Tuesday
May 26, 1998
Part II



Environmental

Protection Agency

40 CFR Parts 148, 261, 266, 268, and 271
Land Disposal Restrictions Phase IV:
Final Rule Promulgating Treatment
Standards for Metal Wastes and Mineral
Processing Wastes; Mineral Processing
Secondary Materials and Bevill Exclusion
Issues; Treatment Standards for
Hazardous Soils, and Exclusion of
Recycled Wood Preserving Wastewaters;
Final Rule
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Federal Register/Vol. 63, No.  100/Tuesday, May 26, 1998/Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 148,261,266,268, and
271
[EPA-F-98-2P4F-FFFFF; FRL-6010-5]
RIN2050AE05

Land Disposal Restrictions Phase IV:
Final Rule Promulgating Treatment
Standards for Metal Wastes and
Mineral Processing Wastes; Mineral
Processing Secondary Materials and
Bevill Exclusion Issues; Treatment
Standards for Hazardous Soils, and
Exclusion of Recycled Wood
Preserving Wastewaters

AGENCY: Environmental Protection
Agency.
ACTION: Final rule.

SUMMARY: This rule promulgates Land
Disposal Restrictions treatment
standards for metal-bearing wastes,
including toxicity characteristic metal
wastes, and hazardous wastes from
mineral processing. The set of standards
being applied to these wastes is the
universal treatment standards. These
standards are based upon the
performance of the Best Demonstrated
Available technologies for treating
these, or similar, wastes. This rule also
revises the universal treatment
standards for twelve metal constituents,
which means that listed and
characteristic wastes containing one or
more of these constituents may have to
meet different standards than they
currently do.
  In a related section regarding wastes
and secondary materials from mineral
processing, EPA is amending the rules
to define which secondary materials
from mineral processing are considered
to be wastes and potentially subject to
Land Disposal Restrictions. The
intended effect is to encourage safe
recycling of mineral processing
secondary materials by reducing
regulatory obstacles to recycling, while
ensuring that hazardous wastes are
properly treated and disposed. EPA also
is finalizing decisions on a set of
mineral processing issues wastes which
courts have been remanded to EPA.
These include retaining the Toxicity
Characteristic Leaching Procedure as the
test for identifying the toxicity
characteristic for mineral processing
wastes, and readdressing the regulatory
status of a number of miscellaneous
mineral processing wastes.
  This rule also amends the LDR
treatment standards for soil
contaminated with hazardous waste.
The purpose of this revision is to create
                        standards which are more technically
                        and environmentally appropriate to
                        contaminated soils than those which
                        currently apply.
                          Finally, this rule excludes from the
                        definition of solid waste certain
                        shredded circuit boards in recycling
                        operations, as well as certain materials
                        reused in wood preserving operations.
                        EFFECTIVE DATES: This final rule is
                        effective on August 24, 1998.
                          Compliance dates:
                        —For prohibition on underground
                          injection of certain wastes at 40 CFR
                          148.18: May 26, 2000;
                        —For definition of solid waste
                          provisions at 40 CFR 261.2,
                          261.4(a)(15), and 261.4(b): November
                          27, 1998;
                        —For exclusion of recycled wood
                          preserving wastewaters at 40 CFR
                          261.4(a)(9):May26, 1998;
                        —For prohibition on land disposal of
                          wastes from elemental phosphorus
                          processing and on mixed radioactive
                          wastes at 40 CFR 268.34(b): May 26,
                          2000; and
                        —For land Disposal Restrictions
                          treatment standards at 40 CFR 268.49
                          for soil contaminated with previously
                          prohibited wastes: May 26, 1998.
                        ADDRESSES: 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 docket information
                        number is F-98-2P4F-FFFFF. The RIC
                        is open from 9 a.m. to 4 p.m., Monday
                        through Friday, excluding federal
                        holidays. To review docket materials, it
                        is recommended that the public make
                        an appointment by calling (703) 603-
                        9230. The public may copy a maximum
                        of 100 pages from any regulatory docket
                        at no charge. Additional copies cost
                        $0.15/page. The index and some
                        supporting materials are available
                        electronically. See the "Supplementary
                        Information" section for information on
                        accessing them.
                        FOR FURTHER INFORMATION CONTACT : For
                        general information, contact the RCRA
                        Hotline at (800) 424-9346 or TDD (800)
                        553-7672 (hearing impaired). In the
                        Washington, D.C. metropolitan area, call
                        (703) 412-9810 or TDD (703) 412-3323.
                          For more detailed information on
                        specific aspects of this rulemaking,
                        contact 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,
                        contact Elaine Eby (703) 308-8449 or
                        Anita Cummings at (703) 308-8303. For
questions on land disposal restrictions
(LDR) treatment standards for mineral
processing wastes, radioactive mixed
wastes, and grab versus composite
sampling methods, contact Anita
Cummings at (703) 308-8303. For
information on treatment standards for
manufactured gas plant wastes, contact
Rita Chow at (703) 308-6158. Contact
Rhonda Minnick at (703)  308-8771 for
information on improvements and
corrections to the Land Disposal
Restrictions. For information on
secondary mineral processing materials
and Bevill issues, call Ashley Allen at
703-308-8419 or Stephen Hoffman of
the Industrial and Extractive Wastes
Branch at (703) 308-8413. For questions
on treatment standards for hazardous
soil, contact Elizabeth McManus of the
Permits and State Programs Division at
(703) 308-8657. Contact Stephen
Bergman of the Hazardous Waste
Identification Division at (703) 308-
7262 for questions on the exclusion for
wood preserving wastewaters. For
information on the capacity analyses,
contact Bill Kline at (703) 308-8440 or
C. Pan Lee at (703) 308-8478. 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 o
the Internet at http://www.epa.gov/
offices and regions/oswer.
Table of Contents
I. Introduction to the Phase IV Rule
II. Potentially Regulated Entities
III. Revised Land Disposal Restrictions (i.e.,
    Universal Treatment Standards) for
    Metal Constituents in all Hazardous
    Wastes, Including Toxic Characteristic
    Metals
  A. History of Metal Treatment Standards
  B. Applicability of Metal Treatment
    Standards
  C. Development of New Treatment
    Standards for Hazardous Wastes
    Containing Metals
  1. Measuring Compliance by Grab or
    Composite Sampling
  2. Development of Treatment Standards for
    Metal Wastes
  a. Final Universal Treatment Standard for
    Nonwastewater Forms of Antimony
  b. Treatment Standard for Wastewater
    Forms of Arsenic Waste
  c. Treatment Standards for Barium Waste
  d. Final Universal Treatment Standard for
   Nonwastewater Forms of Beryllium
   Waste

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  c. Treatment Standards for Cadmium
    Wastes
  f, Treatment Standards for Chromium
    Wastes
  g. Final Treatment Standards for Lead
    Wastes
  h. Treatment Standards for Wastewater and
    Notiwaste water Forms of Mercury Waste
  I. Final Universal Treatment Standard for
    Nonwastewater Forms of Nickel
  I. Final Treatment Standards for Selenium
    Wastes
  k. Final Treatment Standards for Silver
    Wastes
  1, Final Universal Treatment Standard for
    Nonwastewater Forms of Thallium
  m. Final Treatment Standard for
    Nonwastewater Forms of Vanadium In
    P119 and P120 Wastes
  n. Final Treatment Standard for
    Nonwastewater Forms of Zinc In K061
    Waste
  D. Use of TCLP to Evaluate Performance of
    Treatment Technology for Treating
    Hazardous Metal Constituents
IV. Application of Land Disposal Restrictions
    to Characteristic Mineral Processing
    Wastes
  A. Proposal, Comments, and Responses
  B. Clarification That Universal Treatment
    Standards Apply to Ignitable, Corrosive,
    and Reactive Characteristic Mineral
    Processing Wastes
  C. Use of TCLP to Evaluate Performance of
    Treatment Technology for Treating
    Hazardous Metal Constituents in Mineral
    Processing Wastes
V. Other LDR Issues That May Affect Both
    Toxic Characteristic Metal Wastes and
    Characteristic Mineral Processing Wastes
  A. Treatment Standards for Soil
    Contaminated with TC Metal Wastes or
    Characteristic Mineral Processing Wastes
  1. Summary.
  2, Discussion of Today's Approach
  B. LDR Treatment Standards for
    Manufactured Gas Plant Waste (MGP)
  1. Summary
  2. Background
  3. Public Comments and EPA Responses
  C. Treatment Standards for Debris
    Contaminated with Phase IV wastes
  D. Treatment Standards for Radioactive
    Mixed Waste
  1. Background
  2. Proposal and Issues Discussed by
    Comments
  E. Underlying Hazardous Constituents in
    TC Metal Wastes and Characteristic
  Mineral Processing Wastes
  1. Background
  2. Discussion of Today's Approach
VI, Issues Relating to Newly-Identified
    Mineral Processing Wastes
  A. Introduction
  B. Overview of Today's Rule
  1. Issues Related to Which Mineral
    Processing Secondary Materials are
    Subject to LDRs
  2, Issues Related to Whether Materials are
    Within the Scope of the Bevill Exclusion
  a. Use of Non-Bevill Materials as
    Feedstocks to Operations Whose Waste
    Is Bevill Exempt
  b. Uniquely Associated
  c. Bevtll Mixtures
  d. Response to Court Remands Dealing
    with Other Issues Relating to Mineral
    Processing and to Scope of Bevill
    Exclusion
  e. Reexamination of Bevill Exempt Wastes
  C. Analysis of and Response to Public
    Comments
  1. Jurisdiction
  a. EPA Authority to Regulate Mineral
    Processing Secondary Materials
    Reclaimed Within the Industry
  b. Are There Limits on Jurisdiction?
    (Response to Public Interest Group
    Position)
  c. Immediate Reuse
  d. Relation to the Current Regulatory
    Definition of Solid Waste
  e. Otherwise Excluded Mineral Processing
    Units Which Serve as Disposal Units
  2. Scope of This Rule
  a. Mineral Processing Wastes Covered by
    This Rule
  b. Wastewater Treatment Surface
    Impoundments
  c. Materials Outside the Scope
  3. Mineral Processing Secondary Material
    Volumes and Environmental Damages
  a. Volume of Secondary Materials and
    Large Volume Exemption
  b. Reliability of Damage and
    Environmental Release Reports
  4. Conditions to the Exclusion
  a. Legitimacy
  b. Design and Construction Standards
  c. Units Eligible for Conditional Exclusion
    and Conditions Attached to Such Units
  d. Speculative Accumulation
  e. One Time Notification
  5. Bevill Related Issues
  a. Uniquely Associated
  b. Addition of Mineral Processing
    Secondary Materials to Units Processing
    Bevill Raw Materials
  c. Bevill Mixture Rule and Disposal
  d. Remining
  6. Responses to Court Remands
  a. Applicability of the Toxicity
    Characteristic Leaching Procedure
    fTCLP)  to Mineral Processing Wastes
  b. Remanded Mineral Processing Wastes
  c. Lightweight Aggregate Mineral
    Processing Wastes
  d. Mineral Processing Wastes From the
    Production of Titanium Tetrachloride
VII. LDR Treatment Standards for Soil
VIII. Improvements and Corrections to LDR
    Regulations
  A. Typographical Error in §261.1 (c) (10)
  B. Typographical Error in §268.4(a)(2)(ii)
    and(a)(2)(iii)
  C. Clarifying Language Added to §268.7
  D. Correction to  Section 268.40—
    Treatment Standards for Hazardous
    Waste
  E. Removal of California List Requirements
    and de minimis Provision from §268.42
  F. Typographical Errors and Outdated
    Cross-references in §268.45
  G. Correction to  § 268.48 to Explain That
    Sulfides are not Regulated as Underlying
    Hazardous Constituents in Characteristic
    Wastes
  H. Cross References in § 268.50(e)
  I. Mistakes in Appendices VII and VIII
  J. Clarification Regarding Point of
    Generation of Boiler Cleanout Rinses
IX. Capacity Determination for Phase IV Land
    Disposal Restrictions
  A. Introduction
  B. Available Capacity for Surface Disposed
    Wastes
  1. Stabilization
  2. Vitrification
  3. Metal Recovery
  4. Thermal Treatment
  C. Required Capacity and Variance
    Determination for Surface Disposed TC
    Metal Wastes
  D. Required Capacity and Variance
    Determination for Surface Disposed
    Mineral Processing Wastes
  E. Phase IV Mineral Processing and TC
    Metal Wastes Injected Into Underground
    Injection Control (UIC) Class I Wells
  F. Mixed Radioactive Wastes
  G. Summary
X. Change to Definition of Solid Waste to
    Exclude Wood Preserving Wastewaters
    and Spent Wood Preserving Solutions
    From RCRA Jurisdiction
  A. Summary of the Proposal
  B. Modifications to the Proposal
  1. Notification
  2. Conditions Under Which the Exclusion
    Would No Longer Apply
  C. Other Comments
  1. Oil Borne Facilities
  2. Application of the Conditions to Units
    Other Than the Drip Pad
  3. Relationship of Today's Exclusion to
    Previous Industry Exclusions
  4. Units That May Be Visually or
    Otherwise Determined to Prevent
    Release
  5. CESQG Status
  D. State Authorization
XI. Clarification of the RCRA Exclusion of
    Shredded Circuit Boards
XII. Regulatory Requirements
  A. Regulatory Impact Analysis Pursuant to
    Executive Order 12866
  1. Methodology Section
  2. Results
  B. Regulatory Flexibility
  C. Unfunded Mandates Reform Act
  D. Paperwork Reduction Act
XIII. Environmental Justice
  A. Applicability of Executive Order 12898
  B. Potential Effects
XIV. State Authority
  A. Statutory Authority
  B. Effect on State Authorization
  C. Authorization Procedures
  D. Streamlined Authorization Procedures
XV. Submission to Congress and General
    Accounting Office
XVI. Executive Order 13045: Protection of
    Children from Environmental Health
    Risks and Safety Risks
XVII. National Technology Transfer and
    Advancement Act

I. Introduction to the Phase IV Rule

  In the 1984 Hazardous and Solid
Waste Amendments (HSWA) to the
Resource Conservation and Recovery
Act (RCRA), Congress specified that
land disposal of hazardous waste is
prohibited unless the waste first meets

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treatment standards established by EPA
or is disposed in units from which there
will be no migration of hazardous
constituents for as long as the waste
remains hazardous. The HSWA
amendments require 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.
  Today's Phase IV final rule is the
latest in a series of LDR rules that
establish treatment standards for wastes
identified or listed as hazardous after
the date of the  1984 amendments. (See
RCRA §3004(g)(4)). EPA proposed the
Phase IV rule in four Federal Register
notices, and issued three NODAs setting
out additional data relevant to this
proceeding. In  two Federal Register
notices prior to today's, EPA
promulgated various rules proposed in
the Phase IV proposals: treatment
standards for wood preserving wastes,
paperwork reduction, and clarification
of treatability variances. Today's final
rule promulgates regulations addressing
most of the remaining issues discussed
                         in Phase IV proposals and NODAs. The
                         table at the end of this introduction lists
                         references for all the Phase IV Notices,
                         plus others cited frequently in the
                         preamble.
                           This final Phase IV preamble contains
                         five major, interrelated sections. The
                         first section explains the new land
                         disposal restrictions treatment standards
                         for wastes identified as hazardous
                         because they exhibit the toxicity
                         characteristic for metals (referred to as
                         "TC metal wastes"). The section also
                         revises the universal treatment
                         standards (UTS) for 12 metal
                         constituents in all hazardous wastes.
                         The TC metal wastes will now be
                         required to meet the universal treatment
                         standards as do most other hazardous
                         wastes. The second major preamble
                         section establishes the prohibition on
                         land disposal plus treatment standards
                         for a particular type of newly identified
                         hazardous waste: mineral processing
                         waste that exhibits a characteristic of
                         hazardous waste. The third section
                         addresses additional issues affecting
                         both TC metal wastes and characteristic
                         mineral processing wastes. The fourth
section amends the rules defining when
secondary materials being recycled are
solid wastes. It states that secondary
materials from mineral processing
which are generated and reclaimed
within that industry are  not solid wastes
unless they are managed in land
disposal units before being reclaimed.
Such materials are not subject to
regulation as hazardous  wastes. That
part of the preamble also addresses
other issues related to mineral
processing. The final major preamble  •
section promulgates amended treatment
standards for soil that contains
hazardous waste or which exhibits a
characteristic of hazardous waste.
  Today's rule also includes two brief
sections on hazardous waste issues
unrelated to the major sections. One
clarifies that a previously-promulgated
exclusion from hazardous waste
regulation for recycled shredded circuit
boards also applies to whole circuit
boards under certain conditions. The
other section promulgates an exclusion
from RCRA jurisdiction for certain wood
preserving wastewaters and spent wood
preserving solutions when recycled.
                                TABLE OF SELECTED LDR FEDERAL REGISTER NOTICES
       Common name
                                       Title of rule in FEDERAL REGISTER
                                                                                         Date
                                                                                                            Citation
Third Third LDR Final Rule

Phase II LDR Proposal	

Phase III LDR Proposal	
Phase IV Original Proposal
Phase IV First Supplemental
  Proposal.
HWIR Media Proposal

Phase IV NODA #1 ....
Phase IV NODA #2
Phase IV LDR Wood Preserv-
  ing Final Rule.
Phase IV Second Supple-
  mental Proposal.
             Land Disposal Restrictions for Third Third Scheduled Wastes;
               Rule.
             Land Disposal Restrictions  for Newly Identified  and Listed
               hazardous Waste and hazardous soil; Proposed Rula
             Land  Disposal  Restrictions  Phase  III:  Decharacterized
              . Wastewaters, Carbamate and Organobromine Wastes, and
               Spent Potliners; Proposed Rule.
             Land Disposal Restrictions—Phase IV:  Issues  Associated
               With Clean Water Act Treatment Equivalertcy, and Treat-
               ment Standards for Wood Preserving Wastes  and  Toxicity
               Characteristic Metal Wastes; Proposed Rula
             Land Disposal Restrictions—Clarification  of Bevill Exclusion
               for Mining Wastes, to the Definition of Solid Waste  for Min-
               eral Processing Wastes,  Treatment Standards for Char-
               acteristic  Mineral  Processing Wastes,  and  Associated
               Issues.
             Requirements for Management of  Hazardous Contaminated
               Media.
             Land Disposal  Restrictions Phase IV Proposed Rule—Issues
               Associated With Clean  Water Act Treatment Equivalency,
               and Treatment Standards for Wood Preserving Wastes and
               Toxicity Characteristic Metal Wastes; Notice of Data Avail-
               ability.
             Land Disposal  Restrictions—Phase IV: Treatment Standards
               for Characteristic Metal Wastes; Notice of Data Availability
             Land Disposal Restrictions Phase IV: Treatment Standards for
               Wood Preserving Waste, Paperwork Reduction and Stream-
               lining, Exemptions from  RCRA for Certain Processed Mate-
               rials; and Miscellaneous Hazardous Waste Provisions; Final
               Rule.
             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
June 1, 1990	

September 14,1993

March 2, 1995 	
August 22, 1995 .
January 25, 1996
April 29, 1996 .

May 10, 1996 .




March 5,1997

May 12, 1997 .




May 12, 1997 .
55 FR 22520.

58 FR 48092.

60 FR 11702.


60 FR 43654.



61 FR 2338.




61 FR11804.

61 FR 21417.




FR 62 10004.

62 FR 25998.




62 FR 26041.

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                          TABLE OF SELECTED LDR FEDERAL REGISTER NOTICES—Continued
Common name
Phaso IV NODA S3


Title of rule in FEDERAL REGISTER
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;
Notice of Data Availability.
Clarification of Standards for Hazardous Waste Land Disposal
Restriction Treatment Variances.
Date
November 10, 1997 	
Decembers, 1997 	

Citation
62 FR 60465.
62 FR 64504.

                                            II. Potentially Regulated Entities
    Entities potentially regulated by this final  rule vary according to the section of the rule. The following table show
the Industry  categories that may be regulated according  to each major section  of the rule. The table  is  not  intended
to be exhaustive  or definitive with respect to  every case-specific circumstance. Rather, it is a  general guide for readers
regarding  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, and  failure  to  mention  them in the table should not be taken as any
type of regulatory determination on the part of the Agency.

                        TABLE OF ENTITIES POTENTIALLY AFFECTED BY THE PHASE IV FINAL RULE
         Section of the rule
                     Category
      Examples of entities potentially affected
 LDR treatment standards for TC metal
  hazardous wastes, characteristic min-
  eral  processing  wastes,  and other
  metal-bearing wastes.
LDR treatment standards for hazardous
  soN.
Mineral Processing Secondary Materials
Exclusion for Recycled Wood Preserv-
  ing Process Wastewatera
Generators of Toxicity Characteristic (TC) metal hazardous
  wastes (D004—D011), characteristic  mineral  processing
  waste, or any hazardous waste required to meet the LDR
  treatment standard for antimony, barium, beryllium, cad-
  mium, chromium, lead, nickel, selenium, silver, thallium,
  vanadium, or zinc.
Facilities that treat and/or dispose of TC metal hazardous
  wastes, characteristic  mineral  processing  wastes, and
  other metal-bearing hazardous wastes.
Entities managing hazardous soil	
Facilities that generate, store, and/or recycle secondary ma-
  terials from primary mineral processing.
Wood Preserving Facilities
      Facilities in the following industries: pri-
        mary mineral processing, chemical
        manufacturers, pharmaceutical  pro-
        ducers, paint  producers, manufactur-
        ers of motor vehicle  parts, blast fur-
        naces and  steel mills, metal plating
        and  polishing, and aircraft parts and
        equipment.
      Hazardous waste  treatment and dis-
        posal facilities.

      Private or public  parties remediating
        sites containing hazardous soil
      Copper smelters,  gold refiners,  and
        other primary metals producers that
        return wastestreams to units for addi-
        tional recovery
      Facilities  that generate  and  reclaim
        drippage and  wastewaters on-site
        from the wood processing industry.
III. Revised Land Disposal Restrictions
(I.e., Universal Treatment Standards)
for Metal Constituents in all Hazardous
Wastes, Including Toxic Characteristic
Metals
Summary

  There are two purposes to today's
new treatment standards for metal-
containing wastes. First, EPA is revising
the numerical standards because new
data are available on which to base more
accurate standards. Second, EPA is
including a new set of wastes in the
current treatment standard regime,
continuing EPA's efforts to apply the
same LDR treatment standards when
technically and legally possible. (In a
subsequent section of this rule, EPA is
expanding the treatment standard
regime to Include yet another set of
wastes. These are characteristic mineral
processing wastes that are not currently
subject to land disposal restrictions.)
       The numerical standards that EPA is
     revising are the universal treatment
     standards (UTS) for 12 metal
     constituents. The new UTS will apply to
     nonwastewater forms of any listed or
     characteristic hazardous waste that is
     already required  to meet the UTS for
     those constituents in the waste. The
     revised UTS are less stringent for 7
     constituents, and more stringent for 5.
     The rule does not affect the UTS for
     wastewater forms of these wastes, and
     does not change the UTS for any other
     constituents, including any of the
     organics.
       The new set of wastes that EPA is
     bringing into the  current LDR regime is
     the group of 8 wastes known as TC
     metal wastes—wastes identified as
     hazardous because they exhibit the
     toxicity characteristic due to the
     presence of the metals enumerated in
     261.24 (Waste codes D004-D011). These
     are wastes that exhibit the toxicity
characteristic because of high toxic
metal content. By today's rule, that key
metal must be treated to the UTS for
that metal. Furthermore, any underlying
hazardous constituents (UHCs) must be
treated to UTS levels as well, whether
these UHCs are organics or metals. Both
wastewater and nonwastewater forms of
the TC metal wastes are affected by
today's rule, except for arsenic, for
which only the wastewater forms are
affected.
  Hazardous wastes that exhibit both
the TC for metals and the predecessor
characteristic based on the Extraction
Procedure (EP) are presently only
required to be treated to reduce metal
levels to below the characteristic level.
Today's rule, for the most part, will
require additional treatment of these
metal constituents before land disposal
can occur.
  The Agency also finds that the
treatment standards established in

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today's rule are not established below
levels at which threats to human health
and the environment are minimized.
See Hazardous Waste Treatment
Council v. EPA, 886 F.2d 355, 362 (D.C.
Cir. 1990). That case held that the
statute can be read to allow either
technology-based or risk-based  LDR
treatment standards, and further held
that technology-based standards are
permissible so long as they are not
established "beyond the point at which
there is no 'threat' to human health or
the environment." Id. at 362. EPA's
finding that today's standards are not
below a "minimize threat" level is
based on the Agency's inability at the
present time to establish concentration
levels for hazardous constituents which
represent levels at which threats to
human health and the environment are
minimized. As the Agency has
explained a number of times,
determining these levels on a national
basis—which requires determination of
relevant exposure pathways and
potential receptors for all hazardous
constituents in hazardous wastes, with
all the attendant uncertainties involved
in such a national determination—has
not yet proven possible. See, e.g., 55 FR
at 6642 (February 26, 1990). Thus, the
Agency continues to find that
technology-based standards remain the
best approach for the national treatment
standards since such standards
eliminate as much of the inherent
uncertainty of hazardous waste land
disposal  and so fulfill the Congressional
intent in  promulgating the land disposal
restrictions provisions. Id. However, the
Agency believes that it may be possible
to make valid determinations that
threats to human health and the
environment are minimized on an
individualized basis in  the context of
certain site-specific remediations, and
accordingly has provided in this rule a
variance  from technology-based
treatment requirements for
contaminated soils generated in certain
remediations. See section VII below.

