Federal Register / Vol. 62. No. 91 / Monday. May 12. 1997 / Proposed Rules
26044.
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 148,261,266,268, and
271
BIN 2050 AE05
[FRL-5816-6]
Land Disposal Restrictions Phase IV:
Second Supplemental Proposal on
Treatment Standards for Metal Wastes
and Mineral Processing Wastes,
Mineral Processing and Bevill
Exclusion Issues, and the Use of
Hazardous Waste as Fill
AGENCY: Environmental Protection
Agency.
ACTION: Supplemental proposed rule.
SUMMARY: This is the third proposed
rule related to treatment standards fo
certain metal wastes and wastes from
mineral processing. EPA is seeking
comment on-additional proposed
provisions and on new data. This
proposed rule would revise universal
treatment standards (UTS) for twelve
metal constituents when they are in
hazardous waste. Affected wastes
include "TC metal" wastes (those
containing high levels of certain metals),
mineral processing wastes, and other
metal-bearing wastes. These treatment
standards are being revised to provide
consistency in the LDR standards while
minimizing threats to human health and
the environment. This proposed rule
also addresses the issue of the sampling
method for compliance with treatment
standards. EPA is seeking comment on
a conditional exclusion for secondary
mineral processing materials, on co-
processing of materials in Bevill-exempt
mining units, and on whether certain
mineral processing and mining wastes
currently excluded from federal
hazardous waste regulations warrant
regulatory controls. Also included is an
exclusion from the definition of solid
waste for certain materials reused by
wood preserving operations, a clarified
policy on EPA-approved variances from
hazardous waste treatment, and a
prohibition on the use of most
hazardous wastes as fill material.
DATES: Comments on this proposed rule
must be submitted by July 11,1997.
ADDRESSES: Commenters must send an
original and two copies of their
comments to: RCRA Information Center
(RIC), Office of Solid Waste (5305G),
U.S. Environmental Protection Agency
Headquarters (EPA, HQ), 401 M. Street
SW, Washington, DC 20460.
Commenters must place Docket Number
F-97-2P4P-FFFFF on their comments.
Hand deliveries of comments should be
made to the Arlington, VA, address
below. An original and two copies of
Confidential Business Information (CBI)
must be submitted under separate cover
to : RCRA CBI Document Control
Officer, Office of Solid Waste (5305W),
U.S. EPA, 401 M Street, SW,
Washington, DC 20460. For information
on submittal of comments
electronically, see the section called ,
"Electronic Submittal of Comments" in
SUPPLEMENTARY INFORMATION below.
Public comments and supporting
materials are available for viewing in
the RCRA Information Center (RIC),
located at Crystal Gateway I, First Floor,
1235 Jefferson Davis Highway,
Arlington, Virginia. The RIC is open
from 9:00 a.m. to 4:00 p.m., Monday
through Friday, except on Federal
holidays. To review docket materials, it
is recommended, that the public make
an appointment by calling (703) 603-
9230. The public may copy a maximum
of 100 pages from any regulatory
document at no cost Additional copies
cost $0.15 per page. The index and some
supporting materials are available
electronically. See the SUPPLEMENTARY
INFORMATION section for information on
accessing them.
FOR FURTHER INFORMATION CONTACT:
RCRA Hotline between 9:00 a.m. and
6:00 p.m. EST, toll free at (800) 424- «
9346; or (703) 412-9810 from
Government phones or if in the
Washington, D.C. local calling area; or
(800) 553-7672 for the hearing
impaired. Questions can also be
directed to the Waste Treatment Branch
(5302W), Office of Solid Waste (OSW),
U.S. Environmental Protection Agency
401 M Street S.W., Washington, D.C.
20460; phone (703) 308-8434. For
information on the issue of treatment
standards for metal-bearing wastes, ask
for Elaine Eby or Anita Cummings.
Anita Cummings is the contact for LDR
treatment standards for mineral
processing wastes and for the issue of
grab versus composite sampling
methods. For information on secondary
mineral processing materials and Bevill
issues, call Van Housman at (703) 308-
8419 or Stephen Hoffman at (703) 308-
8413. Contact Stephen Bergman for
questions on the exclusion for wood
preserving wastewaters. For information
on the capacity analyses, call Bill Kline
at (703) 308-8440. For questions on the
regulatory impact analyses, contact Paul
Borst at (703) 308-0481. For other
questions, call Sue Slotnick at (703)
308-8462.
SUPPLEMENTARY INFORMATION:
Availability of Rule on the Internet
Please follow these instructions to
access the rule:
From the World Wide Web (WWW),
type http://www.epa.gov/rules and
regulations. In addition, several
technical background documents
contained in the docket supporting this
rule will be available on the Internet at
http://www.epa.gov/offices and regions/
oswer.
Electronic Submittal of Comments
In an effort to reduce unnecessary
paper use, EPA is asking prospective
commenters to voluntarily submit one
copy of their comments, in addition to
the paper copy, in either of two
electronic methods: diskettes or the
Internet. Commenters can send their
comments to the RCRA Information
Center 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. Please use mailing envelopes
designed to physically protect the
' submitted diskettes. To send copies by
Internet, address them to: rcra-
docket@epamail.epa.gov. All comments
sent by Internet must be ASCII files,
avoiding the use of special characters
and any form of encryption. Comments
in electronic format should also be
identified by the docket number F-97-
2P4P-FFFFF. Commenters should not
submit electronically any confidential
business information (CBI). EPA
emphasizes that submission of
comments electronically is not
mandatory, nor will it result in "any
advantage or disadvantage to any
commenter. For further information on
the electronic submission of diskettes,
contact Sue Slotnick at the Waste
Treatment Branch, (703) 308-8462, or
Rhonda Minnick at (703) 308-8771.
Table of Contents
I. Background-
H. Potentially Regulated Entities
m. Revised Treatment Standards for Twelv
Metal Constituents in Nonwastewater
Forms of TC Metal and Other Wastes
A. Summary
B. Applicability
C. Background
D. Proposal of Revised Treatment
Standards for Metal Constituents in TC
• Metal and Other Metal-bearing Wastes
1. August 22, 1995 Proposed Treatment
Standards for TC Wastes
2. Comments to the August 22,1995
Proposal
3. Development of Revised UTS for TC
Metal Wastes
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Federal Register / Vol. 62, No. 91 / Monday. May 12, 1997 / Proposed Rules
4. Proposed Revision of UTS for Selenium
5. Proposed Revision of UTS for Beryllium
6. Proposed Revision of UTS for Silver
7. Demonstrating Compliance by Grab or
Composite Sampling
IV. Revised Treatment Standards for Miriera
Processing Wastes
A*. Summary
B. Discussion
V. Proposal of New Options for Mineral
Processing Materials
A. New Option—Land Storage of
Secondary Materials
1. General Discussion
2. Criteria for High Volumes of BevUl-
Excmpt Mining and Mineral Processing
Wastes
3. Containment Units
4. Class of Materials Outside of RCRA
Jurisdiction
B. New Option—Non-Bevlll Materials Used
as Alternative Feedstocks
C. High Risk Mining Wastes Excluded by
the BevlU Amendment
1. General Discussion
2. Wastes Eligible for the Bevlll Exclusio
VI. Proposed Exclusion of Wood Preserving
Wastewaters and Spent Wood Preserving
Solutions From Classification as Solid
Waste under RCRA
A. Background
1. Request for Comment in Land Disposal
Restrictions Phase IV Proposed Rule
2. Statutory Remedy Considered by
Congress
B. Rationale for Proposal
C. Wastes Commonly Reused by the Wood
Preserving Industry
D. Current Regulatory Status of Recycled
Wastewaters and Spent Wood Preserving
Solutions
E. Proposed Exclusion of Wastewaters and
Spent Wood Preserving Solutions that
are Recycled
1. General
2. Conditions for Exclusion
3. Process Residuals
4. Notification
5. Conditions Under Which the Exclusion
Would No Longer Apply
Vn. Proposal to Amend Treatment Variance
Rules
A. Background
B. Clarified Regulatory Language
C. The CTTGO Variance Under the
Proposed Standard '
Vm. Ban on Use of Prohibited Hazardous
Waste as Fill Material
DC. Capacity Determination
A. TCMelal Wastes
B. Mineral Processing Wastes
C. Phase IV Mineral Processing and TC
Metal Wastes Injected Into Underground
Injection Control (U1C) Class I Wells
X. State Authority
A. Applicability of Rules In Authorized
States
B. Abbreviated Authorization Procedures
C. Effect on State Authorization
D. Less stringent requirements
XI. Regulatory Requirements
A. Regulatory Impact Analysis Pursuant to
Executive Order 12866
1. Methodology Section
2. Results
B. Regulatory Flexibility Analysis
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
XII. Environmental Justice
- A. Applicability of Executive Order 12898
B. Potential Effects
Xm. Appendices
I. Background .
In the 1984 Hazardous and Solid
Waste Amendments (HSWA) of the
Resource Conservation and Recovery
Act (RCRA), Congress specified that
land disposal of hazardous waste is
prohibited unless the waste meets
treatment standards established by EPA.
HSWA requires that treatment standards
must substantially diminish the toxicity
or mobility of hazardous waste, so that
short- and long-term threats to human
health and the environment are -
minimized. The treatment standards are
part of the Land Disposal Restrictions
Program.
Today's proposed rule is one part of
the collection of land disposal
restrictions (LDR) rules known as
"Phase IV." They are the latest in a
series of LDR rules that establish
treatment standards for newly listed and
identified wastes, and that resolve other
hazardous waste matters. EPA proposed
the Phase IV rule in two proposed rules
(60 FR 43654, August 22, 1995; and 61
FR 2338. January 25,1996). It
subsequently issued a Notice of Data
Availability on Phase IV issues (61 FR
21418, May 10,1996). The attached
proposed rule proposes, in some cases,
alternative approaches from those in
earlier proposals. These changes in
approach are being proposed in
response to additional data or comments
that were submitted on the previous
proposals.
Other issues from the Phase IV notices
did not require additional proposal.
These are being finalized today in a
Phase IV rule appearing elsewhere in
today's Federal Register. The final rule
is titled "Land Disposal Restrictions—
Phase IV: Treatment Standards for
Wood Preserving Wastes, Paperwork
Reduction and Streamlining,
Exemptions from RCRA for Certain
Processed Materials; and Miscellaneous
Hazardous Waste Provisions."
EPA estimates that the directly
measurable benefits associated with the
land disposal restrictions treatment
standards in this rule are limited
relative to the costs that may be
incurred. Therefore, the relative priority
of addressing these risks could be
questioned. However, we do not believe,
for this specific action, that a simple
cost effectiveness measure alone
provides'a sufficient basis for decision-
making. As discussed below, the
preference for permanent treatment of
hazardous wastes is part of the basic
policy structure which Congress enacted
when it amended RCRA in 1984, and
reflects concern over the technological
uncertainties regarding risks and long
term protectiveness of land disposal and
the intent to assure that waste
management practices are protective for
future generations.
The whole premise of the LDR
legislation is that risks posed by land
disposal of hazardous wastes are
inherently uncertain to evaluate and
that land-based units are incapable of
long term containment. Land disposal
units (such as landfills, surface
impoundments, and waste piles) are
engineered units that can and have
failed in the past with significant
consequences to human health and the
environment. For this reason. Congress
required that hazardous wastes be
pretreated before disposal by "treatment
[which] should be the best that has been
demonstrated to be achievable."
Congressional Record of July 25,1984 '
(S9178). The technology-based approach
of the land disposal restrictions
provides a measure of insurance against
the potential for failure in these land
-based units.
Given these facts, and evident,
Congressional intent, EPA continues to
believe that the LDR prohibitions and
treatment standards are justified in
many instances. EPA sets treatment
standards that reduce toxicity and
mobility of hazardous constituents (or
require recycling), and EPA also
requires that the treated wastes be
placed in reasonably secure land.
disposal units. However, EPA does
believe that, in some situations, the
current LDR rules may not provide the
optimum regulatory approach. In those
situations, EPA will look to other
mechanisms to address those relatively
low risk scenarios.
II. Potentially Regulated Entities
Entities potentially regulated by this
final rule vary according to the section
of the rule. The following table shows
the industry categories that may be
regulated according to each major
section of the rule. The table is not
intended to be exhaustive, but rather to
provide a'guide for readers regarding
entities likely to be regulated by this
action. This table lists the types of
entities that EPA is now aware could
potentially be regulated by this action.
Other types of entities not listed in the
table could also be regulated.
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Federal Register / Vol. 62, No. 91 / Monday. May 12, 1997 / Proposed Rules
26043
TABLE OF ENTITIES POTENTIALLY AFFECTED BY THE PHASE IV 2ND SUPPLEMENTAL PROPOSAL
Section of the. rule
Category
Examples of entities potentially affected
Treatment Standards for TC metal hazardous
wastes, characteristic mineral processing
wastes, and other metal-bearing wastes.
Mineral Processing Secondary Materials, and
Bevill Issues.
Exclusion for Recycled Wood Preserving Proc-
ess Wastewaters.
Small or Large Quantity Generators of Toxicity
Characteristic (TC) metal hazardous wastes
(D004-D011), characteristic mineral proc-
essing waste, or any hazardous waste re-
quired to meet the LDR treatment standard
for barium, cadmium, chromium, lead, silver,
selenium, antimony, beryllium, nickel, thal-
lium, vanadium, or zinc.
Facilities that treat TC metal hazardous
wastes, characteristic mineral processing
wastes, and other metal-bearing hazardous
wastes.
Generators
Storage and Recycling Facilities
Wood Preserving Facilities
Any party that generates greater than 100 kg
of hazardous waste or 1 kg of acute hazard-
ous waste, and generates TC metal hazard-
ous wastes or characteristic mineral proc-
essing wastes. Major industries generating
TC metal wastes include: primary mineral
processing, alkalines and chlorine, industrial
inorganic chemicals, industrial organic
chemicals, blast furnaces and steel mills,
metal plating and polishing, aircraft parts
and equipment.
Any person who. generates secondary mate-
rials from the primary mineral processing in-
dustry that are destined for recovery of min-
eral values
Facilities that store and/or recycle secondary
materials from the primary mineral process-
ing industry.
Facilities that generate and reclaim drippage
and wastewaters on-srte from the wood
processing industry.
IK. Revised Treatment Standards for
Twelve Metal Constituents in
Nonwastewater Forms of TC Metal and
Other Wastes
A. Summary
EPA is proposing to revise the
universal treatment standards (UTS) for
twelve metal constituents: barium,
cadmium, chromium (total), lead,
selenium, silver, antimony, beryllium,
nickel, thallium, vanadium, and zinc
that can be found in nonwastewater
forms of hazardous waste. (Note,
vanadium and zinc are not regulated as
underlying hazardous constituents in
characteristic wastes.) The revised
standards for eight of the metal
constituents are higher numerical levels
(less stringent) than their existing UTS;
the revised standards for four of the
metal constituents are lower than their
existing UTS. In the original Phase IV
proposal (August 22,1995; 60 FR
43582), EPA proposed to apply the UTS
to wastes that exhibit the characteristic
of toxicity, as measured by the Toxicity
Characteristic Leaching Procedure
(TCLP). See 40 CFR 261.24. This
procedure measures the possibility that
a waste may leach toxic metals above a
designated concentration level, and so is
a measure of the potential mobility of
toxic metals in a waste. Currently, TC
metal wastes are subject to LDR
standards that are the same as the TC
levels. However, these levels are
typically higher than those for which
threats posed by land disposal of the
wastes are minimized. Chemical Waste
Managements. EPA, 976 F.2d2,13-
14.26-27 (D.C. Cir. 1992); cert, denied
113 S. Ct. 1961 (1993). Consequently,
treatment to levels lower than the
characteristic levels normally is
required. Id. Commenters took issue
with the Agency's use of data from
previous rulemakings {those
establishing UTS) in setting the TC
metal standards. After considering
comments and new information, EPA
believes applying the UTS levels to TC
metal waste is still quite valid, but in
some cases the new data indicate that
the UTS levels should be modified to
better reflect the universe of wastes that
would now be subject to the standards.
As a result, the Agency is proposing
to modify the proposal so that the
treatment standards for the following
metal wastes would be higher (less
stringent) than the current UTS: barium,
beryllium, cadmium, nickel, lead,
thallium, vanadium, and selenium. The
Agency is proposing to lower the UTS
for antimony, chromium (total), silver,
and zinc. The revised UTS levels for all
twelve metal constituents would apply
to all wastes, listed or characteristic,
that are subject to UTS. In some cases,
the proposed increase in UTS still
would lower the existing standard
(making it more stringent) for the TC
metal waste in question. An example is
the constituent lead. The current UTS
standard is 0.37 milligrams per liter,
while the standard for TC metal wastes
is 5.0 milligrams per liter, because these
wastes have been subject to the TC level
rather than to UTS prior to this rule.
Today's proposal would revise the UTS
level for lead from 0.37 milligrams per
liter to 0.75 milligrams per liter TCLP.
This .would make the lead standard less
stringent for listed wastes (and
characteristic wastes such as corrosive
wastes that are not characteristic for
metals), but would lower (make more
stringent) the lead standard for TC metal
wastes required to meet UTS.
B. Applicability
The new treatment standards would
apply to four sets of hazardous wastes.
The first is TC metal wastes, which are
those found to be characteristic because
one of their metal concentrations is
higher than the TC level. One group of
TC metal wastes would be subject to
treatment standards for the first time:
those which are found hazardous by
testing with the Toxic Characteristic
Leaching Procedure (TCLP) but not by
the Extraction Procedure that was
formerly used. This somewhat arcane
distinction (necessitated by statutory
language) is discussed in more detail in •
the following section. EPA proposed
standards for all TC metal wastes on
August 22, 1995 (60 FR 43582), and
today's action would modify the
proposed standards, as discussed in
detail below. The second set of wastes
affected by this rule are currently
subject to UTS, so for these wastes, the
proposed standards may provide
regulatory relief; these are the other
characteristic wastes (toxic organic,
ignitable, corrosive, or; reactive) that
contain any of the nine metal
constituents as underlying hazardous
constituents. The third set of wastes also
would generally have less stringent
standards. These are listed wastes that
are required to treat any of the nine
metal constituents to meet the
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Federal Register / Vol. 62, No. 91. / Monday, May 12. t997 / Proposed Rules
numerical universal treatment
standards. Finally, one last set is being
required to meet LDR treatment
standards for the first time: mineral
processing wastes diat exhibit a.
hazardous waste characteristic. (See 55
FR at 22667 (June 1.1990) explaining
why mineral processing wastes no
longer considered eligible for exempt
status under the Bevill amendment are
classified as "newly identified" for
purposes of LDR prohibitions, and,
hence, not yet subject to LDRs until EPA
adopts regulations expressly prohibiting
them from land disposal and
establishing treatment standards for
diem.) The Agency proposed treatment
standards for those wastes on January
25,1996 (61 FR 2359). and today's
action seeks comment on revisions to
those proposed standards.
C. Background
Land disposal of hazardous wastes is
largely prohibited by statute, unless the
wastes are treated before land disposal
to satisfy treatment standards
established by EPA. RCRA sections
3004(d)-(g).(m). In developing these
treatment standards, EPA has sought to
make the standards as uniform as
possible while adhering to the ultimate
requirement that the standards be
sufficient to minimize threats to human
health and the environment. The results
are the UTS whereby the Agency has,
wherever possible, developed the same
numerical limit for a hazardous
constituent In all of die hazardous
wastes where the constituent is present
See 268.40 and 59 FR 47982, September
19.1994.
Today's notice reproposes.treatment
standards for the following toxic metals:.
barium, cadmium, chromium, lead,
selenium, silver, antimony, beryllium,
nickel, thallium, vanadium, and zinc.
Since it affects the UTS, the following
hazardous wastes would be affected: (a)
characteristic hazardous wastes where
these metals are present as Underlying
Hazardous Constituents (See 268.2(1)
and 59 FR 47982. September 19,1994);
and (b) listed wastes which have
treatment standards for one or more of
these metals. In addition, these
standards would affect the treatment
standards for wastes that exhibit the
characteristic of toxicity as measured by
the Toxicity Characteristic Leaching
Procedure (TCLP) because of the
presence of these metals. These include
both the wastes that are newly
identified because they exhibit the
toxicity characteristic (TC), which are
not yet prohibited from land disposal,
and wastes that were already identified
as hazardous under the predecessor
leaching protocol, the Extraction
Procedure (EP), which remain
hazardous because they also exhibit the
TC. EPA already promulgated treatment
standards for this latter class of wastes
(wastes identified as hazardous which
exhibit both EP and TC toxicity), but
these standards were established at the
characteristic level. 55 FR 22520, June 1,
1990.
The B.C. Circuit remanded the
standards for lead and chromium as •
being insufficiently stringent when data
indicated that further increments of
treatment were technically feasible. 976
F. 2d at 27,32. These proposed
standards would, among other things,
respond to that remand. The standards
also would satisfy EPA's legal
obligations to develop treatment
standards for newly identified
hazardous wastes within 6 months
following the wastes' identification as
hazardous, RCRA section 3Q04(g)(4),
subsequently extended by consent
decree. {EDFv. ReiUy. Cir No. 89-0598,
D.D.C.)
D. Proposal of Revised Treatment
Standards for Metal Constituents in TC
Metal and Other Metal-bearing Wastes
1. August 22,1995 Proposed Treatment
Standards for TC Wastes.
In support of the Phase IV proposal
(60 FR 43654), EPA performed a
comprehensive re-evaluation of the
available treatment performance data
from both listed and characteristic
wastes for all metal constituents in the
UTS table. This analysis was conducted
in order to determine whether UTS
levels could appropriately be transferred
to TC metal wastes. Treatment standards
for most of the toxic metals in
nonwastewater listed wastes were based
upon the performance of High
Temperature Metal Recovery (HTMR),
based on treatment of hazardous wastes
K061. K062 and F006 (59 FR 47998,
September, 19,1994). At that time, the
Agency determined that both HTMR
and stabilization were BDAT and that
while the majority of the UTS numbers
were based on High Temperature Metal
Recovery, stabilization was also capable
of treating to the UTS levels. (See
USEPA, "Background Document for
Treatment Technologies", June 1991;
and USEPA, "Metals Recovery
Processes for RCRA Hazardous Waste",
December 1994). As such, the Agency
proposed that the metal UTS should
also be the LDR treatment standards for
characteristic metal wastes. This
resulted in the proposed change of
treatment standards for six TC metal
constituents (barium, cadmium,
chromium (total), lead, selenium and
silver). The Agency did not propose a
. change in the treatment levels for
arsenic (D004) or mercury-retort
residues (D007), and those constituents
are not discussed further in today's
notice.
2. Comments to die August 22,1995
Proposal
In response to the Phase IV proposal,
the Agency received numerous
comments on the proposed treatment
standards. The commenters raised three
basic issues with regard to the data used
to develop the standards: (1)
characteristic metal wastes were
extremely variable and that the data
used to calculate die treatment
standards were not representative of the
diversity of TC metal wastes; (2) while
both HTMR and stabilization were
determined to be BDAT, the standards
were .based solely on HTMR, a
technology not commercially available
for many TC metal wastes; and (3) the
standards were not uniformly.
achievable when waste streams with
multiple toxic metals were being
treated. In light of these concerns, the
commenters urged the Agency to obtain
additional data that would demonstrate
the effectiveness of stabilization on TC
metal waste streams and to more fully
characterize the diversity of these waste
streams.
The following commenters .provided
the Agency with stabilization
performance data: Battery Council
International, American Foundrymen's
Association, Chemical Waste
Management and the Environmental
Treatment Council/These commenters
provided extensive composite data on
the stabilization of various TC metal
wastes. While each of the data sets
provided information on the various
performance levels of stabilization
treatment, they did not provide the
Agency with die full range of
information necessary to re-evaluate or
re-calculate the treatment standards
based on EPA's BDAT protocol (see
USEPA "Final Best Demonstrated
Available Technology (BDAT)
Background Document for Quality
Assurance/Quality Control Procedures
and Methodology", Office of Solid
Waste, October 23, 1991). The Agency,
convinced that additional data were
needed to further assess die treatment of
TC metal wastes, attempted to obtain
the additional information from the
' commenters; however, die information/
data required by the commenters that
would result in the generation of a
"BDAT" quality data set has not been
forthcoming. The reader is referred to
the rulemaking docket for analysis and
discussion of the data submittals.
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26045
3. Development of Revised UTS for TC
Metal Wastes-
In response to the concerns raised by
the commenters regarding the lack of
stabilization data for TC metal wastes,
and the concern that some UTS levels
may be unachievable by stabilization,
the Agency began an effort to obtain
additional treatment performance data
that better characterized the diversity of
, metal wastes. During September 1996,
EPA conducted site visits at three
hazardous waste treatment facilities.
These facilities represented different
types of treatment operations: one
facility was a large commercial TSDF
that employed conventional
stabilization techniques to treat a wide
array of inorganic metal wastes and
another was an on-site treatment facility
that focused on the stabilization of
inorganic metal slag. A third facility was
commercial and focused on stabilization
of inorganic materials using non-
conventional stabilization techniques.
During these site visits, the Agency
either gathered performance data from
company records or requested the
collection of actual treatment
performance data through sampling and
analysis. The facilities provided the
Agency with detailed performance data
consistent with BOAT protocols
. (including effluent grab samples).
The performance data represented a
wide range of metal-bearing wastes
(both listed and characteristic) that the
Agency believes represents the most
difficult to treat metal-bearing wastes.
The types of wastes treated included
mineral processing wastes, baghouse
dust, battery slag, soils, pot solids,
recycling by-products, and sludge. TCLP
values in the untreated wastes included
4430 mg/1 lead, 1580 mg/1 chromium,
82 mg/1 barium and 4280 mg/1
cadmium. In addition, numerous waste
streams contained multiple metals
which would be representative of a
characteristic waste with UHCs, while
other waste streams had significant
concentrations of combination metals
including: lead and cadmium, barium
and lead, and chromium and antimony.
The Agency reviewed all the
performance data and the facility
treatment operations. It determined that
at least two of the facilities were well-
designed and well-operated and
represented BOAT technology for the
full range of TC metals and the metal
UHCs that are often found in these
wastes. The reader is referred to the
rulemaking docket for a complete
discussion of the site visits and the data
collected by the Agency. See item
numbers 2, 5,6, 17, 18,19,and 20 in the
docket submittal entitled, Documents
Supporting the Reproposed Treatment
Standards for D005, D006, D007, D008,
DOW, and DQ11 Wastes and the
Proposed Revision to the Universal
Treatment Standards for Barium,
Cadmium, Chromium (total), Lead,
Selenium, Silver, Antimony, Beryllium,
Nickel, Thallium, Vanadium and Zinc.
Note again that while EPA has
developed data and is proposing new
treatment standards for vanadium and
zinc, they are not regulated as
underlying hazardous constituents.
In addition, between October 1994
and December 1995, the Agency
obtained performance data from one'
HTMR facility based totally on grab
samples. (The reader is referred to items
3 and 16 in the aforementioned docket
materials for a complete discussion of
the HTMR data set.) The assessment of
the new data sets began with the,
calculation of treatment standards for
each of the two data sets, i.e.,
stabilization and HTMR. Next, the
Agency compared these treatment
levels. Based on this comparison, the
Agency selected the highest standard for
each metal to establish UTS and to
allow for process variability and .
detection limit difficulties. The Agency
believes that this approach is consistent
with the intent of UTS and derives
limits achievable by both HTMR and '
stabilization technologies. The new data
also confirmed that the other proposed
levels (i.e., UTS) proposed on August
22,1995 for TC metal waste and on
January 25, 1996 for mineral processing
waste are in fact achievable with grab
sampling by both stabilization and
HTMR. Therefore, EPA is not proposing
. to modify any levels except those
discussed here.
As a result of this new analysis, the
Agency is today proposing to change the
treatment standard for the following TC
metal constituents as well as their
associated UTS: barium, cadmium,
chromium, lead, and silver. In addition,
the Agency is proposing to change the
UTS for antimony, nickel, thallium,
vanadium, beryllium, and zinc. With
these changes, the Agency is
establishing metal treatment standards
using performance data based solely on
grab samples. EPA used the same
methodology, sometimes called "C 99"
in calculating today's proposed levels
(i.e., the proposed UTS levels) as has
been used in past rulemakings (56 FR
41164, August 18,1991) and the BOAT
Background Document for K061 dated
August 1991. The table at the end of this
section provides information detailing
the standards generated by both data
sets as well as the newly proposed
standards. The Agency discusses next
two metals where data are still limited.
