Thursday
January 25, 1996
 Part  II



 Environmental

 Protection Agency

 40 CFR Part 148, et al.
 Hazardous Waste; Land Disposal
 Restrictions; Definitions and
 Clarifications; Proposed Rule

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 2338
Federal  Register / Vol. 61, No.  17 / Thursday, January  25,  1996  /  Proposed  Rules
 ENVIRONMENTAL PROTECTION
 AGENCY

 40 CFR Parts 148, 261, 268, and 271
 [FRL 5400^t]
 BIN 2050-AE05

 Land Disposal Restrictions—
 Supplemental Proposal to Phase IV:
 Clarification of Bevill Exclusion for
 Mining Wastes, Changes to the
 Definition of Solid Waste for Mineral
 Processing Wastes, Treatment
 Standards for Characteristic Mineral
 Processing Wastes, and Associated
 Issues

 AGENCY: Environmental Protection
 Agency (EPA, the Agency).
 ACTION: Supplemental proposed rule.

 SUMMARY: EPA has found that wastes
 from mineral processing can cause
 environmental damage to ground water
 and  surface water when they are placed
 in piles or ponds. The damage is caused
 by such characteristics of the waste as
 corrosivity or high levels qf toxic metals
 such as lead.
  The intended effects of this proposal
 are to encourage safe recycling of
 mineral processing secondary materials
 by lifting regulatory obstacles, and to
 ensure that discarded materials are
 properly treated and disposed of. This
 would be accomplished by clarifying
 the regulatory distinctions  between
 excluded recycling and waste
 management. To be excluded from the
 definition of waste, the materials must
 be managed to meet conditions such as
 being legitimately recycled, stored only
 for short periods, and not causing
 contamination. Mineral processing
 secondary materials would also be
 excluded from federal waste regulations
 if they are returned to beneficiation
 units and meet certain conditions. If the
 materials do not meet the conditions
 excluding them from being wastes, and
 they test hazardous, they must be
 treated to meet land disposal
 restrictions, which are newly proposed
 in this rule.
  The EPA is also addressing a set of
 issues concerning mineral processing
 wastes which have been remanded by
 courts to EPA for further consideration.
 This includes retaining the Toxicity
 Characteristic Leaching Procedure as the
 test for evaluating the toxicity
 characteristic for mineral processing
 wastes, and readdressing the regulatory
 status of a number of miscellaneous
mineral processing wastes.
  In  addition, EPA is proposing to
significantly reduce the paperwork
requirements associated with the Land
                         Disposal Restrictions rules that apply to
                         hazardous wastes generally. Finally, this
                         document proposes to exclude from
                         RCRA jurisdiction two types of
                         materials: processed scrap metal that is
                         recycled, and shredded circuit boards
                         destined for metal recovery that are
                         managed in containers prior to recovery.
                         DATES: Comments on this proposed rule
                         must be submitted by March 25,1996.
                         ADDRESSES: To submit comments, the
                         public must send an original and two
                         copies to Docket Number F-95-PH4A-
                         FFFFF, located at the RCRA Docket. The
                         official address is: RCRA Information
                         Center, U.S. Environmental Protection
                         Agency (5305W), 401 M Street, S.W.,
                         Washington,  D.C. 20460. Although the
                         mailing address for the RCRA
                         Information Center has not changed, the
                         office was physically moved in
                         November 1995. Therefore,  hand-
                         delivered comments should be taken to
                         the new address: 1235 Jefferson Davis
                         Highway, First Floor, Arlington,
                         Virginia. (Also see  the section under
                         "Supplementary Information" regarding
                         the paperless office effort for submitting
                         p'ublic comments.) The RCRA
                         Information Center is open for public
                         inspection and copying of supporting
                         information for RCRA rules  from 9:00
                         am to 4:00 pm Monday through Friday,
                         except for Federal holidays. The public
                         must make an appointment  to review
                         docket materials by calling (703) 603-
                         9230. The public may copy a maximum
                         of 100 pages from any regulatory
                         document at no cost. Additional copies
                         cost $0.15 per page.
                         FOR FURTHER INFORMATION CONTACT: For
                         general information or to order paper
                         copies of the Federal Register
                         document, call the  RCRA Hotline.
                         Callers within the Washington,
                         Metropolitan Area must dial 703-412-
                         9810 or TDD 703-412-3323  (hearing
                         impaired). Long-distance callers may
                         call 1-800-424-9346 or TDD 1-800-
                         553-7672. The RCRA Hotline is open
                         Monday-Friday, 9:00 a.m. to 6:00 p.m.,
                         Eastern Standard Time. Information is
                         also available on mineral processing
                         issues from Van Housman at (703) 308-
                         8419 or Steve Hoffman of the Industrial
                         and Extractive Wastes Branch at (703)
                         308—8413. For information on treatment
                         standards, call Anita Cummings of the
                         Waste Treatment Branch at (703) 308-
                         8303. For questions about the regulatory
                        impact analysis, call Paul Borst of the
                        Economics, Methods, and Risk
                        Assessment Division at (202) 260-6713.
                        For information on the proposed
                        exclusions for scrap metal and shredded
                        circuit boards, contact Ross Elliott of the
                        Hazardous Waste Identification Division
                        at (202) 260-3152. For information on
 the capacity analyses, contact Bill Kline
 of the Capacity Programs Branch, phone
 (703) 308-8440. For other questions,
 call Sue Slotnick of the Waste
 Treatment Branch at (703) 308-8462.

 SUPPLEMENTARY INFORMATION:

 Paperless Office Effort

   EPA is asking prospective
 commenters to voluntarily submit one
 additional copy of their comments on
 labeled personal computer diskettes in
 ASCII (TEXT) format or a word
 processing format that can be converted
 to ASCII (TEXT). It  is essential to
 specify on the disk label the word
 processing software and version/edition
 as well  as the commenter's name. This
 will allow EPA to convert the comments
 into one of the word processing formats
 utilized by the Agency. Please use
 mailing envelopes designed to
 physically protect the submitted
 diskettes. EPA emphasizes that
 submission of comments on diskettes is
 not mandatory, nor  will it result in any
 advantage or disadvantage to any
 commenter. Rather, EPA is
 experimenting with this procedure as an
 attempt to expedite  our internal review
 and response to comments. This
 expedited procedure is in conjunction
 with the Agency "Paperless Office"
 campaign. For further information on
 the submission of diskettes, contact Sue
 Slotnick of the Waste Treatment Branch
 at (703) 308-8462.
  This Federal Register notice is
 available on the Internet System through
 EPA Public Access Server at
 gopher.epa.gov. For the text of the
 notice, choose: Rules, Regulations, and
 Legislation; the FR-Waste; finally, Year/
 Month/Day. In addition, several
 technical background documents
 contained in the docket supporting this
 rule will be available on the Internet.

 Table of Contents

 Part One: Mineral Processing Issues
 Summary of Rule's Contents on Mineral
Processing Issues

Introduction to Mineral Processing Issues in
This Proposal
I. Whether Mineral Processing Secondary
    Materials Recycled Within the Industry
    Should be Considered to be Solid Wastes
  A. Background
  B. Introduction
  C. Solid Waste Issues
  D. Jurisdiction
  E. General Principles for Redefining Solid
    Waste Within the Mineral Processing
    Sector
  F. Proposed Regulatory Scheme
  G. Units and Secondary Materials Outside
   the Scope of this Proposal

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              Federal Register / Vol.  61, No. 17 / Thursday, January 25, 1996 / Proposed Rules
                                2339
  H. Alternative Approaches
11. Addition of Mineral Processing Secondary
    Materials to Units Processing Bevill Raw
    Materials
  A. Introduction
  B. When Wastes from Co-processing Retain
    Bovill Status
  C. Status of Units Receiving Mineral
    Processing Secondary Materials
  D. Mixing of Mineral Processing Hazardous
    Wastes With Bevill Wastes
  E. Re-mining Previously Generated Mineral
    Processing Wastes
III. Mineral Processing Wastes Covered By
    This Rule
IV. Responses to Court Remands on Mineral
    Processing Wastes
  A. Applicability of the Toxicity
    Characteristic Leaching Procedure
    (TCLP) to Mineral Processing Wastes
  B. Remanded Mineral Processing Wastes
  C. Lightweight Aggregate Mineral
    Processing Wastes
  D. Mineral Processing Wastes From the
    Production of Titanium Tetrachloride
V. Land Disposal Restrictions for Mineral
    Processing Wastes
  A. Treatability data
  B. Universal Treatment Standards (UTS)
VI. Capacity Determination for the Newly
    Identified Mineral Processing Wastes
  A. Introduction
  B. Capacity Analysis Results Summary
  C. Mineral Processing Wastes Injected into
    Class I Underground Injection Wells
Part Tivo: Other RCRA Issues
I. Exclusion of Processed Scrap Metal and
    Shredded Circuit Boards from the
    Definition of Solid  Waste
  A. Processed Scrap Metal Being Recycled
  B. Shredded Circuit Boards
 II. Proposed Reduction  in Paperwork
    Requirements for the Land Disposal
    Restrictions Program
   A. Section 268.7
   B. Clean Up of Part 268 Regulations
 Part Three: Administrative Requirements and
 State Autlwrity
 I. Environmental Justice
   A. Applicability of Executive Order 12898
   B. Potential Effect.'; of this rule
 II. State Authority
   A. Statutory Authority
   B. Streamlined Authorization Procedures
   C Authorization Procedures
 HI. Regulatory Requirements
   A. Regulatory Impact Analysis Pursuant to
    Executive Order 12866
   B. Regulatory Flexibility Analysis
   C. Paperwork Reduction Act
 IV. Unfunded Mandates Reform Act

 Part One: Mineral Processing Issues

 Summary of Bule's Contents on Mineral
 Processing Issues
   EPA is proposing treatment standards
 under the land disposal restrictions
  (LDR) program for hazardous wastes
  from mineral processing operations. The
  treatment standards, when finalized,
 must be met in order to land dispose
  these hazardous wastes. In order to
 satisfy the terms of a consent decree,
EPA must propose these treatment
standards by December 15,1995. This
rule, however, first proposes changes in
the rules for which mineral processing
secondary materials recycled within the
mineral processing industry sector are
solid wastes. If such materials are not
solid wastes, the proposed treatment
standards woulji not apply. This rule
proposes changing the current
definition of solid waste by providing a
conditional exclusion for primary
mineral processing secondary materials
that are further processed within the
industry. Under this approach, mineral
processing secondary materials would
not be solid wastes if certain conditions
are met. This nile also proposes to
rescind the current regulatory
provisions applicable to reclamation of
characteristic by-products, sludges, and
spent materials for the primary mineral
processing industry only. Also, this rule
allows minera^processing secondary
materials to be [added to the feedstocks
of a mining or mineral process that
generates a Bevill exempt waste,
without changing the exempt status of
the resulting Bevill waste, provided that
metals are legitimately being recovered
and do not significantly affect the
composition of the resulting wastes.
However, mineral processing hazardous
wastes directly disposed of with Bevill
 exempt wastes^would be subject to
 Subtitle C controls.
   EPA is proposing that the Toxicity
 Characteristic Leaching Procedure
 (TCLP) be the appropriate test for
 evaluating whether mineral processing
 wastes exhibit ithe toxicity
 characteristic. EPA is proposing to not
 list five smelting wastes as hazardous
 wastes, but rather rely on the wastes'
 hazardous characteristics to ascertain
 the wastes' hazardousness. EPA is
 proposing that iron chloride waste acid
 generated from the chloride-ilmenite
 process of titanium tetrachloride
 production be;classified as a mineral
 processing waste. EPA is proposing that
 air pollution control dust and sludges
 generated from lightweight aggregate
 production be:classified as mineral
 processing wastes.
 Introduction to Mineral Processing
 Issues in This Proposal
    In this supplemental proposal, EPA is
 proposing to establish land disposal
 restriction prohibitions and treatment
 standards for the newly identified
 hazardous wastes that were determined
 in EPA's 1989 rulemaking to be
 ineligible for excluded status under the
 Bevill Amendment. 54 FR 36592
 (September 1,1989). However, the  .
 threshold issue to be addressed is which
 mineral processing materials would be
subject to the prohibitions. This
involves consideration of these
threshold questions: (1) whether the
materials are solid wastes  if they are
recycled; (2) whether they have
excluded status under the Bevill
Amendment because they are actually
from beneficiation rather than from
mineral processing; (3) whether they
otherwise may have Bevill status and
therefore be excluded; and (4) whether
they are hazardous. These issues are
discussed in the first four sections of
this preamble, before the discussion of
the land disposal prohibitions and
treatment standards.
I. Whether Mineral Processing
Secondary Materials Recycled Within
the Industry Should Be Considered to
Be Solid Wastes

A. Background
  In July of 1988, the court in
Environmental Defense Fund v.  EPA
(EDFII), 852 F.2d 1316 (B.C. Cir. 1988),
cert, denied, 109 S. Ct. 1120 (1989),
ordered EPA to restrict the scope of the
Bevill mining waste exemption  as it
applied to mineral processing wastes, to
include only "large volume, low
hazard" wastes. In response, the Agency
proposed and promulgated several rules
that redefined the boundaries of the
Bevill exemption for mineral processing
wastes. These rulemakings included
 explicit criteria for defining "mineral
 processing" and "large volume  and low
 hazard." The rules also evaluated which
 specific mineral processing industry
 wastes were in conformance with these
 criteria and thus were eligible for the
 temporary exclusion provided by RCRA
   This rulemaking process was
 completed with the publication of final
 rules on September 1,1989 (54 FR
 36592) and on January 23,1990 (54 FR
 2322). EPA's evaluations led to the
 finding that only 20 specific mineral
 processing wastes fulfilled the
 promulgated special wastes' high
 volume, low hazard criteria. The list is
 set out at 261.4(b)(7). The vast majority
 of mineral processing wastes did not
 meet both of the criteria and so were
 removed from the Bevill exemption.
   All high volume and low hazard
 mineral processing wastes retained
 under the final Bevill mineral
 processing waste exemption were
 subjected to detailed study by EPA. The
 findings of this study were contained in
 a Report to Congress that was submitted
 to Congress on July 31,1990 (Report to
 Congress on Special Wastes from
 Mineral Processing).
    One of the findings of the study is that
 most of the mineral processing wastes

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 2340        Federal Register / Vol. 61, No. 17 /  Thursday, January 25, 1996 / Proposed Rules
removed from the Bevill exemption
appear to be characteristic for TC metals
(D004-D011), corrosivity (D002), and/or
reactivity (D003). EPA considers these
wastes to be "newly identified" because
they were brought into the RCRA
Subtitle C system after the date of
enactment of the Hazardous and Solid
Waste Act Amendments on November 8,
1984. 55 FR at 22667 (June 1,1990). In
brief, at the time of the Third Third rule
EPA had not performed technical
characterizations of these newly
identified wastes. The issue was further
complicated by the fact that the list of
non-exempt mineral processing wastes
was not final at that time, because the
regulatory determination for the 20
wastes studied in the 1990 Report to
Congress had not yet been promulgated.
The boundaries of the exemption have
now been firmly established, and the
Agency is ready to propose treatment
standards for newly identified
hazardous mineral processing wastes.

B. Introduction
  A key and threshold question in this
rulemaking is determining when
mineral processing secondary materials
returned to mineral processing
operations for legitimate mineral
recovery can be solid wastes, and hence
within the jurisdictional reach of RCRA
Subtitle C. If these materials are not
solid wastes, then the LDR prohibitions
proposed elsewhere in this rule would
not apply. See 268. 1 (b) and 55 FR at
22061 (June 1,1990). Nor would the
remainder of the Subtitle C rules.
  EPA has recently dealt with the
question of whether recoverable
secondary materials generated by and
recycled within a single industry need
be classified as solid (and potentially
hazardous) wastes. We stated that
recovered oil generated by any facet of
the petroleum exploration, production,
and retailing industry which is returned
to the petroleum refining industry is not
a solid waste. 59 FR 58936 (July 28,
1994). We recently proposed to extend
this principle to a wider range of oil-
bearing secondary materials. 60 FR
57747, 57753 (November 20,1995).
These rules are (or, with respect to the
proposed rule, would be) conditioned
on there being no management of the
materials in land-based units.
  The issue considered here is similar.
Like the petroleum industry, mineral
processing involves the extraction of a
contained mineral value, which can
occur in multiple steps. Processing of
mineral-containing material from within
the industry thus can have aspects of an
on-going process justifying a conclusion
that such materials need not be
classified as solid wastes. A key
 complicating factor here is that unlike
 most other industries, the mineral
 processing industry includes land-based
 units—piles and impoundments—
 which can function as components of its
 production process. Land placement of
 wastes and prevention of resulting
 harms is, of course, a prime focus of
 RCRA. RCRA section 1002 (b) (7). And
 of immediate consequence, any mineral
 processing secondary material classified
 as a solid and hazardous waste would
 be prohibited from placement into such
 a land-based unit under today's rule
 unless first treated to meet the
 applicable treatment standard.
   EPA is proposing in this rule that
 mineral processing secondary materials
 would not be classified as solid wastes
 when recycled legitimately within the
 mineral processing industry. This
 proposal would apply even when
 secondary materials are recycled via
 placement in land-based process units
 (including storage, staging, and
 preprocessing units). However, if land-
 based units are used, they must truly
 function as process units, not disposal
 units. The rule proposes conditions
 which would distinguish process units
 from disposal units.
   There are a related set of issues to
 consider when mineral processing
 secondary materials are recycled in
 mining and beneficiation operations.
 These issues are discussed in section II.
 below.

 C. Solid Waste Issues

 I. Factual Background
   The Agency studied over 200 mineral
 processing facilities that generate over
 350 different secondary materials, some
 of which can be recycled and some of
 which cannot. The Agency has reviewed
 the various mineral processing steps
 that contribute to the production of a
 valuable product. In general, many
 mineral processing secondary materials
 are amenable to recycling. These
 recycling activities can sometimes
 resemble the type of on-going,
 sequential processing of metal values
 typical of a continuing production
 process. On the other hand, other
 operations are more tangential, and can
 involve secondary  materials of lower
 value, held in units whose function is
 ancillary to the main process, with
 materials moving across less directly-
 related mineral processing industry
 sectors, with the materials being held
 for significant lengths of time before
 recovery occurs. As set out in the
 following paragraphs, there are in fact
 continuums relating to whether units
.holding secondary  materials function as
 process or ancillary units; relating to the
 value of the secondary material; and
 relating to the timing and location of
 recovery.
   Ancillary operations are those steps
 that occur tangential to the main
 production but are not critical in the
 daily production of the product. Most
 mineral processing facilities operate 24
 hours per day, continually taking in raw
 feedstocks and producing final
 products. Invariably there are other
 activities that must take place over time
 that are not part of the normal
 production but do contribute to overall
 production. These include surge ponds
 for process upsets, cooling and
 incidental settling ponds, incidental
 storage of vessel cleanouts and other
 slip streams. The Agency has found
 these ancillary operations commonly
 use land-based storage  of mineral
 processing secondary materials. Indeed,
 some land-based units potentially serve
 a dual function of eventual permanent
 waste repository and processing unit.
 For example, some surface
 impoundments recover needed liquids
 (for example acids), but are also
 designed to allow settling of unused
 solids. The impoundment then becomes
 the permanent disposal unit for these
 solids when the unit stops operating.
  The mineral processing secondary
 materials that are placed in land based
 units tend to have less value, and are
 less quickly returned to-production than
 the more valuable mainstream
 feedstocks such as ore concentrate. This
 is in contrast to the more valuable
 materials used in main production
 processes, where secure bunkers, lined
 tanks, and enclosed buildings are
 utilized for material holding. For
 example, copper smelter bricks that
 contain low concentrations of copper
 are only periodically removed from a
 smelter. These smelter bricks may then
 sit on the ground miles from the smelter
 for months or years before being
 reprocessed. Other bricks, such as those
 generated daily from a copper converter
 furnace, that contain relatively high
 concentrations of copper, are stored
 near the smelter in bunkers or enclosed
 buildings and re-processed daily.
  Many types of mineral recovery do
 not occur solely within the same
 facility. The Agency has also found that
 one mineral sector may generate a
 residue that can no longer be recycled
 on site so it is often shipped across
 different mineral sectors to recover
 various metals. For example, copper
 smelters generate acid plant blowdown
high in lead concentration that can be
 further processed to eventually be
recovered in a lead smelter. A lead
 smelter generates a copper-bearing

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              Federal Register / Vol. 61, No. 17  /Thursday, January 25,  1996  /  Proposed Rules	2341
spoiss that can be directly fed into a
copper smelter.
  Land-based process units in the
mineral processing industry have the
potential to cause the types of
environmental problems associated with
classic land disposal units. Indeed, this
is not merely a potential but an actual
problem. Part of the record for this
proposed rule is a compendium of
environmental damage cases caused by
land-based process units within the
mineral processing and mining
industries  (see Human Health and
Environmental Damages from Mining
and Mineral Processing Wastes, EPA
Office of Solid Waste 1995).
  The Agency nevertheless recognizes
that such land-based units have
historically been a significant part of the
production processes typical of the
mining and mineral processing
industries. This is mainly a function of
the large volumes of materials managed
by this industry (or, in some cases, due
to the heat of the material precluding
any other type of immediate handling).
Notwithstanding that mineral
processing hazardous wastes are
generated in quantities below the "high
volume" threshold for distinguishing
Bevill eligibility, many of these wastes
are generated in volumes exceeding
practical management in anything but
land-based units. For example, copper
smelter acid plant blowdown, which is
frequently recovered for metal and acid
value, can be generated in volumes on
the order of tens of thousands of metric
tons per year per facility. Similar
examples are bertrandite thickener
slurry from primary beryllium
production and flue dust from
molybdenum smelting. For this reason,
the Agency regards the mineral
processing industry atypical, and
relatively unique in its use of land-
based process units. Today's proposal
thus should not be regarded as
precedential for recognizing as process
units land-based units in other
industries, nor is the Agency aware of
any claim that such units are used in
other industries'.
   However, the Agency has also seen a
trend for some mineral processing
facilities to move away from land-based
units and store more secondary
materials in tanks or other units with
more integrity. The Agency believes that
this is a function of technological
advances, process changes, and
sometimes in response to increasing
environmental liability.
2. Regulatory Background

  This is not the first time that EPA lias
dealt with the question of which
secondary materials generated by and
recycled within the mineral processing
sector are solid wastes. The existing
regulatory definition of solid waste
classifies metal recovery operations as a
type of reclamation activity, and then
states that certain secondary materials
being reclaimed are, or are  not, solid
wastes depending on what the type of
material is. Thus, any spent material
being reclaimed is a solid waste, while
only sludges and byproducts that are
otherwise listed as hazardous wastes are
solid wastes. Put another way,
characteristic  sludges and byproducts
being reclaimed are not solid wastes,
but any type of spent material is. See
generally 261.2(c)(3) and 50 FR at 633-
634, 639-641  (January 4,1985). Other
parts of the rule, however,  do not
subdivide among material types when
classifying materials returned to an
industrial process as feedstock. Under
261.2(e)(l)(i),  for example,  secondary
materials that are used as ingredients in
an industrial process to make a product
are not solid wastes at all (unless the
materials are reclaimed).
  In addition  tp these rules, there are a
series of judicial opinions which must
be taken into account. In American
Mining Congress v. EPA, 824 F. 2d 1177
(D.C. Cir. 1987) ("AMCT'), the court
found that in some respects the rules
exceeded the statutory grant of authority
because, at least with respect to the
mineral processing (and petroleum)
industries, thexules asserted authority
over secondary materials that were not
"discarded". 824 F. 2d at 1193
("discarded" being the key term in the
statutory definition of solid waste,
RCRA section 1004 (27)). Subsequent
judicial opinions have sharply limited
the scope of AMC I, so that the only
absolute bar on the Agency's authority
to define recycled secondary materials
as solid wastes is to "materials that are
'destined for immediate reuse in another
phase of the industry's ongoing
production process' and that 'have not
yet become part of the waste disposal
problem'". American Mining Congress
v. EPA, 907 F. 2d 1179,1186 (D.C. Cir.
1990) ("AMC IT'] quoting AMC I, 824 F.
2datll86.2   '
  EPA is proposing in this rule to both
deal with remaining issues posed by the
mandate in AMC /,? and at the same
time continue the process of improving
the current federal regulatory definition
of solid waste.4
D. Jurisdiction
  The issue of jurisdiction over recycled
secondary  materials raises difficult
issues, particularly so with respect to
secondary  materials managed in land-
based units. Representatives of the
mineral processing industry maintain
that metal-bearing materials generated
within and returned to a mineral
processing operation  are necessarily not
wastes because they are not  being
literally discarded. They view these
activities, for the most part,  as the type
of sequential processing of an initial raw
material stated to be outside the
Agency's jurisdiction by the court in
AMC I.
  Representatives of environmental
groups argue that secondary materials
placed in land-based  units are
necessarily wastes because the land
placement itself is a type of disposal,
and that the units are therefore disposal
units. They cite AMC II in support.
  EPA does not read the statute or the
cases as necessitating either of these
positions. First, the cases establish that
"discarded", the critical statutory term,
is ambiguous and hence susceptible to
interpretation. Second, in interpreting
the term, the Agency  may take into
account whether the materials "have
become part of the waste disposal
problem." In light of these principles,
neither absolute position is  compelled.
  With respect to the industry position,
there are significant elements of discard
that can be associated with recycling of
mineral processing secondary materials
in land-based units. As  described above,
the practices can involve cross-sector
transfer of materials,  lack of immediate
reuse, and utilization of land-based
units for low value materials. These
  ' Ono significant exception is impoundments
 used by the pulp and paper Industry to store black
 liquor. Son SO FR at 041-642.
  2The other cases which have similarly stressed
 this narrow reading of AMC /are American
 Petroleum Inst. v. EPA, 906 F. 2d 726, 741 (D.C. Cir.
 1990); SheW Oil v. SPA, 950 F. 2d 741, 755-56 (D.C.
 Cir. 1991); Chemical Waste Management v. EPA,
 976 F. 2d 2,14 (D.C. Cir. 1992); United States v.
 Ilco, Inc., 996 F. 2d 1126,1131 (5th Cir. 1993); and
 Owen Electric Steef Co. v. Browner, 37 F. 3d 146,
 149-50 (4th Cir. 1994).
  3 The D. C. Circuit has in fact indicated by Order
that the mandate of AMCI "does not. . .require
[EPA] to revise its regulations." Order of November
4,1992 in no. 85-1206 (although the same order
indicates that the Agency is obliged to issue some
type of rule addressing concerns raised by the
petitioners in AMC I).
  4 The Agency notes that there is an on-going
effort, in conjunction with State regulatory agencies
to reevaluate the current definition of sqlid waste
and develop a new regulatory framework that will
more clearly define RCRA jurisdiction and
encourage the environmentally sound recycling of
hazardous wastes.  Today's proposal addresses the
jurisdictional issues specific to secondary materials
generated and processed within the primary
mineral processing industry and is similar to the
November 20,1995 proposal in which the Agency
addressed various  secondary materials generated
within the petroleum refining industry. 60 FR
57747.

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 2342         Federal  Register / Vol. 61, No. 17  /  Thursday, January 25, 1996 / Proposed Rules
 units can also be performing some
 quasi-waste management types of
 functions, such as storage or restoring
 materials to a usable condition, that are
 ancillary to the production process.
 Most important, these land-based units
 can be part of the waste disposal
 problem. Land-based units, and
 impoundments in particular, have
 certain inherent indicia of discarding
 due to their inability to prevent releases
 of contained materials. RCRA section
 1002 (b) (7); AMCII, 907 F. 2d at 1187;
 53 FR at 521, 525 (Jan. 8,1988). The
 environmental damage cases resulting
 from use of land-based units in the
 mineral processing sector bear out that
 use of these units for recycling can be
 part of the waste disposal problem.
   It also should be noted that these
 units may have an element of associated
 discard irrespective of whether recycled
 materials placed in the units are
 considered to be solid and hazardous
 wastes. As described earlier, these units
 are often the ultimate repositories—i.e.
 disposal point—of the material in the
 unit which is not used in the process.
 This material builds up over time and
 may never be used.
   With respect to the environmentalist
 position, EPA believes that there are
 jurisdictional constraints over materials
 that are destined for immediate reuse in
 another phase of the industry's ongoing
 production process. The mineral
 processing industry, of course, functions
 in order to extract mineral values from
 an initial raw material. This creates the
 need for particular sensitivity in a
 regulatory classification scheme to •
 avoid interdicting the on-going
 processing of that initial material. It also
 proves too much to say that land
 placement per se makes such a material
 a solid waste. Placement of raw
 materials into land-based units, for
 example, does not invariably transform
 those materials into RCRA solid wastes
 nor the units into regulated units.
  The Agency's view is that it is
 addressing a borderline classification
 situation here. As noted, there are
 aspects of quasi in-process material
 utilization here, particularly if involving
 on-site or intra-company higher-value
 material utilization and utilization of
 units proximate to the main processing
 activity.5 On the other hand, factors
 pointing  toward discarding include the
 potential quasi-disposal nature of some
 of the units receiving the waste, namely
 those which are land-based and in some
 cases functioning in a manner ancillary
to the process.
  5 See also EPA's further solicitation of comment
on this issue in section I. H. below.
   The Agency's proposed approach to
 classification is to set out conditions to
 address the most problematic
 classification issue: that of the land-
 based units. The conditions would be
 designed to assure that these units are
 designed and operated with sufficient
 integrity to prevent substantial discard,
 and so to function as process units
 which are not part of the waste disposal
 problem. Given the basic function of the
 industry to extract contained mineral
 values (including  in sequential steps),
 the Agency is then proposing that so
 long as these conditions are satisfied,
 any within-industry transfer of
 secondary materials for legitimate
 mineral recovery would not involve
 solid wastes.