A. History of Metal Treatment
Standards
  Land disposal of hazardous wastes is
largely prohibited by statute, unless the
wastes meet the applicable treatment
standards established by EPA prior to
land disposal. See RCRA sections
3004(d)-(g), (m);  (the exception for no-
migration units is not relevant to today's
rule). Until today's rule, metals that
were characteristic because they failed
the Toxicity Characteristic Leaching
Procedure (TCLP) and-also failed the
Extraction Procedure (EP)—which
preceded the use of the TCLP as a
means of identifying whether a waste
                        exhibited a characteristic of hazardous
                        waste—were subject to treatment
                        standards at levels equal to the TC
                        levels (55 FR 22520, June 1, 1990). (Note
                        that wastes that were characteristic
                        according to the TCLP but did not fail
                        the EP were considered, until
                        promulgation of today's rule, to be
                        newly identified wastes, and were not
                        subject to the LDR requirements.
                        Today's rule makes these wastes subject
                        to LDR). However, the TC levels are
                        typically higher than those treatment
                        levels for which threats posed by land
                        disposal of the wastes are minimized.
                        (Waste Management v. EPA, 976 F.2d 2,
                        13-14/26-27, 32 (D.C. Cir.  1992).
                        Consequently, treatment to levels lower
                        than the characteristic levels normally is
                        required. Id.
                          In an effort to make treatment
                        standards as uniform as possible while
                        adhering to the fundamental
                        requirement that the standards must
                        minimize threats to human health and
                        the environment, EPA developed the
                        UTS. Under the UTS, whenever
                        technically and legally possible, the
                        Agency adopts the same technology-
                        based numerical limit for a hazardous
                        constituent regardless of the type of
                        hazardous waste in which the
                        constituent is present (see 40 CFR
                        268.40; and 59 FR 47982, September 19,
                        1994). In the original Phase IV proposal,
                        EPA proposed to apply the metal  UTS,
                        as measured by the TCLP (60 FR 43582,
                        August 22,  1995; see 40 CFR 261.24), to
                        all TC metal wastes. The TCLP measures
                        the possibility that a waste may leach
                        toxic metals above a designated
                        concentration level under certain
                        assumed disposal conditions, and so is
                        a measure of the potential mobility of
                        toxic metals in a waste.
                          Commenters in response to the
                        original proposal took issue with the
                        Agency's use of data previously used to
                        establish metal UTS as a basis for
                        establishing the treatment standards for
                        characteristic metal wastes. The
                        commenters raised three basic issues
                        with regard to the data transfer. First,
                        they said that characteristic metal
                        wastes are extremely variable and the
                        data used to calculate the treatment
                        standards were not representative of the
                        diversity of TC metal wastes. Second,
                        the commenters said that although two
                        treatment technologies—high
                        temperature metals recovery (HTMR)
                        and stabilization—were determined to
                        be Best Demonstrated Available
                        Technology (BOAT), the current metals
                        UTS were based solely on HTMR, a
                        technology not commercially available
                        for many TC metal wastes. Finally,
                        commenters asserted that individual
                        metal UTS values  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 more fully
characterize the diversity of treatment of
these nonwastewaters. 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.
While extensive, the data unfortunately
was based on composite samples and
could not be used as the basis for
treatment standards (see USEPA, Final
Best Demonstrated Available
Technology (BOAT) Background
Document for Quality Assurance/
Quality Control Procedures and
Methodology, Office of Solid Waste,
October 23, 1991 and 62 FR 26041 for
a discussion of grab and composite
sampling).
  The Agency, however, was convinced
that additional data were needed to
further assess the treatment of TC metal
nonwastewaters. During September
1996, EPA conducted site visits at three
hazardous waste treatment facilities and
collected additional treatment
performance data. One facility was a
large commercial TSDF that employed
conventional stabilization techniques to
treat a wide array of inorganic metal
wastes. 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.
  Treatment data were collected for the
following types of hazardous waste:
mineral processing waste, baghouse
dust, battery slag, soils, pot solids,
recycling by-products, and sludge. See
the memorandum, Final Revised
Calculation of Treatment Standards
Using Data Obtained From Rollins
Environmental's Highway 36
Commercial Waste Treatment Facility
and GNB's Frisco, Texas Waste
Treatment Facility, March 10, 1997 and
the memorandum, Transferability of
UTS to Mineral Processing Wastes,
January 28, 1997 for a complete
description of the waste constituents
and concentrations. Most of the wastes
contained multiple metals in various
concentrations while some had

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              Federal Register/Vol. 63, No. 100/Tuesday,  May 26, 1998/Rules and Regulations
                                                                   28561
significant concentrations of typically
two metal combinations, including lead
and cadmium, barium and lead, and
chromium and antimony. In addition,
between October 1994 and December
1995, the Agency obtained performance
data from one HTMR facility; (other
HTMR data became available very late
in 1997). The assessment of the new
data sets began with the calculation of
treatment standards for each of the two
data sets representing stabilization and
HTMR. The same methodology,
sometimes called "C 99," and used in
past LDR rulemakings, was used to
calculate the treatment levels (see 56 FR
41164, August 18.1991. and the BOAT
Background  Document for K061, dated
August, 1991). Next, the Agency
compared the treatment levels for
stabilization verses HTMR. Based on
this comparison, the Agency selected
the highest level for each metal as the
proposed UTS to allow for waste and
process variability and detection limit
difficulties. This approach is consistent
with the legislative goal of providing
substantial treatment through standards
that are achievable by an array of well-
performing, available treatment
technologies. See 130 Cong. Rec. S 9184
(Dally ed., July 25,1984) (statement of
Senator Chafee).
  As a result, the Agency issued a
Second Supplemental Proposal on May
12. 1997 (62 FR 26041). In it. EPA
proposed to change the numerical limits
for all nonwastewater wastes containing
the following metal constituents:
antimony, barium, beryllium, cadmium,
chromium, lead, nickel, selenium,
silver, and thallium. (62 FR at 26047.
May 12,1997). The Agency also
reproposed to change the numerical
limits for vanadium in PI 19 and P120
nonwastewaters, and for zinc in K061
nonwastewaters. (62 FR at 26047, May
12, 1997). EPA also proposed these
same UTS treatment standards for TC
metal wastes identified as hazardous
due to concentrations of barium,
cadmium, chromium, lead, selenium
and silver.
  The Agency would like to correct in
today's rule a prior error that was
discovered in calculating the metals
treatment levels using the HTMR
treatment data. As previously stated, in
the Second Supplemental and in today's
preamble, in determining the treatment
levels for each metal constituent, the
Agency compared the treatment
standards calculated with data from
HTMR and stabilization. Based on this
comparison, the highest level for each
metal was chosen as the treatment
standard. In reviewing the calculations
from the HTMR data set. the Agency
discovered an error in the calculations.
When applying the methodology
presented in USEPA, "Final Best
Demonstrated Technology (BOAT)
Background Document for Quality
Assurance/Quality Control Procedures
and Methodology," dated October 23,
1991, it was discovered that the Agency
failed to conduct a "Z-score test" to
remove any outliers—data that is either
so high or so low that it is not
considered to be representative of the
population from which the data are
drawn. EPA uses this statistical method
to confirm that certain data do not
represent treatment by a well-operated
system, or reflect anomalously low
levels which are not typically
achievable. This error was found to have
occurred only in the calculation of the
treatment standards based on the
performance of HTMR; the treatment
standards based on the performance of
stabilization were properly calculated.
The proposed treatment standards for
cadmium, chromium, nickel, and silver
were affected. The application of the Z-
score outlier test resulted in 2 data
points out of 40 being eliminated as
outliers for both cadmium and
chromium. For nickel, 5 out of 122  data
points were identified as outliers.
  For silver, 3 out of 114 data points
were identified as outliers. Three of the
resulting, calculated treatment
standards changed slightly and are
slightly more stringent than the
proposed standards: cadmium from
proposed 0.20 to corrected 0.11 mg/L
TCLP; chromium from proposed 0.85 to
corrected 0.60 mg/L TCLP; and nickel
from proposed 13.6 to corrected 11
mg/L TCLP. Silver, on the other hand,
changed from the proposed 0.11 mg/L
TCLP to a corrected, slightly less
stringent 0.14 mg/L TCLP. (Note: In re-
calculating this standard, the Agency
added an additional 74 data points
which were submitted by the INMETCO
Company (a high temperature metal
reclaimer) in their comments to the May
12 supplemental proposal.) The Agency
believes that these re-calculations are
not significant because these four
revised standards are each still
achievable. See Memorandum,
"Calculation of Universal Treatment
Standard (UTS) for HTMR Residues
Using Data Submitted by Horsehead
Research Development (HRD) Co., Inc.
And INMETCO," December 17, 1997.

B. Applicability of Metal  Treatment
Standards
  As noted earlier, today's rule finalizes
LDR treatment standards in two ways.
First, it revises the UTS levels for 10
metal constituents in nonwastewater
forms of hazardous wastes. The 10
include antimony, barium, beryllium,
cadmium, chromium, lead, nickel,
selenium, silver, and thallium. These
treatment standards will replace the
existing UTS values. In addition, EPA is
applying UTS for the first time to 8 TC
metal wastes: arsenic, barium,
cadmium, chromium, lead, mercury,
selenium, and silver. The UTS apply to
both wastewater and nonwastewater
forms of the wastes (except for TC
arsenic wastes, for which the UTS apply
to wastewater forms only), and to both
organic and metal underlying hazardous
constituents in them. No TC metal
wastes have had to meet standards for
underlying hazardous constituents
before today, and wastes exhibiting only
the TC and not the EP were not yet
prohibited. (Note, some subcategories of
mercury and arsenic TC metal wastes
have treatment methods requiring use of
a specified technology, and are not
affected by today's rule.) The Agency is
also adjusting the treatment standards
for vanadium in P019 and P020
nonwastewaters as well as zinc in K061
nonwastewaters.
  The metal treatment standards being
promulgated today have broad
applicability. They apply to the
following metal-containing hazardous
wastes: (1) characteristic metal wastes,
including both the newly identified
wastes that, heretofore, were not
prohibited from land disposal; and
metal wastes that were identified as
hazardous under the predecessor
leaching protocol, the Extraction
Procedure (EP), which remain
hazardous because they also exhibit the
TC by the TCLP; (2) mineral processing
wastes which exhibit the toxicity
characteristic for metal (this is actually
a subset of wastes in (1) above); (3)
listed hazardous wastes which have
metal constituents; (4) underlying
hazardous constituents (UHCs) that are
metals in any characteristic hazardous
waste (including mineral processing
waste which exhibit a characteristic)
that is disposed in other than a Clean
Water Act (CWA) or CWA-equivalent
wastewater treatment system (see 40
CFR 268.2(i); 59 FR 47982, September
19,  1994); and (5) radioactive wastes
mixed with the wastes mentioned in
(l)-(4) above.

C. Development of New Treatment
Standards for Hazardous Wastes
Containing Metals

1. Measuring Compliance by Grab or
Composite Sampling
  As explained in the May 12, 1997
Second Supplemental Phase IV
proposal, EPA establishes treatment
standards using data obtained by grab
sampling, not composite sampling, and

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28562        Federal Register/Vol.  63, No. 100/Tuesday,  May 26,  1998/Rules and Regulations
likewise assesses compliance with these
standards using grab sampling. 62 FR at
26047. This approach was sustained by
the D.C. Circuit Court of Appeals in
Chemical Waste Management v. EPA,
976 F. 2d at 34, and EPA did not and
is not reopening the issue in this
proceeding. The Agency has now
obtained requisite grab sampling data.
As a result, the treatment standards
promulgated in this rule are all based
upon treatment performance that was
measured through the use of grab
sampling. All compliance likewise will
be based on grab sampling.

2. Development of Treatment Standards
for Metal Wastes
  All of the metals described below  are
on the UTS list and some are also TC
metals. This section discusses
development of both the TC and UTS
treatment standard levels. The Agency
is presenting the metal treatment
standards alphabetically by constituent.
Depending on the constituent, one or
more treatment standards is discussed.
For example in the section entitled,
"Treatment Standards for Barium
Waste," the Agency discusses the
promulgation of three treatment
standards: (1) 21 mg/L TCLP for
nonwastewater forms of D005 waste
(based on the UTS); (2) 1.2 mg/L for
wastewater forms of D005 waste (also
based on the UTS); and (3) a revised
UTS of 21 mg/L TCLP for barium
nonwastewaters. If a metal constituent
is not one of the TC metals, its presence
cannot be the basis for determining if a
waste exhibits the toxicity
characteristic—but it could be an
underlying hazardous constituent in the
waste, in which case that constituent
would need to meet the standard for
that metal in today's rule before the
waste could be land disposed.
  a. Final Universal Treatment Standard
for Nonwastewater Forms of Antimony.
The Agency proposed in the Second
Supplemental (62 FR 26041, May 12,
1997), to change the UTS for
nonwastewaters containing antimony
from 2.1 mg/L TCLP to 0.07 mg/L TCLP.
This proposed change was a result of
new data collection efforts conducted by
the Agency to gather performance data
that was representative of the diversity
of metal-containing wastes.
  In response, the Agency received
several comments. Two commenters
supported the proposed change;
however the remaining commenters
argued against the proposed level for
antimony of 0.07 mg/L TCLP for a
number of reasons. One commercial
waste management facility stated that
very few of the waste streams they treat
using conventional stabilization
techniques, including furnace ash,
incinerator ash, scrubber brine sludge,
furnace baghouse dust, and stripper
rinse waters, would meet the proposed
standard. The commenter submitted 48
data points supporting its claim. A third
commenter stated that meeting the
standard would significantly increase
their compliance costs. Another stated
that commercial stabilization techniques
were not capable of meeting the
proposed UTS for antimony. In  general,
these commenters suggested a higher
UTS for antimony in the range of 1.3
mg/L TCLP to 2.98 mg/L TCLP.
  In response to the commenters'
concerns regarding the difficulty in
treating antimony wastes, the Agency
has conducted a thorough review of its
BOAT data set and has determined that
while it represents a diverse collection
of waste streams containing metals, the
concentration of antimony in the 9 data
points used to calculate the proposed
standard may not be representative of
the most difficult to treat antimony
waste. The data used by the Agency to
calculate the proposed UTS of 0.07 mg/
L TCLP, showed a range of antimony
concentrations in the untreated waste of
between 0.2440 mg/L TCLP and 16.1
mg/L TCLP. While the Agency,  at  the
time, believed that these data were
sufficient to establish a treatment
standard, new data submitted by a
commercial hazardous waste treatment
facility provide a compelling argument
to amend this standard. The new data
consist of 48 additional data points
representing various multiple metal
waste streams, including incinerator or
furnace ash, scrubber brine sludge, lab
pack waste, stripper rinse water and
baghouse dust. These wastes have all
been treated with conventional
stabilization techniques and meet the
proposed UTS values for all metal
constituents except for antimony.  The
Agency has reviewed the data, the
treatment technology, and the QA/QC
information submitted by the
commenter and believes that the data
should be incorporated into the existing
BOAT data set. After doing so, the
Agency recalculated the treatment
standard for antimony nonwastewaters
and is today promulgating a revised
standard of 1.15 mg/L TCLP. All data
available to the Agency indicate that the
revised treatment standard for antimony
nonwastewaters can be achieved by
either stabilization or HTMR processes
and addresses the commenter's
concerns.
  b. Treatment Standard for Wastewater
Forms of Arsenic WastaThe Agency
proposed in the original Phase IV
proposal (60 FR 43683, August 22,
1995), to change the treatment standard
for wastewater forms of toxicity
characteristic arsenic (D004) waste from
the characteristic level of 5.0 mg/L
established in the Third Third rule (55
FR 22520 June 1, 1990) to the previously
promulgated UTS for arsenic
wastewaters of 1.4 mg/L. The Agency
did not propose to change the treatment
standard for nonwastewater forms of
toxicity characteristic arsenic (D004)
waste in that the UTS of 5.0 mg/L TCLP
was the same as the TC level. The
Agency received no comment on the
proposed change to D004 wastewaters.
Therefore, the Agency is today
promulgating as proposed the UTS
standard of 1.4 mg/L for D004
wastewaters.
  c. Treatment Standards for Barium
Waste, (i) Treatment standards forTC
Barium (D005) Waste. In 60 FR 43684
(August 22, 1995), EPA proposed to
change the treatment standards for
wastewater forms of TC metal barium
waste (D005) from the characteristic
level of 100 mg/L (established in the
Third Third rule, 55 FR 22520, June  1,
1990) to the previously promulgated
UTS for barium of 1.2 mg/L. Likewise,
EPA proposed for D005 nonwastewaters
a change from the characteristic level of
100 mg/L TCLP (55 FR 22520, June 1,
1990) to the previously promulgated
UTS of 7.6 mg/L TCLP. In support of
these revised  treatment standards, the
Agency had performed a comprehensive
re-evaluation of the available treatment
performance data from wastes
containing significant concentrations of
barium.
  For D005 wastewaters, the Agency
determined that the existing UTS level
for barium (1.2 mg/L) was appropriate,
based on the performance of lime
conditioning followed by sedimentation
and filtration  as BOAT. For D005
nonwastewaters, the Agency determined
that the existing UTS level of 7.6 mg/L
TCLP, based on treatment of barium in
K061 (electric arc furnace dust) using
HTMR was also appropriate. The
Agency believed that these treatment
standards could be routinely met by
industry. Additionally, the Agency
reviewed stabilization data and
determined that the treatment standards
for barium could be achieved by
stabilization for a wide variety of waste
matrices. (See Proposed Best
Demonstrated Available Technology
(BOAT) Background Document for
Toxicity Characteristic Metal Wastes
D004-D01 I.July 26, 1995.)
  The Agency received no significant
comment on the proposed change to the
wastewater standard for D005. However,
as previously discussed in Section III.A
of today's rule, new data collection
efforts and new analysis of BOAT data

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               Federal Register/Vol. 63, No.  100/Tuesday, May 26, 1998/Rules and Regulations
                                                                    28563
 for nonwastewaters resulted In a
 reproposal of the barium treatment
 standard in the Phase IV Second
 Supplement (62 FR 26047). In this
 notice, the Agency proposed to revise
 the treatment standard for barium
 nonwastewaters to 21 mg/L TCLP based
 on stabilization. The Agency received
 no comments in response to the
 reproposal. Therefore, the Agency today
 is promulgating a nonwastewater
 treatment standard of 21 mg/L TCLP as
 proposed in 62 FR 26041. In addition,
 the treatment standard of 1.2 mg/L for
 wastewater forms of D005 is
 promulgated as proposed in 60 FR
 43654.
   (il) Universal Treatment Standard
 (UTS) for Barium Nonwastewaters.
 (Please refer to the discussion above
 about the development of the treatment
 standard for D005 for additional
 information on the development of the
 barium UTS levels.) The Agency
 proposed to change the UTS for barium
 nonwastewaters from 7.6 mg/L to 21
 mg/L TCLP (see 62 FR 26041). It was
 proposed that such a treatment standard
 would better reflect the diversity of
 metal-containing waste streams and
 their treatment.
  The Agency received no significant
 comment in response to the reproposal.
 Therefore, the Agency is today
 promulgating a nonwastewater UTS of
 21 mo/LTCLP, as proposed.
  d. Final Universal Treatment
 Standard for Nonwastewater Forms of
 Beryllium Waste. The Agency proposed
 In the original Phase IV proposal (60 FR
 43683, August 22, 1995), to revise the
 UTS for nonwastewaters containing
 beryllium from 0.014 mg/L TCLP to 0.04
 mg/L TCLP. As previously discussed,
 new data collection efforts and new
 analysis of BOAT data resulted in a
 reproposal of the beryllium treatment
 standard to 0.02 mg/L TCLP in the
 Phase IV Second Supplemental (62 FR
 26041, May 12.1997).
  The Agency received numerous
 comments on the proposed revision.
 One commenter supported the proposed
 treatment level for beryllium, but stated
 that current stabilization technologies
 could achieve lower treatment levels.
 Several other commenters stated that
 while the proposed standard for
 beryllium was consistent with  the data
 considered by the Agency, the
stabilization data for beryllium were
 quite limited and reflected the treatment
 of wastes having very low beryllium
content. Commenters further questioned
whether the proposed standard of 0.02
mg/L TCLP could be met by
conventional stabilization techniques if
higher concentrations of beryllium were
treated. Other commenters stated that
 they could not support the treatment
 standards because EPA has not
 demonstrated that existing commercial
 technologies were capable of achieving
 the proposed standards or that
 technologies were otherwise available.
   In light of the comments received, the
 Agency conducted a review of the data
 set used to calculate the proposed
 standard. The review indicated that,
 consistent with the commenter's
 concerns, the data used by the Agency
 to calculate the standard were based on
 wastes containing low concentrations of
 beryllium (between 0.0050 and 0.5 mg/
 L TCLP). These concentration levels and
 the subsequent treatment standard
 developed from them does not appear to
 adequately account for the difficulty in
 treating wastes containing higher
 concentrations of beryllium. Data
 generated and submitted by Brush
 Wellman, Inc., consisting of seven data
 points, showed characteristic wastes
 (D008) with concentrations of beryllium
 ranging from 32 to 95 mg/L TCLP. When
 treated with conventional stabilization
 techniques, treatment resulted in
 beryllium levels ranging from 0.05 mg/
 L to 0.31 mg/L TCLP. As a result of
 these data, the proposed UTS for
 beryllium must be revised to reflect a
 more difflcult-to-treat or high-
 concentration beryllium waste.
 Accordingly, the Agency is today
 promulgating a revised UTS for
 beryllium nonwastewaters of 1.22 mg/L
 based on this newly acquired data. All
 treatment performance data available to
 the Agency indicates that this revised
 treatment standard can be met, thereby
 addressing concerns raised by the
 commenters to the proposal. It should
 be noted that the UTS for beryllium
 wastewaters remains unchanged at 0.82
 mg/L.
   e. Treatment Standards for Cadmium
 Wastes, (i) Treatment standards for TC
 Cadmium (D006) Waste. The Agency
 proposed to change the treatment
 standards for wastewater forms of TC
 cadmium (D006) waste from the
 characteristic level of 1.0 mg/L
 (established in the Third Third rule  (55
 FR 22520. June 1, 1990) to the
 previously promulgated UTS for
 cadmium wastewaters of 0.69 mg/L.
 EPA also proposed to change the
 treatment standard for D006
 nonwastewaters from the characteristic
 level of 1.0 mg/L TCLP (55 FR 22520
 (June 1,1990)) to the previously
promulgated UTS for cadmium
nonwastewaters of 0.19 mg/L TCLP.  In
support of these revised treatment
standards, the Agency had performed a
comprehensive re-evaluation of the
available treatment performance data
 from wastes containing significant
 concentrations of cadmium.
   For D006 wastewaters, the Agency
 determined that the existing UTS for
 cadmium (0.69 mg/L) based on a BOAT
 of lime conditioning followed by
 sedimentation was appropriate. The
 treatment standard for nonwastewater
 forms of D006 wastes was based on a
 transfer from the UTS for cadmium of
 0.19 mg/L TCLP based on the K061-
 HTMR treatment standard data. The
 Agency chose to use these data because
 they represented performance of an
 HTMR treatment unit. The UTS based
 on K061-HTMR could be routinely met
 by industry. Additionally the Agency
 reviewed stabilization performance data
 and determined that the UTS for
 cadmium could be achieved by
 stabilization for a wide variety of waste
 matrices. See Proposed Best
 Demonstrated Available Technology
 (BOAT) Background Document for
 Toxicity Characteristic Metal Waste
 D004-D011 (July 26, 1995).
   The Agency received no comments on
 the proposed change to the wastewater
 standard for D006. However, for reasons
 previously discussed in Section III.A of
 today's preamble, the Agency in the
 Phase IV Second Supplemental
 proposed to revise the treatment
 standard for cadmium nonwastewaters
 to 0.20 mg/L TCLP based on HTMR.
   All comments received in response to
 the revised standard for cadmium
 supported the change. However, as
 discussed earlier in Section III.A of
 today's preamble, the Agency
 discovered an error in the calculation of
 the treatment standard. In applying the
 LDR methodology for calculating a
 treatment standard, the Agency failed to
 conduct a "Z-score" outlier test. With
 the application of this test, 2 out of the
 40 data points were determined to be
 outliers, resulting in a revised treatment
 standard for cadmium nonwastewaters
 of 0.11 mg/L TCLP. (The proposed
 treatment standard of 0.20 mg/L TCLP
 was based on all 40 data points.) The
 Agency has reviewed the comments in
 light of this amended treatment
 standard and believes that it can be
 achieved by both HTMR and
 stabilization treatment. Data submitted
 by commenters in support of this rule
 does clearly indicate that the standard
 can be achieved. See supporting
 information contained in docket for this
 rule. Therefore, the Agency is today
promulgating a nonwastewater
treatment standard of 0.11 mg/L TCLP
for D006. In addition, the treatment
standard of 0.69 mg/L for wastewater
forms of D006 waste is being
promulgated as proposed in 60 FR
43654.

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28564
Federal Register/Vol.  63,  No. 100/Tuesday,  May 26,  1998/Rules and Regulations
  (ii) Universal Treatment Standard
(UTS) for Nonwastewaters Containing
Cadmium. The reader is referred to the
above discussion about the development
of the treatment standard for D006
nonwastewaters for additional
information of the development of the
UTS level for cadmium nonwastewaters.
EPA is promulgating an UTS of 0.11 mg/
L TCLP for nonwastewaters containing
cadmium. No change was proposed for
the cadmium wastewater UTS; therefore
it remains at 0.69 mg/L.
  f. Treatment Standards for Chromium
Wastes, (i) Treatment Standards for TC
Chromium Wastes (D007). In 60 FR
43654 (August 22, 1995), the Agency
proposed to change the treatment
standards for wastewater forms of
toxicity characteristic chromium (D007)
waste from the characteristic level of 5.0
mg/L (established in the Third Third
rule (55 FR 22520. June 1, 1990) to the
previously promulgated UTS for
chromium (total) wastewaters of 2.77
mg/L. EPA also proposed to change the
treatment standards for D007
nonwastewaters from the characteristic
level of 5.0 mg/L TCLP (55 FR 22520,
June 1,1990) (a standard remanded by
the D.C. Circuit as insufficiently
stringent in Chemical Waste
Management v. EPA, 976 F. 2d at 32) to
the previously promulgated UTS for
nonwastewater forms of chromium
(total) of 0.86 mg/L TCLP. In support of
these revised standards, the Agency had
performed a comprehensive re-
evaluation of the available treatment
performance data from wastes
containing significant concentrations of
chromium.
  For D007 wastewaters, the Agency
determined that the existing UTS (2.77
mg/L) based on a BDAT of lime
conditioning followed by sedimentation
was appropriate. The treatment standard
for D007 nonwastewaters was based on
a transfer from the UTS for chromium
(total) of 0.86 mg/L TCLP based on the
K061-HTMR treatment standard data. In
addition, the Agency reviewed
stabilization performance data and
determined that the UTS for chrotnium
(total) could be achieved by stabilization
for a wide variety of waste matrices. See
Proposed Best Demonstrated Available  ,
Technology (BDAT) Background
Document for Toxicity Characteristic
Wastes D004-D011, July 26, 1995.
  The Agency received no comments on
the proposed change to the wastewater
standard for D007. However, as
previously discussed in Section III.A of
today's preamble, new data collection
efforts and further analysis of BDAT
data, resulted in a proposed revision to
the treatment standard for
nonwastewater containing chromium to
                        0.85 mg/L TCLP based on a BDAT of
                        stabilization (62 FR 26041).
                          In response to the reproposal, the
                        Agency received no significant
                        comments. However, as discussed
                        earlier in Section III.A of today's
                        preamble, the Agency discovered an
                        error in the calculation of the treatment
                        standard. In applying the LDR
                        methodology for calculating a treatment
                        standard, the Agency failed to conduct
                        a "Z-score" outlier test. With the
                        application of this test, 2 out of the 40
                        data points, originally used to calculate
                        the standard, were determined  to be
                        outliers, resulting in a revised treatment
                        standard for chromium nonwastewaters
                        of 0.60 mg/L TCLP. The Agency has
                        reviewed the comments in light of this
                        amended standard and believes that it
                        can be achieved by both HTMR and
                        stabilization technologies. Data
                        submitted by commenters in response to
                        this proposal also support this
                        conclusion. See supporting information
                        contained in the docket for this rule.
                        Therefore, the Agency is today
                        promulgating an amended
                        nonwastewater treatment standard of
                        0.60 mg/L TCLP. In addition, EPA is
                        also promulgating a treatment standard
                        of 2.77 mg/L for wastewater forms of
                        D007 as proposed in 60 FR 43654.
                          (ii) Universal Treatment Standard
                        (UTS) for Chromium Nonwastewaters.
                        (Please refer to the discussion above
                        about the development of the treatment
                        standard for D007 for additional
                        information on the development of the
                        chromium UTS levels.) The Agency
                        proposed to change the UTS for
                        chromium (total) nonwastewaters to
                        0.85 mg/L TCLP to better reflect the
                        diversity of metal-containing waste
                        streams and their treatment (see 62 FR
                        26041). No change was proposed for the
                        chromium wastewater UTS.
                         The Agency received no significant
                        comments on the reproposal. However,
                        as a result of an error in the calculation
                        of the proposed treatment standard, as
                        previously discussed, the Agency is
                        today promulgating a revised chromium
                        nonwastewater UTS of 0.60 mg/L TCLP.
                        The chromium wastewater UTS remains
                        unchanged at 2.77 mg/L.
                         g. Final Treatment Standards for Lead
                        Wastes, (i) Treatment standards for TC
                        Lead Wastes (D008). In 60 FR 43654
                        (August 22, 1995), the Agency proposed-
                        to change the treatment standards for
                        wastewater forms of toxicity
                        characteristic lead (D008) waste from
                        the characteristic level of 5.0  mg/L
                        established in the Third Third rule (55
                        FR 22520, June 1, 1990)  to the
                        previously promulgated UTS  for lead
                        wastewaters of 0.69 mg/L. EPA also
                        proposed to change the treatment
 standard for D008 nonwastewaters from
 the characteristic level of 5.0 mg/L
 TCLP (55 FR 22520, June 1, 1990) (a
 standard remanded by the D.C. Circuit
 as insufficiently stringent inChemical
 Waste Management v. EPA, 976 F. 2d at
 27) to the previously promulgated UTS
 for lead nonwastewaters of 0.37 mg/L
 TCLP. In support of these revised
 treatment standards, the Agency had
 performed a comprehensive re-
 evaluation of the available treatment
 performance data from wastes
 containing significant concentrations of
 lead.
  For D008 wastewaters, the Agency
 determined that the existing UTS for
 lead (0.69 mg/L) based on a BDAT of
 lime conditioning followed by
 sedimentation was appropriate. The
 treatment standard for nonwastewater
 forms of D008 waste was based on a
 transfer from the UTS for lead of 0.37
 mg/L TCLP, which in turn, was based
 on K061-HTMR treatment standard
 data. The Agency believed that the UTS
 could be routinely met by industry
 using HTMR. Additionally, the Agency
 reviewed stabilization performance data
 and determined that the UTS for lead
 could also be achieved by stabilization
 for a wide variety of waste matrices. See
 Proposed Best Demonstrated Available
 Technology (BDAT) Background
 Document for Toxicity Characteristic
 Metal Wastes D004-D011, July 26, 1995.
  The Agency did not receive any
 comments on the proposed change for
 D008 wastewaters. However as
 previously discussed in today's
 preamble, numerous comments on the
 proposed nonwastewater treatment
 standard were submitted. As a result,
 the Agency in the Phase IV Second
 Supplemental proposed to change the
 D008 nonwastewater standard to 0.75
mg/L TCLP based on new BDAT
stabilization data (62 FR 26047)
collected by the Agency. The Agency
felt that these data better reflected the
diversity of lead-containing waste
streams and their treatment.
  Numerous commenters concurred
with the Agency's reproposal. However,
other commenters, specifically those
representing various sectors of the
secondary lead industry, argued that
EPA's proposed treatment standard for
lead was not achievable. In particular,
comments from Battery Council
International (BCI) and the Association
of Battery Recyclers (ABR) argued that
new data developed by their association
members showed that no facility in the
secondary lead industry could meet
EPA's proposed treatment standard for
lead. Instead, they supported setting a
treatment standard of 8.39 mg/L TCLP
for D008 nonwastewaters based on

