 percent primary solids and 10 
percent ferric chloride residues, is an appropriate surrogate for the 
ferric chloride residues. (The remaining 10 percent of the total volume 
consists of the wastewater treatment sludges discussed above).
---------------------------------------------------------------------------

    \29\ DuPont described the process at p. 3.4 of their 11/13/2000 
comments as follows: ``In equipment downstream of the reactor, crude 
gaseous titanium tetrachloride is extracted from the majority of 
high boiling metal chlorides and un-reacted coke and ore solids by 
condensation, drying, and gravity separation. Following this 
separation, the hot gas is then condensed to obtain a crude liquid 
titanium tetrachloride. The crude liquid must be further purified to 
extract titanium tetrachloride from the remaining non-titanium metal 
chlorides (particularly vanadium chlorides) and remaining suspended 
solids (e.g., iron chloride and un-reacted coke and ore).''
---------------------------------------------------------------------------

    Table IV-5 summarizes the available and valid EPA and DuPont 
analytical data (focusing on ICP analytical results, as described 
previously) for Iron RichTM for the three metals that we 
modeled for the proposed listing and are assessing in this final rule 
(antimony, arsenic, and thallium).\30\
---------------------------------------------------------------------------

    \30\ As discussed in section IV.B, we are not taking final 
action on manganese in today's rule.
---------------------------------------------------------------------------

    As explained below, DuPont's new data do not persuade us that this 
waste does not present significant risks. Even with DuPont's data, we 
continue to predict significant risks in offsite municipal landfills.
    Finally, we noted that DuPont's data on antimony and arsenic show 
higher concentrations than our data. We reviewed this data and 
concluded that it did not support a listing based on an offsite 
industrial landfill scenario. DuPont's TCLP data for antimony and 
arsenic are somewhat uncertain, if valid, it would tend to corroborate 
our listing.

                                                 Table IV-5. Summary of Analytical Data for Iron RichTM
                                                       [As surrogate for ferric chloride residues]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             DuPont analyses
          Constituent               Analysis    ------------------------------------------------------------------------ EPA sample DPE-SO- Health based
                                                  EMI-1    EMI-2    EMI-3    EMI-4    EMI-5    EMI-6    EMI-7    EMI-8           01         level (mg/L)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Antimony......................  Total..........   3.5      3.66     3.55     2.2      2.2      3.96     3.11     3.17    0.9..............  ............
                                TLCP...........   0.17     0.155    0.155    0.155    0.155    0.155    0.155    0.155   0.021............        0.006
                                SPLP...........   0.0571   0.031    0.044    0.041    0.056    0.048    0.031    0.0248  0.02.............  ............
Arsenic.......................  Total..........   3.1      4.33     3.1      3.1      3.1      3.1      4.96     3.1     2.2..............  ............
                                RCLP...........   0.22     0.22     0.22     0.22     0.22     0.22     0.26     0.22    0.0035...........        0.0007
                                SPLP...........   0.043    0.043    0.043    0.043    0.043    0.043    0.043    0.043   0.001 (1)........  ............
Thallium......................  Total..........   7.1      7.1      7.1      7.1      7.1      7.1      7.1      7.1     3.7..............  ............
                                                                                                                         23.6 Dupont split
                                                                                                                          analysis.
                                                                                                                         18.4, EPA
                                                                                                                          analysis at 10x
                                                                                                                          dilution.
                                TCLP...........   0.250    0.250    0.250    0.250    0.250    0.250    0.250    0.250   0.28.............        0.001
                                                                                                                         0.27 EPA
                                                                                                                          duplicate
                                                                                                                          analysis.
                                SPLP...........   0.050    0.050    0.050    0.050    0.050    0.050    0.050    0.050   0.012............  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Results are less than the typical laboratory reporting limit, but are greater than the calculated instrument detection limits.

c. Assessment of Industrial Solid Waste Landfill Scenario for Ferric 
Chloride Residues
    To respond to DuPont's comments, we reexamine our proposed findings 
regarding significant risk in an off-site industrial solid waste 
landfill scenario for the ferric chloride residues generated at the 
Delaware facility. As discussed earlier, this plant is the only 
generator of the ferric chloride residues from the production of ferric 
chloride and this plant has no on-site capacity for landfilling. The 
plant is currently shipping the waste off-site for Subtitle D 
landfilling; clearly our modeled management scenario continues to be 
relevant.
    The proposal described risk associated with the entire volume of 
Iron RichTM, as well as with a reduced volume (10%) of 
waste, in an off-site industrial landfill scenario. DuPont reported 
that the ferric chloride residues account for 10 percent of the Iron 
RichTM volume. Therefore, we believe that the reduced volume 
analysis conducted for the proposed rule (see 65 FR 55763) is an 
appropriate framework to use in reexamining risks for the ferric 
chloride residues.
    Our reexamination, using DuPont's SPLP results is presented below.
    Thallium: DuPont's thallium SPLP detection limits (0.050 mg/L) 
exceed our analytical result of 0.012 mg/L. We do not believe DuPont's 
data refutes ours. While we found risk at proposal associated with our 
analytical results, we believe the commenter's previously discussed 
concerns regarding the thallium distribution coefficient (see section 
6.c above) have merit. DuPont's data indicate that at low 
concentrations (e.g., on the order of 0.01 mg/L), thallium 
Kd's lie within the upper end of the range we used in the 
risk assessment for the proposed rule. Specifically, DuPont's data 
indicate that the Kd's range from >300 to ~800 L/kg, while 
the Kd values we used in our modeling for the proposal 
ranged from 1 to 1,000, with a median of 30. Taking these data into 
account, we expect that the hazard quotient for thallium in the ferric 
chloride residues (which we had estimated in the Iron RichTM 
reduced volume analysis for the proposed rule as 0.9 and 1.6 for a 
child at the 90th and 95th percentiles, respectively) would be reduced 
to below our listing threshold for the industrial landfill scenario 
because the higher Kd's measured by DuPont would result in 
more attenuation in the modeled aquifer, and consequently lower ground-
water concentrations and, therefore, less risk.

[[Page 58280]]

    Antimony: DuPont's average SPLP antimony results for eight samples 
of Iron RichTM was 0.038 mg/L, which is slightly higher than 
but consistent with our result of 0.02 mg/L. Using this average value 
in our modeling framework, we estimate that we would generate a hazard 
quotient of 0.76, still below our listing threshold. (The ground-water 
model we used for the proposed rule is linear with respect to leachate 
concentrations over a limited range, and thus when the only variable 
being adjusted is leachate concentration, we can proportionately adjust 
the corresponding risk value to project what the risks would be if we 
were to re-run the model.) While using DuPont's maximum value likely 
would raise the projected hazard quotient to 1.1, slightly above the 
listing threshold of unity, we do not feel that these results are 
sufficiently compelling to cause us to expand the basis for listing to 
include antimony on Appendix VII for K178. In particular, if we had run 
our probabilistic model using DuPont's eight values in our leachate 
concentration distribution, the impact of the maximum value would have 
been reduced and the resultant hazard quotient likely would not have 
exceeded one.
    Arsenic: DuPont's arsenic SPLP detection limits (0.043 mg/L) are 
too high to make any conclusions regarding risk or comparability to our 
0.001 mg/L result for the Iron RichTM. Using our data, we 
did not find risk supporting a proposed listing determination 
associated with arsenic at the concentrations we measured in the 
industrial solid waste scenario.
d. Assessment of Municipal Solid Waste Landfill Scenario for Ferric 
Chloride Residues
    The proposal also described qualitatively that risks would be 
higher if modeled in a municipal solid waste landfill scenario. We 
continue to believe this scenario supports our decision to list this 
waste. The practical difference between the Agency's modeling of a 
municipal landfill scenario and an industrial solid waste landfill 
scenario is the leachate input parameter. As described in the proposed 
rule (see 65 FR 55695), we believe that the TCLP is the most 
appropriate leaching procedure to use for wastes in the municipal 
landfill scenario, while the industrial landfill scenario is better 
modeled using SPLP results.
    After the proposal, when we modified our conclusion concerning the 
industrial solid waste landfill scenario, we took a closer look at 
risks from the municipal solid waste landfill. Using the reduced volume 
analysis described in the proposal, as well as EPA's TCLP results 
described in Table IV-5, we estimated risk results for the municipal 
solid waste landfill scenario, as presented in Table IV-6:

   Table IV-6.--Ground-water Pathway Risk Assessment Results for K178
   Municipal Landfill Scenario Extrapolated From Reduced (10%) Volume
                            Analysis EPA Data
------------------------------------------------------------------------
                                                 Hazard quotients
                                        --------------------------------
        Constituents of concern           90th%  90th%   95th%    95th%
                                          adult  child   adult    child
------------------------------------------------------------------------
Antimony...............................   0.113   0.21     0.21     0.42
Thallium...............................   9.3    21       18.7     37.3
------------------------------------------------------------------------
Note: Arsenic was not included in the reduced volume analysis for the
  proposal because of the low risk shown in the full volume analysis.

    We then examined DuPont's new analytical data, and substituted it 
for ours where warranted. We also took into account the revisions to 
our ground-water modeling warranted by DuPont's comments on the 
Kd for thallium and ground-water mounding (as described 
above). We still find significant risks associated with thallium for a 
municipal landfill scenario. The following discussion expands upon this 
conclusion.
    Thallium: DuPont's thallium TCLP detection limits (0.250 mg/L) are 
too high to make any conclusions regarding risk or comparability to our 
0.28 mg/L TCLP result. As discussed above in section 6.b, we are 
unconvinced by DuPont's concerns regarding the validity of our 
analytical data. Consequently, we have chosen to use our data in our 
reevaluating. The extrapolated hazard quotient of 37.3 in the table 
above is well above our listing threshold of one. To determine whether 
the commenter's concerns regarding the thallium distribution 
coefficient would reduce this hazard quotient below the listing 
threshold, we assessed the commenter's modeling runs. In their late 
comments, DuPont provided the results of a Monte Carlo run for thallium 
using a Kd of 300 L/kg, which increased the 10th percentile 
DAF that corresponds to our modeling run of 3.9 to 119, a 30-fold 
increase; this DAF would not reduce the hazard quotient below the 
listing threshold. In previous submittals, DuPont provided the results 
of their Kd measurements, and identified one of the three 
soil matrices analyzed as being particularly comparable to the soils in 
the plant vicinity (i.e., Baptistown NJ loam). For the concentration 
range of concern (i.e., 0.28 mg/L), DuPont's graphical analysis of the 
measurement data indicates that the thallium Kd for the 
Baptistown loam is approximately 200 L/kg. If DuPont had used this 
value in its Monte Carlo analysis, the resultant DAF would have been 
lower than 119, and the resultant hazard quotient would have still 
exceeded the hazard quotient threshold for listing of one. Furthermore, 
data for the Lynge, Denmark sandy loam show a Kd that is 
even lower (~140 L/kg) at this concentration level. In addition, as 
stated previously, we do not think that the ground-water mounding issue 
raised by the commenter is of sufficient magnitude to change our 
conclusions. For these reasons, we continue to conclude that, in this 
scenario, thallium still poses significant risks that serve as a basis 
for listing.
    Antimony: One of DuPont's Iron Rich TM samples (EMI-1) 
contained antimony in the TCLP results (0.17 mg/L) above DuPont's 
analytical detection limit and above the health-based limit (0.006 mg/
L), while the remaining seven DuPont samples did not contain antimony 
above the detection limit (0.155 mg/L). Because of the proximity of the 
detected value to the detection limit, it is not possible to determine 
whether the result is an anomaly. DuPont's Sample EMI-1 results, if 
used in our modeling analysis, would generate a hazard quotient above 
our listing threshold (3.4 for the 95th% child scenario). We are 
choosing not to expand the basis for listing to include antimony on 
Appendix VII for K178 because of the uncertainty in the analytical data 
provided by DuPont. Furthermore, the thallium results provide 
sufficient basis to support a hazardous waste listing.

[[Page 58281]]

    Arsenic: The arsenic TCLP result for one of the eight DuPont 
samples (EMI-7) exceeds the Agency's HBL by a factor of 371. Because of 
the proximity of the detection limits for DuPont's other samples to the 
detected value, we cannot determine whether or not this result is an 
anomaly. In addition, we did not conduct modeling for arsenic in our 
reduced volume analysis and, therefore, cannot (in the time remaining 
before the consent decree deadline) project risk associated with the 
ferric chloride residues waste volume. We are choosing not to expand 
the basis for listing to include arsenic on Appendix VII for K178 
because of the uncertainty in the analytical data provided by DuPont. 
Furthermore, the thallium results provide sufficient basis to support a 
hazardous waste listing.
    In summary, our modeling, using both our analytical data as well as 
DuPont's indicates that the ferric chloride residues warrant being 
listed as hazardous waste due to potential thallium risks associated 
with the municipal landfill scenario.
e. Dioxin Content as an Additional Supporting Risk Factor
    As described in the proposal, our data demonstrate that Iron Rich 
TM contains levels of polychlorinated dibenzo-p-dioxins and 
dibenzofurans that exceed our soil ingestion level for these compounds. 
Dioxin and furan concentrations are commonly converted to an equivalent 
concentration (TEQ) of 2,3,7,8-tetrachlorodibenzo-p-dioxin, the most 
toxic of the PCDDs and PCDFs. Using the toxicity equivalent factors 
developed by the World Health Organization, \31\ we estimate that Iron 
Rich TM contains 58 parts per trillion of TCDD equivalents, 
a concentration that exceeds our soil ingestion health-based limit.
---------------------------------------------------------------------------

    \31\ Van den Berg, M.L. Birnbaum, A.T.C. Bosveld, et al. 1998. 
Toxic Equivalency Factors (TEFs) for PCBs, PCDDs, PCDFs for Humans 
and Wildlife. Environmental Health Perspectives 106: 775-792.
---------------------------------------------------------------------------

    In a meeting with EPA \32\, DuPont indicated that the company's 
analyses of its wastes showed an average TCDD equivalent concentration 
of 1.1 parts per billion, twenty times higher than our measured values 
in a sample collected at the DuPont Delaware facility. DuPont conducted 
a limited risk assessment of potential releases of the Iron Rich 
TM currently stockpiled on DuPont's Cherry Island property 
to the adjacent Delaware River. \33\ Based on the dioxin risks 
predicted by this modeling, DuPont indicated that it will undertake 
significant changes in waste management practices to minimize potential 
releases of the Iron Rich TM to the environment, and is 
investigating the effectiveness of various process changes to reduce 
dioxin levels in its waste.
---------------------------------------------------------------------------