 E. General Principles for Redefining
 Solid Waste Within the Mineral
 Processing Sector

   The Agency's goal through this
 proposal is to simplify the regulatory
 definition of solid waste as it applies to
 the mineral processing industry in a
 manner that encourages within-industry
 secondary material recovery, does not
 interfere with metal recovery operations
 within this industry sector, but at the
 same time prevents land-based process
 units from serving as the means of
 discarding those materials. The
 simplification in the rules would come
 from eliminating the distinctions among
 spent materials/byproducts/sludges and
 between reclamation in mineral
 processing operations and direct use as
 a feedstock in other industries. The
 basic principle justifying these changes
 would be that, at least for this industry,
 distinctions among secondary material
 types are not especially meaningful. The
 critical factor that may involve
 discarding does not relate to the type of
 metal-bearing materials being recovered
 but to the type of unit involved in the
 recycling activity. In other words,
 whether the material generated by and
 recovered in a mineral processing
 operation is a spent material, sludge, or
 byproduct is of little consequence for
 determining if the material is being
 discarded. What matters is how that
 secondary material is managed, so that
 the chief focus of the definition can be
 on the types of units receiving the
 material.
  Focusing on the types of management
 units involved in the recycling activity
 coincides with a critical feature of the
test enunciated repeatedly by the courts:
whether the materials have become part
of the waste disposal problem. It also
can lead to rules more directed at
environmental problems than the
current rules, and,  for that reason, to
 rules that are narrower in scope and
 easier to understand and to apply.
   Thus, the basic principle proposed in
 this rule is that a secondary material
 generated by and recovered within the
 mineral processing industry sector is
 not a solid  waste, provided it is
 managed in process units, not units
 from which the materials are discarded.
 Tanks, containment buildings,, and
 containers  would be considered
 automatically to be process units. With
 respect to land-based units, in
 distinguishing between process units
 and waste management units, the
 Agency believes it is appropriate to use
 certain criteria that indicate whether the
 unit is  designed and operated to prevent
 substantial release of contained
 materials, consistent with the ostensible
 use of the units to hold valuable
 feedstock. Such criteria would include
 conditions  relating to whether the unit
 is operated or designed in a manner that
 assures that excessive discarding is not
 occurring.

 F. Proposed Regulatory Scheme
   EPA  is proposing that metal-bearing
 secondary materials that are generated
 by and  recovered within the mineral
 processing industry  sector are not solid
 wastes  unless persons managing the
 wastes  fail to comply with enumerated
 conditions relating to assuring that units
 managing the secondary materials
 function as process units, not as means
 of discarding the materials. These
 conditions are discussed in the
 following preamble subsections.
 1, Generally Applicable Conditions
  EPA is proposing the following set of
 conditions that would apply whether or
 not the  mineral-bearing residue is
 managed in a land-based unit.
  a. Conditions Related to Legitimate
 Recycling. The first conditions EPA is
 proposing attempt to assure that
 legitimate recycling is indeed occurring.
 As a threshold matter, EPA has
 considered the need  for a sham
 recycling test under the circumstances
 presented by this proposed rule: within-
 industry transfers of materials to units
 that (in  the case of land-based units) are
 adhering to  conditions designed to
 ensure that the units are not part of the
 waste disposal problem. It might be
 argued that under these circumstances,
 assessing recycling legitimacy does not
 appreciably alter the risks posed (since
 the same units would be used for
 material management) and imposes
 some costs on legitimate recovery
 operations in the form of (at least)
 administrative inconvenience, and
possible analytic costs. The Agency,
however, continues to believe that an

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              Federal Register / Vol. 61, No.  17 / Thursday, January 25, 1996 / Proposed Rules        2343
evaluation of legitimacy (in some form)
is needed here as a matter of both law
and policy.
  Sham recycling is, of course, nothing
more than waste disposal or waste
treatment. (See U.S. v. Self, 2 F. 3d
1071,1079 (10th Cir. 1993) ("[f]ollowing
the 1985 amendment, the EPA's
distinction between legitimate and sham
burning became significant, not only by
continuing to determine the
applicability of the recycling exemption,
but also by determining whether a
material is being burned or
incinerated—i.e. burned for
destruction—and, therefore,
abandoned.  .  . .").) Hazardous waste
disposal is subject to certain legally-
mandated requirements, among them a
permit requirement, pretreatment of
wastes before disposal, financial
responsibility to assure proper unit
closure, and minimum technology
requirements, among others. RCRA
sections 3005  (a), 3004 (d)-(g), 3004 (a),
3004 (o). There is no authority of which
the Agency is aware that would allow it
to waive these requirements here.
  The Agency also notes that the line it
is attempting to create in  this proposal
between land-based process units and
disposal units is conceptually
ambiguous.  For this reason, the Agency
believes that the assurance that the unit
must only be used for materials that
serve a legitimate function in the
process is an important component of a
set of conditions that meaningfully
distinguishes process units from waste
disposal units.
  Under the current scheme,  persons
claiming to be recycling have the
burden of showing, on a case-by-case
basis, that they are recycling
legitimately. 261.2 (f). EPA has set out
factors which are likely to be relevant in
assessing such claims. See, e.g., 50 FR
at 638 (Jan. 4,1985); 53 FR at 522 (Jan.
8,1988); 56 FR at 7145, 7185 (Feb. 21,
1991). EPA  has not quantified any of
these factors, and the relative weight to
attach to them (if relevant) can vary
depending upon circumstances. This
can lead to uncertainty as to the status
of particular operations (potentially
discouraging new recycling operations),
and also to resource-intensive case-by-
case evaluations. For these reasons, EPA
is considering adopting certain
quantitative legitimacy tests as rules for
 this industry sector. However, as a
threshold matter, EPA is soliciting
comment on whether such quantified
tests are necessary here. Depending on
 its stringency relative to the factors
 discussed above, a quantified test would
 diminish the flexibility now available,
and may also impose certain additional
costs such as increased analysis. It
might also be argued that since the
proposal covers ;only materials being
recycled within khe mineral processing
industry sector, !there is less need for a
quantified standard. On the other hand,
because this rule deals with better-
defined and narrower circumstances
than the entire panoply of recycling
transactions covered by the solid waste
definition, it is easier to develop a
meaningful quantified test here. EPA
believes that a quantified test may
reduce regulatory uncertainty. EPA
requests that commenters address this
question, as well as the specific types of
quantified tests discussed below.
  EPA is proposing the following
conditions to prpvent sham recycling
—i.e. disposal masquerading as
recycling—of mineral processing
secondary materials. The Agency sets
forth in the preamble alternatives to
these conditions and solicits comment
on the appropriateness of these
conditions and the alternative policy
options.       !
  i. Concentrations of Recoverable
Mineral and Acid. First, the secondary
materials must have recoverable
amounts of minerals. Sham recycling
may be occurring if minerals are not
being recovered. 50 FR at 638; 53 FR at
522 (Jan. 8,1988); 266. 100 (c) and 56
FR at 7143 (Feb; 21,1991). In
considering legitimacy for recoverable
amounts of minerals, the Agency is
concerned about secondary materials
that contain sucih low concentrations of
minerals that there is no reasonable
expectation to believe that the minerals
would end up in the product. The
Agency requests comments on whether,
as a threshold issue, the concentrations
of minerals, etc] in the secondary
material should be a significant factor in
establishing the legitimacy of the
recycling activity. While the Agency
currently uses qualitative factors in
assessing legitimacy, it may be possible
to develop a quantitative test which
provides for greater certainty and may
be a low cost mjethod to establish
legitimacy. The[ Agency seeks comments
as to whether any of the following
quantitative legitimacy tests meet this
goal.          i
   Ore Cutoff Grade. An alternative to
determine the presence of recoverable
amounts of minerals is whether the
secondary material has a mineral
content equal to or greater than the
concentration of mineral found within
the facility's ore cutoff grade. This cutoff
grade is typically based on an economic
 decision of whether or not to mine a
particular grade of ore. By definition,
mineral concentrations above this cutoff
grade are recovered in the product. The
Agency solicits comments on the ore-
cutoff grade test for legitimacy.
  Normal Operating Range. Another
alternative would be based on whether
the mineral content in the secondary
material is equal to or greater than the
concentration of minerals found within
the facility's normal operating range.
EPA believes it is a common industry
practice for a facility to establish a
metallurgical profile of feedstock
concentrations of desired metals and
other properties  for particular mineral
processing units. This is often referred
to as the normal  operating range of the
mineral processing unit, which takes
into  account fluctuations over time of
metal content in feedstocks. The Agency
seeks comment on these alternatives.
  Efficiency Standard. EPA has found
that  both mineral processing units and
beneficiation units are designed to
recover a high percentage of available
minerals. Recovery efficiencies of over
90 percent of the mineral value of
interest are commonly achieved. While
these processes usually achieve a high
efficiency in the percentage of minerals
recovered, a certain percentage of the
minerals in the feedstock is unavoidably
lost. The standard would be that the
efficiency of recovering the mineral in
the secondary material must be equal to
or greater than the efficiency of
recovering the mineral value of interest
in the virgin feedstock, regardless of the
amount of mineral in the secondary
material. The advantage of this
approach is that the facility can re-
process secondary materials with
relatively low mineral concentrations if
they can show that the minerals are
being recovered to the same extent that
minerals are recovered in virgin
feedstocks. The. Agency seeks comment
on this alternative.
   Economic Test. Under this approach,
it would be economical, and therefore
legitimate, if the added value gained
from recovering the secondary material
is greater than the incremental cost of
processing the secondary material on a
per  unit basis. Sham recycling would be
indicated if an operator were unable to
show that the recycling activity were
economical, taking into account both
the  value of the  minerals recovered and
any cost savings of recycling (including
some reduced treatment and disposal
costs). Of course, if all that is occurring
is avoidance of disposal or treatment
costs, the activity would not be
recycling. 50 FR at 638. This alternative
would offer substantially greater
recycling opportunities to operators.
EPA notes, however, the Agency's
 experience with quantified economic
tests for legitimate recycling are limited,
 due in part to lack of Agency expertise

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2344
Federal Register  /  Vol. 61, No. 17  /  Thursday, January 25, 1996 /  Proposed Rules
in evaluating operating costs and
financial transactions and companies'
understandable reluctance to divulge
financial information. See 48 FR at
14481 (April 4,1983). EPA solicits
further comment on use of this
economic test.
  In the event the Agency were to adopt
a quantified test, EPA solicits comment
as to whether a variance mechanism
should be allowed for a facility which
makes a valid showing of legitimate
recycling based on its individual
circumstances. This would be similar to
existing § 260.31 which provides for
such variances from other provisions of
the solid waste regulatory definition.
Factors that could be considered in
evaluating such a variance would be the
extent to which the material is handled
to minimize loss, the effectiveness of the
material in comparison to the virgin
material it is replacing, whether the
material contains hazardous
constituents that do not contribute to
the recovery process and the
concentrations of such hazardous
constituents, and in general, how the
material contributes to the recovery
process. See 50 FR at 638; 53 FR at 522.
   A special case arises when certain
materials, which are essentially devoid
of recoverable minerals, are recycled.
The issue is whether water itself with
no recoverable minerals should qualify
under a legitimacy test. By setting this
standard, EPA is concerned that
unnecessary hazardous constituents
would be introduced in the process and
ultimately be released into the
environment. However, the Agency has
historically encouraged facilities to
recycle wastewaters, and has developed
categorical effluent guidelines, which in
many cases necessitate wastewater
recycling. Further, reconstituting and
recycling of low level acid streams has
also been recognized as a beneficial
operation. The Agency believes that
acidic solutions can similarly be
legitimately recovered for the value of
the acid (e.g., acidic solutions from
copper smelting and phosphoric acid
production).6 Although these wastes
may not be "equivalent" replacements
for raw materials, there may be cases
where such recycling provides
considerable economic and/or
environmental benefits. EPA solicits
comments on approaches which could
include such recycling practices as
legitimate.
   ii. Constraints on Nonrecoverable
Hazardous Constituents. As a generally-
  6 EPA in this context will use the term mineral
 to mean all metals, inorganic non-metals (e.g.,
 lanthanides, boron, lithium, phosphorus), and
 acidic solutions produced from primary mineral
 processing.
                          applicable indication, EPA has
                          suggested that sham recycling may be
                          occurring if hazardous constituents
                          different from those normally present in
                          the customarily-used raw materials are
                          present in secondary materials and do
                          not contribute to the recycling process.
                          53 FR at  522 (Jan. 8,1988); 56 FR at
                          7185 (Feb. 21,1991). Similarly, EPA has
                          also suggested that an inference of sham
                          recycling is possible if non-contributing
                          toxic constituents are present
                          significantly in excess of those normally
                          present in virgin materials. 50 FR at 638;
                          53 FR at  522. The reason for the
                          inference is the possibility that the
                          process may be a means of treating and
                          discarding the excess toxic.
                            EPA solicits comment on whether
                          such indications are appropriate in
                          mineral processing and whether there is
                          a need to quantify any such test as part
                          of this rule. For example, if the Agency
                          were to adopt an economic legitimacy
                          test as described in subsection i, should
                          this be an exclusive test such that there
                          is no need to further inquire about the
                          presence of nonrecoverable hazardous
                          constituents.
                            Because the rule would be limited to
                          secondary materials generated within
                          the mineral processing sector, the
                          possibility of substantial concentrations
                          of "non-indigenous toxics"—non-
                          contributing hazardous constituents not
                          found in the usual virgin feedstocks—
                          appears remote. The possibility of build-
                          up of indigenous toxics is a real one, but
                          in many cases would not be an
                          indication of sham recycling. The very
                          act of mineral processing increases the
                          concentration of both the desired
                          mineral  and undesired contaminants in
                          a residue. At the least, so long as the
                          ratio of desired to undesired metal
                          remains  roughly the same as it is in the
                          virgin feedstock to a process unit, a
                          finding of sham recycling would be
                          unwarranted. For example, if a unit
                          normally takes in a feedstock of 5%
                          copper (desirable) and 2% arsenic
                          (undesirable), then a mineral processing
                          secondary material having 10% copper
                          and on the order of 4%  arsenic would
                          still be within the normal operating
                          range of the unit.
                             EPA notes that, like other industries,
                          the mineral processing and
                          beneficiation sectors can use secondary
                          materials as substitutes for finished
                          commercial products used in the
                          process. For example, a secondary acid
                          could be used in lieu of virgin acid
                          under 261.2(e)(l)(ii). This is  in addition
                          to the case where acid is part of the
                          mineral  value and qualifies for the
                          legitimacy test as described in
                          subsection i.
  EPA is concerned, however, of the
possibility of abuse. There are
documented instances, for example,
where "feedstocks" consisting of less
than 1% desired mineral and over 50%
unwanted contaminant—a ratio well
outside that in the normal operating
range—have been allegedly 'recycled'.7
This is apparently disposal. The Agency
thus is seeking comment as to whether
a ratio test—whereby the mineral
processing secondary materials w.ould
have to have a mineral/contaminant
ratio that is within one order of
magnitude of the mineral/contaminant
ratio found in the feedstock—would be
adopted to rule out this type of abuse.
A baseline ratio would need to be
established, which is often performed as
part of the startup operations of a unit.
Weekly or monthly testing of desirable
to undesirable contaminants may be
reasonable for industries that perform
assays of these types of materials on a
daily and sometimes hourly basis.8 (See
Office of Solid Waste, U.S. EPA, Gold,
Copper, Lead/Zinc, and Iron Technical
Resource Documents (July 1994)).  The
Agency realizes that some variability in
testing frequency may be warranted
depending on the, type of unit and
operation. The Agency is soliciting
comment on the frequency of testing
mineral processing secondary materials
to ascertain whether the constituents
fall within the normal operating range.
  The Agency is  not proposing any
specific means of demonstrating that
mineral processing secondary materials
are within this normal operating range.
Rather, consistent with existing 261.2(f),
a facility would have to demonstrate, if
challenged, that the desired minerals in
the secondary material  are being
legitimately recycled.
  iii. No speculative accumulation.
Consistent with existing rules for all
other types'of secondary material
  7 See EPA Site Visit Reports to Mines and Mineral
Processing Facilities, Office of Solid Waste (1995);
Human Health and Environmental Damages from
Mining and Mineral Processing Wastes, EPA Office
of Solid Waste (1995); Mineral.Processing Facilities
Storing Mixtures of Exempt and Non-Exempt
Wastes In On-Site Waste Management Units, EPA
Office of Solid Waste (1995); Identification and
Description of Mineral Processing Sectors and
Waste Streams, EPA Office of Solid Waste (1995).
  8 The necessity for such a test should also be
considered if the Agency adopts the type of
comparison test discussed below in section II.B.
Under this test, wastes significantly affected by the
addition of non-beneficiation materials to a
beneficiation process could lose their Bevill status
because they would no longer be the type of waste
for which the Agency had determined that Bevill
status was appropriate. Were EPA to adopt this test,
it would seem that the test would constrain the use
in Bevill process units of secondary materials with
concentrations of hazardous constituents
significantly different from those found in the
customary raw materials.

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              Federal Register  /  Vol. 61, No.  17 / Thursday,  January  25,  1996  /  Proposed Rules
                                                                        2345
recycling, EPA is proposing that there   •
be no speculative accumulation of
mineral processing secondary materials.
"Speculative accumulation" is a defined
term (see 261.1(c)(8)) meaning
essentially that 75% of a given material
present on the first day of the calendar
year be recovered 9 by the end of the
year, or what remains is a solid waste.
The rules also provide means of
extending the one-year period in
appropriate circumstances, such as a
change in market conditions. 260.31(a).
The burden of showing that sufficient
amounts of material have been
recovered is on the person claiming the
exclusion 261.2(f).
  b. One-time Notification. EPA is
further proposing that mineral
processing secondary materials
generating and recovery facilities
provide EPA (or an authorized state)
with a one-time notification which
describes the mineral processing
materials to be recycled and the
recycling process. The one-time
notification would be submitted by the
operator of the land-based unit and
would generally describe how mineral
processing secondary materials are
being recycled, the location of the
activities, and the annual quantity being
placed in land-based units. EPA expects
this notification to be general in nature
and to provide short paragraph-length
descriptions.
  An amended notification would not
be required unless the facility has
significant process changes affecting the
generation, location, or recovery of
mineral processing secondary materials.
  c. Conditions Relating to Groundwater
Protection. EPA is proposing that a land-
based unit receiving mineral processing
secondary materials not contribute to
significant groundwater contamination
through discard. The general approach
EPA is proposing is to set out in the rule
an environmental performance standard
that would indicate that units cannot be
used as a means of discard and hence
bo part of the waste disposal problem.
This condition could be met in one of
three ways. First, a facility could
demonstrate that it is not polluting
groundwater at levels exceeding the
Maximum Contaminant Level for any
hazardous constituent likely to be in the
secondary materials (the toxic metals
listed in Appendix VIE of Part 261 and
cyanide) at a designated location.
Compliance would be demonstrated by
means of groundwater monitoring. In
the event a release exceeds the MCL, the
unit would be required to perform unit-
specific corrective action to redress the
release. Second, a facility could design
units in a prescribed manner so as to
obviate the need |for any such
demonstration. Third, a facility could
obtain a determination from an
authorized state or (in unauthorized
states) from the Regional Administrator,
that a management practice or
alternative design provides adequate
assurance that the unit provides
effective containment and will not
become part of the waste disposal
problem through discarding. EPA
expects that states may deviate
somewhat from tlie conditions but only
after having made ad hoc
determinations that alternative
requirements are1 protective.
  We discuss below  each of these
alternatives in turn.
  i. Ground Water Protection Standard.
Levels of Contamination. EPA is
proposing'to use, exceedances of a
ground water protection standard as one
measure of significant discarding. This
standard would apply to the hazardous
constituents that are likely to be present
in mineral processing wastes, namely.
the metal constituents in Appendix VIII
of Part 261 (antiipony, arsenic, barium,
beryllium, cadmium, chromium (total),
lead, mercury, nickel, selenium, silver,
and thallium, vanadium) and cyanide.
The corrosivity Standard in § 261.22 also
applies (an aqueous  solution with a pH
equal to or less than 2 or equal to or
greater than 12.5), as well as the
ignitability standard in § 261.21 (some
phosphorous and lithium-bearing
mineral processing secondary materials
spontaneously combust).10 This
standard would bperate for each of the
regulated constituents as follows: (1) if
an MCL is available, the MCL is the
ground water protection standard unless
background concentrations already
exceed the MCL,1 in which case the
background level would become the
standard (so that the unit would not
contribute further to the contamination);
(2) in the absence of an MCL, a state or
tribal risk-based [number (i.e., 10 times
the state or tribal ground water
protection number) would be used for
the regulated constituent (see 258.55(1);
in an unauthorized state, an appropriate
level could be provided by the EPA •
Region under the third alternative, as
discussed below. The level for cyanide
would be 0.2 mg/1  as determined by the
weak acid dissociable (WAD) method.''
  The MCL serves  as a measure of
acceptable drinking water and is the
traditional measure used by the Agency
in its various groundwater protection
programs. (See 258. 55 and .56; 264. 94)
  This would be measured at a
designated location, within 150 meters
of the unit boundary. This is the
maximum distance for a point of
compliance allowed under the Subtitle
D landfill rules. See 56 FR at 50996. A
land-based unit receiving hazardous
mineral processing secondary materials
which causes this much groundwater
contamination and, as explained below,
does not correct the source of
contamination, can realistically be  .
viewed as part of the waste disposal
problem.
   Groundwater Monitoring. Under this
alternative, the Agency is further
proposing that groundwater monitoring
be required to assess the presence of
regulated constituents in'the
groundwater. EPA is proposing that the
ground water monitoring and corrective
action regulations  for municipal solid
waste landfills (MSWLFs) under the
Subtitle D program (Solid Waste
Disposal Facility Criteria, 56 FR 50978,
October 9,1991) be adopted with
modifications for the monitoring and
remediation. In referencing the MSWLF
rule for ground water monitoring and
corrective action activities for units
managing mineral  processing secondary
materials, the Agency is proposing to
adopt only those provisions that are
self-implementing. Thus, any provision
of the MSWLF rule requiring state
approval would not apply.12
   If ground water monitoring is
triggered, owners or operators are
required to undertake a monitoring,
program under § 258.55 of the MSWLF
rule to monitor for only those Appendix
8 metals constituents and cyanide that
are present in the hazardous mineral
processing secondary material prior to
its placement in the unit.
   The ground water monitoring system
must include at a minimum one
  »EPA has-received comment asking whether the
speculative accumulation provision can be satisfied
if initially accumulated materials are removed for
disposal rather than recycling during the course of
Iho year. This is not the Agency's reading of the
provision, nor would such a reading be consistent
with tho purpose of Iho provision. The definition
in fact states that "(ho 75 percent requirement is to
bo applied to each material of the same type. . .
that Is recycled in tho same way..."
  ">In its September 1,1989 rule (54 FR 36592,
36600), EPA stated that it did not believe that
mineral processing wastes were particularly
ignitable or reactive. EPA'has since found that
certain mineral processing wastes are indeed
ignitable and reactiv^ (see Multi-Media Compliance
Investigation of FMC Corporation, Phosphorous
Chemicals, EPA National Enforcement       '
Investigations Center (August 1994).
  "Thisis based on Nevada State Law N.A.C.
§ 445.24342 and § 445.132.
  12 The flexibility provided in the subtitle D rule
to account for site specific circumstances is
provided here as the third alternative means of
showing that a land-based unit is functioning as a
process unit, namely a site-specific determination
from an authorized state of EPA Region that a
specific unit can be designed or operated in a
manner different than that set  out in the
groundwater protection or design alternatives-

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2346        Federal Register / Vol.  61, No. 17 / Thursday, January 25, 1996 / Proposed Rules
upgradient well and three downgradient
wells. The downgradient wells must be
located not further than 150 meters from
the unit boundary. The groundwater
monitoring system must be capable of
ascertaining the background quality of
groundwater and assessing the quality
of groundwater within 150 meters of the
unit boundary, as certified by a
qualified groundwater scientist. See
258.51 (a), (b), and (d).
  hi another proposed departure from
the MSWLF rule, today's proposed rule
does not require facilities to scan for the
§ 258 Appendix II constituents. Rather,
owner/operators under today's rule
would be required to move directly to
assessment of corrective measures upon
detecting that releases are exceeding the
ground water protection standard. The
Agency initially believes that given the
limited number of inorganic
constituents present in these mineral
processing units,  as opposed to the
variability of contaminants often found
in a municipal solid waste landfill, a
second level of assessment would not be
necessary.
   EPA also solicits comment on an
alternative to groundwater monitoring
proposed in the Phase IV rule for
impoundments receiving
 decharacterized wastewaters. There, the
Agency proposed that groundwater
 monitoring would be unnecessary if
 concentrations of hazardous
 constituents in the impoundment were
 less than 10 times the MCL (or
 alternative level). This proposal rested
 on the theory that given normal dilution
 and attenuation,  it would be unlikely
 that any groundwater protection
 standard would be exceeded under
 these conditions. 60 FR at 43669
 (August 22,1995). EPA is uncertain that
 land-based mineral processing units
 would ever be able to satisfy this
 condition. At least some of the metal
 levels would likely exceed 10 times the
 MCL in the unit since these often are
 some of the target metals being
 recovered by the facility. EPA
 nevertheless solicits comment on this
 alternative.
   EPA also requests comments on
 whether alternative downgradient well
 location, such as at the facility boundary
 (i.e., on an across-the-board basis rather
 than on a case-by-case basis, as
 provided in the third alternative
 discussed below), should be considered
 under this alternative. For example,
 criteria based on the potential for
 exposure to humans or sensitive
 ecosystems, and other site-specific
 factors such as topography, climate, and
 hydrogeology, might provide greater
 efficiency in the use of monitoring
 resources. However, these criteria must
                                       be weighed against the preventative
                                       goals of RCRA. EPA seeks comment on
                                       the appropriateness of this alternative.
                                         Corrective Action. In the event of a
                                       release from the unit exceeding the
                                       groundwater performance standard,
                                       corrective action would be triggered and
                                       the facility would have to remediate the
                                       releases so that the standard is no longer
                                       exceeded. In other words, the facility
                                       would have to perform unit-specific
                                       corrective action, namely interdict the
                                       released material and repair the leaking
                                       unit. This condition is consistent with
                                       the distinctions between process and
                                       waste management units: if there are
                                       releases of valuable  feedstock materials
                                       from a process unit, one would expect
                                       the facility to capture releases of its
                                       inventory. Conversely, allowing such
                                       releases to continue indicates that the
                                       unit is being used to discard the mineral
                                       processing secondary material and is
                                       doing so in a manner that is part of the
                                       waste disposal problem.
                                         EPA is not proposing that the land-
                                       based unit becomes a waste
                                       management unit in the event of an
                                       exceedance of the groundwater
                                       protection standard. Rather, EPA is
                                       trying to create an incentive for a facility
                                       to rapidly capture released material and
                                       prevent further leakage. (Cf. 261.33 and
                                       55 FR at 22671 (June 1,1990) (released
                                       commercial chemical products are not
                                       solid wastes if captured and put to some
                                       productive use)). On the  other hand,
                                       depending on the extent, frequency and
                                       time to remediate releases to
                                       groundwater from the unit, the Agency
                                       would retain the option of classifying
                                       the unit as a regulated waste disposal
                                       unit.
                                          Thus, the ability  of a facility to
                                        capture a released material via a
                                        corrective action regime  indicates that
                                        the unit is functioning as a process unit,
                                        and is not operating in a manner
                                        causing the mineral processing
                                        secondary material input to become part
                                        of the waste disposal problem.
                                          As discussed above, today's rule
                                        would also state that once it is
                                        determined that corrective measures are
                                        necessary, the facility would be required
                                        to implement the following: (1) Cease
                                        placement of mineral processing
                                        secondary materials into the unit as
                                        soon as is practical, and (2) use
                                        appropriate design or management
                                        practices which eliminates the threat of
                                        further leaks. Mineral processing
                                        secondary materials could be placed
                                        back into a unit after it has undergone
                                        successful corrective action. If the
                                        owner/operator has taken action to
                                        address minor releases and can affirm
                                        that the unit is again meeting the
groundwater protection standard, no
further corrective action need be taken.
  In the event further remediation
beyond reachieving the groundwater
protection standard is necessary, the
Agency would invoke case-specific
remediation authorities to require such
a remedy. In addition, as noted above,
the severity of a release could also be a
factor in whether to continue to classify
the unit as a process unit.
  ii. Alternatives Based on Unit Design.
EPA is proposing as a second alternative
that any surface impoundments
otherwise covered by the proposal that
are constructed to have the
transmissivity equivalent of a 40 mil
geomembrane liner on a surface of 12
inches of 10-5 hydraulic conductivity
soil would be considered to be process
units and would not have to
demonstrate compliance with the
groundwater protection standard. EPA
is also proposing that for solids in piles
located on concrete, asphalt, or soil any
of which have the equivalent
transmissivity of three feet of clay with
10-7 cm/sec hydraulic conductivity
would not have to demonstrate
compliance with the groundwater
protection standard. If any free liquids
are present in the solids pile, then all
 standards applicable to surface
impoundments would be applicable for
that pile. The Agency believes that this
 is a protective standard for piles based
 in part on § 264.251. The Agency further
 believes that most solids process piles
 from mineral processing meet or exceed
 this standard. (See Office of Solid
 Waste, U.S. EPA, Gold, Copper, Lead/
 Zinc, and Iron Technical Resource
 Documents (July 1994); Site Visit
 Reports to Mines and Mineral
 Processing Facilities, Office of Solid
 Waste (1995); Mining Waste
 Management, California Mining
 Association).
   iii. Site Specific Determinations from
 an Authorized State or By an EPA
 Region. EPA believes that the  ground
 water performance standard or design
 conditions set out above would assure
 that a land-based unit is not operating
 as a means of discarding. However, EPA
 further believes that other more
 appropriate conditions can be
 developed on a unit-by-unit basis to
 address site specific conditions. It is
 critical that the flexibility to account for
 these circumstances be available. The
 Agency has repeatedly recognized that
 "ground water is a uniquely local
 resource due to the ease with which
  small sources can affect it, and the
  impact that use and hydrogeologic
  characteristics can have on its quality."
  Protecting the Nation's Ground Water:
  EPA's Strategy for the 1990's  (USEPA