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                                                                    28565
stabilization. The commenters argued
that smelter slag has chemical and
physical characteristics distinctly
different from the wastes used to
develop the treatment standard and that
because of its physical variability,
treatment of secondary smelter slag
through stabilization was much less
effective than other types of D008
wastes. The commenter further
questioned EPA's decision to ignore
data submitted by BCI, ABR and others
in response to the original Phase IV
proposal, stating that these data were
much more comprehensive and
representative. The commenter stated
that these data contained 276 composite
data points for lead from secondary
smeller slag, with a 99th percentile
confidence Interval for stabilized slag of
2.97 mg/L TCLP. Another commenter,
which uses a chemical fixation process
on the generated blast furnace slag,
argued that they could only meet a 2.0
mg/L TCLP for lead, based on composite
rather than grab sampling.
  In response to the commenters'
concerns, the Agency would first like to
respond to the commenters1 statement
that data previously submitted to the
Agency was ignored. The Agency is
careful to review and analyze all data
that are submitted in support or
response to its rulemakings. In fact, the
referenced data were analyzed
extensively, but were found to be so
seriously lacking in form and quality
assurance/quality control prerequisites
that it was impossible to use them for
BOAT development. (In the docket for
this rule see the documents, "Draft—
Overview of Five Data Sets Submitted in
Response to the Land Disposal
Restrictions Phase IV Proposed Rule:
Treatment of Metals," November 1996;
and correspondence from Michael
Petruska, USEPA to David B. Weinberg,
Battery Council International Re:
Request for Additional Data in Support
of the Previous Submitted Data in
Response to the Land Disposal
Restriction Phase IV," July 22,1996).
Specifically, the data submitted to the
Agency were (1) based on composite
samples rather than grab samples, the
latter being the only type used to
develop treatment standards; (2) lacking
in any quality assurance/quality control
(QA/QQ documentation; and (3) not
accompanied with specific treatment
Information, or any indication that
performance of the  treatment process
was in fact optimized. As such, the
Agency was unable to utilize these data.
  Other additional  data were
subsequently submitted by the
commenter in response to the "Second
Supplemental" and analyzed by the
Agency. These data were based on grab
sampling, but there were no specifics on
the type of stabilization treatment
conducted on the waste. The data does
indicate that secondary smelter slags
can be treated to meet today's treatment
standards for all metals except lead and
thallium. With respect to lead,
approximately 24 out of 83 samples
have treated lead values greater than
0.75 mg/L TCLP, but less than the
characteristic level of 5.0 mg/L TCLP.
No information was provided for the
majority of the thallium data sets. Based
on these data, the commenter proposed
a treatment standard of 8.39 mg/L TCLP
for lead nonwastewaters and 0.79 mg/L
TCLP for thallium nonwastewaters.
However, these data failed to show
effective treatment of the thallium and
lead constituents. (In the docket for this
rule, see memorandum to Nick Vizzone,
USEPA from Howard Finkel of ICF,
"Calculation of Universal Treatment
Standard (UTS) for Stabilized
Secondary Lead Slag Using Data
Submitted by the Battery Council
International and Association of Battery
Recyclers," December 5, 1997).
  Commenters have failed to provide
reliable and  convincing data or
information  to persuade the Agency that
stabilization can not meet the proposed
treatment standard of 0.75 mg/L TCLP
for lead slags. While the physical
variability of the slag may indeed affect
treatment performance, the Agency is
unconvinced that the commenter's data
were the result of optimized treatment
conditions and, therefore, are not
indicative of true treatment difficulties.
EPA's own performance data from
treatment of D008 battery slags (which
were used in part for the calculation of
the treatment standard) clearly support
the view that slags from secondary
battery recyclers can be treated to meet
the nonwastewater standard of 0.75 mg/
L TCLP. These data indicate that slags
with lead concentrations ranging from 5
to 846 mg/L TCLP (a range similar to
that associated with the data submitted
in response to the May 12 Second
Supplemental proposal and which are
discussed above) can be treated with
stabilization techniques to levels less
than 0.01 mg/L to 0.3 mg/L TCLP.
Furthermore, data and information
available to the Agency suggest that
with optimized treatment these
standards should be achievable
regardless of the waste matrix. (See
"Treatment Technology Background
Document", January 1991, for a
discussion of Waste Characteristics
Affecting Performance (WCAPS and
other pertinent material). As such, the
Agency is unpersuaded by the
commenter's arguments and is today
 promulgating as proposed a treatment
 standard of 0.75 mg/L TCLP for D008
 nonwastewaters and a standard of 0.69
 mg/L for D008 wastewaters. The Agency
 notes that if a particular waste is unique
 or possesses properties making it
 unusually difficult to treat by the
 treatment technologies whose
 performance was used to develop the
 treatment standard, the affected  party
 may petition the Agency, on a case-by-
 case basis, for a treatment variance as
 provided in 40 CFR 268.44.
  (ii) Final Universal Treatment
 Standard (UTS) for Nonwastewaters
 Containing Lead. (Please refer to the
 discussion above about the development
 of the treatment standard for D008 for
 additional information on the
 development of the lead UTS levels.)
 The Agency proposed to change  the
 UTS for lead nonwastewaters from 0.37
 mg/L TCLP to 0.75 mg/L TCLP to better
 reflect the diversity of metal-containing
 waste streams and their treatment (see
 62 FR 26041). In response to the
 proposed revision, the Agency did
 receive a number of comments on the
 nonwastewater level, discussed above.
 For reasons also discussed above, the
 Agency is today promulgating a lead
 nonwastewater UTS of 0.75 mg/L TCLP
 as proposed.
  (iii) Secondary Smelter Battery Slag-
 Additional Issue. EPA published a
 Notice of Data Availability (NODA) on
 May 10, 1996 (61 FR 21419)  that
 discussed, among other things, an issue
 regarding application of the LDR
 standards to slags resulting from the
 smelting of lead acid batteries. The LDR
 treatment standard, established in the
 Third Third Rule in 1990, for lead acid
 batteries  is RLEAD (see 40 CFR 268.40
 and 268.42, Table 1), which means
 recovery of lead. The NODA stated that
 "[o]nce the batteries are smelted, the
 LDR requirements have been satisfied,
 and, therefore, the slag resulting from
 this smelting need not be treated
 further. The standards proposed  under
 Phase IV (i.e., compliance with UTS)
 would not apply to this slag, even if the
 slag exhibits a characteristic of
 hazardous waste (i.e., contains lead in
 amounts greater than 5.0 mg/L)." This
 position was based on EPA's usual
 interpretation that "when EPA specifies
 a treatment method as the treatment
 standard, residues resulting from the
 required treatment method are no longer
 prohibited from land disposal unless
 EPA should otherwise specify."
 (emphasis added)  55 FR at 22538 (June
 1, 1990).
  After the publication of the May 10,
 1996 NODA, EPA realized that it had, in
fact, "otherwise specified" that lead
slags resulting from the smelting of lead

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acid batteries would be a separate
treatability group in the Third Third
rule, and they would indeed require
further treatment if the slags exceeded
the TC for lead (5.0 mg/L) as generated.
See 55 FR at 22568 (June 1,  1990). The
Third Third rule states that "The
residuals from the recovery process are
a new treatability group (i.e., the
residues are not lead acid batteries) and,
therefore, their status as prohibited or
nonprohibited is determined at the
point the residues are generated. Such
residues would thus only be prohibited
and therefore require further treatment
if they exhibit a characteristic." This
point was clarified both in person and
in a letter, dated July 31, 1996, sent to
representatives of Battery Council
International. The letter explained that
the Agency had mischaracterized the
status of lead slags in the May 10, 1996
NODA and requested comment on the
appropriate treatment standard for these
lead slags.
  EPA published the Phase  IV Second
Supplemental Proposed Rule on May
12, 1997, and among other things, used
new data from the treatment of lead
slags in  revising the treatment standards
for lead. In response to this  issue, one
commenter stated that EPA  was
prohibited under RCRA 3004(m) from
requiring further treatment for residuals
that resulted from a treatment process
that was determined to be BDAT (such
as RLEAD). The commenter believes
RCRA 3004(m) states that once threats
are minimized, EPA cannot require
further treatment of the residuals after
the specified BDAT treatment has been
performed on the waste, or the BDAT
numerical level has been achieved.
Because the Agency's data on lead slag
residuals show concentrations of 283
mg/L TCLP lead are not uncommon,
potential threats from treated lead slag
(using RLEAD only) are clearly not
minimized. In fact, the concentrations of
lead in these residuals resulting from
RLEAD  of lead acid batteries are among
the most concentrated TC lead wastes
for which the Agency has data. The
Agency  only is requiring further
treatment of slag residuals which
exhibit the characteristic for lead (i.e.,
contain  lead in amounts greater than the
TC level of 5.0 mg/1). Those residuals,
by definition, are still hazardous and
potential threats  posed by their land
disposal have not been minimized.
  Another commenter raised the issue
of whether there had been adequate
notice and comment given regarding the
status of lead slag residuals. The Agency
believes that adequate notice and
opportunity to comment were given in
light of the facts recited. We note also
that all comments received on the Phase
                        IV second supplemental rule regarding
                        lead slag residuals took issue with the
                        treatment standard for lead and the data
                        used to develop the standard, but did
                        not question that the slags could  be
                        required to be treated further.
                        Commenters appeared to clearly
                        understand that slags are covered by the
                        Phase IV rule establishing standards for
                        TC lead wastes.
                          Therefore, lead slag residuals
                        resulting from the smelting of lead acid
                        batteries are included under today's
                        rulemaking. If such residuals exhibit a
                        lead toxicity characteristic (i.e., have
                        lead levels exceeding 5.0 mg/L) after
                        RLEAD is employed, they would  have to
                        be treated again for lead and any  other
                        underlying hazardous constituents
                        present in waste until the treatment
                        standards are achieved. For a discussion
                        on the development of these numerical
                        standards being promulgated today; see
                        the discussion in section (i) above.
                          (iv) Addition of Iron Filings to
                        Stabilize Lead-Containing  Wastes.
                        Today, the Agency is codifying the
                        principle that the addition of iron metal,
                        in the form of fines, filings, or dust, for
                        the purpose of ostensibly achieving a
                        treatment standard for lead is
                        "impermissible dilution" under 40  CFR
                        268.3. The Agency has determined that
                        this waste management practice does
                        not minimize threats posed by  land
                        disposal of lead-containing hazardous
                        waste because the practice essentially
                        "blinds" the analytic method but would
                        not in fact prevent lead from leaching
                        under actual disposal conditions.
                        Affected wastes include: toxic
                        characteristic lead wastes  (D008), any
                        characteristic waste containing lead as
                        an underlying hazardous constituent,
                        and listed wastes for which lead is
                        regulated.
                          On March 2, 1995, EPA published the
                        LDR Phase III proposal (60 FR 11702).
                        Among other things EPA proposed that
                        the addition of iron dust to stabilize
                        lead in characteristic hazardous waste
                        constituted impermissible  dilution,
                        rather than treatment legitimately
                        meeting the LDR treatment standards
                        (60 FR 11731). In the proposal,  the
                        Agency stated that certain  industries
                        were adding iron dust or iron fines to
                        some characteristic hazardous waste
                        (nonwastewaters) as an ostensible form
                        of treatment for lead. As an example, the
                        Agency noted that foundries were
                        known to mix iron dust or  filings  with
                        the D008 sand generated from their
                        spent casting molds, viewing this
                        practice as a form of stabilization. In the
                        proposal, the Agency stated that such
                        stabilization practices were inadequate
                        to minimize threats posed by land
                        disposal of metal-containing hazardous
waste, and proposed to clarify that
waste management practice as
"impermissible dilution" under 40 CFR
268.3.
  In response to the proposal, the
Agency received numerous comments.
Commenters in support of the
"impermissible dilution" designation
agreed with EPA's discussion in the
preamble that no chemical or
pozzolanic reaction was possible from
iron dust or filings and that standard
chemistry showed that metals such as
lead were not bound in a non-leachable
matrix when using iron dust or filings
as a stabilizing agent. One commenter
further mentioned many instances
where generators have avoided
treatment costs by adding iron to their
metal and cyanide-bearing waste
streams, thus providing the short-term
ability to, as the commenter stated,
"fool" the test for both amenable
cyanide and leachable metals. The
commenter pointed out that EPA's
adoption of a total cyanide treatment
standard had essentially solved the
issue of ineffective treatment of cyanide
using iron, but the issue of metals
treatment still remained. The
commenter concluded that the
prohibition on the use of iron dust and
filings would promote more treatment of
toxic metal-bearing wastes.
  Other commenters discussed
analytical concerns with the TCLP test
when used on iron-treated wastes. One
commenter stated that the addition of
iron to D008 waste sand may mask the
presence of lead in two ways: first, iron
is more easily oxidized than  lead so that
under the conditions of the TCLP test,
iron may be preferentially leached out
into solution, leaving the lead in an
insoluble, undetectable state. A second
problem with the presence of iron in the
TCLP test is spectral  interference with
the analysis of lead, which could result
in positive interference and a raised
detection limit for lead.
  Numerous commenters representing  ,
the foundry industry, however, argued
extensively against the "impermissible
dilution" designation for iron treatment
of characteristic metal wastes. The
commenters stated that EPA's position
was neither justified  nor supported by
any technical documentation. The
commenters further stated that: (1) iron
added to lead bearing waste foundry
sand effectively immobilizes the lead
and yields a treatment residue that
consistently passes the TCLP; (2) TCLP
tests, run on foundry sand that was
treated with iron and landfilled 8-10
years ago, yielded lead results below the
5 ppm level; (3) analytical results for
total iron from landfill samples clearly
show the iron has not oxidized after

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                                                                    28567
several years; and (4) iron treatment has
long-term stability. The commenters
further stated that no evidence either
from leaching tests or from real-world
experience showed that iron treatment
is not a successful long-term treatment
for brass foundry sand when the
treatment is conducted in an
appropriate manner. On March 5,1997,
the Agency addressed the issue and
Industry arguments in Land Disposal
Restriction—Phase IV Treatment
Standards for Characteristic Metal
Wastes; Notice of Data Availability
(NODA) (62 FR 10004). In this NODA,
new studies and data were presented on
the issue of the treatment adequacy of
adding iron to characteristic metal
wastes as a method of treatment. As
explained in the Phase III proposed rule
(60 FR 11702), and again in the NODA
of March 5,1997. the addition of iron
seems to temporarily retard the    '
leachabllity of lead in spent foundry
sand, thus allowing the waste to pass
the TCLP test, but not to be permanently
treated. At the time of the Phase III final
rule, EPA decided not to finalize a
determination that the practice was a
form of impermissible dilution in the
Phase III final rule without studying the
Issue further. See 61 FR 15569. April 8,
1996. In the March 5,1997 NODA. two
studies were noticed that had recently
been completed.
  One study was developed by Dr. John
Drexler of the University of Colorado
and the other by Dr. Douglas Kendall of
the National Enforcement Investigation
Center (NEIC). The results of these
studies indicated that the addition of
Iron filings or iron dust to spent foundry
sands (DOOS) did not constitute
adequate treatment of the waste because
high concentrations of lead remained
available to the environment and indeed
have been shown to leach in actual field
testing of units receiving the spent
foundry wastes. (The reader is referred
to 62 FR 10004, March 5. 1997 for a full
discussion of the studies).
  Specifically, Dr. Drexler's study
concluded: (1) the spent foundry wastes
placed in Nacodoches Municipal
Landfill remained hazardous; (2) the
addition of iron filings to spent foundry
sand does not cause chemical reduction
(i.e., the hazardous lead remains
oxidized); (3) the addition of iron filings
to the spent foundry sand promoted a
physicochemical dilution of the sample
during the TCLP by producing
significant increases in surface area
sorption sites; (4) the addition of iron
filings to the waste artificially altered
the environmental character of the TCLP
test by increasing pH and lowering Eh
(redox potential) and DO (dissolved
oxygen); and (5) in-vitro testing shows
that these "treated" wastes maintain a
high bioavailability of lead.
  Dr. Kendall's study concluded that
the addition of iron is not a permanent
way to treat lead-contaminated waste.
Specifically, he concluded that: (1) no
reaction occurs when metallic iron is
mixed with lead-contaminated foundry
sand (DOOS); (2) during the TCLP
process, lead begins to leach into the
solution and if metallic iron is present,
the lead concentration in solution will
decrease by an oxidation/reduction
reaction to  levels below the lead
characteristic; (3) only if fresh metallic
iron is regularly introduced into the
mixture,  can soluble lead be kept at low
levels; and  (4)  upon placement of the
waste in  a landfill and left alone, the
iron will oxidize, losing its ability to
reduce lead ions.
  Peer review  of the studies concurred
with the  findings that the addition of
iron filings to spent foundry sand is not
treatment of hazardous waste and that
the scientific data presented in the
studies were based on sound scientific
research  and support the conclusions
made. (See  "Peer Review Report,
September  3, 1996, submitted by A.T.
Kearney, Inc.,  Dallas, Texas to Rena
McClurg, Regional Project Officer,
USEPA, Dallas, Texas.)
  The Agency received several
comments in response to the NODA.
One State agency commented that based
on the evidence gathered by the EPA,
the addition of iron fines as treatment of
lead containing wastes appears to be
unacceptable under most disposal
criteria. Furthermore, it was the
commenter's contention that the method
in question should be rejected where
disposal  of wastes so treated may be
subjected to acid leaching and chemical
oxidation, in particular disposing of
wastes in a municipal solid waste
landfill. The commenter did note
however that data exist to support the
contention  that the treatment may be
acceptable  for brass foundries under
specified monofill disposal criteria.
Another  commenter requested
clarification as to whether iron-bearing
lead waste  products, i.e., from the steel
bridge blast cleaning and painting
industry, would be impacted. The
commenter recommended that all waste
debris from any lead abatement project
be deemed  hazardous and treated
appropriately regardless of the type of
abrasive  blast media used.
  Two commenters argued that the
conclusions drawn from the studies
conducted by Drs. Kendall and Drexler
were erroneous or misplaced from a
regulatory standpoint. In particular the
commenters argued, among other things,
that given the biased sampling, i.e.,
sampling of only "hot spots" in the
landfill and disregard for SW-846
statistical analysis, EPA should
reconsider its view on the treatment of
foundry sands with iron filings. (The
reader is referred to the "Comment
Response Document" for this final rule
for a more complete discussion of the
comments received on this issue.)
  EPA has evaluated  all the comments
on the subject studies and on the issue
of iron filings as a treatment method for
lead nonwastewaters. The regulatory
issue at hand—and the focus of the
studies—is whether or not adding iron
metal is adequate treatment for LDR
purposes. Several commenters have
elected to take issue with points that are
not the central focus of the two studies.
While a statistical evaluation is used to
determine if a waste is hazardous, all
parts of the waste must be treated to
meet the applicable standards, not just
a representative sample. Thus, if results
show that "hot spots" remain, this is
presumptive evidence that treatment
was not effective and there is
noncompliance with the LDR treatment
requirements. In the preceding
determination of whether a waste is
hazardous, the Agency guidance in SW-
846 provides basic sampling strategies
for simple and stratified random
sampling of the waste as a whole.
However, in application of the land
disposal treatment standards, all
portions of the waste must meet the
applicable treatment standards, i.e., no
portion may exceed the regulatory limit.
See 40 CFR 268.40. Hence, commenters
that focused on the SW-846 sampling
issue largely misconstrued the central
findings of the studies.
  In response to comments pointing to
the disposal of a waste in a monofill,
while data may suggest that disposal of
iron treated waste in this type of
controlled environment may be
protective in some scenarios, RCRA
section 3004(m)(l) requires treatment to
substantially diminish the toxicity of
the waste or substantially reduce the
likelihood of migration of hazardous
constituents from the waste so that
short-term and long-term threats to
human health and the environment are
minimized. This statutory requirement
has not been met with iron addition
plus placement in a monofill since
ultimate placement of the waste in a
monofill is not germane to the key issue
at hand—is the treatment prior to land
placement effective.
  With respect to this key issue, the
Agency's determination that the
addition of elemental iron in the form
of fines, filings, etc., constitutes
impermissible dilution is predicated on
the fact that the adsorption of soluble

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lead on to the iron surface is a reversible
reaction and once the iron surfaces
oxidize (which naturally occurs when
the treated waste is exposed to air), the
ability of the additive (iron) to scavenge
soluble metals is diminished. Therefore,
the treatment is not permanent.  In
addition, adsorption alone is not a
reliable method of permanently
immobilizing lead which both studies
conclude. The authors have also
concluded, and the Agency agrees, that
the prohibition should apply to any
lead-containing waste. As stated by Dr.'
Kendall in his response to comments,
"Lead-contaminated foundry sand is no.
different from any other waste which
fails the TCLP test because of excessive
amount of extractable lead. The  addition
of iron metal (zero valence iron) is not
a permanent treatment because iron
oxidizes. Since iron addition is not a
permanent treatment, it should not be
allowed for hazardous wastes which are
to be land disposed, regardless of their
origin." (See memorandum from Samuel
Coleman, USEPA to James R. Berlow,
USEPA Re: "Reply to Comments
Concerning Prohibition of Land
Disposal of Iron Treated Lead
Contaminated Wastes". November 17,
1997.)
  As indicated above, the addition of
iron metal is not a permanent treatment
because the iron inevitably oxidizes and
loses its adsorptivity for soluble lead
ions. After oxidation of the iron
surfaces, surface adsorption of lead ions
ceases and the lead-bearing waste
returns to its original state; all pretext of
treatment is lost. Since iron addition is
not effective, it cannot be allowed for
hazardous lead-containing hazardous
wastes that are to be land disposed,
regardless of their origin (i.e., all lead-
bearing wastes, not just foundry sands).
  The Agency concludes that addition
of iron metal, in the form of fines,
filings, or dust, fails to provide long-
term treatment for lead-containing
hazardous wastes. EPA is codifying this
determination by calling the practice
impermissible dilution, and so
invalidating it as a means of treating
lead in lead-containing hazardous
wastes. It can also be simply viewed as
a type of treatment that fails to
minimize the threats to human health
and the environment posed by disposal
of lead-containing hazardous wastes,
because lead mobility is not
substantially reduced when the waste is
disposed.
  In response to comments whether use
of iron-containing abrasives to remove
lead-based paint, for example from the
steel bridge blast cleaning and painting
industry, may be a type of
impermissible dilution, the Agency
                        notes that the dilution prohibition does
                        not apply to processes which generate a
                        waste, only to processes that treat a
                        waste which already has been
                        generated. See S. Rep. No. 284, 98th
                        Cong. 2d Sess. 17 (1984). As such, it
                        would not appear that abrasive blasting
                        is impermissible dilution since it is part
                        of the process generating the waste, i.e.,
                        the removed paint. If generators added
                        iron filings/dust or discarded, off
                        specification steel shots to lead-based
                        paint waste (similar to the current
                        foundry practices), it is analogous to
                        impermissible dilution and this rule
                        bans such practice. However, addition
                        of iron filing/dust to  a hazardous waste
                        (before the hazardous waste
                        determination) is a lot different from
                        using steel pellets/shots, silica-
                        containing products, and other abrasive
                        materials for paint removal.
                          The Agency has been pursuing several
                        specific efforts to evaluate the
                        environmental hazards caused by
                        disposal of lead-containing wastes,
                        including evaluation of damage case
                        information included in the 1996
                        Hazardous Waste Characteristic Scoping
                        Study, re-examination of the risk
                        modeling used for the 1995-proposed
                        Hazardous Waste Identification rule,
                        and evaluation of fate and transport in
                        other environmental  media from
                        industrial nonhazardous solid waste
                        disposal facilities. Upon completion of
                        these activities, the Agency will be in a
                        better position to decide whether
                        disposal of lead-containing waste is a
                        health and environmental concern
                        warranting listing or  whether revising
                        the TC regulatory limit would be more
                        appropriate.
                          In addition, the Agency notes that a
                        determination that a waste is not
                        hazardous (here because addition of
                        iron during a generating process results
                        in a determination that paint waste does
                        not exhibit a characteristic) may not be
                        a shield against future liability, if the
                        disposal results in environmental
                        damage. Note that under CERCLA, not
                        just generators are liable for any
                        environmental damage caused by the
                        release of hazardous material into the
                        environment. CERCLA liability is
                        independent, of any hazardous waste
                        determination that previously may have
                        been made. EPA believes that in light of
                        CERCLA liability and the available
                        environmental contamination data, it
                        would be prudent for generators to
                        examine their waste generation and
                        management practices with an eye
                        toward segregation of lead-based paint
                        waste and iron dust/flakes or steel shots,
                        and potential re-smelting of the lead-
                        bearing residuals.
   As a final matter, it has been argued
 to the Agency that the proposed (and
 now final) action regarding addition of
 iron filings is analogous to treatment of
 fluoride in a process for treating
 aluminum spent potliner waste (K088)
 operated by Reynolds Metals Company.
 See generally Docket P33F-S0069 p. 6
 (July 7, 1997) and 62 FR 37694, 37697
 (July 14, 1997) (responding to comment
 and establishing October 8, 1997 as the
 date prohibition of land disposal of
 K088 wastes takes effect). The argument
 goes that in the Reynolds treatment
 process, reagents are added to the
 process that only allow the fluoride to
 meet the LDR treatment standard by
 blinding the analytical method (the
 TCLP), but do not result in permanent
 reduction of fluoride mobility in the
 treated wastes. See 62 FR at 37695,
 noting that levels of fluoride in the
 leachate from actual disposal are well in
 excess of the levels established in the
 treatment standard (as measured by the
 TCLP). Hence, it is asserted, this process
 must be an example of impermissible
 dilution.
   The Agency disagrees. First, EPA
 calculated that the process did reduce
 fluoride mobility on the order of 28%.
 Docket P33F-S0064. This estimate may
 in fact understate the extent of
 treatment. The maximum amount  of
 fluoride detected  in actual leachate from
 the disposed treatment residue is 2228
 mg/L. 62 FR 37695. However, untreated
 potliners leached fluoride at
 concentrations ranging from 7730-8860
 mg/L when exposed to the same type of
 leaching medium (simulated monofill
 leaching medium). Docket P33F-S0049
 data set J. Thus, EPA finds that the
 process is resulting in non-dilutive
 treatment of fluoride. In addition, the
 reagent used for fluoride treatment
 serves another legitimate function in the
 process—as a fluxing agent to prevent
 agglomeration of material in the rotary
 kiln. 62 FR at 37695. Dilution which is
 a necessary part of a treatment process
 is normally permissible. 51 FR at 40592
 (November 7, 1986); 62 FR at 37697.
 Consequently, EPA does not regard the
 treatment of fluoride in the Reynolds
 K088 treatment process to be a form of
 impermissible dilution.
  h. Treatment Standards for
 Wastewater and Nonwastewater Forms
 of Mercury Waste. The Agency, in the
 original Phase IV rule, proposed to
 change the treatment standard for one
subcategory of TC mercury wastewaters
 (D009—All Others) from the
characteristic level of 0.20 mg/L
 (established in the Third Third rule (55
FR 22520. June 1,  1990) to the
previously promulgated UTS for
mercury wastewaters (Mercury—All