4. Proposed Revision of UTS for .
Selenium
In the Phase IV proposal, the Agency
proposed a treatmentstandard of 0.16
mg/1 for nonwastewater forms of D010-
selenium (60 FR 43654, August 22,
1995). This number was the UTS level
for selenium that was promulgated in
the Phase H rule (59 FR 47980.
September 19, 1994). Today, the Agency
is proposing to change the UTS for
selenium to 5.7 mg/1 TCLP and retain
the current treatment standard of 5.7
mg/1 TCLP for DO 10 waste. This would
in effect create a uniform standard of 5.7
mg/1 TCLP for nonwastewater forms of
selenium. (The Agency received no
comment on the proposed wastewater
treatment standard for selenium and is
not asking for further comment on this
issue.)
Several commenters suggested that
EPA establish the treatment standard for
selenium at the TC level (1.0 mg/1) for
nonwastewaters or promulgate a revised
treatment standard for D010 based on
stabilization performance data.
Commenters proposed alternative
treatment standards for'DOlO wastes
that ranged from 0.20 mg/1 to 10.0 mg/
1. The commenters argued that the
proposed standard of 0.16 mg/1 which
was based on the performance of High
Temperature Metals Recovery (HTMR)
was riot achievable by stabilization and
that commercial HTMR units may not .
accept selenium-containing wastes
making the technology unavailable, or at
least, not suitable as die technology
basis for a uniformly-applicable
treatment standard. Furthermore, the
commenters argued that the Agency did
not account for the difficulties in
stabilizing wastes containing high levels
of selenium in conjunction with the
presence of other metals when
developing the treatment standard.
One comment focused on the inability
to stabilize selenium-containing wastes
in the presence of other metals. The
commenter stated that they did not feel
that 0.16 mg/1 TCLP for nonwastewater
forms of D010 was routinely achievable
utilizing best operating practices. As
stated in their comment, selenium has a
pH and solubility that is significantly
different from other characteristic
metals. Selenium's minimum solubility
is at a neutral to mildly acidic pH (6.5-
7.5), while it is highly soluble in the
alkaline pH range (8-12). The other
characteristic metals have a minimum
solubility in the strongly alkaline pH
range (8-12), while their solubility
increases at neutral and acidic pH
levels. This difference in solubilities,
the commenter stated, creates a problem
for treating wastes with a mixture of
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Federal Register / Vol. 62, No. 91 / Monday. May 12, 1997 / Proposed Rules
characteristic metals which include
selenium. Since there is a difference in -
solubilities for the metals depending on
the pH of the stabilized wastes, if a
neutral pH is maintained in treatment,
selenium will not leach but the other
metals will, If a high pH is maintained,
the selenium will leach while the other
metals will not In light of these
distinctly different pH/solubllity curves
for selenium and other characteristic
metals, the commenter believes that the
treatment standard for selenium should
be established at a higher level. In
support of the commenters claims, a
laboratory study was submitted showing
the teachability of selenium while
varying pH and binder to waste ratios.
The Agency has researched the claims
made by the commenter and concurs
with his assertions. The Agency is
convinced that wastes containing
selenium concentrations greater than 1.0
mg/1 TCLP In the presence of other
metals, e.g., cadmium, lead or
chromium may encounter difficulties in
stabilization due to the different
solubility curves noted above. While it
may be possible to treat a D010 waste
to the proposed treatment standard of
0.16 mg/1 TCLP. in the absence of other
metal contaminants, the Agency cannot
be certain that this would or could
occur. The Agency believes that it is
more realistic to assume that treatment
will occur in the presence of other
metals thus limiting the effectiveness of
stabilization on selenium. As such, the
Agency has decided to propose to
maintain the current treatment standard
for nonwastewater forms of D010 at 5.7
mg/1 TCLP. This standard is based on
the stabilization of a D010 waste
containing 700 ppm selenium and is
considered by the Agency to be the most
difficult to treat selenium waste. See the
Third rule (55 FR 22574, June 1,1990.)
The Agency notes that because this
treatment standard is above the level of
leachable selenium that defines the
waste as D010 (1.0 mg/1 TCLP), D010
wastes that are generated at a level
between 5.7 mg/1 and 1.0 mg/1 TCLP
meet the treatment standard but are still
considered to be hazardous wastes
(assuming the TCLP value exceeds 1.0
mg/1) and, therefore, must be land
disposed In a Subtitle C facility. In
addition, since the treatment standard
for selenium is above Its characteristic
level, selenium would not be recognized
asanUHC.
The Agency has also decided to.
propose a change in the UTS for
selenium from 0.16 mg/1 to 5.7 mg/1
TCLP. While the Agency has
performance data showing treatment
levels for selenium of between 0.16 to
0.29 mg/1 TCLP for stabilization and
HTMR technologies, these levels seem
to be achievable only with extremely
low concentrations of selenium in the
untreated waste. Therefore, the Agency
feels that this standard does not reflect
the true diversity of the waste stream,
nor is it reflective of the most difficult
to treat selenium waste. As such, the
Agency feels that 5.7 mg/1 TCLP is a
better assessment of treatability and a
more appropriate standard.
5. Proposed Revision of UTS for
Beryllium
In the Phase IV proposal, the Agency
proposed to change the UTS for
beryllium from 0.014 mg/1 TCLP to 0.04
mg/1 TCLP, based on composite data (60
FR 43683, August 22, 1995). A
commenter was critical of the proposed
beryllium level and stated that 0.04
mg/1 TCLP was too stringent and not
supported by stabilization data.
However, the Agency has been unable to
obtain, despite repeated efforts, any
treatment performance data from that
commenter to validate claims that the
treatment standard is not achievable.
Also, the Agency recognizes that
proposing to use composite data was an
error, as this is not consistent with
BDAT methodology, as discussed above.
As such, the Agency is proposing a UTS
for beryllium based on available
performance data from the stabilization
and HTMR facilities described above.
These data, which admittedly do not
include incoming waste with high
beryllium levels, show that the
appropriate treatment level is 0.018
mg/1. Therefore, the Agency is today
proposing a revised UTS of 0.018 mg/1
TCLP (actually 0.02 mg/1, due to
rounding) for nonwastewaters based on
the performance of HTMR using grab
samples. The Agency is however,
soliciting comment on whether there are
difficulties in treating various
beryllium-containing waste streams.
The Agency welcomes the opportunity
to evaluate any performance data and
reminds the reader should any
hazardous beryllium production wastes
fail to meet the 0.018 mg/1 TCLP level
(if finalized), the facility may apply for
a treatability variance under 40 CFR
. 268.42.
6. Proposed Revision of UTS for Silver
EPA proposed a concentration level of
0.30 mg/1 as the treatment standard for
silver nonwastewaters, based on data
from the treatment of K061 waste
sampled on a composite basis. See 60
'FR 43684, August 22,1995. Citing low
human health risks from silver,
commenters stated that EPA should not
be setting a treatment standard for silver
• that is lower than the characteristic
level of 5.0, and instead should remove
silver from the list of TC constituents
altogether. Later, EPA issued a Notice of
Data Availability which stated that EPA
was not prepared to make a decision on
whether or not to retain silver on the TC
list, but that the Agency was
considering two new treatment standard'
options: a UTS level of 5.0 mg/1, or a
level of 5.0 mg/1 for D011 while
maintaining a UTS of 0.30 mg/1 for all
other silver-containing waste. See 61 FR
21420, May 10, .1996.
EPA is still studying silver in order to
decide on its status as a TC waste, and
is not proposing any change to that
status in today's notice. However, EPA
is proposing a revised UTS, based on •
the new data on metal constituents
discussed above. For silver, the data is
based on treatment by High
Temperature Metals Recovery and on
the preferred method of grab sampling.
The data supports a level of 0.11 mg/1
for silver nonwastewaters, making the
standard more stringent than proposed
in either of the earlier notices.
EPA believes that silver wastes are
generally recycled due to their
economic value and are covered by the
special streamlined standards for
recyclable materials utilized for
precious metal recovery at 40 CFR Part
266.70 Subpart F. There may be little or
no land disposal of silver wastes, hence
little or no impact of applying a new
treatment standard. EPA is today
seeking information on quantities of
silver nonwastewaters that would be
affected by LDR treatment standards,
and on whether a level of 0.11 mg/1 is
achievable for those wastes if they exist.
However, as discussed above, standards
in the LDR program can be either '
technology- or risk-based. In the absence
of definitive risk information, the
Agency sets technology-based
standards. Data from both HTMR and
stabilization technologies show 0.11
mg/1 is achievable for nonwastewaters.
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26047
PROPOSED UNIVERSAL TREATMENT STANDARDS FOR TWELVE METAL CONSTITUENTS CALCULATED FROM HTMR AND
STABILIZATION SAMPLE SETS*
{Affecting Nonwastewater TC Metal Wastes and Nonwastewater Metal Constituents in All Wastes] .
Waste code
D005
D006
D007
D008
D010
D011
Constituent
Barium
Cadmium
Chromium
Lead
Selenium
Silver
Antimony
Beryllium
Nickel
Thallium
Vanadium ***
Zinc***
TC level (mg/
I)
inn
1 n
c n
^ n
v 1 n
c n
Existing UTS
level
(mg/l TCLP)
7 ft
f\ V7 '
n MA
C A
fi t\7R
n i>5t
5.3
HTMR grab
samples (mg/
I TCLP)
3.3
0.20
0.85
O.i 2
0.29
0.11
0.043
IO.O
3.8
Stabilization
grab samples
(mg/l TCLP)
21
0.014
0.13
0.75
0.12
0.0084
0.068
•0.012
0.082
0.20
.0
4.3
Proposed
UTS level
(revised)
(mg/l TCLP)
21
0.20
0.85
0.75
5.7
0.11
**0.07
**0.02
13.6
0.20
1.6
4.3
__ sTsfnd WMRa'residduesTS) W3S established by Selectin9 *e higher of the two treatment standards that were cal-
*JHie proposed UTS levels for antimony and beryllium were rounded up to the nearest 0.01 mq/l TCLP
Vanadium and zinc are not underlying hazardous constituents. a- •
7. Demonstrating Compliance by Grab or
Composite Sampling
EPA has long preferred that
compliance with the LDR standards for
nonwastewaters be based on grab
.. samples (a one-time sample taken from
any part of the waste), rather than
composite samples (a combination of
samples collected at various locations
for a given waste, or samples collected
over time from that waste). This is
because "grab samples normally reflect
maximum process variability, and thus
would reasonably characterize the range
of treatment system performance." (See
54 FR at 26605-06, June 23,1989; 55 FR
at 22539, June 1,1990.) This type of
sampling is in keeping with the ultimate
objective of the land disposal
restrictions program: that all of the
hazardous waste to be land disposed be
treated in a way that minimizes the
' threats that land •disposal could pose,
not just that some average portion of the
waste be so treated (a possible result of
using composite sampling). In addition,
there is an implementation advantage to
use of grab sampling, since enforcement
for EPA, authorized states, or citizen
groups is facilitated if enforcement can
be based on individual sampling events
(as occurs with grab sampling).
The universal treatment standards for
nonwastewaters are consequently
enforced on the basis of grab sampling.
The revisions to those standards for
toxic metals reproposed today would
likewise be enforced on the basis of grab
sampling, and, in all cases are based on
grab sampling data. EPA intends to
maintain that regime, with the
temporary exception of three wastes:
K061, K062, and F006 managed at
certain facilities, as described below.
Current treatment standards for
hazardous waste K061, K062, and F006
were based partially on the use of
composite rather than grab sampling.
That is, the data for certain of the
hazardous constituents regulated under
that standard— namely beryllium,
nickel, lead, silver, cadmium, and
thallium— were obtained exclusively
from composite samples, and the data
for vanadium and zinc came partially
from composite samples.' (See
memorandum from Richard Kinch to
RCRA Docket dated August 19, 1991,
regarding promulgation of K061. See
also 57 FR at 37207, August 18,1992,
which explains that K061 standards
were transferred to K062 and F006). The
BOAT technology for this waste code
was High Temperature Metal Recovery
(HTMR), and the composite samples
used to develop parts of the standard
indeed came from HTMR facilities. Id.
The two HTMR facilities involved in
developing the data for the current
standards have pointed out in
comments to the Phase IV proposal and
to earlier LDR rules that they may not
be able to achieve the metal treatment
standards for these waste codes if
enforcement is based on grab sampling,
and that such enforcement is
unwarranted for their facilities since the
underlying data used to develop the
treatment standard for these wastes
included composite data. (See
comments from Horsehead Resource
Development Company, Inc. and
International Metals Reclamation
Company, Inc. in the docket for the
Phase IV proposal, 60 FR 43654, August
22, 1995).
EPA is rectifying this problem in the
short term by allowing two HTMR
facilities; Horse head Resource
Development Company Inc. :and
International Metals Reclamation
Company Inc. to comply with the
current treatment standards for K061,
K062, and F006 through use of
composite samples. The two facilities
must follow the procedures contained in
two documents in appendices to this
preamble, entitled "Procedures For
Horse Head Development Company to
Establish Compliance With RCRA
Treatment Standards at 40 CFR 268.40
and 268.48 for K061, K062, and F006
residuals; and "Procedures For
INMETCO to Establish Compliance
With RCRA Treatment Standards at 40
CFR 268.40 and 268.48 for K061, K062,
and F006 residuals.''
However, EPA's ultimate intent is to
require compliance with UTS on a grab
basis for all facilities, including HTMR
facilities treating K061, K062, or F006.
As discussed above, EPA has received
additional grab sample data on metal-
bearing hazardous waste that was not
available at the time UTS was
promulgated. As discussed above, EPA
has proposed to use. the new data to
revise the UTS standards for some
constituents. It appears that with the
new UTS metal levels proposed in this
notice, that HTMR facilities should be
able to meet UTS on a grab sampling
basis. There are some data (from one
facility) supporting this position, and
EPA has requested additional data from
the other facility, which has indicated it
will provide additional data within six
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26048
Federal Register / Vol. 62. No. 91 / Monday. May 12, 1997 / Proposed Rules
months. Therefore, EPA will consider
data received until six months from the
date this notice is published in the
Federal Register before making a final
decision. The Agency will act sooner, if
In Its judgement there Is little likelihood
that additional data will be available
within six months. Currently the
Agency's view is that the UTS levels
proposed today can be met by both
stabilization and HTMR, and grab
sampling must be required In all cases.
IV. Revised Treatment Standards for
Mineral Processing Wastes
A. Summary
EPA Is proposing to apply Universal
Treatment Standards, as revised today,
to the newly Identified mineral
processing wastes. The revised
treatment standards can be found in the
table at the end of the section in this
preamble on treatment standards for TC
metal wastes.
B. Discussion
On August 22.1995 the Agency
requested comment on a proposed
rulemaklng which would apply LDR
treatment standards to all characteristic
metal wastes (60 FR 43654), and on
January 25,1996 EPA proposed that
those same standards apply to mineral
processing waste that exhibit a
characteristic of hazardous waste. As
noted above, such wastes are considered
to be "newly identified" for purposes of
timing of LDR prohibitions. The
comments received suggested that the
proposed treatment standards could not
be achieved using stabilization
treatment; and that more stabilization
technology performance data was
necessary to set treatment levels for TC
metals. Since the receipt of these
comments the Agency has conducted
site visits to facilities using stabilization
technology to treat mineral processing
or similar wastes. i.e. TC metal wastes.
See Section II above for the discussion
of TC metal waste.
The new data from these site visits
reaffirm the Agency's position that the
mineral processing wastes are similar
(I.e., no harder to treat) than those
• wastes from which the Universal
Treatment Standards (UTS) were
established. (In addition to the new data
on TC metal waste referenced above,
see: Modified Background Document
dated December, 1996 and BOAT
Background Document for TC Metals
dated August, 1995; and Background
Document for Universal Treatment
Standards dated-September, 1994).
Specifically, the new site visit data
came from facilities treating primary or
secondary mineral processing (68%);
facilities that generated metal-bearing
remediation waste, (10%), metal
manufacturing waste (10%), foundry ...
wastes (6%), and spent metallic wastes
(6%), most of which exhibited a
characteristic or were listed hazardous
wastes. As discussed in section II above,
this new data has convinced the Agency
that some revisions should be made to
the UTS. With these revisions, the
Agency concludes that UTS levels are
achievable for mineral processing
wastes, as for other TC metal wastes.
V. Proposal of New Options for Mineral
Processing Materials
Today's proposal seeks comment on
several specific options considered by
the Agency related to recycling of
secondary materials from mineral
processing, and to wastes excluded by
the Bevill Amendment This proposal is
a supplement to, and not a replacement
of, the January 25,1996 proposed rule.
The first issue pertains to the land
storage of hazardous mineral processing
secondary materials—that is, sludges,
byproducts or spent materials generated
by and legitimately recycled within the
• mineral processing industry sector,
which secondary materials would be
either identified or listed as hazardous
wastes if they are first classified as solid
wastes (see 50 FR at 616, n.4, and 627
Can. 4,1985))— and when such storage
could occur without the secondary
materials being RCRA "solid wastes".
The second issue involves whether the
wastes generated when a facility uses
alternative feedstocks along with Bevill
raw materials retain Bevill-exempt
status. EPA is proposing and seeking
comment on new options for addressing
these issues. The final matter addressed
is a limited solicitation of comment on
the question of whether the risks posed
by some wastes which-are currently
Bevill-exempt warrant future regulatory
controls by the Agency.
A. New Option—Land Storage of
Secondary Materials
1. General Discussion
In the January 25,1996, rule, the .
Agency proposed changes to 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. These conditions included
meeting criteria to ensure that legitimate
reprocessing was occurring and that the
land-based unit was functioning as a
process unit and not a waste disposal
unit. These include: a performance
standard through groundwater
monitoring; technical standard by
design and construction; or a
determination by a state or EPA Region
that the unit is functioning as a process
unit. See generally 61 FR at 2339-2351.
In response to this proposal, the Agency
received 101 comments, many
providing the Agency new information
about the identification, management
and volumes of particular wastes.
The information from the comments,
further analysis-of existing data, and
new data collected since the January 25,
1996 proposal indicate that mineral
processing secondary materials are
generated in smaller volumes than EPA
previously believed. Further, this new
information indicates that a significant
number of secondary mineral processing
materials are not stored in land-based
units. The Agency also has gathered
additional data indicating that land-
based storage of secondary materials
contributes to environmental releases.
Based on this information, the Agency
questions the necessity of land-based
storage units for most of the mineral
processing Industry.
The Agency today is proposing a new
option that would restrict the use of
land-based units for secondary materials
generated by and recycled within the
mineral processing industry. This new
option would condition exclusion from
being a solid waste on storage in units
that are not land-based—typically tanks,
containers, or buildings. Thus, if a
hazardous secondary material from
mineral process is legitimately recycled
within another mineral processing
operation, it would not be a solid waste
provided the storage that precedes the
recycling does not entail land
placement This proposal is
conceptually the same as the one EPA
proposed for the oil-bearing secondary
materials" generated by and recycled
within the petroleum industry. See 60
FR 57753 (Nov. 20, 1995). The Agency
would "make an exception where there is
a volumetric necessity to use land-based
storage units to store hazardous
secondary materials. -The Agency is
proposing as the volumetric cut-off
45,000 tons per year for solids and one
million tons per year for liquids—
consistent with the high volume criteria
previously established by the Agency
for 20 special mineral processing
wastes. (See 54 FR 36629, September 1,
1989). High volume hazardous
secondary materials, to the extent that
any exist, would be subject to the land
storage conditions based on the
concepts proposed in the January 25,
1996 Proposed Rule. (See 61 FR at
2345-48). Further, in today's notice EPA
is providing information on what types
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26049
of tanks, containers, arid buildings
would be suitable as storage structures.
In general, the Agency is proposing that
these units be able to contain the
secondary materials, but would not
require that the units satisfy subtitle C
.design, operation, and performance
standards. (See Non-RCRA Tanks,
Containers, and Buildings, EPA, 1997).
This approach, again, is analogous to
that proposed for oil-bearing secondary
materials generated by and recycled
within the petroleum industry.
The Agency received comments that
land based unite were not protective
due to uncontrolled releases of
hazardous constituents. In evaluating
the comments, the Agency identified
, additional information which
characterizes how mineral processing
land-based units can release or threaten
to release hazardous constituents. (See
Damage Cases and Environmental
Releases, EPA 1997). Also, the Agency
has found that use of land-based units
to store hazardous secondary materials
is less common than EPA previously
believed, indicating that land-based
storage may not be such an integral
practice of the mineral processing
industry. Further, as noted in the
preceding paragraph, the information
provided by commenters indicates that
the volumes of mineral processing
secondary materials may be lower than
expected, indicating that land-based
storage may not always be necessary
because comparable quantities of
secondary materials from other
industrial sectors are typically managed
in tanks, containers, and buildings. This
information is provided in the RCRA
docket for public review and comment.
(See Characterization of Mineral
Processing Wastes and Materials, EPA
1997).
The information collected by the
Agency indicates that mineral
processing hazardous secondary
'materials stored in land-based units can
pose actual and potential threats to
human health and the environment. Due
to particle size reduction, heat, and
• chemical reactions in the processing
steps, metal compounds and other
constituents become more mobile and
concentrated. (54 FR 36614-36619, .-
September 1,1989). Specifically, EPA
has found cases where land storage
(surface impoundments and piles), of
hazardous secondary mineral processing
materials awaiting recycling increase
the potential for groundwater
contamination, contaminated runoff,
windblown dust, and soil
contamination and increase the cost of
cleanup. (See Damage Cases and
Environmental Releases, EPA, 1997).
In the case of piles, the storage
practice of allowing secondary materials
to erode due to rainfall and to Be carried
away by the prevailing winds can pose
actual or potential threats to human
health and environment and are
suggestive of waste disposal practices.
(See Damage Cases and Environmental
Releases, EPA, 1997). The same is true
for surface impoundments where
materials are allowed to migrate to
contaminate soils and groundwater. In
contrast to these practices, most other
industries which generally store
secondary materials destined for
recycling in tanks, containers, or
buildings. Further, and more
importantly, these land-based storage
practices can result in the types of
environmental damage that RCRA was
designed to prevent.1 Such materials
can be viewed as "part of the waste
disposal problem" when stored in land-
based units, and hence "discarded"
(within the meaning of the statutory
definition of solid waste, RCRA section
1004 (27)). American Mining Congress
v. EPA, 907 F.2d 1179,1186 (D.C. Cir.
1990). The Agency is proposing
conditions that wo,uld better define
when discard is not occurring, such as
storage in a tank, container, or building.
The Agency received sufficient
comment on the jurisdictional solid
waste issues in the January 25,1996 rule
and requests that commenters direct
their comments solely to the new
options in today's notice.
As noted earlier, EPA initially found
that land-based units at mineral
processing sites have historically been a
significant part of the production
processes typical of the mining and
mineral processing industries. (See 61
FR at 2340-41). The Agency reasoned
that land-based units were necessary
due to 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) and historical practices for
the mineral industry. However, the
Agency also noted that there is a trend
for some mineral processing facilities to
manage secondary materials in tanks or
other units which provide containment
integrity. The Agency believes that the
trend toward storage of secondary
materials in tanks, containers, and
buildings is a function of technological
1 See RCRA Section 1003(b). 42 U.S.C.6902(b)
("The Congress hereby declares it to be the national
policy of the United States that, wherever feasible,
the generation of hazardous waste is to be reduced
or eliminated as expeditiously as possible. Waste
that is nevertheless generated should be treated,
stored, or disposed of so as to minimize the present
and future threat to human health and the
environment.")
advances, process changes; and
sometimes in response to increasing
environmental liability.
The Agency's review of comments on
the volumes and the management
practices of secondary materials
generated support the observation that
facilities are less likely to use land-
based units and are managing more
hazardous secondary materials in
contained units. Based on the comments
received and further evaluation of new
data, the Agency has found the volumes
of hazardous secondary materials from
mineral processing to be much lower
than earlier believed. Specifically, EPA
found that of the 119 hazardous waste
streams, 117 (98 percent) were
generated in quantities lower than the
respective Bevill high volume cutoffs for
solid and liquids. Even more
demonstrative is that 79 (48 solid wastes
and 31 liquid wastes) of the 119 waste
streams are generated in quantities less
than 5,000 tons per year. (See
Characterization of Mineral Processing-.
Wastes and Materials, EPA, 1997).
EPA's assumption that there was
production-related necessity for.mineral
processing facilities to utilize land-
based storage units is also called into
question by comparison of other
industries' storage practices with
respect to comparable metal-bearing
wastes which are likewise recycled for
metal recovery. For example, electric arc
furnace dust from steel smelting (K061)
is a similar metal-bearing waste that is
also re-processed. K061 is generated at
the average rate of 4,662 tons per facility
per year. However, K061 is stored in
tanks, containers, and buildings, not on
the land. There is no evidence that such
management poses an undue burden on
the generators or processors of K061.
Further, there are many similarities
between the recycling of K061 and the
recycling of hazardous secondary
materials by the mineral processing
industry. In both cases, metal-bearing
dust that bears resemblance to the raw
material metal concentrate being
smelted is generated as part of a
smelting process.
The Agency has seen a trend for
mineral processing wastes to be placed .
in tanks upon generation and treatment
This is the case for spent potliners K088
listed waste, a primary mineral
processing waste and one of the
remanded smelting wastes.
Approximately 23 facilities generate an
average of 5,400 tons per year of K088,
an aggregate of 125;000 tons per year.2
One facility, Reynolds Metal Company,
2Ef"A Background Document for Capacity
Analysis for Land Disposal Restrictions, Volume 1,
February 1996.-
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is able to store and treat almost the
entire nation's production of K088 in
tanks, containers, and buildings. In the
case of spent aluminum potliners, the
Industry does not appear to be unduly
burdened by storing this waste in tanks,
containers, or buildings.
Commenters presented little in the
way of data or compelling technical
reasons why mineral processing
hazardous secondary materials cannot
be stored in units other than land-based
units. One commenter stated that
molten copper slag needs to be poured
onto the ground because no container
would withstand the heat during the
cooling process. However, the Agency
finds this example unpersuasive
because copper slag is one of the special
20 mineral processing wastes and
therefore Isn't subject to subtitle C
regulation (See 261.4(b)(7)). In any case,
the copper slag Is stored and transported
In metal containers prior to being land
applied. Indicating that land storage is
not an exclusive alternative. In addition,
the slag is typically put back into the
beneflclation or smelting operation
within 24 hours, which Is a practice
indicating immediate reuse and not
discard. (Additional discussion on the
concept of Immediate reuse can be
found In Section IVA.4-Class of
Materials Outside of RCRA Jurisdiction.)
One commenter stated that red and
brown muds from bauxite refining
required surface impoundment due to
large volumes. Here also the Agency
finds this example unpersuasive
because red and brown muds are
included In the special 20 mineral
processing wastes and therefore are not
subject to subtitle C regulation (See
261.4(b)(7)). Commenters did not
Identify any other materials for which
land-based storage was a compelled
mode of management. .
2. Criteria for High Volumes of Bevill-
Exempt Mining and Mineral Processing
Wastes
High volume Is the principal indicator
of whether a particular waste is
amenable to management under Subtitle
C of RCRA. In developing the high
volume criterion for special mineral
processing waste, the Agency evaluated
four methodological issues: (1) The
appropriate degree of aggregation of
waste streams; (2) the basis for
quantitative analysis (facility specific
vs. Industrywide); (3) the units of
measure; and. (4) the types of other
wastes to be used as the basis for
comparison. (For a detailed discussion
on establishing the high volume criteria
see 54 FR 15327-31, April 17,1989).
The Agency established a high volume
cutoff for solid wastes from mineral
processing at 45,000 tons per facility
waste stream per year and the high
volume cutoff for liquids at one million
tons per facility waste stream per year.