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               Federal Register / Vol. 61, No.  17 / Thursday, January 25, 1996 / Proposed Rules        2347
 1991). The need for the flexibility to
 take individualized action also is
 inherent in the number of variables
 (such as depth to groundwater, rainfall,
 soil types, and site-specific
 hydrogeological factors) that can
 influence the possibility and extent of
 groundwater contamination. EPA is
 proposing to allow for this necessary
 flexibility by providing that a facility
 can obtain an individual determination
 from an authorized State,  or from a
 Regional Administrator, that its mode of
 operation provides adequate assurance
 that the unit is not serving as a mode of
 discard. Moreover, in States that have
 existing groundwater protection
 programs that apply to a particular unit,
 EPA is proposing that once the program
 is authorized for purposes of this rule,
 State determinations made pursuant to
 that program would serve as an
 adequate measure that land-based units
 receiving mineral processing secondary
 materials are not serving as a means of
 discard.
   EPA thus is proposing that authorized
 state programs can operate in lieu of the
 federal conditions pertaining to
 excessive leakage where the state
 program addresses the mineral
 processing land-based unit and, on a
 case-by-case  basis, is protective. As
 explained more fully below in the
 preamble section on State
 Authorization, EPA would evaluate
 during the authorization process
 whether the state program has  the legal
 authority to control leakage to
 groundwaler from these units,  has
 resources to implement these
 authorities, has the overall object of
 protecting public health and the
 environment from leakage to
 groundwater, provides means for
 detecting and responding to
 groundwater contamination, has
 enforcement  authorities and capabilities
 adequate to implement and to monitor
 compliance with any requirements
 adopted pursuant to the state program,
 and provides for public participation in
 tho process of developing requirements
 for particular land-based units. (As
 stated in the section on authorization
 below, these authorities need not be
 provided solely, or in part, by State
 RCRA authorities. Plenary state
 authorities for aquifer protection, or
 over mining activities generally, for
 example, would be acceptable and
 appropriate.)
  Factors typically to be considered by
 authorized States, or EPA Regions, in
 making site-specific determinations
 would include those set out in  the
 environmental performance standard
 found at 267.10. These include the
volume and physical and chemical
 characteristics of the materials in the
 unit, including potential for release;
 hydrogeologic characteristics of the unit
 and surrounding soils; quantity, quality
 and directions of groundwater flow;
 existing quality of groundwater; and
 potential for damage to humans and to
 the ambient environment. Pathways
 other than releases to groundwater also
 could be taken into account.
   The result of ;a site-specific
 determination thus could be that a
 particular unit can be determined to be
 a process unit without satisfying some
 or all of the conditions in the
 groundwater protection or the design
 alternatives described in the previous
 sections. For example, an authorized
 State or EPA Region could determine
 that a unit located in an arid region with
 a remote water table and distant
 potential receptors could have a
 different compliance point, compliance
 standard or monitoring regime than set
 out in the groundwater protection
 alternative. Some type of design
 different from those set out in the
 proposed design alternative also could
 be determined to be adequate. Any such
 determination would, of course, have to
 be justified basexl on the basis of the
 administrative record developed in
 support of the determination, taking
 into account the factors set out in 267.10
 which are relevant in the particular
 determination, and after considering
 any public comment received.
   d. Issues Related to Unit Closure. As
 discussed earlier, land-based units in
 the mineral processing industry can
 serve as the ultimate repository of the
 unused materials left in them when the
 unit stops operation. EPA is soliciting
 comment on whether there should be a
 mandatory condition that all process
 units must remove hazardous wastes
 remaining in th6 unit at the time the
 unit stops operation. The time for
 removing hazardous wastes could not
 exceed 90 days from when the unit
 ceases operation. This condition would
 be analogous to the requirement
 presently foundiat 261.4(c) whereby
 hazardous wastes that are generated in
 tank and container process units are
 exempt from regulation until they are
 removed from the unit or until 90 days
 after the unit has ceased operating.
  The basis for such a condition is that
 allowing hazardous waste to build up in
 and remain in tfie unit after the time the
 unit is a disposal unit is inconsistent
 with designation of such units as
 process units. See 261.4(c). They would
be serving a classic hazardous waste
 disposal function and could
 consequently beTegarded as part of the
waste disposal piroblem and within the
Agency's Subtitle C jurisdiction. EPA
 notes further, moreover, that it is the
 Agency's experience that hazardous
 metals can be removed while the unit is
 operating so that a facility can assure
 that hazardous wastes are not present in
 the unit when it ceases operation. This
 appears to serve the goal of hazardous
 waste minimization through recycling.
 RCRA § 1003(b). EPA also solicits
 comment on the feasibility of such
 practices.
   e. Issues Related to Basic Unit
 Integrity. EPA is soliciting comment on
 whether an additional condition of basic
 integrity is warranted. Here, EPA desires
 to assure that land-based units function
 as process units in that the units have
 basic design integrity and is not
 indiscriminately leaking or otherwise
 dispersing their contents. The general
 theory is that a unit of any type which
 is not designed to prevent wholesale
 releases is serving as a disposal unit. For
 example, a raw material tank without a
 bottom could be viewed as  a disposal
 unit because its contents would
 necessarily be disposed every time
 material is placed in the tank. Similarly,
 a land-based unit designed so that
 significant portions of materials in the
 unit will escape need not be classified
 as a process unit. Put another way,
 secondary materials put into land based
 units designed so that there will be
 significant releases of those materials
 can be viewed as wastes because of the
 significant element of discard inherent
 in the defective design.
  The Agency believes that the land-
 based process unit should be designed
 to contain the secondary materials
 placed in it. Land based process units
 vary in design, liners, and materials of
 construction. For example, some units
 are located on solid bedrock, some use
 compacted clay, while others use 40-mil
 or greater synthetic liners on top  of
 impermeable soils. Agency review of
 various types of mine waste
 management units has found that most
 are designed to meet at least 10-6 cm/
 sec permeability, using varies methods
 of soil thickness and compaction.13
  For these purposes, basic integrity
 would mean that the land-based unit
 meets the equivalent permeability
 standard of 10-6 cm/sec using 3 feet of
 compacted clay. An infiltration pond, or
 a unit that is lined with compacted silt
 with a hydraulic conductivity of 10-5
 cm/sec thus would not meet EPA's basic
 integrity standard. The consequence of
 failing this design integrity standard
would be that the hazardous secondary
materials received by the unit would be
  13 Ian P.G. Hutchison, Richard D. Ellison, Mine
Waste Management, California Mining Association,
Lewis Publishers Inc. (1992).

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2348	Federal Register / Vol. 61, No.  17 / Thursday, January 25, 1996 / Proposed Rules
solid and hazardous wastes, and the
unit itself would be a type of disposal
unit. This accords with what would
actually be occurring: wholesale and
foreseeable release of the materials due
to the unit's design.
  This basic unit integrity would be an
additional condition to the other
conditions of the groundwater
performance standard as described in
subsection c. i and also in addition to
the ad hoc determinations made by the
state or EPA region as described in
subsection c. iii. However, this basic
unit integrity standard would not be
applicable to the unit design alternative
in subsection c. ii since the integrity of
this alternative already surpasses the
basic integrity test.

G. Units and Secondary Materials
Outside the Scope of this Proposal

1. Wastewater Treatment
Imp oundments
  In distinguishing between process
units and waste management units, EPA
is proposing that wastewater treatment
impoundments not qualify as process
units. Thus, any surface impoundment
whose discharge is ultimately regulated
under the Clean Water Act's NPDES
regime, including units subject to zero
discharge requirements and emergency
bypass permit conditions, would not be
eligible for consideration as a process
unit. Even if some portion of the
mineral processing secondary material
going into such units may be recycled
back into a production process, the
essential purpose of these units is waste
management rather than production.
See 59 FR at 58936 (July 28, 1994)
where EPA made similar findings
regarding wastewater treatment units in
the petroleum refining industry. The
D.C. Circuit has in fact held that
wastewater treatment impoundments
can be classified as waste management
units, notwithstanding that all of the
entrained solids in the unit are
eventually recycled as feedstock. AMC
II, 907 F. 2d at 1186-87.

2. Secondary Materials Generated by
Outside Industries and Listed
Hazardous Wastes
  The National Mining Association
(NMA) has proposed that the Agency
provide an exclusion for metal-bearing
secondary materials from outside
industries (e.g., electroplating sludge
from the metal finishing industry, F006)
that are processed within the primary
mineral processing industry. The focus
of this request is the reclamation of
listed hazardous wastes, since
characteristic byproducts and sludges
being reclaimed are currently excluded
from the definition of solid.waste. The
NMA's position is that, in general, these
listed hazardous wastes can have
recoverable levels of metals similar to
normal feedstock, that the management
of these materials is environmentally
sound, and that EPA should encourage
this type of recycling.
  First, as a prudential matter, such a
request is beyond the scope of this
rulemaking. EPA is proposing to amend
the solid waste definition specifically
for the mineral processing industry at
this time in order to most accurately set
out the scope of the land disposal
prohibition and treatment standard for
mineral processing wastes. The
schedule for establishing these LDR
standards is established in a proposed
consent decree and leaves the Agency
very little time to complete the task.
Since non-mineral processing materials
would not be subject to these LDR
standards, EPA sees no need to consider
the issue at this time. It is more
appropriately dealt with under the
Agency's comprehensive efforts to
amend the regulatory definition of solid
waste described in the last paragraph of
this preamble section.
  The Agency notes further that, in
many cases, metal-bearing secondary
materials (including wastes that have
been specifically listed as hazardous
wastes) from other industries may be
suitable feedstocks to a metal recovery
process and that one goal of RCRA is to
encourage environmentally sound
recycling. The Agency also notes,
however, that as a legal matter the
processing of wastes generated by a
separate industry is a different situation
than the "continuous on-going"
processing of secondary materials
within the same industry, lacking the
element of continuity of production
inherent in the continual multi-step
processing of virgin ores into a variety
of end products (see API v. EPA, 906 F.
2d at 741-42). The recovery of metals
from hazardous wastes generated by an
outside industry thus more arguably
involves the management of wastes.
  In addition to limiting the scope of
materials to those secondary materials
generated within the primary mineral
processing industry, the Agency is also
proposing that secondary materials
generated within the mineral processing
industry that have specifically been
listed as hazardous wastes (e.g., K061—
emission control dust/sludge from the
primary production of steel in electric
furnaces, and K088—spent potliners
from primary aluminum reduction)
remain subject to regulation as
hazardous wastes, even when processed
within the mineral processing industry.
The process of listing a secondary
material as a hazardous waste includes
an evaluation of the manner in which
the material is managed and the
potential for the material to cause harm
to human health and the environment.
When a secondary material is found to
be typically managed through recycling,
the Agency evaluates whether such
processing constitutes continuous on-
going manufacturing or waste
management, hi other words, by listing
a secondary material as a hazardous
waste, the Agency has made a specific
determination that the material is a
solid waste, even when recycled. The
Agency has in fact evaluated each listed
waste against the criteria set out at 50
FR at 641 and 53 FR at 526-27 and
determined that all of the listed wastes
should still be classified as solid and
hazardous wastes when recycled by
reclamation. (See Background
Document to the January 8,1988
proposed rule "Summary Table: Effect
of the Revised Solid Waste Definition on
Whether Reclaimed Sludges and By-
Products are Solid Wastes" F-88-
SWRP—S0006).
  While EPA is not  taking the position
that the regulatory status of a material
listed as hazardous waste is beyond
reconsideration, the Agency is stating
that such a review is beyond the scope
of this rulemaking. The proposed
modification to the definition of solid
waste is very broad, potentially allowing
for the cross-transfer of secondary
materials from considerably different
mineral processing sectors. (The Agency
notes that in this proposal, EPA is
putting forward and seeking comment
on an expansive definition of "mineral
processing industry"—comprising over
40 mineral sectors I4—in order to
encourage and facilitate the protective
recycling of valuable constituents from
secondary materials that would
otherwise be discarded, an approach
that EPA believes to be at the Agency's
discretion,  and that goes beyond the
concept of secondary materials that are
"destined for beneficial reuse or
recycling in a continuous process by the
generating industry itself enunciated
by the court in AMC I, 824 F. 2d at 1186.
Therefore, the Agency believes that the
exclusion should not, in this
rulemaking, extend to those materials
that have already been specifically
evaluated and defined by rulemaking as
solid wastes subject  to RCRA Subtitle C
regulation.  Thus, the scope of the
proposed exclusion  for secondary
materials generated and processed
  '"A detailed description of 41 mineral
commodities are presented in Identification and
Description of Mineral Processing Sectors and
Waste Streams, EPA Office of Solid Waste 1995.

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              Federal  Register / Vol. 61, No.  17 / Thursday,  January 25, 1996 / Proposed Rules         2349
within the mineral processing industry
does not include listed hazardous
wastes, even those listed wastes
generated within the mineral processing
industry.
  EPA (working in conjunction with
State regulatory agencies) is currently
involved in an effort to reevaluate the
definition of solid waste and the
regulations applicable to hazardous
waste recycling. The goal of this effort
is to simplify and clarify the existing
definition of solid waste, as well as to
encourage environmentally sound
recycling. Given that the suggestion
presented by the NMA (i.e., the
recycling of listed hazardous wastes
generated by an outside industry as
feedstock into their normal mineral
production processes) is typical of
hazardous wastes being recycled by
"normal" production processes, the
Agency believes it is more appropriate
to address such a scenario in the context
of the overall effort to redefine the
definition of solid waste. In the interim,
the existing regulatory framework will
continue to apply to secondary
materials generated by outside
industries, as \vell as to all listed
hazardous wastes, being processed by
the primary mineral processing
industry. Thus, characteristic sludges
and byproducts generated by outside
industries being reclaimed by the
mineral processing industry will
continue to be excluded from the
definition of solid waste; spent
materials generated by outside
industries, as well as all listed sludges
and byproducts being reclaimed will
continue to be regulated as hazardous
wastes. Today's proposed amendment to
 the definition of solid waste addresses
 only those characteristic secondary
 materials that are both generated and
 processed within the primary mineral
 processing industry.
 H. Alternative Approaches
   EPA has also evaluated other
 potential approaches for dealing with
 issues of solid waste classification of
 mineral processing secondary materials.
 The Agency is also seeking comment on
 these alternatives.
 1. Status Quo
   One alternative approach is to not
 make any changes to the definition of
 solid waste and simply apply applicable
 waste treatment standards to mineral
 processing materials currently defined
 as solid and hazardous wastes. Efforts to
 amend the regulatory definition could
 be undertaken as part of the Agency's
 longer-term effort to address this issue
 comprehensively.
  This approach would thus retain the
distinctions between characteristic
byproducts, sludges, and spent
materials, at least for now. For reasons
stated earlier, the Agency believes that
these rules can be improved, and in
particular that this type of material-by-
material classification is inappropriate
for the mineral processing industry. In
addition, strict adherence to current
Subtitle C rules piay mean that mining
companies would forgo legitimate
recovery of these secondary materials.
Thus, the Agency also believes that this
is an overly restrictive approach.
   Finally, as a prudential matter, since
the Agency must necessarily develop
land disposal prohibitions for mineral
processing wastes at this time, the
Agency believes it best, if at all possible,
to deal with the jurisdictional issue at
the same time, so that the scope of the
prohibitions is clearly established.
2. Apply Solid Waste Changes Only to
Spent Materials
   Under this alternative, the Agency's
proposed approach in Section I would
only apply to spent materials as
currently defined in 261.1. The current
classification of byproducts and sludges
would remain the same. While EPA
believes that this approach may
encourage recovery of mineral
processing spent materials that would
otherwise be abandoned, it still
maintains the unnecessary and
potentially arbitrary distinctions among
characteristic byproducts, sludges, and
spent materials; It also does nothing to
address risks from byproducts and
sludges in land-based units engaged in
recovery whichj are serving as means of
 disposal and hence part of the waste
 disposal problem.
   On the other hand, this proposal
 would only remove the existing
 regulatory distinction between exempt
 sludges and byproducts and spent
 materials for mineral processing wastes
 and therefore create an inconsistency
 with how other wastes streams are
 treated. EPA plans to address the issue
 more generally} in a forthcoming
 rulemaking on the definition of solid
 waste. It may be argued that the present
 distinction shojuld be maintained for
 mineral processing wastes until the
 issue is resolved in  the broader
 rulemaking. EPA is therefore seeking
 comment on th|is alternative.

 3. National Mining Association
 Approach    i
   The National Mining Association
 (NMA) provided the Agency an August
 31,1995 draft proposal for addressing
 secondary materials from mineral
 processing (see Docket No. F-95-PH4A-
FFFFF). NMA's approach proposes
three categories of materials which
would not be considered solid wastes.
The first categorical exclusion is for
mineral processing secondary materials
which can be substitutes for or
supplements to feedstocks in a mining
or mineral processing operation. These
materials would be considered either
co-products, intermediates, or in-
process which and would be excluded
under the regulatory definition of solid
waste and hence Subtitle C regulation,
whether or not managed in land-based
units.
   The second delineated category are
secondary metal-bearing materials that
do not meet the criteria set forth for the
first category for in-process materials
but which may still contain
economically recoverable mineral
values and thus can be used in and
returned to a beneficiation or mineral
processing unit. For NMA's second
category "such mineral or metal-bearing
secondary materials are not subject to
RCRA Subtitle C and are excluded as
long as the materials: (1) are in-process
or utilized in an ongoing production
process, and not discarded or intended
for discard; (2) are managed or handled
in a manner comparable to or consistent
with virgin ores, raw materials, or
feedstocks in production or raw material
units or ore staging units; (3)  contain a
metal content that is comparable to or
above the normal range of virgin ores or
feedstocks, contain levels of minerals or
metals recoverable by the technology
being employed, or contain materials
necessary to be an effective substitute
 for commercial products; (4)  are not
 accumulated for more than 18 months
 without being used or processed in a
 primary production or recovery process
 (if they are accumulated beyond 18
 months, provisions like those of the
 "speculative accumulation" rule, which
 continues to exist as a regulatory
 requirement, will apply); and (5)  are not
 indiscriminately spilled or leaked into
 the environment, as long as any
 significant spill or leak of such materials
 is promptly addressed and returned to
 the production unit." IS (National
 Mining Association Draft Proposal, p.
 10, August 31, 1995).
   Finally, NMA proposes a third
 category called "extra-industrial"
 materials. These are hazardous
 secondary materials generated in
 industries other than the mining  and
 primary mineral processing industry
   15 It should be noted that NMA, in suggesting a
 conditioned exclusion approach for these 'Category
 2' materials, still maintains its legal argument that
 such materials are absolutely excluded from subtitle
 C jurisdiction because they are not "discarded"
 within the meaning of AMCJ.

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2350
Federal Register / Vol.  61,  No. 17  /  Thursday, January 25, 1996 / Proposed Rules
that may be utilized in primary mineral
processing operations. Under this
approach, as long as the material is
managed in a manner consistent with
raw materials or feedstocks, it is not
further regulated under RCRA Subtitle
C. Such materials could not, however,
be managed in land-based units.
  There are certain similarities between
NMA's suggested approach and that
proposed by the Agency. In particular,
the approach to Category 2 materials,
although differing with respect to many
details, appears similar conceptually to
the Agency's proposal in the use of
exclusions conditioned on some level of
assurance that land-based units are not
utilized as means of disposal. The chief
difference is that NMA's proposal
would exclude from jurisdiction an
appreciable class of materials. Many of
these can fall along the waste-like end
of the management continuum
discussed earlier, in terms of proximity
to the process, immediacy of recovery,
and value of material. For example, not
all furnace bricks from copper smelters
are recycled back through a
beneficiation mill. Some copper
smelters dispose of these bricks in on-
site landfills, while others may wait
years before recycling them. In addition,
Category 1 materials have been managed
in ways that are part of the waste
disposal problem, due to their
placement in land-based units. For
example, smelter flue dusts at some
primary mineral processing facilities
have caused significant environmental
damages (see Mining Sites on the
National Priorities List, Office of Solid
Waste 1995; Human Health and
Environmental Damages from Mining
and Mineral Processing Wastes, EPA
Office of Solid Waste 1995).
   Nevertheless, EPA specifically solicits
comment on crafting an exclusion for
in-process materials incorporating some
of the concepts of NMA's Category 1.
Such an exclusion could reflect the
following principles: such materials
would be returned for recovery to the
process from which they are generated
(see existing 261. 2 (e)(l)(iii) which
already contains a similar exclusion);
they would be managed in a timely
fashion contiguous to the process unit
such that they are an integral part of the
process; materials managed in surface
impoundments could not be eligible for
outright exclusion. In addition, basic
conditions as to recovery being
legitimate and no speculative
accumulation occurring would apply.
   With respect to NMA's third category
of secondary materials outside of the
mineral processing industry, the Agency
is deferring any proposal for changing
the regulatory status to the larger
                         Agency efforts on Definition of Solid
                         Waste (see preceding discussion on
                         secondary materials outside the scope of
                         this rule above).

                         4. Iron and Steel Industry Approach
                            As part of EPA's Common Sense
                         Initiative for the iron and steel industry,
                         the Specialty Steel Industry of North
                         America, the Steel Manufactures
                         Association, the American Iron and
                         Steel Institute, and the Metals Industry
                         Recycling Coalition provided EPA a
                         June  27,1995 draft approach for
                         redefining solid wastes (see Docket No.
                         F-95-PH4A-FFFFF). This approach
                         calls  for flexible minimum management
                         standards to be met which conditionally
                         exclude recyclable materials from the
                         definition of solid waste. This approach
                         would require a Facility Operating Plan
                         which includes: a spill prevention plan
                         and procedures; types, quantities, and
                         analysis of recycled materials; product
                         specifications; speculative accumulation
                         and storage requirements; closure plan;
                         and recordkeeping and reporting for off-
                         site shipments. A one time notification
                         to EPA and State would be required,
                         with a renewal of notification for
                         material changes. The notification
                         would be available for public review in
                         EPA  files.
                            Conditional exclusion would apply
                         only to secondary mineral processing,
                         i.e., those facilities that use scrap metal
                         for over 51 percent of feedstocks.
                         Hazardous waste manifest would be
                         required for off-site shipments.
                         Secondary materials must be stored in a
                         manner to prevent release into the
                         environment such as on asphalt or
                         concrete pads.
                            Secondary materials could not be
                         stored for longer than 12 months.
                         Increase in inventory of quantity stored
                         must have a reasonable market
                         justification. Land applied products
                         produced from a secondary material
                         may  not be used unless the product
                          satisfies EPA's current use constituting
                          disposal regulations.
                            It should be noted that the Agency is
                          not endorsing the Iron and Steel
                          Industry approach at this time. It is
                          discussed here for the  purpose of
                          soliciting comments from other parties.
                          Also, the Agency has summarized here
                          only certain parts of this approach.
                          Commentors are encouraged to review
                          the Iron and Steel Industry's entire
                          document, which is available in the
                          RCRA docket.

                          5. Alternatives Suggested by
                          Environmental Groups
                            Representatives of environmental
                          groups have also suggested alternatives
                          to EPA's proposal. As noted earlier,
their basic legal argument is that land-
based units have sufficient nexus with
disposal to be within RCRA jurisdiction.
They also have suggested specific
changes to the approach EPA is
proposing today.16 In particular, they
suggest further conditions relating to
use of land-based units. To be
considered process units, an owner
operator would need to demonstrate to
an authorized State or to EPA that the
facility routinely manages virgin
materials in land-based units and that
there are no practical alternatives to use
of land-based units for secondary
mineral processing materials. They also
suggest a no backsliding condition:
facilities not using land-based units
before the rule became effective could
not add land-based process units
thereafter. Finally, they suggest that
eligibility for being process units hinge
on control of releases via pathways
other than groundwater contamination,
and thus include conditions to prevent
releases to air and surface water.
  The Agency solicits comment on
these points. We note, however, that the
Agency does not, on initial
consideration, favor case-by-case
adjudication of the practicality of use of
land-based processing units. This would
appear to be cumbersome and difficult
to administer. The suggested
backsliding provision might have
associated administrative difficulties as
well, when dealing with such questions
as incremental expansions or allowing
alternatives for existing facilities
commencing a different type of
production activity. With respect to
releases via exposure pathways other
than groundwater, the Agency notes that
releases to surface waters are already
regulated under the Clean Water Act,
and releases to ambient air are either
controlled or potentially controlled by
the Clean Air Act. In addition, such
pathways would be amenable to control
if needed under the case-by-case
alternative for satisfying the process
unit condition, as discussed above.
Although RCRA authorities certainly
can and do apply to these types of
exposure pathways, the Agency does
not initially believe they are the critical
ones for assessing in every situation
whether the mineral processing unit is
functioning as a process unit. EPA
solicits further comment on these
points, however.
  16 Memoranda documenting the specific
 comments received from representatives of these
 groups (which include the Environmental Defense
 Fund) are part of the record for this proposed rule.