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              Federal Register/Vol.  63,  No. 100/Tuesday,  May 26, 1998 /Rules and Regulations
                                                                   28569
Others) of 0.15 mg/L. (60 FR 43654.
August 22,1995.) The Agency received
no comments on this proposed change.
As such, the Agency is promulgating a
treatment standard of 0.15 mg/L for
wastewater forms of D009—All Others.
  The Agency also proposed to revise
the treatment standard for TC mercury
nonwastewaters (D009—All Others)
from the characteristic level of 0.20 mg/
L TCLP to 0.025 mg/L TCLP. The
nonwastewater UTS for mercury is
based on the mercury standard
developed from K071 waste treatment
data. The only comments received on
the achievabllity of this proposed
change were regarding the application
of this treatment standard to TC
mercury soil. TC soils are subject to
specific treatment standards being
finalized elsewhere in today's rule.
More detail can be found on the
mercury soil comments in the Response
to Comments Background Document.
Therefore, the Agency is promulgating a
treatment standard of 0.025 mg/L TCLP
for nonwastewater forms of D009—All
Others in today's rule.
  With respect to the broader issue of
mercury treatment, the Agency plans to
conduct an intensive review of
traditional and innovative technologies
over the next year or so. Outreach to
various Industry, academic, and other
groups is also being investigated as to its
feasibility. Key information, when
available, on this effort can be obtained
from the RCRA Hotline, and notices of
significant public events will be placed
in the Federal  Register and on EPA's
Internet home  page.
  /. Final Universal Treatment Standard
for Nonwastewater Forms of Nickel. The
Agency proposed in the Phase IV
Second Supplemental to change the
UTS for nonwastewaters containing
nickel from 5.0 mg/L TCLP to 13.6 mg/
L TCLP. This revision to the UTS was
based on new performance data
obtained by the Agency and presented
in that notice. The Agency did not
receive any significant comments on
this issue. However, as  discussed in an
earlier section of today's preamble, the
Agency discovered an error in the
calculation of the treatment standard. In
applying the LDR methodology for
calculation of a treatment standard,  the
Agency failed to conduct a "Z-score"
outlier test. With the application of  this
test, 5 out of the 122 data points
originally used in the calculation of the
standard, were determined to be
outliers. This error resulted in a revised
treatment standard for nickel
nonwastewaters of 11.0 mg/L TCLP. In
light of this amended standard, the
Agency has reviewed all of the
comments and data submittals, and  has
determined that all the treatment data
for nickel is below 11.0 mg/L TCLP.
Accordingly, the Agency is today
promulgating a final UTS for nickel
nonwastewaters of 11.0 mg/L TCLP. No
'change was proposed for nickel
wastewater; therefore, the UTS remains
at 3.98 mg/L for these wastes.
  j. Final Treatment Standards for
Selenium Wastes, (i) Treatment
standards for TC Selenium Wastes
(DO 10). The majority of commenters
supported the Agency proposal to
maintain the 5.7 mg/L TCLP level for
D010 nonwastewaters. They strongly
agreed with the Agency's reasoning, and
urged EPA to adopt the proposed
treatment standard.
   One commenter, however, maintains
that the Agency should establish a
"High Selenium Greater Than 200 ppm"
subcategory for nonwastewaters, with a
corresponding treatment standard of 10
mg/L TCLP. The commenter has cited
technical problems in achieving the
proposed treatment standard level for
highly contaminated selenium wastes.
The commenter states that, since 1995,
they have consistently experienced
problems treating waste streams from
glass manufacturing companies with
wastes that contain high concentrations
of selenium. The commenter provided
treatability testing data from a selenium
waste stream, containing 80 mg/L TCLP,
which showed that 16 different
treatment recipes were tested prior to
finding one that would treat a selenium
waste to below 5.7 mg/L TCLP. The
other data, from three different
generators of selenium waste,  suggest
TCLP values of untreated waste of
between 465-1064 ppm TCLP, with
treated wastes achieving between 2.5
and 45.6 mg/L TCLP.
   The Agency has reviewed all the
treatment data and, for the most part,
waste streams containing selenium exist
either in relatively low concentrations
(0.1-0.13 mg/L TCLP) or in extremely
high concentrations (greater than 450
mg/L TCLP). Because of the highly
divergent nature of these wastes and the
difficulty in treating selenium with
multiple metals at almost any
concentration, it seems unreasonable to
mandate that one treatment standard
could be applicable to both.
Calculations of a revised treatment
standard, based only on the newly
submitted treatment data for the high
selenium concentration wastes, would
yield a standard of 77.0 mg/L TCLP for
selenium nonwastewaters. If a
calculation is done after pooling all
selenium data (including low
concentration selenium data), a
standard of 261 mg/L TCLP would
result. The Agency is reluctant to
establish a treatment standard for
selenium nonwastewaters of either 77.0
mg/L or 261 mg/L TCLP on a national
level. Earlier data suggest and
commenters concur that for the majority
of selenium wastes the proposed
standard of 5.7 mg/L TCLP for selenium
nonwastewaters is appropriate.
Furthermore, only three high selenium
concentration waste streams that could
apparently not be treated to this level.
Therefore, there is little reason to pool
all treatment data or to engage in
bifurcation of the selenium standard.
  Accordingly, the Agency is
promulgating a treatment standard of
5.7 mg/L TCLP for nonwastewaters
containing selenium. The Agency,
however, is convinced that the high-
level selenium waste streams for which
data were submitted to EPA will be
unable to be treated to achieve the 5.7
mg/L TCLP standard. Therefore, in a
Federal Register notice that will be
published shortly, the Agency will be
requesting comment on a proposal to
grant a site-specific treatment variance
for Waste Management, Inc. for the
treatment of some DO 10 wastes
containing high concentrations of
selenium.
  The Agency also is promulgating as
proposed a wastewater treatment
standard of 0.82 mg/L for D010
wastewaters. No comments were
received on this issue.
  (ii) Universal Treatment Standard
(UTS) for Selenium. As noted above, in
the May 12,1997 reproposal of the Phase
IV rule, the Agency proposed to change
the UTS for selenium nonwastewaters
from 0.16 mg/L to 5.7 mg/L TCLP. For
the reasons discussed above for DO 10
nonwastewaters, 5.7 mg/L TCLP is a
better reflection of treatability of
difficult-to-treat selenium waste streams
than 0.16 mg/L TCLP. This is the level
being promulgated today for the
selenium nonwastewater UTS. (It
should be noted that because the UTS
is above the TC level for selenium,
selenium is not considered an
"underlying hazardous constituent"
(UHC) in characteristic waste, according
to the definition at 268.2(i)). The
wastewater UTS for selenium remains
unchanged at 0.82 mg/L.
  k. Final Treatment Standards for
Silver Wastes, (i) Treatment standards
for TC Silver Wastes (D011). In today's
final rule, EPA is promulgating a
nonwastewater treatment standard of
0.14 mg/L TCLP for characteristic silver
(DO 11). For wastewaters, EPA is
promulgating a treatment standard of
0.43 mg/L as proposed in the original
Phase IV proposal on August  22, 1995
(60 FR 43684). EPA is in the process of
determining whether silver should

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 28570
Federal Register/Vol. 63, No.  100/Tuesday. May  26,  1998/Rules and Regulations
 remain on the TC list at 40 CFR
 261.24(b) Table 1 or whether the current
 TC level should be altered. If EPA alters
 the status of silver on that TC list, EPA
 will revisit the treatment standards for
 silver.
   (ii) Proposals, Comments, and
 Responses. Until today's notice, the
 treatment standards for wastewater and
 nonwastewater forms of DO 11 have both
 been 5.0 mg/L TCLP, which is the TC
 level. In 1995, EPA proposed a
 treatment standard of 0.43 for
 wastewaters and 0.30 mg/L for
 nonwastewater, based on the best
 treatment data in EPA's possession at
 that time (60 FR 43684). EPA received
 comments urging the Agency to refrain
 from setting a treatment standard lower
 than the TC level and instead suggesting
 that EPA remove silver from the TC list
 altogether due to new information on
 the low risk of silver to human health.
   In a 1996 Notice of Data Availability
 (NODA), EPA presented the option of
 retaining the 5.0 mg/L treatment
 standard for DO 11 wastes (61 FR 21420,
 May 10,  1996). Comments were divided
 in two groups: those which supported
 the option, and those which stated that
 EPA had no firm basis for such a
 decision, given the potential toxicity of
 silver to  aquatic life.
   Since receipt of the comments on the
 NODA, EPA acquired more recent
 treatment data on TC metals, including
 silver. Based on these data, EPA learned
 that D011 nonwastewaters could be
 successfully treated to a level of 0.11
 mg/L using HTMR, and EPA proposed
 revising the UTS for silver in its Phase
 IV Second Supplemental proposal. The
 grab data used to establish this
 treatment standard was submitted to the
 Agency by an HTMR facility (62 FR
 26041) (Background Documents from
 Second Supplemental proposal).
 Commenters on the Second
 Supplemental reiterated that silver
 should not be on the TC list. However,
 the commenters continued, if silver
 remains on the list for now, EPA should
 not set a  more stringent standard than
 the current one of 5.0 mg/L, but rather
 it should choose a risk-based standard.
 Commenters explained further that little
 DO 11 is disposed, because silver is
 generally recovered from silver wastes.
  In response to the reproposal, the
 Agency received no significant
 comment on the technical aspects of
 achieving the proposed treatment
 standard; however the Agency did
 receive from International Metals
 Company (INMETCO) an additional 74
grab data points on the treatment of
silver using HTMR. (See memorandum
from Howard Finkel, ICF, Inc., to Nick
Vizzone,  USEPA Re: "Calculation of
                        Universal Treatment Standards (UTS)
                        for HTMR Residues Using Data
                        Submitted by Horsehead Research
                        Development Company, Inc. and
                        INMETCO," December 17, 1997.) The
                        Agency used INMETCO data for the
                        calculation of the proposed treatment
                        standard and determined that this
                        additional data should be included in
                        the data pool. As previously discussed
                        in Section III. A. of today's preamble, the
                        Agency discovered an error in the
                        calculation  of the treatment standard. In
                        applying the LDR methodology for
                        calculating  a treatment standard, the
                        Agency failed to conduct a "Z-score"
                        outlier test.  With the application of this
                        test and the inclusion of the 74
                        additional data points, 3 out of the 114
                        data points, were determined to be
                        outliers, resulting in a revised treatment
                        standard for silver nonwastewaters of
                        0.14 mg/L TCLP. The Agency has
                        reviewed the comments in light of this
                        amended standard and believes  that it
                        can be achieved by both HTMR and
                        stabilization technologies. Data
                        submitted by commenters in response to
                        this proposal also support this
                        conclusion.  See supporting information
                        contained in the docket for this rule.
                         The Agency does not have an
                        adequate basis for taking the actions
                        recommended by some commenters, i.e.
                        to remove silver from the TC list, or
                        regulate it at a less stringent level than
                        the proposed technology-based
                        treatment standard. EPA is in the
                        process of determining whether silver
                        should remain on the TC list at 40 CFR
                        261.24(b) Table 1, or whether the
                        current TC level should be altered. In
                        addition, EPA continues its work on the
                        Hazardous Waste Identification Rule
                        (HWIR) to establish risk-based exit
                        levels for hazardous wastes. The Agency
                        is not yet able to establish a nationally-
                        applicable risk-based level for silver that
                       fulfills the statutory charge of
                       minimizing threats of hazardous waste
                       to human health and the environment.
                         The process of establishing such a
                       level is technically complex; EPA is
                       currently modeling the ecological and
                       human health effects of exposure to
                       silver through numerous pathways.
                       Several issues remain unresolved
                       concerning human health and
                       environmental risk. EPA is continuing
                       to investigate these issues. The Agency
                       recently acquired studies indicating that
                       silver may be connected to central
                       nervous system and other non-cancer
                       effects in humans. The draft Reference
                       Dose for these effects have not been
                       finalized by the Agency for use in risk
                       assessments. (A Reference Dose is a
                       benchmark level for chronic toxicity
                       that is protective of human health.) In
  addition to potential adverse human
  health effects, uncertainties and
  concerns also remain for potential
  adverse environmental effects. Although
  EPA removed the Maximum
  Contaminant Level (MCL) for silver in
  drinking water, the Ambient Water
  Quality Criteria remain in effect due to
  potential aquatic toxicity. Further areas
  of uncertainty are how silver speciates
  after release (i.e. which valence state of
  silver would be present). The issue
  could be important since potential toxic
  effects differ depending on the species
  of silver present. In short, EPA's work
  on understanding risks from disposal of
  silver-containing hazardous wastes is
  ongoing, and it would be premature to
  establish a treatment standard based on
  risk at this time.
   In the absence of such "minimize
  threat" levels for hazardous
  constituents, the Agency establishes
  standards based on Best Demonstrated
  Available Technology (BOAT).  (See full
  explanation in the preamble of the
 Phase II Final LDR rule at 59 FR 47986,
 September 19, 1994.) The fact that the
 UTS for nonwastewater forms of silver
 is being lowered (made more stringent)
 from the existing level of 0.30mg/L to
 0.14 mg/L is due to new data on what
 treatment technology achieves.  As
 explained in the summary of this
 preamble section (Section III: Revised
 Land Disposal Restrictions for Metal
 Constituents in All Hazardous Wastes,
 Including Toxic Characteristic Metals),
 technology-based standards are the best
 assurance that threat is minimized,
 given the uncertainty as to the level at
 which threats of hazardous waste
 disposal are minimized.
  EPA expects that the new treatment
 standard for silver wastes will have
 little, if any impact on the regulated
 community. As stated by commenters,
 high-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.
 Moreover, the Regulatory Impact
 Analysis for this rule estimated that the
 new, more stringent UTS levels for
 metal constituents, including silver, will
 not increase compliance costs. This is
 because the current treatment methods
 already achieve the new standard of
 0.14 mg/L in silver nonwastewaters.
 (Achievability of the UTS for TC silver
wastewaters is not an issue; EPA
received no comments nor data on its
proposal to apply the existing UTS of
0.43 mg/L.)
  Thus, the Agency is promulgating the
wastewater standard of 0.43 mg/L as
proposed and the nonwastewater

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              Federal Register/Vol.  63, No. 100/Tuesday, May 26,  1998/Rules and Regulations       28571
standard of 0.14 mg/L. If EPA changes
the status of silver on the TC list, EPA
will revisit the treatment standards for
silver wastes.
  (Hi) Universal Treatment Standard
(UTS) for Silver Nonwastewaters.
(Please refer to the discussion above
about the development of the treatment
standard for characteristic silver for
information on the development of the
UTS levels.) In today's final rule, EPA
is promulgating a nonwastewater UTS
of 0.14 mg/L TCLP for silver.
  /. Final Universal Treatment Standard
for Nonwastewater Forms of Thallium.
The Agency proposed in the Second
Supplemental Proposed Rule to change
the UTS for thallium-containing
nonwastewaters from 0.078 mg/L TCLP
to 0.20 mg/L.  (The original standard was
based on composite sampling from an
HTMR facility). This proposal was
based on new data obtained by the
Agency and presented in that notice.
Several  cornmenters supported the
change. However, two commenters
argued that EPA had not demonstrated
that existing commercial technologies
were capable  of achieving the proposed
standards or that technologies were
otherwise available. The Agency
remains unconvinced by the arguments
of the commenters and notes that they
supplied no treatment data in support of
their contentions. Accordingly, the
Agency is today promulgating as
proposed a revised UTS for
nonwastewaters containing thallium of
0.20 mg/L TCLP. No change was
proposed for wastewater containing
thallium; therefore the UTS remains 1.4
mg/L.
  m. Final Treatment Standard for
Nonwastewater Forms of Vanadium in
PI 19 and PI 20 Wastes. The Agency
proposed in the Second Supplemental
Proposed rule to change the UTS for
nonwastewaters containing vanadium in
P119 and P120 wastes from 0.23 mg/L
TCLP to 1.6 mg/L TCLP. This proposal
was based on new data obtained by the
Agency and presented in that notice.
Commenters were supportive of the
change. The treatment standard of 1.6
mg/L TCLP is being promulgated as
proposed. No change was proposed for
wastewater containing vanadium in
PI 19 and P120 wastes, therefore, the
UTS remains 4.3 mg/L. The Agency
would like to point out that vanadium
is not an "underlying hazardous
constituent" in characteristic waste,
according to the definition at 268.2(i).
  n. Final Treatment Standard for
Nonwastewater Forms of Zinc in K061
Waste. The Agency proposed in the
Second Supplemental Proposed rule to
change the treatment standard for zinc
nonwastewaters in K061 waste from 5.3
mg/L to 4.3 mg/L . This proposal was
based on new data obtained by the
Agency and presented in that notice.
One commenter was supportive of the
change, while two other commenters
were concerned with zinc being
identified as an UHC. Still another
commenter, a major HTMR facility,
submitted data (152 data points)
showing 100% compliance with the
standard after 6 high statistical outliers
were removed. Indeed, the great
majority of these data showed zinc at
levels an order of magnitude .below the
promulgated standards. EPA believes
these data confirm the achievability of
today's standard. Therefore, the Agency
is today promulgating a revised
nonwastewater treatment standard of
4.3 mg/L TCLP for K061 waste. No
change was proposed for wastewater
containing zinc in K061; therefore the
UTS remains 2.61 mg/L. In response to
the comments regarding zinc as an UHC,
the Agency would like to point out that
zinc is only regulated in K061 waste; it
is not defined as an "underlying
hazardous constituent" in characteristic
waste, according to the definition at
268. (i).
                       UNIVERSAL TREATMENT STANDARDS FOR TWELVE METAL CONSTITUENTS
                   [Affecting Nonwastewater TC Metal Wastes and Nonwastewater Metal Constituents in All Wastes]
Waste code
none
fww?
rwv7
nflOA
rxvyo. all nlhure
nnift
D011






Constituent



Lead 	 	 	





Nickel 	 	 	 	 	


Zinc" 	
TC level (mg/
100
.t)
9
S
a
JO
S






Existing UTS
level (mg/L
TCLP)
7.6
0.19
0.86 '
0.37
0.025
0.16
0.30
3
014
S
078
123
a
2nd supple-
mental pro-
posed UTS
level (mg/L
TCLP)
21.0
0.20
0.85
0.75
0.025
5.7
0.11
*0.07
*0.02
13.6
0.20
1.6
4.3
Final UTS
level (mg/L
TCLP)
21.0
0.11
0.60
0.75
0.025
5.7
0.14
1.15
1.22
11.0
0.20
1.6
4.3
  •The proposed UTS levels for antimony and beryllium were rounded up to the nearest 0.01 mg/L TCLP.
  "Vanadium and zinc are not underlying hazardous constituents.
  Noto: Treatment standards for TC metal wastewaters have also been revised in today's rule, but are not reflected in this table.
 D. Use of TCLP to Evaluate Performance
 of Treatment Technology for Treating
 Hazardous Metal Constituents

   Commenters did not question the
 appropriateness of using the TCLP as a
 means of evaluating the performance of
 the treatment technology used to treat
 metal hazardous constituents in
 hazardous wastes. EPA is addressing the
 issue sua sponte to set out why the
 recent opinion of the D.C. Circuit in
 Columbia Falls Aluminum Co. v. EPA
 (No. 96-1234, April 3, 1998) does not
 affect use of the TCLP for this purpose.
   Columbia Falls presented an unusual
 set of facts. EPA had established
 treatment standards for spent aluminum
 liners  (waste K088), which standards
used the TCLP to measure performance
of the treatment technology for several
hazardous constituents, including
arsenic and fluoride. All of the
commercial treatment capacity for this
waste was provided by a single facility,
and all of the treatment residue from
this single process was disposed at a
single  location. Slip op. at p. 6; 62 FR

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at 1993 (Jan. 14, 1997). Notwithstanding
that the treatment process was able to
achieve the treatment standards for
arsenic and fluoride as measured by the
TCLP (i.e., the treatment residue, when
tested with the TCLP, never exceeded
the regulatory levels), actualleachate
from the disposal site contained
significantly higher levels of these
constituents. Id. EPA also had not
offered any substantive explanation for
continued use of the TCLP to measure
performance of the treatment process for
these constituents after the extreme
disparities in actual performance in the
field became known. Id. p. 18. Under
these circumstances, the court held that
it was arbitrary and capricious to
continue to use the TCLP because it
bore no rational relationship to what
was actually occurring. Id. p.  19.
  None of these circumstances are
present here. The TCLP has not been
shown here to be underpredictive of
performance of treatment technology for
key hazardous constituents for any
wastes, much less, as inColumbia Falls,
to be drastically underpredictive (for
two constituents) for 100 % of the
wastes to which the test applied.
Moreover, the wastes affected by the
standard in today's rule will not
uniformly be going to a single disposal
environment where actual leaching of
key constituents is shown to be higher
than the regulatory level. Rather, the
wastes will be decharacterized and so
can be disposed in any landfill:
municipal, subtide D or subtitle C.
Given the enormous diversity of
characteristic wastes and the diversity
of likely disposal environments, the
TCLP will not pervasively underpredict
as was the case with spent potliners.
Unlike the situation in Columbia  Falls,
therefore, there is no argument that
application of the TCLP to measure
treatment performance will fail to
minimize threats posed by these wastes'
land disposal.1
  EPA also emphasizes that the LDR
treatment standards are technology-
based, not risk-based. A key role of the
TCLP in the treatment standard is to
measure whether the best demonstrated
treatment technology has been properly
applied to the waste. Thus, unlike the
situation when the test is used as a
means of identifying whether or not
  'Nor is there a legitimate argument that the TCLP
is impermissibly overpredictlve. Indeed, since the
TCLP has already been upheld as a means of
identifying many of these metal-containing wastes
as hazardous, Edison Electric Inst. v. EPA, 2 F.3d
438.444-45 (D.C. Cir. 1993). and since the
'minimize threat' requirement in section 3004(m) is
a more stringent test. HWTC III, 886 F.2d at 363,
a fortiorari it is reasonable to use the TCLP as part
of the process of assuring that threats posed by land
disposal of these wastes are minimized.
                         wastes are hazardous, the TCLP is not
                         principally serving a predictive function
                         when it is used as a component of an
                         LDR treatment standard. The test is
                         normally a good measure of evaluating
                         the performance of treatment technology
                         both because it is a widely-available test
                         for metal mobility, and also because it
                         is typically somewhat aggressive
                         (Edison Electric, 2 F.3d at 445). Thus, it
                         is a useful tool for measuring whether
                         metal mobility has been substantially
                         reduced in order that threats posed by
                         land disposal be minimized (as required
                         by section 3004 (m)). In the Agency's
                         view, therefore, questions as to the
                         validity of the TCLP as a component of
                         LDR treatment standards are raised only
                         under the extreme circumstances
                         present in Columbia Falls, where, for all
                         wastes and all disposal scenarios
                         affected by the standard, large
                         disparities between actual
                         environmental field results and the
                         treatment standard raise significant
                         questions as to whether treatment is
                         minimizing threats. These questions are
                         not present for the metal-containing
                         wastes here.

                         IV. Application of Land Disposal
                         Restrictions to Characteristic Mineral
                         Processing Wastes

                         Summary
                          EPA is today finalizing its proposal to
                         apply the Universal Treatment
                         Standards (UTS), as revised in part
                         today, to the newly identified
                         characteristic mineral processing
                         wastes. In earlier rules and a Report to
                         Congress, EPA has determined which
                         mineral processing wastes are not
                         excluded in the Bevill Amendment and
                         are thus considered "newly identified"
                         wastes subject to RCRA regulations. (See
                         54 FR 36592, September 1, 1989; 55 FR
                         2322, January 23, 1990; and Report to
                         Congress on Special Wastes from
                         Mineral Processing, USEPA, July 31,
                         1990.) The treatment standards being
                         promulgated today are located in the
                         table "Treatment Standards for
                         Hazardous Wastes" at 268.40 in the
                         regulatory language for today's rule. The
                        wastes are identified by characteristic
                        waste code (e.g. D002 corrosive waste,
                         or D008 TC lead waste); there is no
                        separate section in that table for
                        characteristic mineral processing
                        wastes.