    \32\ ``Summary of Meeting Between EPA's Office of Solid Waste 
and Representatives from Dupont, April 3, 2001. Also, see letters to 
Lillian Bagus, EPA from Gregg W. Martin, DuPont re ``Edge Moor Iron 
RichTM Staging Area Screening Assessment,'' dated April 
16, 2001, and ``Edge Moor Iron Rich Staging Area Screening 
Assessment Unit Correction,'' dated April 27, 2001.
    \33\ Letters to Lillian Bagus, EPA from Gregg W. Martin, DuPont 
dated April 16, 2001 and April 27, 2001.
---------------------------------------------------------------------------

    We continue to believe that the presence of dioxins and furans in 
the ferric chloride residues is a supporting basis for listing this 
waste as hazardous. While we have elsewhere stated that the dioxin 
content in the titanium dioxide wastes is closely linked to the Bevill 
exempt solids, the ferric chloride residues subject to today's listing 
would be eligible for Bevill exemption if it were not for the 
processing (i.e., addition of trim chlorine) that signifies that the 
facility has initiated production of ferric chloride. Solids from 
production of ferric chloride are not eligible for the special mineral 
processing exemption provided for solids from titanium tetrachloride 
production. Therefore, we conclude that the ferric chloride solids 
contain significant concentrations of dioxins and furans.
9. Conclusions
    We believe we have sufficient basis to list non-exempt ferric 
chloride residues as hazardous wastes. Our data indicate that thallium 
is readily mobilized from this waste in a municipal landfill scenario, 
at levels that are likely to exceed health-based thresholds in drinking 
water. While the commenter provided information that suggests the risks 
may be somewhat reduced from those we described at proposal, the risks 
for thallium in the municipal scenario continue to exceed our listing 
thresholds. Therefore, we are finalizing the listing as:

K178  Residues from manufacturing and manufacturing-site storage of 
ferric chloride from acids formed during the production of titanium 
dioxide using the chloride-ilmenite process (T)

We view this separate waste as a waste from the production of ferric 
chloride, not a waste from the production of titanium dioxide. 
Therefore, we do not consider it to be subject to either the Consent 
Decree or section 3001(e)(2) of RCRA.
10. RCRA Versus HSWA Listing
    At proposal, we took the position that we were promulgating all of 
the listings under section 3001(e) of RCRA, a provision added by the 
Hazardous and Solid Waste Amendments of 1984 (HSWA). Rules promulgated 
under HSWA authorities take effect in all states at the same time. 
Because of the changes to the scope of the K178 listing in response to 
public comments, we are now classifying the K178 listing determination 
as a non-HSWA listing because, as explained above in the discussion of 
the Bevill exemption, we consider it to be a waste from the production 
of ferric chloride, not a waste from the production of titanium 
dioxide.
    Section 3001(e)(2) of RCRA, a HSWA provision, specifies a list of 
industries for which the Agency is to assess and make listing 
determinations on the wastes generated by those industries. The ED 
Consent Decree identifies the scope of our obligations under section 
3001(e)(2). It does not require EPA to assess wastes from the 
production of ferric chloride. Consequently, EPA is using its ``pre-
HSWA'' listing authority under section 3001(b)(1) to identify these 
ferric chloride residues as listed hazardous wastes. As such, this non-
HSWA listing will become effective in authorized states as a matter of 
state law once the states adopt the listing; it will become effective 
under federal law when EPA approves revisions to the states' programs.

E. What Is the Status of Landfill Leachate Derived From Newly-Listed 
K176, K177, and K178 Wastes?

    As noted in the proposed rule, actively managed landfill leachate 
and gas condensate generated at non-hazardous waste landfills derived 
from previously-disposed and newly-listed wastes could be classified as 
K176, K177, or K178. We proposed to temporarily defer the application 
of the new waste codes to such leachate to avoid disruption of ongoing 
leachate management activities while the Agency decides if any further 
integration is needed of the RCRA and CWA regulations consistent with 
RCRA section 1006(b)(1).
    We are finalizing the revisions to the temporary deferral in 
Sec. 261.4(b)(15) with no change from the proposed rule. One commenter 
supported the proposed deferral; however, the commenter was concerned 
about uncertainties for landfill operators in leachate management 
requirements based on different approaches used in recent listings. The 
commenter sought a single

[[Page 58282]]

solution to the derived-from issue for leachate and suggested that the 
opportunity exists under either the CWA effluent guidelines or the 
Hazardous Waste Identification Rule (HWIR).
    As we noted in the proposal, we believe a temporary deferral is 
warranted. We believe that it is appropriate to defer regulation on a 
case-by-case basis to avoid disrupting leachate management activities, 
and to allow us to decide whether any further integration of the two 
programs is needed.\34\ While the commenter suggested there were 
``uncertainties'' in leachate management requirements, no specific 
problems were identified. In any case, a broader exemption for landfill 
leachate under another regulatory program is beyond the scope of the 
current rulemaking.
---------------------------------------------------------------------------

    \34\ EPA's Office of Water recently examined the need for 
national effluent limitations guidelines and pretreatment standards 
for wastewater discharges (including leachate) from certain types of 
landfills (see proposed rule at 63 FR 6426, February 6, 1998) EPA 
decided such standards were not required and did not issue 
pretreatment standards for Subtitle D landfill wastewaters sent to 
POTWs (see 65 FR 3008, January 19, 2000).
---------------------------------------------------------------------------

    We also received one other related comment concerning the existing 
exclusion for industrial wastewater discharges that are regulated under 
the National Pollutant Discharge Elimination System (NPDES) Permit 
Program. Such discharges are specifically excluded from regulation as 
hazardous wastes under 40 CFR 261.4(a)(2). The commenter apparently is 
concerned about discharges of landfill leachate, and suggested that EPA 
should issue regulations to ensure that landfills have adequate leak 
detection/leachate collection systems and that these systems are not 
infiltrated by ground water. The commenter is concerned that leachate 
may be diluted with ground water in these systems to meet discharge 
standards.
    The regulation in 40 CFR 261.4(a)(2) excludes any industrial 
wastewater point source discharges that are ``subject to regulation 
under section 402 of the Clean Water Act, as amended.'' This language 
follows closely the statutory exclusion from the definition of solid 
waste (section 1004(27) of RCRA). The regulations do not include any 
limitations on the types of landfills that might use such a permitted 
discharge.
    The commenter did not present any reason why regulations might be 
needed to ensure dilution from local ground water does not occur prior 
to collection. We also note that regulations are already in place for 
the design and operation of leachate collection systems for Subtitle C 
hazardous waste landfills (40 CFR 264, subpart N) and municipal solid 
waste landfills that accept hazardous wastes from conditional exempt 
small quantity generators (40 CFR 258.40). The goal of those 
regulations is to prevent leachate from infiltrating ground water. 
Determining whether these or other types of landfills need additional 
controls addressing leak detection and leachate control systems and 
their impact on their NPDES discharges is a major effort well beyond 
the scope of this rulemaking.

F. What Are the Final Treatment Standards Under RCRA's Land Disposal 
Restrictions for the Newly-Listed Hazardous Wastes?

1. What Are EPA's Land Disposal Restrictions (LDRs)?
    RCRA requires us to establish treatment standards for all hazardous 
wastes destined for land disposal. These are the ``land disposal 
restrictions'' or LDRs. For any hazardous waste identified or listed 
after November 8, 1984, we must promulgate LDR treatment standards 
within six months of the date of identification or final listing (RCRA 
section 3004(g)(4), 42 U.S.C. 6924(g)(4)). RCRA also requires us to set 
as these treatment standards ``* * * levels or methods of treatment, if 
any, which substantially diminish the toxicity of the waste or 
substantially reduce the likelihood of migration of hazardous 
constituents from the waste so that short-term and long-term threats to 
human health and the environment are minimized.'' (RCRA section 
3004(m)(1), 42 U.S.C. 6924(m)(1).)
    Once a hazardous waste is prohibited from land disposal, the 
statute provides only two options for legal land disposal: meet the 
treatment standard for the waste prior to land disposal, or dispose of 
the waste in a land disposal unit that satisfies the statutory ``no 
migration'' test. A ``no migration'' unit is one from which there will 
be no migration of hazardous constituents for as long as the waste 
remains hazardous. (RCRA sections 3004 (d), (e), (f), and (g)(5).) The 
antimony oxide wastes identified for listing as hazardous in this rule 
under HSWA authorities will be subject to all the land disposal 
restrictions on the date that the federal listing becomes effective 
(six months after promulgation of this final rule). The non-HSWA ferric 
chloride (K178) listing will not be subject to LDR restrictions until 
authorized states revise their regulations and obtain EPA approval of 
revisions to their authorized state programs.
    We gathered data on waste characteristics and current management 
practices for wastes that will be listed by this action. These data can 
be found in the administrative record for this final rule. An 
examination of the constituents that are the basis of the listings 
shows that we have previously developed numerical treatment standards 
for most of the constituents. We have determined that it is technically 
feasible and justified to apply existing universal treatment standards 
(UTS) to the hazardous constituents in K176, K177, and K178 that were 
found to be present in these wastes at concentrations exceeding the 
treatment standards, because the waste compositions are similar to 
other wastes for which applicable treatment technologies have been 
demonstrated.\35\ A list of the regulated hazardous constituents and 
their associated treatment limits can be found below in Table IV-7 and 
in the regulatory Table 268.40--Treatment Standards for Hazardous 
Wastes.
---------------------------------------------------------------------------

    \35\ Also see LDR Phase II final rule, 59 FR 47982, September 
19, 1994, for a further discussion of UTS.
---------------------------------------------------------------------------

    We have provided in the BDAT Background Document a review of 
technologies that can be used to meet the numerical concentration 
limits for K176, K177, and K178, assuming optimal design and operation. 
Where we are promulgating numerical concentration limits, the use of 
other technologies capable of achieving the treatment standards is 
allowed, except for those treatment or reclamation practices 
constituting land disposal or impermissible dilution (see 40 CFR 
268.3).
    EPA would like to take this opportunity to reiterate how treatment 
standards are established and the role of risk-based standards in 
treatment standard development. This policy is well documented in past 
LDR rulemakings, including the Phase IV rulemaking (May 26, 1998; 63 FR 
28556). Dilution and attenuation are typically considered in the risk 
assessment, but are not used in the development of treatment standards. 
The treatment standards represent a calculation of the expected 
performance range of an applicable technology operating on a difficult 
to treat waste such that 99 percent of the batches meet the standard. 
All land disposal restriction treatment standards must satisfy the 
requirements of RCRA section 3004(m) by specifying levels or methods of 
treatment that ``'substantially diminish the toxicity of the waste or 
substantially reduce the likelihood of migration of hazardous 
constituents from that waste so that

[[Page 58283]]

short-term and long-term threats to human health and the environment 
are minimized.'''' As EPA has discussed many times, the RCRA section 
3004(m) requirements may be satisfied by technology-based standards or 
risk-based standards. This conclusion was upheld in Hazardous Waste 
Treatment Council v. EPA, 886 F.2d 355, 362-64 (D.C. Cir. 1989), where 
technology-based LDR treatment standards were upheld as a permissible 
means of implementing RCRA section 3004(m) provided they did not 
require treatment beyond the point at which threats to human health and 
the environment are minimized.
2. What Are the Treatment Standards for K176? (Baghouse Filters From 
the Production of Antimony Oxide, Including Filters From the Production 
of Intermediates (e.g., Antimony Metal or Crude Antimony Oxide))
    The identified constituents for which treatment is required prior 
to land disposing this waste are antimony, arsenic, cadmium, lead, and 
mercury. No commenters challenged either the applicability or 
achievability of the universal treatment standards proposed for K176 
wastes. We are promulgating the proposed standards without change. The 
nonwastewaters treatment standard for antimony is 1.15 mg/L TCLP; 
arsenic is 5.0 mg/L TCLP; cadmium is 0.11 mg/L TCLP; lead is 0.75 mg/L 
TCLP; and mercury is 0.025 mg/L TCLP. In the event that there are 
wastewater treatment residuals from treatment of K176 (which under the 
derived-from rule also will be considered K176), the wastewater 
treatment standards are as follows: antimony is 1.9 mg/L; arsenic is 
1.4 mg/L; cadmium is 0.69 mg/L; lead is 0.69 mg/L; and mercury is 0.15 
mg/L.
3. What Are the Treatment Standards for K177? (Slag From the Production 
of Antimony Oxide that Is Speculatively Accumulated or Disposed, 
Including Slag From the Production of Intermediates (e.g., Antimony 
Metal or Crude Antimony Oxide))
    The identified constituents for which treatment is required prior 
to land disposing this waste are antimony, arsenic, and lead. We 
proposed the UTS levels for these constituents as the treatment 
standards for K177 wastes. No commenters challenged either the 
applicability or achievability of the universal treatment standards 
proposed to be transferred to K177 wastes. We are promulgating the 
proposed standards without change. The nonwastewater treatment standard 
for antimony is 1.15 mg/L TCLP, for arsenic is 5.0 mg/L TCLP, and for 
lead is 0.75 mg/L TCLP. In the event that there are wastewater 
treatment residuals from treatment of K177 (which under the derived-
from rule also would be considered K177), the wastewater treatment 
standard for antimony is 1.9 mg/L, for arsenic is 1.4 mg/L, and for 
lead is 0.69 mg/L.
4. What Are the Treatment Standards for K178? (Solids From 
Manufacturing and Manufacturing-Site Storage of Ferric Chloride From 
Acids Formed During the Production of Titanium Dioxide Using the 
Chloride-Ilmenite Process)
    The constituents of concern in this waste described in our proposal 
were thallium, manganese, and the chlorinated congeners of dibenzo-p-
dioxin and dibenzofuran. We proposed to apply the UTS levels to 
thallium and the chlorinated congeners of dibenzo-p-dioxin and 
dibenzofuran, as indicated in Table IV-7. In addition, we proposed the 
option of complying with the technology standard of combustion (CMBST) 
for the chlorinated dibenzo-p-dioxin and dibenzofuran (dioxins and 
furans) constituents present in K178. For manganese we proposed, as our 
leading option, a nonwastewater treatment standard of 3.6 mg/L TCLP 
based upon a high temperature metals recovery technology and wastewater 
treatment standard of 17.1 mg/L manganese, based upon sedimentation 
technology. After considering the comments described below, today we 
are promulgating the treatment standards as proposed for thallium and 
the chlorinated congeners of dibenzo-p-dioxin and dibenzofuran. We are 
deferring action on all aspects of the regulation of manganese at this 
time as explained earlier in section IV.B.