In the case of extraction/beneficiation
wastes, the Agency published a
determination that regulation of such
wastes under Subtitle C of RCRA was
not warranted, primarily because
traditional hazardous waste controls
applied to large volume mining wastes
may be technically infeasible or
economically impractical. July 3, 1986
(51 FR 24496). In today's rule, the
Agency is soliciting comment on
whether large volume secondary
materials from mineral processing
should similarly be given special
consideration. The Agency is soliciting
comment on whether large volume
secondary materials from mineral
processing may require land-based
storage because of technical infeasibility
or production-related necessity.
Under this new option, (actually a -
subset of the January 25 proposal) those
mineral processing secondary materials
that meet or exceed the high volume
criteria would be eligible for the
conditional exclusion as proposed in
the January 25,1996 Proposed Rule (61
FR 2338). Specifically, if large volume
secondary materials are stored on the
land, such storage unit must meet either
risk based performance standards, or
minimum design criteria, or receive a
site-specific determination that the unit
is a process unit and not a waste
disposal unit. 61 FR at 2345-47. The
generally applicable conditions related
to legitimate recycling and speculative
accumulation would also apply. 61 FR
at 2342-45. In essence, today's proposal
applies one additional condition: to be
stored in a land-based unit, the
secondary material must be generated
on a per waste stream annual basis that
meets or exceeds the high volume
criteria. The Agency solicits comments
on this proposed regulatory approach.
3. Containment Units
EPA has collected information on a
variety of tanks, containers, and
buildings. The unit must function as a
process unit and should be designed to
contain the material placed in it with
reasonable certainty, that is, the
secondary materials must be stored in a
way that distinguishes the unit from a
waste disposal unit. Generally, a
containment unit should be an
engineered unit made of non-earthen
materials providing structural support.
The Agency believes that most
containment units currently in use by
the mineral industry would meet this
description. The Agency's review of
currently available tanks, containers,
and buildings indicates that wide
variety of commercially available units
meet or exceed these criteria. The
capacity, design, and function of these-
containment units are as varied as the
construction materials. (See Non-RCRA
Tanks, Containers, and Buildings, EPA,
1997). This report provides examples of
what the Agency considers to be
acceptable containment units for the
storage of mineral processing secondary
materials.
As discussed in this report, an
acceptable tank or container must be
free standing and not a surface
impoundment, be manufactured of a
material suitable for storage of its
• contents, and meet comparable
specification as those established by
ASTM, API, or other industry standards.
Additional descriptions of these
standards and examples of acceptable
storage units are described in EPA's
technical background document. (See
Non-RCRA Tanks, Containers, and
Buildings, EPA, 1997.) An acceptable
building containment unit must be a
man-made structure and foundation
constructed from non-earthen materials,
have walls (which may be removable),
and have a roof suitable for diverting
rainwater away from the foundation. In
considering criteria for tanks,
containers, and buildings, EPA is
placing special emphasis upon practical
considerations, such as the need to
transport materials in and out of the
unit in a reasonable fashion. The
Agency believes that buildings with one
or more open doors or removable walls
accessible to machinery, such as a front-
end loader, are acceptable. The Agency
solicits comment as to whether a three
sided concrete bunker, with no roof,
used to store flue dust is an acceptable
building or whether a tank or container
needs to be covered or have a fixed or
removable lid. Such containment units
may be acceptable in geographic regions
with sparse rainfall.
The Agency would not require that
these units meet full Subtitle C
requirement for storage units of
hazardous wastes. Specifically, the.
Subpart J requirements for tanks at 40
CFR 265.190-265.201 would not be
required. The Agency believes that an
appropriate indicia of containment
should include a comparison of how
this industry stores its primary
feedstocks and products, which is
typically in non-subtitle C tanks,
containers, or buildings. The Agency
believes that it is reasonable not to
condition an exclusion on using units
that meet all of the subtitle C standards.
These standards were not created to
demarcate a line between wastes and
non-wastes, and, similarly, are not the
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26051
necessary benchmark for ascertaining if
a unit functions as part of a production
process or is being used as a mode of
discard. Indeed, even raw materials
containment structures would not meet
all of the subtitle C requirements. The
Agency solicits comment on this
approach.
4. Class of Materials Outside of RCRA
Jurisdiction ' •
In the January 25 proposal, the
Agency stated that the statutory
definition of solid waste, as well as the
judicial opinions construing it, must be •
taken into account in addressing EPA's
jurisdiction over mineral processing
secondary materials. 61 FR 2341. In
American Mining Congress v. EPA, 824
F. 2d 1177 (D.C. Cir. 1987) ("AMC I"),
the court found that EPA's jurisdiction
does not extend to materials that are
destined for immediate reuse in another
phase of the industry's ongoing
production process. 824 F. 2d at 1186.
Subsequent judicial opinions have
clarified the narrow 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 II")
quoting AMC I, 824 F. 2d at 1186 n2. In
the January 25 rule, the Agency focused
its attention on land-based units which
by their very nature are unable to
prevent releases of secondary materials.
61 FR 2342. While storage of secondary
materials on the land is one indication
of discard, other practices such as lack
of immediate reuse is an indication that
unit is part of the waste management
problem. The Agency has damage case
information involving the
environmental release of product-like
materials being stored for extended
periods of time. (See Damage Cases and
Environmental Releases, EPA, 1997).
Conversely, materials that are
immediately reused in a process is a
practice indicative of on-going
processing that is outside the scope of
RCRA subtitle C.
Based on the Agency's study of
mineral processing industry practices
and review of comments on this subject
from the January 25 proposal, the
Agency believes initially that there are
two categories of materials that are
included in the definition of immediate
reuse. The first are materials that by
their very nature are being continually
processed and whose management
practices indicate that discard is not
occurring. These materials have always
been outside of RCRA jurisdiction and
are unaffected by this or the January 25
proposal. An example are copper
reverts, a refined copper material that
falls on the ground when molten copper
is transferred within the smelter.3 The
common industry, practice is to pick up
reverts on an hourly basis and put them
back into the smelting process. These
are not secondary materials (sludges,
spent materials, or byproducts) at all but
rather some type of in-process material
that is being put to further use. There is
no use for reverts other than to be added
to a copper smelting operation for
continued refining. Further, the Agency
is not aware of any. case where reverts
have been abandoned, discarded, or
whose land storage has contributed to
environmental problems. Copper reverts
have always been outside of RCRA
jurisdiction.
The second category are secondary
materials whose management practices
indicate that ongoing process immediate
reuse is occurring. An example of an
immediately reused secondary material
would be copper flue dust generated
from smelting operations. Most facilities
routinely store flue dusts for very short
periods of time before returning the
material to the smelting process. Similar
to reverts, copper flue dust has no other
use other than to be returned to the
smelting process for continued refining.
However, unlike reverts, the Agency has
information indicating that some flue
dusts are stored for extended periods of
time and have contributed,to
environmental problems. (See Damage
Cases and Environmental Releases, EPA,
1997). The Agency believes that
environmental releases are a function of
the length of storage time for these
materials.
Defining a particular time period that
constitutes immediate reuse raises
several considerations. The Agency has
found that most mineral processing
facilities operate 365 days per year, 24
hours per day. Because of this
continuous production schedule,
secondary materials that are destined for
immediate reuse are routinely placed
back into the process on an hourly basis
and most are recycled within one or two
days. The Agency believes that a time
period of two days is an appropriate
standard for immediate reuse. This
means that a secondary material that is
put back into production within two
days of generation is outside of RCRA
jurisdiction, regardless of whether it is
stored on the land. The Agency believes
that while most facilities could comply
with a much shorter time period, the
two day period allows flexibility to
perform the major steps necessary for
recycling. The Agency believes that
there are generally five major steps: (1)
Generation of the secondary material;
(2) sampling of the material (3) chemical
and property analysis of the material; (4)
processing decisions; and (5) placing
material back into the process.4 Even if
only one of the steps were to occur in
a separate eight hour shift the entire
sequence would require 40 production
hours, which is well within the two day
allowable period. The.Agency believes
that this is a worst case scenario, and
certainly within the zone of reasonable
durations from which EPA could select
a value, because most facilities process
materials in a much shorter time period
than the two day (48 hour) period.
The Agency realizes there are
occasions where a processing device
must be taken off line for maintenance.
There are occasions where machinery-
breaks down and extensive repair is
needed. In such cases, the facility
usually has parallel or backup devices
to continue production. Nevertheless,
the Agency realizes that this may not
always be the case and that sometimes
production stops for extended periods
of time. The point is that
notwithstanding the main line
production stoppages, secondary •
materials destined for immediate reuse
are routinely put back into production
expeditiously. To make allowance for
production stoppages, the Agency is
proposing that the tolling of the two day
period for immediate reuse would also
stop. The tolling would continue on the
next production day. Put another way,
a production day counts towards one
day of the two day limit.
In today's proposal, the Agency is
limiting the two day immediate reuse
exclusion only to on-site processing,
that is, where a material is generated
and reused in the same or similar
process at the same facility. EPA
believes that this is a reasonable
interpretation of the "immediate reuse"
test articulated in the judicial opinions.
Once secondary materials are
transferred off-site, the transaction is
less continuous, and elements of discard
3Reverts are matte and copper spilled in the
converter aisle in the process of being transferred
to ladles from one part of the smelting process to
another. See Memorandum from Roderick Dwyer,
National Mining Association, to James Berlow, EPA,
AugustSI, 1995.
4 These steps are based upon information
obtained from the Society of Mining Engineers
Mineral Processing Handbook. Volume 2, Section
30—Sampling and Testing, and Section 14G—
Purchase of Copper Concentrates and Cement
Copper (1985); By-products Recycling at ASARCO.
Processing of Drosses, Slages, and Dusts. G. Archer.
B.' Dunn, and F. Ojebuoboh. The Minerals. Metals.
and Materials Society (1991).
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such as use of land-based storage can be
assessed in determining if management
of the material has become part of the
waste disposal problem. AMCII, 907 F.
2d at 1186. Further, the exclusion does
not apply to secondary materials in
either category that are managed in a
way Indicative of disposal.
The Agency solicits comment on the
appropriateness of a two day time
period; whether there are more practical
or appropriate measures of immediate
reuse; and whether this exclusion
should apply beyond on-site processing.
Further, the Agency solicits comment.
on what other specific materials would
qualify under the immediate reuse
exception.
B. Pfew Option—Non-Bevill Materials
Used as Alternative Feedstocks
The Agency is proposing an option
related to the case where a process
which generates a waste exemption
from subtitle C regulation under the
Bevlll amendment uses as partial
feedstock something other than a Bevill
raw material. An example would be a
copper beneflclation mill which uses
by-products from primary zinc
manufacture as an auxiliary feedstock
along with copper ore. This new option
would limit availability of the Bevill
exemption to wastes generated
exclusively from the use of Bevill raw
materials, namely ores and minerals.
Because of the potential additive risk
posed by the co-processing of non-Bevill
materials, the Agency is proposing an
option that would 'prevent
contaminants from non-Bevilled
materials to be afforded the Bevill
exclusion. This option is not an
alternative to the option of restricting
use of land-based storage units
discussed in the section entitled "New
Option—Land Storage of Secondary
Materials." It is an independent
proposal which could be adopted
regardless of the Agency's decision on
land-based storage units.
In the January 25 proposal, the
Agency discussed one option for
evaluating wastes generated from these
types of co-processing operations. 61FR
at 2351, In order for the waste to qualify
for the Bevill exclusion under that
proposal, the Agency proposed the
following criteria: (1) The waste needs
to result from operations that process
greater than 50% beneficiation raw
materials; (2) the material being co-
processed would have to meet the tests
for legitimate recycling proposed in the
January 25 notice; and (3) the resulting
waste could not be "significantly
affected" by addition of the co-
processed, alternative feedstock. This
"significantly affected" test involved
comparing wastes generated by
processing exclusively Bevill raw
materials with wastes from co-
processing alternative feedstocks and
showing that the addition of the
alternative feedstocks did not have
either a statistically significant effect, or,
in the alternative, an environmentally
significant effect Wastes not
"significantly affected" remained the
type of waste EPA had determined
warrant Subtitle C exemption. 61 FR at
2351.
Most industry commenters supported
the 50 percent criteria but disagreed
with the need for a quantified
legitimacy test and the significantly
affected test. Further, industry
commenters argued that these tests were
unworkable as applied to their wastes.
Industry commenters also argued that
Congress intended the Bevill
Amendment to be interpreted broadly,
to include not only solid waste from the
extraction, beneficiation, and mineral
processing of ores and minerals but also
wastes generated when (1) non-Bevill
feedstocks are added to a unit that
generates a Bevill waste and (2) non-
Bevill wastes are added directly to a
Bevill waste.
At the outset, it is important to note
the distinction between these two
scenarios. The new option discussed in
today's proposal addresses the first
scenario in which non-Bevill feedstocks
are co-processed with Bevill raw
materials in a unit that generates a
Bevill waste. The second scenario,
which refers to directdisposal of a non-
Bevill waste with a Bevill waste, was
addressed in the January 25,1996
proposed rule and EPA's proposed
approach for dealing with that scenario
is not being modified by today's notice.5
Under today's new option, in order
for a waste to qualify for the Bevill
exclusion, all feedstocks entering the
unit must be solely derived from the
extraction, beneficiation or processing
of a virgin ore or mineral. This means
that only extracted virgin ores used as
a feedstock to a beneficiation -operation
and only concentrates derived from
beneficiation and then used as'a
feedstock to mineral processing would
be eligible for the Bevill exclusion. If
alternative materials are used as
feedstocks, the resulting waste would
not be eligible for the Bevill exclusion.
For purposes of this proposal,
alternative feedstocks include secondary
materials generated from mineral
5See Proposed Amendment to Bevill Mixture
Rule, 51 FRat 2352. The Agency proposed that
Subtitle C requirements would apply when non-
Bevill hazardous wastes are disposed with, stored
with, mixed with or otherwise combined with
Bevill-exempt solid wastes.
processing operations and any materials
generated in industries other than
mining or mineral processing, regardless
of whether the material exhibits a
hazardous characteristic.
Under this option, the 50 percent
criteria for Bevill eligibility, as
discussed in the January-25,1996
proposed rule at 61 FR 2351, would not
be applicable. Similarly, the
significantly affected test proposed at 61
FR 2351 would no longer be applicable.
Since under today's proposal,'any
addition of a non-Bevill feedstock
would disqualify the resulting wastes
from the Bevill exemption, the 50
percent and significantly affected tests
would be redundant.
This proposal is based on the
following principles. First, the Bevill
exemption allows for management of
what would otherwise be hazardous
waste outside of subtitle C controls.
This uncontrolled management has led
to instances of, widespread, and serious
environmental damage. (See Damage
Cases and Environmental Releases, EPA,
1997). In light of this, EPA believes it is
sound policy to interpret the scope of
the exclusion to die narrowest
permissible in order to limit the amount
of hazardous waste escaping regulatory
control. Second, the Bevill amendment
creates an unfortunate incentive to
maximize volume of Bevill waste
generated. Put another way, there is an
incentive to maximize the volume of
material processed through the Bevill
circuit because the resulting wastes are
accorded Bevill exempt status.
Compounding the problem, the co-
processing can frequently make the
resulting wastes more toxic. Again,
given the exempt status of the wastes,
EPA believes it makes sense to limit the
scope of the exemption and reduce this'
incentive for waste maximization. These
points are discussed more fully below.
Co-processing of non-Bevill feedstock
has changed significantly since the
Agency performed its Congressionally
mandated studies. When EPA studied
extraction, beneficiation, and mineral
processing wastes in the 1985 and 1990
Reports to Congress, the Agency did not
specifically study the practice of co- •
processing alternative feedstock with
Bevill feedstocks. In die case of
beneficiation, the Agency believed this
practice was conducted on such a small
scale as to warrant little or no mention
in the 1985 Report to Congress and 1986
Regulatory Determination. For mineral
processing the Agency believed that
bodi co-processing and co-disposal of
hazardous materials was performed on
such a small scale that it addressed both
situations under a general Bevill
mixture rule. (See 54 FR 36622-23 and
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26053
also 61 FR 2352). The Agency's
continued study of mining and mineral
processing indicates that co-processing
of non-Bevill feedstocks is becoming
much more prevalent This could be
because as EPA has implemented the
LDR program, generators have sought
alternative outlets for waste rather than
paying for the required treatment. For
example, copper smelting operations
currently process a substantial portion
of the nation's F006 listed hazardous
electroplating wastes, a practice that did
not exist when EPA studied the Bevill
.special waste, copper slag, produced by
this smelting. Based on environmental
damages from copper slag and other
Bevill wastes, the Agency is concerned
about the contribution of contaminants
from non-Bevlll sources. The Agency
seeks additional data on the types,
quantities, and management practices of
non-Bevill feedstock which are co-
processed by units that generate Bevill -
wastes.6
The Agency believes that the addition
of hazardous substances from non-Bevill
sources only makes the risk posed by
exempt mining wastes greater. In light
of the environmental damages caused by
Bevill wastes, the high cost of
remediation, and the contribution of
contaminants from non-Bevill
feedstocks, the Agency is taking
comment on a rigorously narrow
reading of the Bevill exemption and
proposing this option which removes
the Bevill exclusion for wastes that are
generated from a unit or device that co-
processes non-Bevill alternative
feedstocks. Under this option, non-
Bevill feedstocks may still be processed
in a Bevill device or unit; however, the
resulting wastes will not be afforded the
Bevill exclusion. The Agency found
cases where alternative feedstocks may
have contributed to the quantities of
hazardous constituents found at mining
and mineral processing sites. (See
Damage Cases and Environmental
Releases, EPA, 1997.)-In addition, the
Agency has reviewed other damage
*EPA notes that it has established a different type
of rule coveting the status of cement kiln dust
generated when a cement kiln co-processes
hazardous waste fuel along with its normal raw
materials. In this case, the cement kiln dust retains
Bevill status so long as the dust is not "significantly
affected" by the hazardous waste co-processing. 40
CFR 266.112. There is an important distinction
between this situation and co-processing in the
beneficiation/mineral processing setting which
justifies a different regulatory approach. A cement
kiln which burns hazardous waste must obtain a
subtitle C permit for its hazardous waste storage
and combustion activities, and must subject its
entire facility (including cement kiln dust
management) to RCRA corrective action in the
event of releases. There thus are substantial
environmental safeguards present which justify a
more lenient interpretation of Bevill status.
cases from beneficiation and mineral
processing sites and similarly found that
non-Bevill materials may have
contributed to the environmental
problems at these sites. Id. Because of
the potential additive risk posed by the
co-processing of non-Bevill materials,
the Agency is proposing an option that
would prevent contaminants from non-
Bevill materials being afforded the
Bevill exclusion.
The Agency believes that co-
processing even nonhazardous
alternative feedstocks can also
potentially pose additional risks when
co-processed in a unit generating Bevill
waste. Some alternative feedstocks,
while not exhibiting a RCRA hazardous
characteristic, often still contain
hazardous constituents that ultimately
are disposed with the Bevill wastes.
These hazardous constituents are found
in remediation wastes at mining sites,
adding to the cleanup costs. (See
Damage Cases and Environmental
Releases, EPA, 1997). The Agency's
views are influenced in part on
Horsehead Resources Corp. v. Browner
16 F.3d 1246,1258 where the Court
held that "it simply makes no sense to
permit Bevill devices to become
inadequately regulated dumping
grounds for hazardous materials." The
Agency is proposing that the co-
processing of alternative feedstocks,
even those that do not exhibit a
characteristic under RCRA, results in
the loss of the Bevill exemption for the
resulting wastes. The Agency solicits
comment on this approach.
.There are situations where secondary
materials generated from mineral
processing would be given Bevill
protection. This is when the secondary
material is independently classified as a
Bevill waste, for example, it is one of
the enumerated special mineral
processing wastes streams or a
beneficiation waste. (See §261.4(b)(7)).
Under today's proposal, the use of a
Bevill waste as an alternative feedstock
does not change the Bevill status of a
resulting waste. For example, copper
slag (a special 20 waste) used as an
alternative feedstock fora copper
beneficiation operation would not -
change the Bevill status of the resulting
tailings. The Agency believes that use of
a Bevill waste as an alternative
feedstock does not have an overall
impact on the toxicity of the resulting
waste since any Bevill waste can be
land-disposed without regard to co-
disposal with another Bevill waste.
"The benefits to the option proposed
today include a reduction of hazardous
substances found in the resulting Bevill
wastes and a potential reduction of
environmental risks. The environmental
cleanup costs due to hazardous
substances found at mine and mineral
processing sites is significant (See Costs
of Remediation at Mine Site, EPA,
1997).
The Agency also believes that this
approach could assist in more simpler
application of the exemption. The
application of the Bevill exemption
poses many practical difficulties,
especially where non-Bevill feedstocks
are co-processed and other industrial
wastes are stored and mixed with Bevill
feedstocks. There can be a significant
implementation burden (e.g., analytical
testing, assessing a facility's material
balance and operating costs) associated
with discerning in some cases whether
co-processing of alternative feedstocks
is a legitimate form of recycling or
simply a method of disposal..
In these instances, as noted earlier,
the Bevill exemption creates an
incentive to maximize generation of
wastes. Any secondary materials,
including those that are low volume and
highly toxic, that are used as a feedstock
in a beneficiation unit are afforded the .
same Bevill protection as a large volume
mining waste. Given that beneficiation
units generally recover only a fraction of
material in a feedstock-(often less than
one percent of the volume or weight) the
majority of the alternative feedstock
ultimately is discarded along with the
Bevill waste. Further, the remainder
often has contaminant concentrations
greater than the Bevill waste. (See
Characterization of Mineral Processing
Wastes and Materials, EPA; 1997) By
clearly defining which feedstocks are
derived from the mining of an ore or
mineral and therefore Bevill eligible,
regulators would be more readily able to
determine which wastes found at a mine
or mineral processing sites qualify for
the Bevill exemption and which do not.
However, there would be negative
aspects of this restriction on alternative
feedstocks. First, there are limits to
EPA's knowledge of environmental
damage caused by Bevill wastes. Most
Bevill wastes are disposed of in land-
based units and the Agency can measure
the degree of contamination caused by
the overall disposal practice. In many
cases it is difficult to distinguish
between the contribution of
contaminants from alternative
feedstocks and contaminants from
Bevill-exempt wastes. Some alternative
feedstocks may not pose any additive
risk to the resulting Bevill wastes, and
this option may needlessly restrict
legitimate recycling and cause industry
to forgo economical recovery of
minerals. This may be especially true in
the case where the alternative feedstock
does not exhibit the toxicity
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characteristic (TC). Removing Bevill-
exempt status if such materials are used
as an alternative feedstock may
therefore not result in improved
environmental management A useful
means of recycling the alternative
feedstock also might be eliminated. The
Agency solicits comment on this
proposed option generally as well as the
specific proposal to eliminate the
applicability of Bevill for co-processing
nonhazardous materials.
This restriction would not be
applicable to materials such as water or
acid that are otherwise effective
substitutes for commercial products;
these materials are not being reclaimed
and are not solid wastes. (See
261.2(e)"(H)). The Agency solicits
comment on whether there may be
situations where water or acid is a solid
waste because they are being reclaimed
In a Bevill unit and whether the
alternative feedstock restriction should
apply.
The Agency seeks comment on this
option, which would remove the Bevill
exclusion for wastes resulting from the
co-processing of non Bevill feedstocks.
As previously stated, the Agency also
seek comments on whether this
restriction should apply to all non-
Bevlll feedstock or only to those that
exhibit a hazardous characteristic,
specifically theTC. (261.24).
C. High Risk Mining Wastes Excluded by
the Bevill Amendment
1. General Discussion
The Agency is presenting new
Information on threats to human health
and die environment from Bevill mining
and mineral processing wastes and
posing the question of whether certain
wastes currently excluded under Bevill
warrant further study or regulatory
controls. The Agency also is soliciting
comment on whether a high volume test
or other method should be applied to
wastes In order to determine Bevill
eligibility.
As part of the information gathering
efforts under the Phase IV rulemaking,
the Agency has continued to learn more
about management practices in the
mining and mineral processing •
industry, and has reached the point
where public input would help focus
the Agency's future efforts in
determining how best to address the
risks posed by Bevill wastes. The
Agency's concerns include issues
Involving environmental and natural
resource damages from acid mine
drainage, the use of cyanide and other
toxic chemicals, radioactivity, stability
of tailings and waste rock piles, and in-
sku mining methods. The Agency
prepared a report that includes a history
of the Bevill Amendment and the
Agency's activities, description of
mining practices, information about
actual and potential environmental
threats caused by mining and mineral •
processing wastes, and information
about new risk assessment techniques
that may be applicable to mining
wastes. This report is presented in the
RCRA docket for review and comment.
(See Risks Posed by Bevill Mining
Wastes, EPA, 1997). Any regulatory
activity regarding the examination of
risk posed by Bevill wastes would be
addressed in a future rulemaking other
than Phase IV.
Based on the information in this
report, the Agency is therefore seeking
comment on whether reexamination of
some Bevill wastes is warranted. In
today's notice, the Agency is not
proposing any specific change to the
current Bevill exclusion nor has it
concluded that any particular course of
action is most appropriate. Rather, the
Agency is presenting new information
on risks posed by Bevill wastes and is
posing the question of whether some
waste streams require additional study
or regulatory controls given the
availability of new risk assessment
techniques. Conversely, the Agency is
also soliciting comment on whether
more protective environmental practices
have been put in place and, if so,
whether future regulatory actions are
necessary.
2. Wastes Eligible for the Bevill
Exclusion
Commenters on the January 25
proposed rule contend that the Agency
was proposing to narrow the current
Bevill exemption by identifying certain
wastes in its technical background
documents that would be subject to
Subtitle C requirements. The Agency
includes a discussion in that document
and made it available to the public
because EPA believes that it is helpful
for all parties to understand which
wastes are indeed eligible for the Bevill
exclusion for purposes of this rule when
finalized. As discussed in previous
sections of today's notice, small volume
hazardous waste may contribute to the .
overall risk posed by some Bevill wastes
and reduction of these waste streams
would be desirable. The Agency'
currently determines whether Bevill is
applicable on a case-by-case qualitative
basis. The Agency is soliciting comment
on whether to maintain the current
qualitative assessment, or establish
some other method to determine Bevill
eligibility..
In addressing the issue of whether
certain wastes should be eligible for the
Bevill exclusion, the D.C. Circuit Court
of Appeals found that Congress
intended the Bevill Amendment to be
limited to "special wastes" that are high
volume and low hazard.7 The Agency
subsequently defined special wastes to
include only extraction/beneflciatiori
wastes and 20 mineral processing
wastes. The Agency developed a high
volume, low hazard criteria (e.g., 45,000
tons per year for solids, one million tons
per year for liquids as generated) for
mineral processing waste, consistent
with the direction from the D.C. Circuit
decisions, but did not apply these
criteria on a wastestream by
wastestream basis for the previously
addressed extraction/beneficiation
wastes. 54 FR 36619. Courts have also
found that small volume hazardous
wastes are outside the scope of Bevill.8 ,
It is clear'from the legislative history
that both EPA and Congress intended
the "special waste" concept to have a
finite scope that did not encompass
wastes from operations that produce
wastes in volumes similar to other
manufacturing operations. 54 FR 15325.
Further, the Court in Horse head
.Resources v. Browner (16 F.3d 1246;
1258) held that the large volume criteria
applies to all Bevill wastes, and not just
those from mineral processing.
Under section 3001 (b)(3)(A)(ii) of ,
RCRA, the Bevill exclusion is available
for "solid waste from the extraction,
beneficiation and process of ores and
minerals" (emphasis added). In
determining whether a particular waste
is, in fact, from one of these processes,
the Agency has generally evaluated
whether the waste is "uniquely
7"lT]he structure of the Bevill Amendment
suggests that Congress Intended to single out high-
volume 'special wastes' for regulatory suspension
when it excluded 'solid waste from the extraction,
beneficiation and processing of ores and
minerals.'" Environmental Defense Fund v. EPA,
852 F.2d 1316,1327 (D.C. Cir. 1988). The Court also
decided that "Itjhe legislative history of the Bevill
Amendment establishes that the key to
understanding Congress' intent is the concept of
"special waste" articulated in the regulations
proposed by EPA on December 18, J978 following
the enactment of RCRA." Id. See 43 FR 58911
(1978) and 50 FR 40293 (1985).