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              Federal Register / Vol. 61, No.  17 / Thursday, January 25, 1996  / Proposed Rules
                                                                      2351
II. Addition of Mineral Processing
Secondary Materials to Units
Processing Bevill Raw Materials
A. Introduction
  This section of the preamble
considers a similar fact pattern to the
one just discussed. Metal-bearing
mineral processing secondary materials
ore added to a process unit, except that
instead of a  process unit in the mineral
processing industry, the addition is to a
unit involved in beneficiation. Such a
unit, considered without the addition of
the mineral  processing secondary
materials, is thus processing Bevill raw
materials, and the wastes from the unit
would be exempted from Subtitle C
regulation by the Bevill amendment
(section 3001 (a)(3)(A)(ii), codified at
261.4(b)(7})  and the Agency's 198
regulatory determination. The issues
addressed here are whether the addition
of mineral processing secondary
materials changes the status of the
resulting wastes from Bevill to non-
Bovill, and whether addition of mineral
processing secondary materials converts
the status of a process unit into a waste
management unit.
  The Agency's initial view is that these
questions cannot be considered apart
from the existing Bevill determination.
EPA has already determined that the
wastes from these processes should not
be controlled under Subtitle C. 51FR
24496 July 3,1986 (upheld in
Environmental Defense Fund v. EPA,
852 F.2d 1309 (D.C. Cir. 1988)).
Although this determination can be
reconsidered, and altered if appropriate,
if the determination is to be
reconsidered, it should be addressed
directly pursuant to the Bevill
determination criteria set out in section
8002, not through a potentially back-
door route.  Change in status of wastes
or a unit due to addition of mineral
processing secondary materials could be
such a back-door route.
B. When Wastes From Co-processing
Retain Bevill Status
  EPA is thus proposing that wastes
from beneficiation units that also
receive metal-bearing secondary
materials for legitimate recovery retain
their Bevill  status, subject to the
following conditions, all designed to
assure that the wastes remained the type
that the Agency determined to exempt
from Subtitle C. First, the wastes need
to result from operations that process
greater than 50% beneficiation raw
materials. This is the standard condition
EPA applies to all of the Bevill
categories to distinguish when wastes
result from  the enumerated activity
exempted by Congress. See 56 FR at
7198 February 21,1991; 50 FR at 49190
November 25,1985; 54 FR at 33620 '
September 1,1989; Horsehead Resource
Development Co. ~y. Browner, 16 F.3d
1246,1256 (D.C. Cir. 1994) (upholding
this test); Solite Corp. v. EPA, 952 F.2d
473, 491 (D.C. Cir,. 1991) (upholding this
test). Second, addition of the mineral
processing secondary could not be used
as a means of surreptitious disposal.
Consequently, the Agency would
require the same quantified test for
legitimate recycling set out in the
previous section. In addition, case-by-
case determinations of sham recycling
could also be made, as explained above.
  EPA also solicits comment on
whether to adopt Ja quantified test to
assure that addition of mineral
processing secondary materials does not
have a significant effect upon the wastes
resulting from the process, so that the
wastes remain the type EPA determined
warranted Subtitle C exemption. EPA
has.already adopted such a test with
respect to wastes generated from Bevill
devices co-processing hazardous waste
with Bevill raw materials, stating in
essence that the resulting wastes (for
example, cement kiln dust from a
cement kiln burning hazardous waste
fuel) retain Bevillj status so long as their
content is not significantly affected by
the hazardous waste management
activity. "Significantly affected" is
assessed on the basis of either a
statistically significant increase in
concentrations of hazardous
constituents (or increase in leachable
concentrations) over the non-waste
baseline (i.e. the baseline being the
wastes that would result if hazardous
wastes were not co-processed) or
environmentally Significant increase in
concentrations of hazardous
constituents (or increase in leachable
concentrations). See 266.112.
   Mineral processing industry
representatives have criticized applying
this test here, on both technical and
legal grounds. Thiey contend that there
are difficulties mjmeasuring the
contaminants apportioned to the Bevill
unit through mineral processing; that
the undesirable contaminants are
concentrated through mineral
processing and effectively passed
through the Bevill unit in sufficient
volumes such that Bevill materials may
be affected over IJDng periods of time.
They further object on the basis that
these mineral processing secondary
materials are in-process intermediates
which are not solid waste and therefore
not subject to RCRA jurisdiction (see
Oct 2,1995 meeting National Mining
Association notes, RCRA Docket F-95-
PH4A-FFFFF). The legal objection is
that the situation here is not analogous
to that in § 266.112 because the
secondary materials come from
beneficiation and do not result from
commingling with a hazardous waste
treatment residue.
  EPA's initial view is that the situation
discussed here is sufficiently similar to
that dealt with in § 266.112 that some
type of comparability test to ascertain
that resulting wastes have not been
significantly affected is desirable. As
discussed earlier, although the proposal
would not classify mineral processing
secondary materials as hazardous
wastes per se, they are coming from a
different industry segment than
beneficiation, can contain higher
concentrations of and different
hazardous constituents than are found
in beneficiation raw materials, and can
be managed in land-based units. At
some point, if waste resulting from such
activities "is 'significantly affected,' it is
no longer just [beneficiation waste], but
[beneficiation waste] plus" the other
hazardous component. Horsehead
Resource Development Co., 16 F.3d at
1258.
  The Agency is soliciting comments on
alternative methods for determining
whether a Bevill waste has been
significantly affected (i.e., made
significantly more hazardous) by the
introduction and re-processing of
mineral processing secondary materials.
The Agency recognizes that the ability
to determine whether a Bevill waste has
been significantly affected may be more
difficult for some Bevill units,
especially copper dump leaching.  In
this case, acid solutions from non-
mineral processing sources are
continuously added and circulated
through the process making it difficult
to apportion the contribution of
contaminants from Bevill and non-
Bevill sources over time. The Agency
seeks comments on how to determine
significant changes to the Bevill waste
in these types of situations. One option
could be to wait until the Bevill unit
ceases activity before making the
determination that the wastes in the
unit qualify for the Bevill exclusion.
However, the Agency still generally
believes that beneficiation wastes  are
generated in such large quantities  that
the introduction of contaminants from
mineral processing secondary materials
should not result in significantly
changing the hazardousness of the
Bevill waste.
  Provided these tests are met, the
Agency is proposing that resulting
residues retain Bevill status. We
reiterate that in these situations the
wastes remain the type of waste EPA
has determined should not be regulated
under Subtitle C.

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2352         Federal Register  / Vol.  61,  No. 17  /  Thursday, January 25,  1996 / Proposed  Rules
C. Status of Units Receiving Mineral
Processing Secondary Materials
  EPA is further proposing that so long
as mineral processing secondary
materials introduced into beneficiation
units are being legitimately recycled,
then no further conditions would apply
to those units. The Agency is thus not
proposing conditions distinguishing
when beneficiation units are truly
functioning as process units (the issue
discussed in the previous section of the
preamble). As explained above, to do so
would appear to undermine EPA's
existing determination that any wastes
from the unit—which would include
leakage from the unit—are to be
accorded the Bevill exemption. The
addition of mineral processing
secondary materials is not changing the
character of the material discarded from
the unit. EPA does not see why it
should seek to condition addition of
mineral processing secondary materials
to the unit when the Agency has found
it unnecessary to develop controls
directly as part of the Bevill
determination. EPA solicits comment on
this issue, however.

D. Mixing of Mineral Processing
Hazardous Wastes With Bevill Wastes
  EPA is further proposing that if any
mineral processing hazardous waste, or
indeed any hazardous waste, is
disposed with, mixed with, or otherwise
combined with a Bevill waste, the
resulting waste is regulated under RCRA
Subtitle C (or, in the situation where the
mixture results in elimination of a
characteristic, that the activity be
regulated as a form of treatment subject
to regulation  under Subtitle C). This
situation differs from that discussed
above. Mineral processing secondary
materials are not being recycled, but are
simply being disposed. They are not
being co-processed with raw materials,
but being mixed with wastes. The
Agency is proposing that Bevill wastes
not be allowed as an unregulated
dumping ground for normal Subtitle C
hazardous wastes. Cf. Horsehead
Resource Development Co. v. Browner,
16 F. 3d at 1258 ("it simply makes no
sense to permit Bevill devices to become
inadequately regulated dumping
grounds for hazardous materials").
Environmental releases of Bevill-exempt
wastes are well documented and the
Agency is concerned about the potential
human health and environmental risks
due to increased hazardous constituents
resulting from mixtures of hazardous
waste with Bevill-exempt wastes. (See
Human Health and Environmental
Damages from Mining and Mineral
Processing Wastes, EPA Office of Solid
Waste 1995). Also of concern is Bevill-
exempt waste direct contact and
ingestion, when used as soil
supplements, fill materials, and for
landscaping purposes.

1. Background
  The Subtitle C rules state generally
that mixtures of listed wastes and solid
wastes remain hazardous until delisted.
Mixtures of characteristic wastes and
solid wastes stop being hazardous when
the resulting mixture no longer exhibits
a characteristic, although the mixing is
normally a form of RCRA treatment
because it is designed to render the
waste non-hazardous or less hazardous.
See generally 261. 3 (a)(2)(iv) and (d)
and the definition of "treatment" in 260.
10. More basically, placement of
hazardous waste in a storage or disposal
unit is ordinarily regulated under
Subtitle C,  even if there is also non-
hazardous waste in the unit. RCRA
section 3004 (a) and 264. 170 and 264.
300. These rules were promulgated in
1980. EPA  did not specifically address
their applicability when the waste being
mixed with a hazardous waste was a
waste exempted under the Bevill
amendment.
  EPA took up that issue in 1989. 54 FR
36592 (September 1,1989). EPA stated
in that rulemaking that the mixture rule
does apply to mixtures of listed wastes
and Bevill-exempt solid wastes. The
Agency further stated that mixtures of
characteristic hazardous waste and ,
Bevill-exempt solid wastes, which
mixtures exhibit a characteristic, would
be subject to Subtitle C unless (1) the
resulting mixture did not exhibit any
characteristic, or (2) the mixture
exhibited a characteristic imparted to
the mixture solely from the Bevill-
exempt portion. 54 FR at 36622 and
36641. The Agency also exempted from
any requirement pertaining to treatment
situations where characteristic wastes
were mixed with Bevill-exempt wastes
where the resulting mixture no longer
exhibited a characteristic. EPA did so
largely to avoid regulating situations
where characteristic mineral processing
materials were added to production
processes and mixed with Bevill raw
materials (a situation being addressed
elsewhere in this proposal, as discussed
in the preceding subsection). 54 FR at
36622 and 36641.
  These rules were challenged and
remanded as part of the 1991 So7/te
decision, the panel deeming the issue to
be controlled by the court's decision in
Shell Oil dealing with the general
mixture rule (Solite Corp. v. EPA, 952 F.
2d 473, 493-94 (D.C. Cir. 1991)). EPA
reinstated this so-called Bevill mixture
rule as part of the emergency
reinstatement of the mixture and
derived-from rules. 57 FR 7628 March 3,
1992. This reinstatement was later
found to be procedurally defective in
Mobil Oil v. EPA, 35 F.3d 579 (D.C. Cir.
1994) where the court vacated the rules
applicable to the mixing of
characteristic hazardous waste with a
Bevill waste. EPA in this proposal is
responding to the  court's mandate in
that opinion.

2. Proposed Amendments to Bevill
Mixture Rule
  EPA is proposing here to have all
normal Subtitle C consequences apply
when hazardous wastes are  disposed
with, stored with, mixed with or
otherwise combined with Bevill-exempt
solid wastes. If a listed waste is mixed,
the resulting mixture is a Subtitle C
hazardous waste unless delisted. This is
the same result for mixing a listed
hazardous waste with any solid waste
(see 261.3(a)(2)(iv)). If a characteristic
waste is mixed with a Bevill-exempt
solid waste, and the resulting mixture
exhibits the characteristic of the
hazardous waste, the resulting mixture
would be a Subtitle C hazardous waste.
If the resulting mixture does not exhibit
a characteristic or exhibits only the
characteristic of the Bevill waste, the
activity would be treatment normally
requiring some type of RCRA control.
Moreover, the unit to which the
characteristic hazardous waste (i.e. the
non-Bevill waste) is added would be a
regulated unit due to the initial
placement of hazardous waste l7, as well
as by virtue of the treatment activity.
  EPA is taking this position so that
Bevill-exempt wastes are not used as a
means for regulated hazardous wastes to
avoid the Congressionally prescribed
controls for hazardous wastes. The
Bevill exemption is not meant to
provide a harbor for other hazardous
wastes and EPA is concerned about the
degree of mixing that occurs for some  '
mineral sectors (see Mineral Processing
Facilities Placing Mixtures  of Exempt
and Non-Exempt Wastes in On-Site
Waste Management Units; Human
Health and Environmental Damages
from Mining and Mineral Processing
Wastes, EPA Office of Solid Waste 1995)
EPA Office of Solid Waste 1995). The
Agency is, of course, altering somewhat
its 1989 position which allowed some
mixed characteristic/Bevill-exempt
mixtures to avoid Subtitle C
consequences, but, as explained above,
the Agency did so largely to allow
characteristic mineral processing
secondary materials to be mixed in
  17 See, e.g., Chemical Waste Management v. EPA,
 976 F. 2d at 20 n. 4.

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              Federal Register / Vol. 61, No. 17 / Thursday,  January 25, 1996 / Proposed  Rules         2353
Bevill process units. The Agency is
addressing this situation directly in
today's proposal in the provisions
dealing with solid waste classification
issues. The remaining situations deal
with classic waste disposal, storage,
treatment, or mixing, without any nexus
to recycling or production, and the
Agency 5s convinced that it is
inappropriate for the Bevill exemption
to apply outside the Bevill context in
such circumstances.
  EPA also notes that the mixing
principles proposed here are consistent
with the boiler/industrial furnace rules
dealing with co-processing of hazardous
waste fuels and Bevill raw materials,
and subsequent classification of
resulting wastes. As discussed earlier,
the Agency there adopted a test whereby
resulting wastes would retain Bevill
status if they were not significantly
affected as a result of the co-processing.
See 266.112 and section II.C above. That
situation, however, does not involve
mixing of wastes, but mixing of
treatment residue (the hazardous waste
fuel combustion residue) with raw
materials in a production process
(whose air emissions, moreover, are
regulated under Subtitle C standards).
The situation in the present proposal is
simple mixing of a hazardous waste
with another waste, and none of the
competing considerations raised by co-
processing/recycling situations apply.
Examples
  The following examples illustrate
how the proposed mixture principle
would apply.
  Example 1: Facility A generates F001
listed solvents which it mixes with a
solid waste that has Bevill-exempt
status.
  Tho resulting mixture is a Subtitle C
hazardous waste unless and until it is
dolistod. The unit where the wastes are
combined is a Subtitle C regulated unit.
  Example 2: Facility B generates a
characteristic ignitable solvent which it
adds to a surface impoundment
containing solid waste that has Bevill-
oxempt status and also exhibits the
toxicity characteristic for lead. The
resulting mixture exhibits the toxicity
characteristic for lead but is not
ignitable.
  The addition of the ignitable waste to
the impoundment makes the
impoundment a regulated unit. It is
engaged in both treatment (removal of
the ignitability characteristic) and
disposal (the initial placement of the
ignitable waste; see RCRA section 3004
(K)). The impoundment would thus have
to obtain a Subtitle C permit to operate.
In addition, land disposal restriction
requirements would apply to the
placement of the ignitable waste in the
impoundment. The remaining wastes in
the unit retain their Bevill status
because they do not exhibit the
characteristic property of the non-Bevill
waste.         j
  Example 3: Fadility C, a mineral
processing facility, generates a
characteristic 'metal-bearing secondary
material exhibiting the toxicity
characteristic for| lead which it sends to
a beneficiation operation where it is co-
processed with beneficiation raw
materials. The resulting waste exhibits
the same charact0ristic.
  The resulting waste would likely be a
Bevill waste exempt from Subtitle C
requirements (assuming legitimate
material recovery is occurring). Under
this proposal, so long as the
beneficiation process utilizes greater
than 50% Bevill jraw  materials for its
input, the resulting wastes retain Bevill
status provided the resulting wastes are
not significantly affected by the
contribution of the non-Bevill feed.
               i
E. Re-mining Previously Generated
Mineral Processing Wastes
  EPA believes that among the positive
effects of this proposal would be to
encourage the "re-mining" of previously
generated mineral processing wastes—
that is, the excavation of such wastes
from disposal sitps (including
remediation sites) for purposes of
mineral recovery. Many of the 60 or
more mine and mineral processing sites
on the National Priorities List could
reduce costs of remediation by re-
mining. Such recovery would promote
the statutory goals of less land disposal,
increased material recovery, and also
proper waste treatment (since the
treatment standards for most mineral
processing wastes are based on
performance of High  Temperature Metal
Recovery processes such as smelting).
The reason re-mining could be
encouraged is that the previously
disposed mineral processing materials
would not be solid wastes once they are
excavated for purposes of legitimate
recovery by mineral processing or
beneficiation processes, provided they
satisfy the same conditions that a
newly-generated jsecondary material
from mineral processing would satisfy.
See also 261.1(c)j;8) (stating that a
material that is speculatively
accumulated need not be considered a
solid waste any linger "once they are
removed from accumulation for
recycling").     ;
  EPA notes further that excavation of
wastes would not render the historic
disposal unit subject  to RCRA
requirements. Sefe 53  FR at 51444 (Dec.
21,1988) (movement of waste from one
unit to another does not subject the,
initial unit to land disposal restriction
requirements); 5.5 FR at 8758 (same);
Letter from Lisa K. Friedman, Associate
General Counsel Solid Waste and
Emergency Response Division to
Richard Stoll (Sept. 5,1990) (indicating
that under the same reasoning   •
movement of,waste from one unit to
another, by itself, does not trigger RCRA
permitting requirements lor the initial
unit).18 EPA notes that some questions
have been raised about the scope of
EPA's discussion of "active
management" in the preamble to the
Sept. 1,1989 rule. In that discussion,
EPA described some activities that
could subject existing waste
management units containing non-
Bevill wastes to Subtitle C. 55 FR at
8755; 54 FR at 36597. The 1989
preamble did not specifically address
the question of whether removal of
some waste  from an existing unit
subjects the waste remaining in the unit
to Subtitle C regulation. EPA is
clarifying  that the Agency's position, as
discussed above, is that removal of
waste from such a unit does not
constitute "disposal" for purposes of
triggering  Subtitle C regulation, and the
language of the 1989 preamble, although
somewhat unclear, should be read to be
consistent with EPA's statements in the
NCP preamble on this point.

III. Mineral Processing Wastes Covered
by This Rule
  The next threshold issue for
determining the scope of the proposed
LDR prohibitions is whether wastes
come from mineral processing
operations rather than beneficiation
operations. As discussed earlier, the
only wastes whose Bevill status EPA
reexamined in 1989 under the high
volume/low hazard benchmark were
wastes from mineral processing; all
beneficiation wastes consequently
retained Bevill status. See section LA.
above. Thus, the only wastes that were
newly identified19 as hazardous in that
rulemaking, and hence subject to the
LDR prohibitions proposed today, are
those from mineral processing.
  The issue addressed here is
determining which wastes from the
metal recovery sector come from
mineral processing operations and
which from beneficiation activities. EPA
  i»A copy of this letter and related
correspondence has been placed in the
administrative record for this proposed rule.
  "EPA did not list any additional wastes from the
mineral processing sector. Hence, mineral
processing wastes ineligible for Bevill status as a
result of the 1989 rule would be hazardous only if
they exhibit a characteristic. This is why the text
refers only to "identified" hazardous wastes.

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2354
Federal Register / Vol. 61, No. 17 /  Thursday, January 25,  1996  / Proposed Rules
established the broad standard for
making this determination in the 1989
rule (see 54 Fed. Reg. 36592, 36616-20
codified at 261.4(b)(7)). In essence,
beneficiation operations typically serve
to separate and concentrate the mineral
values from waste material, remove
impurities, or prepare the ore for further
refinement. Beneficiation activities
generally do not change the mineral
values themselves other than by
reducing (e.g., crushing or grinding), or
enlarging (e.g., pelletizing or
briquetting) particle size  to facilitate
processing. A chemical change in the
mineral value does  not typically occur
in beneficiation.
  Mineral processing operations, in
contrast, generally follow beneficiation
and serve to change the concentrated
mineral value into a more useful
chemical form. This is often done by
using heat  (e.g., smelting) or chemical
reactions (e.g., acid digestion,
chlorination) to change the chemical
composition of the mineral. In contrast
to beneficiation operations, processing
activities often destroy the physical and
chemical structure of the incoming ore
or mineral feedstock such that the
materials leaving the operation do not
closely resemble those that entered the
operation.  Typically, beneficiation
wastes are  earthen in character, whereas
mineral-processing wastes are derived
from melting or chemical changes.
  EPA is not reopening this standard
here. What EPA has done since the 1989
rule, however, is to examine mineral
recovery operations, and evaluate the
status of each waste generated by the
process pursuant to the general test for
distinguishing mineral processing from
beneficiation. EPA's tentative
conclusions—including process
descriptions for each of the 41 mineral
. sectors, description of each waste
generated from the  process, and
description of why  EPA considers each
waste to be from mineral processing or
from beneficiation based on the
application of the existing narrative
test—are set out in the report
"Identification and Description of
Mineral Processing Sectors and Waste
Streams", EPA Office of  Solid Waste
1995, which is part of the administrative
record for this proposal.
   EPA solicits comment  on this
document. Comments  should address
the factual particulars  on which EPA's
tentative conclusion is based. EPA also
notes that it has not determined whether
or not to consider the factual
determinations to be final and binding
Agency action when this rule is
finalized. The alternatives, on which
EPA solicits comment, is to either view
each waste-by-waste determination set
                         out in the Background Document as a
                         final, binding Agency determination of
                         whether the waste is from mineral
                         processing or beneficiation, or to
                         consider the conclusion as guidance,
                         and therefore advisory and not
                         absolutely controlling if applied in an
                         individual context such as an
                         enforcement proceeding. A possible
                         reason to prefer this latter approach is
                         not to deprive decision-makers of
                         flexibility in evaluating and classifying
                         the complicated factual circumstances
                         relating to particular wastestreams. On
                         the other hand, final classification after
                         notice and comment would produce
                         certainty and also avoid the possibility
                         of inconsistent determinations. If the
                         Agency decides to make these
                         classifications final and binding
                         determinations, the final rule will
                         contain appropriate regulatory
                         provisions reflecting these decisions.
                           The Agency also cautions that this
                         document should not be construed to be
                         an exclusive list of mineral processing
                         and associated wastestreams; other
                         types of mineral processing wastes may
                         exist. Thus, the omission of a
                         wastestream in this background
                         document does not relieve the generator
                         from the responsibility for correctly
                         determining whether each of its
                         particular wastes is covered by the
                         Bevill exemption based on the narrative
                         criterion in  261.4(b)(7) for
                         distinguishing mineral processing from
                         beneficiation.

                         IV. Responses to Court Remands on
                         Mineral Processing Wastes

                         A..Applicability of the Toxicity
                         Characteristic Leaching Procedure
                         (TCLP) to Mineral Processing Wastes
                           The Agency proposes to continue
                         using the TCLP (SW-846 Test Method
                         1311) as the basis for determining
                         whether mineral processing wastes and
                         manufactured gas plant wastes are
                         hazardous by the TC, and has developed
                         a record supporting this position.
                         1. Introduction
                           When the Agency promulgated the
                         TCLP method for testing whether wastes
                         exhibit the toxicity characteristic, the
                         applicability of the TCLP test to mineral
                         processing wastes was challenged in
                         Edison Electric Institute v. EPA, 2 F.3d
                         438 (B.C. Cir.  1993) ("Edison"). The
                         Court held that the information in the
                         record at the time was insufficient to
                         show a rational relationship between
                         the TCLP and the mismanagement
                         scenario for mineral  processing wastes.
                           In its remand, the Court did not rule
                         that the Agency must demonstrate that
                         mineral processing wastes are typically
or commonly disposed in a municipal
solid waste landfill (MSWLF). Rather,
the Court held that the Agency must at
least provide some factual support that
such a mismanagement scenario is
plausible (2 F.3d at 446-47). The
Agency is addressing this remand in
today's proposed rule because any
applicable land disposal restrictions
would have little meaning unless the
Agency has a basis for determining
whether these mineral processing
wastes are hazardous and therefore
subject to the restrictions.

2. Agency Response to the Edison
Electric Institute Remand
  Under the court's ruling, the
application of the TCLP test to mineral
processing  wastes is appropriate if the
evidence available to EPA shows that
disposal of such wastes in municipal
solid waste landfills is a "plausible"
mismanagement scenario (not
necessarily requiring that it be typical or
common) 2 F.3d at 446. The Agency
believes that current information is
sufficient to justify applying the TCLP
to all mineral processing wastes, and is
proposing today to reaffirm its original
position that the TCLP is appropriately
applied to mineral processing wastes.20
  EPA's research demonstrates that
mineral processing waste may plausibly
be mismanaged in ways that are similar
to that described in the Agency's general
mismanagement scenario that forms the
basis for the TCLP test (i.e., co-disposal
in an unlined municipal solid waste
landfill generating mildly  acidic
leaching medium). (See Applicability of
the Toxicity Characteristic Leaching
Procedure to Mineral  Processing Waste,
EPA Office of Solid Waste 1995). The
Agency recognizes that mineral
processing wastes may be  managed in
monofills at mineral processing
facilities; however, as the Court noted,
it is sufficient if co-disposal with
municipal solid wastes (MSW) is simply
a plausible mismanagement scenario
(2F.3d at 446). The TCLP is designed to
ensure that waste does not pose a risk
of present or potential substantial
hazard even if mismanaged.
  In an earlier rulemaking, the mining
industry contended that mineral
processing wastes would not be
disposed in MSWLFs because they are
generated in volumes too large to make
such disposal practical. 54 FR 36592,
36600-36603 September 1,1989.
However, information now in the record
shows that some mineral processing
  20The court did not vacate any part of the TCLP
rule, but simply remanded it to the Agency.  ,  .
Therefore, no change in the regulatory text is
needed to leave the rule in effect.

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              Federal Register / Vol.  61, No. 17  / Thursday, January 25, 1996 / Proposed Rules
                                                                     2355
wastes are generated in very low
volumes, (Applicability of the Toxicity
Characteristic Leaching Procedure to
Mineral Processing Waste, EPA Office of
Solid Waste 1995), and indeed, the truly
high volume mineral processing waste
were accorded Bevill status in the 1989
rule. While some mineral processing
wastes are generated in large volumes
and disposed on-site as industry
contends, the Agency has found that
some mineral processing wastes are
placed in dumpsters, or similar
containers, and shipped off-site for
commercial disposal. Accordingly,
disposal in MSVVLFs is entirely
plausible.
  Furthermore, EPA now has
substantial direct evidence of actual
disposal of mineral processing wastes in
MSWLFs. In response to the Court's
remand, the Agency performed a
literature search to identify potential
cases of co-disposal of mineral
processing wastes in MSVVLFs, and
found a number of cases of co-disposal
throughout the country. This should not
bo a surprise because these mineral
processing sites are spread out across
the country, and many are located
within highly populated areas. These
cases include, but are not limited to, co-
disposal of mineral processing wastes
from the refining of alumina, copper,
gold, ferrous metals, lead, silver, and
zinc. Such wastes have been disposed in
various states throughout the United
States, representing all geographic and
climatic regions. The Agency also found
several cases where manufactured gas
plants wastes were disposed in
MSVVLFs. (See Applicability of the
Toxicity Characteristic Leaching
Procedure to Mineral Processing Waste,
EPA Office of Solid Waste 1995).
  The Agency found additional cases of
possible co-disposal of mineral
processing wastes with MSW, even
though there was uncertainty as to
whether the waste originated from a
non-exempt mineral processing
operation. The uncertainty is due, in
part, to inconsistent terminology
applied to mineral wastes, and to the
fact that these wastes often become
indistinguishable from other soil and
debris in MSWLFs. Documentation from
landfill operators and regulators
cleaning up contaminated landfills
typically does not distinguish among
regulatory terms such as
"beneficiation," "exempt" and
"nonexempt" mineral processing, and
"primary" and "secondary" mineral
wastes. Rather, generic terms describe
such materials as flue dust, slag, and
tailings. The wastes thus appear mineral
processing in origin. The Agency found
cases where each of these terms were
used to describe wastes found in
MSWLFs. (See Applicability of the
Toxicity characteristic Leaching
Procedure to Mineral Processing Waste,
EPA Office of Solid Waste 1995). While
there is some uncertainty as to the
origin of such wastes, there is at least a
significant possibility that they are from
primary mineral processing  facilities.
EPA believes that ^his information
should not be ignored, but rather should
be considered in conjunction with the
other evidence of known co-disposal, to
assess the likelihood that mineral
processing wastes are exposed to the
type of landfill or jlandfill-like leaching
medium replicated in the TCLP.
  In addition to the above cases, the
Agency has evidence that mineral
processing wastes! have been co-
disposed with plant trash and other
miscellaneous solid wastes in on-site
landfills. In some cases, these landfills
accepted MSW from nearby
communities. Again, the type of
leaching medium generated would have
the properties modelled by the TCLP. In
addition, analysis of data submitted by
mineral processing facilities in the
Agency's 1989 National Survey of Solid
Wastes from Mineral Processing
Facilities reveals several cases in which
survey respondents reported disposing
mineral processing wastes with other
solid wastes in landfills or other land-
based units. All of the literature
searches, survey analysis, and
supporting information are located in
the TCLP Technical Background
Document in the RCRA docket for
public review.