                                    Table IV-7.--Treatment Standards for K178
----------------------------------------------------------------------------------------------------------------
                  Regulated hazardous constituent                      Wastewaters          Nonwastewaters
----------------------------------------------------------------------------------------------------------------
                                                                      Concentration
                                                                      in mg/L \2\,    Concentration in mg/kg \4\
              Common name                        CAS \1\ No.          or technology     unless noted as ``mg/L
                                                                        code \3\      TCLP'', or technology Code
----------------------------------------------------------------------------------------------------------------
1,2,3,4,6,7,8-Heptachlorodibenzo-p-      35822-39-4................     0.000035 or  0.0025 or CMBST \5\
 dioxin.                                                                  CMBST \5\
1,2,3,4,6,7,8-Heptachlorodibenzofuran..  67562-39-4................     0.000035 or  0.0025 or CMBST \5\
                                                                          CMBST \5\
1,2,3,4,7,8,9-Heptachlorodibenzofuran..  55673-89-7................     0.000035 or  0.0025 or CMBST \5\
                                                                          CMBST \5\
HxCDDs (All Hexachlorodibenzo-p-         34465-46-8................     0.000063 or  0.001 or CMBST \5\
 dioxins).                                                                CMBST \5\
HxCDFs (All Hexachlorodibenzofurans)...  55684-94-1................     0.000063 or  0.001 or CMBST \5\
                                                                          CMBST \5\
1,2,3,4,6,7,8,9-Octachlorodibenzo-p-     3268-87-9.................     0.000063 or  0.005 or CMBST \5\
 dioxin (OCDD).                                                           CMBST \5\
1,2,3,4,6,7,8,9-Octachlorodibenzofuran   39001-02-0................     0.000063 or  0.005 or CMBST \5\
 (OCDF).                                                                  CMBST \5\
PeCDDs (All Pentachlorodibenzo-p-        36088-22-9................     0.000063 or  0.001 or CMBST \5\
 dioxins).                                                                CMBST \5\
PeCDFs (All Pentachlorodibenzofurans)..  30402-15-4................     0.000035 or  0.001 or CMBST \5\
                                                                          CMBST \5\
TCDDs (All tetrachlorodi-benzo-p-        41903-57-5................     0.000063 or  0.001 or CMBST \5\
 dioxins).                                                                CMBST \5\
TCDFs (All tetrachlorodibenzofurans)...  55722-27-5................     0.000063 or  0.001 or CMBST \5\
                                                                          CMBST \5\

[[Page 58284]]

 
Thallium...............................  7440-28-0.................             1.4  0.20 mg/L TCLP
----------------------------------------------------------------------------------------------------------------
\1\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a
  combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only.
\2\ Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite
  samples.
\3\ All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in
  detail in 40 CFR 268.42 Table 1--Technology Codes and Descriptions of Technology-Based Standards.
\4\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards
  expressed as a concentration were established, in part, based upon incineration in units operated in
  accordance with the technical requirements of 40 CFR part 264, subpart O or 40 CFR part 265, subpart O, or
  based upon combustion in fuel substitution units operating in accordance with applicable technical
  requirements. A facility may comply with these treatment standards according to provisions in 40 CFR
  268.40(d). All concentration standards for nonwastewaters are based on analysis of grab samples.
\5\ For these wastes, the definition of CMBST is limited to: (1) combustion units operating under 40 CFR 266,
  (2) combustion units permitted under 40 CFR part 264, Subpart O, or (3) combustion units operating under 40
  CFR 265, Subpart O, which have obtained a determination of equivalent treatment under 268.42(b).

a. Comments Regarding Dioxins and Furans
    Comments were received on the appropriateness of the proposed 
treatment standards for dibenzo-p-dioxin and dibenzofuran, and 
manganese. However, no data were received or arguments made to 
demonstrate that the proposed standards were not achievable.
    A commenter argued that application of the octachlorodibenzo-p-
dioxin (OCDD) and octachlorodibenzofuran (OCDF) standards should be 
deferred pending anticipated lawsuits challenging the Chlorinated 
Aliphatics final rule (65 FR 67068, November 8, 2000) in which EPA 
promulgated Universal Treatment Standards for these constituents. 
However, this aspect of the final rule was not challenged. EPA is 
promulgating treatment standards for dioxin congeners, including OCDD 
and OCDF, in K178 wastes as proposed, because treatment of these 
constituents is necessary to reduce the risks to human health or the 
environment that these constituents pose.
    The commenter also stated that EPA should not set standards for 
OCDD and OCDF, because the constituents are not toxic. As explained in 
more detail in the Response to Comments document, we disagree with the 
commenter and are promulgating the proposed standards for all dioxins 
and furans including the OCDD and OCDF congeners. A full discussion of 
the toxicity of these compounds also was presented in the final 
chlorinated aliphatics final listing determination at 65 FR 67108. We 
conclude OCDD and OCDF are toxic.
    We are promulgating treatment standards for dioxin and furan 
congeners in K178, because toxic dioxin and furan congeners are present 
in this waste at concentrations well above the promulgated treatment 
standards for these underlying hazardous constituents. For example, 
OCDF was measured in EPA record sample of the combined Iron Rich 
TM wastestream at 58 g/kg dry weight, well above 
its treatment standard of 5 g/kg (see Tables 2-9 and 2-10 in 
EPA's Best Demonstrated Available Technology (BDAT) Background Document 
for Inorganic Chemical Production Wastes--K176, K177, K178 (for the 
final rule)). If OCDD and OCDF were to be excluded from the K178 
treatment standard, they would go untreated. Absent treatment standards 
for dioxins, the newly listed wastes would have less stringent 
treatment standards by application of 40 CFR 268.9(b) than the wastes 
are currently subject to, because these wastes are generally corrosive. 
Having demonstrated the presence of these constituents at levels that 
require treatment, we are acting to protect human health and the 
environment from the release of the significant levels found in the 
untreated waste form.
b. Comments Regarding Thallium
    Comments relative to thallium centered on its occurrence in the 
wastes. If the occurrence of thallium is as the commenter's data 
indicates, then little of the K178 generated waste would require 
treatment for thallium. However, we found that the commenter's analysis 
obtained higher detection limits than we did. Our record sampling 
showed thallium concentrations in this waste of 0.28 mg/L TCLP (65 FR 
55761, September 14, 2000). This is a level that would require 
treatment. Consequently, we believe it is appropriate to set treatment 
standards for thallium for K178. In instances when the waste exhibits 
thallium concentrations below the treatment standard, no treatment for 
thallium will be necessary prior to land disposal. Therefore, we are 
promulgating the inclusion of thallium in the final treatment 
standards.
c. Comments Regarding Manganese
    For comments concerning manganese see the Response to Comment 
Background Document. Because EPA decided to defer final action on all 
aspects of manganese regulation at this time, manganese related 
comments are not being addressed at this time.
d. What Final Changes Are Being Made to F039?
    The F039 waste code applies to hazardous waste landfill leachates 
in lieu of the treatment standards established for the original waste 
codes associated with each of the wastes from which the leachate is 
derived, when multiple waste codes would otherwise apply. F039 wastes 
are subject to numerical treatment standards. We proposed to add 
manganese to the constituents regulated by F039 to maintain the 
implementation benefits of having one waste code for multi-source 
leachate. In today's final rule, we have decided to defer regulation of 
manganese in F039 wastes at this time.
e. Manganese as an Underlying Hazardous Constituent
    We had proposed to add manganese to the table of Universal 
Treatment Standards (UTS) at 40 CFR 268.48. We are not, however, 
promulgating the addition of manganese to the UTS at 40 CFR 268.48 at 
this time. Had the proposal been promulgated, all characteristic wastes 
that have manganese as an underlying hazardous constituent above the 
UTS levels listed at 40 CFR 268.48 would have required

[[Page 58285]]

treatment of manganese before land disposal.

G. Is There Treatment Capacity for the Newly Listed Wastes?

1. Introduction
    Under the land disposal restrictions (LDR) determinations, the 
Agency must demonstrate that adequate commercial capacity exists to 
manage listed hazardous wastes in compliance with BDAT standards before 
the Agency can restrict the listed waste from further land disposal. 
The Agency performs capacity analyses to determine the effective date 
of the LDR treatment standards for the proposed listed wastes. This 
section summarizes the results of EPA's capacity analysis for the 
wastes covered by today's rule. For a detailed discussion of capacity 
analysis-related data sources, methodology, and detailed responses to 
comments for each waste covered in this rule, see Background Document 
for Capacity Analysis for Land Disposal Restrictions: Inorganic 
Chemical Production Wastes (Final Rule) (October 2001) (i.e., the 
Capacity Background Document).
    EPA's decisions on whether to grant a national capacity variance 
are based on the availability of alternative treatment or recovery 
technologies capable of achieving the prescribed treatment standards. 
Consequently, the methodology focuses on deriving estimates of the 
quantities of newly-listed hazardous waste that will require either 
commercial treatment or the construction of new on-site treatment or 
recovery as a result of the LDRs. The resulting estimates of required 
commercial capacity are then compared to estimates of available 
commercial capacity. If adequate commercial capacity exists, the waste 
is restricted from further land disposal unless it meets the LDR 
treatment standards prior to disposal. If adequate capacity does not 
exist, RCRA section 3004(h)(2) authorizes EPA to grant a national 
capacity variance for the waste for up to two years or until adequate 
alternative treatment capacity becomes available, whichever is sooner.
2. What Are the Capacity Analysis Results for K176, K177, and K178?
    In conducting the capacity analysis for the wastes newly-listed by 
today's rule, we examined data on waste characteristics and management 
practices gathered for the inorganic chemical hazardous waste listing 
determinations. We also examined data on available treatment or 
recovery capacity for these wastes. The sources for these data are the 
public comments, the RCRA Sec. 3007 Survey for the Inorganics listing 
determination distributed in the spring of 1999, record sampling and 
site visits (see the docket for today's rule for more information on 
these survey instruments and facility activities), the available 
treatment capacity data submission that was collected in the 1990's, 
and the 1995 and 1997 Biennial Reports.
    For K176 and K177 wastes, we used the information from the surveys, 
sampling, and site visits which indicate that there is no quantity of 
the wastewater form of K176 or K177 that is expected to be generated 
and therefore, there is no quantity of the wastewater form of K176 or 
K177 that will require alternative commercial treatment. These wastes 
are typically present in a nonwastewater form. EPA determines that 
required alternative treatment capacity for K176 nonwastewaters is 
estimated to be eight tons per year. There is sufficient available 
capacity to manage the K176 waste.
    For K177 waste, one commenter indicated that a facility of antimony 
oxide production in Laredo, TX is currently storing approximately 
60,000 tons of slag in a pile. This facility has ceased operation in 
the United States. As discussed earlier (section IV), EPA has 
determined that this slag will qualify as K177 on the effective date of 
this rulemaking. In addition, the facility has a volume of contaminated 
soil roughly equivalent to the volume of the slag pile. If the slag and 
soil are excavated and handled after the effective date, the volume of 
waste potentially subject to regulation is 120,000 tons. This site is 
already under a corrective action order with the State of Texas to 
clean up the site because of antimony contamination. As part of this 
effort, the State expects to require remediation of the historic waste 
pile. In cases involving corrective action, it is possible to treat 
and/or manage hazardous waste without triggering LDR treatment 
standards. If the slag of contaminated soil is not removed from the 
land via excavation (e.g., in situ treatment), then the LDR standards 
will not be applied to these wastes. In addition, if hazardous slag or 
contaminated soil is excavated, LDR standards will only apply if the 
subsequent management is considered ``land disposal'' for the purposes 
of the LDR program.
    The K177 listing is conditional: if a facility legitimately 
recycles its wastes without speculatively accumulating them and without 
use constituting disposal, it will not be regulated as a listed waste. 
Thus, the listing and the LDRs may not apply to these materials. 
Therefore, the facility may require little off-site commercial 
treatment capacity for its K177 waste and soil contaminated with K177 
waste. Additional information regarding these wastes is presented in 
the Capacity Background Document.
    With the above discussion, EPA determines that required alternative 
treatment capacity for K177 nonwastewaters is estimated to be 20 tons 
per year. Additionally, there is a potential that capacity will be 
needed for the waste pile containing an estimated 60,000 tons of slag 
(K177) and estimated 60,000 tons of contaminated soil from one 
facility. Even if the additional 120,000 tons of K177 slag and 
contaminated soil from the facility must be managed off-site as 
hazardous waste and the waste is not legitimately recycled or left in 
place, we anticipate that commercially available stabilization, as well 
as other technologies, can be used to meet the treatment standards 
applicable to the waste. We estimate that the commercially available 
stabilization capacity is at least eight million tons per year based on 
the 1995 Biennial Report. Thus we find there is sufficient capacity to 
treat the K177 hazardous wastes that will require treatment.
    EPA proposed not to grant a national capacity variance for K176 or 
K177 wastewaters or nonwastewaters. No commenters challenged either the 
variance determination or available treatment or disposal capacity for 
wastewater or nonwastewater forms of these wastes. Nor does the 
potential treatment of the additional K177 slags and soils described 
above appear to require a capacity variance. Therefore, EPA is 
finalizing its decision not to grant a capacity variance for wastewater 
and nonwastewater forms of K176 and K177.
    For ferric chloride residues (K178) waste, our data indicate that 
the waste is typically generated as a nonwastewater. We did not 
identify any wastewater forms of these wastes and therefore did not 
anticipate that alternative management for wastewaters is required. For 
nonwastewaters, when listed as hazardous, the waste can no longer be 
land disposed without meeting applicable treatment standards. In the 
proposed rule, we initially estimated that approximately 7,300 tons per 
year may require alternative treatment (derived from public information 
since data on amounts of treatment solids were originally reported as 
confidential in the Sec. 3007 Survey).