                        A. Proposal, Comments, and Responses
                          In the original Phase IV, EPA
                        proposed to apply the metal UTS, as
                        measured by die TCLP (60 FR 43582,
                        August 22, 1995) to all TC metal wastes.
                        On January 25,  1996, EPA further
                        proposed to apply the existing UTS to
 the newly identified mineral processing
 wastes, i.e., mineral processing wastes
 that exhibit a characteristic and do not
 have Bevill status and are not excluded
 from being a solid wastes due to
 recycling. The Agency stated in this
 proposal that existing data showed that
 these "newly identified" mineral
 processing wastes were similar to those
 wastes for which the UTS was
 achievable, and consequently the UTS
 fairly reflected the performance of Best
 Demonstrated Available Technology
 (BOAT) for these wastes. (See 61 FR
 2338 for a complete discussion of the
 Agency's rationale for extending the
 UTS  to both wastewater and
 nonwastewater forms of "newly
 identified" mineral processing wastes.)
   Many commenters in response to this
 proposal took issue with the Agency's
 conclusions that the existing data
 demonstrated that the UTS was
 achievable for the newly identified
 mineral processing wastes and Stated
 that the record for the rulemaking
 reflected no such showing. The
 commenters further argued that to
 develop representative treatment
 standards for mineral processing wastes,
 the Agency must: (1) Collect and
 analyze a representative mineral
 processing waste characterization and
 treatability data set; (2) analyze that data
 using well-reasoned and documented
 methods for determining the treatability
 of the subject wastes;  (3) make a
 determination as to whether the UTS or
 some other LDR treatment standards are
 appropriately applied to mineral
 processing wastes; and (4) provide
 notice and an opportunity to comment
 on that determination prior to imposing
 any LDR treatment standards on such
 wastes. Several other commenters took
 issue with the Agency's use of only
 HTMR data to develop the treatment
 standards.
   As  a result of these comments and
 others received in response to the
 original Phase IV rule, the Agency
 decided to further assess the treatment
 of TC metal wastes and mineral
 processing wastes. As previously
 discussed in today's preamble, the
 Agency collected actual stabilization
 performance data during three site visits
 conducted in September 1997. In
 particular, treatment data were collected
 for the following primary mineral
 processing wastes: cadmium sponge
 residue, cupel and crucibles from fire
assay laboratories, slag from fire assay
 laboratory, soil and debris contaminated
with sulfuric acid, blast furnace slag,
 baghouse dust, lead/bromide residue,
and gold ore leach tailings. In addition,
treatment data from the following
secondary mineral processing wastes

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                                                                    28573
were also collected: lead slag waste,
lead-bearing assay laboratory wastes,
lead contaminated wastes, cupels, and
debris; blast furnace slag, lead recycling
by-products, lead contaminated soils,
and lead battery recycling slag waste.
Many of these wastes were particularly
difficult to treat due to high total and
leachable levels of metals, extreme Ph,
and presence of multiple hazardous
metal constituents.
  As previously discussed in an earlier
section of today's preamble, the Agency
assessed two data sets representing
performance of stabilization and HTMR
for the treatment of metal-containing
waste streams. This assessment began
with the calculation of treatment
standards for each of the two data sets.
Next, the Agency compared the
treatment levels for stabilization versus
HTMR. Based on this comparison, the
Agency selected the highest level for
each metal as the proposed UTS to
allow for process variability and
detection limit difficulties. As noted
earlier, this approach is consistent with
the legislative goal of providing
substantial treatment through standards
that are achievable by an array of well-
performing available treatment
technologies.
  On May 12,1997, the Agency issued
a Second Supplemental Proposal (62 FR
26041). In it, EPA proposed to change
the numerical limits for all
nonwastewater wastes containing the
following metal constituents: antimony,
arsenic, barium, beryllium, cadmium,
chromium, lead, mercury, nickel,
selenium, silver, thallium, vanadium,
and zinc. EPA also proposed these same
UTS treatment standards for TC metal
wastes Identified as hazardous due to
the concentration of barium, cadmium,
chromium, lead, selenium, or silver.
Based on the data collection efforts, the
methodology used to develop these
revised standards, and the
preponderance of mineral processing
treatment data used to calculate the
Standards, the Agency was convinced
that the transferability of the universal
treatment standards to mineral
processing wastes was well supported.
  In response to these revised treatment
standards and their application to
mineral processing wastes, the Agency
received few comments. Several
commenters supported the Agency's
decision to apply the LDR treatment
standards to mineral processing wastes.
A limited few, however, continued to
argue that EPA's application of the LDR
program to mineral processing wastes
was not supported by  the record. The
commenters' position is
unsubstantiated, relying entirely  upon
assertions that the standards are not
achievable. No data was submitted to
support the commenters' position.
Conversely, the data in hand (some of
which reflect successful treatment of
hard-to-treat mineral processing wastes)
show that the treatment standards are
achievable using either stabilization  or
HTMR for mineral processing wastes.
As a result, the Agency is today
finalizing the applicability of the
existing UTS to the newly identified
mineral processing wastes.
  The reader is referred to an earlier
section of today's preamble for a
complete discussion of treatment
standards for metal wastes being
promulgated today.
B. Clarification That Universal
Treatment Standards Apply to Ignitable,
Corrosive, and Reactive Characteristic
Mineral Processing Wastes
  As discussed above, the treatment
standards promulgated in this rule will
apply to all the newly identified
characteristic wastes from mineral
processing operations. This includes not
only the mineral processing wastes
exhibiting the toxicity characteristic
(TC), but also wastes that exhibit the
characteristic of ignitability (D001);
corrosivity (D002); or reactivity (D003).
(See definitions of these characteristics
at 40 CFR 261.20 through 261.23.) The
treatment standards found in 40 CFR
268.40 require removal of the
characteristic as well as meeting the
treatment standards for all underlying
hazardous constituents (UHCs)
reasonably expected to be present at
levels above the UTS. The Agency
received no comment on this issue at
proposal (see 61 FR 2338, January 25,
1996). Therefore, the Agency has no
reason to believe that the UTS are not
achievable for mineral processing
wastes also exhibiting the characteristic
of ignitability, corrosivity and/or
reactivity. As such, the Agency is today
promulgating the application of UTS to
D001, D002, and D003 mineral
processing wastes.
C. Use ofTCLP to Evaluate Performance
of Treatment Technology for Treating
Hazardous Metal Constituents in
Mineral Processing Wastes
  Part of this rulemaking involves
consideration of what the appropriate
regulatory test is to determine if mineral
processing wastes exhibit the toxicity
characteristic. The Agency addresses
this issue in detail later in this preamble
when discussing retention of the TCLP
for this purpose. Here, we confirm that
the Agency will also continue to use the
TCLP as part of the LDR treatment   .
standard for these wastes. Although
commenters did not raise this issue,  the
Agency feels that addressing it is
appropriate in light of the D.C. Circuit's
recent decision in Columbia Falls
Aluminum Co. v. EPA (No. 96-1234,
April3, 1998).
  The critical component in making
waste identification determinations (i.e.,
to determine whether a waste  should be
regulated) is ascertaining a plausible
mismanagement scenario for the waste
if unregulated, and finding a predictive
model that can reasonably evaluate
whether the waste is capable of posing
substantial present or potential harm to
human health and the environment
under those conditions. Edison Electric
Inst., 2 F. 3d at 444. This issue simply
does not arise in the LDR context since
the wastes subject to LDR are regulated
hazardous wastes, and the issue of
where and how they would have been
managed absent Subtitle C regulation is
irrelevant.
  In the LDR context, all land disposal
(except that occurring in no-migration
units) is defined as being unprotective
(see, e.g. RCRA section 3004(d)(l)),
largely due to the "long-term
uncertainties associated with land
disposal"  (id.). For this reason,
treatment standards reflecting
performance of Best Demonstrated
Available Technology provide an
objective means of removing as much of
this inherent "long-term uncertainty" as
possible, and so permissibly achieve the
ultimate requirement of minimizing
threats posecl by land disposal of
hazardous wastes. HWTC III, 886 F. 2d
at 362-65; 55 FR at 6642 (Feb. 26, 1990).
The principal role of the TCLP in these
treatment standards is assuring the
performance levels achievable from use
of these best treatment technologies, not
predicting environmental fate in the
disposal environment.
  As discussed earlier, the TCLP is
historically accepted  as being well-
suited for evaluating performance of
treatment technology for metals given
its availability and general
aggressiveness for mobilizing metals.
Also, we note that since the TCLP serves
a different purpose in the LDR treatment
standards than it serves for identifying
wastes as  hazardous,  and since it is
well-suited for that purpose, there
would be no contradiction in using it as
part of the LDR standard even if a
different test were to be used
(presumably in the future) for  waste
identification.
  Nor does the Columbia Falls opinion
undercut use of the TCLP as a
component of treatment standards for
mineral processing wastes. As noted
earlier with respect to other toxic metal-
containing wastes, EPA does not view
Columbia Falls as requiring a change in

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Federal Register/Vol. 63, No.  100/Tuesday, May 26,  1998/Rules and Regulations
use of the TCLP as part of the LDR
treatment standards. The TCLP has not
been shown generally to be
underpredictive of performance of
treatment technology for key hazardous
constituents for any wastes, much less,
as in Columbia Falls,  to be drastically
underpredictive (for two constituents)
for 100% of the wastes to which the test
applied. For all mineral processing
wastes to which it was applied, the
TCLP test has not been shown to be
underpredictive either, and so would be
part of the mechanism for assuring that
treatment minimizes threats posed by
land disposal of these wastes. Moreover,
it should be noted that mineral
processing wastes can be and are treated
commercially, and the treatment
residues are then disposed along with
other wastes in different types of
disposal units. See, e.g. the document
entitled, "Background Documents
Supporting the Phase IV Final Rule:
Metal Treatment Standards" in the
RCRA Docket (commercial treatment
company treating  mineral processing
wastes along with other metal-
containing wastes and disposing of
commingled treatment residues). These
units certainly can generate mildly
acidic leachate. 51 FR at 40594 (Nov. 7,
1986). Given these circumstances, the
TCLP is an appropriate part of a
standard which minimizes threats posed
by land disposal of these wastes.
V. Other LDR Issues That May Affect
Both Toxic Characteristic Metal Wastes
and Characteristic Mineral Processing
Wastes
A. Treatment Standards for Soil
Contaminated With TC Metal Wastes or
Characteristic Mineral Processing
Wastes
1. Summary

  EPA has decided that the LDR
treatment standards (i.e., UTS) for
toxicity characteristic metals (D004-
D011) and newly identified mineral
processing wastes being promulgated in
today's rulemaking will not apply to
soils contaminated with these
hazardous wastes. Instead, these
contaminated soils will be subject to the
treatment standards for soil originally
proposed in a separate rulemaking
entitled the Hazardous Waste
Identification Rule for Contaminated
Media  ("HWIR-Media") (61 FR 11804,
April 29,  1996). These treatment
standards are being finalized in a
separate section of today's rule.
However, because of their impacts on
TC metal and mineral processing
wastes, a brief introductory discussion
is warranted at this point.
                        2. Discussion of Today's Approach
                          In the Phase IV proposed rule (60 FR
                        43682, August 22, 1995), the Agency did
                        not specifically exempt soil
                        contaminated with TC metal wastes
                        from the newly proposed LDR
                        standards; thus, the UTS standards for
                        metals would have applied to TC metal
                        soils. In the Phase IV First
                        Supplemental Proposal (61 FR 2338,
                        January 25, 1996), the Agency proposed
                        applying existing universal treatment
                        standards to newly identified mineral
                        processing wastes, i.e., to mineral
                        processing wastes that exhibit a
                        characteristic, do not have Bevill status,
                        and are not excluded from being solid
                        wastes due to recycling. As a
                        consequence, soils contaminated with
                        these newly identified mineral
                        processing wastes would also have been
                        subject to UTS.
                          In today's rule, the Agency is
                        finalizing alternative treatment
                        standards for contaminated soil
                        reproposed in the HWIR-Media
                        rulemaking. (See the section of this
                        preamble on treatment standards for
                        contaminated soil.) These treatment
                        standards for hazardous contaminated
                        soils are being finalized for all
                        hazardous wastes, including TC metal
                        and newly identified mineral processing
                        wastes.
                        B. LDR Treatment Standards for
                        Manufactured Gas Plant Waste (MGP)
                        1. Summary
                          Today, the Agency is promulgating
                        treatment standards for hazardous MGP
                        wastes and soils, i.e., wastes and
                        contaminated soils that resulted from
                        processing coal to produce gas and that
                        exhibit a characteristic of hazardous
                        waste.  Typically these operations were
                        conducted at manufactured gas plants
                        until the 1950s, and wastes remain at
                        those closed MGP sites. MGP wastes are
                        among the mineral processing wastes
                        which  the Agency determined in  1989
                        and 1990 to be subject to RCRA
                        jurisdiction because they are not
                        excluded from RCRA by the Bevill
                        Amendment. See 54 FR 36592
                        (September 1, 1989). Hence, they are a
                        subset  of the newly identified mineral
                        processing wastes covered by the
                        prohibitions and treatment standards
                        promulgated in this rule.
                          On January 25, 1996, EPA proposed to
                        apply LDR treatment standards to MGP
                        wastes (61 FR 2360). MGP wastes are no
                        longer  being produced, since
                        manufactured gas plants are no longer
                        in operation. The Agency notes that the
                        LDRs only apply at closed MGP sites
                        that are excavated and managed in a
                        way that constitutes placement in a land
disposal unit (See 61 FR 18805, April
29, 1996.) The LDRs would require that
actively managed MGP wastes be treated
to eliminate any characteristics and to
achieve the UTS for any underlying
hazardous constituents prior to land
disposal. Today's rule finalizes the UTS
for MGP wastes that exhibit the toxicity
characteristic. However, for soils
contaminated with MGP wastes, EPA is
today promulgating treatment standards
specifically for hazardous soil. These
soil standards, generally, require
treatment to achieve 90 percent
reduction of hazardous constituent
levels, or 10 times the UTS levels. See
Section VII of this preamble.
  Today's rule does not alter the
Agency's 1993 memorandum that
interpreted existing rules to say that the
ash that results from burning MGP
remediation wastes along with coal in
utility boilers remains covered by the
Bevill amendment and hence is not
regulated under Subtitle C rules. (See
memorandum, dated April 26, 1993,
entitled "Remediation of Historic
Manufactured Gas Plant Sites", from
Sylvia K. Lowrance, Director of the
Office of Solid Waste, to EPA Regional
Waste Management Division Directors.
The memorandum is located in the.
RCRA docket for the Phase IV
Supplemental Proposal dated January
25, 1996; 61 FR 2338.) Such residuals
are considered to be covered by the
Bevill amendment because they result
primarily from the combustion of coal
(assuming, if the MGP remediation
wastes that are co-burned are hazardous,
the residues are not significantly
affected by burning the MGP wastes,
within the meaning of 40 CFR section
266.112).

2. Background

  Manufactured gas plants were
designed to generate gas from coal. The
coal tar residuals generated from the
process remain at these historic MGP
sites. Many of these sites have soils
contaminated with these coal tar
residuals. The majority of these
contaminated soils will come from the
cleanup of historic  MGP sites. A
significant portion of the soil is
nonhazardous, but approximately 15
percent of the soils fail the toxicity
characteristic leaching procedure test
for benzene. These  toxicity
characteristic (TC) soils also typically
contain PAHs, heavy metals, inorganics,
volatile aromatics, and phenolics. At    a
certain closed MGP sites, there can be
non-soil hazardous wastes, e.g., coal tars
in tar holders, which may need to be -
treated to UTS levels if they are actively
managed and land disposed.

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                                                                    28575
3. Public Comments and EPA Responses
  Commenters expressed several major
concerns about the Phase IV proposal to
apply UTS to MGP wastes. First, they
urged the Agency to delay
Implementing the soil standards until
the final HWlR-media rule becomes
effective. In addition, commenters
requested that EPA re-affirm the
Agency's 1993 co-burning memorandum
for MGP wastes. Finally, commenters
urged the Agency to establish specified
treatment methods for those MGP
wastes that will not be managed
according to the Agency's 1993 co-
burning memorandum, rather than
making the wastes subject to the UTS
concentration levels as proposed. One
commenter identified several methods
of management that could be specified:
"recycling  technologies including the
use of coal tar residuals to manufacture
asphalt, bricks, and cement; and
combustion technologies that include
utility boiler co-burning, incineration
and thermal desorption." The
commenter stated that specified
methods would preserve flexibility for
managing MGP site remediations and
remove regulatory barriers to
expeditious site cleanups.
  Regarding the commenter's concern
about the coordination of Phase IV
standards and the HWIR-media rule, the
Agency is finalizing treatment standards
for hazardous contaminated soils in a
separate section of today's rule.  Also,
although the Agency did not reopen the
issue, the Agency confirms that the 1993
co-burning interpretation remains ^n
effect.
  The Agency has studied carefully the
comment urging the Agency to specify
incorporation of MGP waste into
asphalt, bricks, or concrete as a
designated method of treatment, which
would have the effect of making wastes
so treated not subject to meeting
numerical treatment standards for
hazardous constituents. The recycling of
hazardous waste-contaminated soil in
asphalt, brick, or cement manufacturing
produces products that potentially
could be applied or placed on the land.
These recycling practices incorporate
the contaminated soils into the
products, and, thus, are considered to be
a "use constituting disposal" (see
section 261.2 (c) (1)). The use
constituting disposal practice (assuming
legitimate recycling is occurring) is
regulated per the provisions of 40 CFR
sections 266.20 through 266.23. This
issue is discussed in more detail in
section VII  of the preamble.
  At this time, the Agency does not
have adequate information on asphalt,
brick, or cement produced from MGP
hazardous waste to determine whether
these waste-derived products minimize
threats posed by land disposal of MGP
wastes. (See also response to USWAG
comment #00035 in "Phase IV Response
to Comments" in the docket to this
rule.) Until the Agency can further
study the issue, it is not designating
production of these materials from MGP
soils as a specified method of treatment.
Existing 266.23 (a) continues to apply.
And,  as noted earlier, for MGP sites in
particular, the Bevill exclusion still
applies for MGP wastes co-burned in
coal-fired utility boilers.
  EPA is aware that the regulated
community has requested various types
of flexibility from LDR treatment
standards in managing their site-specific
cleanup, remediation, and/or removal
activities of these wastes and
contaminated soils. With the possible
exception of use consituting disposal
scenarios, the Agency continues to
believe that more complete relief for
remediation wastes is needed,
particularly with respect to the land
disposal restrictions and is best
provided by targeted statutory change.
Thus, the Agency will continue to
participate in discussion of potential
legislative solutions on this important
issue.
  Please refer to the Phase IV response
to comments document that is available
at the RCRA docket for responses to
other issues raised by commenters.
C. Treatment Standards for Debris
Contaminated With Phase IV wastes
  The Agency is clarifying that debris
contaminated with TC metal or
characteristic mineral processing wastes
can be disposed if it meets the treatment
standards established in this rule, but
also can be disposed if it meets the
standards for debris set out at 40 CFR
268.45.
D. Treatment Standards for Radioactive
Mixed Waste

1. Background
  Radioactive mixed wastes are wastes
which satisfy the definition of
radioactive waste subject to the Atomic
Energy Act (AEA) 10 CFR Part 61 and
also contain waste that is either listed as
a hazardous waste in Subpart D of 40
CFR Part 261, or that exhibits any of the
hazardous characteristics identified in
Subpart C of 40 CFR Part 261. Since the
hazardous portions of the mixed waste
are subject to RCRA, the land disposal
restrictions apply to the mixed waste.
Today's rule promulgates revised
treatment standards for radioactive
wastes that are mixed with metal
characteristic wastes and do not
 currently have a method of treatment
 (i.e. HLVIT) specified as BOAT.
  Treatment standards for radioactive
 waste mixed with metal-bearing waste
 were first promulgated in the Third
 Third rule at 55 FR 22626 (June 1,
 1990). That rule established a
 subcategory of mixed wastes for a
 specific high level wastestream at the
 Savannah River site, for which a
 specified method of treatment is
 currently required. This method is
 HLVIT (vitrification of high-level
 radioactive waste)  for radioactive high-
 level wastes generated during the
 reprocessing of fuel rods mixed with
 characteristic metal wastes. This was
 done because of the human health
 hazards associated with sampling that
 would be required if numerical
 standards were applied. The Third
 Third rule stated that all the
 promulgated treatment standards in that
 rule for RCRA listed and characteristic
 wastes apply to the RCRA hazardous
 portion of mixed radioactive (high-level,
 TRU, and low-level) wastes, unless EPA
 has specifically established a separate
 treatability group for a specific category
 of mixed waste. Thus, that rule required
 that radioactive waste mixed with metal
 characteristic waste would have to
 comply with the LDR treatment
 standard for the metal characteristic
 waste, as well as any requirements set
 forth  by the NRC for the radioactive
 component of the mixed waste.
  Because today's rule revises the
 treatment standards for metal
 characteristic wastes (i.e., revising
 certain metal numeric treatment
 standards, and applying UTS levels to
 underlying hazardous constituents in
 the characteristic waste), the treatment
 standards for radioactive waste mixed
 with metal characteristic waste that
 were  not specifically subcategorized in
 the Third Third rule are also affected.
 Today's rule also revises treatment
 standards for twelve metal constituents
 in all wastes, including radioactive
 mixed wastes. In conclusion, unless
 specifically noted in Section 268, the
 treatment standards promulgated today
 apply to all mixed wastes.
 2. Proposal and Issues Discussed by
 Comments
  In addition to revising metal
 characteristic treatment standards that
 apply to mixed waste, the Phase IV
 proposal also discussed mixed
radioactive and characteristic metal
wastes which have been previously
stabilized to meet the LDR
requirements, and are now being stored
until disposal capacity becomes
available. The rule proposed to allow
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Federal Register / Vol. 63, No.  100/Tuesday, May 26,  1998/Rules and Regulations
 characteristic metal mixed wastes to
 comply with the LDR metal standards
 that we're in effect at the time the waste
 was stabilized. More simply, they would
 require no further treatment to comply
 with the newly promulgated TC metal
 standards. The proposal stated that
 mixed radioactive/characteristic metal
 wastes that are stabilized after the
 effective date of Phase IV would be
 subject to the metal treatment standards
 promulgated in the Phase IV
 rulemaking.
  The majority of commenters agreed
 with this approach. The Agency
 believes  that requiring facilities to re-
 treat the wastes could pose significant
 threats to human health and the
 environment (worker exposure,
 environmental releases). Essentially,
 requiring these wastes to meet the
 newly promulgated treatment standards
 could necessitate treaters opening
 sealed drums of stabilized mixed waste,
 grinding the stabilized material, and re-
 treating to comply with the treatment
 standards for the few constituents for
 which EPA is lowering the standards.
 One commenter wanted the exemption
 to be broadened to include wastes that
 were treated by methods other than
 stabilization. Because the exposure
 concerns of re-treating the previously
 stabilized waste primarily center around
 the idea of first grinding up the
 stabilized material to retreat it and the
 potential added radiological exposures
 attendant thereto, the broadening of this
 exemption without more specific
 information is not warranted at this
 point. Of course, if any wastes already
 meet the applicable treatment standards,
 for example macroencapsulation, then
 there is no need to initiate further
 treatment. It is important to emphasize
 that the Agency does not want any more
 handling of this material than is
 necessary, and we will entertain site-
 specific treatment variances to ensure
 that the appropriate balance is struck to
 ensure minimization of threats.
  As noted, the majority of commenters
 agreed that hazards from added worker
radiation exposure associated with re-
 treatment (i.e., opening drums, grinding
already treated masses of mixed waste)
would probably offset any gain in
protection of human health and the
environment resulting from compliance
with the new metal treatment standards
proposed in Phase IV. It was pointed out
by one commenter that this is consistent
with the Storage Prohibition (40 CFR
268.50(e)), where wastes that have met
the applicable treatment standards are
excluded from the storage prohibition.
In addition, one commenter stated that
these wastes have been treated to meet
the LDR standards in place at the time
                        of treatment, and the only reason they
                        have not already been land disposed is
                        that capacity has not been available. The
                        one commenter who disagreed with the
                        proposal stated that neither retreatment
                        nor an exemption from the new
                        standards are reasonable options, but
                        prefers retreatment. The commenter did
                        not provide support, and the Agency is
                        not persuaded that retreatment is
                        environmentally preferable. Thus, the
                        Agency is promulgating the exemption
                        as proposed. In response to comments,
                        EPA is also indicating that the same
                        principle applies with regard to listed
                        wastes stabilized to meet a previous
                        treatment standard, which standard is
                        affected by this rule because the metal
                        UTS have changed. Again, retreating
                        these wastes would likely create new
                        threats, not minimize them.
                          One DOE facility requested that the
                        Agency clarify whether a waste required
                        to be treated by a specific technology
                        (i.e., HLVIT) would be required to be
                        further treated for any UHCs present in
                        the  waste above UTS levels. The Agency
                        is not imposing additional treatment
                        requirements on those wastes for which
                        a method of treatment (HLVIT) is
                        specified.
                          Four facilities are concerned that
                        uranium mills tailings will not remain
                        exempt under RCRA. These wastes are
                        by-product materials from uranium
                        mining (i.e., waste acids from solvent
                        extractions, barren lixiviants, slimes
                        from solvent extraction and waste
                        solvents generated in the beneficiation
                        process during the extraction of
                        uranium ore) and, therefore, are
                        excluded from the treatment standards
                        being promulgated today for TC metal
                        wastes. With respect to the radioactive
                        mineral processing  wastes, RCRA
                        Section 1004 (27) as codified in 40 CFR
                        261.4(a)(4) states that "...source, special
                        nuclear or by-product material as
                        defined by the Atomic Energy Act of
                        1954 as amended, 42 U.S.C. 2100 et
                        seq..." are not solid wastes. Therefore,
                        such excluded materials are not subject
                        to this rule. However, all other wastes
                        not excluded under 40 CFR 261.4 are
                        subject to today's rulemaking  (assuming
                        the waste is otherwise subject to today's
                        rule).
                          Therefore, the Agency is today
                        finalizing as proposed numerical
                        treatment standards for radioactive
                        waste mixed with metal-bearing
                        characteristic waste for which no
                        method of treatment has been
                        established as the treatment standard.
 E. Underlying Hazardous Constituents
 in TC Metal Wastes and Characteristic
 Mineral Processing Wastes
   Summary: As with other
 characteristic wastes, TC metal wastes
 (D004—D011) and newly identified
 mineral processing wastes cannot be
 land disposed until the characteristic is
 removed and any underlying hazardous
 constituents (UHCs) are below universal
 treatment standards.
 1. Background
   In 1993, EPA began requiring that, in
 addition to removing the characteristic
 in the characteristic wastes, treatment
 must ensure that UHCs are below their
 UTS levels. (58 FR 29860; see also 59 FR
 47982. See also Chemical Waste
 Managements, EPA, 976 F. 2d at 13-
 14, 16-18 (treatment standards may be
 lower than the level at which waste is
 identified as hazardous, and underlying
 hazardous constituents must be treated
 to minimize threats posed by land
 disposal)). UHCs are any constituents in
 40 CFR 268.48 that are reasonably
 expected to be present at levels above
 the UTS at the point of generation of the
 characteristic waste. See 40 CFR
 268.2(i). EPA's review of the treatment
 data on TC metal and mineral
 processing wastes shows that these
 wastes often contain underlying
 hazardous constituents, and that UTS
 are achievable for the UHCs.
 2. Discussion of Today's Approach
   In the August 22, 1995 Phase IV
 proposed rule, EPA proposed to apply
 treatment standards to all TC metal
 wastes, and on January 25, 1996, EPA
 further proposed the same for
 characteristic mineral processing
 wastes. See 60 FR 43654 and 61 FR
 2338. Furthermore, EPA proposed that
 when the new treatment standards were
 promulgated, all of those newly
 identified wastes would have to be
 treated not only to meet the proposed
 treatment standards, but also to meet
 treatment standards for any UHCs
 reasonably expected to be present (at
 levels above UTS) in those wastes at the
 wastes' point of generation. See 60 FR
 43654.
  One commenter disagreed with the
 Agency's proposal, stating that the TC
 metal wastes that also contain organic
 UHCs would have to be treated by
combustion technologies to achieve the
organic UTS levels. The Agency
disagrees. The organic UTS levels were
based on the performance of combustion
as well as other removal and destruction
technologies. These other removal and
destruction technologies can be used to
treat organic UHCs to UTS levels in TC

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              Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations
                                                                    28577
metal wastes. Thus, pretreatment of the
waste can be used to achieve the organic
UTS levels. In addition, the commenter
believed there would be difficulties in
stabilizing Incinerator ash to meet the
finalized UTS levels for the metals. The
Agency does not agree. In determining
the UTS numbers for each metal, the
wastes with the most difficult to treat
metal constituents were treated by
HTMRand stabilization technologies.
The higher value between the two
technologies was selected as the
treatment standard. Thus, treatment
using either HTMR or stabilization is
expected to achieve the final metal UTS
levels. It should be noted that selenium
Is not being regarded as a UHC since its
treatment standard is above its
characteristic level. Thus, a selenium
characteristic waste will always be
hazardous unless the selenium
concentration is below the characteristic
level of 1 mg/L TCLP. Fluoride,
vanadium, and zinc are other metals not
considered UHCs in characteristic
wastes because these three metals are
not on the Hazardous Constituents
Table. 40 CFR 261 Appendix VIII (i.e.,
they are not "hazardous constituents").
(See Background Document for Phase IV
Second Supplemental Proposed Rule.)
VI. Issues Relating to Newly-Identified
Mineral Processing Wastes
  As explained above. EPA considers
mineral processing hazardous wastes to
be newly identified or listed for
purposes of determining when LDR
prohibitions apply, since their status as
hazardous wastes was not established
until after 1984. Today's rule establishes
prohibitions and treatment standards for
these wastes, pursuant to RCRA section
3004(g)(4).
  However, there are a series of
Important threshold issues in
determining what these prohibitions
and treatment standards apply to,
generally involving the issues of
whether primary mineral processing
secondary materials are solid and
hazardous wastes. There are three main
issues. A fundamental first issue is
whether, if a mineral processing
secondary material  (which would
otherwise be a hazardous waste) is
recycled within the mineral processing
industry sector, it is a solid waste. Of
particular importance in assessing
applicability of the LDR program,  is a
second issue: whether there is land
placement of the mineral processing
secondary material before recycling, or
during the recycling process. If the
material is a waste, a third issue is
relevant: is the waste a beneficiation/
extraction waste or one of 20 mineral
processing wastes that are excluded
from subtitle C regulation under the
Bevill exclusion (see RCRA 3001
           .
  In this rulemaking, EPA also is
addressing certain sub-issues that are
related to determining whether a
particular mining waste is subject to the
Bevill exclusion, including whether a
waste is "uniquely associated" with
mining, how the introduction of non-
exempt, mineral processing feedstocks
into a Bevill process may affect the
Bevill status of the waste generated from
the process, and how the mixture of
Bevill wastes with other hazardous
wastes affects the Bevill status of the
resulting wastes when disposed.
  As stated in the January 1996
proposal, EPA is not reopening in any
respect the Bevill determinations
previously made by the Agency,
including the Agency's articulation in
1989 of the functional distinctions
between beneficiation and mineral
processing. See 61 Fed. Reg. 2354.  Some
commenters misinterpreted EPA's
statements in the proposal generally
describing the beneficiation/processing
distinction as somehow reinterpreting
the scope of the Bevill amendment. That
discussion was intended, however,
merely to restate principles articulated
by EPA in 1989 (see 54 Fed. Reg.
36619), not to reopen in any way the
distinctions as articulated previously by
the Agency. Whether a particular waste
is from beneficiation or mineral
processing will continue to be
determined based on 40 CFR 261.4(b)(7)
and criteria articulated by EPA in the
1989 preamble.
  The following sections of the
preamble discuss these threshold issues.