3. The Synthetic Precipitation Leaching
Procedure (SPLP)!
  Although the Agency believes that the
TCLP test is an appropriate  test for
assessing the toxicity of mineral
processing wastes, EPA acknowledges
that industry has raised concerns about
this test. The mining industry contends
that the TCLP test mobilizes specific
metals in an atypical fashion. Further,
industry claims that the SPLP test
method 1312 is a more appropriate test
for mineral processing wastes. See
American Mining5 Congress  (AMC)
Comments on LDR Phase II  RCRA
docket dated Marph 17,1986. AMC
contends that mine waste piles are not
usually acidic in nature; nor are they
exposed to organic acids. AMC argued
that acetic acid used in the TCLP  test
was highly aggressive in solubilizing
lead, and the use of acetic acid would
seriously overstatjs the potential of such
materials to leach lead into the
environment.    ,
  AMC also contends that under the
Extraction Procedure test (the previous
test used by the Agency to evaluate a
wastes' toxicity), companies could use
the Structural Integrity Procedure (SIP)
for monolithic wastes and its use was
more consistent with the large size of
mineral processing wastes rather than
grinding down wastes to meet the size
reduction requirements of the TCLP. In
AMC's July 24, 1992 comments on 55
FR 21450, industry indicated that
Standard Method 1312 could be
modified for use on mineral processing
wastes if: 1) different leach media were
developed for wastes generated east and
west of the Mississippi, and 2) abandon
the size reduction requirement.
  At this time, EPA does not have
enough information to fully evaluate the
merits of AMC's claims. The SPLP test
was used, in addition to relaxing the
corrosivity standard by one order of
magnitude on each end of the pH scale,
to determine which large volume/low
toxicity (special) mineral processing
wastes to set apart from all other
mineral processing wastes. 54 FR 15316,
15340 (April 17,1989). These relaxed
standards were used only as a screening
tool to determine a low hazard criteria
for large volume mining waste. 54 FR
36592 (September 1,1989). In this final
rule on the Bevill exclusion, the Agency
stated that the SPLP test was "solely a
preliminary screening device to
determine which mineral processing
wastes are special wastes, and will not
be used in determining which wastes
will subsequently be regulated under
Subtitle C." 54 FR at 36597. In this same
rule, commenters noted that EPA should
not replace the TCLP test with the SPLP
to screen mineral processing wastes
because the Agency had not
demonstrated that the EP and TCLP
significantly overestimated the leaching
of metals from mineral processing
wastes.
   TCLP is the Agency's method of
simulating the movement or leaching
from waste management units to
groundwater, based on extensive
research (e.g., lysimiter testing)
simulating landfill conditions. When
the EPA promulgated the TCLP (see 55
FR 11798, March 29,1990), the Agency
was responding to the Congressional
directive to address the leaching of
organic compounds, particularly
volatiles, and to improve the
groundwater model and operational
shortcomings of the EP, which was in
place prior to 1990. (See 55 FR 11800).
The 1990 final rule completed a
thorough evaluation of issues
surrounding the appropriate test, based
on a proposal (June 13,1986) and a
number of supplemental notices, as well
as a related land disposal restrictions
notice. (See 51 FR 24856, July 9,1986;

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Federal  Register / Vol. 61, No:  17 / Thursday, January 25, 1996  /  Proposed Rules
51 FR 33297, September 19,1986; 51 FR
40572, November 7,1986). The
Agency's response to comments on the
TCLP are found in the background
document entitled "Technical and
Response to Comment Document for the
TCLP (Method 1311)" (1989).
  EPA has very limited representative
data about which mineral processing
wastestreams would fail either a TCLP
test or a SPLP test. (Further discussions
on the SPLP test are found in
Applicability of the Toxicity
Characteristic Leaching Procedure to.
Mineral Processing Waste, EPA Office of
Solid Waste 1995). Indeed, the Agency's
estimates of costs cover a wide range in
part because of the significant
uncertainty about which wastestreams
would be covered by the proposed rule.
EPA solicits data about which
wastestreams would fail the SPLP test
and which would fail a TCLP test, about
the risks to the environment that may
result from wastestreams that fail one
but not both tests under current
management practices, and the costs of
subjecting such wastestreams to the
requirements of this proposed rule. EPA
solicits such data because it would
permit a better assessment of whether to
use the SPLP test instead of the TCLP
test. The Agency is also soliciting
comments on any other tests now in use
either by private industry or the states
which may more accurately determine
the toxicity of mineral processing
wastes.
4. Request for  Comments
   The Agency encourages all interested
parties to provide comments or further
information on the issues addressed in
this section. The Agency is particularly
interested in receiving additional
information indicating whether mineral
processing wastes and manufactured gas
plant wastes have been mismanaged and
co-disposed with other wastes in
MSWLFs or other environments where
they are exposed to a comparable type
of leaching medium. Information is also
solicited on the practical aspects of
using the TCLP as a uniform test for
 determining hazardous .characteristics of
mineral processing wastes. The Agency
 further requests comments on its
 discussions of alternative test methods.
 B. Remanded Mineral Processing Wastes
   The Agency is proposing to revoke the
 current hazardous waste listings for five
 court-remanded smelting wastes. The
 Agency is also proposing not to re-list
 them as hazardous. Instead, the Agency
 would regulate them as characteristic
 wastes.
   In 1980, the Agency listed as
 hazardous eight wastes generated by
                         primary metal smelters (45 FR 33066,
                         33124, 47832-34, (1980)). The Agency
                         listed the wastes pursuant to 40 CFR
                         261.11(a)(3) because they contained one
                         or more of the hazardous constituents
                         listed in 40 CFR 261, Appendix VIII.
                         The eight wastes are described as
                         follows:
                         K064—Acid plant blowdown slurry/sludge
                           resulting from the thickening of blowdown
                           slurry from primary copper production.
                         K065—Surface impoundment solids
                           contained in and dredged from surface  •
                           impoundments at primary lead smelting
                           facilities.
                         K066—Sludge from treatment of process
                           wastewater and/or acid plant blowdown
                           from primary zinc production.
                         K067—Electrolytic anode slimes/sludges
                           from primary zinc production.
                         K068—Cadmium plant leach residue (from
                           oxide) from primary zinc production.
                         K088—Spent potliners from primary
                           aluminum reduction.
                         K090—Emission control dust or sludge from
                           ferrochromium-silicon production.
                         K091—Emission control dust or sludge from
                           ferrochromium production.
                           In October of 1980, in response to
                         congressional enactment of the Bevill
                         Amendment, the Agency suspended its
                         listing of the eight wastes. (46 FR 4614-
                         15, 27473 (1980). In 1985, EPA
                         proposed a new rule relisting  six of the
                         eight wastes (50 FR 40292, 40295
                         (1985)). (The Agency chose not to
                         propose to re-list two of the original
                         eight wastestreams (electrolytic anode
                         slimes/sludges, K067, and cadmium
                         plant leach residue, K068, from primary
                         zinc production) because it found that
                         industry was routinely recycling these
                         secondary materials in an
                         environmentally sound manner.)
                         However, the Agency never
                         promulgated a final rule based on the
                          1985 proposal; furthermore, it withdrew
                         its proposal on October 9,1986 (51 FR
                          36233).
                            In the case of Environmental Defense
                         Fund v. EPA, 852 F.2d 1316 (D.C.  Cir,
                          1988) EPA was ordered to make a final
                          decision regarding whether to re-list six
                          of the metal smelting wastes that it had
                          proposed to list in 1985, and to reduce
                          the scope of the Bevill exemption as it
                          applies to mineral processing wastes.
                          The Agency complied with this order
                          when it re-listed the six wastes.
                            The American Mining Congress
                          (AMC) challenged these listings. In
                          American Mining Congress v. EPA, 907
                          F.2d 1179 (D.C. Cir. 1990) the Court
                          upheld the Agency's decision to re-list
                          waste K088, spent potliners from
                          primary aluminum reduction, but found
                          that the Agency's record for the five
                          remaining waste streams did  not
                          adequately address certain issues raised
                          in comments during the rulemaking.
Since the Court did not vacate the
listings, they technically remain in
effect.
  Having completed further study, the
Agency is today proposing to revoke the
five remanded waste listings. Because of
changes in the nature of the wastes
generated and the way in which they are
managed, the Agency has determined
that they no longer meet the criteria for
listing. Individual wastes of this type
will be regulated if they exhibit a
hazardous characteristic.
  ' In determining whether these wastes
should continue to be listed, the Agency
applied the criteria specified in 40 CFR
262.11(a), and its policy on listing
discussed most recently at 59 FR 66073-
75 (Dec. 22,1994). As discussed at
greater length in the December 22,1994
Federal Register, the Agency takes into
account factors other than the
characteristics of the waste itself in
making a listing decision. Such factors
include (among other things) the
quantity of the waste generated,
plausible management scenarios, and
the coverage of other regulatory
programs. Where the Agency has
information regarding the way a waste
is handled at most of the facilities at
which it is generated, it may do a more
refined analysis of plausible
management scenarios.
  Specifically, the Agency is proposing
to revoke the listing for, and to not re-
list: copper acid plant blowdown
(K064); surface impoundment solids at
primary lead smelters (K065); acid plant
blowdown from primary zinc
production (K066); emission control
dust and sludge from ferrochromium-
silicon production (K090); and emission
control dust or sludge from
ferrochromium production (K091). A
description of the current management
of these wastes and the rationale for this
proposal is in the RCRA docket for this
proposed rule.
  The Agency encourages all interested
parties to provide comments on the
issues pertaining to the listing
revocations, and decision not to re-list,
these wastes.
 C. Lightweight Aggregate Mineral
 Processing Wastes
 I. Background
   The Agency is proposing that air
 pollution control dust and sludge from
 the production of lightweight aggregate
 be classified as a mineral processing
 waste that is no longer eligible for the
 Bevill exemption.
   Lightweight aggregate air pollution
 control (APC) dust and sludge, was one
 of many mineral processing wastes that
 was made conditionally exempt from

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              Federal Register / Vol. 61, No. 17  /  Thursday, January 25, 1996 / Proposed Rules        2357
RCRA Subtitle C requirements under the
1980 Bovill Amendment to RCRA. In
1990, following more detailed study of
tho generation rates for this waste, the
Agency determined that it did not
qualify for the Bevill exemption (55 FR
2322, 2340, January 23,1990). In 1991,
the Federal Appeals Court directed the
Agency to reconsider, after providing
notice and soliciting comments,
whether these wastes qualify for the
Bevill exemption. (Solite Corporation v.
EPA, 952 F.2d at 500. In today's rule,
tho Agency is reexamining and
soliciting comments on whether
lightweight aggregate AFC dust and
sludge is eligible for coverage under the
Bovill exemption.
2. Agency Response to the Remand
   For purposes of EPA's 1989 and 1990
Rules concerning Bevill eligibility for
mineral processing wastes, high volume
is defined as greater than 45,000 metric
tons per year, per facility, for a solid
waste, or 1,000,000 metric tons per year,
per facility, for a liquid waste, averaged
across all facilities generating a
particular waste. To determine whether
APC dust and sludge from lightweight
aggregate production satisfied the high
volume criterion, the Agency analyzed
data from its 1989 National Survey of
Solid Wastes from Mineral Processing
Facilities (SWMPF Survey) and  data
from public comments submitted by
affected companies (e.g., Solite). These
methods and analysis are available for
public review in the RCRA docket (see
Lightweight Aggregate Production and
Air Pollution Control Wastes, EPA
Office of Solid Waste 1995).
   None of the methods used resulted in
a volume estimate that is greater than
45,000 metric tons per year, the high
volume criterion for solid special
mineral processing wastes. SWMPF
Survey data from two Confidential
Business Information (CBI) facilities
have been included in a separate
analysis using all methods. The results,
which remain confidential, are not
substantially different than the results
presented previously. Based on this
analysis, the Agency tentatively finds
that APC dust and sludge from
lightweight aggregate production is not
a nigh volume waste and so does not
qualify for the Bevill exemption.
Therefore, the Agency is proposing that
these wastes be classified as a mineral
processing wastes that are no longer
eligible for the Bevill exemption.
  These wastes are alternatively used as
building materials, recycled back into
the process, or land disposed.
Lightxveighl aggregate APC dust and
sludge seldom fail the TCLP, thus they
are usually not characteristic hazardous
wastes. Further, the Agency believes
this rule will not impose significant
regulatory costs on the Lightweight
Aggregate sector since much of the APC
dust and sludge iS;no longer generated
due to process changes. (See
Lightweight Aggregate Production and
Air Pollution Control Wastes, EPA
Office of Solid Wa|ste 1995.).

3. Request for Conjments
  The Agency entourages all interested
parties to review the record of the
Agency's analysis [in the RCRA docket
and provide comments or further
information on the1 data, methodology,
and findings related to this issue.
D. Mineral Processing Wastes From the.
Production of Titanium Tetrachloride
  The Agency is proposing that iron
chloride waste acid from the production
of titanium tetrachloride be classified as
a mineral processing waste that is not
eligible for the Bevill exemption. Waste
acid from the production of titanium
tetrachloride was one of numerous
mineral processing wastes that was
conditionally exempt from RCRA.
Subtitle C requirements under EPA's
initial interpretation of the Bevill
amendment. In 1989, following a study
of the waste's circumstances of
generation, the Agency determined that
titanium tetrachloride waste acid did
not qualify for the ;Bevill exemption
because it was a mjineral processing
waste, not a beneficiation waste, and
did not meet the high volume/low
hazard criteria established by EPA for
determining thosejmineral processing
wastes subject to the Bevill exemption.
(See 54 FR 36592, September 1,1989.)
  One producer of titanium
tetrachloride, DuPont, requested a
determination that waste from its
production process be categorized as
beneficiation waste, on the ground that
its process was different from the purely
mineral processing processes used by
other manufacturers and included a
beneficiation step as well which
generated the wastes at issue. However,
EPA chose to clarify DuPont's waste
acids as mineral processing wastes.
DuPont challenged this decision, and
the Court remanded EPA's decision for
further consideration on the grounds
that the Agency's Explanation for its
decision was unclear. Solite Corporation
v. EPA, 952 F.2d at 494-95. The Agency
is today responding to the Court's
directive to clarifyjits rational for
determining whether this waste is
properly classified; as a beneficiation or
mineral processing waste.
  EPA establishedjthe broad standard
for making this determination in the
1989 rule (see 54 Fed. Reg. 36592,
36616, September l, 1989). As described
in section III above, beneficiation
operations typically serve to separate
and concentrate the mineral values from
waste material, remove impurities, or
prepare the ore for further refinement.
Beneficiation activities generally do not
change the mineral values themselves
other than by reducing (e.g., crushing or
grinding), or enlarging (e.g., pelletizing
or briquetting) particle size to facilitate
processing. A chemical change in the
mineral value or the waste product does
not typically occur in beneficiation.
Mineral processing operations, in
contrast, generally follow beneficiation
and serve to change the concentrated ,
mineral value into a more useful
chemical form and change the chemical
composition of the waste. In contrast to
beneficiation operations, processing
activities often destroy the physical
structure of the incoming ore or mineral
feedstock such that the materials leaving
the operation do not closely resemble
those that entered the  operation.
Typically, beneficiation wastes are
earthen in character, whereas mineral-
processing wastes are derived from
melting or other chemical changes. EPA
is not reopening this standard here. EPA
is only applying the existing Bevill
criteria to this particular set of facts.
  The Du Pont Corporation operates  a
chloride-ilmenite process at three of  its
plants in which low-grade ilmenite ore
is utilized to produce high-purity
titanium tetrachloride. Because ilmenite
contains significant quantities of iron,
use of this process requires removal of
the iron from the titanium feedstock, in
the form of iron chloride. Du Pont
contends that the iron chloride waste is
a beneficiation waste because it is
generated through the removal of iron
from the ilmenite ore before the
physical structure of the ore is
destroyed in the subsequent
chlorination step of the chloride-
ilmenite process. This process,
conducted by Du Pont at its Edgemoor,
Delaware and New Johnsonville,
Tennessee plants and at its DeLisle
plant in Pass Christian, Mississippi, is
described in more detail in the
background document in the RCRA
docket. Du Pont conducts a similar
process in Antioch, California using
rutile, which has a lower iron content
than ilmenite.
  There are four sequential steps in Du
Font's chloride- ilmenite process, the
first two  of which occur within the same
vessel: (1) chlorine gas reacts with iron
from the ilmenite ore to form iron
chloride  gas; (2) chlorine gas reacts with
titanium in the ilmenite ore to form
titanium tetrachloride  gas; (3) the iron
chloride  is condensed  and separated  to

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Federal Register / Vol.  61, No. 17  /  Thursday, January 25, 1996  / Proposed Rules
form a waste iron chloride acid; and
finally (4) the titanium tetrachloride is
condensed and processed to form
titanium oxide pigment, the saleable
product. The issue remanded in Solite
is whether the iron chloride acid waste,
which is produced in gaseous form at
step (1) but removed from the vessel as
a liquid at step (3), is a mineral
processing waste that does not qualify
for the Bevill exemption, or a
beneficiation waste covered by the
Bevill exclusion under 40 CFR
261.4(b)(7).
  After further review of this issue, the
Agency today proposes to reaffirm its
initial finding that these wastes are
mineral processing wastes. The
distinction between beneficiation  and
mineral processing for the chloride-
ilmenite process is not an obvious one,
as the Solite court recognized. However,
after carefully reviewing all the
information provided by DuPont, EPA
continues to believe that the waste is
most accurately characterized as a
mineral processing waste. Because, in
the earlier rulemaking, EPA and DuPont
both characterized the chloride-ilmenite
process as involving both beneficiation
and mineral processing, the court's
analysis took the same approach. The
court found no explanation in the
record as to why this particular mixed
process should be characterized, as a
whole, as mineral processing rather than
beneficiation,  and remanded to EPA for
a fuller explanation or reconsideration.
Since the Agency now believes that it is
more accurate to state that no
beneficiation occurs in this process at
all, that issue is no longer the focus of
analysis.
  The type of operation used by Du
Pont in the chloride-ilmenite process,
chlorination, must be evaluated in light
of EPA's definitions of mineral
beneficiation and processing.
Indications of mineral processing  are
found when there are significant
chemical changes in the ore being
processed and the products and waste
streams from the operation are
significantly different from the ore
entering the operation. Beneficiation, in
contrast, usually involves non-chemical
changes such as crushing and grinding
to concentrate the ore (see 54 FR 36618,
September 1,1989). While some
processes that change the chemical
character of the ore have been included
in the regulatory definition of
"beneficiation", these are relatively few
and are specifically enumerated in that
rule. (See 54 FR 36618-36621,
September 1,1989 and 40 CFR
261.4(b)(7)).
  In addressing this issue previously,
EPA assumed that at least some of the
                         steps in the chloride-ilmenite process
                         involved beneficiation. The court's
                         analysis reflected this assumption and
                         focused on how a process that involved
                         both beneficiation and mineral
                         processing steps should be
                         characterized for regulatory purposes.
                         However, the Agency has reexamined
                         the sequence of operations and now
                         believes this  conclusion was
                         inconsistent with EPA's general
                         approach to defining beneficiation.
                         Specifically,  even the first step in the
                         process, chlorine gas reaction with iron
                         from the ilmenite ore to form iron
                         chloride gas, is best characterized as a
                         mineral processing—not a beneficiation
                         operation. In DuPont's process, chlorine
                         gas is reacted with the iron in the ore
                         in the first step to produce a new and
                         significantly  different chemical
                         compound than the feedstock ore,
                         namely liquid iron chloride waste acid.
                         The iron is more than simply removed;
                         the solid iron in the ore undergoes a
                         chemical reaction with the chlorine gas
                         to form a new compound, namely iron
                         chloride gas. This reaction is the
                         beginning of a significant change to the
                         physical and chemical structure  of the
                         ore. This change is similar to the
                         reaction of chlorine gas with solid
                         titanium to form titanium tetrachloride
                         gas. The reaction of chlorine gas  with
                         both iron and titanium, which occur  in
                         the same vessel, destroys the physical
                         and chemical nature of the ore. In fact,
                         these same reactions occur at Du Font's
                         Antioch facility and generates a similar
                         iron chloride waste acid that DuPont is
                         not claiming to be a beneficiation waste
                         (Identification and Description of
                         Mineral Processing Sectors and Waste
                         Streams, EPA Office of Solid Waste
                         1995).
                           The iron chloride waste is more
                         similar to such typical mineral
                         processing wastes as acid plant
                         blowdown than to classic beneficiation
                         wastes such as mill tailings. In terms of
                         mineral processing, the removal  of iron
                         from a titanium ore is no different than
                         the removal of lead and other
                         compounds during the smelting of a
                         copper ore which produces the acid
                         plant blowdown.
                           It is correct that some processes that
                         involve a chemical change, such as heap
                         leaching, are treated as beneficiation.
                         However, such processes generally
                         result in a waste stream that is very
                         similar in nature to ore or mill tailings.
                         While such processes also generate a
                         liquid, metal-bearing material that is
                         wholly unlike the original ore, that
                         material is not waste but goes into the
                         production process. In contrast, the
                         chloride-ilmenite process generates a
                         liquid waste  stream entirely different in
character from the ore. The remaining
portion of the ore remains in process
(and then only for the short period of
time before it becomes a gas). Since it
is the waste that is the principal source
of environmental concern, it is useful in
drawing the line between beneficiation
and mineral processing to consider
whether the waste, as opposed to the
material remaining in production, is
generally similar in nature to the
original ore. Under that analysis, the
DuPont process would not appear to be
beneficiation.
  Furthermore, as stated earlier, the rule
that defines "beneficiation" enumerates
a limited number of processes that
constitute beneficiation even though
they do involve some chemical as well
as physical change to the ore. However,
the initial step of the chloride-ilmenite
process is not one of those processes.
This step involves chlorination. The
rule states that chlorination constitutes
beneficiation only when it is used in
preparation for a leaching operation that
does not produce a final or intermediate
product that does not undergo further
beneficiation or processing (see 40 CFR
261.4(b)(7)). In DuPont's case, the first
step  of the operation is followed not by
a leaching step but by further
chlorination, which in turn continues to
destroy the chemical and physical
structure of the ore. In other  words, no
part of the production sequence
involving the reaction of ilmenite ore
with chlorine in the fluid bed reactor
falls within the definition of
beneficiation. Accordingly, all wastes
associated with this sequence are
mineral processing wastes. Because the.
liquid  iron chloride wastes from this
operation are hot high volume, whether
considered separately or as part of the
larger titanium tetrachloride industry,
they are not eligible for the Bevill
exemption.
  Nevertheless, even if the first step
were considered beneficiation, EPA
believes that strong policy reasons exist
for treating the wastes from this
particular mixed process as mineral
processing  wastes. As the court
recognized, a process like DuPont's may
not fall neatly into one category or the
other. In  such cases,  it will only lead to
regulatory uncertainty if it is necessary
to try to ascertain which part of a multi-
step  process a particular waste derives
from (especially where, as here, the
wastes derive from more than one step
and are commingled when they exit the
process). The beneficiation-mineral
processing  distinction is already
complicated when applied to physically
distinct processes, and EPA believes
that adding further complications, by
attempting to draw the distinction

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              Federal Register / Vol.  61,  No. 17 / Thursday,  January  25, 1996 / Proposed Rules         2359
among steps that all occur within the
same physical processing unit, will
make such determinations unduly
difficult, time-consuming, and
dopendent on the precise facts at a
particular place and time (e.g., the mix
of wastes from a process might even
vary over time). In such cases, EPA
believes that the overall process should
bo assessed as a whole, to determine
whether it appears more like
bonoficiation or like mineral processing.
In this case, the ilmenite enters the
process as an ore, and is completely
transformed within a single vessel into
two chlorinated streams (which exit the
vessel in gaseous form). This kind of
complete transformation is much more
in the nature of mineral processing than
bonoficiation. That is, the waste
generated from this chloride-ilmenite
reaction is low volume and highly toxic.
Furthermore, as EPA noted in the
previous rulemaking, the waste  stream
at issue is very similar in content to the
waste stream from the "chloride"
process, which EPA found (without
challenge) to be mineral processing.
  In the prior rulemaking, DuPont
asserted that the first step of its process
was similar in nature to processes used
by others for enhancing the titanium
concentration in ilmenite, and that
those other processes were being treated
by the Agency as beneficiation.
However, those processes are not before
the Agency at this time and without
more detailed information on the
processes involved EPA is taking no
position on whether the analysis here
might alter its approach to
characterizing those processes and
wastes should that question be
presented.
  The Agency is proposing that iron
chloride waste from the production of
titanium tetrachloride using the
chloride-ilmenite process be classified
as a mineral processing waste that is not
eligible for the Bevill exemption.
Further, the Agency believes this rule
xvill not impose significant regulatory
costs on the titanium sector using the
ilmenite process since much of the iron
chloride acid wastes are no longer
generated due to process changes. (See
Identification and Description of
Mineral Processing Sectors and Waste
Streams, EPA Office of Solid Waste
1995). The Agency encourages all
interested parties to provide comments
or further information on this issue.
V. Land Disposal Restrictions for
Mineral Processing Wastes
  EPA is proposing to apply the existing
Universal Treatment Standards (UTS) to
the newly identified mineral processing
wastes; i.e. to the mineral processing
wastes that exhibit; a characteristic and
do not have Bevill £tatus and are not
excluded from being solid wastes due to
recycling. Existing'data indicate that
these wastes are similar to those for
which the UTS are, achievable, and
consequently that UTS fairly reflect the
performance of Best Demonstrated
Available Technology for these wastes.
See generally "BOAT Background
Document for Mineral Processing
Wastes" in the docket for this proposed
rule.              •

A. Treatability Data
  In developing treatment standards for
these wastes, EPA jinvestigated several
sources of treatability data. The primary
sources of data reviewed include
sampling data from the Office of
Research and Development, Office of
Water, responses (from waste
generators), RCRAjSection 3007 requests
for information, EPA-sponsored surveys
of facilities in the mining and mineral
processing sectors, public responses to
proposed rules on EPA's interpretation
of the Bevill exclusion, and various
other literature sources.
  EPA also examined the available data
and transferability of treatment data
from other metal-bearing wastes. EPA
specifically looked at data for wastes
that are comprised primarily of
inorganic materials and that also
contained a wide range of metals and/
or mixes of metals, Most of these data
are for metal-bearing RCRA hazardous
wastes (both listed and characteristic
wastes). Other treatability data involves
contaminated soils from Superfund
mining sites.21
  Furthermore, to assess the general
treatability of the mineral processing
wastes, EPA compared the
concentrations of metals in untreated
mineral processing wastes with the
untreated concentrations corresponding
to the  data used in, developing UTS.
(See the background document.) Results
of analysis showed that most of the
metals were present at concentrations
below the metal levels in the untreated
wastes used to set UTS. Specifically, for
all the metals in wastewaters, almost 90
percent were found to be at levels below
those in the corresponding untreated
wastes. Likewise, for metals in
nonwastewaters, more than 80 percent
of the concentration data points were
found to be below levels in the
corresponding untreated wastes used to
set UTS, with  one exception. For
thallium, 60 percent of the data points
for untreated mineral processing  wastes
were above levels found in the
untreated wastes used to develop the
thallium UTS. For this reason, the
Agency is concerned that the wastes
considered in developing the thallium
UTS may not have reflected treatment of
wastes with significant concentrations
of thallium, and solicits data on
potential revisions to thallium standards
for mineral processing wastes.
B. Universal Treatment Standards (UTS)
  As stated above, the Agency is
proposing to apply UTS to treat the
metal and cyanide hazardous
constituents in the newly identified
mineral processing wastes. The
nonwastewater treatment standards for
10 of the metals is based on the
performance of High Temperature Metal
Recovery (HTMR) processes, and also
can  be achieved by stabilization.  The
standards for arsenic are based on
vitrification and the standard for
mercury on roasting or retorting.
Cyanide standards can be achieved by
performance of combustion technologies
including HTMR.22 The metal UTS for
wastewaters were based on chemical
precipitation as BDAT. Depending on
the initial concentration of metal
constituents in the wastewater,
operating conditions such  as retention
time, flocculating agents, reagent
concentrations such as iron affect
solubility of other metals, and mixing
  21 Notwithstanding EPA's solicitation of treatment
 data from mineral processing wastes (Advanced
 Notice of Proposed Rulemaking—Phase IV), EPA
 presently has limited information on actual
 treatment of mineral processing wastes. An
 elemental phosphorous, facility reported generating
 four different hazardous process waste streams, and
 presented total constituents and TCLP data for these
 waste streams. (See "BDAT Background Document
 for Mineral Processing Wastes" in the docket for
 this rule.) All four untreated waste streams
 exceeded UTS levels arid consequently will have to
 be treated when this rule is finalized. Treatment
 data for the characteristic metals, as well as metals
 that could be underlying hazardous constituents,
 was submitted for 45 samples. All 45 sampling
 events met the UTS levels with the exception of one
 data point (barium exceeded UTS levels). The
 detection limit for selenium was above the UTS
 level, and consequently could not be evaluated.
 (See "BDAT Background Document for Mineral
 Processing Wastes" in the docket for this rule.
  22 Materials being recycled for metal recovery
 that would be excluded from being solid wastes
 under this proposal would normally be processed
 in an HTMR type of process (usually smelting).
 Residues from that processing thus would likely
 meet the treatment standards proposed in this rule.
  In addition to the HTMR and stabilization
 technologies mentioned in the section discussing
 TC metals above, several hydrometallurgical
 technologies (based primarily on leaching) have
 been tested and documented by the Bureau of
 Mines as capable of concentrating valuable metals
 from low-grade ores or from tailings. The residual
 (i.e., extracted material) is often then suitable for
 further processing. EPA does not currently have a
 significant amount of data on leaching recovery
 processes or other hydrometallurgical processes for
 metal-bearing mineral processing residues. Based
 on engineering judgment, however, it is likely that
 these technologies could be~designed such that the
 residues also could meet UTS.