[[Page 58286]]

    In public comments to the proposed rule, one commenter estimated 
that the quantity of K178 generated nationwide is as high as 167,000 
tons per year, which is much higher than that initially estimated by 
EPA in the proposed rule. The commenter provided few details explaining 
the discrepancy, and therefore EPA cannot agree with the commenter 
regarding this estimate. Further, the finalized listing definition is 
narrower in scope than the proposed listing, only one facility (rather 
than three) is expected to generate the waste, and the one facility may 
be able to segregate its waste to reduce the total quantity of K178 
that must be treated. However, even if EPA used the commenter's higher 
waste quantity in its capacity assessment, sufficient capacity would be 
available to treat generated K178 wastes.
    The commenter also requested a national capacity variance for the 
proposed K178 wastes. The commenter claimed that because K178 must be 
treated for dioxin, insufficient treatment capacity is available 
because only a single facility in the U.S. currently is permitted to 
treat dioxin-containing wastes. EPA disagrees with this assessment. EPA 
notes that the proposed land disposal restrictions for K178 are 
identical to those finalized for F032 (wood preserving wastes, 62 FR 
26000, May 12, 1997) and K174 (chlorinated aliphatics wastes, 65 FR 
67110, November 8, 2000). These treatment standards (as well as the 
treatment standards proposed for K178) can be met by the technology-
specific standard of CMBST, defined as, (1) combustion units operating 
under 40 CFR 266, (2) combustion units permitted under 40 CFR part 264, 
subpart O, or (3) combustion units operating under 40 CFR 265, subpart 
O, which have obtained a determination of equivalent treatment under 
268.42(b). Additionally, EPA verified through telephone conversations 
that several facilities can, in fact, accept wastes with such a 
treatment standard (this information is presented in the Capacity 
Background Document). These facilities have sufficient capacity to 
treat the single generator's ferric chloride residues.
    From the available information, the affected facility may manage 
K178 waste in surface impoundments (i.e., in wastewater treatment 
systems that contain land based units). If the waste is managed in 
unretrofitted impoundments,\36\ it would thus be land disposed in a 
prohibited manner. These impoundments can be retrofitted, closed, or 
replaced with tank systems. If impoundments continue to be used to 
manage K178 waste, the units will be subject to RCRA Subtitle C 
requirements. In addition, any hazardous wastes managed in the affected 
impoundment after the effective date of today's rule are subject to 
land disposal prohibitions.\37\ However, a facility may continue to 
manage newly listed K178 in surface impoundments, provided they are in 
compliance with the appropriate standards for surface impoundments (40 
CFR parts 264 and 265 subpart K) and the special rules regarding 
surface impoundments (40 CFR 268.14). EPA notes that those provisions 
require basic ground-water monitoring (40 CFR parts 264 and 265 subpart 
F) and recordkeeping. Surface impoundments that are newly subject to 
RCRA subtitle C minimum technology requirements due to promulgation of 
a new hazardous waste listing are afforded up to 48 months after 
promulgation of the new listing to retrofit the surface impoundments to 
meet minimum technological requirements (see RCRA section 
3005(j)(6)(A), 40 CFR 265.221 (h)). (Note that in this case, the 
listing is ``non-HSWA,'' so the minimum technology deadline would be 48 
months after EPA approves a revision to an authorized state program 
that adopt this listing.)
---------------------------------------------------------------------------

    \36\ A unretrofitted impoundment is one not satisfying the 
minimum technology requirements (MTR) specified in sections 3004(o) 
and 3005(j)(11).
    \37\ See RCRA Sec. 3004(m)(1) ``Simultaneously with the 
promulgation of regulations under subsection (d), (e), (f), or (g) 
prohibiting one or more methods of land disposal of a particular 
hazardous waste * * * promulgate regulations specifying those levels 
or methods of treatment * * *''
---------------------------------------------------------------------------

    In our assessment for the proposed rule, we assumed that facilities 
can segregate waste-streams and separately manage the newly-proposed 
K178 waste. Based on the finalized listing definition for K178, we 
continue to expect that the generating facility can segregate its 
waste-streams. However, the quantity is far lower than discussed in the 
proposal since the final listing is narrower than the proposed listing 
and only one facility is expected to generate the waste. We now 
estimate that approximately 45 tons per year may require alternative 
treatment. Even if the facility cannot segregate its wastestreams (and, 
therefore, generates a higher quantity of waste requiring treatment), 
we expect that available treatment capacity exists to manage such a 
higher quantity of generated waste.
    In addition to the amount generated from year to year, the facility 
that generates K178 commented that they have stockpiled a significant 
quantity of Iron-Rich on-site, which would be listed as hazardous waste 
K178 following the effective date. According to the comment, the 
estimated quantity is 500,000 tons. EPA believes that it is unlikely 
that the entire quantity will require offsite treatment capacity after 
the effective date. For example, the facility could work with the State 
Implementing Agency to close the unit in place without actively 
managing the units. Even if the entire 500,000 ton quantity becomes 
subject to the K178 listing after the effective date, we expect that 
commercial facilities could store this quantity of material and 
subsequently manage it using treatment such as combustion or non-
combustion technologies over a period of several years should the 
demand for such capacity arise. In addition, because this is a non-HSWA 
rule and will take effect only after authorized states adopt parallel 
listings under state law and EPA authorizes revisions to the codified 
state programs, there will be additional time (beyond six months) for 
the facility to identify and implement management options for the 
stored K178 waste. We anticipate that commercially available combustion 
capacity is adequate to meet the demands. For more information on the 
Agency's research on combustion capacity for K178, please refer to the 
Capacity Background Document.
    As discussed earlier for K178 treatment standards, we are 
promulgating numerical treatment standards for K178 wastes. We 
anticipate that commercially available incineration, followed by 
stabilization if necessary, can be used to meet these treatment 
standards. We also are promulgating the specified technology standard 
of combustion (CMBST) as an alternative compliance option for hazardous 
organic constituents in the K178 wastes. The units treating the waste 
by using CMBST will be subject to certain standards, and facilities 
will have to meet the treatment standard for the regulated metal 
constituent prior to disposal. We assume that facilities will achieve 
compliance with the final treatment standards using incineration, 
stabilization, or both. Based on an evaluation of 1995 and 1997 BRS 
data, well over one million tons of liquid, sludge, and solid 
commercial combustion capacity are available. The quantity of 
commercially available stabilization capacity is at least eight million 
tons per year based on an evaluation of 1995 Biennial Report data. 
Additional discussion of the applicability of these estimates for 
treating wastes with characteristics

[[Page 58287]]

similar to K178 is presented in the Capacity Background Document.
    Based on the foregoing, we conclude that sufficient treatment 
capacity is available to manage newly-listed K178 wastes. Therefore, 
EPA is finalizing its decision not to grant a capacity variance for 
wastewater and nonwastewater forms of K178. For K176, K177, and K178 
wastes, the customary time period of six months is sufficient to allow 
facilities to determine whether their wastes are affected by this rule, 
to identify on-site or commercial treatment and disposal options, and 
to arrange for treatment or disposal capacity, if necessary. Moreover, 
since this listing is a non-HSWA rule, the LDR standards will take 
effect only after authorized states adopt parallel listings under state 
law and EPA authorizes revisions to the codified state programs. 
Therefore, LDR treatment standards for the affected wastes covered 
under today's rule become effective when the listing determinations 
become effective--the earliest possible date. This conforms to RCRA 
section 3004(h)(1), which indicates that land disposal prohibitions 
must take effect immediately when there is sufficient protective 
treatment capacity available for the waste.
    Further, soil and debris contaminated with these newly identified 
wastes may be subject to the LDRs (see LDR Treatment Standards for Soil 
in LDR Phase IV Final Rule, 63 FR 28602, May 26, 1998; 40 CFR 268.45 
Treatment Standards for Hazardous Debris). EPA proposed not to grant a 
national capacity variance for soil and debris contaminated with the 
newly listed wastes (K176, K177, and K178). EPA received no comments 
regarding this issue. We believe that the vast majority of contaminated 
soil and debris contaminated with these wastes, if generated, will be 
managed on-site and, therefore, will not require substantial commercial 
treatment capacity. Therefore, we are not granting a national capacity 
variance for hazardous soil and debris contaminated with these newly 
identified wastes. LDR treatment standards for K176, K177, and K178 
hazardous soil and debris will therefore become effective when these 
listing determinations become effective.
    Based on the 1999 RCRA Sec. 3007 Survey for the Inorganics listing 
determination, followed by record sampling and site visits, no 
respondents submitted any data about underground injection management 
of the newly-listed wastes. Also, based on the 1999 RCRA Sec. 3007 
Survey followed by record sampling and site visits, no respondents 
submitted any data indicating that mixtures of radioactive wastes and 
the newly-listed inorganic chemical wastes are generated. EPA did not 
receive comments indicating that these wastes are underground injected 
or that they are mixed with radioactive wastes or with both radioactive 
wastes and soil or debris. Therefore, EPA is not granting a national 
capacity variance for underground injected wastes, mixed radioactive 
wastes, or soil and debris contaminated with these mixed radioactive 
wastes. LDR treatment standards for K176, K177, and K178 underground 
injected and mixed wastes (if any exists) will therefore become 
effective when these listing determinations become effective.
    Finally, EPA may consider a case-by-case extension to the effective 
date based on the requirements outlined in 40 CFR 268.5, which includes 
a demonstration that adequate alternative treatment, recovery, or 
disposal capacity for the petitioner's waste cannot reasonably be made 
available by the effective date due to circumstances beyond the 
applicants' control, and that the petitioner has entered into a binding 
contractual commitment to construct or otherwise provide such capacity.
3. What Is the Capacity Analysis Result due to the Proposed Revision of 
the F039 Standard?
    With respect to the revision to F039, as discussed earlier in 
section IV.B., we are no longer adding manganese to the list of 
constituents for F039. Consideration of capacity for treatment of this 
waste is no longer relevant.

V. When Must Regulated Entities Comply With the Provisions in 
Today's Final Rule?

A. Effective Date

    The effective date of today's rule is May 20, 2002. Provisions 
promulgated under HSWA authorities will take effect in both the federal 
regulations and authorized state programs at that time. The K178 
listing, promulgated under section 3001(b), an non-HSWA authority, will 
not take effect in any authorized state until that state promulgates a 
rule adopting the listing. It will not take effect under federal law 
until EPA authorizes the revision to the state program. The LDR 
requirements for K178 also will not apply immediately in authorized 
states. See the discussion in the state authorization section below.

B. Section 3010 Notification

    Pursuant to RCRA Sec. 3010, the Administrator may require all 
persons who handle hazardous wastes to notify EPA of their hazardous 
waste management activities within 90 days after the wastes are 
identified or listed as hazardous. This requirement may be applied even 
to those generators, transporters, and treatment, storage, and disposal 
facilities (TSDFs) that have previously notified EPA with respect to 
the management of other hazardous wastes. The Agency has decided to 
waive this notification requirement for persons who handle wastes that 
are covered by today's hazardous waste listings and already have (1) 
notified EPA that they manage other hazardous wastes, and (2) received 
an EPA identification number. The Agency has waived the notification 
requirement in this case because it believes that most, if not all, 
persons who manage the wastes listed as hazardous in today's rule 
already have notified the Agency and received an EPA identification 
number. However, any person who generates, transports, treats, stores, 
or disposes of these newly listed wastes and has not previously 
received an EPA identification number must obtain an identification 
number pursuant to 40 CFR 262.12 to generate, transport, treat, store, 
or dispose of these hazardous wastes by February 19, 2002 for K176 and 
K177. In authorized states, for K178, identification numbers will not 
be required until the state revises its rules to establish a K178 
listing. After the state regulations are revised, identification 
numbers would be obtained from the authorized state pursuant to its 
applicable requirements.

C. Generators and Transporters

    Persons who generate newly identified hazardous wastes may be 
required to obtain an EPA identification number if they do not already 
have one (as discussed in section VIII.B, above). If generating or 
transporting these wastes after the effective date of this rule, 
generators of the wastes listed today will be subject to the generator 
requirements set forth in 40 CFR part 262. These requirements include 
standards for hazardous waste determination (40 CFR 262.11), compliance 
with the manifest (40 CFR 262.20 through 262.23), pre-transport 
procedures (40 CFR 262.30 through 262.34), generator accumulation (40 
CFR 262.34), record keeping and reporting (40 CFR 262.40 to 262.44), 
and import/export procedures (40 CFR 262.50 through 262.60). We note 
that the generator accumulation provisions of 40 CFR 262.34 allow 
generators to accumulate hazardous wastes without obtaining interim 
status or a permit only in certain specified units; the regulations 
also place a limit on the maximum amount of time that wastes

[[Page 58288]]

can be accumulated in these units. If these wastes are actively managed 
in surface impoundments or other units that are not tank systems, 
containers, drip pads, or containment buildings as outlined in 40 CFR 
262.34, accumulation of these wastes is subject to the permitting 
requirements of 40 CFR parts 264 and 265, and the generator is required 
to obtain interim status and seek a permit (or modify interim status or 
a permit, as appropriate). Also, persons who transport newly identified 
hazardous wastes will be required to obtain an EPA identification 
number (if they do already have one) as described above and will be 
subject to the transporter requirements set forth in 40 CFR part 263.