"The D.C. Circuit Court of Appeals held that the
Agency's attempt to exclude six low volume, high
hazard smelting wastes was an "impermissibly over
broad interpretation of the Bevill Amendment"
EOF n at 1330. "Since EPA found that those six
smelter wastes are low volume and high hazard
wastes, it cannot refuse to list them las hazardous
wastes]." EDFIIat 1327. The Agency notes that
these six smelting wastes (which includes K088
potliners and K064 acid plant blowdown) are
generated in quantities greater than most of the non-
Bevill secondary materials at issue. "Because the
Court explicitly determined that the six smelting
wastes are not high volume, low hazard wastes, the
generation rates of these wastes can and should
serve as a lower bound below which wastes should
not be afforded Bevill status." 54 FR 15330 April
17.1989.
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26055
associated" with the enumerated
processes. The Agency defines non-
uniquely associated wastes to be non-
indigenous to mining, small in volume,
and generated by many other non-Bevill
industrial operations. (See 45 FR 76619,
November 19,1980 and 54 FR 36623,
September 1,1989). Examples of non-
uniquely associated wastes include
spent solvents, pesticide wastes, and
discarded commercial chemicals. In the
Agency's view, these wastes are
logically viewed as not being "from"
mineral processing, beneficiation or
extraction and therefore are not subject
to the Bevill exclusion.
When applied to ancillary operations
located at a mine site, such as
• degreasing solvents from vehicle
maintenance, it is relatively
straightforward to apply the uniquely
associated principle and determine that
the spent solvents are not uniquely
associated with mining and therefore
are not eligible for the Bevill exclusion.
In this example the solvents are small
volume, highly toxic, not indigenous to
the ore being mined, and commonly
generated from other industrial sectors.
However, it becomes more difficult to
make such determinations when a small
volume material comes into contact
with a beneficiated ore or mineral
during normal operations. Through
contact the small volume material may
acquire some of the chemical
composition of the Bevill waste (e.g., a
solvent absorbs some of the Bevill
waste). Having acquired some of the
chemical properties of the Bevill waste,
under what circumstances, if any,
should the solvent be considered a
Bevill waste when discarded? Some
commenters contend that Congress
intended the Bevill Amendment to be
interpreted broadly and that the
Agency's application of the uniquely
associated principle is an impermissible
interpretation.9
In its studies of the mineral industry,
the Agency found several small volume
wastes that come into contact with a
Bevill waste.10 These include lead
anodes, spent kerosene solvent, and
crud from copper solvent extraction and
electrowinning; and crucibles, cupels,
and acid cleaning solution from gold
.heap leach operations. All of these small
volume wastes are inherently hazardous
(they would be hazardous waste when
disposed regardless of whether contact
occurred). The Agency believes that
these wastes may be viewed as not being
'Comments of the National Mining Association
on the supplemental Proposal to Phase IV, April 24,
1996. Docket F-95-PH4A-FFFFF:-
10 Identification and Description of Mineral
Processing Sectors and Waste Streams. EPA. 1995.
Uniquely associated with mineral
processing, beneficiation and extraction,
and this conclusion is reflected in the
technical background document to the
Phase IV proposal. As stated in the
previous section, the Agency believes it
is sound policy to interpret the scope of
the exclusion narrowly in order to
prevent Bevill waste from being a
dumping ground for hazardous waste
and to reduce any incentives for waste
maximization. The Agency believes
that, given the extent of interest in
EPA's practice in this area, solicitation
of public comment would help ensure
that EPA's application of the Bevill
exclusion in particular cases is based on
sound policies reflecting public input
Recognizing that the "uniquely
associated" principle can be difficult to
apply in certain cases, the Agency is
considering whether a simple
application of the high volume
thresholds to determine Bevill eligibility
for beneficiation and extraction wastes
discussed above might be preferable to
application of the uniquely associated
principle. Under this option, there
would be no need to consider the non-
uniquely associated principle because
any waste'stream from the extraction,
beneficiation, or processing of an ore or
mineral that is not high volume would
not be a Bevill waste. This option has
the advantage of being simple to apply
and is consistent with the broad
parameters of Congressional intent that
Bevill generally applies only to high
volume wastes. This option would help
prevent additional toxic constituents
being disposed \yith Bevill wastes,
encourage recycling, and may result in
reduction of cleanup costs. The Agency
solicits comment on whether a large
volume standard should be a
determining factor for Bevill eligibility
and, if so, whether the mineral
processing high volume standards of
45,000 tons per year per waste stream
for solids and one million tons per year
per waste stream for liquids are
appropriate measures of high volume.
The Agency also solicits public input
regarding other potential approaches
that could be applied in evaluating
whether a particular waste is uniquely
associated, and therefore excluded
under the Bevill Amendment. One
approach would be to adhere to a
principle that any material that comes
into contact with a Bevill waste,
feedstock, or product during normal
process operations becomes a uniquely
associated Bevill waste when discarded.
This approach would be consistent with
past determinations that non-contact
operations are non-uniquely associated,
such as degreasing solvents from vehicle
maintenance. The approach, however,
would alter some determinations
contained in the technical background
document to the Phase IV Supplemental
Proposal involving contact operations.
Lead anodes, spent kerosene solvent,
and crud from copper solvent extraction
and electrowinning; and crucibles,
cupels, and acid cleaning solution from
gold heap leach operations, would all be
considered uniquely associated and
therefore Bevill wastes under this
approach. A variation of this approach .
would be to utilize the contact
principle, as stated above, but to
consider small volume wastes that
exhibit a hazardous characteristic both
before and after contact with the Bevill
waste, feedstock, or product, as being
non-uniquely associated. This option
would maintain the determination that
non-contact wastes are non-uniquely
associated. Where contact is involved,
the option may increase the number of
uniquely associated wastes identified in
the technical background document to
the Phase IV Supplemental Proposal.
However, lead" anodes, spent kerosene
solvent, and crud from copper solvent
extraction and electrowinning, and
crucibles, cupels, and acid cleaning
solution from gold heap leach
operations would be considered non-
uniquely associated (all of these small
volume wastes are inherently
hazardous—they would be hazardous
waste when disposed regardless of
.whether contact occurred). The Agency
solicits comment on whether to stay
with the existing qualitative approach,
or whether any of the above options
provides a clearer and more appropriate
definition of the uniquely associated
principle. The Agency solicits comment • •
on this and other potential analytical
frameworks that the Agency and States
could utilize in evaluating whether a
particular waste is subject to the Bevill
exclusion.
VI. Proposed Exclusion of Wood
Preserving Wastewaters and Spent
Wood Preserving Solutions From
Classification as Solid Waste Under
RCRA
Summary: EPA is proposing to amend
the regulations under the Resource '
Conservation and Recovery Act (RCRA)
to provide an exclusion from the
definition of solid waste for certain
materials generated and recycled by the
wood preserving industry. Specifically,
the provisions would exclude wood
preserving wastewaters and spent wood
preserving solutions from classification
as solid waste under RCRA, provided
that they are recycled and reused on-site
in the production process for their
original intended purpose, the materials
are managed to prevent release, and
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Federal Register / Vol. 62. No. 91 / Monday. May 12. 1997 / Proposed Rules
they meet other conditions specified in
the following section. The Agency seeks
public comment on this proposal.
A. Background
EPA first raised the possibility of
providing a regulatory exclusion from
the definition of solid waste for the
wood preserving Industry's recycled
wastewaters In the August 22,1995
Land Disposal Restrictions (LDR) Phase
IV proposed rule (60 FR 43654). In that
proposed rule EPA stated that it .may be
Inappropriate to regulate a reclamation
process under RCRA when that process
Is an essential part of production and
the materials being reclaimed are not
part of the waste disposal problem. We
acknowledged that under the current
system, It Is possible for a wood
preserving plant that reclaims its
wastewaters as an essential step in the
production process to successfully
petition EPA for a site-specific variance
(even though these wastes contact a drip
pad. which Is a regulated hazardous
waste management unit), provided that
the reclamation operation meets the
standards and criteria identified under
40CFR260.31(b).
Under the current regulatory program,
EPA may grant site-specific, case-by-
case variances from the definition of
solid waste (and therefore from the
regulations under RCRA to which
persons handling solid and hazardous
waste are subject) for materials that are
recycled In certain ways, (see 40 CFR
260.30 and 40 CFR 260.31). Any solid
waste generator may petition EPA for a
variance from the definition of solid
waste based upon these criteria.
1. Request for Comment in Land
Disposal Restrictions Phase IV Proposed
Rule
In the August 22,1995 LDR proposal,
EPA requested comment on granting an
exclusion from the definition of solid
waste for production wastewaters being
reclaimed by the wood preserving
Industry If the wood preservers could
demonstrate on an industry-wide basis
that reclamation of these wastewaters
when reclaimed meet the eight variance
criteria under § 260.31(b). EPA asked for
comment on the extent to which the
Industry as a whole could meet the
criteria. We expressed particular interest
in the extent to which the industry
could show that Its reclamation
operations meet the criterion under
§ 260.31 (b) (3). This provision requires a
demonstration that a material is handled
In a manner that minimizes loss before
reclamation.
EPA received comments from the
wood preserving industry, a state
regulatory agency, and a national
environmental organization. These
comments were noticed in a May 10,
1996 Notice of Data Availability
(NODA) at 61 FR 21418 for the LDR
proposed rule and were made available
for public review as part of the docket
for that rule. All-comments received to
date concerning a possible exclusion for
recycled wood preserving wastewaters
are currently available in the docket for
the August proposal or the NODA.
2. Statutory Remedy Considered by
Congress
While EPA.was soliciting comment on
the feasibility of an exclusion for the
industry's recycled wastewaters,
.Congress was considering action to
provide a statutory exclusion from the
definition of solid waste for these
materials. Congressional staff asked EPA
to provide technical review and advice
as they developed H.R. 2335, a bill that
would have exempted "materials
contained, collected, and reused in an
on-site production process that prevents
releases to the environment" from the
definition of solid waste.
As part of this process, EPA staff
participated in a number of meetings
with Congressional staff and
representatives from the wood
preserving industry and was able to
gather additional information to assist
EPA in determining whether or not the
industry would be able to successfully
meet the evaluation criteria EPA had
discussed in the August 22,1995
Federal Register notice. EPA added this
information, submitted by both EPA and
industry representatives at the request
. of Congressional staff, to the LDR Phase
IV rulemaking docket. This information
was not referenced in the May 10,1996
NODA because EPA had not yet
gathered it It is currently available for
review in the docket for the May 10,
1996 NODA.
B. Rationale for Proposal
The August 22,1995 LDR notice
provided no specific regulatory
language for an exclusion for the
wastewaters generated and recycled by
the wood preserving industry because
the Agency was at that time soliciting
information to determine whether
proposing such an exclusion would be
justified given the criteria referenced
above. Based upon the information EPA
received, EPA believes an exclusion is
appropriate and therefore, today, EPA is
soliciting public comment on a
conditional exclusion from the
definition of solid waste for wood
preserving wastewaters and spent wood
preserving solutions that are recycled
and reused on-site at a wood preserving
plant for their original intended
purpose. Under today's approach,
wastewaters and spent wood preserving
solutions that are recycled on-site for
their original intended purpose at a
wood preserving facility are not solid
wastes if they are recycled in a manner
that meets the conditions discussed
below. We believe that an exclusion is
justified given the degree to which
recycling of these materials as evaluated
using the criteria.set out in 40 CFR
260.3 l(b) is, on an industry-wide basis,
an essential part of the production
process and does not contribute to the
waste,management problem. It is
important to clarify that today's
proposal is for an exclusion from the
definition of solid waste and not for a
variance as provided for under 40 CFR
260.30. EPA is simply using the
§260.31(b) variance criteria to aid in an
evaluation of whether an industry-wide
exclusion is justified. It is only through
compliance with the conditions EPA is
presenting today that a wood preserving
plant would be able to claim the
exclusion.
In its comments on the August 22,
1995 Federal Register (in a letter dated
November 20, 1995, hereafter referred to
as "the AWPI letter"), the American
Wood Preservers Institute (AWPI)
addressed the § 260.31 (b) criteria and
explained how the wood preservers
meet them oh an industry-wide basis.
AWPI's comments are included in the
docket for the August 1995 proposed
rule.
As mentioned above, in the August
22, 1995 Federal Register notice EPA
expressed particular interest in the
extent to which the Industry could show
that its reclamation operations meet the
§ 260.31 (b) (3) criterion that a material be
handled bfefore reclamation to minimize
loss. Accordingly, EPA is today
proposing conditions that should ensure
that any facility meeting the conditions
' would be minimizing loss of its
wastewaters and spent wood preserving
solutions prior to reclamation. With
respect to other criteria under
§ 260.31 (b), EPA believes that the.
•recycling of wastewaters and spent
wood preserving solutions is essential to
die financial well being of waterborne
wood preserving plants (see discussion
under section D below and page eight of
the AWPI letter) and therefore meets the
criteria set out in § 260.3 l(b)(l) for those
plants. Without recycling their
wastewater and preservative, wood
preserving plants would have to
. purchase fresh water and preservative
and pay for dieir disposal. It is .our
understanding that reuse of wastewaters
and spent wood preserving solutions is
standard practice at waterborne plants,
which are subject to zero discharge
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Federal Register / Vol. 62. No. 91 / Monday, May 12, 1997 / Proposed Rules 26057
requirements under the federal Clean
Water Act and therefore, those plants
meet the criteria set out in
§260.31(b)(2). The condition that these
materials be recycled and reused on-site
virtually assures close proximity of the
recycling operation to the primary
production process (§260.31(b)(5)) and
that the materials are generated and
reclaimed by the same party
(§ 260.31 (b) (7)). In its letter, AWPI
stated that "in both oilborne and
waterborne processes, the reclamation
operation is located within, and is an
integral component of, the production
process area." We are also proposing
that the exclusion for wastewaters and
spent wood preserving solutions being
reclaimed be conditioned on the
reclaimed materials .being used for their
original intended purpose when
returned to the production process
(§260.31 (b)(6)). It is EPA's
understanding (and is stated .by AWPI in
their letter) that the reused materials,
once reclaimed, are returned to the
process in substantially their original
form (§ 260.31(b)(6)), and that the short
amount of time. EPA believes that the
industry also meets § 260.31(b)(4)
criteria concerning the amount of time
' between generation and reclamation and
reclamation and return to the primary
production process §260.31(b)(4))
supports finding that reclamation is an
essential .part of the production process.
According to AWPI's letter, recoverable
materials are reclaimed immediately
upon generation at both waterborne and
oilborne plants; and are immediately
available for reuse at waterborne plants
and are available for reuse after 24-48
hours at oilborne plants.
. EPA believes that plants meeting the
conditions proposed today will be
recycling their wastewaters and spent
solutions in a manner that is protective
of human health and the environment
Today APIARY seeking comment on the
regulatory language proposed below that
would allow for the implementation of
this exclusion.
C. Wastes Commonly Reused by the
Wood Preserving Industry
Wood preserving wastewaters
containing spent wood preserving
solutions are commonly reused by wood
preserving plants that use chromated
copper arsenate (CCA) as a preservative
and by other waterborne plants (as
opposed to oilborne plants which use
pentachlorophenol or creosote as a
preservative). Typical pressure
treatment processes involve the reuse of
preservatives from work, storage, and
mixing tanks for use in the retort.
Preservative formulation lost with
wastewater or through drippage into die
door sumps (which collect liquid
outside of the retort) is often collected
and fed back into the production
process. The industry also commonly
reuses both drippage collected from drip
pads (as is required under RCRA
regulations) and wastewaters that it
generates during production. The
combination of the economic incentive
to make use of existing resources and
the regulatory requirements under the
Clean Water Act (see 40 CFR Part 429)
for the discharge of the industry's
effluent waste, including a zero
discharge requirement for waterborne
plants, make the reuse of wastewater an
attractive and necessary alternative to
disposal.
if they are recycled according to the
conditions discussed below.
D. Current Regulatory Status of
Recycled Wastewaters and Spent Wood
Preserving Solutions
Under the current regulations, wood
preserving wastewaters and spent wood
preserving solutions are regulated as
solid and hazardous wastes until they •
are reclaimed by filtration, oil water
separation or other means. The
reclaimed materials are ho longer
regulated as solid and hazardous-wastes
once the reclamation process is
completed provided they are used to
treat wood. EPA issued a Federal
Register Notice clarifying the regulatory
status of these materials on July 1, 1991
(56 FR 30192). For example, water that
is used to wash spent wood preserving
solutions from a drip pad is regulated as
a solid and hazardous waste under the
current system. Once the water
containing the spent solutions has been
reclaimed, it is no longer considered a
solid and hazardous waste if it is put
back into the retort or otherwise used to
treat wood. See §261.3(c)(2)(i) (final
sentence). (Once the recycled water has
been used to treat wood and is ready for
discard or further reclamation..!! is
again regulated as a solid and hazardous
waste.)
E. Proposed Exclusion of Wastewaters
and Spent Wood Preserving Solutions
That are Recycled
1. General
Today EPA is asking for comment on
amending the definition of solid waste
to exclude wastewaters and spent wood
preserving solutions that are recycled
from-regulation as solid and hazardous
wastes if they are managed in a way that
meets certain conditions. This would
mean that, if this proposal is finalized,
wastewaters and spent wood preserving
solutions that are currently regulated as
solid and hazardous wastes prior to
reclamation, would no longer be
regulated as solid and hazardous wastes
2. Conditions for Exclusion
a. Materials are Recycled and Reused
On-Site in the Production Process for
Their Original Intended Purpose. Under
this proposal, the .exclusion would
apply only to wastewaters and spent
wood preserving solutions that are
recycled and reused on-site in the
production process for their original
intended purpose. As mentioned above,
when EPA initially raised the possibility
of developing an exclusion for in-
process wastewaters recycled on-site at
wood preserving plants (60 FR 43654),
the Agency said that a decision to grant
such an exclusion would be based upon
the degree to which the industry could
demonstrate that the handling of these
materials at wood preserving plants
meet the 40 CFR 260.31 (b) criteria, on
an industry-wide basis. One of these
criteria is "whether the reclaimed
material is used for the purpose for
which it was originally produced when
it is returned to the original process
* * *"(40CFR260.31(b)(6)).By
requiring that these materials be used
for their original intended purpose, it is
our intention that they should be
generally reused to treat wood. For
example, at many wood preserving
plants once water has been used to wash
hazardous wastes off drip pads, it is
collected and returned to a tank in order
to be used to treat wood, with no
releases to the environment Because
such a recycling operation (provided
that it is managed to prevent releases to
the environment) returns the
preservative to the process to treat wood
and adequately addresses the eight
variance criteria, EPA is proposing an
exclusion for appropriately managed
wastewaters and wood preserving
solutions that are reused for their
original intended purpose. EPA has not
evaluated whether any other use of
these materials might merit an exclusion
from the definition of solid waste.
Therefore, for the purposes of today's
proposal "original intended purpose"
does .not include uses other than
treating wood.
b. Materials are Managed to Prevent
Release. The exclusion EPA is
proposing today would only apply to
those materials that are managed to
prevent releases to the land and
groundwater. This-condition is to assure
diat any plant claiming this exclusion is
adequately handling its recyclable
wastewaters and spent wood preserving
solutions to minimize.loss prior to
reclamation. Based on our'experience,
management to prevent releases would
include, but not necessarily be limited
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to, compliance with the standards for
drip pads under Subpart W of 40 CFR
Parts 264 and 265 and maintenance of
the sumps receiving the wastewaters
and spent solutions from the drip pad
and retort to prevent leaching Into the
land and groundwater.
This exclusion would not apply to
wastewaters and spent wood preserving
solutions that are at any time managed
in a surface impoundment. We would
not consider this type of operation to be
adequate management of these materials
to minimize loss prior to reclamation.
c. Units Can Be Visually or Otherwise
Determined to Prevent Releases. In
order for EPA to adequately assure
compliance with the condition to
prevent releases to the land and
groundwater. the Age'ncy proposes to
require that any plant claiming this s
exemption assure that inspectors are
able to visually or otherwise determine
that the plant is preventing such
releases. For example, an inspector
should be able to visually or otherwise
ascertain whether the bottom and sides
of a sump (which is often made of
concrete) are preventing releases to the
land and groundwater. This could be
assured by having a secondary
containment system that could be
observed or by providing a means to
easily empty a sump to allow for
Inspection or through other means.
a. Drip Pads Must Comply with
Subpart W Standards. The exclusion
that EPA Is proposing today would
require any plant claiming the exclusion
and collecting or managing Its wastes on
a drip pad to comply with the regulatory
' drip pad standards referenced above.
EPA has recognized that there is a
potential for certain plants that are
currently large quantity generators to be
newly classified as conditionally
exempt small quantity generators
(CESQG) (see 40 CFR 261.5) solely by
virtue of the exclusion proposed today.
Unless EPA explicitly requires
compliance with the Subpart W drip
pad standards as EPA proposes to do,
were a plant to avail Itself of this new
generator status, it would not be
compelled to comply with these
requirements. The Agency is convinced
that a plant's failure to comply with the
drip pad standards under RCRA would
result In failure to meet the 40 CFR
260.31(b) variance criteria (See, e.g.,
26031(b)(3)). Therefore, the Agency is
proposing that In order to qualify for
this exclusion, a plant would need to
comply with the Subpart W drip pad
standards regardless of whether that
plant generates no more than 100 kg of
hazardous waste per month (which is
the definition of a CESQG under 40 CFR
261.5(a)) once its wastewaters and spent
wood preserving solutions are excluded
from the definition of solid waste under
this provision.
It is not EPA's intent or belief that the
proposed exclusion for recycled wood
preserving wastewaters and spent
solutions in any way reduces the
obligations that wood preserving plants
have under 40 CFR Part 264, Subpart W
and Part 265, Subpart W, including the
requirements for drip pads and the
requirements under § 264.570(c) and
§ 265.440(c) for response to infrequent
and incidental drippage in storage
yards. EPA requests comment from any
party who believes it does reduce these
requirements.
3. Process Residuals
The Agency wishes to emphasize that
today's proposed exclusion from the
definition of solid waste for wood
preserving wastewaters and spent wood
preserving solutions which are recycled
•and reused on-site in the production
process for their original intended
purpose at wood preserving plants
pertains only to these materials. The
proposed exclusion does not apply to
residuals which may be produced from,
i.e., derived from, these wastewaters
and spent wood preserving solutions.
Process residuals derived from these
excluded wastewaters and spent wood
preserving solutions continue to meet.
the hazardous waste listing description
for EPA hazardous waste numbers
FO32, FO34 arid FO35 (See § 261.31(a))
and must be managed as RCRA
hazardous wastes.
4. Notification ' .
Today the Agency is also seeking
comment on whether a plant claiming
the proposed exclusion should be
required to place a notification form to
that effect in its files on-site and/or
required to submit it to either EPA or a
state regulatory authority so that an
inspector is able to review it. The
notification form would identify, among
other things, the specific dates for
which a wood preserving plant was
claiming this exclusion.
5. Conditions Under Which the
Exclusion Would No Longer Apply
Today EPA is also seeking comment
concerning the conditions under which
the proposed exclusion, once claimed,
would no longer apply. For example,
among other things, EPA seeks comment
on whether the spill of a small quantity
of excluded material would void the
exclusion for only the spilled material
or for all of the wastewaters and spent
wood preserving solutions generated by
the plant and, if so, for how long.
VII. Proposal to Amend Treatment
Variance Rules
Summary: EPA is also proposing
today to clarify the regulatory standard
under which variances from treatment
standards adopted to implement the
Land Disposal Restrictions (LDR)
program are decided, see 40 CFR 268.44
(a) and (h), to explicitly reflect EPA's
long-standing and reasonable
interpretation that a treatment variance
can be granted when treatment of the
waste to the level or by the method
specified in the regulations is not
appropriate, whether or not it is •
technically feasible to treat the waste to
that level or by that method. In addition,
EPA is clarifying that, in EPA's view,
the one such variance (involving CITGO
Petroleum) adopted through rulemaking
under the existing regulations using the
"not appropriate" test satisfies the
clarified regulations just as it satisfied
the existing rules. To eliminate any
ambiguity, EPA is considering
recodifying the CITGO variance under
the clarified standard; the Agency
requests comment on this approach.
A. Background
Under RCRA section 3004(m), EPA is
required to promulgate treatment
standards for a hazardous waste which
"specif [y] those levels or methods of
treatment, if any, which substantially
diminish the toxiciry of the waste or
substantially reduce the likelihood of
migration of hazardous constituents
from the waste so that short-term and
long-term threats to human health and
the environment are minimized." RCRA
section 3004 (m)(l). These treatment
standards are typically expressed as
constituent concentration limits;
however, in some cases the treatment
standard is specified as a method of
treatment. LDR treatment standards
typically must be satisfied before a
hazardous waste is land disposed. To
satisfy RCRA Section 3004(m), EPA has
chosen to promulgate treatment
standards based on performance of the
"best demonstrated available
technology" (BOAT), see 51 FR 40, 572,
40, 578 (Nov. 7, 1986); provided such
standards are not established at a point
beyond which threats are minimized.
See Hazardous Waste Treatment
Council v. EPA, 886 F.2d 355, 361-66
(D.C. Cir. 1989) (upholding establishing
technology-based treatment standards as
a reasonable construction of section
3004(m)), cert, denied, 498 U.S. 849
(1990) ("HWTCHI").
When EPA decided to implement
RCRA section 3004 (m) by means of
technology-based treatment standards,
the Agency recognized that there may be
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26059
wastes for which the treatment
standards would be unachievable or for
which the treatment standards would be
inappropriate. 51 FRat 40605-06 (Nov.
7,1986). For such wastes, EPA
established standards and procedures
for granting so-called treatment
variances. 40 CFR 268.44. A treatment
variance establishes an alternative LDR
treatment standard for the waste in
question. 40 CFR 268.44(o). Section
268.44(a) states: "where the treatment
standard is expressed as a concentration
in a waste or waste extract and a waste
cannot be treated fo the specified level,
or where the treatment technology is not
appropriate to the waste, the generator
or treatment/aciliry may petition the
Administrator for a variance from the
treatment standard. The petitioner must
demonstrate that because the physical
or chemical properties of the waste
differs significantly from the wastes
analyzed in developing the treatment
standard, the waste cannot be treated to
specified levels or by the specified
methods."
This same standard applies when a
treatment variance is granted on a site-
specific basis, see 268.44 (h), although
site-specific variances may be processed
without rulemaking. 53 FR at 31199-
200 (August 17,1988).
. EPA has consistently interpreted the
40 CFR 268.44 treatment variance
provision as creating two independent
tests under which treatment variance
applications can be considered: first,
where the waste in question cannot be
treated to the levels or fay the methods
established in the rules; and second
where such treatment may be feasible
but nevertheless "not appropriate". See
61 FR 55718 at 55720-21 (Oct. 28
1996); 53 FR at 31200 (August 17, 1988);
55 FR 8666, 8760 (March 8,1990); 61 FR
18780, 18811 (April 29,1996). The test
based on unachievability requires a
demonstration that the waste's physical
or chemical properties differ from those
used to establish the treatment standard
and must include a demonstration that
the waste "cannot be treated to specified
levels or by specified methods" (see
second sentence of 268. 44 (a) and (h)).
The "not appropriate" test is not
elaborated upon in the rule. In the
Agency's experience, treatment
variances approved under the "not
appropriate" test are often based on the
totality of site-and waste-specific
circumstances at any given site. EPA has
most often approved treatment
variances using the "not appropriate"
test in situations where imposition of
BDAT treatment, while technically
feasible, nevertheless is unsuitable or
impractical from a technical standpoint,
for example when the treatment
standard would result in combustion of
large amounts of soil or wastewater,
given that EPA's policy is that
combustion of large amounts of
contaminated media is generally
inappropriate. See 55 FR at 8760, 8761.