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Federal Register / Vol.  61,  No. 17 / Thursday, January 25, 1996 / Proposed  Rules
may need to be adjusted to comply with
the standards. These high
concentrations are a direct result of the
techniques and principles used to
process the minerals. Anions, such as
cyanide, have been specifically selected
as part of the mineral processing design
in order to provide the necessary
extraction conditions for certain metals
and tend to favor dissolution of some
metals over others. Furthermore, EPA is
not precluding the use of metal recovery
technologies for wastewaters, which
typically include reverse osmosis,
cation exchange, chelation, solvent
extraction, electrolysis, and selective
precipitation.
  The cyanide wastewater and
nonwastewater UTS were based on the
treatment of wastewaters via alkaline
chlorination. These standards were
promulgated for total and amenable
cyanides. In applying UTS level
wastewater standards to these wastes,
EPA notes that metal and cyanide limits
set for this industry under CWA
categorical standards are equal to or less
than the UTS.
  Mineral processing wastes may also
exhibit some of the other characteristics,
usually corrosivity or reactivity. In such
cases, the waste would have to be
treated to remove the  characteristic
property as well as to treat any
underlying hazardous constituents that
are present in treatable concentrations.
With respect to treatment of corrosive
mineral processing wastes, EPA has
information indicating that recovery
processes such as solvent extraction,
crystallization, and incineration can
recover the sulfuric acid for reuse (see
"Treatment Technology Background
Document" dated January, 1991; also
Background Document supporting
BOAT for K061, dated August, 1991).
EPA requests comment on any recovery
process for the acidic wastes from
mineral processing. Information
submitted should include limitations
based on waste specifications and
performance data showing untreated
and treated concentrations of the metal
impurities found in these corrosive
wastes.
   This proposal also covers one further,
somewhat anomalously classified, type
of mineral processing waste—newly
identified wastes from manufactured gas
plants. During the process of developing
the Phase II rule, EPA received several
comments requesting clarification of the
regulatory status of de-Bevilled wastes
from manufactured gas plants. These
wastes are considered to be from
mineral processing, for reasons
explained in the 1989 regulatory
classification rulemaking. 54 FR 36592,
36619 (September 1,1989). The Agency
                         indicated that these newly identified
                         wastes would be subject.to treatment
                         standards developed for newly
                         identified mineral processing wastes in
                         this proceeding. 54 FR at 36624. Today's
                         proposal applies to all of the hazardous
                         wastes from manufactured gas plants
                         that no longer have Bevill status. Unlike
                         the other mineral processing wastes,
                         however, these wastes are primarily
                         organic and thus would be amenable to
                         treatment by combustion technologies.
                         Since combustion is generally not a
                         matrix-dependent type of treatment,
                         EPA sees no reason that these wastes
                         could not be treated to achieve UTS for
                         the contained organic hazardous
                         constituents.
                         VI. Capacity Determination for the
                         Newly Identified Mineral Processing
                         Wastes
                         A. Introduction
                            This section summarizes the results of
                         the capacity analysis for the newly
                         identified mineral processing wastes.
                         For details on data sources,
                         methodology, and the capacity analysis
                         for the wastes covered in this proposed
                         rule, see the "Background Document for
                         Capacity Analysis for Land Disposal
                         Restrictions, Phase IV—Newly
                         Identified Mineral Processing Wastes
                          (Proposed Rule)."
                            In general, EPA's capacity analysis
                         focuses on the amount of waste to be
                         restricted from land disposal that is
                         currently managed in land-based units
                         and that will require alternative
                         treatment as a result of the LDRs. The
                          quantity of wastes that are not managed
                          in land-based units (e.g., wastewaters
                         managed only in RCRA exempt tanks,
                         with direct discharge to a POTW) is not
                          included in the quantities requiring
                          alternative treatment as a result of the
                          LDRs. Also, wastes that do not require
                          alternative treatment (e.g., those that are
                          currently treated using an appropriate
                          treatment technology)  are not included
                          in these quantity estimates.
                            EPA's decision on whether to grant a
                          national capacity variance is based on
                          the availability of alternative treatment
                          or recovery technologies. Consequently,
                          the methodology focuses on deriving
                          estimates of the quantities of waste that
                          will require either commercial treatment
                          or the construction of new on-site
                          treatment as a result of the LDRs.
                          Quantities of waste that will be treated
                          adequately either on-site in existing
                          systems or off-site by facilities owned by
                          the same company as the generator (i.e.,
                          captive facilities) are omitted from the
                          required capacity estimates.23  .
B. Capacity Analysis Results Summary
  EPA is considering several regulatory
options that may affect the
determination of a national capacity
variance  for the newly identified
mineral processing wastes. Details of the
methodology and estimates of affected
facilities  and waste quantities are
provided in the capacity analysis
technical background document
described above.
  EPA estimates that for the regulatory
options described previously for the
newly identified mineral processing
wastes, few (if any) facilities or waste
quantities will be affected by this rule.
This estimate is based on data
indicating that the current predominant
management of these wastes,
stabilization, will be adequate for
meeting the proposed treatment
standards. Thus, a national capacity
variance  is not warranted for all or most
of these wastes since ample stabilization
treatment capacity exists. Exceptions
appear to be the relatively small
quantities of nonwastewaters with
sufficiently high levels of arsenic or
mercury  and with certain types of waste
characteristics for which treatments
such as vitrification (for arsenic-
containing wastes) or acid leaching/
retorting (for mercury-containing
wastes) might be required. Because
these treatments do not appear to be
commercially available at this time, EPA
is proposing to grant a one-year national
capacity  variance for characteristically
hazardous arsenic nonwastewaters and
High Mercury Subcategory
nonwastewaters (i.e.,  260 mg/kg  and
above total mercury).  EPA also is
considering to further define which
arsenic wastes would not be amenable
to available treatment to meet the
standards, and thus would need  the
variance. For example, EPA could use
criteria such  as concentration (as with
mercury  wastes), metal species, and/or
waste characteristics.
  Because the information on which
these proposed variance decisions are
based may be incomplete or dated, EPA
requests  data on the generation,
characteristics, and management of the
newly identified mineral processing
wastes, particularly for any wastes that
may pose unique treatability and/or
capacity problems. Furthermore,
although EPA believes that stabilization
                            23 Traditionally, capacity analyses have focused
                          on the demand for alternative capacity once
existing on-site capacity and captive off-site
capacity have been accounted for. However, for
some of the wastes at issue in this proposed rule,
it may not be feasible to ship wastes off-site to a
commercial facility. In particular, facilities with
large volumes of wastes may not readily be able to
transport their waste to treatment facilities.
Alternative treatment for these wastes may need to
be constructed on site.

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              Federal Register / Vol. 61, No.  17 / Thursday, January 25, 1996 / Proposed Rules
                                                                      2361
can moot the treatment standards
proposed for the majority of these
wastes, EPA encourages the use of
recovery technologies where feasible.
EPA requests comments and data on
metals recovery processes including
applicability to different waste groups,
capacity, and whether additional time
will be needed to construct these
processes.
  EPA currently does not have data on
tho quantities of soil and debris that
may be contaminated with newly
identified mineral processing wastes.
However, as with other newly identified
mineral processing wastes, few (if any)
facilities or waste quantities are likely to
be impacted by the proposed rule.
Therefore, EPA is proposing not to grant
a national capacity variance for soil and
debris contaminated with newly
identified mineral processing wastes.
EPA requests comment and data on the
generation and management of soil and
debris contaminated with newly
identified mineral processing wastes.
  Finally, despite the uncertainty about
quantities of radioactive wastes mixed
with newly identified mineral
processing wastes, any new commercial
capacity that becomes available will be
needed for mixed radioactive wastes
that were regulated in previous LDR
rulcmakings and whose variances have
already expired.  Thus, EPA has
determined that  sufficient alternative
treatment capacity is not available for
any newly identified mixed radioactive/
mineral processing wastes, and
therefore is proposing to grant a two-
year national capacity variance for these
wastes. EPA requests comment and data
on tho generation and management of
newly identified mixed radioactive/
mineral processing wastes.
  EPA notes further that the proposal
would encourage recycling of mineral
processing secondary materials through
an exclusion from the definition of solid
waste. This should, among other things,
reduce the amount of wastes subject to
LDR standards and correspondingly
reduce the necessity of national capacity
variances. However, where land-based
process units are involved, the
exclusions are conditioned on the units'
satisfying certain criteria in a manner
that may require some time. For
example, if a unit must install
groundwater monitoring, or make
changes in design, or receive case-by-
case approval of alternative design or
operating practices from an authorized
state, tho changes could not be made
immediately. EPA is not proposing any
type of national capacity variance to
accommodate these situations. Because
the portions of the rule dealing with
amendments to the solid waste
definition are not bfeing proposed
pursuant to HSWA,; they would not take
effect immediately in authorized states,
and instead would wait on the
authorization process. This could take
several years. It is EPA's initial view
that this process would provide
sufficient lead time'in authorized states
for facilities intending to utilize land-
based process units to adjust their
operating practices.

C. Mineral Processing Wastes Injected
Into Class I Underground Injection
Wells
  Class I injection wells currently
receive mineral processing wastes for
which EPA is proposing treatment
standards today. The volumes vary in
amount by facility and are all disposed
on site. None of the£e facilities transport
their waste off-site Or currently have the
necessary capacity to treat their waste
on-site by acceptable means.
Additionally, for those facilities affected
by the proposed treatment standards
which are unable to make a successful
no-migration demonstration and/or are
unable to meet the requirements of other
proposed options, constructing a
treatment facility on-site would require
a significant amount of time. Therefore
the Agency is proposing to grant a two-
year national capacity variance for these
wastes.
  EPA requests comments on this
proposed capacity determination. In
particular, EPA requests data on the
generation, characteristics, and
management of the wastes injected into
Class I wells. In addition, EPA requests
data on the availability of treatment
capacity for these Wastes.
Part Two: Other RCRA Issues
I. Exclusion of Processed Scrap Metal
and Shredded Circuit Boards from the
Definition of Solid Waste

A. Processed Scrap'Metal Being
Recycled         ;

1. Summary
  The Agency proposes to amend the
definition of solid Waste by excluding
processed scrap metal being recycled
from RCRA jurisdiction. After further
study, the Agency Relieves that
processed scrap metal being recycled is
distinct from other Secondary materials
defined as wastes diie to established
markets for the material's utilization,
inherent positive economic value of the
material, the physiqal form of the
material, and absenpe of damage
incidents attributable to the material.
2. Background    '
  When EPA amended the definition of
solid waste in 1985J the Agency
established RCRA jurisdiction over
some secondary materials being
recycled based upon both the type of
material and how it was recycled or
managed. See 40 CFR § 261.2(c). As part
of the final rule, the Agency created a
classification for scrap metal. 50 FR 614,
624 (January 4,1985). The Agency
defined scrap metal as bits and pieces
of metal parts (e.g., bars, turnings, rods,
sheets, wire) or metal pieces that are
combined together with bolts and
soldering (e.g., radiators, scrap
automobiles, railroad box cars), which
when worn or superfluous can be
recycled. The Agency excluded from the
definition of scrap metal: secondary
materials from smelting and refining
operations (e.g., slags, drosses and
sludges), liquid wastes containing
metals (e.g., spent acids and caustics),
liquid metal wastes (e.g., liquid
mercury), and metal-containing wastes
with a significant liquid component
(e.g., spent lead-acid batteries). The
Agency distinguished scrap metal from
these other metal-bearing secondary
materials because of the differences
between them in physical form, content,
and manageability.
  Although the Agency included scrap
metal in the definition of solid waste
(and hazardous waste if the material
exhibits a characteristic of
hazardousness), EPA exempted all scrap
metal being recycled from RCRA
Subtitle C regulation as an interim
measure to allow the Agency to study
scrap metal management. 50 FR 614,
649; 40 CFR 261.6(a)(3)(iv). EPA
deferred regulating scrap metal being  .
recycled in order to determine whether
RCRA regulation and enforcement of
scrap metal would be feasible  and
necessary. Based on further study of
literature, databases and consultation
with Bureau of Mines commodity trade
specialists, the Agency believes that
because processed scrap metal being
recycled is sufficiently commodity-like,
regulation of this material is not
necessary. Based on this study and
consultation, the Agency also believes
that processed scrap metal being
recycled should be excluded from the
definition of solid waste because this
type of material has not been shown to
be part of the waste disposal problem.

3. Definition of Processed Scrap Metal
  Today's proposal is restricted.to scrap
metal which has been processed by
scrap metal recyclers to be traded on
recycling markets for further
reprocessing into metal end products.
Processing of scrap metal in this context
includes: 1) manual or mechanical
separation of scrap metal either into
specific scrap categories containing

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different metals (e.g., ferrous and non-
ferrous, copper and steel) or metal and
non-metal components (such as
shredded steel and fluff), and 2) unit
operations such as sintering and melting
operations which melt or agglomerate
materials such as drosses and fines into
scrap metal. In the first category;
processing includes but is not limited to
bailing, shredding and shearing
operations. This category of processing
also includes manual or other
separation of unprocessed or partially
processed scrap metal into separate
categories to enhance the economic
value of the material. The second
category of processing includes unit
operations (such as sintering or melting
operations) which change the physical
form of secondary materials into scrap
metal for secondary materials that
would not otherwise be scrap metal
prior to processing such as drosses and
fines.
  Processed scrap metal does not
include any distinct components
separated from unprocessed or partially
processed scrap metal that would not
otherwise meet the current definition of
scrap metal. For example, processed
scrap metal does not include batteries,
capacitors or other liquid-bearing metal
articles; fluff or other non-metal
residuals; liquid metals such as mercury
or metal-bearing liquids such as spent
caustics and acids, and process
secondary materials such as slags,
drosses, ashes and sludges which have
a physical form dissimilar to scrap
metal.
  The Agency is proposing to exclude
processed scrap metal being recycled
from the definition of solid waste
because EPA believes that this type of
secondary material is a commodity-like
and has not historically contributed to
the waste management problem. Unlike
many other metal-bearing secondary
materials, processed scrap metal has
qualities which make it unlikely to
contribute to the waste management
problem.
  In making this finding, EPA has
considered  the following factors
relevant in determining whether or not
processed scrap metal is commodity-
like. These factors are the same criteria
listed in 40 CFR § 260.31(c) providing a
variance from the definition of solid
waste  for materials that have been
reclaimed but must be reclaimed
further): 1) the degree of processing the
material has undergone and the degree
of further processing that is required, 2)
the value of the material after it has
been reclaimed, 3) the degree to which
the reclaimed material is like an
analogous raw material, 4) the extent to
which an end market for the reclaimed
                          material is guaranteed, 5) the extent to
                          which a material is managed to
                          minimize loss.
                            Regarding the first factor or the degree
                          of processing, processed scrap metal as
                          defined in this proposal has been
                          separated, melted or otherwise
                          processed to add value or improve
                          handling qualities. This processing is
                          necessary for the purpose of adding
                          value, meeting product specifications
                          (and subsequent use) and helping to put
                          the metal into a form to help minimize
                          loss either by removing dispersible non-
                          metallic components (e.g., removing
                          fluff) or by converting a dispersible
                          metal (e.g., fines) into a non-dispersible
                          scrap metal form. Virtually all processed
                          scrap metal undergoes further
                          processing prior to being manufactured
                          into a consumer article. However, the
                          economic value added to the processed
                          scrap itself is significant.
                            With respect to the second factor
                          regarding the value of the material,
                          processed scrap metal is typically
                          traded  nationally and internationally in
                          established markets for positive
                          economic value (i.e., the processor is
                          paid by the purchaser for the metal). In
                          general, processed scrap metal is sold
                          under market specifications for purity
                          and physical form to ensure efficient
                          recycling of the material.24
                            Regarding the third factor, processed
                          scrap metal is very similar to analogous
                          raw metal concentrates and
                          intermediates. For example, in the iron
                          and steel industry, electric arc furnaces
                          (which typically use processed scrap
                          iron and steel as an input) compete in
                          steel production with integrated steel
                          facilities (which use basic oxygen
                          furnaces that typically use iron derived
                          from iron ore as an input). Non-ferrous
                          processed scrap such as aluminum cans
                          is a significant portion of the current
                          aluminum market.
                            Fourth, guaranteed end-markets at
                          smelters, mills and foundries for
                          processed scrap metal are likely given
                          the economic value added to the
                          material through processing. Because
                          processed scrap has been sorted, sized,
                          separated and agglomerated for
                          insertion into a manufacturing process
                          to produce a metal intermediate or end
                          product, it is likely that processed scrap
                          metal will continue to be a substitute for
                          raw material feedstocks. Because
                          analogous raw materials (e.g., ores) are
                            24 See Institute of Scrap Recycling Industries
                          (ISRI) Scrap Specifications Circular 1994, Guideline
                          for Ferrous Scrap, Nonferrous Scrap, Paper Stock,
                          Plastic Scrap. Note: some materials listed in this
                          circular which are considered scrap metal by ISRI
                          are not scrap metal under the Resource
                          Conservation and Recovery Act such as battery
                          plates, drosses and other materials.
finite and non-renewable, their
decreasing supply will also ensure that
end markets for processed scrap metal
remain.
  Finally, regarding the extent to which
processed scrap metal is managed to
minimize loss and release to the
environment, available information
indicates that processed scrap metal has
little potential for release because it is
usually in a solid non-dispersible form
and is managed to minimize loss
because of its economic value. The
Agency's review of damage incidents on
both the Superfund (RODS) database
and Damage Incident Data Base (DIDB)
related to hazardous waste recycling,
consultation with Bureau of Mines .
commodity trade specialists and
relevant literature and on-line searches
failed to reveal any incidents where
releases to the environment of
hazardous constituents were attributable
to the management of processed scrap
metal itself. In this review, the Agency
assessed the potential of any hazardous
constituents in processed scrap to be
released to the environment during its
management prior to final recovery.
  However, EPA's review  did indicate
that materials generated from the
recycling of unprocessed scrap were
mismanaged and have historically
contributed to the waste management
problem. These materials include
batteries, ash, and other residuals from
processing scrap metal. Many of these
residuals are subject to full or partial
regulations under RCRA Subtitle C.25
The Agency is continuing to evaluate
whether or not the regulation of
unprocessed scrap is necessary. For the
time being, we are proposing to
continue to assert RCRA jurisdiction for
unprocessed scrap metal being recycled
while maintaining the regulatory
exemption. The Agency solicits
comment on the availability of data for
evaluating risks to human health and
the environment potentially posed by
unprocessed scrap metal destined for
reclamation.

B. Shredded Circuit Boards
  EPA is also  proposing today to
exclude shredded circuit boards
destined for metal recovery that are
managed in containers during storage
and shipment prior to recovery from the
definition of solid waste in order to
facilitate recovery of this material.
   Circuit boards destined  for recovery
are often processed through shredders,
hammer mills and similar devices to
decrease the size of the boards for a
  25 For example, spent lead-acid batteries are
subject to specific standards when destined for
metal recovery. See 40 CFR Part 266 Subpart G.

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             Federal Register / Vol. 61, No.  17 / Thursday, January 25, 1996  /  Proposed Rules
                                                                     2363
number of reasons. First, the smaller
size improves the handling of the
material. Shredded circuit boards are
often shipped in boxes, bulkbags,
supersacks, drums and other containers.
Shredding increases the hulk density
(e.g. the number of boards per container)
of the shipment. Second, shredding
improves assaying of circuit boards for
precious metal (gold, platinum, silver)
or base metal content (copper) by
allowing representative sampling of a
commingled pile of many shredded
boards. Finally, shredding circuit boards
assists recyclers in destroying
proprietary information in circuit
boards received from customers. This
assures customers of protecting business
information that may be in spent circuit
boards.
  However, shredded circuit boards
may not qualify as scrap metal because
the fines that are generated when the
boards are shredded do not meet the
current regulatory definition of scrap
metal (scrap metal being recycled is
currently exempt from RCRA
regulation). These fines are dispersible
and so are commingled with the chunks
of shredded circuit board and must stay
commingled in order to allow an
accurate assay of a sample of the
shredded boards.
  Although shredded'circuit boards
may not qualify as scrap metal, EPA
believes that when these materials are
properly containerized when stored or
shipped prior to recovery that they are
managed more like articles in commerce
than wastes. For these reasons, EPA is
proposing to exclude shredded circuit
boards from the definition of solid waste
in order to facilitate their recovery.
Although many shredded circuit boards
may be  eligible for regulatory exemption
from 40 CFR Part  266 Subpart F
requirements due to their precious
metal content, the boards would remain
subject to generator manifesting and
export requirements. These
requirements may operate as
disincentives to recovery, especially for
shipments abroad because of delays in
transporting shipments and receiving
payment for processed materials. Since
many precious metal recyclers operate
on a short cash flow, they are dependent
upon their payment for shipments of
shredded boards sold to smelters and
other processors to pay customers for
shipments of circuit boards they receive.
EPA believes that this exclusion will
facilitate shredded circuit board
recovery.
  In 1992, EPA issued a memorandum
to EPA Regional Waste Management
Directors that stated that used whole
circuit boards when sent for reclamation
could be considered to be scrap metal
and therefore exempt from RCRA
regulation. EPA does not propose to
disturb this regulatory interpretation
with today's proposal for prepared scrap
metal. For the time being, used whole
circuit boards may j continue to shipped
as scrap metal. Used whole boards do
not meet the definition of processed
scrap metal as defined in this proposal
because they are essentially in the same
physical form when sent for recovery
that they are in when generated.
n. Proposed Reduction in Paperwork
Requirements for the Land Disposal
Restrictions Program
  In January 1995,|the Administrator
announced a reporting and
recordkeeping reduction goal of 25% for
the Agency. This Burden Reduction
initiative also begins implementation of
one of the reinvention projects set forth
in the President's March 16,1995,
report on "Reinventing Environmental
Regulations." The baseline from which
the 25% reduction will be calculated is
the reporting and recordkeeping burden
hours as described in the Information
Collection Request (ICR) documentation
as of January 1,1995. In meeting this
goal, the Administrator has committed
the Agency to making the necessary
changes to existing regulations to reduce
the overall Agency paperwork burden
by June 30,1996.
  One of the largest programs in terms
of reporting and recordkeeping burden
in the Office of Solid Waste (OSW) is
the Land Disposal Restrictions (LDR)
program. The LDR program was created
as part of the Hazardous and Solid
Waste Amendments to the  Resource
Conservation and  Recovery Act (RCRA),
signed into law on| November 8,1984.
In setting concentration levels or
methods of treatment for restricted
wastes, EPA has implemented
numerous reporting and record keeping
requirements to ensure that the
regulated community complies with the
regulations set foiih by the Agency. As
the LDR program has grown, the
regulated community better understands
the LDR requirements. Therefore some
of the paperwork is no longer essential.
In order to ease the regulated
community's paperwork burden, the
Agency has taken pction to revise some
of the LDR reporting and record keeping
requirements in previous rules. This
notice proposes additional changes to
the LDR paperwork requirements.
  EPA proposed bjurden reduction
changes in the LDR Phase IV rule on
August 22,1995 (60 FR 43654). Those
proposed changes .would result in a
reduction of approximately 110,000
hours per year of paperwork burden.
Today, the Agency is proposing further
changes to the notification requirements
found in the LDR program for an
estimated reduction of 1,519,000 hours
per year of paperwork burden. This
reduction combined with the proposed
burden reduction from Phase IV, results
in proposed reductions in paperwork
burden for the LDR program of
approximately 1,629,000 hours per year.
The Agency believes that the following
changes can be implemented without
compromising the protectiveness or
enforceability of the LDR program.

A. Section 268.7
  Under existing § 268.7(a), generators
managing restricted wastes must
determine whether the wastes meet
applicable treatment standards at the
point of generation, or are otherwise
exempt from those standards. For waste
that does not meet the treatment
standards  as generated, under
§ 268.7(a)(2), the generator must notify
the treatment or storage facility in
writing with each shipment. This
notification must include the waste.
code and manifest number, waste
analysis data  (if available), and  other
waste specific information.
  As part of the Agency's 25% Burden
Reduction goal, the Agency is proposing
to change this notification requirement
to a one-time notification. Thus, if a
generator repeatedly generates wastes
which do not meet the appropriate
treatment  standards, but the
composition of these wastes, or the
process generating the wastes, or the
treatment  facility receiving the wastes
does not change, then the generator
would only be required to submit a one-
time notification to the receiving
treatment  facility. A copy of the
notification would be kept in the
generator's file. If the waste changes, or
the process changes, or the receiving
treatment facility changes, then the
generator would be required to  send a
new notice to the receiving facility, and
place a copy of this new notice in their
files.
  The proposed one-time notification
and certification requirement for wastes
that do not meet the treatment standard
as generated, however, would not, apply
to lab packs. Under the LDR program, a
generator  of a lab pack can either meet
the treatment standards and paperwork
requirements'of all the hazardous
wastes included in the lab pack, or meet
the streamlined lab pack requirements
of § 268.42(c) and the paperwork
requirements of § 268.7(a)(9). Today's
proposed  one-time notification and
certification apply only when the waste,
the process, and the receiving facility do
not change from waste shipment to
waste shipment. The Agency believes

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2364         Federal Register  /  Vol.  61,  No. 17  / Thursday, January  25,  1996  /  Proposed Rules
that it is highly unlikely that lab packs
will contain exactly the same hazardous
wastes each time they are generated,
since they are typically used to
consolidate small amounts of a number
of various chemical wastes to facilitate
handling and treatment. Therefore, the
one-time notification provision would
not be appropriate for lab pack wastes.
Comments are solicited on this issue.
  Under existing § 268.7(b), treatment
facilities are required to send a
notification when they ship wastes or
treatment residue to land disposal
facilities or to different treatment
facilities for further management. As
part of the Agency's 25% Burden
Reduction Goal, EPA is proposing that
when a treatment facility is shipping
waste or treatment residue for further
management at a land disposal facility
or other treatment facility, and the
waste, treatment residue or land
disposal/treatment facility does not
change, then the treatment facility will
only be required to submit a one-time
notification and certification to the
receiving facility. A copy of the
notification and certification would be
kept in the treatment facility's file that
sent the waste. If the waste or treatment
residue changes, or the receiving facility
changes, then the treatment facility
would be required to provide a new
notice and certification to the receiving
facility, and place a copy in their files.

B. Clean Up of Part 268 Regulations
  In the Land Disposal Restrictions—
Phase IV Proposed Rule, dated August
22,1995, EPA proposed to "clean up"
the existing regulatory language that
was  outdated, confusing or unnecessary.
Some sections were clarified, some were
condensed and some were altogether
removed. The Agency is using the Phase
IV proposed regulatory language as the
base from which today's changes would
be made. Therefore, the regulatory
language that follows is a revision to the
proposed regulatory language in the
August 22,1995, Phase IV rule (60 FR
43654). For Sections 268.7(a)(2), (a)(9),
(b)(3), and (b)(4), comments should be
submitted on the regulatory language as
it appears in today's rule.

Part Three: Administrative
Requirements and State Authority
I. Environmental Justice

A. Applicability of Executive Order
 12898
  EPA is committed to address
environmental justice concerns and is
assuming a leadership role in
 environmental justice initiatives to
 enhance environmental quality for all
residents of the United States. The
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 and
environmental effects as a result of
EPA's policies, programs, and activities,
and all people live in clean and
sustainable communities. In response to
the Executive Order 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).

B. Potential Effects of This Rule
  Today's proposed rule covers wastes
from mineral processing operations. The
environmental problems addressed by
this rule could disproportionately affect
minority or low income communities,
due to the locations of some mineral
processing facilities and disposal
facilities. Mineral processing sites are
distributed throughout the country and
many are located within highly
populated areas. Mineral processing
wastes have been disposed of in various
states throughout the U.S., representing
all geographic and climatic regions. In
some instances, the mineral processing
waste is generated in one state and
disposed of in another. In addition, the
Agency found that mineral processing
wastes are occasionally disposed of in
municipal solid waste landfills. In some
cases, mineral processing wastes may be
located in low-income rural areas on or
near Native American Tribal lands.
   Today's rule is intended to reduce
risks from mineral processing wastes,
and to benefit all populations. It is not
expected to cause any disproportionate
negative impacts to minority or low
income communities versus affluent or
non-minority communities.
   The Agency is soliciting comment and
input on the implications of this rule for
environmental justice, from all
interested persons, including members
of the environmental justice community
and members of the regulated
community. The Agency encourages all
interested parties to provide comments
or further information that might assist
the Agency in further assessing impacts
on minority or low-income populations.
Specifically, the Agency is interested in
receiving additional information and/or
comment on the following:
   •  The location of mineral processing
facilities relative to population centers
   •  Information indicating that mineral
processing wastes have been
 mismanaged and co-disposed with other
 wastes in municipal solid waste
 landfills.