D. Facilities Subject to Permitting

    The listings for antimony oxide wastes, K176 and K177, in today's 
rule are issued pursuant to HSWA authority. Therefore, EPA will 
regulate the management of the newly identified hazardous wastes until 
states are authorized to regulate these wastes. EPA will apply Federal 
regulations to these wastes and to their management in both authorized 
and unauthorized states. The listing for the titanium dioxide waste, 
K178, in today's rule is issued pursuant to non-HSWA authority. 
Therefore, the listing will not become effective at the state level 
until adopted by the state and at the federal level when the revision 
to the state program is authorized by EPA. Facilities located in states 
authorized for the RCRA program should check with their state offices 
to determine when the K178 listing becomes effective in the state.
1. K176 and K177: Facilities Newly Subject to RCRA Permit Requirements
    Facilities that treat, store, or dispose of K176 and K177 wastes 
that are subject to RCRA regulation for the first time by this rule 
(that is, facilities that have not previously received a permit 
pursuant to section 3005 of RCRA and are not currently operating 
pursuant to interim status), might be eligible for interim status (see 
section 3005(e)(1)(A)(ii) of RCRA). To obtain interim status based on 
treatment, storage, or disposal of such newly identified wastes, 
eligible facilities are required to comply with 40 CFR 270.70(a) and 
270.10(e) by providing notice under section 3010 and submitting a Part 
A permit application no later than May 20, 2002. Such facilities are 
subject to regulation under 40 CFR Part 265 until a permit is issued.
    In addition, under section 3005(e)(3) and 40 CFR 270.73(d), not 
later than November 20, 2002, land disposal facilities newly qualifying 
for interim status under section 3005(e)(1)(A)(ii) also must submit a 
Part B permit application and certify that the facility is in 
compliance with all applicable ground-water monitoring and financial 
responsibility requirements. If the facility fails to submit these 
certifications and a permit application, interim status will terminate 
on that date.
2. K178: Facilities Newly Subject to RCRA Permit Requirements
    Facilities that treat, store, or dispose of K178 waste that are 
subject to RCRA regulation for the first time by this rule (that is, 
facilities that have not previously received a permit pursuant to 
section 3005 of RCRA and are not currently operating pursuant to 
interim status), might be eligible for interim status (see section 
3005(e)(1)(A)(ii) of RCRA). To obtain interim status based on 
treatment, storage, or disposal of this newly identified waste, 
eligible facilities are required to comply with 40 CFR 270.70(a) and 
270.10(e) by providing notice under section 3010 and submitting a Part 
A permit application no later than 180 days after the K178 listing 
becomes effective. Once the K178 listing becomes effective, such 
facilities are subject to regulation under 40 CFR part 265 until a 
permit is issued.
    In addition, under section 3005(e)(3) and 40 CFR 270.73(d), not 
later than 365 days after the K178 listing becomes effective, land 
disposal facilities newly qualifying for interim status under section 
3005(e)(1)(A)(ii) also must submit a Part B permit application and 
certify that the facility is in compliance with all applicable ground-
water monitoring and financial responsibility requirements. If the 
facility fails to submit these certifications and a permit application, 
interim status will terminate on that date.
3. K176 and K177: Existing Interim Status Facilities
    Pursuant to 40 CFR 270.72(a)(1), all existing hazardous waste 
management facilities (as defined in 40 CFR 270.2) that treat, store, 
or dispose of the newly identified K176 and K177 wastes and are 
currently operating pursuant to interim status under section 3005(e) of 
RCRA, must file an amended Part A permit application with EPA no later 
than the effective date of today's rule, (i.e., May 20, 2002). By doing 
this, the facility may continue managing the newly listed wastes. If 
the facility fails to file an amended Part A application by that date, 
the facility will not receive interim status for management of the 
newly listed hazardous wastes and may not manage those wastes until the 
facility receives either a permit or a change in interim status 
allowing such activity (40 CFR 270.10(g)).
4. K178: Existing Interim Status Facilities
    Pursuant to 40 CFR 270.72(a)(1), all existing hazardous waste 
management facilities (as defined in 40 CFR 270.2) that treat, store, 
or dispose of the newly identified K178 waste and are currently 
operating pursuant to interim status under section 3005(e) of RCRA, 
must file an amended Part A permit application with EPA no later than 
the effective date of the K178 listing, (i.e., once the state adopts or 
is authorized for the K178 listing). By doing this, the facility may 
continue managing the newly listed waste. If the facility fails to file 
an amended Part A application by the required date, the facility will 
not receive interim status for management of the newly listed hazardous 
waste and may not manage the waste until the facility receives either a 
permit or a change in interim status allowing such activity (40 CFR 
270.10(g)).
5. K176 and K177: Permitted Facilities
    Facilities that already have RCRA permits must request permit 
modifications if they want to continue managing newly listed K176 and 
K177 wastes (see 40 CFR 270.42(g)). This provision states that a 
permittee may continue managing the newly listed wastes by following 
certain requirements, including submitting a Class 1 permit 
modification request by the date on which the waste or unit becomes 
subject to the new regulatory requirements (i.e., the effective date of 
today's rule), complying with the applicable standards of 40 CFR Parts 
265 and 266 and submitting a Class 2 or 3 permit modification request 
within 180 days of the effective date.
    Generally, a Class 2 modification is appropriate if the newly 
listed wastes will be managed in existing permitted units or in newly 
regulated tank or container units and will not require additional or 
different management practices than those authorized in the permit. A 
Class 2 modification requires the facility owner to provide public 
notice of the modification request, a 60-day public comment period, and 
an informal meeting between the owner and the public within the 60-day 
period. The Class 2 process includes a ``default provision,'' which 
provides that if the Agency does not reach a decision within 120 days, 
the modification is automatically authorized for 180 days. If the 
Agency does not reach a decision by

[[Page 58289]]

the end of that period, the modification is permanently authorized (see 
40 CFR 270.42(b)).
    A Class 3 modification is generally appropriate if management of 
the newly listed wastes requires additional or different management 
practices than those authorized in the permit or if newly regulated 
land-based units are involved. The initial public notification and 
public meeting requirements are the same as for Class 2 modifications. 
However, after the end of the 60-day public comment period, the Agency 
will grant or deny the permit modification request according to the 
more extensive procedures of 40 CFR Part 124. There is no default 
provision for Class 3 modifications (see 40 CFR 270.42(c)).
    Under 40 CFR 270.42(g)(1)(v), for newly regulated land disposal 
units, permitted facilities must certify that the facility is in 
compliance with all applicable 40 CFR Part 265 ground-water monitoring 
and financial responsibility requirements no later than May 20, 2002. 
If the facility fails to submit these certifications, authority to 
manage the newly listed wastes under 40 CFR 270.42(g) will terminate on 
that date.
6. K178: Permitted Facilities
    Facilities that already have RCRA permits must request permit 
modifications if they want to continue managing newly listed K178 waste 
(see 40 CFR 270.42(g)). This provision states that a permittee may 
continue managing the newly listed waste by following certain 
requirements, including submitting a Class 1 permit modification 
request by the date on which the waste or unit becomes subject to the 
new regulatory requirements (i.e., the effective date of the K178 
listing), complying with the applicable standards of 40 CFR parts 265 
and 266 and submitting a Class 2 or 3 permit modification request 
within 180 days of the effective date.
    Generally, a Class 2 modification is appropriate if the newly 
listed waste will be managed in existing permitted units or in newly 
regulated tank or container units and will not require additional or 
different management practices than those authorized in the permit. A 
Class 2 modification requires the facility owner to provide public 
notice of the modification request, a 60-day public comment period, and 
an informal meeting between the owner and the public within the 60-day 
period. The Class 2 process includes a ``default provision,'' which 
provides that if the Agency does not reach a decision within 120 days, 
the modification is automatically authorized for 180 days. If the 
Agency does not reach a decision by the end of that period, the 
modification is permanently authorized (see 40 CFR 270.42(b)).
    A Class 3 modification is generally appropriate if management of 
the newly listed waste requires additional or different management 
practices than those authorized in the permit or if newly regulated 
land-based units are involved. The initial public notification and 
public meeting requirements are the same as for Class 2 modifications. 
However, after the end of the 60-day public comment period, the Agency 
will grant or deny the permit modification request according to the 
more extensive procedures of 40 CFR part 124. There is no default 
provision for Class 3 modifications (see 40 CFR 270.42(c)).
    Under 40 CFR 270.42(g)(1)(v), for newly regulated land disposal 
units, permitted facilities must certify that the facility is in 
compliance with all applicable 40 CFR part 265 ground-water monitoring 
and financial responsibility requirements no later than the effective 
date of the K178 listing. If the facility fails to submit these 
certifications, authority to manage the newly listed waste under 40 CFR 
270.42(g) will terminate on that date.
7. K176, K177 and K178: Units
    Units in which newly identified hazardous wastes are generated or 
managed will be subject to all applicable requirements of 40 CFR 264 
for permitted facilities or 40 CFR 265 for interim status facilities, 
unless the unit is excluded from such permitting by other provisions, 
such as the wastewater treatment tank exclusions (40 CFR 264.1(g)(6) 
and 265.1(c)(10)) and the product storage tank exclusion (40 CFR 
261.4(c)). Examples of units to which these exclusions could never 
apply include landfills, land treatment units, waste piles, 
incinerators, and any other miscellaneous units in which these wastes 
may be generated or managed.
8. K176 and K177: Closure
    All units in which newly identified hazardous wastes are treated, 
stored, or disposed after the effective date of this regulation that 
are not excluded from the requirements of 40 CFR 264 and 265 are 
subject to both the general closure and post-closure requirements of 
subpart G of 40 CFR 264 and 265 and the unit-specific closure 
requirements set forth in the applicable unit technical standards 
subpart of 40 CFR 264 or 265 (e.g., subpart N for landfill units). In 
addition, EPA promulgated a final rule that allows, under limited 
circumstances, regulated landfills, surface impoundments, or land 
treatment units to cease managing hazardous waste but to delay subtitle 
C closure to allow the unit to continue to manage non-hazardous waste 
for a period of time prior to closure of the unit (see 54 FR 33376, 
August 14, 1989). Units for which closure is delayed continue to be 
subject to all applicable 40 CFR 264 and 265 requirements. Dates and 
procedures for submittal of necessary demonstrations, permit 
applications, and revised applications are detailed in 40 CFR 
264.113(c) through (e) and 265.113(c) through (e).
9. K178: Closure
    All units in which a newly identified hazardous waste is treated, 
stored, or disposed after the effective date of the listing that are 
not excluded from the requirements of 40 CFR 264 and 265 are subject to 
both the general closure and post-closure requirements of subpart G of 
40 CFR 264 and 265 and the unit-specific closure requirements set forth 
in the applicable unit technical standards subpart of 40 CFR 264 or 265 
(e.g., subpart N for landfill units). In addition, EPA promulgated a 
final rule that allows, under limited circumstances, regulated 
landfills, surface impoundments, or LTUs to cease managing hazardous 
waste but to delay Subtitle C closure to allow the unit to continue to 
manage non-hazardous waste for a period of time prior to closure of the 
unit (see 54 FR 33376, August 14, 1989). Units for which closure is 
delayed continue to be subject to all applicable 40 CFR 264 and 265 
requirements. Dates and procedures for submittal of necessary 
demonstrations, permit applications, and revised applications are 
detailed in 40 CFR 264.113(c) through (e) and 265.113(c) through (e).

VI. How Will This Rule Be Implemented at the State Level?

A. Applicability of Rule in Authorized States

    Under section 3006 of RCRA, EPA may authorize a qualified State to 
administer and enforce a hazardous waste program within the State in 
lieu of the federal program and to issue and enforce permits in the 
State. A State may receive authorization by following the approval 
process described under 40 CFR 271.21. See 40 CFR part 271 for the 
overall standards and requirements for authorization. EPA continues to 
have independent authority to bring enforcement actions under RCRA 
sections 3007, 3008, 3013, and 7003. An authorized State also continues 
to have independent authority to bring enforcement actions under State 
law.

[[Page 58290]]

    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. In contrast, under RCRA section 3006(g) (42 U.S.C. 
6926(g)), new Federal requirements and prohibitions promulgated 
pursuant to HSWA provisions take effect in authorized States at the 
same time that they take effect in unauthorized States. As such, 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 when EPA 
promulgates Federal requirements that are more stringent or broader in 
scope than existing Federal requirements. RCRA section 3009 allows the 
States to impose standards more stringent than those in the Federal 
program. See also Sec. 271.1(i). Therefore, authorized States are not 
required to adopt Federal regulations, both HSWA and non-HSWA, that are 
considered less stringent than existing Federal requirements.

B. Authorization of States for Today's Final Rule

    EPA is promulgating today's rule under both HSWA and non-HSWA 
authorities. EPA is promulgating the two listings for antimony oxide 
wastes, K176 and K177, under section 3002(e)(2) of RCRA, which is a 
requirement added by the HSWA amendments. In addition, the requirements 
of the Land Disposal Restriction (LDR) program promulgated today are 
imposed under sections 3004(g)-(m), which also are HSWA requirements. 
Therefore, we will add the new requirements for K176, K177 and the LDRs 
to Table 1 at 40 CFR 271.1(j), which identifies Federal program 
requirements promulgated pursuant to HSWA. After the effective date, 
EPA will implement these portions of the rule in all States, including 
authorized States, until the States are authorized for the new 
provisions.


    Note: There will be a delay in the effectiveness of the LDRs for 
K178, as discussed further below.
    Once authorized States modify their programs to adopt equivalent 
rules and receive authorization for such rules from EPA, those rules 
become RCRA Subtitle C requirements that apply in the States in lieu 
of the equivalent federal requirements.


    For the portions of the rule that are promulgated pursuant to HSWA, 
a State submitting a program modification may apply to receive either 
interim or final RCRA authorization under RCRA sections 3006(g) or (b) 
on the basis that State regulations are, respectively, substantially 
equivalent or fully equivalent to EPA's regulations. The procedures and 
schedule for State program modifications for either interim or final 
authorization are described in 40 CFR 271.21 and 271.24. Note that all 
HSWA interim authorizations will expire on January 1, 2003 (see 40 CFR 
271.24(c)).
    As explained earlier in this preamble, in May 2001 we promulgated a 
revision to the mixture rule that revised an exemption previously 
available to wastes listed because they exhibited the toxicity 
characteristic. As a result, mixtures of K176 and non-hazardous wastes 
will be regulated as hazardous wastes even if the mixture does not 
exhibit the TC. Although today's K176 listing is being promulgated 
under a HSWA authority, so it will take effect in six months in all 
states (unless a state already has a more stringent listing rule), the 
revision to the mixture rule was not promulgated under any HSWA 
authority. That revision will not take effect until authorized states 
revise their programs to adopt the change to the mixture rule and EPA 
approves the revision.
    In the preamble to the May, 2001 rule, we stated that the mixture 
rule changes were not more stringent than or broader in scope than 
existing rules, so that authorized states were not required to adopt 
them. In other words, no state is required to promulgate an exemption 
for wastes that were listed solely for a characteristic. Moreover, at 
that time, there were no wastes listed because they exhibited the TC. 
The narrowing of the mixture rule exemption for TC listed wastes had no 
apparent impact. That narrowing, however, will impact mixtures 
containing today's K176 listing, keeping them in the Subtitle C 
regulatory program where previously they would have largely been exempt 
from the program. The portion of the May 2001 mixture rule that 
eliminated the exemption for TC listed wastes is more stringent than 
any state program which includes a mixture rule exemption that gives 
relief to wastes listed because they exhibit the TC. Accordingly, 
authorized states that exempt mixtures of wastes listed for a 
characteristic where the mixtures do not exhibit a characteristic must 
narrow their exemptions to eliminate relief for mixtures of TC listed 
wastes, as provided by 271.21. The revised mixture rule exemption is 
codified at 261.3(g).
    As noted earlier in this preamble, the final listing for K178 
includes wastes from the production of ferric chloride, not wastes from 
the production of titanium dioxide. Ferric chloride manufacturing is 
not one of 14 inorganic chemical sectors identified in the Consent 
Decree. The decree describes the full scope of EPA's obligations to 
assess wastes under section 3001(e)(2). Consequently, EPA is not 
exercising any authority under 3001(e)(2) to list residues from the 
production of ferric chloride. EPA is promulgating this new listing 
under its pre-HSWA listing authority in section 3001(b)(1). Therefore, 
the K178 listing only will become effective under RCRA in an authorized 
State once the State amends its regulations and the amended regulations 
are authorized by EPA. For States without RCRA authorization, the 
listing requirements for K178 become effective on the effective date of 
today's rule.
    All of the provisions of today's final rule are considered to be 
more stringent than or broader in scope than the base RCRA program. 
Therefore, authorized States are required to adopt and become 
authorized for both the HSWA and non-HSWA portions of the rule.
    All Land Disposal Restriction rules are adopted under HSWA 
statutory authority, regardless of the statutory authority for the 
corresponding waste listing. However, consistent with prior rules 
establishing LDR requirements for new, non-HSWA listings, the treatment 
standards and prohibitions for K178 will not have immediate regulatory 
effect. LDR rules can only apply to ``hazardous wastes.'' The ferric 
chloride solids will not be hazardous wastes under RCRA until a State 
adopts a rule listing them as hazardous wastes and EPA authorizes the 
State's new rule. Therefore, the LDR provisions for K178 will become 
effective state-by-state, when EPA actions authorizing State 
regulations that list K178 take effect. See, e.g., 55 FR 22520, 22667 
(June 1, 1990 (LDR ``first third'' rule)).