EPA has also approved treatment
variances using the "not appropriate"
test in situations where imposition of
BDAT treatment would lead to
environmentally counterproductive
results, notably by creating
disincentives to engage in remediation,
see 61 FR at 55720-22; 54 FR 15566,
15568 (October 10,1989); 55 FRat
8760-62; 61 FR at 18812; and EPA
believes its long-standing interpretation
that 40 CFR 268.44 provides two
separate, independent tests under which
treatment variance applications can be
evaluated to be a reasonable reading of
the regulatory language. In particular,
the clause in the first sentence of 268.
44 (a) that waste "cannot be treated to
the specified level" is mirrored in the
second sentence of the rule, where a
demonstration must be made that
"waste cannot be treated to specified
levels or by specified methods"
(emphasis added). The second sentence
of the rule—referring to a demonstration
that the waste differs chemically or
physically—thus relates to the first
treatment variance test- technical
infeasibility. It does not (or need not be
read to) apply to. situations where
treatment is "not appropriate", since
this test on its face deals with situations
where wastes can be treated to a
specified level or by a specified method,
but it is inappropriate to do so.
However, commenters on previous EPA
actions have pointed out that the -
language of die rule is ambiguous, in
that it might be read to require a
demonstration that a waste is physically
or chemically different along with a
showing that die waste cannot be
treated to a specified level or by a
particular method whenever a treatment
variance is sought, even if such
treatment would be inappropriate; this
was not EPA's intent.1' Given the
importance of treatment variances to the
various EPA remediation programs, see
55 FR at 8760-61 and National
Electrical Manufacturers Association v •
EPA, 99F.3d 1170, 1171 (D.C.Cir.
1996), EPA presently believes it better to
•'' The Environmental Technology Council and
the Louisiana Environmental Action Network
(LEAN) have petitioned for review of a particular
treatability variance and are arguing that the
provision can only be read in this manner. LEAN
v. EPA, no. 97- (D.C. Cir.). EPA disagrees and
believes its present long-standing interpretation to
be a reasonable construction of the rule's language,
and to be amply supported on policy grounds. 61
FRat 55721.
re-draft 40 CFR 268.44 to explicitly
conform with the Agency's long-
standing and reasonable interpretation
of the regulatory standards for treatment
variances and to remove possible
confusion. This proposed clarification is
included in today's notice. EPA is
further clarifying that the one national
treatment variance finalized thus far
using the "not appropriate" test would
also satisfy the clarified regulations
being proposed today. This is the
treatment variance recently granted to
CITGO Petroleum Co. 61 FR 55718 (Oct
28,1996). In EPA's view, the revision of
the treatment variance regulations it is
proposing today simply clarifies, and in
no way changes, the current standards
for evaluating treatment variances;
therefore, by definition the variance
already issued to CITGO under the
current regulations and standard would
satisfy the clarified regulations.
However, to remove any ambiguity on
the status of CITGO's treatment
variance, and the standard it must meet,
EPA is considering whether it would be
better to re-codify the variance under.
the clarified regulations (should die
Agency finalize that part of today's
proposal).
B. Clarified Regulatory Language
EPA is proposing to revise 40 CFR
268.44 (a) and (h) to clarify that there
are two separate and independent tests
for approving treatment variances. The
amended rule (if finalized) would thus
explicitly conform with EPA's long-
standing and reasonable interpretation
that treatment variances may be granted
for either of two independent reasons: 1)
where, due to physical.or chemical
differences in the waste matrix, the
waste cannot be treated to the level used
as the basis forthe treatment standard
(or, in those few instances where the
treatment standard is a method of
treatment, where the method physically
cannot be performed); and 2) where it is
inappropriate to require treatment to the
level or by the metiiod set out in .the
regulations although such treatment is
technically possible.
In EPA's experience, approval of
treatment variances based on the
"inappropriate" test depends largely on
site-and waste-specific circumstances.
Therefore, the Agency is not proposing
detailed regulatory criteria for
approving variances based on the
"inappropriate" standard. Based on our
implementation of the program to date,
some examples .of where variances
based on the "inappropriate" test might
be approved are where the treatment
standard is unsuitable from a technical
standpoint, as when it would result in
combustion of large amounts of soil or
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Federal Register / Vol. 62, No. 91 / Monday. May 12, 1997 / Proposed Rules
other media that contain hazardous
waste or where Imposition of the
treatment standard can reasonably be
found to increase risks for example, by
discouraging optimized remediation of
land disposal units. A specific example
of this second situation would be at a
remediation site where the cost of LDR
treatment would lead a reasonable.
remediator to choose the legally
permissible option of managing wastes
within an "area of contamination"
(which would not trigger LDRs and
would likely Involve little or no waste
treatment) over a more protective option
of removing the wastes for treatment
and disposal (which would trigger
LDRs) (see 55 FR at 8760). Situations
where Imposition of the BDAT
treatment standard (or specified
treatment method) could expose site
workers to immediate dangers, such as
from explosion or fire and situations
where an innovative technology that,
while not BDAT, results In significant
treatment and shows significant promise
could be other examples of cases where
the BDAT standard (or specified
treatmentmethod) might be
Inappropriate. EPA specifically solicits
comment as to whether these
circumstances (or other circumstances).
are reasonable formulations of
circumstances where treatment
variances based on the "inappropriate"
test might be considered and on
whether EPA should, In future
rulemakings, further define regulatory
criteria for variances approved based on
the "Inappropriate" test
In all cases, treatment variances must
result In an alternative treatment
standard which would have to be
satisfied before the waste could be land
disposed. These alternative treatment
standards must comply with the
statutory standard of RCRA Section
3004(m) by minimizing threats to
human health and the environment.
Some commenters on previous EPA
actions have questioned EPA's legal
authority to vary from treatment
standards based on BDAT absent a
finding that the BDAT standard is
outright unachievable because of
physical or chemical differences in the
waste. EPA disagrees for the following
reasons.
First, the "minimize threat" standard
in RCRA Section 3004 (m) allows EPA '
latitude in determining what levels or
methods of treatment minimizes short-
and long-term threats to human health
and the environment Not only is the
statute ambiguous on the degree to
which threats must be minimized (see
HWTCin. 886 F.2d at 372 (concurring
opinion)), but the legislative history to
section 3004 (m) states explicitly that
the treatment standards are hot to be
technology-forcing. See 131 Cong. Rec.
S 9178 (daily ed., July 25,1984)
(statement of Sen. Chaffee); see also 56
FR at 12355 (March 25,1991); 55 FR
6640-43 (Feb. 26,1990); Chemical
Waste Management v. EPA, 976 F.2d 2,
15-16 (treatment standard need not be
based on BDAT, in this case, treatment
standards for ignitable, corrosive, or
reactive wastes) (D.C. Cir. 1992).
Second, EPA does not believe that
RCRA Section 3004(m) requires, or
Congress intended, that EPA impose
technically inappropriate technologies
even when they arguably could lead to
lower treatment levels. For example,
EPA has generally based the national
LDR treatment standards for organic
contaminants in wastewaters on
technologies other than incineration (or
other combustion), even though such
organics could be treated to lower levels
if the wastewaters were incinerated.
This is because incineration (or other
combustion) is not normally an
appropriate technology for wastewaters,
notwithstanding its capability of
achieving lower constituent
concentration levels than conventional
wastewater treatment See 55 FR 8761.
Similarly, EPA has long believed that
combustion of large volumes of
contaminated soil, such as much of the
soil routinely encountered during
CERCLA remedial actions or RCRA
corrective actions, is inappropriate and
would yield little, if any, environmental
benefit over non-combustion treatment
options. In other situations, EPA has
found that imposition of the BDAT
standard, while technically possible,
provides a strong incentive for facility
owner/operators to choose legal
remedial alternatives that.minimize
applicability of the RCRA land disposal
restrictions (e.g., consolidating and
capping waste within an area of
contamination), a result obviously not
contemplated by Congress in enacting.
the land disposal restriction. EPA
believes that in the limited situations
where an existing treatment standard is
reasonably found to be inappropriate
because imposition of die BDAT
standard is technically inappropriate or
would increase risks, including risks
posed by continued land disposal, the
facts would also indicate that the
alternative standard set out in the
treatment variance legitimately
minimizes threats posed by land
disposal, taking into account both the
land disposal that has already occurred
and that which will occur. In this
regard, EPA notes that the Agency
believes it can be argued that where
imposition of the BDAT standard results
in treatment technically inappropriate
to die matrix at hand or in foregoing
odier, substantial environmental
benefits, that standard is not "best." See
61 FR at 55724 and at 55721 (citing case
audiority).
Finally, some commenters on
previous EPA actions have expressed
serious concern that considering
treatment variances in situations where
application of die nationally applicable
LDR standard might cause a'net
environmental detriment could subject
EPA to a form of "environmental
blackmail," where the Agency might be
pressured to adjust an appropriate
treatment standard in order to allow less
treatment as part of site remediation
and, therefore, this approach should be
precluded. While EPA agrees diat the
net environmental detriment approach
should be carefully applied in
consideration of site-and waste-specific
circumstances, EPA does not agree with
commenters who suggested it be
precluded. In implementing its various
remedial programs, EPA has found tiiat
there simply are situations where
federal law provides a legal alternative
to leave wastes in place, and direct
application of the existing treatment
standards-may create an incentive to
utilize diat legal alternative. Id.; 54 FR
at 41566-569. It is at least worth
examining through the treatment
variance process whether there is an
alternative diat serves die dual statutory
objectives of safe remediation and
pretreatment before land disposal.
C. The CITGO Variance Under the
Proposed Standard
It is EPA's view that the treatability
variance granted to CITGO Petroleum,
55 FR 55718 (Oct. 28, 1996), remains
valid under the clarified treatment
variance standard proposed in this
notice. CITGO operates a large (26 acre)
surface impoundment which must be
closed. The impoundment contains
approximately 375,000 tons of
wastewater treatment sludge listed as
hazardous wastes F037 and F038. The
State of Louisiana, EPA's Region 6, and
the company all believe the best way to
close the unit is to remove die sludge,
treat it through air sparging to remove
and destroy the most hazardous
constituent (benzene) to levels
achievable by BDAT, treat cyanide and
metals to levels achievable by BDAT,
and treat semi-volatile hazardous
constituents significantly, although not
to levels meeting die BDAT standard.
(While die alternative treatment
standards established in the treatment
variance for semi-volatiles are, for some
constituents, significantly higher than
die treatment standard based on BDAT,
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26061
the semi-volatile constituents are treated
and, in any case, are not the
constituents in the CITGO waste that
drive its risk to human health or the
environment.) Treatment residues are
then disposed in a commercial subtitle
C landfill. CITGO successfully removed
and treated approximately 600,000 tons
of sludge by this method before the LDR
prohibition for F 037/038 wastes took
effect. Treatment of the remaining
sludge to meet standards reflecting
performance of BDAT (in this case,
almost certainly some type of
combustion process) is likely to be cost-
prohibitive and, at the least, creates an
incentive for the company to seek to
avoid triggering LDR requirements even
if it means forgoing optimal closure of
the impoundment. The federal rules do
provide closure options by means other
than waste removal. The closure rules
provide that art impoundment can close
with wastes in place provided it can
satisfy the standards for post-closure
care of a landfill. 40 CFR 265.111,
265.228 and 265.310. EPA found that
CITGb would likely pursue these
options, delaying if not precluding
closure by removal, and possibly
resulting in no treatment of the
hazardous sludges at all. For these
reasons, EPA found that the treatment
technology on which the standard is
based is not appropriate for this waste
because imposition of the requirement
would likely result in a net
environmental detriment 55 FR at
55719-722. The alternative treatment
standard requires the same level of
treatment which had proved successful
on the 600,000 tons of sludge before the
LDR prohibition took effect
In EPA's view, these facts satisfy the
"not appropriate" test in the clarified
treatment variance regulations proposed
today, just as they satisfy the existing
rules. EPA has already found that the
situation presented in CITGO's
treatment variance application meets
the standards of 40 CFR 268.44 (a) and
(h) as the Agency interprets and
implements them. By definition, if EPA
amends 40 CFR 268.44 (a) and (h) to
explicitly conform to the Agency's
longstanding and reasonable
interpretation of the treatment variance
regulations, then the one national
variance (CITGO) approved under the
current regulations would meet the
terms of the new, clarified, regulations.
EPA, however, recognizes that the same
ambiguity that commenters have
identified in the current 268.44 (a) and
(h) regulations underlies EPA's approval
of the CITGO treatment variance. EPA
therefore requests comment on whether
the Agency should eliminate any
ambiguity over the CITGO treatment
variance by re-codifying the variance
under the clarified regulations
(assuming EPA finalizes this portion of
today's proposal).
VIII. Ban on Use of Prohibited
Hazardous Waste as Fill Material
SUMMARY: EPA is today
supplementing its March 2, 1995
proposal (60 FR at 11732) to ban the
placement of prohibited hazardous
wastes (that is, wastes prohibited from
land disposal unless they meet land
disposal restrictions treatment
standards, including wastes that
initially exhibited a characteristic of
hazardous waste but no longer do at the
point they are placed as fill material) as
a fill material. This proposal would ban
use as fill unless the waste meets the
LDR treatment standard applicable to it
and either of two conditions are
satisfied: (a) The placement occurs
exclusively in a regulated unit (i.e. a
unit, like a landfill, which is subject to
subtitle C regulation); or, (b) the person
intending to utilize the hazardous waste
as fill material is able to make a
demonstration to the appropriate
.regulatory officials that the placement of
the waste will be protective of human
health and the environment (within the
meaning of RCRA section 3004 (d) (1)),
taking into account the factors
enumerated in RCRA section
3004(d)(l)(A), (B), and (C), as well as all
possible exposure pathways, i.e.,
exposure pathways that may reasonably
occur at the specific site. As EPA
explains more fully in today's
supplemental notice, this demonstration
must be made "to a reasonable degree of
certainty," as set out in RCRA section
3004(d)(l). By "fill material," EPA
means prohibited waste used in place of
such materials as sand or dirt which
fills in significant levels of depression
in the land, such as gullies or ditches.
Revised regulatory language is provided
to help clarify the scope of the proposal,
and the process for demonstrating that
the use is safe.
A. General Discussion
The basis for this proposal is
essentially the same as EPA originally
proposed. Utilization of prohibited
hazardous wastes as fill material.is, in
the abstract, the least protective type of
land disposal in that there are no
commercial specifications or necessary
physical constraints on the placement of
the waste. There thus are no safeguards
to prevent exposure to humans or to the
environment from the hazardous
constituents that are released, and no
barriers stopping the releases from
occurring. The types of potential
exposure pathways include direct
exposure via inhalation, ingestion
(particularly by small children), dermal
contact, surface runoff, and leaching to
groundwater. Human exposure can also
occur via indirect exposure pathways,
such as ingestion'of fish, animals, fruits
or vegetables which have been
contaminated by hazardous constituents
released from the fill area. The number.
of environmental exposure pathways are
just as numerous.
This potential for harm is confirmed
by many damage incidents caused by
utilization of wastes as fill material. The
damage incidents include sites now on
the Superfund National Priorities List
and an incident of direct human
exposure (resulting in elevated blood
lead levels in children) when prohibited
hazardous wastes were used as fill
material in a residential area. See
summaries in the administrative record.
If one assumes that utilization of
wastes as fill material is a type of
hazardous waste recycling activity,12
the current RCRA rules would classify
it as a type of "use constituting
disposal." 40 CFR 261.2(c)(l). The rules
then provide that a use constituting
disposal can legally occur if the
hazardous wastes are incorporated into
a product, undergo a chemical reaction .
so as to be inseparable by physical
means, and meet all treatment standards
established under the Land Disposal •
Restrictions (LDR) program applicable
to the hazardous waste incorporated
into the waste-derived product 40 CFR
266.20(b). In adopting these standards,
EPA was not certain that any of these
uses could be conducted in a protective
manner. 50 FR at 646, 647 (Jan. 4,1985);
53 FR at 17605 (May 17,1988).
However, the Agency was unwilling to
prohibit all such uses—the likely effect
of imposing full-scale subtitle C
12See 45 FR at 33093 (May 19,1980): 48 FR at
14985 (April 4,1983); and 60 FRat 14732 (March
2,1995) where EPA noted that in most cases that
this activity is a shanVuse. This is due to the
marginal nature of the claimed recycling activity
(replacing dirt to fill depressions), resemblance of
the activity to uncontrolled waste dumping, and
likelihood that hazardous constituents in the wastes
are just being gotten rid of. Thus, the threshold step
• in determining whether disposition of hazardous
waste as fill material is legal is to determine if this
is a "use" at all, orsimpty is sham recycling, i.e..
land disposal pure and simple. See United States
v. Marine Shale Processors, 81 F.3d 1361.1355 (5th
Cir. 1996) ("sham recycling, as opposed to
legitimate recycling, occurs when the hazardous
waste purportedly recycled contributes in no
significant way to the production of the product
allegedly resulting from the recycling") Id., at 1366
(endorsing so-called toxics along for the ride
concept, whereby it is relevant in assessing whether
an activity is sham recycling to determine what
hazardous constituents contribute to the alleged
recycling activity and conceivably to find that an
activity is a sham if the hazardous constituents do
not contribute significantly).
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Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules
controls—and also felt that imposition
of the LDR treatment standard
requirement afforded some level of
protection. 53 FR at 17605.
Because utilization of hazardous
wastes as fill material is lacking in any
control, EPA has concluded that this'
current conditioned deferral of ,
regulation should not apply to the
activity- This conclusion is directly
founded in the language and policy of
the LDR statutory provisions. Land
disposal of hazardous wastes is
prohibited unless the prohibition on
disposal "Is not required in order to
protect human health and the
environment" taking into account the
uncertainties associated with assessing
safety of land disposal^ including the
difficulty of making long-term
predictions of wastes' behavior, and the
persistence, toxiclty. mobility, and
bioaccumulative propensity of wastes*
hazardous constituents. RCRA section
3004(d)(l) (repeated in 3004 (e)(l) and
(g)(5) as well). Ordinarily, land disposal
occurring after hazardous wastes have
been treated to satisfy the standards
established by EPA pursuant to section
3004 (m) (which standards are to assure
that short- and long-term threats to
human health and the environment
posed by land disposal of the waste "are
minimized") will sufficiently ensure the
requisite protectiveness. RCRA section
3004(m) (1). However, the ultimate
requirement of protectiveness remains
even after hazardous wastes have been
treated. 60 FR at 14473; 56 FR at 41168
(August 19.1991); NRDCv. EPA, 907
F.2d 1146.1171-72 (D.C. Cir. 1990)
(dissenting opinion).
EPA is indicating here that the
existing IDR treatment standards do not
result in this requisite minimization of
threats when hazardous wastes are to be
utilized as fill material. Thus, there is
no treatment of which EPA is aware that
can be determined, in the absence of
site-specific investigation, to adequately
minimize the threats posed by this form
ofland disposal. See RCRA section
3004(m)(l) which requires EPA to
establish "levels or methods of
treatment, If any. which minimize short-
and long-term threats* (emphasis
added). Accordingly, EPA has proposed
to modify the BOAT treatment standards
for all hazardous wastes to make clear
that wastes treated to meet these
standards may still not be utilized as fill
material absent a site-specific
demonstration as described in 40 CFR
266.20(b)(2). Similarly. EPA is finding
that the ultimate protectiveness
standard in RCRA sections 3004 (d) (1),
(e)(l) and (g)(5) remains unsatisfied,
even after hazardous wastes are treated
to meet existing LDR standards, if the
wastes' ultimate disposition is as fill
material (again, unless the site-specific
demonstration described above is
made).
B. Deferral of Ban Pending Study
Some commenters on the original
proposal have contended that EPA
should defer action on the proposed ban
on hazardous waste as fill until risks
could be studied further. The Agency
disagrees that further studies are needed
in order to go forward with the
proposed action. While the commenter
is correct that nonhazardous slags have
been used for many years as fill, the
Agency has the responsibility to ensure
that residues from hazardous waste
treatment are appropriately regulated,
and this requires a minimization of
threats to human health and the
environment prior to land placement as
fill, and ultimate protectiveness of the
actual disposal.
As EPA explained at proposal, the
treatment standards do not assure the
requisite minimization of threat or
ultimate safety for a number of reasons.
60 FR at 14473. In particular, the
standards do not regulate the total metal
content of a waste, typically requiring
only reduction in metal constituents'
mobility, as measured by the TCLP.
However, when evaluating use as fill
material, the total concentration of
metals is highly important due to the
number of exposure pathways
(including direct inhalation and •
ingestidn) which do not depend on
leaching to release hazardous
constituents. Id. In addition, the TCLP
(or any single leaching test) may not be
the appropriate means of evaluating
potential for leaching given the wide
range of potential conditions to which
hazardous waste utilized as fill could be
exposed; See 62 FR at 1994-95 (January
14,1997). Li addition, since the existing
LDR standards are technology-based
rather than risk-based, EPA does not
believe that" they are an adequate
surrogate for determining that threats
have been minimized when one takes
into account the uncontrolled use as fill.
60 FR at 14473.
EPA is planning to further identify
and assess risks from major current uses
of High Temperature Metal Recovery
(HTMR) slags from treatment of K061,
K062, and F006 wastes. However, EPA
is concerned that use of any hazardous
waste, including HTMR slag, as a fill
material represents a marginal use for
which regulatory authorities would lose
the ability to understand where it is
placed or how much is used, making
generic risk analysis extremely difficult
Fill material might be used in any
setting, without any controls. While
road construction projects at least
include supervision of activities with
regard to, for example wetlands and
waterways, fill could be placed directly
in sensitive areas without any type of
regulatory agency approval. Further, fill
may be placed in virtually unlimited
amounts, while use in road construction
(whether road bed or top coating) often
is limited by the extent of road being
built, as well as supervision by highway
agencies. As such, exposures and risks
posed by use as fill are extremely
dependent on site specific
circumstances, and we do not think at
this time that the Agency will be able to
set national levels of toxic constituents
that would be safe in all fill settings.
C. Site Specific Approval Process
This is not to say, however, that it is
impossible to utilize a treated hazardous
waste as a fill material. EPA's current
thinking is that the current treatment
standards are inadequate, and that EPA
is unable to develop other standards
that would be sufficient to assure
protection, absent further site-specific
investigation. EPA noted in the March 2,
1995 proposal that if someone could
show that a specific use as fill was safe,
it would be allowed. EPA is proposing
revised, more detailed regulatory
language to require, in addition to
requiring these wastes (like all other
prohibited wastes) to meet LDR
standards before disposal, that a; site-
specific demonstration (for each
intended fill site) be made showing that
the treatment has minimized all
potential threats posed by the placement
of the waste fill material, and assured
ultimate safety of the disposal. This
demonstration would.be made either to
the EPA Region where the fill site is
located, or, in the case of States
authorized to- operate this part of the
program, to the authorized State. The
demonstration would have to address
all potential exposure pathways posed
by the particular fill site, would
specifically have to address the land
disposal protectiveness factors set out in
the statute at section 3004(d)(l) (A), (B),
and (C), plus address all exposure
pathways to humans or to the
environment that are reasonably likely
to occur, and would have to
demonstrate safety "to a reasonable
degree of certainty." The burden of
making the demonstration is on the
applicant. S,ee RCRA section 3004 (d)(l)
likewise assigning the burden of proof
to the applicant in the case of no-
migration petitions.13 Comments are
"There are similarities in this type of
demonstration and the no-migration test required to
show that it is safe to dispose of hazardous wastes
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26063
requested on the revised regulatory
language.
D. Application of the Ban To
Decharacterized Wastes
Further, EPA wishes to make clear
•that the proposed rule would apply to
all hazardous wastes subject to Land
Disposal Restriction prohibitions. This
includes all wastes that are identified or
listed as hazardous at the point they are
generated, and thus includes wastes that
are listed as a result of the mixture and
derived from rules. In addition, the rule
applies to wastes that initially exhibit a
characteristic but no longer exhibit that
characteristic at the point they are land
disposed (i.e., used as fill material). This
means that if a person intends to utilize
a characteristic hazardous waste as fill
material, and treats the waste so that it
no longer exhibits a characteristic, the
rule nevertheless applies. See Chemical
Waste Management v. EPA, 976 F. 2d 2,
12-14 (land disposal prohibitions apply
to wastes that are hazardous when
generated; thus, the prohibition—i.e.,.
the substantive LDR requirements—
continues to attach to characteristic
wastes that no longer exhibit a
characteristic when they are land
disposed). These so-called
decharacterized wastes could
nevertheless continue to pose the same
types of substantial harm when utilized
as fill material as wastes still identified
or listed as hazardous at the point of
disposal. This is because
decharacterization does riot necessarily
remove or immobilize hazardous
constituents. Id.. 55 FR 22655.
Consequently the proposed prohibition
would apply to all. initially hazardous
wastes.
E. Clarification of Scope of Ban
(definition of "nil")
Commenters indicated some
confusion over the definition of "fill."
EPA has slightly altered the definition
of "fill material" from that proposed in
the March 2, 1995 notice. That
definition stated essentially that fill
material was used as a substitute for
low-grade materials to raise land levels,
fill in depressions, and so forth. Today's
supplemental language preserves the
key concept that fill material raises land
levels, fills in significant depressions
(such as gullies or ditches) but removes
any suggestion that there is an intent
that are not treated to satisfy the treatment
standards that EPA establishes. However, because
the wastes have been treated, the demonstration
need not satisfy the no-migration test. Rather,
ultimate safely would have to be demonstrated,
taking into account the specific factors Congress
noted as essential to ultimate land disposal safer/
determinations and considering all exposure
pathways that are reasonably likely to occur.
test associated with the definition. EPA
wishes to avoid situations where
hazardous waste fills in'areas but some
other use is claimed for the material that
arguably makes it a different type of
activity. As stated at original proposal,
the Agency is acting to stop prohibited
hazardous wastes from being used in an
uncontrolled manner, in substantial
volumes to fill in space (at least without
a detailed demonstration and finding
that the use is protective). The reference
in the definition to filling in significant
spaces makes clear that uses which have
the incidental effect of filling or
leveling, such as use as road-base, or use
a fertilizer or other uses that are subject
to commercial specifications or physical
" constraints but incidentally fill in space
in addition to other functions, are not
included within the definition of "fill
material." Also, the prohibition does not
apply to materials used as legitimate
ingredients in asphalt or concrete.
Some significant concerns were raised
by producers of K061-slag over the
scope of the proposed ban, in particular
as it would apply to road building
operations. EPA wishes to clarify that
(as noted above), use as road bed, and
use as road "top coat" are not intended
to be banned under the proposed fill
provisions. While there may be some
ambiguity in these terms, EPA intends
to allow further study use of legitimate
road construction materials, meeting
any specification set by the highway
department in the State in which the
material is used. While some filling of
depressions may of course occur in road
construction, EPA would not consider
this use as fill, unless the depressions
were well beyond what is necessary for
road construction. EPA has provided
some new regulatory language to clarify
the scope of the proposal and welcomes
further comment to help refine the
definition.
In addition, EPA is proposing to add
the prohibition to 40 CFR 268.40, as
well as to the use constituting disposal
provision in 40 CFR 266.20. This would
make clear that this action both
implements the LDR provisions and
modifies the existing treatment
standards to the extent prohibited
wastes are used as fill material.
F. Other Clarifications
A commenter maintained that the
proposed ban should not apply to
vitrified material, arguing that by
definition vitrified materials do not pose
a threat to human health and the
environment. This cannot be presumed
a priori, however. Vitrification
technology, for example, does not
reduce total metal concentrations in
treatment residue in which metals could
be available to the environment via
many of the exposure pathways present
when the wastes are placed on the land
without control, i.e. utilized as fill
material. See the discussion above
indicating why total metal
concentrations remain critical in
evaluating the protectiveness of this
type of land disposal. Likewise, vitrified
wastes may contain undestroyed
organics, or insufficiently immobilized
metals which likewise are capable of
posing harm when placed on the land
in this uncontrolled manner. For these
reasons, at this time EPA does not
believe vitrified material should be
exempt from the ban.
Finally, a number of commenters
questioned whether the prohibition
would apply to situations where
prohibited wastes are landfilled, or
whether it would apply to remediation
activities, including those.carried put
pursuant to RCRA corrective action or
Superfund authorities. EPA wishes to
clarify that the prohibition would only
apply to situations where recycling is
involved, "use as fill" being a term of
art referring to a situation where
prohibited wastes are being legitimately
recycled in a manner constituting
disposal through use as a fill material.