 H. State Authority

 A. Statutory Authority
   Under section 3006 of RCRA, EPA
 may authorize qualified States to
 administer and enforce the RCRA
 program within the State. Following
 authorization, EPA retains enforcement
 authority under section 3008, 3013, and
 7003 of RCRA, although authorized
 States have primary enforcement
 responsibility. The standards and
 requirements for authorization are
 found in 40 CFR Part 271.
   Prior to HSWA, a State with final
 authorization administered its
 hazardous waste program in lieu of EPA
 administering the Federal program in
 that State. The Federal  requirements no
 longer applied in the authorized State,
 and EPA could not issue permits for any
• facilities that the State was authorized
 to permit. When new, more stringent
 Federal requirements were promulgated
 or enacted, the State was obliged to
 enact equivalent authority within
 specified time frames. New Federal
 requirements did not take effect in an
 authorized State until the State adopted
 the requirements as State law.
   In contrast, under RCRA section
 3006(g) (42 U.S.C. 6926(g)), new
 requirements and prohibitions imposed
 by HSWA take effect in authorized
 States at the same time that they take
 effect in unauthorized States. EPA is
 directed to carry out these requirements
 and prohibitions in authorized States,
 including the issuance of permits, until
 the State is granted authorization. New
 Federal requirements which are less
 stringent than the State program are not
 in effect in the State unless and until the
 State adopts such provisions.
    Some portions of today's proposal
 implement HSWA provisions; others do
 not. The LDR treatment standards are
 being proposed pursuant to section 3004
 (g) through (k), and 3004 (m). These are
 provisions added by HSWA. The
 proposed application of the TCLP to
 mineral processing wastes likewise
 implements an HSWA provision,
 section 3001(g). Thus, the more
 stringent Federal requirements will take
 effect immediately in all States. These
 rules would be added to Table 1 in 40
 CFR 271.l(j), which identifies the
 Federal program requirements that are
 promulgated pursuant  to HSWA, and
 would take effect in all States,
 regardless of authorization status. States
 may apply for final or interim
 authorization for the HSWA provisions
 in Table 1, as discussed in the following

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             Federal Register  / Vol.  61, No. 177 Thursday, January 25, 1996 / Proposed Rules         2365
section of this preamble. Table 2 in 40
CFR 271.1(j) is also modified to indicate
that those provisions of this rule are
solf-implementing provisions of HSWA.
EPA is proposing that all other parts of
tho rule implement non-HSWA
statutory provisions.
  Thus, the LDR treatment standards
and the application of TCLP
(requirements of this rule which have
been identified as HSWA), will take
effect immediately in all States. States
may apply for either interim or final
authorization for the HSWA provisions
identified in Table 1. The remaining
requirements (including the proposed
changes to the definition of solid waste
for the mineral processing sector) are
non-HSWA and will not take effect in
the State until the State is authorized for
those requirements. The determination
of whether a mineral processing waste
is a solid waste and thus subject to the
LDR treatment standards is a non-
HSWA portion of this proposed rule.
Because this criterion is non-HSWA, it
will not take effect until and unless the
State adopts that provision of the rule.
Since the treatment standards being
proposed in today's rule are HSWA
provisions, they will take effect
immediately. However, unless the
mineral processing waste is currently
included in the authorized State's
definition of solid waste, the treatment
standards will not apply.
B. Streamlined Authorization
Procedures
  The different levels of authorization
review will be more thoroughly
discussed in the upcoming HWIR-media
proposal. The HWIR-media proposal
will explain and take comment on an
overall expedited authorization scheme.
However, those portions which apply to
this proposed rule are discussed below.
EPA requests comment on this proposed
expedited approach.
1. Applicability of Proposed Phase IV
Expedited Authorization
   It is EPA's policy to provide as much
flexibility as possible in order to
encourage States to become authorized
for rules under the hazardous waste
program. EPA discussed an expedited
authorization approach in the proposed
Phase IV LDR rule (60 FR 43688, August
22,1995). In that proposal EPA stated
that the expedited approach would
apply to those minor or routine changes
to the existing program that do not
expand the scope of the program in
significant ways. Under that approach,
the State would be required to certify
that provisions it has adopted provide
authority that is equivalent and no less
stringent than the Federal provisions.
Within 60 days of receiving a complete
certification, EPA would provide notice
to the public approving the State
authorization. Then, the public would
have an opportunity for comment, as
provided by the existing regulations
governing authorization revisions. See
40 CFR 271.21.  •
  The Agency  notes that in the Phase IV
proposal, EPA proposed that certain
portions of the Phase IV rule be
authorized pursuant to the conventional
authorization procedures. In this
proposal, EPA is reproposing whether
expedited procedures are appropriate
for the following reasons. First, as
discussed in the Phase IV proposal, EPA
believes that by virtue of a State having
obtained authorization for both the base
RCRA program and portions of the LDR
program, the State demonstrated its
capability in the administration and
implementation and enforcement of
those programs. States that are
authorized for the base RCRA program
and portions of the LDR program are
familiar with the type of rule changes as
well as the requisite legal requirements
needed to implement the provisions in
today's proposed rule. Second, the
revisions to the authorized program
both in today's proposal and in portions
of the Phase IV proposal allow the State
program to be  authorized to have the
flexibility to develop appropriate case-
by-case determinations. Thus, the
equivalency determination of the State
program is more fully evaluated by the
way the State implements the program.
Finally, this proposed rule would
authorize States to make case-by-case
determinations for a limited number of
units. EPA believes that the addition of
a few units does riot significantly
expand the State program. Accordingly,
the Agency believes that another
detailed evaluation by EPA is not
warranted under Such circumstances.
EPA believes that-EPA's evaluation of
the authorized State need only ascertain
that the State has khe requisite legal
authorities and resources to control the
land-based units (or, in the case of the
Phase IV proposal, impoundments
receiving dechara'cterized wastes).
   For these reasons EPA is proposing to
give great weight to the statements and
legal certification; submitted by the
State, and believes that the expedited
authorization  approach discussed in the
Phase IV proposed mle is appropriate
for this rule with |a few additional
requirements. In today's proposed rule
EPA is proposing'that the State, in its
certification, provide EPA with
assurances that they have the legal
authority to implement the key
requirements of this rule. EPA will
focus its review on the completeness of
the certification to ensure that the key
requirements have been addressed.

2. Key Requirements for Assessing
Land-Based Units
  For today's proposed rule, EPA is
proposing an expedited review process
similar to the Phase IV proposal except
that the certification will include a
written assurance that the State has the
legal authority to implement the key
requirements of this rule.
  The key requirements of the State
program will primarily focus on the
non-HSWA portion of the rule which
contains the requirements for changes to
the definition of solid waste for the
mineral processing sector. That portion  •
of today's proposed rule  contains
conditional exclusions for mineral
processing residuals being managed in
land-based process units provided that
these units are designed and operated in
accordance with the proposed
conditions (including conditions
developed on a site-specific basis by an
authorized State or EPA Region). There
are several means of showing that the
exclusion is satisfied. Two ways involve
the unit meeting specific requirements
or conditions as described in this
proposed rule. As noted, the third
allows the unit to receive a site-specific
determination from EPA or an
authorized State that the design and
operation of the unit is sufficiently
protective to indicate that the unit is a
process unit, generally considering the
factors set out in the  environmental
performance standard for land disposal
units set out in 40 CFR 267.10.
   In order to streamline the process for
States to become authorized to make
these determinations, EPA is proposing
to evaluate a limited number of specific
criteria as follows:
   • First, the State program must
demonstrate that it can distinguish land-
based units receiving mineral
processing residuals from those units
operating as waste disposal units, upon
consideration, at least in part, of the
factors set out in the environmental
performance standard set out in 267.10.
   • Second, the State must have the
following legal authorities: 1) to impose
preventive measures (including design
and operating conditions) on these
units; 2) to establish groundwater
protection criteria; 3) to  require
groundwater monitoring; and 4) to
detect and remediate releases of
hazardous constituents from the unit to
groundwater should such releases
occur. It should be noted, however, that
the State's authority  need not exist
solely (or even in part) under State
RCRA authorities. States may act, for

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2366         Federal  Register / Vol. 61, No. 17  /  Thursday,  January 25,  1996  /  Proposed Rules
example, pursuant to general aquifer-
protection authority.
  • Third, the State program must
provide for public participation in the
process of developing requirements for
particular land-based units.
  EPA is proposing that the State
program provide for public participation
in the State's process of developing
requirements for particular land-based
units. Such public participation would
include both the unit owner/operator
and the general public. Public
participation is critical at these mineral
processing units because their
conditional exclusion from the
definition of solid waste is based on
specific conditions the public will not
be aware of, and have no opportunity to
influence, unless they are informed. An
aspect of this public participation
process would normally include a
State's explanation for  a site-specific
determination, including why particular
design and operating conditions were or
were not selected (for example, because
groundwater is too remote from the unit
to warrant any further design above the
basic unit integrity standard to prevent
contamination).

3. Stringency of Proposed Rule
   Authorized States are only required to
modify their programs when EPA
promulgates Federal standards that are
more stringent than the existing Federal
standards. The amendments to 268.7 (a)
(2) and (9); (b) (3) and (4) in today's
proposed rule are not considered to be
more stringent than the existing Federal
requirements. Therefore, authorized
States are not required to modify their
programs to adopt requirements
equivalent to the provisions contained
in today's proposed rule.
   Today's rule contains one provision
which is less stringent than the current
Federal program. This  is the provision
which would allow mineral processing
spent materials being reclaimed to be
excluded from the definition of solid
waste. This provision can be adopted at
the States' option. However, EPA
strongly encourages States to adopt this
provision. As stated earlier in the
preamble, part of the purpose of the
proposal is to eliminate distinctions
among reclaimed spent materials,
byproducts, and  sludges within this
industry. EPA believes that this change,
in combination with the conditioned
exclusion for the byproducts and
sludges, will result in more control over
land-based mineral processing units
than exists presently, encourage
additional material recovery within the
industry, and will also simplify the
solid waste regulatory classification
scheme. In addition, State adoption of
these provisions will provide national
consistency.
C. Authorization Procedures
  Because portions of today's rule are
proposed pursuant to HSWA, a State
submitting a program modification for
those portions may apply to receive
interim or final authorization under
RCRA section 3006(g)(2) or 3006(b),
respectively, on the basis of
requirements that are substantially
equivalent or equivalent to EPA's. The
procedures and schedule for State
program modifications for final
authorization are described in 40 CFR
271.21. It should be noted that all
HSWA interim authorizations will
expire January 1, 2003. (See § 271.24(c)
and 57 FR 60132, December 18, 1992.)
  Section 271.21(e)(2) requires that
States with final authorization modify
their programs to reflect Federal
program changes and subsequently
submit the modification to EPA for
approval. The deadline by which the
State would have to modify its program
to adopt these regulations is specified in
section 271.21(e). This deadline can be
extended in certain cases (see section
271.21(e)(3)). Once EPA approves the
modification, the State requirements
become Subtitle C RCRA requirements.
  States with authorized RCRA
programs may already have
requirements similar to those in today's
proposed rule. These State regulations
have not been assessed against the
Federal regulations being proposed
today to determine whether they meet
the tests for authorization. Thus, a State
is not authorized to implement these
requirements in lieu of EPA until the
State program modifications are
approved.  Of course, States with
existing standards could continue to
administer and enforce their standards
as a matter of State law. In
implementing the Federal program, EPA
will work with States under agreements
to minimize duplication of efforts. In
most cases, EPA expects that the Agency
will be able to defer to the States in their
efforts to implement their programs
rather than take separate actions under
Federal authority.
   States that submit official applications
for final authorization  less than 12
months after the effective date of these
regulations are not required to include
standards equivalent to these
regulations in their application.
However, the State must modify its
program by the  deadline set forth in
§ 271.21(e). States that submit official
applications for final authorization 12
months after the effective date of these
regulations must include standards
equivalent to these regulations in their
application. The requirements a State
must meet when submitting its final
authorization application are set forth in
40 CFR 271.3.

III. Regulatory Requirements

A. Regulatory Impact Analysis Pursuant
to Executive Order 12866
  Executive Order No. 12866 requires
agencies to determine whether a
regulatory action is "significant." The
Order defines a "significant" regulatory
action as one that "is likely to result in
a rule that may have  an annual effect on
the economy of $100 million or more,"
among other criteria.
  The Agency estimated the costs of
today's proposed rule to determine if it
is a significant regulation as defined by
the Executive Order. The analysis
considered compliance cost and
economic impacts for ensuring adequate
control of hazardous mineral processing
waste streams which are not Bevill-
exempt (hereafter referred to as  non-
exempt). This rule covers these  streams
which are: (1) treated and land
disposed; (2) stored in land-based prior
to reinsertion into a mineral processing
unit, and; (3) co-processed with virgin
ores in land-based mineral beneficiation
units. The analysis considered
compliance cost and economic impacts
for all non-exempt mineral processing
streams that are subject to treatment
standards under Part 268.
1. Methodology Section
  All options described below include
the application of universal treatment
standards for mineral processing wastes
which are disposed of in land disposal
units and vary in their application  of
RCRA jurisdiction and definition of
solid waste to mineral process wastes
being recycled. Four regulatory options
were considered in this proposed rule:
(1) The recommended option of a
conditional exclusion from the
definition of solid waste for mineral
processing wastes stored in land based
units prior to reinsertion of these
materials into a mineral processing
facility and allowing conditional
mixing/reclamation  of mineral
processing wastes in mineral
beneficiation process units (this is  the
proposed regulatory scheme described
in greater detail under Section I.F.
above); (2) no change to the current
definition of solid waste for mineral
processing wastes (this is described in
greater detail under Section I.H.I.
Alternative Approaches above as Status
Quo); (3)  the recommended option
applied only to mineral processing
wastes currently considered solid
wastes if reclaimed (this is described in

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              Federal. Register / Vol.  61,  No. 17  /  Thursday,  January 25, 1996 / Proposed Rules
                                                                     2367
greater detail under Section I.H.2. of
Alternative Approaches as Apply
Definition of Solid Waste Changes Only
To Spent Materials); and (4) the
National Mining Association industry
option of excluding from RCRA
jurisdiction all but a limited class of
secondary mineral processing materials
where the materials in the limited class
(e.g., slags, refractory brick) would be
subject to minimum standards (this is
described in greater detail under Section.
I.H.3. Alternative Approaches above as
National Mining Association Approach).
The Agency has conducted quantitative
regulatory impact analyses for the
recommended option (Option 1) and the
status quo option (Option 2); other
options (Options 3 and 4) are being
evaluated qualitatively.
  The Agency calculated volumes of
mineral processing waste from a
combination of reported volumes and
estimated quantities of wastes to
product ratios using existing
information. Mineral processing streams
were categorized based on their likely
toxicity and recyclability. Mineral
processing waste streams which were
believed to be either non-hazardous or
not a solid waste because they are
believed to be a characteristic sludge or
by-product that is completely reclaimed
(see 40 CFR261.2(c)(3)) were assumed
to incur no Subtitle C costs in the
baseline. The Agency managed
uncertainly about volumes generated
and management scenarios through
bounding analysis which included
estimates of a minimum, expected, and
maximum scenarios. The expected
scenario is reported below.
  Compliance costs were divided into
two sections: treatment and disposal
(assumes neutralization and dewatering
for wastewaters; cement stabilization for
solids) and recycling. Treatment and
disposal costs for mineral processing
wastes were estimated according to
volumes of mineral processing wastes
believed to be non-recyclable and
partially-recycled within each of the
mineral processing sectors. Recycling
compliance costs, by contrast, were
estimated by the cost of purchasing,
operating and maintaining non-land
based storage units (i.e., tanks,
containers and containment buildings).
  Economic impacts are estimated by
comparing the ratio of waste
management costs to total volumes  and
both the total economic value and the
value added of mineral processing
across mineral sectors. Health benefits
wore estimated from available data and
expressed in terms of screening level
estimates of individual cancer and
noncancer risks reduced in selected
mineral processing wastes.
  Detailed discussions of the
methodology used for estimating the
costs, economic impacts and the
benefits attributable to today's proposed
rule, followed by a presentation of the
cost, economic impact and benefit
results may be found  in the background
document "Regulatory Impact Analysis
Of The Supplemental Proposed Rule
Applying Phase IV Land Disposal
Restrictions To Nexyly Identified
Mineral Processing Wastes" which is in
the docket for today's proposed rule.
The Agency would like to have better
information and solicits comment
regarding how many non-exempt
mineral processing streams are
generated, volumes, number of affected
facilities, current management practices,
total hazardous constituents
concentrations, leachate hazardous
constituent concentrations, available
treatment technologies, treatment costs,
and economic impact.

2. Results        i
  a. Volume Results.  The Agency has
estimated the volumes of mineral
processing wastes potentially affected
by today's proposed rule in the
background document "Regulatory
Impact Analysis Of The Supplemental
Proposed Rule Applying Phase IV Land
Disposal Restrictions To Newly
Identified Mineral Processing Wastes"
which was placed in  the docket for
today's proposed rule.
  The Agency requ'ests comment on
waste volumes affepted by this proposed
rule.             I
  b. Cost Results. The Agency has
prepared a cost and impacts analysis for
the recommended and status quo
options previouslyjdescribed in this
preamble. Under the  recommended
option (referred to as Option 1 in this
section), the Agency proposes to: 1)
Apply treatment standards for mineral
processing wastes which are land
disposed, 2) conditionally exclude from
RCRA jurisdiction &nd regulation
certain mineral processing wastes stored
in land based units' prior to being
reinserted into a mineral processing unit
and 3) allow co-processing of certain
mineral processing; wastes with raw
materials in Bevill units. The other
option the Agency Jias analyzed
(referred to as Option 2 in this section)
also applies treatment standards for
mineral processing wastes which are
land disposed but retains the current
definition of solid jvaste as it relates to
mineral processing residues. Option 2
also does not address the issue of
mineral processing1 residues that are co-
processed with raw> materials in Bevill
units.            ;
  The Agency has estimated that
roughly 181 facilities (assuming one
land-based unit per facility) under all
options would be affected by this rule.
The Agency estimates that total
expected annual compliance costs for
facilities under the recommended
Option 1 range from $12 million to $141
million. Total expected annual
compliance costs for facilities  under the
status quo Option 2 are estimated to be
in the range of $0 to $127 million. The
ranges for these estimates reflect only
the uncertainty surrounding the extent
of prior treatment of mineral processing
residues in the baseline. If larger
quantities of mineral processing
residues are treated in the baseline prior
to land disposal, the total compliance
costs for this rule would be closer to the
low end of the range. If relatively few
land disposed mineral processing
residues are treated prior to disposal,
then total compliance costs for this rule
would be closer to the high end of the
range. EPA solicits comment on the
extent of prior treatment reflecting
current practices in the mineral
processing sector for land disposed
mineral processing residues which are
considered hazardous when land
disposed. (As mentioned above, these
ranges and other numerical values in
the discussion of the regulatory impact
analysis are presented for an expected
case scenario. The expected case
scenario provides numerical values of
costs, economic impacts and benefits
which are between a minimum and a
maximum case scenario. The estimated
range of compliance costs under Option
1 are from $7.5 million under  the lower
bound minimum costing scenario to
$360 million under the upper bound
maximum costing scenario. The
estimated range of compliance costs
under Option 2 are from $0 million
under the lower bound minimum
costing  scenario to $336 million under
the upper bound maximum costing
scenario. The use of minimum, expected
and maximum case scenarios reflects
uncertainty resulting from data
limitations regarding the number,
volume, toxicity and management
practices of mineral processing residue
streams. EPA is soliciting comment on
these and other data mentioned above.)
  There are several additional sources
of uncertainty which might further
affect the accuracy of these estimates in
either direction. The Agency requests
additional data and comment  to help
the Agency refine and revise
compliance cost estimates for  the final
rule. First, compliance costs for the
upper bound of these ranges for Option
1 and Option 2 might be higher than

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Federal Register / Vol. 61, No.  17 / Thursday,  January 25, 1996 / Proposed  Rules
 estimated due to: 1) A possibility that
 high category mercury-bearing mineral
 processing residues (residues with a
 total mercury content of more than 260
 mg/kg) would have to be treated through
 roasting and retorting (see 40 CFR
 268.42) at a higher cost rather than
 cement stabilization as modeled in the
 regulatory impact analysis, and 2) a
 potential loss of operational efficiency
 at mineral processing facilities when
 these facilities are unable to continue to
 unconditionally land store mineral
 processing residues (note: this form of
 operation for spent materials currently
 represents non-compliance with RCRA
 Subtitle  C regulation). EPA was unable
 to identify any high category mercury-
 bearing mineral processing wastes in
 data reviewed which is believed to be
 discarded currently. The Agency solicits
 comment on whether this type of
 material exists and if so how it is
 managed now and likely to be managed
 after final promulgation of this proposal.
 In addition, a loss of operational
 efficiency (e.g., ability to store larger
 quantities of material, user fee revenues
 from off-site shipments) might increase
 operational  costs resulting from
 practical limitations on the quantity of
 material a mineral processing facility
 stores and resulting losses in revenues.
 EPA solicits comment about whether
 and how much of this type of cost might
 be incurred  due to regulatory conditions
 and limits placed on land-based storage
 under Options 1 and 2. (Note: EPA has
 based its cost estimates for mineral
 processing residues stored in tanks,
 containers, and containment buildings
 prior to reprocessing based on 90-day
 storage units for Option  1 and 2. Owner/
 operators of mineral processing facilities
 would have the ability under Option 1
 to purchase  larger and more expensive
 1-year storage units. However, EPA
 believes  that they would not elect to do
 so unless there would be offsetting costs
 equal to or greater than the capital
 storage costs for the 90 day units. EPA
 solicits comment on the  appropriateness
 of these cost assumptions.)
  Second, upper bound compliance
 costs in these ranges for both Options 1
 and 2 might be lower than estimated for
 a number of reasons: 1) The current
 analysis does not estimate potential
 shifts from land disposal of mineral
 processing residues to recycling
 resulting from increased treatment
 (stabilization) costs associated with land
 disposal  and 2) all mineral processing
residues  currently land stored prior to
reprocessing are assumed to require
storage prior to reinsertion into mineral
processing facilities. Regarding the issue
of shifts from land disposal to recycling,
                         due to data limitations, EPA has
                         estimated compliance cost based on a
                         static assumption that owner/operators
                         of mineral processing facilities will
                         continue to manage residues after the
                         proposed rule is implemented as they
                         had been managed previously whether
                         in land disposal or recycling. Since the
                         proposed land disposal restriction
                         standards will increase land disposal
                         costs for these owner/operators, a more
                         realistic dynamic assumption is that for
                         some mineral processing residues,
                         recycling will become less expensive
                         relative to treatment and land disposal
                         under both Option 1 and Option 2. EPA
                         requests comment on this issue on
                         whether and to what extent this is
                         likely. With respect to the other factor
                         resulting in lower compliance costs, the
                         possibility that some mineral processing
                         residues will not be stored prior to
                         reprocessing, some of these residues
                         may be able to be immediately
                         reinserted without any intervening
                         storage thus not incurring incremental
                         costs of purchasing and operating new
                         storage units. EPA solicits comment on
                         the likelihood and extent of this
                         possibility.
                           Finally, EPA has identified two
                         sources of uncertainty that may have
                         resulted  in overestimated upperbound
                         compliance costs for Option 1:1)
                         Potential cost savings associated with
                         remining historically discarded mineral
                         processing residues have not been
                         estimated, 2) additional shifts from land
                         disposal to recycling may occur under
                         Option 1 that would not occur under
                         Option 2.
                           Due to data limitations, EPA has not
                         estimated possible cost savings to
                         owner/operators resulting from
                         remining and processing of historically
                         discarded mineral processing residues
                         (as mentioned previously). In addition
                         to the mineral values present in these
                         residues, these owner/operators might
                         realize costs savings from avoided
                         liability costs of remediating these
                         materials in the event of a release to the
                         environment. EPA solicits comment on
                         the likelihood and extend of these
                         potential cost savings.
                          EPA also believes that Option 1 might
                         result in greater shifts from land
                         disposal to recycling than the general
                         shift described above for both Options.
                         Option 1 may yield greater recycling for
                         two principal reasons. First, Option  1
                         clarifies and encourages the use of
                         mineral beneficiation units (e.g.
                         grinding mills used to produce a
                         concentrate from an ore) for mineral
                         processing residues. Second, Option 1
                         allows owner/operators of mineral
                         processing facilities to store mineral
                         processing residues prior to recovery for
 up to year under Option 1 versus 90
 days under Option 2. If mineral
 processing facilities can store larger
 amounts for a longer time, this raises the
 possibility of receiving materials off-site
 from other mineral processing facilities
 creating greater economies of scale
 (lower transaction costs, user fee
 revenues) in the primary mineral
 processing industry. EPA solicits
 comment on the likelihood and extent
 of this potential cost savings.
   Costs for the variant of the
 recommended option applied only to
 spent materials (Option 3) would
 probably be similar to the recommended
 option, for two reasons. First, spent
 materials are often co-managed with
 characteristic by-products and sludges.
 Secondly, the majority of costs incurred
 under both options are for treatment and
 disposal, which do not vary between
 Options 1 and 3. The National Mining
 Association industry Option 4 would
 cost less than the other options but
 would still incur treatment and disposal
 costs for land disposed mineral
 processing wastes.
   c. Economic Impact Results. The
 Agency has estimated the economic
 impacts of today's proposed rule and
 found that the significance of those
 impacts vary by mineral processing
 sector. Results of the analysis were
 included in the docket for today's
 proposed rule. Approximately 12 of 31
 mineral processing sectors would incur
 upperbound compliance costs for
 Option 1 that would exceed 5 percent of
 the value of the mineral products from
 each sector. In addition, EPA has
 evaluated the ratio of estimated waste
 management cost within a mineral
 processing sector to the economic value
 added (value added measures sales
 revenue minus the costs of raw
 materials) of the sector to better estimate
 how industry profits might be affected
 by compliance costs of today's rule. The
 analysis showed 3 out of 17 sectors
 analyzed under Option 1 had ratios of
 1 or more (meaning that estimated
 upperbound waste management cost is
 estimated to be greater than the value
 added by the mineral processing sector
 analyzed). These three sectors include
 cadmium, rhenium and selenium. An
 additional five sectors have ratios of
 greater than 0.5 including lead,
 antimony, bismuth, beryllium, and
 tellurium. One possible outcome of
these impacts is that individual
 facilities within a sector would close.
Another possible outcome is that where
the minerals are co-products of other
minerals at the same facility (e.g.,
cadmium and zinc) that the facility
would choose simply to stop processing
the co-product. In all, EPA estimates

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              Federal Register  / Vol.  61, No. 17 / Thursday, January  25,  1996  /  Proposed Rules
                                                                      2369
thai there are 24 mineral processing
facilities distributed over 8 mineral
sectors with ratios above 0.3 indicating
tho potential for either facility closure or
cessation of processing co-products
within the facility. The Agency requests
comment on the likelihood and extent
of these possible outcomes in the
mineral processing sectors identified
above and other sectors which may be
affected. The Agency also requests
comment on alternative approaches to
the Options analyzed for the proposed
rule that suggest ways to lessen these
impacts for the affected sectors.
  d. Benefit Estimate Results. The
Agency has estimated the benefits
associated with today's proposed rule.
Screening risk results suggest that
individual cancer and non-cancer risks
may be decreased below 1 x 10 -5 and
below a reference dose of 1 in a small
number of mineral processing facilities.
Data available for this analysis is limited
to wastes where constituent
concentrations are available. Thus, the
benefits are not tied to the total number
of mineral processing facilities. The
Agency is working to broaden this
analysis over the range of 181 mineral
processing facilities affected by this
rule.
  Tho Agency also believes that there
will be benefits resulting from Option l
for historically discarded mineral
processing wastes (e.g. flue dusts, slags)
which can be remined for mineral value.
Option 1 will encourage remining of
this material in beneficiation units and
decrease metal releases to groundwater
and decrease remediation costs at
selected sites. The Agency will try to
quantify this benefit for the final rule.
   Although the treatment of hazardous
minerals processing wastes has the
 potential for providing benefits for
 human health risk reduction  and
 increased environmental protection due
 to data limitations, the Agency, due to
 data limitations did not quantify all
 impacts. A screening analysis of
 individual risk reduction was
 conducted but the data limitations and
 substantial analytical challenges have
 prevented the Agency from evaluating
 additional benefits.
   Benefits for this proposed rule as
 measured by population risk reduction
 require substantially more information
 than the Agency has available now. Site
 specific information on waste
 characterization, hydrogeological
 parameters, meteorological conditions
 and demographic patterns would be
 needed for a representative number of
 facilities before national estimates of
 population risk could be calculated. The
 Agency does not have sufficient
information and requests comment on
these data elements.
  While waste management rules to
protect ground water have proven in the
past to control otherwise unacceptable
individual risks, it is unusual to predict
high 'population risks' unless there is an
unusually large water supply well
impacted by the facility, simply because
ground water contamination generally
moves slowly and locally. It has been
the agency's experience that regulations
with land disposal restrictions have
been found to produce relatively small,
quantifiable population risk reductions
to individuals expo'sed to contaminated
groundwater via private wells. The
individual risk reductions identified by
the Agency for this'proposed rule are
similar to those found in these
previously analyzed rulemakings. For
example, in the analysis of Land
Disposal Restrictions Phase II (40 CFR
Parts 148, et al.) for organic toxicity
wastes, some of the individual risk were
in the range of 10-4, the population risk
reductions were foimd to be only about
0.22 cases of cancer per year. Similarly,
in an analysis of benefits for corrective
action for solid waste management
units, population risk reduction of about
3 cancer cases per year were found
when it was assumed that taste  and  odor
thresholds and drinking water
regulations would itend to cap
exposures. In the corrective action
analysis, on average about 12 people
within a one mile radius of the  unit
could be potentially exposed to
contaminated groundwater through
private wells.    ,
   If population densities and prevalence
 of private ground Water wells around
 mineral processing facilities are similar
 to other waste management facilities, it
 is the Agency's expectation that land
 disposal restrictions for hazardous
 minerals processing wastes would also
 achieve relatively small, quantifiable
 population risk reductions. For these
 reasons and the data limitations cited
 above, the Agency has not attempted to
 address the quantification of population
 risk reduction for this proposed rule.
 The Agency asks for comment on this
 issue.           I
   The Agency believes that, while other
 types of benefits are extremely  difficult
 to quantify, this  rule may produce
 benefits in the area of ecological risk
 reduction, reduced natural resource
 damage and related increase in non-use
 values for environinental amenities.
 EPA has not developed a quantitative
 assessment of these benefits because of
 budgetary and data limitations and
 because the quantity of these benefits
 may be small. The Agency also believes
 that this rule has llie potential  for
reducing what may be considered very
low probability but high consequence
adverse human health or environmental
impact if contamination from hazardous
minerals processing waste should,
because of geological conditions such as
karst terrain, reach a major population
drinking water source or sensitive
environmental location. This proposed
rule should lessen the chances of this
type of event even though the
probabilities of such occurrences are not
known.
  The data limitations and uncertainty
that make analysis of benefits especially
difficult also apply to compliance cost
estimates. In large part, the uncertainty
tends to have the same directional effect
on both cost and benefits. That is, the
same factors such as hazardous waste
volume that could make compliance
costs large also would tend to imply
higher risks in the baseline. Likewise,
low volumes that show little risks
would generally create lower
compliance costs.
3. Conclusion
   EPA recommends Option  1 in part
because it believes that it
simultaneously  clarifies jurisdiction and
encourages environmentally sound
recycling of mineral processing
residues. The conditional exclusion
from RCRA jurisdiction proposed under
Option 1 for land stored mineral
processing residues prior to recovery
provides comparative flexibility and
cost savings in recycling these materials;
rather than extending RCRA jurisdiction
to these materials and full Subtitle C
 regulatory requirements were extended.
 Option 1 obviates the need for
 manifesting these materials  between
 mineral processing facilities. Option 1
 also does not require many other
 management standards for waste
 handlers that are normally required for
 hazardous wastes recycled under
 Subtitle C including: design standards
 for storage units, recordkeeping and
 reporting requirements, storage permit
 requirements for materials received
 from off-site,  financial assurance, pre-
 transport generator requirements, and
 related requirements. The Agency
 believes that the absence of these
 requirements offers the primary mineral
 processing industry an opportunity to
 maximize reprocessing of these
 materials at a minimum cost while still
 protecting human health and the
 environment.
 4. Regulatory Impact Analysis for
 Underground Injected Wastes
   The Agency has completed a cost-
 benefits analysis for underground
 injected wastes in Class I injection wells