A. Introduction
  In July of 1988, the U.S. Court of
Appeals, for the D.C. Circuit in
Environmental Defense Fundv. EPA
(EOF II), 852 F.2d 1316 (D.C. Cir. 1988),
cert, denied, 489 U.S. 1011(1989),
ordered EPA to restrict the scope of the
Bevill mining waste exclusion, as it
applied to mineral processing wastes, to
include only "large volume, low
hazard" wastes. In response, the Agency
promulgated several rules that
delineated the scope of the Bevill
exemption for extraction/beneficiation
and mineral processing wastes. In these
rulemakings,  the Agency applied high-
volume/low toxicity criteria for
determining whether a particular waste
was subject to the Bevill exemption. The
Agency also described the general
characteristics that would distinguish
extraction/beneficiation wastes from
mineral processing wastes. The rules
also evaluated which specific mineral
processing wastes were in conformance
with these high volume/low toxicity
criteria and thus were eligible for the
exclusion provided by RCRA
3001(b)(3)(A)(ii) (the "Bevill
exclusion").
  These rules were promulgated on
September 1, 1989 (54 FR 36592) and on
January 23, 1990 (55 FR 2322). EPA was
required to prepare a Report to Congress
which further studied mineral
processing wastes identified in the 1990
rule to determine their regulatory status
under the Bevill exclusion. This report
was issued on July 31, 1990 (Report to
Congress on Wastes from Mineral
Processing).  EPA fully considered
information from, and comments on, the
Report to Congress in a regulatory
determination published on June 13,
1991(56 FR 27300). The list of Bevill
exempt activities and wastes is set out
at 40 CFR 261.4(b) (7).
  Many mineral processing wastes that
EPA determined did not fall within the
Bevill exclusion as a result of the 1991
rule appear to exhibit the toxicity
characteristic due to metal content
(D004-DO11), and also exhibit
corrosivity (D002), and/or reactivity
(D003). For purposes of LDR
applicability, these wastes are "newly
identified" because they were brought
into the RCRA Subtitle C system after
the date of enactment of the Hazardous
and Solid Waste Act Amendments on
November 8, 1984. (See 55 FR at 22667
(June 1, 1990). Hence, their land
disposal has not been prohibited until
today's rule.
  The Agency is currently required by
a court approved consent decree (EDFv.
Browner, No. 89-0598 (D.D.C.)) to
promulgate LDR restrictions for
characteristic and listed mineral
processing wastes, and metal wastes
hazardous under the revised toxicity
characteristic, by April 15, 1998. On
April 14, 1998,  EPA filed an unopposed
motion requesting the Court to extend
the deadline to April 30, 1998 to
establish Land Disposal Restrictions for
newly identified mineral processing
wastes by April, 1998. The legal
obligation to establish prohibitions on
land disposal and treatment standards
for newly identified mineral processing
wastes is established by statute. RCRA
section 3004 (g) (4).

B. Overview of Today's Rule

1. Issues Related to Which Mineral
Processing Secondary Materials are
Subject to LDRs
  As noted above, a threshold question
when considering whether wastes are
prohibited from land disposal is
whether the mineral processing
secondary materials are "solid wastes"

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Federal  Register / Vol. 63, No. 100/Tuesday, May  26,  1998/Rules  and Regulations
 under RCRA. The issue is of importance
 with respect to land disposal
 prohibitions for the mineral processing
 industry because this industry recycles
 mineral processing secondary materials
 that exhibit hazardous waste    !
 characteristics, and sometimes uses
 land-based units—piles and
 impoundments—to store these materials
 before recycling. Thus, there is an issue
 as to whether such materials are solid
 wastes subject to the land disposal
 prohibition (as well as to the rest of
 Subtitle C). The Agency issued two
 proposals (61 FR 2338, January 25,
 1996, and 62 FR 26041, May 12,  1997)
 which discussed potential RCRA
jurisdiction over secondary materials
 from mineral processing that are
 reclaimed within the industry sector
 and sought comment on a proposed
 conditional exclusion from the
 definition of solid waste.
  We now further summarize how
 today's rule deals with issues raised by
 whether and when mineral processing
 secondary materials, when placed in
 land-based storage units, are subject to
 the LDR standards and other Subtitle C
 controls. The rationale for the Agency's
 decisions are described below.
  To be a hazardous waste, a material
 must first be a solid waste. RCRA
 section 1004 (5). To be a "solid waste"
 a material must in some sense be
 "discarded." RCRA section 1004 (27). A
 material is not "discarded" if it is
 "destined for immediate reuse in
 another phase of the industry's ongoing
 production process and [has] not yet
 become part of the waste disposal
 problem." American Mining Congress v.
 EPA, 907 F. 2d 1179, 1186 (D.C. Cir.
 1990).
  This rule amends the current RCRA
rules (existing 40 CFR 261.2(c)(3))
defining which "secondary materials"—
sludges, by-products and spent
materials—being generated by and
reclaimed by mineral processing or
beneficiation facilities are solid wastes.
The rule does so by creating a
conditional exclusion to the regulatory
definition of solid waste, so that:
  (a) Mineral processing secondary
materials may not be stored on the land
before they are reclaimed. The rule
provides a partial exception to this
principle: if the pile is placed on a pad
which has been approved as protective
by an EPA Region or a State with an
authorized program, the pile would not
be considered to be storing solid or
hazardous waste, and so would be
outside RCRA jurisdiction. Thus, if
storage is used prior to reentry into a
mineral processing reclamation process,
to be excluded, all mineral processing
secondary materials must be placed in
                         tanks, containers, buildings, or
                         approved piles resting on pads;
                           (b) Mineral processing secondary
                         materials must be legitimately recycled
                         to recover metal, acid, cyanide, water, or
                         other values:
                           (c) Mineral processing secondary
                         materials cannot be accumulated
                         speculatively; and
                           (d) Facilities utilizing this conditional
                         exclusion must submit a one-time
                         notification of their recycling activities
                         to EPA or the authorized State
                         describing: the materials being recycled
                         and the processes into which they are
                         recycled; where storage units are located
                         and their design. Facilities must update
                         the notification if their recycling
                         activities change.
                          EPA is thus essentially disclaiming
                         authority over mineral processing
                         secondary materials that are reclaimed
                         within the mineral processing or
                         mining/beneficiation industry sector, so
                         long as there is no land-based storage
                         preceding reclamation. Further,
                         potential jurisdiction affects only
                         storage. EPA is not asserting authority
                         over any mineral processing production
                         unit, even if the unit is land-based.

                         2. Issues Related to Whether Materials
                         are Within the-Scope of the Bevill
                         Exclusion
                          a. Use ofNon-Bevill Materials as'
                         Feedstocks to Operations Whose Waste
                         is Bevill Exempt. Today's rule also
                         allows secondary materials from
                         mineral processing to be co-processed
                         with normal raw materials in
                         beneficiation operations which generate
                         Bevill exempt wastes, without changing
                         the exempt status of the resulting Bevill
                        waste, provided that legitimate recovery
                         of the mineral processing secondary
                        material is occurring, and provided that
                        primary ores and minerals account for at
                        least 50 percent of the feedstock. The
                        Agency voiced concern at proposal that
                        the addition of mineral processing
                        secondary materials into a Bevill
                        exempt extraction/beneficiation process
                        could have the potential to increase the
                        risk of the resulting wastes. The Agency
                        proposed adding a condition—the use of
                        a significantly affected test (similar to
                        the existing test used in the Burning in
                        Industrial Furnaces (BIF)  Rule (see 40
                        CFR 266.112))—as a means of assuring
                        that resultant Bevill wastes were not
                        adversely impacted by co-processing.
                        EPA also considered simply limiting
                        eligibility for Bevill status to situations
                        where Bevill raw materials comprised
                        the sole feedstock to the process.
                          After considering public comments,
                        the Agency has  decided to adopt the
                        general approach proposed in January
                        1996, with one change. The Agency now
 does not believe that the use of the
 "significantly affected" test would
 appreciably reduce risks posed by the
 resulting wastes, and the Agency is
 concerned that it would severely disrupt
 legitimate recycling practices within
 beneficiation and mineral processing
 industries. Even in situations where a
 constituent may increase due to
 recycling, the increase may not be
 environmentally significant, may be
 balanced by the lowering of other
 constituents, or may be off-set by having
 to dispose of the material and utilize
 additional raw material feedstocks.  ,
   b. Uniquely Associated. The Bevill
 exclusion for the primary metal sector is
 limited to extraction/beneficiation
 wastes and 20 mineral processing
 wastes. Under Section 3001 (b) (3) (A) (ii)
 of RCRA, the Bevill exclusion is
 available for "solid waste from the
 extraction, beneficiation and processing
 of ores and minerals." Under the
 Agency's longstanding interpretation, a
 waste must be "uniquely associated"
 with mining and processing of ores and
 minerals to be subject to the Bevill
 exclusion. The Agency currently uses a
 qualitative approach (see 45 FR 76619
 and 54 FR 36623) to  determine if a
 waste is uniquely associated. Because of
 public interest in how the Agency
 makes these determinations, the Agency
 sought comment on alternative
 approaches for making "uniquely
 associated" determinations.
  The Agency is retaining and clarifying
 in this rule its use of its qualitative
 approach. The Agency recognizes that
 determining whether a particular waste
 is uniquely associated with extraction,
 beneficiation, and processing involves
 an evaluation of the specific facts of
 each case. While the Agency discussed,
 in the May 1997 proposal, several
 options that would establish a bright
 line for making this determination, the
 Agency is concerned that any of these
 tests could potentially be either over- or
 under-inclusive of the wastes that, in
 EPA's view, are best  viewed as uniquely
 associated.
  In the Agency's view the following
 qualitative criteria should be used to
 make such determinations on a case-by-
 case basis:
  (1) Any waste from ancillary
 operations are not "uniquely
 associated" because they are not
properly viewed as being "from" mining
 or mineral processing.
  (2) In evaluating wastes from non-
ancillary operations,  one must consider
the extent to which the waste originates
or derives from processes that serve to
remove mineral values from the ground,
concentrate or otherwise enhance their
characteristics to remove impurities,

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              Federal Register/Vol. 63, No.  100/Tuesday. May 26. 1998/Rules and Regulations
                                                                    28579
and the extent to which the mineral
recovery process imparts its chemical
characteristics to the waste.
  c. Bevill Mixtures. EPA first addressed
mixing of hazardous wastes with Bevill
wastes in 1989 (see 54 FR 36622-23).
That rule provided that mixtures of
Bevill wastes and listed wastes would
be considered a hazardous waste unless
and until the mixture was delisted. A
mixture of Bevill waste and non-
excluded characteristic hazardous
waste,  however, would be considered
hazardous if it exhibited a characteristic
of the non-excluded waste, but not if it
exhibited a characteristic imparted to it
by the Bevill waste. As explained in the
proposal, this Bevill mixture rule was
remanded to the Agency in Solite Corp
v. EPA, 952 F.2d 472, 493-94 (D.C. Cir.
1991), and an emergency reinstatement
of that rule was vacated on procedural
grounds in Mobil OIlv. EPA, 35 F.3d
579 (D.C. Cir. 1994). Today EPA is
reinstating the 1989 Bevill mixture rule.
Under this 1989 rule, a mixture of a
Bevlll-exempt waste and a characteristic
hazardous waste (or a waste listed solely
because it exhibits a hazardous
characteristic) is a hazardous waste if it
continues to exhibit the characteristic of
the non-excluded waste. Mixtures of
Bevill wastes and other listed wastes are
hazardous wastes unless and until
delisted. In addition, the act of mixing
Bevill and and non-Bevill wastes is
subject to all normal Subtitle C
consequences (i.e., requires a permit if
it constitutes treatment, storage of
disposal of hazardous wastes).  EPA is
adopting this approach because it
preserves the Bevill exclusion for
mixtures that are characteristically
hazardous due to Bevill wastes, but
nonetheless ensures that the Bevill
Amendment is not used to allow Bevill
wastes to shield/immunize non-Bevill
hazardous wastes from regulatory
controls that would otherwise apply to
those wastes.
  d. Response to Court Remands
Dealing with Other Issues Relating to
Mineral Processing and to Scope of
BevM Exclusion, (i) Toxicity
Characteristic Leaching Procedure
(TCLP) The applicability of the TCLP
test to  mineral processing wastes was
challenged in Edison Electric Institutev.
EPA, 2 F.3d 438 (D.C. Cir. 1993). In that
case the Court held that the Agency
must provide at least some factual
support that the mismanagement
scenario assumed in developing the
TCLP is plausible when applied to
mineral processing wastes or,
alternatively, that mining wastes are
exposed to conditions similar to those
simulated by the TCLP, namely "contact
with some form of acidic leaching
media". 2 F. 3d at 447. EPA prepared a
technical background document in
support of the January, 1996 proposal,
which presented data on this issue. This
report concluded that mineral
processing wastes had in the past been
co-disposed with municipal wastes, and
due to the location of mineral
processing plants near large urban areas,
it was plausible that these wastes could
be mismanaged with municipal wastes.
EPA also solicited information from the
public that would help the Agency
evaluate industry comments that the
Synthetic Precipitation Leaching
Procedure (SPLP) would provide a more
accurate measure of how mineral
processing wastes behave in the
environment. EPA received extremely
limited data from the public on this
issue.
  EPA has concluded, based on the
information available to the Agency and
review of public comments, that co-
disposal of mineral processing wastes
with municipal wastes is a plausible
mismanagement scenario and that,
therefore, application of the TCLP to
these wastes continues to be
appropriate. Moreover, comments from
industry during the rulemaking stated
that certain facilities co-manage mineral
processing wastes with extraction and
beneficiation wastes. Given the well-
documented, acidic nature of some
extraction and beneficiation wastes,
mineral processing wastes disposed of
in this manner may be subject to the
kinds of low pH conditions that are
reflected in the TCLP. For this
additional reason, EPA finds that, under
the plausible mismanagement standard
articulated in Edison Electric,
application of the TCLP to mineral
processing wastes is appropriate in light
of the information at the Agency's
disposal. While the Agency has received
comments seeking to compare the TCLP
and the SPLP, the Agency has
concluded, for reasons discussed later
in this preamble, that this information is
not sufficient to support adopting the
SPLP as the appropriate test for mineral
processing wastes at this time.
  The Agency recognizes that the
methodology underlying the TCLP may
not reflect the variety of conditions
under which some types of mineral
processing wastes are disposed. As a
result, the Agency will undertake, and
within three to five years, conclude a
review of the appropriateness of using
the TCLP and other leaching protocols
in this and other contexts.
  (ii) Listed Hazardous Wastes. In
American Mining Congress v. EPA, 907
F.2d 1179 (D.C. Cir. 1990), the Court
found that the Agency's record
regarding the listings of five waste
streams (K064, K065, K066, K090, K091)
did not adequately address certain
issues raised in comments. EPA
indicated its intent not to list these five
waste streams in the January, 1996
proposal and placed a technical
background document in the docket
enumerating the reasons for those
decisions. Many of these wastes are
either no longer generated, or managed
in a fashion not warranting listing. EPA
did not receive any comments
challenging those proposed decisions.
Therefore, in this rule, EPA is not listing
these five smelting wastes as hazardous
wastes. Instead, EPA will rely on the
RCRA hazardous waste characteristics
to identify those portions of the wastes
requiring management as hazardous
wastes.
   (iii) Titanium Tetrachloride. In 1989,
EPA determined that wastes from the
production of titanium tetrachloride
were mineral processing wastes. DuPont
challenged this decision, and the Court
remanded EPA's decision for further
consideration on grounds that the
Agency's decision was unclear  (see
Solite Corporation v. EPA, 952 F.2d at
494-95 (D.C. Cir. 1991)). EPA
reevaluated data on wastes from the
production of titanium tetrachloride,
and placed results of this reevaluation
in the docket in support of the January
1996 proposal. EPA also has met with
representatives of DuPont to discuss
their process further. Based on  the
Agency's reevaluation of this issue,
EPA, in this rule, concludes that iron
chloride waste acid generated from the
chloride-ilmenite process of titanium
tetrachloride production should be
classified as a mineral processing waste.
The Agency has reached this decision
because this process significantly affects
the physical/chemical structure of the
raw feedstock through chlorination and
this reaction creates new chemicals
(iron chloride and titanium
tetrachloride gases). This meets the
definition of mineral processing rather
than beneficiation.
   (iv) Air Pollution Control Dust and
Sludges Generated From Lightweight
Aggregate Production. Finally, since
1995, the Agency has conducted
reviews of air pollution control dust and
sludges generated from lightweight
aggregate production, and has met with
representatives of this industry sector.
The Agency also has issued a Report to
Congress and a regulatory determination
on Cement Kiln Dust (CKD) (59 FR at
709, January 6, 1994 and 60 FR at 7366,
February 7, 1995). EPA has found that
some aggregate kilns and cement kilns
use hazardous waste fuels to fire their
units. Both types of facilities generate
dusts which may be either reintroduced

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Federal  Register/Vol. 63, No. 100/Tuesday, May  26,  1998/Rules  and Regulations
 into the kiln or blended into the final
 product. While these dusts rarely
 exhibit any of the RCRA hazardous
 waste characteristics, the resultant
 product could be classified as hazardous
 waste due to the "derived from" rule if
 listed hazardous wastes are combusted.
 The Agency is seeking a way to
 encourage the legitimate and
 environmentally sound reuse of dusts,
 from both cement and lightweight
 aggregate manufacture. In an effort to
 develop a consistent regulatory
 approach, EPA, therefore, has decided
 to defer any decision on the Bevill
 status of air pollution control dust and
 sludges generated from lightweight
 aggregate production until evaluation of
 issues related to CKD  and lightweight
 aggregate dust handling, use, and
 disposal can be completed.
  e. Reexamination of Bevill Exempt
 Wastes. The May 12 proposal sought
 general comment on whether a
 reexamination of some Bevill waste is
 warranted given that additional risk
 assessment techniques and additional
 information are available since making
 the 1986 Bevill regulatory determination
 (51 FR at 24496, July 3, 1986) on mining
 and the 1991 Bevill regulatory
 determination on mineral processing (56
 FR 27300, June 13, 1991). EPA
 presented information from Superfund
 sites and other sources which indicate
 that some Bevill wastes  continue to
 cause environmental damage (see
 environmental damage and risk
 technical background  documents placed
 in the January 1996, and April, 1997
 dockets). The Agency also posed the
 question of whether some waste streams
 require additional study or regulatory
 controls. Today's rule is not making any
 changes to the status of Bevill exempt
 extraction and beneficiation wastes or
 the 20 exempt mineral processing
 wastes.
 C. Analysis of and Response to Public
 Comments
 1. Jurisdiction
  a. EPA Authority to Regulate Mineral
 Processing Secondary Materials
 Reclaimed Within the Industry. Many
 industry commenters maintained that
 EPA lacks jurisdiction over mineral
 processing secondary materials
 reclaimed within the industry because
such materials cannot be "solid wastes."
The argument is straight-forward: a
solid waste regulated under RCRA must
be a "discarded material," RCRA section
 1004 (27), and these materials are not
discarded. The comments suggest that,
under the case law, (in particular
American Mining Congress v. EPA, 824
F. 2d 1177 (D.C. Cir. 1987) ("AMCI')),
                         these materials are part of an on-going
                         production process within the
                         generating industry, -and so cannot be
                         "discarded."
                           EPA disagrees that there is an
                         absolute jurisdictional barrier to
                         regulating any management of mineral
                         processing secondary materials which
                         are reclaimed within the industry.
                         Although the AMC /court found that, in
                         some respects EPA's 1985 rules
                         exceeded the statutory grant of
                         authority, subsequent judicial opinions
                         have sharply limited the scope of AMC
                         I. The only absolute bar on the Agency's
                         authority to define recycled mineral
                         processing secondary materials as solid
                         wastes is for "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 AMCI, 824 F.
                         2d at 1186.2) The  case law likewise
                         makes clear that "discarded" is an
                         ambiguous term, within EPA's
                         discretion to interpret, consistent  with
                         RCRA's overall goals and purposes.
                         AMC II, 907 F.2d at 1179; American
                         Petroleum Inst. v: EPA, 906 F.2d 726,
                         741 (D.C. Cir. 1990).
                          Applying this test, today's rule states
                         that any mineral processing secondary
                         materials which are being reclaimed
                         immediately within the mineral
                         processing industry (or within
                         beneficiation) are not a solid waste.
                         However, as explained below, EPA does
                         not view mineral  processing secondary
                         materials which have been removed
                         from a production process for storage as
                         being "immediately reused," and so
                         such materials are not automatically
                         excluded from jurisdiction. EPA
                         reiterates that there is a jurisdictional
                         bar against regulating the actual
                         production process (see Steel
                         Manufacturers Associations. EPA, 27
                         F.3d 642, 647 (D.C. Cir. 1994); EPA also
                         interprets the holding of AMC /to
                        mandate this result), so today's rule
                        does not assert authority over mineral
                        processing production units. However,
                        if production units are also used to
                        dispose of hazardous wastes, those units
                        are subject to RCRA Subtitle C.
                          With respect to  mineral processing
                        secondary materials which are stored
                         2The other cases which have similarly stressed
                        this narrow reading of AMC I are American
                        Petroleum Inst. v. EPA, 906 F. 2d 726.741 (D.C. Cir.
                        1990); Shell Oilv. EPA, 950 F. 2d 741. 755-56 (D.C.
                        Cir. 1991); Chemical Waste Managements. EPA,
                        976 F. 2d 2, 14 (D.C. Cir. 1992); United States v.
                        Uco, Inc., 996 F. 2d 1126, 1131 (5th Cir. 1993); and
                        Owen Electric Steel Co. v. Browner. 37 F. 3d 146,
                        149-50 (4th Cir. 1994).
 before being reclaimed at mineral
 processing or beneficiation facilities—
 i.e. that are not being immediately
 reused—the Agency has established a
 conditional exclusion from the
 definition of solid waste, the conditions
 being designed to assure that
 management of these materials are not
 "part of the waste disposal problem."
 The main condition is that mineral
 processing secondary materials not be
 stored on the land (except for storage on
 approved pads) and not be stored in
 disposal units.
   In considering the question of scope
 of jurisdiction, it is useful to remember
 that this rule applies to a continuum of
 potential recovery practices. At the  one
 end of the continuum, where EPA's
 authority is most certain, would be the
 situation where mineral processing
 company A sends its secondary
 materials to unrelated mineral
 processing company B processing a
 different metal than company A. The
 case law indicates that EPA retains
 discretion to classify the material as a
 solid waste. API, 906 F.2d at 741
 (transfer of steel industry dust to a metal
 reclaimer processing exclusively steel
 industry secondary materials can
 involve a RCRA solid waste). It should
 be remembered that EPA views
 "mineral processing" broadly in this
 rule to include all primary mineral
 processing sectors (see, e.g., the
 Agency's 1996 Identification and
 Description of Mineral Processing
 Sectors and Waste Streams). This
 document identified 41 different sectors
 involved in primary mineral processing.
 Primary mineral processing involves
 changing the physical and chemical
 structure of ores and minerals. For
 example, mineral processing includes
 the production of steel and the
 production of gold. These sectors
 generate very different types of wastes
 and recycle them under different
 conditions. Thus, the API principle of
 no absolute jurisdictional bar applies.
  Points further in on the continuum
 would be if companies A and B process
 the same metal but are unrelated
 companies (also potentially within the
 API framework), and where companies
 A and B are under common ownership
 but not at the same site. The point on
 the continuum closest to on-going
 production is where secondary
 materials are reclaimed at the generating
 site, but where the process is non-
 continuous due to storage of materials.
 Immediate recovery on-site without
 storage would then mark the other end
 of the continuum, and would illustrate
when materials are immediately reused
within a continuous process, and so