United States v. Marine Shale
Processors, 81 F.3d at 1365. (As noted
above, see fn. 4 supra, EPA is skeptical
that this claimed use is legitimate
recycling.) Thus, the rule would not
apply to situations where prohibited
wastes are land disposed and an
incidental effect of the disposal is to fill
in depressions (as in remediation
situations where treated soils are
returned to the ground and raise a
gradient). The policy basis for the
distinction is that disposal of prohibited
wastes is typically heavily regulated (for
example, through subtitle C unit
standards, or, in remediation situations,
through site specific regulatory
oversight; see 61 FR 18782 (April 29,
1996)). In these situations, the existing
LDR treatment standards should be
sufficient to assure that the threats
posed by land disposal of wastes are
being minimized. Thus, the only
situation covered by the prohibition
would be the uncontrolled placement of
prohibited hazardous wastes (including
treatment residues from these wastes)
outside the system of safeguards which
normally would ensure that threats to
human health and the environment are
minimized. This situation is where the
prohibited wastes are being recycled
legitimately as fill material—assuming it
is possible to make this showing—
pursuant to 40 CFR 266.20(b).
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Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules
IX. Capacity Determination
A. TCMetal Wastes
EPA Is not proposing to revise any
capacity variance decision forTC metal
wastes. However, after considering new
Information and comments In response
to the originally proposed rule (August
22.1995; 60 FR 43654) and Notice of
Data Availability (May ,10,1996; 61 FR
21418), EPA has performed an updated
capacity analysis to better reflect the
current available and required capacity
for the universe of wastes that would
now be subject to the standards. For
background information on data
sources, methodology, and details of the
capacity analysis for these wastes
covered in this rule, see "Background
Document for Capacity Analysis for
Land Disposal Restrictions—Phase IV
(Second Supplemental): Toxlclty
Characteristic Metal Wastes and Newly
Identified Mineral Processing Wastes
(Proposed Rule)." Based on the results
of the capacity analysis, EPA proposes
to not grant a, national capacity variance
for the TC metal wastes, Including soil
and debris, covered by today's proposed
rule.
B. Mineral Processing Wastes
As discussed in Section IV, Proposal
of New Options for Mineral Processing,
EPA is considering several regulatory
options for the newly identified
recycled mineral processing wastes.
Two of these options are expected to
significantly increase the estimate of
required capacity discussed in the
proposed rule. One option, which
would require storage of materials to be
recycled in the equivalent of RCRA
regulated tanks, containers, or buildings
prior to recycling, is expected to result
In a moderate increase in required
capacity. The other option, which
would prohibit the introduction of any
secondary material into any mining or
mineral processing unit that generates a
Bevlll-exempt waste, is expected to
result in a larger increase in required
capacity. Nevertheless, the Agency
expects that any such increases can be
readily met by available on-site or off-
site capacity, and therefore is not
changing the proposed national capacity
variance determination for most of these
wastes.
Three waste streams that now appear
to be lacking adequate capacity are
Medusa scrubber blowdown, Anderson
filter media rinsate, and furnace
building washdown as generated by the
elemental phosphorus processing
Industry. A major generator of these
waste streams, the FMC Corporation's
Pocatello, Idaho facility, has stated that
these waste streams pose unique
treatability problems and that a two-year
national capacity variance is needed to
develop and construct treatment
capacity (Phase IV Notice of Data
Availability, 61 FR 21418, May 10,
1996). On August 21,1996, FMC
submitted additional data to the docket
for the supplemental proposed rule (61
FR 2338, January 25,1996, RCRA
Docket F-95-PH4A-FFFFF). After
careful review of the additional data, the
Agency has initially determined that
these wastes would require a national
capacity variance, and therefore is
proposing to grant a two-year national •
capacity variance for these three waste
streams.
Regarding characteristically
hazardous arsenic nonwastewaters and
High Mercury Subcategory
nonwastewaters (i.e., 260 mg/kg and
above total mercury), EPA had proposed
to grant a one-year national capacity
variance. However, treatment data
submitted by commenters and data
collected by the Agency from site visits
to commercial waste treatment facilities
indicate that the newly identified
mineral processing wastes do not
contain arsenic and mercury at levels
that could not be treated to UTS. Thus,
the Agency is no longer proposing to
grant a capacity variance for these
wastes.
Details of the methodology and
estimates of affected facilities and waste
quantities are provided in the capacity
analysis-background document
C. Phase IV Mineral Processing and TC
Metal Wastes Injected Into Underground
Injection Control (UIC) Class I Wells
Class I injection wells currently inject
approximately 10 to 11 million tons of
newly identified .mineral processing and
TC metals waste (D004-D011). These
waste volumes vary in amounts from
facility to facility and are generally
disposed on-site. None of the mineral
processing facilities transport their
waste off-site or currently have the
necessary capacity to treat their waste
on-site by BOAT. Some facilities
generating TC metal waste that are
unable to dispose or treat their waste
on-site may send their waste to a
commercial facility. However, these
commercial facilities must be approved
for the disposal of these restricted
waste! For those facilities affected by the
prohibitions which are unable to make
a successful no-migration
demonstration, constructing a treatment
facility on-site would be the only •
permissible alternative in meeting LDR
treatment standards for their hazardous
wastes. The Agency remains steadfast in
its belief that for those facilities affected
by the Land Band prohibitions which
are unable to make a successful no-
migration demonstration, constructing a
treatment facility on-site would require
a substantial amount of economic
resources and effort. The EPA believes
that, at this time, a reasonable amount
of time should be given to construct
necessary treatment facilities. Therefore,
the Agency is granting a two-year
capacity variance for these wastes. The
Agency requested comments on
capacity determinations, generation,
characteristics, and management of
these wastes at Class I injection well
facilities in the proposed supplemental
rule on January 25, 1996. However, no
specific applicable comments on
potentially affected Class I facilities
were received for the mineral processing
or for TC wastes in the August 22, 1995
proposed rule. The Agency is again
requesting this information and
additionally asks that it include mixed- .
radioactive waste. This information may
assist the Agency in determining
whether the Land Disposal Program
Flexibility Act of 1996 may further
minimize the impact of this rulemaking
on Class I injection well facilities
disposing decharacterized waste that is
presently being treated as Phase IV
hazardous. The Agency .estimates that
the 10 to .11 million tons of this
currently injected waste may be reduced
by'as much as 4 to 5 million tons
.annually at Class I nonhazardous
facilities. -
X. State Authority
A. Applicability of Rules in Authorized
States
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 sections 3008, 3013,
and 7003 of RCRA, although authorized
States have primary enforcement
responsibility. The standards and
requirements for authorization are
found in 40 CFRPart 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.
_
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Federal Register /Vol. 62, No. 91 / Monday, May 12, 19977 Proposed Rules
26065
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 to do
so.
. Parts of today's rule are proposed
pursuant to sections 3004(d) through
(k), and 3004(m) (42 U.S.C. 6924(d)
through (k), and 6924(m)) of RCRA, a
section added by HSWA. These parts
are those provisions regarding the
treatment standards for metal bearing
wastes and mineral processing wastes.
Therefore, the Agency is proposing to
add the requirement to Table 1 in 40
CFR 271.10), which identifies the
Federal program requirements that are
promulgated pursuant to HSWA and
that take effect in all states regardless of
their authorization status. States may
apply for interim or final authorization
for the HSWA provisions in Table 1, as
discussed in the following cection of -
this preamble. The Agency is also
proposing to modify Table 2 in 40 CFR
271.10) to indicate that the treatment
standards are self-implementing
provisions of HSWA.
Other parts of today's proposed rule
would not be effective in authorized
States since the requirements, would not
be imposed pursuant to HSWA. These
parts relate to the definition of solid
waste and include storage of mineral
processing secondary materials, the type
of feedstocks used in Bevill-exempt
mining units, and the exclusion of
certain wood preserving wastewaters
and spent wood preserving solutions.
Thus, these requirements will be
applicable only in those States that do
not have final authorization. In
authorized States, the requirements will
not be applicable until the State revises
its program to adopt equivalent
requirements under State law.
B. Abbreviated Authorization
Procedures
In the Phase IV proposal dated August
22,1995, EPA proposed a set of
streamlined authorization procedures
that would apply to new rules that were
minor or routine in nature. This
procedure was designed to expedite the
authorization process by reducing the
scope of a State's sebmittal for
authorization, to a State certification
and copies of applicable regulations and
statutes. EPA would then conduct a
short review of the State's request,
primarily consisting of a completeness
check (see 60 FR 43686 for a full
description of the proposed procedures).
In the HWIR-Media proposed rule,
EPA proposed another set of abbreviated
authorization procedures for more
significant rulemakings, called Category
2 (see 61 FR 18780, April 29,1396). In
this latter proposal, EPA designated the
procedures outlined in the August 1995
Phase IV proposal as Category 1. EPA in
this notice.'also presented an expanded
discussion on the need for and the
intent of the streamlined procedures.
Today, EPA is requesting comment
regarding under which Category should
the authorization of States for the
proposed provisions be placed. EPA
believes that the'proposed revisions to
the universal treatment standards, and
the new waste exclusions should be
placed in Category 1. EPA believes that
' these provisions will not significantly
expand the scope of the RCRA program,
and will be easily adopted by States.
EPA proposed modified Category 1
authorization process for mineral
processing wastes on January 25,1996
(61 FR 2364). Today's proposal modifies
the management scheme for these
materials from what was proposed in
the January 25,1996 notice, but does
not propose new authorization
procedures, except that the procedures
in the January 1996 notice would apply
only to situations in which the mineral '
processing waste volumes are high .
enough to be eligible for the special
conditional exclusion made available to
them at 261.4 in this proposed rule. EPA
will consider public comments on that
proposal when finalizing the
authorization procedures. EPA will
address which authorization procedures
will apply to this rule either in the final
HWIR-Media rule or the final Phase IV
rule, whichever is promulgated first
C. Effect on State Authorization
As noted above, EPA would
implement today's proposal in
authorized States until they modify
their programs to adopt these rules and
the modification is approved by EPA.
Because parts of the rule is proposed -
pursuant to HSWA, a State submitting a
program modification 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
and 57 FR 60132, December 18, 1992.)
Section 271.21 (e) (2) requires that
States with final authorization must
modify their programs to reflect Federal
program changes and to subsequently
submit the modification to EPA for
approval. The deadline by which the
State must modify its program to adopt
this proposed regulation will be
determined by the' date of promulgation
of the final rule in accordance with
§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
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 Stafe 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 it 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.
D. Less Stringent Requirements
Section 3009 of RCRA allows States to
impose standards that are more
stringent than the Federal program (see
40 CFR 270.1(1)). Thus, for those Federal
changes that are less stringent or reduce
the scope of the Federal program, States
are not required to modify their
programs. The parts of the rule that EPA
views as less stringent are the exclusion
for processed wood preserving
wastewaters, and the revised universal
treatment standards for antimony,
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barium, beryllium, cadmium, lead,
nickel, selenium, thallium, and
vanadium. However, EPA believes that
these proposed changes improve the
RCRA program, thus EPA will strongly
encourage States to adopt and become
authorized for these provisions when
they are finalized.
XI. 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: (1) Have an annual
effect on the economy of $100 million
or more or adversely affect, in a material
way, the economy, a sector of the
economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities; (2) create
serious Inconsistency or otherwise
interfere with an action taken or
planned by another agency: (3)
materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients; or (4) raise novel legal or
policy Issues "arising out of legal
mandates, the President's priorities, or
the principles set forth in the Executive
Order."
The 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 newly listed and
Identified wastes affected by this rule.
Newly identified mineral processing
wastes covered under this rule include
118 mineral processing wastes
Identified as potentially
characteristically hazardous. Also
covered under this rule are TC metal
wastes Including foundry sands and
secondary lead slags. Finally, this^rule
covers a conditional exclusion from the
definition of solid waste for wood
preserving wastewaters and spent Wood
preserving solutions that are recycled
on-site for their original purpose. EPA
estimates the total compliance cost of
the rule is $55 million annually, and
concludes that this rule is significant
according to the definition In E.O.
12866. The Office of Management and
Budget has reviewed this rule.
Detailed discussions of the
methodology used for estimating the
costs, economic Impacts and the
benefits attributable to today's proposed
rule for newly Identified mineral
processing wastes, followed by a
presentation of the cost, economic
impact and benefit results may be found
in the background document,
"Regulatory Impact Analysis of the
Phase IV Land Disposal Restrictions
Second Supplemental Proposed Rule for
Newly Identified Mineral Processing
Wastes and TC Metal Wastes," which
was placed in the docket for today's
proposed rule.
1. Methodology Section
The Agency estimated the volumes of
waste affected by today's rule to
determine the national level
incremental costs (for both the baseline
and post-regulatory scenarios),
economic impacts (including first-order
measures such as the estimated
percentage of compliance cost to
industry or firm revenues), and benefits
(including estimation of pollutant
loadings reductions, estimation of
reductions in exceedences of health-
based levels, and qualitative description
of the potential benefits.) The procedure
for estimating the volumes of formerly
Bevill-exempt mineral processing
wastes, and TC metal wastes affected by
today's proposed rule is detailed in the
background document "Regulatory
Impact Analysis of the Proposed Phase
IV Land Disposal Restrictions Rule for
Newly Identified Mineral Processing
Wastes and TC Metal Wastes," which
was placed in the docket for today's,
proposed rule.
2. Results
a. Volume Results. EPA estimates that
there are 29 mineral commodity sectors
potentially affected by today's rule,
including an estimated 136 facilities
that generate 118 streams of newly
identified mineral processing wastes.
The estimated volume is 20 million
tons. Based on public comment and
Agency research, the Agency believes
that the potentially affected TC metal
universe (other than mineral processing
wastes) is limited to certain lead-bearing
D008 hazardous wastes. Of the affected
TC metal universe, the Agency estimates
there are 791 non-ferrous foundries that
generate approximately 300,000 tons of
hazardous foundry sands. EPA did not
prepare an estimate of volumes of
potentially excluded wood preserving
wastewaters and spent wood preserving
solutions for this rulemaking.
fa. Cost Results. For the option .
presented in today's rule that prohibits
land storage of mineral processing
residues (below the high volume
threshold) prior to being recycled, EPA
estimates these expected case
compliance costs to be $8.4 million. The
estimated cost range for this option is
between a minimum of $5.2 million and
a maximum of $13 million. This range
reflects uncertainty surrounding both
the quantity of these materials generated
and the proportion of that quantity that
is considered characteristically
hazardous by EPA.
For the option in today's rule that
limits the Bevill exemption to wastes
generated exclusively from the use of
Bevill raw materials, EPA estimates the
expected compliance costs of this
option are $36.6 million. The range of
compliance costs for this option varies
from a minimum of $31.8 million to a
maximum of $42 million.
Together, the expected case
compliance costs for both! options
related to mineral processing are $45
million with a range between $37
million and $55 million.
For comparison, EPA evaluated two
additional alternative options to the first
EPA option in today's rule prohibiting
land storage of mineral processing
residues above high volume threshold.
The first alternative option would
require that in addition to prohibiting
land storage, mineral processing
residues would be required to be stored
in units such as tanks, containers and
buildings that meet RCRA Subtitle C
Part 264 standards (Subpart I standards
for containers, Subpart J standards for
tanks and Subpart DD standards for
containment buildings). In addition, this
option assumed that the Bevill
exemption is limited to wastes
generated exclusively from the use of
Bevill raw materials. EPA estimates
expected case compliance costs for this
option to be $58 million with a range of
$46 million to $75 million.
The second alternative option for
which EPA estimated compliance costs
for today's rule models the placement of
newly identified mineral processing
residues into land based units such as
surface impoundments and waste piles.'
This option models no design or
performance standards for the units and
no legitimacy or "significantly affects"
test for the placement of mineral
processing residues into either Bevill
process units or non-Bevill process
units. EPA estimates expected case
compliance costs for this alternative
option to be $0.2 million.
The cost results for these options are
a function of two factors: (1) The
expense associated with purchasing
new storage units or upgrading existing
tstorage units, and (2) the transfer of
some mineral processing residues either
from recycling to disposal resulting in
increased costs or from disposal to
recycling resulting in a cost savings.
For TC metal hazardous wastes, the
Agency estimates that incremental costs
resulting from the promulgation of the
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26067
proposed treatment standards for TC
nonwastewaters are $10 million
annually. Based on public comment and
data collected from commercial
hazardous waste treaters EPA believes
that the many D008 TC lead wastes are
already treated to these proposed levels
when waste handlers treat to the current
treatment standards. Therefore, no
additional treatment reagent or capital
equipment associated with treatment is
required with these wastes. Other data
submitted by the American
Foundrymen's Society indicates that
additional treatment reagents may be
required to meet proposed UTS for
foundry wastes. .EPA has evaluated
these data and determined that
additional reagent may be required for
foundry wastes such as sands and
baghouse dusts to treat cadmium to the
proposed levels. Detailed information
on EPA's estimate of costs associated
with this treatment of foundry sands can
be found in the regulatory impact
analysis placed in the docket
For conditionally excluded wood
preserving wastewaters and spent wood
preserving-solution, EPA believes that
the conditional exclusion from the
definition of solid waste will result in
cost savings rather than imposing costs
on wood preserving facilities. First, this
conditional exclusion retains existing
regulatory alternatives for the wood
preserving industry. It is likely that the
exclusion will provide regulatory relief
to wood preserving facilities that as a
result of not having to count spent
wastewasters in their monthly
hazardous waste generation rate are able
to classify themselves as small quantity
generators (SQGs) that generate between
100 and 1000 kilograms per month. For
wood preserving facilities that are able
. to qualify as SQGs, no Biennial
Reporting System reporting
requirements apply. 40 CFR 262.41.
Furthermore, SQGs have longer
accumulation times of 180 days
'compared to 90 days with large quantity
generators. 40 CFR 262.34(d). Longer
accumulation times mean less
expensive transportation for off-site
shipments. Wood preserving facilities
that are able to qualify as conditionally-
exempt small quantity generators
(CESQGs) would be subject to even
fewer regulatory requirements. See 40
CFR 261.5.
c. Economic Impact Results.
Economic impacts from today's rule-for
mineral processing facilities may or may
not be substantial for selected mineral
processing sectors depending on the
actual storage and management of
mineral processing residues prior to
being recycled. First order economic
impacts are expressed in terms of a
percentage of compliance costs to the
economic value of the minerals that are
produced. In the expected case scenario
of the two proposed options combined
to limit the exclusion from RCRA
jurisdiction of wastes from Bevill
process units to those process units to
those that receive only virgin materials
and to condition the exclusion from
RCRA for mineral processing residues
being recycled to those residues which
are stored in non-land based units up to
5 of the 29 commodity sectors are
expected to incur compliance costs
equal to or greater than 3 percent of the
economic value of the mineral
commodities produced under the
Agency's proposed option in today's
rule. These sectors include: cadmium,
lead, mercury, pyrobitumens, mineral
waxes & natural asphalt, and selenium.
The range of percentages in these
sectors is between 3 percent (selenium)
and 173 percent (mercury). Because
many of these sectors are actually co-
processed with other mineral
commodity sectors, these impacts may
be distributed over the economic value
of the other minerals, rather than
concentrated solely on the mineral
commodity associated with generating
the waste. The exception is the primary
lead sector would incur expected case
compliance costs equal to
approximately 13 percent of that
sector's sales. EPA solicits comment on
the economic impacts to the primary
lead sector and other affected sectors
resulting from this combined option and
each option separately. EPA solicits
specific public comment on the
potential for lost revenues to mineral
processing facilities with Bevill process
units (e.g., beneficiation units and high
volume mineral processing units) that
are unable to receive secondary
materials as alternative feedstocks that
are generated from outside of the
mineral processing industry.
Because the Agency believes that
there are no incremental costs
associated with today's proposed rule
for handlers of many D008 TC metal
hazardous wastes and wood preserving
facilities that recycle wood preserving
wastewaters and spent wood preserving
solutions, EPA believes that there are no
economic impacts to generators of these
materials. For TC hazardous foundry
sands, EPA estimates that incremental
costs attributable to this rule are less
than one percent of industry revenues
and therefore should not create a
significant impact to these facilities.
More detailed information on this
estimate can be found in the regulatory
impact analysis placed into today's
docket.
d. Risk Screen Estimate Results. The
Agency has estimated the quantifiable
individual results for newly identified
mineral processing wastes associated
with today's proposed rule to be above
levels of concern for cancer and
noncancer risk's for specific mineral
processing streams in both groundwater
and nongroundwater pathways.
Screening risk results suggest that
individual cancer and non-cancer risks
may be decreased below 1 x 10 -5 and
below a reference dose ratio of 1 in a
number of mineral processing facilities.
These screening results are linked
primarily with mineral processing
wastewaters stored in surface
impoundments prior to reuse. The data
used to calculate these results are based
on the groundwater pathway as well as
other potential routes of exposure such
as air or surface water. The risk
screening results indicate that the
highest individual risks are associated
with exposure through groundwater and
surface water pathways. These results
are also limited to a subset of the
mineral processing universe being
regulated today where the Agency has
collected data from individual mineral
processing facilities. EPA also notes that
in completing these individual risk
results that the entire mass of hazardous
constituents available for release in the
waste management unit was available
for release through pathway. This
results'in overestimation in risk due to
double counting of constituent mass. To
address this factor, EPA conducted mass
balance calculations for all non-
grouhdwater release pathways. These
calculations indicate that this potential
overestimate would result in negligible
bias because, only a very small
percentage of hazardous constituents in
the waste mass is available for release.
In addition, EPA did not conduct these
mass balance calculations for the
groundwater pathway because
limitations in the methodology for
which individual groundwater risks
were calculated. The Agency believes
that the potential bias in risk results for
both surface impoundments and waste
piles is low.
EPA requests comment on how .
constituents' mass should be partitioned
across pathways to yield more accurate
risk estimates. As stated above the
Agency's efforts to evaluate benefits for
mineral processing wastes was limited
to calculations for central tendency and
high-end individual risk. Due to data
limitations, the Agency was unable to
evaluate benefits including population
benefits. In general, the Agency's
experience has been that it is unusual to
predict high population risks unless
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there Is an unusually large water well
supply Impacted by the facility because
ground water contamination generally
moves slowly and locally.
Although the regulatory impact
analysis completed for today's rule does
not address benefits associated with
ecological risk reduction and a decrease
in natural resource damages, based on a
review of available information on
damage Incidents associated with
mining and mineral processing
operations,14 the Agency's experience is
that, while these types of benefits are
extremely difficult to quantify, this rule
may produce benefits in the area of
ecological risk reduction and reduced
natural resource damage.
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, die 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).
With respect to mineral processing
facilities that are small entities, EPA
believes diatEPA's proposed option in
today's rule will not pose a significant
impact to a substantial number of these
facilities. EPA Identified 22 firms
owning 24 mineral processing facilities
that are small businesses based on die
number of employees in each firm.
Under the Agency's proposed option,
zero firms out of the 24 identified
incurred estimated compliance costs
that exceed 1 percent of reported firm
revenues. In assessing the regulatory
approach for dealing with small entities
affected by the TC metal treatment
standards in today's proposed rule, die
Agency had to consider that due to die
statutory requirements of the RCRA LDR
program, no legal avenues exist for die
Agency to provide relief from the LDR's
for small entitles. The.only relief
available for small entities is die
existing small quantity generator
14 See Human Health and Environmental
Damages from Mining and Mineral Processing
Wastes. Technical Background Document
Supporting the Supplemental Proposed Rule
Applying Phase IV Land Disposal Restrictions to
Newly Identified Mineral Processing Wastes. U.S.
Office of Solid Waste, U.S. Environmental
Protection Agency. December 1995; Ecological Risk
Assessment Sou thshore Wetlands for the Kennecott
Utah Copper Salt Lake City. Utah. Working Draft
March 4.1S96; May 7.1996 letter from Max H.
Dodion, Assistant Regional Administrator for
Ecosystem Protection and Remediation. U.S.RP.A,
Region Vm to Michael Shapiro. Director. Office of
Solid Waste, U.S.E.P.A.
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
widi die 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.
Notwithstanding these statutory
constraints, for the reasons discussed
above in the economic impact section
on nonferrous foundries, the Agency
does not believe that today's proposed
rule will have a significant impact on a
substantial number'of small entities in
TC metals sector based on the results-
discussed above in the economic impact
section.
EPA has also clarified in today's rule
diat petitioners of restricted wastes diat
wish to obtain a treatment variance do
not have to show technical infeasibility
when the treatment technology is not
appropriate to the waste. Because this
clarification does not impose an adverse
. economic impact to any small entity
that is either generator of restricted
waste or an owner/operator of a
treatment, storage or disposal facility
managing such waste that is petitioning
the Agency for a variance from the
treatment standard, EPA is certifying
diat there is no significant impact to a
substantial number of small entities
potentially affected by this clarification.
Finally, widi respect to wood
preserving facilities diat recycle spent
wood preserving solutions and wood
preserving wastewaters on-site for their
original purpose, EPA believes that
today's conditional exclusion for tiiese
materials will hot pose a significant
impact on a substantial number of these
firms. As stated above, die conditional
exclusion does not alter existing
regulatory alternatives and provides .
greater flexibility for wood preservers in
calculating monthly generation rates of'
.hazardous wastes. EPA believes that this
will result in a cost savings to these
firms rather than imposing additional
waste management costs.
C. Unfunded Mandates Reform Act
Under Section 202 of die Unfunded
Mandates Reform'Act of 1995, signed
into law on March 22,1995, EPA must
prepare a statement to accompany any
rule where die estimated costs to State,
local, or tribal governments in the
aggregate, or to the private sector, will
be $100 million or more in any one year.
Under Section 205, EPA must select the
most cost-effective and least
'burdensome alternative diat achieves
the objective of the rule and is
consistent with die statutory
requirements. Section 203 requires EPA
to establish a plan for informing and
advising any small governments that
may be significandy impacted by the
rule.
EPA does not believe that today's
proposed rule will result in significant
Impacts to small governments and
moreover diat this rule does not include
a Federal mandate that may result in
estimated costs of $100 million or more
to either State, local, or tribal
governments in the aggregate. As stated
above, the private sector is not expected
to incur costs exceeding $100 million
per year. EPA has fulfilled die
requirement for analysis under the
Unfunded Mandates Reform Act.
D. 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 die Paperwork Reduction
Act, 44 U.S.C. 3501 etseq. An
Information Collection Request (ICR)
document has been prepared by EPA:
OSWER ICR No. 1442.15 would amend
die existing ICR approved under OMB
Control No. 2050-0085. This ICR has
not been approved by OMB and the
information collection requirements are
not enforceable until OMB approves the
ICR. EPA will publish a document in
. die Federal Register when OMB
approves die information collection
requirements showing the valid: OMB
control number. Until tiien, persons are
not required to respond to collections of
information in this ICR.
Copies of diis ICR may be obtained
from Sandy Farmer, OPPE Regulatory
Information Division; U.S.
Environmental Protection Agency
(2136); 401 M St., S.W.; Washington,
D.C. 20460 or by calling (202) 260-2740.
Include the ICR number in any request.
The annual public reporting and
recordkeeping burden for tiiis collection
of information is estimated to be 16
hours per response. Burden means the
total time, effort, or financial resources
expended by persons to generate,
maintain, retain, or disclose or provide
information to or for a Federal agency.
This includes the time needed to review
instructions; develop, acquire, install,
and utilize technology and systems for
the purposes of collecting,-validating,
and verifying information, processing
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26069
and maintaining information, and
comply with any previously applicable
instructions and requirements, train
personnel to be able to respond to a
collection of information: search data
sources; complete and review the
collection of information; and transmit
or otherwise disclose the information.
An agency may not conduct or sponsor,
and a person is not required to respond
to, a collection of information unless it
displays a currently valid OMB control
number. The OMB control numbers for
EPA's regulations are listed in 40 CFR
Part 9 and 48 CFR Chapter 15.
Send comments on the Agency's
burden reduction, the accuracy of the
provided burden estimates, and any
suggested methods for minimizing
respondent burden, including through
the use of automated collection of
techniques to the Director, OPPE
Regulatory Information Division; U.S.