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Federal  Register / Vol. 61, No.  17 / Thursday, January 25, 1996 / Proposed  Rules
 affected by the Supplemental
 Rulemaking for Mineral Processing
 Wastes. The new proposed
 supplemental LDRs cover facilities with
 operating Class I injection wells
 disposing of newly identified mineral
 processing wastes that are hazardous
 due to a characteristic.
  According to the available data
 outlined in the RIA, indications are that
 of the 223 Class  I injection facilities in
 the nation, up to 20 will be potentially
 affected by the new supplemental LDRs
 for mineral processing wastes. Of these
 facilities, 8 inject nonhazardous waste
 (3 million tons of restricted wastes) and
 12 inject hazardous waste (7 million
 tons of restricted wastes.) Combined,
 these facilities may inject up to 10
 million tons of waste annually into
 Class I wells. These Class I injection
 facilities will now be required to either
 treat wastes, or file "no-migration"
 petitions as outlined in 40 CFR 148 (See
 53 FR 28118 preamble for a more
 thorough discussion of the no-migration
 petition review process).
  Of the 12 newly affected Class I
 hazardous facilities, 11 already have no-
 migration exemptions approved by EPA
 and one facility is listed as having a no-
 migration petition pending EPA. For
 this analysis, EPA assumes that the
 Class I hazardous facility with a petition
 pending will successfully demonstrate
 no-migration of Phase III wastes prior to
 promulgation  of the supplemental rule.
 EPA estimates that six Class I
 nonhazardous facilities will submit a
 no-migration petition under this rule;
 two facilities will accept the disposal
 ban and treat their restricted wastes to
 UTS prior to injection. The Agency
•analyzed costs and benefits for today's
 rule to assess the economic effect of
 associated compliance costs for the
 additional volumes of injected wastes
 attributable to this proposed rule.
  In general, Class I injection facilities
 affected by the LDR Phase III rule will
 have several options. As previously
 mentioned, some facilities will modify
 existing no-migration petitions already
 approved by the Agency, other facilities
 may submit entirely new petitions, and
 still others may accept the prohibitions
 and either continue to inject wastes after
 treatment or cease injection operations
 all together. EPA assessed compliance
 costs for Class I facilities submitting no-
 migration petitions and/or employing
 alternative treatment measures.
  For Class I facilities opting to use
 alternative treatment, the Agency
 derived costs treating restricted wastes
 to meet UTS levels prior to injection.
 EPA estimates that the (mid-range) total
 annual compliance cost for petitions
 and alternative treatment to industry
                         affected by the new supplemental LDR
                         prohibitions will be $1.0 million. EPA
                         estimates the mid-range total annual
                         compliance costs per Class I hazardous
                         facility to range between $0.2 million
                         and $2.0 million; mid-range total annual
                         compliance costs per Class I
                         nonhazardous facility range between
                         $0.3 million and $0.8 million. The range
                         of costs for alternative treatment is the
                         result of applying a sensitivity analysis.
                         All of these costs will be incurred by
                         Class I injection well owners and
                         operators. The estimated economic
                         impacts of the proposed rule were based
                         on the random assignment of injection
                         facilities to petition and treatment
                         outcomes using a decision tree analysis
                         method described in the Cost-Benefits
                         Analysis document placed in the
                         docket.
                           The Agency did not perform a
                         quantified risk assessment for this
                         proposal. However, the benefits to
                         human health and the environment in
                         the Cost-Benefits Analysis document are
                         generally defined as reduced human
                         health risk resulting from fewer
                         instances of ground water
                         contamination. In general, potential
                         health risks from Class I injection wells
                         are extremely low. However, injection is
                         not without risks. In isolated cases,
                         potential risks to human health and the
                         environment may be greater due to
                         abandoned, unplugged wells near the
                         injection well site.
                           The economic analysis of LDR Phase
                         III compliance costs suggests that
                         publicly traded companies affected by
                         the rule will probably not be
                         significantly economically impacted.
                         The limited data available for the
                         privately held companies suggests,
                         however, that they may face significant
                         impacts due  to the proportionally larger
                         expenses they may face as a result of the
                         proposed rule.

                         B. Regulatory Flexibility Analysis
                           Pursuant to the Regulatory Flexibility
                         Act of 1980, 5 U.S.C. 601 et seq., when
                         an agency publishes a notice  of
                         rulemaking, for a rule that will have a
                         significant effect on a substantial
                         number of small entities, the agency
                         must prepare and make available for
                         public comment a regulatory  flexibility
                         analysis that considers the effect of the
                         rule on small entities,(i.e.: small
                         businesses, small organizations, and
                         small governmental jurisdictions).
                         Under the Agency's Revised Guidelines
                         for Implementing The Regulatory
                         Flexibility Act, dated May 4,1992, the
                         Agency committed to considering
                         regulatory alternatives in rulemakings
                         when there were any economic impacts
                         estimated on any small entities. (See
 RCRA sections 3004(d), (e), and (g)(5),
 which apply uniformly to all hazardous
 wastes.) Previous guidance required
 regulatory alternatives to be examined
 only when significant economic effects
 were estimated on a substantial number
 of small entities.
   In assessing the regulatory approach
 for dealing with small entities in today's
 proposed rule, the Agency had to
 consider that due to the statutory
 requirements of the RCRA LDR program,
 no legal avenues exist for the Agency to
 provide relief from the LDR's for small
 entities. The only relief available for
 small entities is the existing small
 quantity generator provisions and
 conditionally exempt small quantity
 generator exemptions found in 40 CFR
 262.11-12, and 261.5, respectively.
 These exemptions basically prescribe
 100 kilograms (kg) per calendar month
 generation of hazardous waste as the
 limit below which one is exempted from
 complying with the RCRA standards.
   Given this statutory constraint, the
 Agency was unable to frame a series of
 small entity options from which to
 select the lowest cost approach; rather,
 the Agency was legally bound to
 regulate the land disposal of the
 hazardous wastes covered in today's
 rule without regard to the size of the
 entity being regulated. However, the
 portion of the proposal which would
 reclassify various mineral-bearing
 secondary materials as non-wastes may
 decrease regulatory costs to a number of
 mineral processing entities; including
 small entities.
 C. Paperwork Reduction Act
   The information collection
 requirements in this proposed rule have
 been submitted for  approval to the
 Office of Management and Budget
 (OMB) under the Paperwork Reduction
 Act, 44 U.S.C. 3501 et seq. The overall
 reporting and recordkeeping burden is
 estimated to be a reduction of
 approximately 1,624,434 hours
 (4,873,303 hours over three years).  The
 burden reduction is due to proposal of
 one-time notifications and certifications
 in the August 22,1995 Phase IV
 proposed rule (but not accounted for in
 the proposed Phase IVICR) and in this
 supplemental rule.  The one-time
 notifications and certifications will,
 when final, replace the requirements to
 send notifications and certifications
 with each shipment of waste.
   A copy of the ICRs for this rule may
 be obtained from the Environmental
 Protection Agency,  Information Policy
Branch, 401 M Street, S.W. (Mail Code
•2138),.WashingtonD.C. 20460. The
 public should send comments regarding
 the burden estimate, or any other aspect

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                                                      I
              Federal Register / Vol. 61, No. 17 / Thursday, January  25,  1996  / Proposed Rules        2371
of this collection of information,
including suggestions for reducing
burden to EPA; and to the Office of
Information and Regulatory Affairs,
Office of Management and Budget,
Washington, D.C. 20460, marked
"Attention: Desk Officer for EPA."

IV. Unfunded Mandates Reform Act

  Under Section 202 of the Unfunded
Mandates Reform Act of 1995, signed
into law on March 22,1995, EPA must
prepare a statement to accompany any
rule where the estimated costs to State,
local, or tribal governments in the
aggregate, or to the private sector, will
bo S100 million or more in any one year.
Under Section 205, EPA must select the
most cost-effective and least
burdensome alternative that achieves
the objective of the rule and is
consistent with statutory requirements.
Section 203 requires EPA to establish a
plan for informing and advising any
small governments that may be
significantly impacted by the rule.
  EPA has completed an analysis of the
costs and benefits from today's
proposed rule and has determined that
this rule does not include a Federal
mandate that may result in estimated
costs of SI00 million or more to either
State, local or tribal governments in the
aggregate. As stated above, the private
sector may incur costs exceeding $100
million per year depending upon the
option chosen in the final rulemaking.
EPA has fulfilled the requirement for
analysis under the Unfunded Mandates
Reform Act, and results of this analysis
have been included in Regulatory
Impact Analysis background document
which was placed in the docket for
today's proposed rule.
List of Subjects  !

40 CFR Part 148
  Administrative practice and
procedure, Hazardous waste, Reporting
and recordkeeping requirements, Water
supply.          •

40 CFR Part 261  '.
  Environmental protection, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.

40 CFR Part 268 ":
  Hazardous waste, Reporting and
recordkeeping requirements.

40 CFR Part 271 [
  Administrative practice and
procedure, Hazardous materials
transportation, Hazardous waste,
Penalties, Reporting and recordkeeping
requirements.
  Dated: December 15,1995.
Carol M. Browner,
Administrator.
  For the reason^ set out in the
preamble, Title 40, chapter I of the Code
of Federal Regulations is proposed to be
amended as follows:

PART 148—HAZARDOUS WASTE
INJECTION RESTRICTIONS
                i
   1. The authority citation for Part 148
continues to read as follows:
  Authority: Sectiqn 3004, Resource
Conservation and Recovery Act, 42 U.S.C.
6901,etseq.     >
   2. Section 148.18 as proposed to be
added at 60 FR1J1740 (March 2,1995)
and is proposed to be amended at 60 FR
43691 (August 22,1995) is proposed to
be further amended by redesignating
paragraphs (a) through (d) as (b) through
 (e) respectively, and by adding
paragraph (a) to read as follows:

                TABLE 1
§ 148.18  Waste specific prohibitions—
Newly Listed and Identified Wastes.
  (a) Effective [Date 2 years from
effective date of the final rule],
hazardous wastes from mineral
processing operations that exhibit a
characteristic of hazardous waste; and
mixed characteristic hazardous mineral
processing wastes/radioactive wastes,
are prohibited from underground
injection.

PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE

Subpart A—General

  3a. The authority citation for Part 261
continues to read as follows:
  Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, and 6938.

  3b. Section 261.1 is amended by
adding paragraph (c)(9) to read as
follows:

§261.1  Purpose and scope.
*****
  (c) * * *
  (9) "Processed scrap metal" is scrap
metal which has been manually or
mechanically altered to either separate
it into distinct materials to enhance
economic value or to improve the
handling of materials. Processed scrap
metal includes but is not limited to
 scrap metal which has been bailed,
 shredded, sheared, melted,
 agglomerated (for fines, drosses and
related materials which are not scrap
 metal prior to agglomeration) or
 separated by metal type.
   4. Section 261.2(c) is amended by
 revising Table 1 to read as follows:

 § 261.2  Definition of solid waste.
 *****
   (c) *  * *
:

Sludgos (listed in 40 CFR Part 261 31 or 261 32 	 i 	

Bu.nmrtnrt 	
Use constitut-
ing disposal
(§261.2(c)(1))
(D
(*)
(*)
(*)
(*)
(*)
(*)
(*)
Energy
recovery/ fuel
(§261.2(c)(2))
(2)
(*)
(*)
(*)
(*)
(*)
D
(*)
Reclamation
(§261.2(c)(3))
(3)
(*) •
(*)
(*)

(*)
Speculative
Accumulation
(§261.2(c)(4))
(4)
(*)
(*)
(*)
(*)
(*)
(*)
   Note: The terms "spent materials", "sludges", "by-products", and "scrap metal" and "processed scrap metal" are defined in §261.1.
   5. Section 261.3 is amended by
 revising the first sentence of paragraph
                                       (a)(2)(i), and by revising paragraph
                                       (a)(2)(iii) to read as follows:
                                       §261.3  Definition of hazardous waste.
                                          (a) * * *

                                          (2) * * *

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2372
Federal Register / Vol. 61, No. 17  / Thursday,  January 25, 1996  /  Proposed Rules
  (i) It exhibits any of the characteristics
of hazardous waste identified in subpart
C. *  * *
*****
  (iii) It is a mixture of a solid waste and
a hazardous waste that is listed in
subpart D of this part solely because it
exhibits one or more of the
characteristics of hazardous waste
identified in subpart C of this part.
(However, nonwastewater mixtures are
still  subject to the requirements of part
268 of this chapter, even if they no
longer exhibit a characteristic at the
point of land disposal.)
*    *    *    *    *
  6.  Section 261.4 is amended by
adding paragraphs (a)(13), (a)(14),
(a)(15), and (a)(16) and by redesignating
existing paragraphs (b)(7) (i) through
(xx)  as paragraphs (b)(7)(i) (A) through
(T), by redesignating paragraph (b)(7)
introductory text as paragraph (b)(7)(i)
introductory text, and by adding a new
paragraph (b)(7)(ii) to read as follows:

§261.4 Exclusions.
  (a) * * *
  (13) Processed scrap metal being
reclaimed.
  (14)  Shredded circuit boards provided
that  they are stored in containers prior
to recovery that are sufficient to prevent
a release to the environment.
  (15) Secondary materials (other than
hazardous wastes listed in Subpart D of
this Part) generated within the primary
mineral processing industry from which
mineral values are recovered by a
primary mineral processing industry
production process, provided that:
  (i) The material contains recoverable
amounts of minerals;
  (ii) The materials cannot be
accumulated speculatively (as defined
in § 261.1(c)(8));
  (iii) The owner or operator provides a
notice  to the Regional Administrator or
State Director, identifying the following
information: the types of materials to be
recycled and the location of the
recycling process; and the annual
quantities expected to be placed in land-
based units.
  (iv) The materials must be stored or
otherwise managed in process units. A
"process unit" is a tank, container,
containment building or other unit that
is not land-based. A process unit also
can include a pile or surface
impoundment that:
  (A) Is designed and operated so as to
satisfy any of the following alternative
performance conditions:
  (1) The owner or operator ensures that
the unit satisfies a groundwater
protection standard not exceeding: the
maximum contaminant level (MCL) for
                         metals in Appendix VIII of Part 261
                         (antimony, arsenic, barium, beryllium,
                         cadmium, chromium (total), lead,
                         mercury, nickel, selenium, silver, and
                         thallium); weak acid dissociable
                         cyanide level of 0.2 ppm; the corrosivity
                         standard in § 261.22 (an aqueous
                         solution with a pH equal to or less than
                         2.0 or equal to or greater than 12.5); and
                         the ignitability standard in § 261.21 at a
                         location no further than 150 meters from
                         the unit boundary. To demonstrate that
                         this condition is satisfied, the unit must
                         have a groundwater monitoring system
                         consisting of a minimum of one
                         upgradient well and three downgradient
                         wells. Such monitoring wells must be
                         capable of detecting, sampling, and
                         assessing whether the groundwater
                         protection standard is satisfied pursuant
                         to the provisions of 40 CFR 258.51
                         (except for 40 CFR 258.51(b), 258.53,
                         and 258.54). If a  release is detected at
                         levels exceeding the groundwater
                         protection standard, the owner/operator
                         must perform corrective action which
                         attains the groundwater protection
                         standard. During the time when the
                         standard is exceeded,  no further mineral
                         processing secondary  materials may be
                         placed in the unit; or
                           (2) Satisfies any of the following
                         design standards: for surface
                         impoundments or piles containing free
                         liquids, is constructed to have the
                         equivalent transmissivity of a liner
                         comprised of a 40 mil geomembrane
                         liner on 12 inches of soil with at least
                         10 ~s cm/sec hydraulic conductivity;
                         and for piles not containing free liquids,
                         is located on concrete, asphalt, or soil
                         any of which have the equivalent
                         transmissivity of three feet of clay with
                         10~7 cm/sec hydraulic conductivity; or
                           (3) Receives a site-specific
                         determination from the Regional
                         Administrator or the State Director that
                         the unit is a process unit and not a
                         waste disposal unit because the unit is
                         designed and operated to minimize
                         releases to the environment and
                         generally is not part of the waste
                         disposal problem. This determination
                         shall consider prevention of adverse
                         affects on ground-water quality, surface
                         water quality, and air quality
                         considering the factors set out in 40 CFR
                         267.10.
                           (B) Process units do not include any
                         wastewater treatment surface
                         impoundment whose discharge is
                         ultimately regulated under either
                         section 402 or 307(b) of the Clean Water
                         Act (including facilities which have
                         eliminated the discharge of wastewater).
                           (16) Secondary materials (other than
                         hazardous wastes listed in Subpart D of
                         this Part) generated within the primary
                         mineral processing industry from which
mineral values are recovered in a
beneficiation unit, as defined in
paragraph (b)(7) of this section. The
material must contain recoverable
amounts of minerals.
  (b) * * *
  (7)
  (ii) A residue derived from co-
processing hazardous secondary
materials excluded under paragraph
(a)(14) of this section along with normal
beneficiation raw materials remains
excluded under this section if the owner
or operator meets the following
requirements:
  (A) The unit must process at least
50% by weight normal raw materials;
  (B) The owner or operator must be
able to document that the co-processing
of hazardous secondary materials does
not significantly affect the residues by
demonstrating conformance with the
criteria set out in 40 CFR 266.112(b)(l)
and 266.112(b)(2). The comparison shall
be made only with respect to metals
listed in Appendix VIII of this Part and
cyanide.
*****
  7. Section 261.6 is amended by
revising paragraphs (a)(3) introductory
text and (a)(3)(ii) to read as follows:

§ 261.6  Requirements for recyclable
materials.
  (a) * * *
  (3) The following recyclable materials
are  not subject to regulation under Parts
262 through parts 266 or parts 268, 270
or 124 of this chapter and are not
subject to the notification requirements
of section 3010 of RCRA:
*****
  (ii) Scrap metal other than processed
scrap metal;
PART 268—LAND DISPOSAL
RESTRICTIONS

  8. The authority citation for Part 268
continues to read as follows:
  Authority: 42 U.S.C. 6905, 6912(a), 6921,
and 6924.

Subpart A—General

  9. Section 268.7 is amended'by
revising the introductory text of
paragraph (a)(2), the introductory text of
paragraph (b)(4) and the introductory
text of paragraph (b)(5), and by adding
paragraph (a)(9) to read as follows:

§ 268.7  Testing, tracking and
recordkeeping requirements for generators,
treaters, and disposal facilities.
  (a) * * *
  (1)***
  (2) If the waste does not meet the
treatment standard: The generator must

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              Federal Register /  Vol. 61, No.  17 / Tliursday, January 25, 1996 / Proposed Rules
                                                                      2373
send a one-time notice to each treatment
or storage facility receiving the waste
and place a copy in the file. The notice
must include the information in column
"268.7(a)(2)" of the Notification
Requirements Table in § 268.7(a)(4). No
further notification is necessary until
such time that the waste or facility
change, in which case a new
notification must he sent and a copy
placed in the generator's file.
#    *    *    *    *
  (9) If a generator is managing a lab
pack containing hazardous wastes and
wishes to use the alternative treatment
standard for lab packs found at
§ 2G0.42(c), with each shipment of
waste, the generator must submit a
notice to the treatment  facility that
provides the EPA hazardous waste
codes and manifest number. If the lab
pack contains characteristic hazardous
wastes (DQ01-D043), underlying
hazardous constituents (as defined  in
§ 268.2(1)) need not be determined.  The
generator must also comply with the
requirements in paragraphs (a)(6) and
(a)(7) of this section and must submit
the following certification, which must
be signed by an authorized
representative:
  1 certify under penalty of law that I
personally havo examined and am familiar
with tho waste and that the lab pack contains
only wnsles that have not been excluded,
under appendix IV to 40 CFR part 268.1 am
aware that there are significant penalties for
submitting a false certification, including the
possibility of fino or imprisonment.
»     *     *     *   *
   (b)***
   (4) A one-time notice must be sent
with the initial shipment of waste to the
land disposal facility and a copy placed
in the treatment facility's file. No further
notification is necessary until such time
that the waste or facility change, in
which case a new notification must be
sent and a copy placed in the treatment
facility's file. Debris excluded from the
definition of hazardous waste under
§261.3(e) of this chapter (i.e., debris
treated by an extraction or destruction
technology provided by Table 1,
§ 268.45, and debris that the Director
has determined does not contain
hazardous waste), is subject to the
 notification and certification
requirements of paragraph (d) of this
section. The one-time notice for all
 other waste shall include these
 requirements:
  (5) The treatment facility must submit
a one-time certification with the initial
shipment of waste or treatment residue
of a restricted waste to the land disposal
facility stating that the waste or
treatment residue has been treated in
compliance with the applicable
performance standards specified in
subpart D of this part and the applicable
prohibitions set forth in § 268.32 or
RCRA section 3004(d) and a copy
placed in the file. If the waste or
treatment residue [changes or the
receiving facility changes, the generator
or TSD shipping the waste must send a
new certification to the receiving
facility, and place^ copy in their files.
Debris excluded from the definition of
hazardous waste under § 261.3(e) of this
chapter (i.e., debris treated by an
extraction or destruction technology
provided by Table 1, § 268.45, and
debris that the Director has determined
does not contain hazardous waste),
however, is subject to the notification
and certification requirements of
paragraph (d) of this section rather than
the certification requirements of this
paragraph.      ;
Subpart C—Prohibitions on Land
Disposal

   10. Section 268.32 is revised to read
as follows:       ;

§ 268.32  Waste specific prohibitions-
characteristic hazardous wastes from
mineral processing operations.
   (a) Effective [Date 90 days from date
of publication affinal rule],
characteristic hazardous wastes from
mineral processing operations; and, soil
and debris contaminated with
characteristic hazardous wastes from
mineral processing operations; are
prohibited from land disposal.
   (b) Effective [Date 1 year from date of
publication of final rule], arsenic and
high mercury characteristic hazardous
wastes from mineral processing
 operations are prohibited from land
 disposal.
   (c) Effective [Date 2 years from date
 of publication affinal rule], radioactive
wastes mixed with, hazardous wastes
 from mineral processing operations are
 prohibited from land disposal.
   (d) The requirements of paragraphs
 (a), (b), and (c) 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 § 268.6, with respect
to those wastes and  units covered by the
petition;
  (3) The wastes meet the applicable
alternate treatment standards
established pursuant to a petition
granted under § 268.44; or
  (4) Persons have been granted an
extension to the effective date of a
prohibition pursuant to § 268.5, with
respect to these wastes covered by the
extension.
  (e) To determine whether a hazardous
waste identified in this section exceeds
the applicable treatment standards
specified in §  268.40, the initial
generator must test  a sample of the
waste extract or the entire waste,
depending on whether the treatment
standards are  expressed as
concentrations in the waste extract or
the waste, or the generator may use
knowledge of the waste. If the  waste
contains constituents (including
underlying hazardous constituents in
characteristic wastes that have been
diluted to remove the characteristic) in
excess of the applicable Universal
Treatment Standard levels of § 268.48,
the waste is prohibited from land
disposal, and. all requirements of this
part aie applicable, except as otherwise
specified.

PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS

   11. The authority citation for Part 271
continues to read as follows:
  Authority: 42 U.S.C. 6905, 6912(a), and
6926.

Subpart A—Requirements for Final
 Authorization

   12. Section 271.l(j) is amended by
 adding the following entries to Table 1
 in chronological order by date of  '
 publication in the Federal Register, and
by adding the following entries to Table
 2 in chronological order by effective
 date in the Federal Register:

 § 271.1   Purpose and scope.

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2374
Federal Register / Vol.  61,  No.  17 / Thursday,  January  25,  1996  /  Proposed Rules
          TABLE 1 .—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
       Promulgation date
                     .  Title of regulation
  "Federal Register" reference
         Effective date
[Insert date of publication of final  Land  Disposal  Restrictions  for  [Insert FR page numbers]
  rule in  the  FEDERAL  REGISTER    Characteristic Mineral Process-
  (FR)].                          ing Wastes.
                                                                           [Insert date of 90 days from date
                                                                             of publication of final rule].
                TABLE 2—SELF-IMPLEMENTING PROVISIONS OF THE SOLID WASTE AMENDMENTS OF 1984
         Effective date
                                 Self-implementing provision
                                                      RCRA citation
                                                                              "Federal Register" reference
[Insert date 2 years from date of
  publication of final rule].
                Prohibition  on land disposal of
                  characteristic mineral  process-
                  ing  wastes and  such wastes
                  mixed with radioactive waste,
                  including soil and debris.
3004(m).
[Insert date of publication of final
  rule] 61 FR [Insert page num-
  bers].
    Ditto.
    Ditto.
    Ditto.
  13. Section 271.28 is added to read as
follows:

§271.28  Streamlined authorization
procedures.
  (a) The procedures contained in this
section may be used by a State when
revising its program by applying for
authorization for the requirements
promulgated by the Land Disposal
Restrictions Mineral Processing Waste
Rule, provided a State is authorized for
Land Disposal Restrictions rules up to
the Third Third (55 FR 22520, June 1,
1990).
  (b) An application for a revision of a
State's program for the provisions stated
in paragraph (a) of this section shall
consist of:
  (1) A certification from the State that
its laws provide authority that is
equivalent to and no less stringent than
the provisions specified in paragraph
(a), and which includes  references to the
specific statutes, administrative
regulations and where appropriate,
judicial decisions. State statutes and
regulations cited in the State
certification shall be fully effective at
the time the certification is signed; and
  (2) Copies of all applicable State
statutes and regulations.
  (3) Certification from the State that its
laws provide authority that is equivalent
to and  no less stringent than the
provisions specified in paragraph (c) of
this section.
  (c) Within 30 days of receipt by EPA
of a State's application for final
                          authorization to implement a rule
                          specified in paragraph (a) of this
                          section, if the Administrator determines
                          dial the application is not complete, the
                          Administrator shall notify the State that
                          the application is incomplete. This
                          notice shall include a concise statement
                          of the deficiencies which form the basis
                          for this determination. The State must
                          also include a written assurance that the'
                          State has the legal authority to
                          implement the key requirements of this
                          rule. The State program must
                          demonstrate:
                           (1) That it can distinguish land-based
                          units receiving mineral processing
                          residuals from those units operating as
                          waste disposal units, based in part of
                          factors set out in 40 CFR 261.4(a)(14)
                          and 40 CFR 267.10;
                           (2) That it imposes preventive
                          measures (including design and
                          operating conditions) on these units;
                           (3) That it establishes groundwater
                          protection criteria;
                           (4) That it requires  groundwater
                          monitoring;
                           (5) That it detects and remediate
                          releases of hazardous constituents from
                          the unit to groundwater should such
                          releases occur; and
                           (6) The State program must provide
                          for public participation in the process of
                          developing requirements for particular
                          land-based units.
                           (d) For purposes of this section, an
                          incomplete application is one where:
                           (1) Copies of applicable statutes or
                          regulations were not included;
                      (2) The statutes or regulations relied
                    on by the State to implement the
                    program revisions are not yet in effect;
                      (3) The State is not authorized to
                    implement the prerequisite RCRA rules
                    as specified in paragraph (a) of this
                    section; or
                      (4) In the certification, the citations to
                    the specific statutes, administrative
                    regulations and where appropriate,
                    judicial decisions are not included or
                    incomplete.
                      (e) Within 60 days after receipt of a
                    complete final application from a State
                    for final authorization to implement a
                    rule or rules specified in paragraph (a)
                    of this section, absent information in the
                    possession of EPA, the Administrator
                    shall publish an immediate final notice
                    of the decision to grant final
                    authorization as follows:
                      (1) In the Federal Register;
                      (2) In enough of the largest
                    newspapers in the State to attract
                    Statewide attention; and
                      (3) By mailing to persons on the State
                    agency mailing list and to any other
                    persons whom the Agency has reason to
                    believe are interested.
                      (f) The public notice under paragraph
                    (e) of this section shall summarize the
                    State program revision and provide for
                    an opportunity to comment for a period
                    of 30 days.
                      (g) Approval of State program
                    revisions under this section shall
                    become effective 60 days after the date
                    of publication in the Federal Register in
                    accordance with paragraph (e) of this

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              Federal Register  /  Vol.  61,  No. 17  /  Thursday, January 25, 1996 / Proposed Rules
2375
section, unless a significant adverse
comment pertaining to the State
program revision discussed in the notice
is received by the end of the comment
period. If a significant adverse comment
is received, the Administrator shall so
notify the State and shall, within 60
days after the date of publication,
publish in the Federal Register either:
  (1) A withdrawal of the immediate
final decision; or
  (2) A notice containing a response to
comments and either affirming that the
immediato final decision takes effect or
reversing the decision.
IFRDoc. Q6-586 Filed 1-24-96; 8:45 am]
DILLIHO CODE 6550-50-P

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