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                                                                     28581
 absolutely outside Subtitle C
 jurisdiction.3
   EPA believes that it has discretion to
 consider whether any of these situations
 short of immediate reuse involve solid
 wastes, this discretion being limited by
 the second part of the Court's
 articulated test: is the non-continuous
 management of the mineral processing
 secondary materials part of the waste
 disposal problem. Thus, EPA in today's
 rule has focused on the storage of these
 materials. The leading authority for this
 approach is AMCII, where the Court
 found that secondary materials
 generated and reclaimed on-site could
 be classified as solid wastes because
 they were stored in surface
 Impoundments. 907 F. 2d at 1186. The
 case Involved a single plant which
 stored its secondary materials
 —sludges—in an impoundment before
 reclaiming all of the accumulated
 sludges in its own smelting process. 50
 FRat 40292, 40296 (October 1985).
 Several cornenters argued that AMC II
 involved only speculative
 accumulation. This is not the case. The
 wastes generated in the impoundment
 were actually recycled 100 percent, not
 stored with expectation of recycling. 50
 FR at 40292, 40296; Brief of Petitioner
 Amercian Mining Congress in AMC II
 (filed March 30,  1990) pp. 18, 29. The
 Court nonetheless held that the sludges
 were discarded, stressing the special
 sensitivity in RCRA to land-based  units
 such as surface impoundments, and
 explaining how storage of secondary
 materials in such units can be part of
 the waste disposal problem (907 F. 2d
 at 1186-87). Thus, EPA believes that
' mineral processing secondary materials
 stored on the land are discarded.
   Land-based storage of mineral
 processing sludges, spent materials, and
 by-products can be viewed by EPA as
 being part of the waste disposal
 problem. There is no dispute that a
 considerable amount of mineral
 processing secondary materials contain
 hazardous constituents that can threaten
 human health and the environment (see
 U.S, EPA, Office of Solid Waste. Human
 Health and Environmental Damages
 from Mining and Mineral Processing
 Wastes, 1995, and Damage Cases and
 Environmental Releases, 1997). Land-
 based units, and impoundments in
   JThc Agency Indicated In Its January 1996
 proposal that some lower value mineral processing
 secondary materials are from ancillary production
 operations and (hit those materials were often
 placed In land-based storage units. 61 FR at 2340.
 Indus«y comments challenged this discussion as
 over broad and misplaced. Upon review, the
 Agency acknowledges that mineral processing
 facilities generate a wide range of secondary
 materials, which also have a wide range of values
 to the facility owner.
particular, have certain inherent indicia
of discard due to their inability to
prevent releases of contained materials.
RCRA section 1002(b)(7); AMC II, 907
F.2d at 1187; 53 FR at 521, 525 (Jan. 8,
1988). Surface impoundments pose
essentially inherent risks of
groundwater contamination due to the
hydraulic pressure created by the
contained liquids. Chemical Waste
Managements. EPA, 919 F. 2d 158, 166
(D.C. Cir. 1992). There are many damage
incidents which involve storage of
mineral processing wastes in piles and
surface impoundments, some of which
involve mineral processing secondary
materials stored in land-based units
before eventual reclamation. These
damage incidents confirm that this
potential harm' is not hypothetical.
  It should be noted that there is
Agency precedent for the limitation on
land based storage as part of within-
industry recycling practices. The
Agency established the principle of
encouraging recycling without allowing
land-based storage at 40 CFR
261.4(a)(10). Any wastes from coke by-
product production are not solid wastes
if recycled to coke ovens conditioned on
there being no land disposal from the
point of generation to the point of
recycling. The Agency also has
promulgated a rule where recovered oil
generated by any facet of petroleum
exploration, production, and retailing is
not a solid waste conditioned on no
management of these materials in land-
based units (see 59 FR 58936, July 28,
1994). The Agency has also proposed to
extend this principle to a wider range of
oil-bearing secondary materials (see 60
FR 57747, 57753, November 20, 1995).
The condition likewise appears in
current rules at 40 CFR 261.2(e)(iii)
where it qualifies the exclusion for
materials returned for reclamation in the
process from which they are generated.
The application of a no land placement
condition in today's rule is, therefore,
building on an established policy of
encouraging recycling conditioned on
no land placement.
  Putting this together, the Agency
reads the statute as creating an absolute
jurisdictional bar in two situations:
where mineral processing or
beneficiation is occurring, and where
reclamation is continuous in the sense
that there is no interdiction in time—i.e.
materials moving from one step of a
recovery process to another without a
break in the process, as for storage. As
one moves back along the continuum,
EPA has discretion to interpret whether
secondary materials may be considered
discarded. The Agency is exercising that
discretion here by putting its focus on
whether the reclamation, or more
precisely, the storage which precedes
reclamation, is part of the waste
disposal problem because it involves
storage which can be and has been part
of that problem.
  b. Are There Limits on Jurisdiction?
(Response to Public Interest Group
Position).  In contrast, representatives of
public interest groups argued that the
Agency's authority was essentially
unlimited. They believe that the
authority should be extended, at a
minimum, to all land-based units
because such units are a type of disposal
unit. With respect to mineral processing
secondary materials that are managed in
tanks, containers, or buildings (i.e. in
other than land-based units), EPA sees
no principle that compels the materials
to be designated as solid wastes. As
explained above, case law indicates that
EPA has discretion to interpret which
materials are "discarded" consistent
with the overall statutory objective, API,
906 F.2d at 742. These objectives
include not only assuring safe
management of hazardous wastes, but
also "encouraging . . . materials
recovery,  [and] properly conducted
recycling and reuse . .  .." RCRA
section 1003(a)(6). EPA's construction
in today's rule, which rests largely on
the distinction between land-based
storage and more environmentally
protective storage of secondary
materials, is consistent with this object
by encouraging "properly conducted
recycling. .  .." In addition, EPA reads
the case law as allowing the Agency to
make reasonable distinctions among
secondary material handling practices
in determining when a particular
recycling practice may be considered to
be "part of the waste disposal problem."
Finally, as EPA explained at proposal,
there are potential jurisdictional
constraints given that the mineral
processing industry exists to recover
mineral values from an initial raw
material, and some aspects  of recovery
of mineral values from secondary
materials can be like sequential
processing of an initial raw material. 61
FR at 2342. Where there is no obvious
element of discard present,  such as
land-based storage, the Agency does not
believe that it should exercise its
interpretive discretion to assert
authority.
  With respect to intra-industry
reclamation practices involving land-
based units, EPA largely is asserting
authority. EPA proposed a series of
conditions that would have allowed
land-based storage units on the idea that
there were certain unique necessities
within this industry compelling use of
such units. 61  FR at 2341. However, as
the rulemaking progressed,  it became

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apparent that there are no such
production-related necessities. Agency
reevaluation of mineral processing
secondary material volumes indicated
that, in addition to volumes being lower
than EPA initially believed, comparison
to volumes of other industrial hazardous
wastes indicated that these wastes were
often higher in volume than mineral
processing secondary materials and
were being stored off the land.
Consequently, the Agency is claiming
authority over most land-based storage
units.
  The Agency is not, however, asserting
authority over piles resting on pads
determined by a state or EPA to be
protective. The reasoning is similar to
that for not claiming authority over
within-industry secondary materials
stored in tanks, containers or buildings.
Such materials need not be viewed as
"part of the waste disposal problem,"
and so, given the intra-industry
recycling, need not be considered
"discarded." The practice also can be
viewed as a type of "properly conducted
recycling" which should be encouraged.
Again, EPA views this determination to
be within its interpretive discretion.
  EPA also disagrees that it is
compelled to assert control over land-
based units  that are actual production
units, i.e. that actually recover product.
The Agency Is aware of only two land-
based units which recover metals: gold
heap leach piles and copper dump leach
piles. Under prior rulemakings (54 FR
36592 and 55 FR 2322), the Agency has
defined these land-based units as
extraction/beneficiation activities. The
Agency is unaware of any other land
based process units which actually
recover metals. The Agency believes
that regulating such units could pose
the possibility of interdicting actual
production steps which was the
particular focus of the AMCI court. EPA
notes, however, that storage units which
also make secondary materials more
suitable for actual recovery, such as
equalization basins, can remain within
Subtitle C jurisdiction. These units, in
the Agency's view, are not the part of
the process which actually produces an
end product (such as the smelter at a
smelting facility). At most, they
facilitate eventual recovery. The Agency
does not read the case law to say that
such storage units are in all cases
outside the authority of Subtitle C.
  EPA also is not asserting authority
over mineral processing secondary
materials once they are removed from
approved storage for reclamation. Thus,
should a mineral processing plant
reclaim mineral processing secondary
materials after those materials are stored
in land-based units (i.e. the materials
                         defined as hazardous wastes in today's
                         rule), they would no longer be solid and
                         hazardous wastes. EPA believes it
                         would be counterproductive to retain
                         the hazardous waste status for mineral
                         processing secondary materials entering
                         reclamation. If the materials remain
                         hazardous wastes, for example, the
                         smelting process itself could be subject
                         to Subtitle C regulation. EPA believes
                         that it retains discretion to classify the
                         removed materials as no longer being
                         solid and hazardous wastes.
                          The Agency believes  it has discretion
                         to adopt this classification
                         notwithstanding the court's decision in
                         American Petroleum Institute, v. EPA,
                         906 F.2d 726 (D.C. Cir.  1990). In that
                         case, the Court held that EPA had
                         adopted the so-called indigenous
                         principle, whereby secondary materials
                         stopped being wastes at the point they
                         were utilized as feedstock in a
                         production process related to the one
                         that generated it, without sufficient
                        justification. 906 F.2d at 741-42.
                         However, in that case, EPA had made no
                         attempt to determine which materials
                         were part of the waste disposal problem,
                         and which were not. Here, the Agency
                         is making clear that storage  on the land
                         of mineral processing secondary
                         materials is the environmental concern,
                         and that reclaiming mineral processing
                         secondary materials within the industry
                         is ordinarily a form of proper recycling
                         which may permissibly be encouraged.
                         RCRA section 1003(a)(6).
                          EPA also notes that it is possible that
                         no mineral processing secondary
                         materials will be placed in
                         impoundments or in unapproved piles.
                         Under today's rule, if a facility wishes
                         to use a pile for storage  (assuming the
                         pile has not been adjudicated to be
                        protective), the wastes would first have
                        to be treated to meet Land Disposal
                        Restrictions standards, probably
                        rendering them unrecoverable. If an
                        impoundment is utilized, wastes need
                        not be pretreated, but the impoundment
                        would have to meet minimum
                        technology design standards and be
                        dredged annually (RCRA section
                        3005(j) (11) and 40 CFR section 268.5)
                        and, of course, ultimately obtain a
                        RCRA permit. The Agency anticipates
                        that facilities will use a  non land-based
                        form of storage instead.
                          c. Immediate Reuse.4 In the May 1997
                        proposal, EPA suggested a different way
 of defining absolute jurisdictional
 limits, namely to say that secondary
 minerals generated by and
 "immediately reused" within the
 mineral processing industry, were not
 solid wastes. The reference to
 "immediate" was suggested as a means
 of interpreting the "immediate reuse in
 another phase of the industry's ongoing
 process" standard articulated in the case
 law. AMC I, at 824 F. 2d at 1185. The
 Agency proposed that secondary
 materials that were legitimately recycled
 within 48 hours would be outside RCRA
 jurisdiction, regardless of whether they
 were stored between process steps
 (including storage in land-based units).
 See 62 FR at 26051.
   Industry and public interest groups
 both opposed the use of the 48-hour
 time limit included in the January 1996
 proposal to define immediate reuse.
 Industry renewed its categorical
 objections based on AMC I, and noted
 that many secondary materials are
 legitimately reclaimed long after they
 are generated and the time period
 between generation and reclamation in
 no way affected their value. Fpr
 example, commenters stated that the
 gold industry generates retort slags
 which contain gold values. Comments
 stated that these slags are stored off the
 ground for periods up to six months
 after which they are reintroduced into
 their recovery process.5
   Public interest groups objected to the
 48-hour limit on the basis that an
 absolute waiver of RCRA jurisdiction
 based on time does not translate to any
 reduction of environmental risk. Public
 interest groups also noted that the Court
 in AMC //granted jurisdiction to units
 holding secondary materials with the
 propensity to leak, and that the Court's
 opinion would extend to all land
 placement, since the continuous
 placement of materials on piles or other
 land-based units would result in the
 same "discard" underlying the Court's
 opinion.
   Although the Agency necessarily
 accepts that materials immediately
 reused in another phase of the
 industry's ongoing production process
 are beyond EPA's jurisdiction, AMC I,
 824 F.2d at 1185, the Agency is not
 adopting in today's rule the proposed
 48-hour approach to define immediate
 reuse. The Agency is defining
 "immediate reuse" as the continuous
 recirculation of secondary materials
                          4 It should be noted that EPA is not using "reuse"
                        as a term of art in this section of the preamble (i.e.
                        is not using the term as defined in 40 CFR
                        261.1(a)(5)), but rather is referring to immediate
                        reclamation of materials (i.e. material recovery) at
                        a mineral processing facility. The key concept here
                        is actually "immediate," which EPA is using to
interpret the phrase "continuous process" used in
the case law.
  5 It should be noted that since no land-based
storage is involved, these gold slags are not solid
wastes under the final rule in any case (assuming
that the recovery is legitimate and that the other
conditions in the rule are satisfied).

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                Federal  Register/Vol. 63, No.  100/Tuesday, May 26, 1998/Rules and Regulations
                                                                       28583
 back into recovery processes without
 prior storage. The plain reading of the
 words "continuous," 824 F.2d at 1193,
 and "immediate" preclude storage.
 Storage by its very nature means that
 processes are not continuous; rather,
 storage means that materials are
 generated which must be held apart for
 some period of time prior to reentry into
 a process. Storage, therefore, breaks the
 continuous and immediate nature of
 production and reentry. In addition,
 land-based storage units have inherent
 elements of discard. AMCII. 907 F. 2d
 at 1186-87.
   The definition of "Immediate reuse
 in today's rule does not bar storage prior
, to recycling. Mineral processing
 industries will be able to store and
 recycle their mineral processing
 secondary materials outside RCRA
 Subtitle C requirements if they do so
 while meeting the conditions of the
 exclusion from the definition of solid
 waste contained in today's rule.
    In the May 1997 proposal, the Agency
 dlscussed'the possibility that some
 molten metals that spill onto the ground
 could be classified as materials
 undergoing Immediate reuse (see 62 FR
 at 26051). The Agency noted that copper
 reverts (refined copper material) can be
 spilled in the process of being
 transferred from one part of the smelting
 process to another. Such reverts are
 picked up as soon as they can be safely
 handled and are placed directly back
 into the smelting process. The Agency
 has reviewed smelting processes in
 other metal sectors and finds that
 spillage from ladles is common and that
 these materials are routinely picked up
 within a short time and placed back into
 the process. The Agency thus concludes
 that molten metal spilled onto smelter
 floors is not a solid waste if it is picked
 up as practical (given heat and worker
 safely factors) and is then placed back
 Into the smelting process. Such a
 material is not a secondary material (i.e.
 sludge, by-product, or spent material),
 but rather remains in process. This
 Interpretation parallels existing rules,
 which say that a spilled commercial
 chemical product Is not a solid waste if
 it is recycled within a reasonable
 amount of time (see 40 CFR 261.33 and
 55 FR at 22671).
    Industry commenters stated that spent
 smelter brick was similar to reverts
 since they are often returned back into
 recovery processes. If such spent bricks
 are stored before being recycled, they
 are not being immediately reused (nor
 are they still in process, since they are
 spent and physically removed). As
 noted in the Agency's May 1997
 proposal, copper flue dusts, also are
 stored sometimes and not immediately
recycled. Flue dusts not meeting the
immediate reuse definition are defined
as mineral processing secondary
materials (usually a sludge, since these
dusts are usually air pollution control
residue) and would be eligible for the
conditional exclusion to the definition
of solid waste.
  d. Relation to the Current Regulatory
Definition of Solid Waste, (i)
Distinctions among Sludges, By-
products, and Spent Materials. The
existing regulatory definition of solid
waste classifies metal recovery
operations as a type of reclamation
activity, and then states that certain
secondary materials being reclaimed
are, or are not, solid wastes depending
on the type of material being reclaimed.
Spent materials being reclaimed are
solid  wastes, while characteristic
sludges and by-products being
reclaimed are not solid wastes. See,
generally. 40 CFR  261.2(c)(3) and 50 FR
at 633-34, 639-41  (January 4, 1985).
  As  EPA noted at proposal, these
distinctions among types  of secondary
materials being reclaimed are not
needed because they are not directly
based on environmental distinctions. 61
FR at 2342. In this industry, at least, the
distinctions do not relate  to which of
these materials may be part of the waste
disposal problem.6 The more
environmentally meaningful distinction,
and the one adopted here, is between
land-based storage and storage in tanks,
containers, and buildings.
  In this rule, the Agency is, therefore,
eliminating the regulatory distinctions
between by-products, sludges and spent
materials from mineral processing when
these materials are reclaimed. Thus,
under the amended rule, if any
secondary material—sludge, by-product,
or spent material—is legitimately
reclaimed within the mineral processing
industry, it is not a solid waste as long
as all other conditions to  the exclusion
to the definition of solid waste are
satisfied. EPA believes that this
principle not only should encourage
properly conducted recycling within the
industry, but also  fulfills  an Agency
objective of reducing some of the
complexity in the  existing regulatory
definition of solid waste.7
  6 Put another way, the fact that a mineral
processing secondary material is a sludge, rather
than a spent material or by-product, does not
convey any meaningful information as to the types
of risks the material might pose if reclaimed.
  7 EPA does note the potential anomaly that non-
mineral processing secondary materials, at least for
the moment, will be regulated In some cases
stringently than those generated and reclaimed
within the mineral processing Industry. This could
come about because non-mineral processing
industry sludges and by-products would still not be
solid wastes if reclaimed, and so could be stored in
  (ii) Other existing regulatory
exclusions. The existing regulatory
definition of solid waste also contains a
series of exclusions in 40 CFR 261.2(e),
two of which could apply to the mineral
processing industry. Section 261.2(e)(l)
(ii) excludes from the definition of solid
waste sludges, by-products and spent
materials (i.e. secondary materials)
which are "used or reused as effective
substitutes for commercial products."
An example could be mineral
processing acid plant blowdown
substituting for commercial acid in
another process (either mineral
processing or a process in a different
industrial category).8 Commenters from
industry questioned whether this
provision is affected by the amendments
relating to mineral processing secondary
materials being reclaimed. The answer
is that the provision remains as an
independent basis for excluding
secondary materials from Subtitle C.
EPA did not propose to change it,  and
the issues involved, in any case, would
be broader than the present proceeding
since the basis for the exclusion does
not rest on the notion of a continued
process within an industry,-but on
comparability of secondary and virgin
materials (see 50 FR at 619-20 and 637-
41 (Jan. 4, 1985)).
  The second existing exclusion, found
at 261.2(e)(l)(iii), does overlap with the
present rule. The exclusion is for
secondary materials "returned [as a
substitute for feedstock materials] to the
original process from which they are
generated,  without first being reclaimed
or land disposed." An example could be
an emission control dust from primary
smelting which is returned directly to
the smelter for metal recovery without
any interim land disposal.
  This provision is essentially
consistent with, but also subsumed by,
today's final rule (with respect to the
mineral processing industry). It is
subsumed because the activity involved,
return as a feedstock to a smelter,  is a
type of reclamation activity (see 50 FR
at 639-40), the subject of this final rule?
The  existing rule also contains a "no
land-based units before reclamation without being
solid wastes. EPA has chosen, however, to address
the broader Issues regarding the regulatory
definition of solid waste in a different rulemaking
effort, which is proceeding on a different schedule
from this rule. EPA believes that if may legitimately
proceed one step at a time on these issues, and so
is not precluded from making needed changes to
the regulatory definition that affect only discrete
industry segments, in this case, the mineral
processing industry.
  8 This example assumes that legitimate recycling
is occurring.
  9 The exclusion for return of secondary materials
as feedstock was in fact adopted largely in order to
exclude certain direct reclamation practices in the
mineral processing industry. 50 FR at 639-40.

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land disposal" condition similar to the
conditions in this final rule (although
today's rule excludes storage in piles in
some circumstances, and so is more
flexible than the current 261.2(e)(l)(iii)
in this respect).
  In light of this overlap, EPA is adding
language to 261.2(e)(l)(iii) to indicate
that there are special provisions relating
to reclamation within the mineral
processing industry (namely those
adopted in today's final rule), and that
these provisions define the scope of the
exclusion for mineral processing
secondary materials generated and
reclaimed within the industry,
including those which are returned to a
mineral processing operation from
which they are generated without first
being reclaimed.
  Today's rule also does not alter the
regulatory status of recyclable materials
that are reclaimed to recover
economically significant amounts of
gold, silver, platinum, iridium, osmium,
rhodium,  ruthenium, or any
combination of them. 40 CFR 266.70.
This rule was established to encourage
recycling  of precious metals.
Commenters from the gold industry
questioned whether this provision is
affected by the amendments relating to
mineral processing secondary materials
being reclaimed. The answer is that
today's rule redefines which secondary
materials  generated and reclaimed
within the mineral processing industry
are wastes, and so could exclude certain
materials  reclaimed within the precious
metal industry which are now defined
as solid wastes. However, to the extent
any precious metal recovery operations
remain subject to regulation after
today's rule, the tailored regulatory
provisions in 266.70 continue to apply.
  e. Otherwise Excluded Mineral
Processing Units Which Serve as
Disposal Units. As the Agency noted in
the original proposal, land-based units
in the mineral processing industry not
only can be related to a recovery process
but also can serve as repositories of
conventional wastes. 61 FR at 2340,
2342, 2347. That is, unusable solids
settle in surface impoundments or are
left in piles and in many cases these
units become the ultimate repositories
for these wastes. Id.
  Under current rules, when an
operating  product storage unit that is a
tank also contains a hazardous waste,
the waste  is not subject to regulation
until it exits the unit. 40 CFR section
261.4 (c). An example would be a listed
distillation column bottom remaining
within the distillation column.
  Section  261.4(c) does not apply to
hazardous wastes which accumulate in
land-based units. Thus, if wastes
                         accumulate in piles or impoundments,
                         if those wastes are hazardous (i.e. are
                         listed or exhibit a characteristic of
                         hazardous waste), and the wastes are
                         not legitimately recycled, then the units
                         are Subtitle C regulated units because
                         they are being used to store or dispose
                         of hazardous waste. The Agency is not
                         altering this long-standing principle in
                         the present rule (particularly given the
                         central statutory finding that land-based
                         units, and especially surface
                         impoundments, "should be the least
                         favored method for managing hazardous
                         wastes';  RCRA section 1002(b)(7)).
                         Consequently, any process
                         impoundment that holds un-recycled
                         hazardous accumulated solids, the
                         impoundment is a regulated unit (i.e.
                         subject to Subtitle C) because it is
                         disposing of a hazardous waste. In
                         addition, the same principle would
                         apply to storage or process piles, which
                         likewise are ineligible for the 261.4(c)
                         exemption.

                         2. Scope of This Rule
                          This section of the preamble
                         addresses the issue of which secondary
                         materials come from "mineral
                         processing" operations, and so are
                         potentially within the scope of the
                         conditional exclusion for mineral
                         processing wastes being reclaimed
                         within the mineral processing industry
                         sector or in extraction/beneficiation
                         operations. Newly identified wastes
                         from mineral processing also are subject
                         to the LDR prohibitions and treatment
                         standards adopted today, and so this
                         preamble section also clarifies the
                         applicability of these LDR provisions.
                          a. Mineral Processing Wastes Covered
                         by This Rule. The Agency's 1989 rule
                         (see 54 FR 36592) applied the high
                         volume/low toxicity criteria to
                         determine which primary mineral
                         processing wastes would retain the
                         Bevill exclusion. This rule also clarified
                         the Bevill status of beneficiation
                         operations. Those mineral processing
                         waste streams not meeting the high
                         volume/low toxicity criteria are no
                         longer Bevill exempt wastes and are
                         subject to regulation under Subtitle C
                         (except 20 mineral processing waste
                         streams noted at 40 CFR 261.4). Non-
                         exempt Bevill mineral processing
                         wastes are "newly identified," and are
                         now subject to the Land Disposal
                         Restrictions, when land disposed.
                         Therefore, only "newly identified"
                         characteristic hazardous mineral
                         processing wastes are potentially
                         eligible for the conditional exclusion
                        from the  definition of solid waste.
                          EPA established in the 1989
                        rulemaking the factors it would use to
                        determine whether a waste is generated
 from extraction/beneficiation versus
 mineral processing (see 54 FR 36592,
 36616-20). The Agency has not and is
 not reopening this standard. However,
 EPA prepared and noticed a report—
 Identification and Description of
 Mineral Processing Sectors and Waste
 Streams—which tentatively applied this
 existing test on a waste-by-waste basis
 to wastes from 41 mineral sectors (62 FR
 at 2354).
  There are two principal issues raised
 by this report: its legal status and its
 accuracy. First, the Agency has decided
 that the Identification and Description
 of Mineral Processing Sectors and Waste
 Streams report should be a guidance
 document. Thus, the Report is not a
 rule, and it, therefore, cannot be
 invoked as a definitive determination as
 to whether or not a particular waste is
 to be classified as being from mineral
 processing or from extraction/
 beneficiation. In addition, this report
 should not be viewed as an exclusive
 list of mineral processing and associated
 waste streams:  other mineral processing
 waste streams may exist. Mineral
 processing facilities are obligated to
 determine the Bevill status of their
 wastes by utilizing applicable regulatory
 provisions, as clarified by the criteria
 articulated in 1989 in the Federal
 Register preamble cited above. Thus,
 because the document is guidance, no
 party could rely upon that document as
 the definitive basis for a regulatory
 determination.
  The Agency has fully evaluated
 comments suggesting that the report
 contains factual inaccuracies, and
 believes that the Report, as now revised
 after review of public comments, is
 accurate and should therefore, provide
 useful guidance to the public. EPA
 disagrees with comments contenting
 that the Agency adopted new criteria in
 reaching the tentative conclusions set
 out in the Report. This is not the case—
 the same general approach used in 1989
 was applied in the Report, and would
 have to be applied in making any actual
 regulatory determination.
  One commenter argued that
 considering these determinations to be
 advisory would violate EPA's duty
 under section 3001(b)(3) of RCRA, as
 construed by the Court inEDF V. EPA,
 852 F.2d 1316, 1331 (D.C. CIR 1988) to
 have made final determinations as to
 which mining wastes are subject to the
 Bevill exclusion. According to this
 commenter, reaching one conclusion at
 headquarters and a potentially different
 conclusion at EPA regions  or States
would undermine the intent of the
Court's order in EDF. This commenter
also asserted that such an approach
would effectively allow States to

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                                                                      28585
regulate less stringently than EPA, in
violation of sections 3006 and 3009 of
RCRA.
  EPA believes that these comments are
erroneous. EPA fulfilled some time ago
Its obligations under section 3001 (b) (3)
generally, and under the EOF decision
In particular, to define the scope of the
Bevlll exclusion as it applied to mining
wastes. See 51 Fed. Reg. 24496 (July 3,
1986); 54 Fed. Reg. 36592 (Sept. 1,
1989); 55 Fed. Reg. 2322 (Jan. 23,1990);
56 Fed. Reg. 27300 (June 13,1991). As
discussed in those notices and rules,
EPA's regulatory determination did not
obviate the need to evaluate whether a
particular waste was from mineral
processing which, unless one of the 20
identified special mineral processing
wastes, would not be exempt from
Subtitle C under Bevlll. Indeed, the
Agency has extensively discussed  the
distinctions between beneficiation and
mineral processing precisely to assist
Industry, EPA and the States in making
such case-specific determinations. See
54 Fed. Reg. 36618-36619 (Sept. 1,
1989). Issuance of the Identification
document in the record for this
rulemaklng is simply intended to aid
the industry and regulators in making
these decisions.
  EPA acknowledges that the potential
for inconsistent determinations exist; for
this reason, EPA headquarters has
assisted regional offices and States in
making these determinations over the
past decade. Section 3001 (b) (3) does
not, however, require the Agency to use
rulemaking to make each and every
decision. Those decisions that are  very
fact-specific may need to be made on a
case-by-case basis using general criteria
articulated nationally by EPA. It is
precisely because of the fact-specific
nature of such inquiries that EPA
believes adopting the guidance
document as "binding" would not be
appropriate. Finally, nothing in EPA's
approach is inconsistent with the RCRA
requirement that authorized State
programs be at least equivalent to and
no less stringent than the federal
program (see RCRA 3006 (b)).
  b. Wastewater Treatment Surface
Impoundments. EPA indicated at
proposal that wastes managed in
wastewater treatment surface
impoundments would never be eligible
for a conditional exclusion from the
definition of solid waste. 62 FR at  2348.
(A wastewater treatment surface
Impoundment Is one whose ultimate
discharge is regulated by the Clean
Water Act, and can include zero
discharge facilities.) This remains EPA's
position, although the issue is no longer
directly relevant to the final rule
because no Impoundments are eligible
for exclusion. As the Agency noted at
proposal, the essential purpose of these
units is waste management rather than
production. 62 FR at 2348. See also
AMCII, where the D.C. Circuit held that
wastewater treatment surface
impoundments can be classified as
waste management units,
notwithstanding that all of the entrained
solids in the unit were eventually
recycled as feedstock at the generating
plant. 907 F. 2d at 1186-87.18'°
  c. Materials Outside the Scope. This
rule limits the use of the conditional
exclusion to the definition of solid
waste to only those secondary mineral
processing materials generated within
primary mineral processing. The
Agency identified over 40 mineral
sectors which potentially generate
mineral processing secondary materials
subject to this rule. The scope of this
rule is therefore quite broad. The
Agency did not receive comments
opposed to the Agency including them
in this rule.
  This rule also restricts the use of the
conditional exclusion from the
definition of solid waste to
characteristically hazardous mineral
processing materials. Thus, no listed
hazardous wastes can qualify for the
conditional exclusion.
  The National Mining Association
(NMA) and the Metals Industry
Recycling Coalition submitted
comments urging the Agency to broaden
the scope of the rule to include metal-
bearing wastes generated outside of
primary mineral processing as well as
allowing the reprocessing of listed
hazardous wastes. The Agency is not
extending the exclusion contained in
this rule because the Agency did not
propose addressing wastes generated
outside of primary mineral processing,
since at the time of proposal the Agency
indicated that these wastes would be
  10 Waters in these impoundments are often
recycled back into processes for their value as
water. Recycling of wastewaters may be currently
allowed under the effective substitute clause in the
regulatory definition of solid waste (see 40 CFR
261.2(e)(l)(ii)), a provision unaffected by today's
amendments. However. EPA reads AMCII and its
regulations to state that impoundments where some
wastewaters are returned to a process as an effective
substitute for a commercial product, but which also
function as wastewater treatment impoundments,
would be regulated units (assuming there are
hazardous wastes in the unit). This is because the
unit would necessarily be functioning at least
partially as a disposal unit (since wastewaters are
ultimately discharged). In addition, the product
storage regulatory exemption at 40 CFR 261.4(c)
does not apply to surface impoundments.
Notwithstanding Industry comments that recycling
of wastewater should be encouraged, the Agency
notes the stronger policy in RCRA to assure that
surface impoundments managing hazardous waste
are managed so as to operate protectively. AMCII.
907 F.2d at 1187 and sources there cited.
addressed under a different rulemaking.
While metal-bearing wastes generated
outside of primary mineral processing,
and listed hazardous wastes are not
within the scope of this rule, the Agency
will continue to assess how best to
encourage their legitimate recycling.
  Commenters indicated they were
unsure how this rule would affect the
application of 40 CFR 261.2 to
secondary materials generated from
outside the mineral processing industry
sector. As discussed earlier in the
preamble, today's rule does not amend
§ 261.2 for any secondary materials
other than those generated within the
mineral processing sector. Thus, when
fully implemented, a mineral processing
facility can use the conditional
exclusion to the definition of solid
wastes and can utilize §261.2 to recycle
other wastes.
3. Mineral Processing Secondary
Material Volumes and Environmental
Damages
  a. Volume of Secondary Materials and
Large Volume Exemption. In the
Agency's May 1997 proposal, land
placement of secondary mineral
processing materials would be
prohibited except for materials
exceeding the high volume criteria
(45,000 tons per facility waste stream
per year for solid wastes and one
million tons per facility per waste
stream per year for liquids). The May
1997 proposal would have allowed high
volume secondary materials to be
placed in land-based units if those units
meet the integrity standards noted in the
January proposal and meet other
proposed conditions. In today's rule, the
Agency is adopting a no land placement
condition for mineral processing
secondary materials without any
volume exemption.
  As noted in the May 1997 proposal
(see 62 FR at 26049), the Agency
reevaluated the volumes of mineral
processing secondary materials as a
result of comments submitted by public
interest groups which asserted that
volumes of these materials were
considerably less than EPA originally
believed (see Characterization of
Mineral Processing Wastes and
Materials, U.S. EPA, 1998). Based on
this reevaluation, the Agency finds that
mineral processing wastes are not
generated in the high volumes that we
previously believed to be the case. EPA
found that of the 119 hazardous wastes
streams it studied, 117 were generated
in volumes lower than the proposed
high volume cutoff. Further, comments
from public interest groups on the
Agency's May 1997 proposal indicate
that two remaining waste streams that