Environmental Protection Agency
(2136); 401 M St., S.W.; Washington, DC
20460; and to the Office of Information
and Regulatory Affairs, Office of
Management and Budget, 725 17th St.,
N.W., Washington, D.C. 20503, marked
"Attention: Desk Officer for EPA."
Include the ICR number in any
correspondence.
XII. 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 -
Agencies 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.
B. Potential Effects
Today's proposed rule covers high-
metal wastes ("TC metal wastes,"
hazardous mineral processing wastes,
and mineral processing materials. The
rule involves not one site, but will
possibly affect many facilities
nationwide, with the potential for
impacts to minority or low-income
communities. Today's proposal is
intended to reduce risks to human
health and the environment, and to
benefit all populations. It is not
expected to cause any disproportionate
impacts to minority or low income
communities versus affluent or non-
minority communities.
The Agency is soliciting.comment and
input from all stakeholders, including
members of the environmental justice '
community and members of the
regulated community. The Agency is
interested in receiving additional
information and/or comment on the
following:
1. Information on facilities with
surface impoundments that have
evaluated potential ecological, human
health (taking into account subsistence
patterns and sensitive populations) and
socioeconomic impacts to minority or
' low-income communities.
2. Information on hazardous materials
stored, used, and transported in the
community.
XIII. Appendices
Appendix 1—Sampling Procedures for
Horsehead Resource Development
Company, Inc.
EPA has established the following
procedures which will be used by Horsehead
Resource Development Company, Inc.
("HRD") to demonstrate compliance with
RCRA treatment standards for K061, K062,
and F006 residuals ("the residuals"). U.S.
EPA enforcement of the treatment standards
applicable will be either on the basis of the
Phase I and Phase n procedures, or on the
Sampling Protocol below. Nothing in this
document should be read to in any way affect
EPA's ability to obtain samples or other
information under Section 3007 of RCRA.
Phase I Procedure
• U.S. EPA may collect an 8-hour composite
sample of dhe residuals as they are produced.
The 8-hour composite sample will be based
on eight grab samples, one taken every hour,
with compositing and testing performed in
accordance with the Sampling Protocol.
Upon request, HRD will be supplied on-site
with splits of all samples. U.S. EPA will
perform a TCLP test on the 8-hour composite
sample of the residuals. If the results of the
TCLP test do not exceed the applicable
numerical limits specified in 40 CFR 268.40
or 268.48, the residuals will be determined
to be in compliance with the applicable
treatment standards set forth in those
provisions.
If the results of the test exceed any of the
applicable numerical limits specified in 40
CFR 268.40 or 268.48, such results will only
be used to initiate the Phase n Procedure to
be followed as described below, and will not
be the basis for any determination of
noncompliance.
Phase n Procedure
If further action is required as a result of
the Phase I Procedure, the following Phase II
Procedure will be conducted:
a. U.S. EPA will inform HRD of the results
of the Phase I testing and concurrently
provide HRD with copies of such results and
all supporting information.
b. HRD will provide to U.S. EPA, upon
request, the TCLP results of a composite
sample of the residuals collected by HRD that
includes the period during which U.S. EPA
collected the 8-hour composite sample. The
' sampling preparation and testing procedure
used by HRD for this requested composite
sample will be in accordance with the
Sampling Protocol. • .
c. If the results of the TCLP tests on the
HRD composite sample do not exceed the
applicable numerical limits specified in 40
CFR 268.40 or 268.48, the residuals will be
determined to be in compliance with the
applicable treatment standards set forth in
those provisions.
Sampling and Analysis Protocol
HRD will use the following sampling and
analysis protocol for K061, K062, or F006
residuals produced at its facilities.
1. Grab samples of the wastes are taken
every two hours' of operation from the
product stream.
2. All of the two-hour interval samples are
blended to form a daily composite.
3. The daily composite is. riffled down to
approximately 100 grams, which is added to
the sample container used for the production
lot composite.
4. When the production composite is
completed (four to seven days), the residuals •
in the composite sample container are riffled
to produce approximately 300 grams
• composite, which is prepared for TCP testing.
5. The TCLP and QA/QC procedures
utilized are those described in Method 1311
(TCLP) of SW-846— Test Methods for
Evaluating Solid Waste .(U.S. EPA Office of
Solid Waste and Emergency Response).
Appendix 2—Sampling Procedures For
International Metals Reclamation
Company, Inc.
EPA has established the following
procedures which will be used by
International Metals Reclamation Company,
Inc. ("INMETCO") to demonstrate
compliance with RCRA treatment standards
forKOSl, K062, and F006 ("slag"). U.S. EPA
enforcement of the treatment standards
applicable will-be either on the basis of
Procedures I and II, or on the Sampling
Protocol or as described below. Such
demonstration will be deemed sufficient for
compliance purposes. To the extent that U.S.
EPA may exercise jurisdiction to determine
the compliance of INMETCO's slag with
applicable treatment standards, the
compliance determination will be based
either on the attached Sampling Protocol or
on the procedures described below. Nothing "
in these procedures should be read to in any
way affect EPA's ability to obtain samples or
other information under Section 3007 of
RCRA.
Phase I Procedure
US. EPA may collect or direct the
collection of a composite sample of
INMETCO's slags as they are produced
during a period of up to 24 hours. If U.S. EPA
representatives wish to collect the samples
themselves, they will comply with all safety
requirements and procedures specified by
INMETCO. The composite sample will be
based on grab samples, one taken from each
slag tap that occurs during the period of up
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to 24 hours specified by EPA, with
compositing and testing performed in
accordance with the Sampling Protocol. EPA
understands that slag Is tapped from
JNMETCO's furnace most frequently during
nighttime hours. Upon request, INMETCO
will bo supplied on-sltc with splits of all
samples taken by EPA. U.S. EPA will perform
a TCLP test on the composite sample of the
slag. If the results of the TCLP test do not
exceed the applicable numerical limits
specified In 40 CFR 268.40 or 268.48, the slag
will be determined In compliance with the
applicable treatment standards set forth in
those provisions.
If the results of the test exceed any of the
applicable numerical limits specified in 40
CFR 268.40 or 268.48, such results will be
used, If at all, only to Initiate the Phase H
Procedure described below, and will not be
the basis for any determination of
noncompllancc.
Phase n Procedure
If further action Is required as a result of
the Phase I Procedure, the following Phase II
Procedure will be conducted:
a. VS. EPA will Inform INMETCO of the
results of the Phase I testing and concurrently
provide INMETCO with copies of such
results and all supporting information.
b. Upon request, INMETCO will provide to
U.S. EPA, the TCLP results for a composite
sample of slags produced by INMETCO
during a period not to exceed one month,
which period may be selected by INMETCO
provided that it will Include the day on
which U.S. EPA collected the composite
sample tested during Phase I. The sample
preparation and testing procedure used by
INMETCO for this requested composite
sample will be In accordance with the'
Sampling Protocol.
c. If the results of the TCLP tests on the
composite sample described in paragraph
2.b. above do not exceed the applicable
numerical limits specified in 40 CFR 268.40
or 268.48, the slag will be determined to be
In compliance with the applicable treatment
standards set forth in those provisions.
Sampling and Analysis Protocol
INMETCO will use the following sampling
and analysis protocol for high temperature
metals recovery slag produced at Its facility.
1. A grab sample of INMETCOs slag will
be taken from every slag tap.
2. The grab samples from slag taps
occurring during a period not to exceed one
month will be blended to form a composite
sample of at least 100 grams in weight. The
composite sample will be prepared for TCLP
testing.
3. The TCLP and QA/QC procedures
utilized will be those described in Method
1311 (I'CLP) of SW-S46: Test Methods for
Evaluating Solid Waste (U.S. EPA Office of
Solid Waste and Emergency Response).
Dsl of Subjects
40CFRPartl48
Administrative practice and
procedure, Hazardous waste. Reporting
and recordkeeplng requirements, Water
supply.
40 CFR Part 261
Environmental protection, Hazardous
waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 266
Energy, Hazardous waste, Recycling,
Reporting and recordkeeping
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: April 18, 1997.
Carol M. Browner,
Administrator.
For the reasons set out in the
preamble, Title-40, chapter I of the Code
of Federal Regulations is proposed to be
amended as follows:
PART 148-rHAZARDOUS WASTE
INJECTION RESTRICTIONS
1. The authority citation for Part 148
continues to read as follows;
Authority: Section 3004, Resource '
Conservation and Recovery Act, 42 U.S.C.
6901, etseq.
2. Sectionl48.18 is amended by
redesignating paragraphs (a) through (c),
as (b) through (d) respectively, and by
adding paragraph (a) to read as follows:
§148.18 Waste specific prohibitions—
newly listed and identified wastes.
(a) Effective [Insert date 2 years from
date of publication of the final rule], the
wastes specified in 40 CFR part 261 as
EPA Hazardous waste numbers D004—
DO 11 (as measured by the Toxicity ,
Characteristic Leaching Procedure);
mixed D004-D011 TC/radioactive
wastes; characteristic hazardous wastes
from mineral processing operations; 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
3. The authority citation for Part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, 6924(y) and 6938.
4. Section 261.2(c) is amended by
revising paragraph (c) (3) to read as
follows:
§ 261.2 Definition of Solid Waste.
* . * * * *
(c) * * *
(3) Reclaimed. Materials noted with a
"*" in column 3 of Table 1 are solid
wastes when reclaimed. However, all
secondary materials generated within
the primary mineral processing industry
(other than hazardous wastes fisted in
Subpart D of this part) are solid wastes
when reclaimed unless excluded under
§261.4(a)(15)and(16).
*****
4. Section 261.3(a) 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) * * *
(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)(9)(iii), (a)(15), and
(a)(16), and by revising paragraph (b)(7)
to read as follows:
§261.4 Exclusions.
(a)
0)
(iii) Wood preserving wastewaters and
spent wood preserving solutions that are
recycled and reused on-site in the
production process for their original
intended purpose at wood preserving
plants; provided that these wastewaters
and spent wood preserving solutions are
managed to prevent release to the land
and the groundwater and that the units
can be visually or otherwise determined
to prevent such releases; and provided
that if these wastewaters are collected or
managed on drip pads, those pads are in
compliance with the regulatory drip pad
standards, regardless of whether the
plant would generate less than 100 kg
per month of hazardous waste once
such wastewaters and spent wood
* * *
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Federal Register / Vol. 62. No. 91 / Monday, May 12, 1997 / Proposed Rules
26071
preserving solutions are excluded under
this provision.
******
(15) Large volume streams of
secondary materials (other than
hazardous wastes listed in Subpart D of
this Part) generated within the primary
mineral processing industry from which
minerals, acids, or water values are
recovered by a primary mineral
processing industry production process,
provided that:
•(i) The material contains recoverable
amounts of minerals, acids, or water;
. (ii) The materials are not accumulated
speculatively (as defined at
§261.1(c)(8));
(iii) The secondary material is
generated in a quantity over 45,000 tons
per year per waste stream as generated
for solid wastes and one million tons
per year per waste stream as generated
for liquids wastes.
(iv) 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; and,
(v) The materials are 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 VHI 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
die 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 die 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 transmissiviry of a liner
comprised of a 40 mil geomembrane
liner on 12 inches of soil with at least
10<-5> 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 diree 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) However, 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 generated
within die primary mineral processing
industry from which minerals, acids, or
water are recovered and are stored in
tanks, containers or buildings meeting
the following minimum integrity
standards: the tank or containment unit
should be an engineered structure widi
a man-made floor, walls, and a roof all
of which are made of non-earthen
materials providing structural support,
the tank or container must be free
standing and not a surface
impoundment (as defined in 40 CFR
260.10), be manufactured of a material
suitable for storage of its contents, and
meet appropriate specifications such as
those established by either ASTM, API,"
or UL standards. The minimum criteria
for a building is that the structure must
be man-made, constructed from non-
earthen materials, and have a roof
suitable for diverting rainwater away
from the foundation.
(b) * * *
(7) Solid waste from the extraction,
beneficiation, and processing of ores
and minerals (including coal,
phosphate, rock, and overburden from
die mining of uranium ore), except as
provided by §266.112 of this chapter for
facilities that burn or process hazardous
waste. Solid wastes from the
beneficiation of ores and minerals must
be uniquely associated with and
originate from the extracted ore or
mineral that undergoes one or more of
the following activities in preparation
for mineral processing: crushing,
grinding, washing, dissolution,
crystallization, filtration, sorting, sizing,
drying, sintering, pelletizing,
briquetting, calcining to remove water
and/or carbon dioxide, roasting,
autoclaving and/or chlorination in
preparation for leaching (except where
the roasting and/or autoclaving
sequence produces a final or
intermediate product tiiat does not
undergo further beneficiation or
processing); gravity concentration;
magnetic separation; electrostatic .
separation; flotation, ion exchange;
solvent extraction/electrowinning;
precipitation, amalgamation, and heap,
dump, vat, tank, and in situ leaching.
For purposes of §261.4(b)(7), alternative
feedstocks, which are secondary
materials or materials not naturally •
occurring in the extracted ore or mineral
undergoing beneficiation, are not
eligible for the hazardous waste
exclusion. For die purposes of
§261.4(b)(7), solid waste from the
processing of ores and minerals
originate solely from a beneficiation
activity and includes only the following
wastes as generated:
(i) Slag from primary copper
processing;
(ii) Slag from primary lead processing;
(iii) Red and brown muds from
bauxite refining;
(iv) Phosphogypsum from phosphoric
acid production;
(v) Slag from elemental phosphorous
production;
(vi) Gasifier ash from coal gasification;
(vii) Process wastewater from coal
gasification; (viii) Calcium sulfate
wastewater treatment plant sludge from
primary copper production;
(ix) Slag tailings from primary copper
processing;
(x) Fluorogypsum from hydrofluoric
acid production;
(xi) Process wastewater from
hydrofluoric acid production;
(xii) Air pollution control dust/sludge
from iron blast furnaces; '(xiii) Iron blast
furnace slag;
(xiv) Treated residue from roasting/
leaching of chrome ore;
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26072
Federal Register / Vol. 62, No. 91 / Monday. May 12. 1997 / Proposed Rules
(xv) Process wastewater from primary
magnesium processing by the
anhydrous process;
(xvl) Process wastewater from
phosphoric acid production;
(xvll) Basic oxygen furnace and open
hearth furnace air pollution control
dust/sludge from carbon steel
production;
(xvll!) Basic oxygen furnace and open
hearth furnace slag from carbon steel
production;
(xbc) Chloride process waste solids
from titanium tetrachloride production;
(xx) Slag from primary zinc
processing.
PART 266—STANDARDS FOR THE
MANAGEMENT OF SPEC1RC
HAZARDOUS WASTES AND SPECIFIC
TYPES OF HAZARDOUS WASTE
MANAGEMENT FACILITIES
7. The authority citation for Part 266
continues to read as follows:
Authority: 42 US.C. 6905.6912(a), 6924,
and 6934.
8. Section 266.20(b) is amended by
redeslgnaUng the existing paragraph (b)
as (b)(l), and adding a new paragraph
(b)(2) to read as follows:
§266.20 Applicability.
* * * * *
(b) * * *
(2) In addition, prohibited hazardous
waste (Including wastes that exhibit a
characteristic at the point they are
generated but no longer exhibit a
characteristic at the point they are used
as fill material) may be used as a fill
material only If the Regional
Administrator or State Director first
finds, on a site-specific basis, to a,
reasonable degree of certainty, that the
fill material will be used in a manner
protective of human health and the
environment and which minimizes
short-term and long-term threats posed
by the land disposal of the waste as fill,
considering the following factors:
0) The long term uncertainties
associated with land disposal;
(H) The goal of managing hazardous
waste In an appropriate manner in the
first instance;
(HI) The persistence, toxicity,
mobility, and propensity to
bloaccumulate of such hazardous waste
and their hazardous constituents;
(Iv) All pathways of exposure to
hazardous constituents to which human
or environmental receptors could
reasonably be exposed; and,
(v) Other factors relating to
protectlveness of human health and the
environment, as appropriate.
(vi) This approval is unnecessary if
the fill area is a regulated unit. By, "fill
material," EPA means any prohibited
hazardous waste used in place of such
materials as natural soil or sand, the
man-made addition of which to land
levels the land, occupies space in the
land, or fills in man-made or naturally
occurring significant depressions in
land (for example, ditches, gullies,
channels, holes, ruts, trenches or the
like), whether or not the addition of the
prohibited hazardous waste is intended
to achieve a purpose unrelated to the
leveling land, occupying space in the
land, or filling in man-made or naturally
occurring depressions in land.
PART 268—LAND DISPOSAL
RESTRICTIONS
9. The authority citation for Part 268
continues to read as follows:
Authorily: 42 U.S.C. 6905, 6912(a), 6921,
and 6924.
Subpart C—Prohibitions on Land
Disposal
10. Section § 268.32 is added to read
as follows:
§268.32 Waste specific prohibitions—
toxicity characteristic metal wastes.
(a) Effective August 11,1997, the
following wastes are prohibited from
land disposal: the wastes specified in 40
CFR 261 as EPA Hazardous Waste •
numbers D004—D011 (as measured by
the Toxicity Characteristic Leaching
Procedure) and soil and debris
contaminated with these wastes:
characteristic hazardous wastes from
mineral processing operations; and, soil
and debris contaminated with
characteristic hazardous wastes from
mineral processing operations.
(b) Effective May 12, 1999, the
following wastes are prohibited from
land disposal: soil and debris
contaminated with radioactive wastes
mixed with EPA Hazardous waste
numbers D004—D011 (as measured by
the Toxicity Characteristic Leaching
Procedure) and with characteristic
mineral processing wastes.
(c) Between May 12,1997 and May
12,1999, radioactive waste mixed with
TJ004—D011 (as measured by the
Toxicity Characteristic Leaching
Procedure) wastes and/or soil and
debris, or mixed with characteristic
mineral processing wastes, may be
disposed in a landfill or surface
impoundment only if such unit is in
compliance with the requirements
specified in § 268.5 (h) (2) of this Part.
(d) The requirements of paragraphs (a)
and (b) 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) in excess of the
applicable Universal Treatment
Standard levels of §268.48 of this Part,
the waste is prohibited from land
disposal, and all requirements of part
268 are applicable, except as otherwise
specified.
Subpart D—Treatment Standards
11. Section 268.40 is amended by
revising paragraph (e), adding paragraph
(h), and amending the Table of
Treatment Standards by revising the
entries D004—D011; F006; F007; F008;
F009; F011; F012; F019; F024; F032;
F034;'F035; F037; F038; F039; K001;
K002; K003; K004; K005; K006; K007;
K008; K015; K021; K022; K028; K046;
K048; K049; K050; K051; K052; K061;
K062; K069; K086; K087; K088; K100;
K115; K161; P013; PO73; P074; P099;
P103; P104; PI 10; PI 14; U032; U051;
U144; U145; U146; U204; and U205 to
read as follows:
§ 268.40 Applicability of Treatment
Standards.
* * * * *
(e) For characteristic wastes (D001-
D043) that are subject to treatment
standards in the following table
"Treatment Standards for Hazardous
Wastes," and are not managed in a
wastewater treatment system that is
regulated under the Clean Water Act
(CWA), that is CWA-equivalent, or that
is injected into a Class I nonhazardous
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Federal Register / Vol. 62; No. 91 / Monday, May 12, 1997 / Proposed Rules
26073
deep injection well, all underlying
hazardous constituents (as defined in
§ 268.2{i)) must meet Universal
Treatment Standards, found in §268.48,
"Table UTS," prior to land disposal as
defined in § 268.2 (c) of this part.
(h) The hazardous wastes included in
the "Treatment Standards for Hazardous
Wastes" table are prohibited from use as
a fill material, as defined at § 266.20(b)
of this Part, unless and until the
placement of the waste or waste residue
is demonstrated and determined to be
protective of human health and the
environment as set out in § 266.20(b) of
this Part, or the fill area is a regulated
unit.
TREATMENT STANDARDS FOR HAZARDOUS WASTES
INote: NA means not applicable]
Regulated hazardous constituent Wastewaters
Waste code Waste description and treatment/regu-
latory subcategory'
Common name CAS2 No.
Concentration in mg/
I3; or technology
code4
Nonwastewaters
Concentration in mg/.
kg 5 unless noted, as
"mg/l TCLP"; or -
technology code"
Lead
D0049 Wastes that exhibit, or are expected to ex- Arsenic 7440-33-2
hibit, the characteristic of toxicity for ar- '"""
senic based on the toxicity characteristic
leaching procedure (TCLP) in SW846.
D0059 ...; Wastes that exhibit, or are expecte'd to ex- Barium 7440-39-3
hibit, the characteristic of toxicity for bar-
ium based on the toxicity characteristic
leaching procedure (TCLP) in SW846.
D0069 Wastes that exhibit, or are expected to ex- Cadmium... ; 7440-43-9
• hibit, the characteristic of toxicity for
cadmium based on the toxicHy char-
acteristic leaching procedure (TCLP) in
SW846.
Cadmium Containing Batteries Sub- Cadmium 7440-43-9 NA
category. (Note: This subcategory con-
sists of nonwastewaters only).
00079 ••••• Wastes that exhibit, or are expected to ex-. Chromium (Total)
hibit; the characteristic of toxicity for
chromium based on the toxicity char-
acteristic leaching procedure (TCLP) in
SW846.
D008? Wastes that exhibit, or are expected to ex-
. hibit, the characteristic of toxicity for
tead based on the toxicity characteristic
leaching procedure (TCLP) in SW846.
Lead Acid Batteries Subcategory (Note: Lead 7439-92-1 NA
This standard only applies to lead acid
batteries that are identified as RCRA
hazardous wastes and that are not ex-
cluded elsewhere from regulation under
the land disposal restrictions of 40 CFR
268 or exempted under other EPA regu-
lations (see 40 CFR 266.80). This sub-
category consists of nonwastewaters
only). .
Radioactive Lead Solids Subcategory
(Note: these lead solids include, but are
not limited to, all forms of lead shielding
and other elemental forms of lead.
These lead solids do not include treat-
ment residuals such as hydroxide
sludges, other wastewater treatment re-
siduals, or incinerator ashes that can
undergo conventional pozzolanic sta-
bilization, nor do they include organo-
tead materials that can be incinerated
and stabilized as ash. This subcategory
consists of nonwastewaters only).
1.4 and meet ,
§268.48 stand-
ards8.
1.2 and meet
§268.48 stand-
ards s.
0.69 and meet
§268.48 stand-
ards8.
7440-47-3 2.77 and meet
§268.48 stand-
ards8.
7439-92-1 0.69 and meet
§268.48 stand-
ards8.
5.0 mg/l TCLP and
meet §268.48
standards.8
21 mg/l TCLP and
meet §268.48
standards.8
0.20 mg/l TCLP and
meet §268.48
standards.8
RTHRM
0.85 mg/l TCLP and
meet §268.48
standards.8
0.75 mg/l TCLP and
meet §268.48
standards.8
RLEAD
Lead,
7439-92-1 NA = MACRO.
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26074
Federal Register / Vol. 62, No. 91 / Monday. May 12. 1997 / Proposed Rules
TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued
[Note: NA means not applicable]
Regulated hazardous constituent Wastewaters
Nonwastewaters
Wastocoda
Waste description and treatment/regu-
latory subcategory'
Common name
CAS2 No.
Concentration in mg/
P; or technology
code"
Concentration in mg/
kg5 unless noted as
"mg/1 TCLP"; or
'technology code4
D009»
D0109 ........
D0118...,
Nonwastewaters that exhibit, or are ex- Mercury 7439-97-6 NA
pected to exhfoH, the characteristic of
toxicity for mercury based on the toxicity
characteristic leaching procedure
(TCLP) hi SW846; and contain greater
than or equal to 260 mg/kg total mer-
cury that also contain organics and are
not incinerator residues. (High Mercury-
OrganJc Subcategory).
Nonwastewaters that exhibit, or are ex- Mercury
pected to exhibit, the characteristic of
toxicity for mercury based on the toxicity
characteristic leaching procedure
(TCLP) In SW846; and contain greater
than or equal to 260 mg/kg total mer-
cury that are inorganic, including inciner-.
ator residues and residues from
RMERC. (High Mercury-Inorganic Sub-
category).
Nonwastewaters that exhibit, or are ex- Mercury 7439-97-6 NA
pected to exhibit, the characteristic of
toxicity for mercury based on the toxicity
characteristic leaching procedure
(TCLP) in SW846; and contain less than
260 mg/kg total mercury. (Low Mercury
Subcategory).
All D009 wastewaters Mercury
IMERC; OR
.RMERC.
7439-97-6 NA RMERC.
7439-97-6
Elemental mercury contaminated with ra- Mercury..
dtoactive materials. (Note: This sub-
category consists of nonwastewaters
only).
Hydraulic ofl contaminated with Mercury Mercury..
Radioactive Materials Subcategory.
(Note: This subcategory consists of
nonwastewaters only).
Wastes that exhibit, or are expected to ex- Selenium
hibit, the characteristic of toxicity for se-
lenium based on the toxicity characteris-
tic leaching procedure (TCLP) in SW846.
Wastes that exhibit, or are expected to ex- Silver
hWt, the characteristic of toxicity for sil-
ver based on the toxicity characteristic
leaching procedure (TCLP) in SW846.
0.15 and meet
§268.48 stand-
ards8.
7439-97-6 NA AMLGM.
0.025 mg/l TCLP
and meet §268.48
standards.8
NA.
7439-97-6 NA , IMERC.
7782-49-2 0.82 and meet
§268.48 stand-
• ards8.
7440-22-4 0.43 and meet
§268.48 stand-
ards8.
5.7 mg/I TCLP and
meet §268.48
standards8
0.11 mg/l TCLP and
meet §268.48
standards8
F008 Wastewater treatment sludges from elec-
troplating operations except from the fol-
lowing processes: (1) Sulfuric acid an-
odizing of aluminum; (2) tin plating on
carbon steel; (3) zinc plating (seg-
regated basis) on carbon steel; (4) alu-
minum or zinc-aluminum plating on car-
bon steel; (5) cleaning/stripping associ-
ated with fin, zinc and aluminum plating
on carbon steel; and (6) chemical etch-
ing and milling of aluminum.
FOQ7 Spent cyanide plating bath solutions from
electroplating operations.
Cadmium
Chromium (Total) ...
Cyanides (Total)7 ..
Cyanides (Ame-
nable) 7.
Lead
Nickel
Silver
Cadmium .'.
Chromium (Total).
Cyanides (Total)7
Cyanides (Ame-
nable)7.
Lead
Nickel
7440-43-9 0.69 0.20 mg/l TCLP.
7440-47-3 2.77 ; 0.85 mg/l TCLP.
57-12-5 1.2 590.
57-12-5 0.86 30.
7439-92-1 0.69 0.75 mg/l TCLP.
7440-02-0 3.98 13.6 mg/l TCLP.
7440-22--* NA i 0.11 mg/l TCLP.
7440-43-9 NA 0.20 mg/l TCLP.
7440-47-3 2.77 0.85 mg/l TCLP.
57-12-5 1.2 590
57-12-5 0.86 30.
7439-92-1 0.69 0.75 mg/l TCLP.
7440-02-0 3.98 13.6 mg/l TCLP.
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26075
TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued
[Note: NA means not applicable]
Regulated hazardous constituent Wastewaters
Nonwastewaters
Waste code Waste description and treatment/regu-
latory subcalegory'
Common name CAS 2 No.
Concentration in mg/
I3; or technology
code4
Concentration in mg/
kg5 unless noted as
"mg/1 TCLP"; or
technology code"
F008 Plating bath residues from the bottom of
plating baths from electroplating oper-
ations where cyanides are used in the
process.
F009 Spent stripping and cleaning bath solu-
tions/ from electroplating operations
where cyanides are used in the process.
Silver „.
Cadmium ...;....
Chromium (Total).
Cyanides (Total)7
Cyanides (Ame-
nable)7.
Lead
Nickel
Silver
Cadmium
Chromium (Total)..
Cyanides (Total)7 .
Cyanides (Ame-
nable)7.