VII. What Are the Reportable Quantity Requirements for the Newly-
Listed Wastes Under the Comprehensive Environmental Response, 
Compensation, and Liability Act?

    All hazardous wastes listed under RCRA and codified in 40 CFR 
261.31 through 261.33, as well as all solid waste that are not excluded 
from regulation as a hazardous waste under 40 CFR 261.4(b) and that 
exhibits one or more of the characteristics of a RCRA hazardous waste 
(as defined in 40 CFR

[[Page 58291]]

261.21 through 261.24), are hazardous substances under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
of 1980 (CERCLA), as amended (see CERCLA section 101(14)(C)). CERCLA 
hazardous substances are listed in Table 302.4 at 40 CFR 302.4 along 
with their reportable quantities (RQs). If a hazardous substance is 
released in an amount that equals or exceeds its RQ, the release must 
be reported immediately to the National Response Center (NRC) pursuant 
to CERCLA section 103.

A. When Do I Have To Report My Releases?

    Under CERCLA section 103(a), the person in charge of a vessel or 
facility from which a hazardous substance has been released in a 
quantity that is equal to or exceeds its RQ must immediately notify the 
NRC as soon as that person has knowledge of the release. The toll-free 
telephone number of the NRC is 1-800-424-8802; in the Washington, DC, 
metropolitan area, the number is (202) 267-2675. In addition to this 
reporting requirement under CERCLA, section 304 of the Emergency 
Planning and Community Right-to-Know Act of 1986 (EPCRA) requires 
owners or operators of certain facilities to report releases of 
extremely hazardous substances and CERCLA hazardous substance to State 
and local authorities. Immediately after the release of an RQ or more 
of an extremely hazardous substance or a CERCLA hazardous substance, 
EPCRA section 304 notification must be given to the community emergency 
coordinator of the local emergency planning committee for any area 
likely to be affected by the release, and to the State emergency 
response commission of any State likely to be affected by the release.
    Under section 102(b) of CERCLA, all hazardous substances (as 
defined by CERCLA section 101(14)) have a statutory RQ of one pound, 
unless and until the RQ is adjusted by regulation. In today's final 
rule, we: (1) List the following three wastestreams as RCRA hazardous 
wastes; (2) designate these wastestreams as CERCLA hazardous 
substances; and (3) adjust the one-pound statutory RQs for two of these 
wastestreams. The wastestreams are as follows:

K176  Baghouse filters from the production of antimony oxide, including 
filters from the production of intermediates (e.g., antimony metal or 
crude antimony oxide).
K177  Slag from the production of antimony oxide that is speculatively 
accumulated or disposed, including slag from the production of 
intermediates (e.g., antimony metal or crude antimony oxide).
K178  Solids from manufacturing and manufacturing-site storage of 
ferric chloride from acids formed during the production of titanium 
dioxide using the chloride-ilmenite process.

B. What Was the Basis for the RQ Adjustment?

    Our methodology for adjusting the RQs of individual hazardous 
substances begins with an evaluation of the intrinsic physical, 
chemical, and toxicological properties of each hazardous substance. The 
intrinsic properties examined--called ``primary criteria''--are aquatic 
toxicity, mammalian toxicity (oral, dermal, and inhalation), 
ignitability, reactivity, chronic toxicity, and potential 
carcinogenicity.
    Generally, for each intrinsic property, EPA ranks hazardous 
substances on a scale, associating a specific range of values on each 
scale with an RQ value of 1, 10, 100, 1,000, or 5,000 pounds. The data 
for each hazardous substance are evaluated using various primary 
criteria; each hazardous substance may receive several tentative RQ 
values based on its particular intrinsic properties. The lowest of the 
tentative RQs becomes the ``primary criteria RQ'' for that substance.
    After the primary criteria RQ are assigned, substances are 
evaluated further for their susceptibility to certain degradative 
processes, which are used as secondary adjustment criteria. These 
natural degradative processes are biodegradation, hydrolysis, and 
photolysis (BHP). If a hazardous substance, when released into the 
environment, degrades relatively rapidly to a less hazardous form by 
one or more of the BHP processes, its RQ (as determined by the primary 
RQ adjustment criteria), generally is raised one level. Conversely, if 
a hazardous substance degrades to a more hazardous product after its 
release, the original substance is assigned an RQ equal to the RQ for 
the more hazardous substance, which may be one or more levels lower 
that the RQ for the original substance.
    The standard methodology used to adjust the RQs for RCRA hazardous 
wastestreams differs from the methodology applied to individual 
hazardous substances. The procedure for assigning RQs to RCRA 
wastestreams is based on an analysis of the hazardous constituents of 
the wastestreams. The constituents of each RCRA hazardous wastestream 
are identified in 40 CFR part 261, Appendix VII. We determine an RQ for 
each constituent within the wastestream and establish the lowest RQ 
value of these constituents as the adjusted RQ for the wastestream.
    We proposed to promulgate a one pound RQ for constituents in K176 
and a 5000 pound RQ level for constituents in K177. We did not propose 
any adjustment for K178 because we had not yet developed a primary 
``waste constituent RQ'' for manganese, one of the constituents of 
concern. We did not receive any comments on our proposed RQs. In 
today's final rule, we assign a one-pound adjusted RQ to the K176 
wastestream, and an adjusted RQ of 5,000 pounds to the K177 
wastestream. The adjusted RQs for these wastestreams are based on the 
lowest RQ value of the constituents present in each wastestream and are 
presented in Table VII-1 below.

                            Table VII--1. Adjusted RQs for Wastestreams K176 and K177
----------------------------------------------------------------------------------------------------------------
                                                                                    Wastestream
                  Wastestream                        Wastestream constituent      constituent RQ  Wastestream RQ
                                                                                       (lb.)           (lb.)
----------------------------------------------------------------------------------------------------------------
K176..........................................  arsenic.........................               1               1
                                                lead............................              10  ..............
K177..........................................  antimony........................           5,000           5,000
----------------------------------------------------------------------------------------------------------------


[[Page 58292]]

    We are deferring action on the manganese elements of the proposal, 
as described in section IV.B. The statutory RQ of 1 for K178 may be 
adjusted in the future.

C. What if I Know the Concentration of the Constituents in My Waste?

    If you know the concentration levels of all the hazardous 
constituents in a particular inorganic chemical manufacturing waste you 
may apply the mixture rule (see 40 CFR 302.6(b)) to the actual 
concentrations. You would need to report a release of any of the wastes 
when an RQ or more of any of their respective hazardous constituents is 
released.

VIII. Administrative Assessments

    A. Executive Order 12866
    Under Executive Order 12866, [58 FR 51,735 (October 4, 1993)] the 
Agency must determine whether the 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 a 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 thereof; or (4) raise novel, legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    The Agency estimated the costs of today's final rule to determine 
if it is a significant regulatory action as defined by the Executive 
Order. The analysis considered compliance costs and economic impacts 
for inorganic chemical producers affected by this rule. We estimate the 
total cost of the rule to be between $$115,200 to $171,000 annually. 
This analysis suggests that this rule is not economically significant 
according to the definition in E.O. 12866. However, pursuant to the 
terms of Executive Order 12866, it has been determined that this rule 
is a ``significant regulatory action'' because it raises novel, legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order. 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 final 
rule for listing hazardous wastes from inorganic chemical production, 
followed by a presentation of the cost, economic impact and benefit 
results, may be found in the background document: Economic Analysis of 
the Final Rule For Listing Hazardous Waste From Inorganic Chemical 
Production, which was placed in the docket for today's final rule.
1. Methodology Section
    To estimate the cost and economic impacts to potentially affected 
firms and benefits to society from this final rulemaking, we evaluated 
Sec. 3007 survey responses from inorganic chemical producers, firm 
financial reports, and chemical production data. For the final rule, we 
conducted a cost and economic impact analysis for actual inorganic 
chemical producing facilities rather than the model facilities we 
evaluated for the proposed rule. Also for the final rule, we evaluated 
a single scenario focused on actually affected facilities rather than 
the two scenarios we assessed for the proposal. The additional scenario 
in the proposal included facilities where the Agency completed 
quantitative risk assessment involving fate and transport modeling of 
potential releases of wastes generated by these facilities to evaluate 
potential effects on human health and the environment but for which no 
listings were proposed.
    To estimate the incremental cost of this rulemaking, we reviewed 
baseline management practices and costs to affected firms. Where more 
than one baseline management method was used (e.g., municipal 
incineration and landfilling), we accounted for the costs of either 
more than one form of baseline management or selected and accounted for 
the cost associated with the least expensive baseline management (which 
would overestimate rather than underestimate the cost of the rule).
    We modeled the most likely post-regulatory waste management 
scenarios resulting from the listings (e.g., disposal in a Subtitle C 
hazardous waste landfill for K178, recycling or land disposal for K176 
and K177 ) and the estimated cost of complying with these post-
regulatory management scenarios. 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 final rulemaking, we 
compared the incremental cost of the rulemaking with model firm sales 
and either net profit or product value. The Agency also considered the 
ability of potentially affected firms to pass on compliance costs to 
customers in the form of higher prices.
2. Results
    Volume Results. Data reviewed by the Agency indicates that there 
are three inorganic chemical producers affected by today's final rule. 
The data report that these firms generated 72.4 metric tons of 
inorganic chemical production waste annually that are affected by 
today's final rule. Because today's listing description for K178 is 
limited to nonexempt ferric chloride residues, the Agency believes that 
the affected volume of K178 will be limited to 45.4 metric tons rather 
than the 11,797 tons of these solids that are generated annually.\38\ 
The estimated volume of wastes associated with the production of 
antimony oxide has not changed.
---------------------------------------------------------------------------

    \38\ Prior to proposal, the commenter had provided data that 
ferric chloride filter solids make up to 10 percent of 120,000 to 
140,000 tons of ``Iron Rich''' generated annually by the facility. 
See Titanium Dioxide Listing Background Document for the Inorganic 
Chemical Listing Determination, August 2000, p. 53. Using the 
midpoint of this range and the maximum percentage of Iron Rich'' 
composition, EPA used a value of 13,000 tons (11,797 metric tons) of 
solids for its economic analysis supporting the proposal. During 
post-proposal meetings with EPA, the commenter indicated it would be 
technically feasible and cost-effective to modify its process so 
that all but 45 tons of solids would be Bevill-exempt post-rule.
---------------------------------------------------------------------------

    EPA is aware that there also are historically generated materials 
the management of which could result in increased costs due to the K177 
and K178 listings, if these materials are actively managed after the 
effective date of this final rule. These materials include: 1) 120,000 
tons of historically generated antimony oxide slag and contaminated 
soil in Laredo, Texas, 2) 500,000 tons of stockpiled Iron 
RichTM in Edge Moor, Delaware, and 3) an unknown quantity of 
ferric chloride surface impoundment solids in Edge Moor, Delaware. EPA 
has not included these volumes in its economic analysis of this rule 
because it is assumed that these materials will not be actively managed 
after the effective date of this rule.
    Cost Results. We estimate the total annual incremental costs from 
today's final rule to be between $115,200 to $171,000 for all 
facilities. Sectors costs are summarized in Table VIII-1 .