Lead
Nickel
Silver
7440-22-4 NA 0.11 mg/l TCLP.
7440-43-9 NA 0.20 mg/l TCLP.
7440-47-3 2177 0.85 mg/l TCLP.
57-12-5 1.2 590.
57-12-5 0.86 30.
7439-92-1 0.69 :... 0.75 mg/l TCLP.
7440-02-O 3.98 13.6 mg/l TCLP.
7440-22-4 NA 0.11 mg/l TCLP.
7440-43-9 NA t. 0.20 mg/l TCLP.
7440-47-3 2.77 0.85 mg/l TCLP.
57-12-5 1.2 590.
57-12-5 0.86 30.
7439-92-1 0.69 0.75 mg/l TCLP.
7440-02-0 3.98 13.6 mg/I TCLP.
7440-22-4 NA 0.11 mg/l TCLP.
F011 Spent cyanide solutions from salt bath pot
cleaning from metal heat treating oper-
ations. .
R>12 Quenching wastewater treatment sludges
from metal heat treating operations
• where cyanides are used in the process.
R>19 Wastewater treatment sludges from the
chemical conversion coating of alu-
minum except from zirconium
phosphating in aluminum can washing
when such phosphating is an exclusive
conversion coating process.
Cadmium
Chromium (Total)7
Cyanides (Total)7 ..
Cyanides (Ame-
nable)7.
Lead ,
Nickel
Silver ...,
Cadmium
Chromium (Total)....
Cyanides (Total)7 ...
Cyanides (Ame-
nable)7.
Lead
Nickel
Silver
Chromium (Total)....
Cyanides (Total)7....
Cyanides (Ame-
nable)7.
7440-43-9 NA 0.20 mg/l TCLP.
7440-47-3 2.77 0.85 mg/l TCLP.
57-12-5 1.2 590.
57-12-5 0.86...... 30.
7439-92-1 0.69 0.75 mg/l TCLP.
7440-02-0 3.98 13.6 mg/l TCLP.
7440-22-4 NA .; 0.11 mg/l TCLP.
7440-43-9 NA 0.20 mg/l TCLP.
7440-47-3 2.77 0.85 mg/l TCLP.
57-12-5 1.2 „. 590
57-12-5 0.86 30.
7439-92-1 0.69 0.75 mg/l TCLP.
7440-02-0 3.98 13.6 mg/l TCLP.
7440-22-4 NA 0.11 mg/l TCLP.
7440-47-3 2.77 0.85 mg/l TCLP.
57-12-5 1.2 590
57-12-5 0.86 30
F024 Process wastes, including but not limited
• to, distillation residues, heavy ends,
tars, and reactor clean-out wastes, from
the production of certain chlorinated ali-
phatic hydrocarbons by free radical
catalyzed processes. These chlorinated
aliphatic hydrocarbons are those having
carbon chain lengths ranging from one
to and including five, with varying
amounts and positions of chlorine sub-
stitution. (This listing does not include
wastewaters, wastewater treatment
sludges, spent catalysts, and wastes
listed in §261.31 or §261.32.)
Chromium (Total)
Nickel .,
7440-47-3
7440-02-0,
2.77
3.98
0.85 mg/l TCLP
13.6 mg/l TCLP.
-------
26076
Federal Register / Vol. 62. No. 91 /Monday. May 12. 1997 / Proposed Rules
TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued
[Note: NA means not applicable]
Regulated hazardous constituent
Waste code
Waste description and treatment/regu-
latory subcategory '
Common name
CAS 2 No.
Wastewaters
Concentration in mg/
|3; or technology
code4
Nonwastewaters
Concentration in mg/
kg s unless noted as
"mg/l TCLP"; or
technology code4
F032 Wastewaters (except those that have not
come Into contact with process contami-
nants), process residuals, preservative
drippage, and spent formulations from
wood preserving processes generated
at plants that currently use or have pre-
viously used chtorophenolic formulations
(except potentially cross-contaminated
wastes that have had the F032 waste
code deleted in accordance with
§261.35 of this chapter or potentially
cross-contaminated wastes that are oth-
erwise currently regulated as hazardous
wastes (i.e., F034 or F035), and where
the generator does not resume or initi-
ate use of chtorophenolic formulations).
This Hsting does not include K001 bot-
tom sediment sludge from the treatment
of wastewater from wood preserving
processes that use creosote and/or
penta-chtorophenol.
F034 „ Wastewaters (except those that have not
come into contact with process contami-
nants), process residuals, preservative
dr^page. and spent formulations from
wood preserving processes generated
at plants that use creosote formulations.
This Bsting does not include K001 bot-
tom sediment sludge from the treatment
of wastewater from wood preserving
processes that use creosote and/or
pentachlorophcnol.
F035 Wastewaters (except those that have not
come into contact with process contami-
nants), process residuals, preservative
drippage, and spent formulations from
wood preserving processes processes
generated at plants that use inorganic
preservatives containing arsenic or chro-
mium. This listing does not include K001
bottom sediment sludge from the treat-
ment of wastewater from wood preserv-
ing processes that use creosote and/or
pentachtorophenol.
Chromium (Total).
*
Chromium (Total),
7440-47-3 2.77
* *
7440-17-3 2.77
0.85 mg/l TCLP.
*
0.85 mg/l TCLP.
Arsenic
Chromium (Total)
7440-38-2 1.4 ..
7440-47-3 2.77
5.0 mg/l TCLP.
0.85 mg/l TCLP.
-------
Federal Register / Vol. 62. No. 91 /Monday. May 12. 1997 / Proposed Rules
26077
TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued
[Note: NA means not applicable]
Regulated hazardous.constituent
Wastewaters
Nonwastewaters
Waste code Waste description and treatment/regu-
latory subcategory'
Common name
CAS 2 No.
Concentration in mg/ u°y^lrfli°".iSL,m9/
* or technology97 kg^essnoted^as
technology code4
F038
F037 Petroleum refinery primary oil/water/solids *
separation sludge-Any sludge generated Chromium (Total)...,
from the gravitational separation of oil/' *
water/solids during the storage or treat- Nickel
ment of process wastewaters and oily •
cooling wastewaters from petroleum re-
fineries. Such sludges include, but are
not limited to, those generated in: oil/
. water/solids separators; tanks and im-
poundments; ditches and other convey-
ances; sumps; and stormwater units re-
ceiving dry weather flow. Sludge gen- •
erated in stormwater units that do not
receive dry weather flow, sludges gen-
erated from non-contact once-through
cooling waters segregated for treatment
from other process or oily cooling wa-
ters, sludges generated in aggressive
biological treatment units as defined in
§261.31(b)(2) (including sludges gen-
erated in one~or more additional units
after wastewaters have been treated in
aggressive biological treatment units)
and K051 wastes are not included in
this listing.
Petroleum refinery secondary (emulsified) *
oil/water/solids separation sludge and/or Chromium (Total)
float generated from the physical and/or *
chemical separation of oil/water/solids in Nickel
process wastewaters and oily cooling
wastewaters from petroleum refineries.
Such wastes include, but are not limited
to, all sludges and floats generated in:
induced air floatation (IAF) units, tanks
, and impoundments, and all sludges
generated in DAF units. Sludges gen-
erated in stormwater units that do not
receive dry weather flow, sludges gen-
erated from non-contact once-through
cooling waters segregated for treatment
from other process or oily cooling wa-
ters, sludges and floats generated in ag-
gressive biological treatment units as
defined in §261.31(b)(2) (including
sludges and floats generated in one or
more additional units after wastewaters
have been treated in aggressive biologi-
cal units) and F037, K048, and K051
are not included in this listing.
Leachate (liquids that have percolated *
through land disposed wastes) resulting Antimony
from the disposal of more than one re-
stricted waste classified as hazardous
under subpart D of this part. (Leachate
resulting from the disposal of one or
more of the following EPA Hazardous
Wastes and no other Hazardous Wastes
retains its EPA Hazardous Waste Num-
ber(s): F020, F021, F022, F026, F027,
and/or F028.).
7440-47-3 2.77
7440-02-0 NA ..
0.85 mg/l TCLP.
*
13.6 mg/l TCLP.
7440-47-3 2.77
* *
7440-02-0 NA ...
0.85 mg/l TCLP.
*
13.6 mg/I TCLP.
F039
7440-36-0 1.9 0.07 mg/l TCLP.
Barium 7440-39-3 1.2 21 mg/ITCLP
Beryllium 7440-41-7 0.82 NA
Cadmium 7440-43-9 0.69 0.20 mg/I TCLP
Chromium (Total) 7440-47-3 2.77 0.85 mg/l TCLP
-------
26078 Federal Register / Vol. 62. No. 91 / Monday. May 12, 1997 / Proposed Rules
TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued
[Note: NA means not applicable]
Waste code
Waste desertion and treatment/regu-
latory subcategory'
Regulated hazardous constituent
Common name
CAS2 No.
Wastewaters
Nonwastewaters
issssr
code4 technology code"
Lead
K001 ............. Bottom sediment sludge from the treat-
ment of wastewaters from wood pre-
serving processes that use creosote
and/or pentachloropheno!.
K002 ............. Wastewater treatment sludge from the
production of chrome yellow and orange
pigments.
K003 ............. Wastewater treatment sludge from the
production of molybdate orange pig-
ments.
K004 Wastewater treatment sludge from the
production of zinc yellow pigments.
K005 ~ Wastewater treatment sludge from the
production of chrome green pigments.
K006 Wastewater treatment sludge from .the
production of chrome oxide green pig-
ments (anhydrous). •
Wastewater treatment sludge from the
production of chrome oxide green pig-
ments (hydrated).
K007 Wastewater treatment sludge from the
. production of iron blue pigments.
K008 Oven residue from the production of
chrome oxide green pigments.
Nickel
Selenium
Silver
Lead
Chromium (Total)
Lead
Chromium (Total).
Lead ..:
Chromium (Total).
Lead
Chromium (Total).
Lead .-
Cyanides (Total) f
Chromium (Total).
Lead
Chromium (Total)
Lead
7439-93-1 0.69 0.75 mg/l TCLP.
* * *.
7440-02-0 3.98 13.6 mg/l TCLP.
7782^-49-2 0.82 5.7 mg/l TCLP.
7440-22-4 0.43 0.11 mg/l TCLP.
7439-92-1 0.69 0.75 mg/l TCLP.
7440-47-3 2.77 0.85 mg/l TCLP.
7439-92-1 0.69 0.75 mg/l TCLP.
7440-47-3 2.77 - 0.85 mg/l TCLP.
7439-92-1 0.69 0.75 mg/l TCLP.
7440-47-3 2.77 0.85 mg/l TCLP.
7439-92-1 0.69 0.75 rng/l TCLP.
7440-47-3 2.77 0.85 mg/l TCLP.
7439-92-1 0.69 0.75 mg/l TCLP.
57-12-5 1.2 590
7440-47-3 2.77 0.85 mg/l TCLP.
7439-92-1 '0.69 0.75 mg/l TCLP.
7440-47-3 2.77 0.85 mg/l TCLP.
7439-92-1 0.69 MA
Chromium (Total).
Lead ,
Cyanides (Total) f
Chromium (Total)
Lead
.... 7440-^47-3 2.77 0.85 mg/l TCLP.
7439-^92-1 0.69 0.75 rng/l TCLP.
57-12-5 1.2
590
7440-47-3 2.77 0.85 mg/l TCLP.
7439-92-1 0.69 0.75 mg/l TCLP.
K015 ..„ Still bottoms from the distillation of benzyl
chloride.
Chromium (Total),
Nickel
7440-47-3 2.77 0.85 mg/TTCLP.
7440-02-0 3.98 13.6 mg/l TCLP.
K021 ..M Aqueous spent antimony catalyst waste
from fkioromethanes production.
K022 Distillation bottom tars from the production
of phenol/acetone from cumene.
Carbon tetrachloride
Chloroform
Antimony ...
Chromium (Total)
Nickel
56-23-5 0.057 6.0.
67-66-3 0.046 6.0.
7440-36-0 1.9 0.07 mg/l TCLP.
7440-47-3 2.77 0.85 mg/l TCLP.
7440-02-0 3.98 ' 13.6 mg/l TCLP.
K028 Spent catalyst from the hydrochlorfnator
reactor in the production of 1,1,1-
tiichloroethane.
Chromium (Total)
Lead
Nickel
744CH47-3 2.77 0.85 mg/l TCLP.
7439-92-1 0.69 0.75 mg/l TCLP.
7440-02-0 3.98 13.6 mg/l TCLP.
K046 Wastewater treatment sludges from the
manufacturing, formulation and loading
of lead-based initiating compounds.
Lead
7439-92-1 0.69 6.75 mg/l TCLP.
K048 Dissolved air flotation (DAF) float from the
petroleum refining industry.
-------
Federal Register / Vol. 62. No. 91 / Monday. May 12, 1997 / Proposed Rules
26079
TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued
[Note: NA means not. applicable]
Regulated hazardous constituent
Waste code Waste description and treatment/regu-
latory subcategory >
Common name
CAS 2 No.
Wastewaters
Concentration in mg/
I3; or technology
code4
Nonwastewaters
"mg/J TCLP"; or
technology code4
K049
K050
K051
K052
Slop oil emulsion solids from the petro-
• teum refining industry.
Heat exchanger bundle cleaning sludge
from the petroleum refining industry.
API separator sludge from the petroleum
refining industry.
Tank bottoms (leaded) from the petroleum
refining industry.
Chromium (Total)
Nickel ,
Chromium (Total),
•*•
Nickel
Chromium (Total)
Nickel .,
Chromium (Total),
Nickel ,
Chromium (Total)..
Lead..
Nickel
7440-47-3 2.77 0.85 mg/l TCLP.
* * +
7440-02-0 NA 13.6 mg/l TCLP.
* * *
7440-47-3 2.77 0.85 mg/l TCLP.
7440-02-0 NA 13.6 mg/l TCLP.
* * *
7440-47-3 2.77 o.85 mg/l TCLP.
7440-02-0 NA 13.6 mg/l TCLP.
* * *
7440-47-3 2.77 0.85 mg/l TCLP.
7440-02-0 NA 13.6 mg/l TCLP.
* * *
7440-47-3 2.77.. 0.85 mg/I TCLP.
* *' * •
.7439-92 10.69 NA
7440-02-0 NA. iae mg/l TCLP.
K061
K062
K069
Emission control dust/sludge from the pri- Antimony
mary production of steel in electric fur-
naces.
Spent pickle liquor generated by steel fin-
ishing operations of facilities within the
iron and steel industry (SIC Codes 331
and 332).
Emission control dust/sludge from second-
ary lead smelting.—Calcium Sulfate
(Low Lead) Subcategory.
Emission control dust/sludge from second-
ary lead smelting.—Non-Calcium Sulfate
(High Lead) Subcategory.
Arsenic
Barium
Beryllium
Cadmium
Chromium (Total)
Lead ,
Mercury
Nickel
Selenium
Silver
Thallium
Zinc
Chromium (Total).
Lead
. Nickel
Cadmium
Lead
NA .
7440-36-0 NA 0.07 mg/l TCLP.
7440-38-2 NA 5.0 mg/1 TCLP.
7440-39-3 NA 21 mg/l TCLP.
7440-41-7 NA 0.02 mg/I TCLP.
7440-43-9 0.69 0.20 mg/l TCLP.
7440-47-3 2.77 0.85 mg/l TCLP.
7439-92-1 0.69 0.75 mg/l TCLP.
7439-97-6 NA 0.025 mg/I TCLP.
7440-02-0 3.98 13.6 mg/l TCLP.
7782-49-2 NA 5.7 mg/I TCLP.
7440-22-4 NA 0.11 mg/I TCLP.
7440-28-0 NA '. 0.20 mg/l TCLP.
7440-66-6 NA 4.3 mg/l TCLP.
7440-47-3 2.77... 0.85 mg/l TCLP.
7439-92-1 0.69 0.75 mg/l TCLP.
7440-02-0 3.98 NA.
7440-43-9 0.69 0.20 mg/l TCLP.
7439-92-1 0.69 0.75 mg/l TCLP.
NA NA RLEAD.
K086 ....
K087
Solvent wastes and sludges, caustic
washes and sludges, or water washes
and sludges from cleaning tubs and
equipment used in the formulation of ink
from pigments, driers, soaps, and sta-
bilizers containing chromium and lead.
Decanter tank tar sludge from coking op-
erations. .
Chromium (Total)
Lead 7439-92-1
Lead 7439-92-1
7440-47-3 2.77 ,
0.69 0.75 mg/I TCLP..
* *
0.69 0.75 mg/l TCLP..
0.85 mg/l TCLP.
-------
26080
Federal Register / Vol. 62. No. 91 / Monday. May 12, 1997 / Proposed Rules
TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued
[Note: NA means not applicable]
Waste coda
Waste description and treatment/regu-
latory subcategory'
Wastewaters
Nonwastewaters
Regulated hazardous constituent
Concentration in mg/
Common name CAS 2 No. I?; or technology , -«mg/i TCLP"; or
technology code"
code4
K088 Spent potliners from primary aluminum re-
duction.
Antimony ....
7440-367-0 1.9 0.07 mg/I TCLP.
Barium 7440-39-3 1.2 21 mg/I TCLP.
Beryllium 7440-41-7 0.82 0.02 mg/l TCLP.
Cadmium 7440-43-9 0.69 0.20 mg/I TCLP.
Chromium (Total) 7440-47-3 2.77 : 0.85 mg/l TCLP.
Lead 7439-92-1 0.69 0.75 mg/l TCLP.
Nickel
Selenium
Silver
7440-02-0 3.98 13.6 mg/l TCLP.
7782-49-2 0.82 5.7 mg/l TCLP.
7440-22-4 0.43 0.11 mg/l TCLP.
K100 ............. Waste leaching solution from acid leaching
of emission control dust/sludge from
secondary lead smelting.
Cadmium
Chromium (Total)
Lead 7439-92-1 .
7440-43-9 0.69 ,
7440-47-3 2.77
0.20 mg/l TCLP.
0.85 mg/l TCLP.
0.69 0.75 mg/l TCLP..
K115 Heavy ends from the purification of Nickel .
toluenedtamlne In the production of NA
tduenediamlne via hydrogenation of di-
n'rtrotoluone.
7440-02-0 3.98
NA CARBN; or CMBST
13.6 mg/l TCLP.
CMBST.
K161 ............. Purification solids (including filtration,
evaporation, and centrifugatton solids),
baghouse dust and floor sweepings
from the production of d'rthiocarbamate
acids and their salts.10.
Antimony .
Arsenic ....
7440-36-0 1.9
7440-38-2 1.9
Carbon disulfled ...
Dithiocarbamates
(total).
Lead
Nickel
Selenium
75-15-0 3.8 ....
NA 0.028
7439-92-1 0.69 ,
7440-02-0 3.98
7782-49-2 0.82
0.07 mg/l TCLP.
5.0 mg/l TCLP. -
4.8 mg/l TCLP.
28.
0.75 mg/l TCLP.
13.6 mg/l TCLP.
5.7 mg/l TCLP.
P013 .
Barium cyanide
Barium
Cyanides (Total)7
Cyanides (Ame-
nable)''.
7440-39-3 NA ..
57-12-5 1.2 ..
57-12-5 0.86
21 mg/I TCLP.
590.
30.
P073
P074
Nickel carbonyl
Nickel cyanide .
Nickel
Cyanides (Total7
Cyanides (Ame-
nable)7.
Nickel
7440-02-0 3.98
57-12-5 1.2 ..
57-12-5 0.86
13.6 mg/l TCLP.
590
30.
7440-02-0 3.98 13.6 mg/l TCLP.
P099 Potassium silver cyanide
Cyanides (Total)7
Cyanides (Ame-
nable)7.
Silver
57-12-5 1.2 ,... 590.
57-12-5 0.86 30.
7440-22-4 0.43 0.11 mg/l TCLP.
P103
P104
Setenourea ....
Silver cyanide
Selenium
Cyanides (Total)7
Cyanides (Ame-
nable)7.
Silver
7782-^19-2 0.82 5.7 mg/l TCLP.
57-12-5 1.2 590.
57-12-5 0.86 30.
7440-22-4 0.43 0.11 mg/l TCLP.
-------
Federal Register / Vol. 62, No. 91 / Monday. May 12, 1997 / Proposed Rules
26081
TREATMENT STANDARDS FOR HAZARDOUS WASTES—Continued
[Note: NA means not applicable]
Regulated hazardous constituent
Wastewaters
Nonwastewaters
Waste code Waste description and treatment/regu-
• latory subcategory'
Concentration in mg/ Concentration in mg/
Common name CAS* No. P; or technology k9« ""J6^"!?!1*1 as
code-' mQ" 'CLP ; or
technology code"
P11° Tetraethyl lead Lead 7439-92-1 0.69 0.75 mg/l TCLP.
* ' ' * * . ' * - ' . . , •
P114 Thallium selenite ...... Selenium 7782-49-2 0.82 5.7 mg/l TCLP.
* * ' * •* . '' *
U032 •—• Calcium.chromate ....:. Chromium (Total) 7440-47-3 2.77 0.85 rog/l TCLP.
, " * * * . - .
U051 Creosote * . * * ' • . -
Lead ....
7439-92-1 0.69 0.75 mg/l TCLP.
U146
H222Sa;;- •- Lead 7439-92-1 0.59 0.75 mg/i TCLP.
Lead phosphate Lead ., 7439-92-1 0.69 0.75 mg/l TCLP
..Leadsubacetate -Lead 7439-92-1 0.69 OTOmg/^TCLP
,U204 Selenium dioxide Selenium 7782-49-2 0 82
U205 Selenium sulfide Selenium 7782-49-2 0.82
5.7 mg/l TCLP
5.7 mg/l TCLP.
Footnotes to Treatment Standards Table 268.40: - • ~~~
261' DeS«*«°"S °f Treatment/Regulatory
COnStHuentS are deSCribed as a ««*-« °f * Arnica,
fta!ld!i;ds for wastewaters are expressed in mg/l and are based on analysis of composite samples
(See^CFR^Irt
unfcMOCFB
*" subse<'uent|y ^anaged in CWA, or CWA^quivalent systems are not subject to treat-
nonha2ardous and 1hen subsequently injected in a Class I SDWA well are not subject to treatment standards.
8- a"d> t*vae as 6""2^ by *e technolgy code BIODG, carbon adsor^ton as defined
CHOXDl °r C°mbUStton as defined a
equvaeUreatrnt unde268b)
L* 'lmited ^: (1) c01?11'"8"^ «"«« operating under 40 CFR 266, (2) combustion units permitted
COmbustlon unrts operating under 40 CFR 265, Subpart O, which have obtained a determi^tion of
12. Section 268.44 (a) and (h) are
revised to read as follows:
§ 268.44 Variance from a treatment
standard.
(a) EPA may grant a treatability
variance if:
(1) It is not physically possible to treat
the waste to the level specified in the
treatment standard, or by,the method
specified as the treatment standard. To
show that this is the case, the petitioner
must demonstrate that because the
physical or chemical properties of the
waste differs significantly from waste
analyzed in developing the. treatment
standard, the waste cannot be so treated;
or
(2) It is inappropriate to require the
waste to be treated to the level specified
in the treatment standard or by the
method specified as the treatment
standard, even though such treatment is
technically possible.
*****
(h) EPA may grant a treatability
variance if:
(1) It is not physically possible to treat
the waste to the level specified in the
treatment standard, or by the method
specified as the treatment standard. To
show that this is-the case, the petitioner
must demonstrate that because the
-------
26082
Federal Register / Vol. 62, No. 91 / Monday, May 12. 1997 / Proposed Rules
physical or chemical properties of the
waste differs significantly from waste
analyzed in developing the treatment
standard, the waste cannot be so treated;
or
(2) It is inappropriate to require the
waste to be treated to the level specified
In the treatment standard or by the
method specified as the treatment
Inorganic constituents" for antimony,
standard, even though such treatment is barium, beryllium, cadmium,
technically possible.
* * * * *
13. The universal treatment standards
chromium, lead, nickel, selenium,
silver, thallium, vanadium, and zinc to
read as follows:
lo. me universal ueduueiii. oKijiueuua ,
table in §268.48 is amended by revising §268.48 Universal treatment standards
the entries in the column under "II.
UNIVERSAL TREATMENT STANDARDS
[Note: NA means not applicable]
(a)
* * *
Regulated constituent common name
Wastewater
standard
CAS' No.
Concentration
in mg/l2
Nonwastewater
standard
Concentration in mg/
kg3 unless noted as
"mg/l TCLP"
It. Inorganic Constituents:
Antimony
7440-36-0
1.9 0.07 mg/l TCLP.
Barium «
BorytSum
Cadmium .................
Chromium (Total) ....
7440-39-3
7440-41-7
7440^-43-9
7440-47-3
1.2 21 mg/l TCLP.
0.82 0.02 mg/l TCLP.
0.69 0.20 mg/l TCLP.
2.77 0.85 mg/l TCLP.
Lead ....
7439-92-1
0.69 0.75 mg/l TCLP.
* *
2Snos
7440-02-0
7782-49-2
7440-22-4
* * ' *
7440-28-0
7440-62-2
7440-66-6
3.98
0.82
0.43
*
1.4
4.3
2.61
13.6 mg/l TCLP.
5.7 mg/l TCLP.
0.11 mg/l TCLP.
'*
0.20 mg/l TCLP.
1.6 mg/l TCLP. '
4.3 mg/l TCLP.
'CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical
with ffs salts and/or esters, the CAS number is given for the parent compound only.
^Concentration standards for wastewaters are expressed in mg/I and are based on analysis of composite samples.
^Except for Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concerrtratmn were established, in part,
based iSlndnerafion in units operated in accordance with the technical requirements of 40 CFR part 264, subpart O or 40 CFR part ^sub-
part (O. Tbased upOT combustfonin fuel substitution units operating in accordance with applicable technical requirements. A facility may compl
wHh these Ireatrnentstandards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are based .on analy-
^Cyanidfrbtal) and Cyanides (Amenable) for nonwastewaters are to be analyzed using Method 9010 or 9012, fount I in 'Test Methods
for Evakiafing Solid f Waste, Physical/Chemical Methods", EPA Publication SW-846, as incorporated by reference in 40 CFR 260.11, with a sam-
ple s!ze of 10 grams and a distillation time of one hour and 15 minutes. ^Kn-fnn af « oca 9m
^These constituents are not "underlying hazardous constituents" in characteristic wastes, according to the definition a* §268.2(i).
SBatwecn August 26, 1996, and August 26, 1997, these constituents are not "underlying hazardous constituents as defined at §268.2(i) ot
ihlsPart
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
14. The authority citation for Part 271
continues to read as follows:
Authoriiy: 4ZU.S.C. 9603; 33 U.S.C. 1321
and 1361.
Subpart A—Requirements for Final
Authorization
15. Section 271.10) 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, to read as
follows:
§ 271.1 Purpose and scope.
.0)
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Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules
26083
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 Phase
rule in the FEDERAL REGISTER IV Second Supplemental Pro-
[FR]. . ' posal.
[Insert FRpage numbers}.
[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 90 days from date of
publication of final rule].
[Insert date 2 years from date of
publication of final rule}.
Prohibition on land disposal of
TC-metal wastes and wastes
from mineral processing.
3004(g)(4)(c) and 3004(m)
3004 (m).
[Insert, date of publication of final
rule] [Insert FR volume and
page numbers}. [Same as
above]
*****
16. 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 it program by applying for
authorization for the requirements in
part 268 that are in effect as of (insert
effective date of final rule), provided a
State is authorized for Land Disposal .
Restrictions rules up to and including
those in effect as of May 8,1990.
(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;
(2) Copies of all applicable State
statutes and regulations; and
(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
that 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 on
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
section, unless a significant adverse
comment pertaining to the State •
program revision discussed in the
document 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
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Federal Register / Vol. 62, No. 91 / Monday, May 12, 1997 / Proposed Rules
publication, publish in the Federal
Register either:
(1) A withdrawal of the Immediate
final decision: or
(?) A document containing a response
to comments and either affirming that
the immediate final decision takes effect
or reversing the decision.
(FR Doc. 97-11637 Filed 5-9-97; 8:45 am]
BKUNQ CODE S380-W-P
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