[[Page 58293]]



                      Table VIII-1. Estimated Incremental Cost By Inorganic Chemical Sector
----------------------------------------------------------------------------------------------------------------
                                                   Volume of                                         Number of
                    Sector                      Affected Waste    Estimated Incremental Annual       Affected
                                                    (tons)                Cost (1999 $)             Facilities
----------------------------------------------------------------------------------------------------------------
Antimony Oxide................................              27  $730 to $14,000.................               2
Titanium Dioxide..............................            45.4  $114,500 to $157,000............               1
                                               -----------------------------------------------------------------
    Total.....................................            72.4  $115,200 to $171,000............               3
----------------------------------------------------------------------------------------------------------------

    Economic Impact Results. To estimate potential economic impacts 
resulting from today's final rule, we used first order economic impacts 
measures such as the estimated incremental costs of complying with the 
new listing regulations and expressed these costs as a percentage of 
the affected firms' sales and reported or estimated profits.\39\ We 
used these measures to evaluate potential impacts to affected inorganic 
chemical producers. For affected inorganic chemical producers in the 
antimony oxide and titanium dioxide sectors, we estimated the 
incremental annual costs of this rulemaking to be less than one percent 
of affected firms' sales. For one of the antimony oxide producers, the 
incremental costs of the rule are less than one percent of their 
profit. The other antimony oxide producer reports negative earnings. 
For the titanium dioxide producer, the incremental costs of rule are 
less than one percent of the firm's profit. More detailed information 
on this estimate can be found in the economic analysis placed into 
today's docket.
---------------------------------------------------------------------------

    \39\ When profit information is either unavailable or highly 
variable from year to year, the Agency has chosen to use a profit 
surrogate in completing the economic impact analysis of this final 
rule. According to Dun and Bradstreet's Industry Norms and Key 
Business Indicators (1995) the average net after tax profit for 
inorganic chemical producers in the 2819 SIC code was 6.3 percent. 
When needed, this percentage is applied to reported sales of 
affected firms in order to estimate their profits.
---------------------------------------------------------------------------

3. Public Comment
    A number of commenters expressed concern that EPA's economic 
analysis did not account for incremental costs associated with adding 
manganese to the Universal Treatment Standard (UTS) table at 40 CFR 
Sec. 268.48. Commenters stated that the addition of manganese to the 
UTS list could add substantial costs to the treatment of characteristic 
wastes, delay hazardous waste site cleanups, and adversely impact 
affected generators of these wastes. Because EPA is not adding 
manganese to the UTS list in this rulemaking, the commenters' concerns 
about these potential costs and impacts will not occur as a result of 
today's final rule.
    One public commenter stated that EPA had significantly 
underestimated the cost of the proposed K178 listing to the company. 
The commenter stated that our economic analysis failed to include the 
costs of incinerating the waste and retrofitting surface impoundments. 
The commenter also stated that we did not estimate correctly the volume 
of waste affected by the listing. EPA disagrees with these comments 
because they do not reflect cost-minimizing post-regulatory behavior on 
the part of the affected entity. In our economic analysis for the 
proposed rule, we modeled full segregation of the ferric chloride 
residues from the production of titanium dioxide (chloride-ilmenite 
process). EPA believes that the affected entity will undertake process 
modifications to segregate the potentially affected volumes of its 
wastes into Bevill-exempt (i.e., not hazardous waste) and nonexempt 
components prior to the rule's effective date. We, therefore, modeled 
the volume of ferric chloride residues, which is a relatively small 
volume of waste compared to the original material we believed would be 
listed. Although we believe that incineration of the remaining volume 
would not have been necessary, because non-thermal treatment 
technologies such as solvent extraction and chemical dechlorination 
present cost-effective alternatives to combustion, we modeled 
incineration as selected treatment for this waste for our upper-bound 
of the cost range. In the event that the ferric chloride residues 
exhibit a hazardous waste characteristic when generated, the generator 
would have an obligation to treat dioxins and furans, if any, present 
in the waste. In this case, the only incremental cost attributable to 
the rule is the difference between Subtitle C hazardous waste landfill 
and Subtitle D nonhazardous landfill disposal. The commenter did not 
provide any data or reasoning about why source segregation of this 
material is either technically infeasible or economically impractical.

B. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA)

    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 Procedures 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, a small entity is defined as: (1) A small business that has 
fewer than 1000 or 100 employees per firm depending upon the SIC code 
the firm primarily is classified in \40\; (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; 
and (3) a small organization that is any not-for-profit enterprise 
which is independently owned and operated and is not dominant in its 
field.
---------------------------------------------------------------------------

    \40\ The Small Business Administration has classified firms in 
the manufacturing sector (SIC Codes 20-39) and wholesale trade 
sector (SIC Codes 50-51) as small businesses within the sector based 
on the number of employees per firm. See Small Business Size 
Standards, 61 FR 3280, 3289 (January 31, 1996). Thus, to determine 
if a inorganic chemical producer is a small business, the primary 
SIC code of the firm would have to be determined. The small entities 
in today's rulemaking are in two SIC codes: (1) 2812 Alkalies and 
Chlorine, size standard 1000 employees and (2) 5082 Construction and 
Mining (except Petroleum) Machinery and Equipment size standard 100 
employees.
---------------------------------------------------------------------------

    There is one potentially affected inorganic chemical producing firm 
that is a small entity. This firm is located in the antimony oxide 
sector. We have determined that this firm will incur costs of less than 
one percent of the firm's sales. Although this firm has reported 
negative earnings, the maximum incremental annual cost of the rule is 
approximately $430 which represents approximately 1 percent of the 
negative earnings. This firm also has the opportunity of recycling both 
its slag and baghouse filters which would

[[Page 58294]]

remove these materials from the scope of today's listing. The Agency 
does not believe that these costs will impose a significant impact on 
this firm's operations. The Agency also believes that one firm in the 
antimony oxide sector does not constitute a substantial number of small 
entities.
    After considering the impact of both of these factors from today's 
final rule on the small entity, I certify that this action will not 
have a significant economic impact on a substantial number of small 
entities.

C. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Worksheet (ICW) document has been prepared (ICR 
No. 1968.01) and a copy may be obtained from Susan Auby, Collection 
Strategies Division; U.S. Environmental Protection Agency (2822); 1200 
Pennsylvania Ave. N.W.; Washington, DC 20460 or by calling (202) 260-
2740. A copy may also be downloaded off the internet at http://www.epa.gov/icr. The information requirements are not effective until 
OMB approves them.
    The effect of listing the wastes described earlier is to subject 
industry to management and treatment standards under the Resource 
Conservation and Recovery Act (RCRA). However, this final rule 
represents only an incremental increase in burden for generators and 
subsequent handlers of the newly listed wastes, and affects the 
following existing RCRA information collection requirements: 
Notification, Generator, Generator Standards, and Biennial Report (the 
chart below provides details). This final rule does not contain any new 
information collection requirements, nor does it modify any existing 
information collection requirements.
    As a result of the final rule, EPA estimates that four (4) 
facilities will be newly subject to existing RCRA information 
collection requirements for the newly listed wastes. The exhibit below 
presents the estimated annual hour and cost burden for these four 
facilities to comply with the existing recordkeeping and reporting 
requirements associated with generating and managing hazardous wastes. 
We estimate that the four facilities would incur an annual burden of 
approximately 77 hours and $3,630 in carrying out existing information 
collection requirements for their newly listed wastes. 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. The OMB 
control number for the information collection requirements in this rule 
will be listed in an amendment to 40 CFR part 9 in a subsequent FR 
document after OMB approves the ICR.

   Exhibit 1.--Annual Hour and Cost Burden Under Existing ICRs for Newly Listed Inorganic Chemical Wastes \1\
----------------------------------------------------------------------------------------------------------------
                                                         Annual                 Annual                   Total
                  ICR name and number                     labor     Annual      capital   Annual O &    annual
                                                          hours   labor cost     cost       M cost       cost
----------------------------------------------------------------------------------------------------------------
Notification (261)....................................         1      $68.00       $0.00       $0.00      $68.00
Manifest (801)........................................        25    1,182.00        0.00        6.00    1,186.00
Generators (820)......................................        49    2,212.00        0.00        4.00    2,218.00
Biennial Report (976).................................         2      157.00        0.00        2.00      159.00
                                                       ---------------------------------------------------------
    Total.............................................        77    3,619.00        0.00       12.00    3,631.00
----------------------------------------------------------------------------------------------------------------
\1\ EPA has proposed to list these wastes as hazardous (see 65 FR 55684).

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 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. In any event, EPA has determined 
that this rule does not

[[Page 58295]]

contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and tribal governments, in the 
aggregate, or the private sector in any one year. The total expenditure 
to the private sector in any one year is less than $2 million (for more 
information see the Economic Analysis of the Final Rule For Listing 
Hazardous Waste From Inorganic Chemical Production) and less than 
$300,000 per year for State, local and tribal governments. Thus, 
today's rule is not subject to the requirements of sections 202 and 205 
of the UMRA.

E. Executive Order 12898: Environmental Justice

    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 to waste programs and to develop an overall 
strategy to identify and address these issues (OSWER Directive No. 
9200.3-17).
    Today's final rule covers wastes from inorganic chemical 
production. It is not certain whether the environmental problems 
addressed by this rule could disproportionately affect minority or low-
income communities. Today's final rule is intended to reduce risks of 
hazardous wastes 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.
    In making hazardous waste listing determinations, we base our 
evaluations of potential risk from the generation and management of 
solid wastes on an analysis of potential individual risk. In conducting 
risk evaluations, our goal is to estimate potential risk to any 
population of potentially exposed individuals (e.g., home gardeners, 
adult farmers, children of farmers, anglers) located in the vicinity of 
any generator or facility handling a waste. Therefore, we are not 
putting poor, rural, or minority populations at any disadvantage with 
regard to our evaluation of risk or with regard to how the Agency makes 
its final hazardous waste listing determinations.
    In deciding today to list wastes as hazardous (i.e., baghouse 
filters from the production of antimony oxide, including filters from 
the production of intermediates (e.g., antimony metal or crude antimony 
oxide); slag from the production of antimony oxide that is 
speculatively accumulated or disposed, including slag from the 
production of intermediates (e.g., antimony metal or crude antimony 
oxide); and, residues from manufacturing and manufacturing-site storage 
of ferric chloride from acids formed during the production of titanium 
dioxide using the chloride-ilmenite process), all populations 
potentially exposed to these wastes or potentially exposed to releases 
of the hazardous constituents in the wastes will benefit from the final 
listing determination. In addition, listing determinations take effect 
at the national level. The wastes being listed as hazardous will be 
hazardous regardless of where they are generated and regardless of 
where they may be managed. Although the Agency understands that the 
final listing determinations may affect where these wastes are managed 
in the future (in that hazardous wastes must be managed at subtitle C 
facilities), the Agency's decision to list these wastes as hazardous is 
independent of any decisions regarding the location of waste generators 
and the siting of waste management facilities.
    Similarly, in cases where the Agency is not listing a solid waste 
as hazardous because the waste does not meet the criteria for being 
identified as a hazardous waste, these decisions are based upon an 
evaluation of potential individual risks located in proximity to any 
facility handling the waste. Therefore, any population living in close 
proximity to a facility that produces a solid waste that the Agency did 
not list as hazardous would not be adversely affected either because 
the waste is already being managed as a hazardous waste in the Subtitle 
C system or because the solid waste does not pose a sufficient risk to 
the local population.

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

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under E.O. 12866 and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency. This final rule is not subject 
to the Executive Order because it is not economically significant as 
defined in E.O. 12866 and because the Agency does not have reason to 
believe the environmental health or safety risks addressed by this 
action present a disproportionate risk to children. Today's final rule 
is intended to avoid releases of hazardous constituents to the 
environment at levels that will cause unacceptable risks. We considered 
risks to children in our risk assessment. The more appropriate and 
safer management practices in this final rule are projected to reduce 
risks to children potentially exposed to the constituents of concern.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This final rule does not have tribal implications. It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. No 
Indian tribes own or operate facilities generating wastes affected by 
this rulemaking. Further, no regulated entities affected by this 
rulemaking are located in areas subject to Indian tribal government 
jurisdiction. Thus, Executive Order 13175 does not apply to this rule.

[[Page 58296]]

H. Executive Order 13132: Federalism

    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.''
    This final 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 final rule directly affects 
inorganic chemical producers. There are no State and local government 
bodies that incur direct compliance costs by this rulemaking. State and 
local government implementation expenditures are expected to be less 
than $300,000 in any one year.\41\ Thus, the requirements of section 6 
of the Executive Order do not apply to this rule. This final rule would 
preempt State and local law that is less stringent for these inorganic 
chemical production wastes as 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 (Sec. 3009)]. Under 
Sec. 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 the 
proposed rule, we provided State and local officials notice and an 
opportunity for appropriate participation. Thus, we complied with the 
requirements of section 4 of the Executive Order.
---------------------------------------------------------------------------

    \41\ For more information, please refer to Chapter 6 of the 
background document Economic Analysis of the Final Rule For Listing 
Hazardous Waste From Inorganic Chemical Production, which was placed 
in the docket for today's final rule.
---------------------------------------------------------------------------

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 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. This 
final rulemaking involves technical standards. EPA has selected the 
Toxicity Characteristic Leaching Procedure (TCLP) for treatment 
standards associated with hazardous metal constituents in wastes listed 
in today's final rule. The TCLP is the standard test method used to 
evaluate the toxicity characteristic for the definition of hazardous 
waste (see 40 CFR 261.24) and treatment standards for metal 
constituents under the Land Disposal Restrictions (see 40 CFR 268.40 
and 268.48.). The Agency has used the TCLP in completing its treatment 
standards for the same hazardous metal constituents across a range of 
listed and characteristic hazardous wastes. The performance level for 
leachability is based on the Best Demonstrated Commercially-Available 
Technology (BDAT). The use of the TCLP for the same constituents 
assures uniformity and consistency in the treatment of hazardous waste 
in fulfillment of the Congressional Mandate to minimize long-term 
threats to human health or the environment. 42 U.S.C. Sec. 6924(m). The 
use of any voluntary consensus standard would be impractical with 
applicable law because it would require a different leaching method 
than is currently used to determine hazardous characteristics. The use 
of different chemical methods to assess hazardousness of the waste and 
compliance with treatment standards would create disparate results 
between hazardous waste identification and effective treatment of land 
disposed hazardous wastes. We have not, therefore, used any voluntary 
consensus standards. In the proposed rulemaking, EPA solicited public 
comment to identify potentially-applicable voluntary consensus 
standards and to explain why such standards should be used in this 
regulation. EPA did not receive public comment on any voluntary 
consensus standards that could be used in this regulation.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA submitted a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
Sec. 804(2). The portions of this rule that will take effect earliest 
will be effective May 20, 2002.

K. Executive Order 13211: Energy Effects

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. The scope of this 
rule is limited in nature to three affected facilities. In addition the 
total annual cost of this rule is between $115,200 to $171,000. These 
costs represent less than 1 percent of the affected facilities sales 
and are not expected adversely impact energy use and management in the 
United States.

List of Subjects

40 CFR 148

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

40 CFR 261

    Environmental protection, Hazardous materials, Waste treatment and 
disposal, Recycling.

40 CFR Part 268

    Environmental protection, Hazardous materials, Waste management, 
Reporting and recordkeeping requirements, Land disposal restrictions, 
Treatment standards.

40 CFR Part 271

    Environmental protection, Administrative practice and procedure,

[[Page 58297]]

Confidential business information, Hazardous material transportation, 
Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, 
Reporting and recordkeeping requirements, Water pollution control, 
Water supply.

40 CFR Part 302

    Environmental protection, Air pollution control, Chemicals, 
Emergency Planning and Community Right-to-Know Act, Extremely hazardous 
substances, Hazardous chemicals, Hazardous materials, Hazardous 
materials transportation, Hazardous substances, Hazardous waste, 
Intergovernmental relations, Natural resources, Reporting and 
recordkeeping requirements, Superfund, Waste treatment and disposal, 
Water pollution control, Water supply.

    Dated: October 31, 2001.
Christine T. Whitman,
Administrator.

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

PART 148--HAZARDOUS WASTE INJECTION RESTRICTIONS

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

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


    2. Section 148.18 is amended by revising paragraph (k) and adding 
paragraph (l) to read as follows:


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

* * * * *
    (k) Effective May 20, 2002, the wastes specified in 40 CFR 261.32 
as EPA Hazardous Waste Numbers K176, K177, and K178 are prohibited from 
underground injection.
    (l) The requirements of paragraphs (a) through (k) of this section 
do not apply:
    (1) If the wastes meet or are treated to meet the applicable 
standards specified in subpart D of 40 CFR part 268; or
    (2) If an exemption from a prohibition has been granted in response 
to a petition under subpart C of this part; or
    (3) During the period of extension of the applicable effective 
date, if an extension has been granted under Sec. 148.4.

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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


    4. Section 261.4 is amended by revising paragraph (b)(15) to read 
as follows:


Sec. 261.4  Exclusions.

* * * * *
    (b) * * *
    (15) Leachate or gas condensate collected from landfills where 
certain solid wastes have been disposed, provided that:
    (i) The solid wastes disposed would meet one or more of the listing 
descriptions for Hazardous Waste Codes K169, K170, K171, K172, K174, 
K175, K176, K177, and K178, if these wastes had been generated after 
the effective date of the listing;
    (ii) The solid wastes described in paragraph (b)(15)(i) of this 
section were disposed prior to the effective date of the listing:
    (iii) The leachate or gas condensate do not exhibit any 
characteristic of hazardous waste nor are derived from any other listed 
hazardous waste;
    (iv) Discharge of the leachate or gas condensate, including 
leachate or gas condensate transferred from the landfill to a POTW by 
truck, rail, or dedicated pipe, is subject to regulation under sections 
307(b) or 402 of the Clean Water Act.
    (v) As of February 13, 2001, leachate or gas condensate derived 
from K169-K172 is no longer exempt if it is stored or managed in a 
surface impoundment prior to discharge. After November 21, 2003, 
leachate or gas condensate derived from K176, K177, and K178 will no 
longer be exempt if it is stored or managed in a surface impoundment 
prior to discharge. There is one exception: if the surface impoundment 
is used to temporarily store leachate or gas condensate in response to 
an emergency situation (e.g., shutdown of wastewater treatment system), 
provided the impoundment has a double liner, and provided the leachate 
or gas condensate is removed from the impoundment and continues to be 
managed in compliance with the conditions of this paragraph (b)(15)(v) 
after the emergency ends.
* * * * *


    5. In Sec. 261.32, the table is amended by adding in alphanumeric 
order (by the first column) under the subgroup ``Inorganic Chemicals'' 
to read as follows:


Sec. 261.32  Hazardous waste from specific sources.

* * * * *

------------------------------------------------------------------------
  Industry and EPA  hazardous
           waste No.               Hazardous waste       Hazardous code
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
Inorganic chemicals:
 
*                  *                  *                  *
                  *                  *                  *
    K176......................  Baghouse filters from  (E)
                                 the production of
                                 antimony oxide,
                                 including filters
                                 from the production
                                 of intermediates
                                 (e.g., antimony
                                 metal or crude
                                 antimony oxide).
    K177......................  Slag from the          (T)
                                 production of
                                 antimony oxide that
                                 is speculatively
                                 accumulated or
                                 disposed, including
                                 slag from the
                                 production of
                                 intermediates (e.g.,
                                 antimony metal or
                                 crude antimony
                                 oxide).
    K178......................  Residues from          (T)
                                 manufacturing and
                                 manufacturing-site
                                 storage of ferric
                                 chloride from acids
                                 formed during the
                                 production of
                                 titanium dioxide
                                 using the chloride-
                                 ilmenite process.
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------

Appendix VII to Part 261--Basis for Listing Hazardous Waste

    6. Appendix VII to part 261 is amended by adding the following 
wastestreams in alphanumeric order (by the first column) to read as 
follows:

[[Page 58298]]



------------------------------------------------------------------------
                                            Hazardous constituents for
        EPA hazardous waste No.                    which listed
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
K176...................................  Arsenic, Lead.
K177...................................  Antimony.
K178...................................  Thallium.
------------------------------------------------------------------------

PART 268--LAND DISPOSAL RESTRICTIONS

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

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

Subpart C--Prohibitions on Land Disposal

    8. Section 268.36 is added to read as follows:


Sec. 268.36  Waste specific prohibitions--inorganic chemical wastes

    (a) Effective May 20, 2002, the wastes specified in 40 CFR part 261 
as EPA Hazardous Wastes Numbers K176, K177, and K178, and soil and 
debris contaminated with these wastes, radioactive wastes mixed with 
these wastes, and soil and debris contaminated with radioactive wastes 
mixed with these wastes are prohibited from land disposal.
    (b) The requirements of paragraph (a) of this section do not apply 
if:
    (1) The wastes meet the applicable treatment standards specified in 
subpart D of this part;
    (2) Persons have been granted an exemption from a prohibition 
pursuant to a petition under Sec. 268.6, with respect to those wastes 
and units covered by the petition;
    (3) The wastes meet the applicable treatment standards established 
pursuant to a petition granted under Sec. 268.44;
    (4) Hazardous debris has met the treatment standards in Sec. 268.40 
or the alternative treatment standards in Sec. 268.45; or
    (5) Persons have been granted an extension to the effective date of 
a prohibition pursuant to Sec. 268.5, with respect to these wastes 
covered by the extension.
    (c) To determine whether a hazardous waste identified in this 
section exceeds the applicable treatment standards specified in 
Sec. 268.40, the initial generator must test a sample of the waste 
extract or the entire waste, depending on whether the treatment 
standards are expressed as concentrations in the waste extract or the 
waste, or the generator may use knowledge of the waste. If the waste 
contains regulated constituents in excess of the applicable subpart D 
levels, the waste is prohibited from land disposal, and all 
requirements of this part are applicable, except as otherwise 
specified.

    9. In Sec. 268.40, the Table is amended by adding in alphanumeric 
order new entries for K176, K177, and K178 as follows:


Sec. 268.40  Applicability of treatment standards.

* * * * *

                                    Treatment Standards for Hazardous Wastes
                                         [Note: NA means not applicable]
----------------------------------------------------------------------------------------------------------------
                                                                  Common name     Wastewaters     Nonwastewaters
                                                               -------------------------------------------------
                                                                                                  Concentration
                   Waste description and   Regulated hazardous                   Concentration     in mg/kg \5\
    Waste code      treatment/regulatory       constituent                      in mg/L \3\, or  unless noted as
                      Subcategory \1\                             CAS \2\ No.   Technology Code   ``mg/L TCLP'',
                                                                                      \4\         or Technology
                                                                                                       Code
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
K176.............  Baghouse filters from  Antimony............       7440-36-0  1.9............  1.15 mg/L TCLP
                    the production of     Arsenic.............       7440-38-2  1.4............  5.0 mg/L TCLP
                    antimony oxide,       Cadmium.............       7440-43-9  0.69...........  0.11 mg/L TCLP
                    including filters     Lead................       7439-92-1  0.69...........  0.75 mg/L TCLP
                    from the production   Mercury.............       7439-97-6  0.15...........  0.025 mg/L TCLP
                    of intermediates
                    (e.g., antimony
                    metal or crude
                    antimony oxide).
K177.............  Slag from the          Antimony............       7440-36-0  1.9............  1.15 mg/L TCLP
                    production of         Arsenic.............       7440-38-2  1.4............  5.0 mg/L TCLP
                    antimony oxide that   Lead................       7439-92-1  0.69...........  0.75 mg/L TCLP
                    is speculatively
                    accumulated or
                    disposed, including
                    slag from the
                    production of
                    intermediates (e.g.,
                    antimony metal or
                    crude antimony
                    oxide).
K178.............  Residues from          1,2,3,4,6,7,8-            35822-39-4  0.000035 or      0.0025 or CMBST
                    manufacturing and      Heptachlorodibenzo-                   CMBST \11\.      \11\
                    manufacturing-site     p-dioxin.                67562-39-4  0.000035 or      0.0025 or CMBST
                    storage of ferric     (1,2,3,4,6,7,8-                        CMBST \11\.      \11\
                    chloride from acids    HpCDD).                  55673-89-7  0.000035 or      0.0025 or CMBST
                    formed during the     1,2,3,4,6,7,8-......                   CMBST \11\.      \11\
                    production of         Heptachlorodibenzofu
                    titanium dioxide       ran.
                    using the chloride-   (1,2,3,4,6,7,8-
                    ilmenite process.      HpCDF).
                                          1,2,3,4,7,8,9-......
                                          Heptachlorodibenzofu
                                           ran.
                                          (1,2,3,4,7,8,9-
                                           HpCDF).
                                          HxCDDs (All               34465-46-8  0.000063 or      0.001 or CMBST
                                           Hexachlorodibenzo-p-                  CMBST \11\.      \11\
                                           dioxins).

[[Page 58299]]

 
                                          HxCDFs (All               55684-94-1  0.000063 or      0.001 or CMBST
                                           Hexachlorodibenzofu                   CMBST \11\.      \11\
                                           rans).
                                          1,2,3,4,6,7,8,9-           3268-87-9  0.000063 or      0.005 or CMBST
                                           Octachlorodibenzo-p-                  CMBST \11\       \11\
                                           dioxin.                               0.005 or.
                                          (OCDD)..............
                                          1,2,3,4,6,7,8,9-          39001-02-0  0.000063 or      0.005 or CMBST
                                           Octachlorodibenzofu                   CMBST \11\.      \11\
                                           ran.
                                          (OCDF)..............
                                          PeCDDs (All.........      36088-22-9  0.000063 or      0.001 or CMBST
                                          Pentachlorodibenzo-p-                  CMBST \11\.      \11\
                                           dioxins).
                                          PeCDFs (All.........      30402-15-4  0.000035 or      0.001 or CMBST
                                          Pentachlorodibenzofu                   CMBST \11\.      \11\
                                           rans).
                                          TCDDs (All                41903-57-5  0.000063 or      0.001 or CMBST
                                           tetrachlorodi-benzo-                  CMBST \11\.      \11\
                                           p-dioxins).
                                          TCDFs (All                55722-27-5  0.000063 or      0.001 or CMBST
                                           tetrachlorodibenzof                   CMBST \11\.      \11\
                                           urans).
                                          Thallium............       7440-28-0  1.4............  0.20 mg/L TCLP
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------
Footnotes to Treatment Standard Table 268.40:
\1\ The waste descriptions providedin this table do not replace waste descriptions in 49 CFR part 261.
  Descriptions of Treatment/Regulatory Subcategories are provided, as needed, to distinguish between
  applicability of different standards.
\2\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a
  combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only.
\3\ Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite
  samples.
\4\ All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in
  detail in 40 CFR 268.42 Table 1--Technology Codes and Descriptions of Technology-Based Standards.
\5\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards
  expressed as a concentration were established, in part, based upon incineration in units operated in
  accordance with the technical requirements of 40 CFR part 264, Subpart O or 40 CFR part 265, Subpart O, or
  based upon combustion in fuel substitution units operating in accordance with applicable technical
  requirements. A facility may comply with these treatment standards according to provisions in 40 CFR
  268.40(d). All concentration standards for nonwastewaters are based on analysis of grab samples.
\11\ For these wastes, the definition of CMBST is limited to: (1) Combustion units operating under 40 CFR 266,
  (2) combustion units permitted under 40 CFR part 264, Subpart O, or (3) combustion units operating under 40
  CFR 265, Subpart O, which have obtained a determination of equivalent treatment under 268.42(b).

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

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

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

    11. Section 271.1(j) is amended by adding the following entries to 
Table 1 and Table 2 in chronological order by date of publication to 
read as follows.


Sec. 271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                                                                                      Effective
            Promulgation date                  Title of regulation       Federal Register reference      date
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
10/31/01.................................  Listing of Inorganic         [insert Federal Register        5/20/02.
                                            Chemical Manufacturing       page numbers].
                                            Wastes.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------



[[Page 58300]]

                  Table 2.--Self-Implementing Provisions of the Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                                                                                       Federal
              Effective date               Self-implementing provision         RCRA citation           Register
                                                                                                      reference
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
5/20/02..................................  Prohibition on land          3004(g)(4)(C) and 3004(m)..    11/20/02.
                                            disposal of K176, K177,
                                            and K178 wastes, and
                                            prohibition on land
                                            disposal of radioactive
                                            waste mixed with K176,
                                            K177, and K178 wastes,
                                            including soil and debris.
 
*                  *                  *                  *                  *                  *
                                                        *
----------------------------------------------------------------------------------------------------------------

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

    12. The authority citation for Part 302 continues to read as 
follows:

    Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and 
1361.


    13. In Sec. 302.4, Table 302.4 is amended by adding the following 
new entries in alphanumeric order at the end of the table to read as 
follows:


Sec. 302.4  Designation of hazardous substances

* * * * *

                                           Table 302.4--List of Hazardous Substances and Reportable Quantities
                                             [Note: All comments/notes are located at the end of this table]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                Statutory                           Final RQ
        Hazardous substance                  CASRN           Regulatory synomyms  ----------------------------------------------------------------------
                                                                                    RQ      Code       RCRA waste No.       Category        Pounds (Kg)
------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
K176...............................  .....................  .....................   *1           4    K176              X                      1 (0.454)
Baghouse filters from the
 production of antimony oxide,
 including filters from the
 production of intermediates (e.g.,
 antimony metal or crude antimony
 oxide)
K177...............................  .....................  .....................   *1           4    K177              D                   5,000 (2270)
Slag from the production of
 antimony oxide that is
 speculatively accumulated or
 disposed, including slag from the
 production of intermediates (e.g.,
 antimony metal or crude antimony
 oxide)
K178...............................  .....................  .....................   *1           4    K178              X                      1 (0.454)
Residues from manufacturing and
 manufacturing-site storage of
 ferric chloride from acids formed
 during the production of titanium
 dioxide using the chloride
 ilmenite process.
                                     .....................  .....................  ...  ............  ................  ................
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Indicates the statutory source as defined by 1, 2, 3, and 4 below.
4--Indicates that the statutory source for designation of this hazardous substance under CERCLA is RCRA section 3001.
1* Indicates that the 1-pound RQ is a CERCLA statutory RQ.


[FR Doc. 01-27833 Filed 11-19-01; 8:45 am]
BILLING CODE 6560-50-P