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the Agency had classified as high
volume may not in fact meet the high
volume cutoff. The Agency reassessed
how it estimated the volumes of these
waste streams and acknowledges that it
used very conservative approaches to
estimate these volumes. It is, therefore,
possible that none of the 119 waste
streams studied meet the high volume
cutoff. The Agency proposed using the
high volume cutoff as an indicator that
land storage may be an economic
necessity because when volumes are
high, alternatives to land placement are
costly and not practical. In fact, the
Agency now finds that mineral
processing secondary materials are
generated at volumes where ther^ is no
reason that they cannot be managed in
non-land based units (except for solids
placed on approved pads).
  Industry comments maintained that it •
is impractical to place mineral
processing secondary materials in tanks,
containers, and buildings. Based on the
storage of similar volumes and types of
hazardous wastes generated in other
industries, the Agency does not agree.
The Agency presented its analyses of
volumes in its report entitled,
Characterization of Mineral Processing
Wastes and Materials, 1997. This report
noted that listed hazardous wastes, such
as spent potliners, and electric arc
furnace dusts, are generated at volumes
which generally exceed that of mineral
processing secondary materials yet are
stored in tanks and buildings. Further,
this report noted that the volumes
generated by other industries that use
tanks, containers, and buildings to store
hazardous wastes are not substantially
different than volumes generated by the
mineral processing industry.
  b. Reliability of Damage and
Environmental Release Reports.
Industry commenters to the May 12,
1997 proposal sought to refute or
minimize the degree of contamination
caused by the land storage of mineral
processing secondary materials. Despite
these objections, the Agency still finds
that land-based storage and management
practices of mineral processing
secondary materials and wastes can or
may create or exacerbate soil and
ground water contamination.
  The Agency issued two separate
reports in 1995 and 1997 (Office of
Solid Waste, U.S. EPA, Human Health
and Environmental Damages From
Mining and Mineral Processing Wastes
(1995), and Office of Solid Waste, U.S.
EPA, Damage Cases and Environmental
Releases (1997)) which presented
information on damage cases and
environmental releases of mineral
processing and mining wastes. The data
tended to fall into two general classes:
                        (1) information that illustrates that
                        environmental damages have occurred,
                        and (2) information that discusses the
                        types and magnitude of mineral
                        processing materials that have been
                        released into the environment. In some
                        cases, a combination of feedstock, in-
                        process materials, secondary materials,
                        and wastes contribute to ground water,
                        surface water, or soil contamination.
                        Also, in some cases, contamination
                        occurred through episodic of continuing
                        mismanagement of hazardous and other
                        solid wastes (e.g., commercial chemical
                        spills). Industry commenters objected to
                        the use of these damage cases
                        contending that they reflect historic
                        practices and not current operations.
                          The Agency disagrees that storage of
                        mineral processing wastes, and in some
                        cases secondary materials, on the
                        ground, which was reflected in these
                        reports, no longer occurs. After careful
                        reevaluation, the Agency finds that the
                        record and, in particular,  these reports,
                        clearly indicate that the storage on the
                        ground of mineral processing wastes
                        and secondary materials continues as a
                        management practice and has caused
                        environmental damage or has the
                        potential to do so. These reports identify
                        cases where mineral processing wastes
                        and secondary materials were eroded by
                        rain, were carried by wind, or, in the
                        case of surface impoundments, migrated
                        to contaminate ground water. The vast
                        majority of newly identified mineral
                        processing wastes are liquids and their
                        placement in impoundments presents
                        actual or potential threats to the
                        environment. The Agency concludes
                        that placement of secondary mineral
                        processing materials in impoundments
                        may contribute to the waste
                        management problem.11
                          EPA is also not impressed by
                        comments stating that most of the
                        damage incidents involved wastes no
                        longer utilized within a process, not
                        secondary materials awaiting
                        reclamation, and therefore are irrelevant
                        to this rule. The damage incidents
                        certainly show that when hazardous
                        mining and mineral processing wastes
                        and mineral processing secondary
                        materials are stored in piles or in
                        surface impoundments, hazardous
                        constituent releases and consequent
                        damage has occurred in this industry.
                        Piles and impoundments do not
                        automatically become safer if the
                         11 Of course, those mineral processing facilities
                        that have in fact'improved their storage practices for
                        mineral processing secondary materials being
                        reclaimed by using tanks, containers, br buildings
                        instead of impoundments to store secondary
                        materials would be essentially unaffected by this
                        rule, since such units would be excluded from
                        regulations.
 materials stored in them are secondary
 materials awaiting recycling rather than
 wastes. Rather, the risk comes from the
 nature of the storage unit.
   The Agency compared the toxic and
 hazardous properties of newly
 identified mineral processing wastes
 with a limited number of RCRA listed
 hazardous wastes in the 1997 technical
 background document, Characterization
 of Mineral Processing Wastes and
 Materials. This report was used to
 support the May  1997 proposal. In order
 to easily compare the listed waste
 leachate concentrations with the
 leachate concentrations of the newly
 identified mineral processing wastes, a
 combined mean and maximum range of
 chromium, cadmium, and lead
 concentrations for the seven listed
 wastes were calculated. The mean
 leachate concentrations for chromium,
 cadmium, and lead range from 6.03 mg/
 1 to 273.23 mg/1, <0.01 mg/1 to 117.5
 mg/1, and 1.47 mg/1 to 259.83 mg/1,
 respectively. Likewise, the maximum
 leachate concentrations for chromium,
 cadmium, and lead range from 12 mg/
 1 to 4250 mg/1, <0.01 mg/1 to 268 mg/
 1, and 2.10 mg/1 to 1550 mg/1,
 respectively. The report then compared
 the ranges in constituent concentrations
 exhibited by the listed wastes and the
 newly identified mineral processing
 wastes. The report states that 15 of the
 23 mineral processing wastes exhibit
 leachate concentrations of chromium,
 cadmium, and lead at levels that are
 equal to or greater than those levels
 exhibited by the seven listed wastes.
 Therefore, the Agency has concluded
 that some mineral processing secondary
 materials exhibit hazardous properties
 similar to listed hazardous wastes, arid
 have the same or greater potential of
 leaching metals into the environment
 when they are improperly placed on the
 land.
  In addition, mineral processing
 secondary materials often contain metal
 compounds and other constituents
 which, due to processing steps, become
 more mobile in the environment (see 54
 FR 36614-36619, September 1, 1989).
 By the very nature of mineral
 processing, heavy metals are
 continuously concentrated and waste
 streams tend to contain higher metal
 loadings than those found in raw ore.
 Since the resultant wastes have higher
concentrations of metals, they likewise
 have a higher potential to leach higher
concentrations of metals into the
environment if they are not adequately
stored. Finally, the record also shows
that a wide range of mineral processing
secondary materials are released into
the environment. Such releases do not
necessarily mean that environmental

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                                                                     28587
damage has occurred; however, the
Agency believes it must take
appropriate steps to minimize such
releases to reduce the potential for
damage to occur, just as the Agency
does with other hazardous wastes.
RCRA is a preventive statute, designed
to assure safe management of hazardous
waste from cradle to grave to prevent
the need for remediating releases. Based
on the information noted above, the
Agency therefore has finalized in
today's rule a "no land placement"
condition for the storage of mineral
processing secondary materials.
  Comments from public interest groups
pointed out that a considerable amount
ofinformation shows that releases result
from fugitive dusts and that control of
dusts was not adequately addressed in
the proposals. The Agency agrees that
the release of fugitive dust should be
addressed and believes that placement
In tanks, containers or buildings will
adequately address this concern.
Mineral processing secondary materials
Stored in tanks or containers must be
stored in a manner which effectively
manages fugitive  emissions. Moreover,
as at proposal, if the site-specific pile
approval process  is utilized, the
possibility of harm via  an air exposure
must be considered, and, if necessary,
controlled. See 62 FR at 2372 (proposed
4. Conditions to the Exclusion
  In the January 1996 and May 1997
proposals, the Agency sought comment
on now to establish a conditional
exclusion to the definition of solid
waste which would encourage recycling
of mineral processing secondary
materials and be protective. In today's
rule the Agency is establishing a
conditional exclusion to the definition
of solid waste. The conditions relate to
legitimacy of recycling, land placement,
speculative accumulation, and
notification, and are discussed below.
  a. Legitimacy. It goes virtually
without saying that only mineral
processing secondary materials which
are reclaimed legitimately would be
excluded under today's rule. This is
because sham recycling is simply waste
treatment or disposal conducted under
the guise of recycling. See U.S. v. Self,
2 F. 3d 1071, 1079 (10th Cir. 1993).
  The Agency currently uses a
qualitative approach for determining
whether a material is being legitimately
recycled. Factors the Agency considers
typically relevant in making such
determinations are found at 50 FR 638
(Jan. 4, 1985); 53 FR 522(Jan. 8, 1988);
56 FR7145, 7185 (Feb. 21. 1991). Use
of these factors to assess whether a
particular activity is to be viewed as
recycling rather than treatment or
disposal was emphatically sustained by
the Court in Marine Shale Processors v.
EPA. 81 F. 3d 1371, 1381-83 (5th Cir.
1996) and United States v. Marine Shale
Processors, 81 F. 3d 1361, 1366(5thCir.
1996).
  The main issue in this rulemaking
was whether the Agency should develop
quantified criteria for use in assessing
legitimacy of reclamation activities
Within the mineral processing industry.
The Agency proposed quantitative
criteria including the potential use of an
ore grade cut-off, normal operating
range, efficiency standard, and an
economic test. 62 FR at 2342-44. In
addition to metal values, the Agency
also solicited comment on legitimate
recycling of acid, water, and other
values.
  The mineral processing industry
noted in their comments that their
products must meet international
quality standards and they would not
risk affecting product quality by
introducing materials which would
adversely affect that quality, and
therefore that legitimacy can be
assumed in essentially all cases. They
also opposed the proposed quantified
criteria.
  While the Agency agrees that market
forces generally may limit the
introduction of materials which could
adversely affect product quality, mineral
processing facilities by their nature
process large volumes of materials, EPA
is concerned that small volumes of
wastes could be placed into processes
without contributing mineral values in
order to treat or dispose of them.
Obviously, this is not recycling, as
noted by the Court in U.S.  v. Marine
Shale Processors, 81 F. 3d at 1366. The
Agency, therefore,  does not agree that
there is no need  to apply some type of
reasonable legitimacy criteria.
  Industry commenters also noted that
application of quantitative criteria
would be burdensome, are not
necessary, and could not be effectively
implemented. The  Agency agrees that
implementation  of the proposed
quantitative tests would have required
significant testing of materials (and
resultant costs) and that due to
uncertainty in evaluating test results,
companies may decide not to recycle
any materials to  protect the Bevill status
of their resultant wastes. Application of
an ore grade cutoff criteria could restrict
the gold industry's ability to recover
gold values from secondary materials
that contain gold at levels below those
found in ore. Such recovery could
nevertheless be cost effective. Industry
commenters stated that the application
of a normal operating range test would
be difficult to implement since
operating parameters at large mineral
processing facilities change often related
to differences in feed. There also was
little support from industry for the
proposed efficiency test because such
facilities may be recovering a specific
metal at one recovery rate while they are
recovering other metals at a different
rates. Industry commenters also rejected
the proposed use of an economic test
because recycling need not be profitable
to be legitimate. They specifically
pointed out the cases where recycling
was economical only relative to
disposal, and yet, the company was
legitimately reusing the recycled
materials.
  For these reasons the Agency has
declined to adopt any of the proposed
quantitative tests. In today's rule, the
Agency is not adopting quantitative
criteria and will continue to use the
qualitative approach for evaluating
whether an activity is legitimate
recycling. In addition, the Agency
believes that legitimate recycling may
occur for reasons other than to recover
metal values— recovery of acids,
cyanide, or water, for example. With no
quantitative tests for such recycling, the
Agency believes the qualitative criteria
best cover the broad array of situations
being addressed. Situations most likely
to be deemed sham recycling would,
thus, be those involving low amounts of
recoverable material plus the presence
of non-contributing hazardous
constituents in the waste (particularly
hazardous constituents not otherwise
present in the normal feedstock of the
process). See generally, 53 FR at
522(January 8, 1988).
  fa. Design and Construction
Standards. In the January 1996
proposal, the Agency assumed that
land-based storage of mineral processing
secondary materials was a necessity
within the mineral processing sector,
and proposed three different types of
conditional mechanisms whereby these
land-based units could be deemed
"process units" that would be excluded
from Subtitle C jurisdiction. 62 FR at
2345-48. More specifically, these
alternative conditions were an
environmental performance standard, a
design and operating standard, or an ad
hoc, site-specific standard developed by
an EPA Region or authorized State. The
environmental performance standard
would have used a ground water
protection standard as a determinant of
whether a land-based unit was involved
in discard. If ground water monitoring
determined that there was an
exceedance of the MCL (background
levels if background exceeded the MCL)
at a designated point of compliance.

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then the unit would be required to
implement unit-specific corrective
action. 62 FR at 2345-46.
  The Agency also proposed, in lieu of
compliance with the ground water
standard, design and construction
standards. EPA proposed that surface
impoundments be constructed with a
transmissivity equivalent to a 40 mil
geomembrane liner placed on top of 12
inches of a material with a 10-5
hydraulic conductivity. Piles could be
constructed on concrete, asphalt, or soil
any of which would have to have the
equivalent transmissivity of three feet of
clay with 10-7 cm/sec hydraulic
conductivity. Id. at 2346.
  The final alternative allowed for an
authorized State or EPA Region to make
a site-specific determination that the
unit can be operated in a manner that
is protective. The Agency proposed this
option to allow for flexibility because
there are a range of site-specific
characteristics, such as depth to
groundwater and rainfall, which can
affect the design of a unit and affect the
risks posed by such units. Id. at 2347.
  EPA finds now, however, that the
premise of volumetric necessity was
mistaken (see the earlier section of this
preamble). As such, the Agency is
adopting its traditional jurisdictional
demarcation point of not allowing
exclusions for land-based storage units.
As discussed earlier, land-based storage
units are so fraught with indicia of
discard—including elements of outright
disposal via both air and groundwater
exposure pathways (borne out by
damage cases as well), plus no longer
being part of the actual production
operation—that EPA views this
demarcation as strongly justified once it
is clear that there is no necessity to use
such units. The sole exception in the
final rule which allows for conditional
exclusion for a land-based storage unit
is for piles resting on pads which are
approved by an authorized State or EPA
Region, as discussed in the section
below.
  c. Units Eligible for Conditional
Exclusion and Conditions Attached to
Such Units, (i) Tanks, Containers and
Buildings. Today's rule states that
mineral processing secondary materials
reclaimed within the industry can be
excluded if they are stored in any of the
following: tanks, containers, buildings,
or piles resting on pads when such piles
are evaluated and approved on a site-
specific basis by an authorized State or
EPA Region. (As noted in the May 12,
1997 proposal, this is conceptually the
same  as the rule EPA proposed for the
oil-bearing secondary materials
generated by and recycled within the
petroleum industry. See 62 FR at 26048
                         (May 12, 1997) and 60 FR 57753
                         (November 20, 1995)). Tanks,
                         containers, building, and approved pads
                         do not have to meet the design and
                         operating standards for units storing
                         RCRA Subtitle C wastes.
                           EPA also is adopting certain minimal
                         conditions on these units' design to
                         assure basic unit integrity and so assure
                         that tanks, containers, and buildings do
                         not serve as conduits for massive
                         material release (i.e. disposal units). An
                         acceptable tank must be free standing
                         and not be a surface impoundment, and
                         be manufactured of a material suitable
                         for containment of its contents. An
                         acceptable container must be free
                         standing and be manufactured of a
                         material suitable for containment of its
                         contents. An acceptable building must
                         be a man-made structure and have floors
                         constructed from non-earthen materials,
                         have walls, and have a roof suitable for
                         diverting rainwater away from the
                         foundation. A building may also have
                         doors or removable sections to enable
                         trucks or machines access. The Agency's
                         technical report Non-RCRA Tanks,
                         Containers, and Buildings, U.S. EPA,
                         1998, provides examples of acceptable
                         units for the storage of mineral
                         processing secondary materials.
                           EPA disagrees with comments from
                         public interest groups stating that
                         nothing short of RCRA Subtitle C
                         standards could assure protectiveness
                         and so demonstrate that these non-land-
                         based storage units were not part of the
                         waste management problem. The
                         plenary conditions urged by the public
                         interest group commenters are indeed
                         those necessary for protective
                         management of hazardous wastes, but
                         the Agency's task here is different. It is
                         to delineate discard from non-discard
                         (i.e. wastes from non-wastes), and, as
                         noted at proposal, not only is this a
                         different test than determining
                         protective waste management
                         conditions, but there are jurisdictional
                         constraints on the types of conditions
                         EPA can impose when considering the
                         situation presented here, i.e., secondary
                         materials generated and reclaimed
                         within a single industry sector. 62 FR at
                         2342. Thus, the conditions EPA is
                         adopting are designed to assure that
                         these units are not essentially sieves
                         functioning as means of disposal.
                          The Agency discussed its definition of
                         non-RCRA tanks, containers and
                         buildings in its Technical Background
                         Document (See 62 FR at 26050, Non-
                         RCRA Tanks Containers, and Buildings,
                         1997). Industry commenters requested
                         clarification on whether their smelter or
                         refiner buildings would meet the
                         definition of "building" if tanks,
                         containers or buildings were required.
As set out in the final rule, a building
is a structure with four walls, a roof, and
floor constructed of non-earthen
materials. Smelter and refinery
buildings are quite large and include
floor areas which, in part, use earthen
materials. As long as mineral processing
secondary materials (i.e. those sludges,
by-products, and spent materials which
would otherwise be identified as
hazardous wastes) are stored in those
sections of the smelter and refinery
building that do have floors constructed
of non-earthen materials, these
structures would qualify for the
exclusion included in today's rule as
non-RCRA buildings.
   Industry commenters also noted that
the Agency made reference to tanks and
containers having to meet applicable
industry standards for their construction
and operation, such as those established
by the American Society of Testing
Materials (ASTM) or the American
Petroleum Institute (API) (See 62 FR at
26050). They pointed out that API
standards deal specifically with tanks,
while ASTM standards relate more
specifically to testing procedures. The
commenters argued that units storing
mineral processing secondary materials
do not need to comply with these
standards to be safe. The Agency agrees
that the references to applicable
industry standards such as ASTM and
API were overly broad and has not
included them in today's rule. Industry
commenters requested clarification on
whether tanks and containers needed
covers to meet the condition of "no land
placement." The Agency expects that
the storage of mineral processing
secondary materials will prevent
uncontrolled fugitive emissions. Tanks
and containers do not need covers as
long as the materials stored in them are
managed to reduce fugitive emissions.
The facility operator will therefore need
to determine if covers are needed to
effectively control fugitive emissions.
For example, tanks and containers
placed inside buildings may not need
covers.
  The gold and copper industries stated
that their secondary materials would
meet legitimacy conditions and that
they do not need to store these materials
prior to placement back onto gold heap
leaches or copper dump leaches. The
final rule indicates that process units, as
opposed to storage units, are excluded
from RCRA Subtitle C. EPA believes that
the heap and dump leach units are
process units, notwithstanding the fact
that they are land-based. This is because
dump and heap leach piles
simultaneously  produce products and
waste. The issue is also academic with
respect to these units. This is because

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                                                                      28589
 the Agency determined that these units
 are extraction/beneficiation activities in
 1986 and reiterated that position in
 1989 (see 51 FR 24496 and 54 FR
 36592), and their Bevill regulatory
 status Is unchanged by today's rule.
 Thus, if the heap leach pile becomes a
 disposal unit because wastes remain
 there permanently, those wastes
 presently have Bevill status. The
 Agency continues to be concerned that
 there may be environmental risks
 related to dump and heap leaching, but
 has determined that this rule is not the
 appropriate means to address those
 concerns.
   Industry commenters also raised
 concern that under the "no land
 placement" option, described in the
 May 1997 proposal, they would no
 longer be able to place slags on the
 ground. This is an incorrect reading of
 the regulations and the proposals since
 at 40 CFR 261.4(b)(7), iron and steel,
 copper, lead, zinc, and elemental
 phosphorus slags are all classified as
 Bevill exempt mineral processing
 wastes and would not be affected by this
 rule. The management of these slags on
 the ground can continue as long as they
 meet other applicable federal and state
 regulations.
   (ii) Solid Mineral Processing
 Secondary Materials Resting On Pads.
 As noted, EPA proposed at 61 FR 2346
 to allow land-based units which had
 been approved as protective on a site-
 specific basis by an authorized State or
 EPA Region. The Agency is retaining a
 portion of that proposal in the final rule
 in order to allow solid mineral
 processing secondary materials resting
 on pads to be used for storage of mineral
 processing secondary materials being
 reclaimed within the industry. The
 Agency defines "solid mineral
 processing secondary materials" as
.those mineral processing secondary
 materials containing no free liquids. The
 provision functions effectively as a
 variance to allow conditionally
 excluded storage using pads to occur.
   Industry comments pointed out that
 there are materials which can be placed
 on concrete or asphalt pads in a manner
 that provides the equivalent protection
 of a tank, container, or building. The
 Agency is aware that in the arid
 Southwest, the copper industry places
 materials on pads to dry them prior to
 their reentry Into processes. The Agency
 agrees with Industry comments that  a
 degree of flexibility is needed regarding
 the storage of solid mineral processing
 secondary materials in this sector,
 particularly given the number of such
 storage units presently used in arid
 conditions, and (to a lesser degree of
 importance) given the number of
existing piles used by this industry
which conceivably could be upgraded to
operate protectively and for which a
more flexible approach could be
warranted.12
  In today's rule EPA is adopting a
provision whereby persons storing only
solid mineral processing secondary
materials (those mineral processing
secondary materials containing no free
liquids) on pads prior to legitimate
reclamation in a mineral processing
process may seek a determination from
an authorized State or (if the pile is
located in an unauthorized State) EPA
Region such that the unit is approved as
protective and materials stored in the
unit are conditionally excluded from the
regulatory definition of solid waste
provided that the pad is not serving as
a mode of discard.
  Minimum design criteria for pads are
as follows; (1) Pads must be designed of
non-earthen materials which are
compatible with the chemical nature of
the mineral processing secondary
material  being stored, (2) Pads must be
capable of withstanding physical
stresses associated with placement and
removal, (3) Pads must have run on/
runoff controls, (4) Pads must be
operated in a manner which controls
fugitive dust, and (5) Owner/operators
must conduct inspections and
maintenance programs to ensure the
integrity of the pads.
  The decision-maker would evaluate
the application for storage on pads
against a general environmental
performance standard: whether the pad
is located, designed, constructed and
operated so as to be protective of human
health and the environment and is not
used for disposal. A broad benchmark of
performance would be that the
approved pad must afford the same
degree of protectiveness as non-RCRA
tanks, containers and buildings eligible
for exclusion.
  The decision-maker would have  to
consider potential releases via
groundwater, surface water, and air
exposure pathways. Factors to be
considered for assessing the
groundwater, surface water, air
exposure pathways are:
  12 EPA has not provided for this type of site-
specific approval of land-based storage units in
other rules providing for conditioned exclusion
from the regulatory definition of solid waste. In
some cases, this is because management of solids
was not at issue (proposed petroleum listing rule
and rules on recovered oil), or the industry sector
did not use piles for solids management (steel
Industry coke-byproducts listing rule). As noted in
the text above. EPA believes that there are certain
factors peculiar to the mineral processing industry
that have persuaded EPA to allow for a site-specific
authorization process, but this provision should not
be considered to be a precedent for any other
industry sector.
—The volume and physical and
  chemical properties of the secondary
  material, including its potential for
  migration off the pad;
—The potential for human or
  environmental exposure to hazardous
  constituents migrating from the pad
  via each exposure pathway, and the
  possibility and extent of harm to
  human and environmental receptors
  via each exposure pathway.13
  Thus, under this regime, a State could
approve placement of solid mineral
processing secondary materials (those
materials containing no free liquids) on
a pad where, after consideration of
relevant exposure pathways, a
determination is made that the mode of
storage will not adversely affect human
health and the environment, and where
the operator has demonstrated
•compliance with the minimum design
and operating criteria. Approval would
be more problematic if a pad was
located in an area which experiences
flooding, or in an area where ground
water was close to the surface and used
for drinking water purposes.
  The Agency is confident that site-
specific determinations can be
accomplished as part of existing State
regulatory programs. The situations
eligible for this variance are
considerably more circumscribed than
at proposal, and the  decision criteria
consequently more focused, meeting
some of the objections in comments
from public interest  groups on the
proposals. Today's rule only allows the
placement of mineral processing
secondary materials  that are physical
solids, and the rule also specifies certain
minimum conditions such pads must
meet to be  approved. Further, the rule
identifies the factors a State must
consider prior to making such
determinations. The Agency will review
a State's regulatory authorities it intends
to use in implementing this
determination to assure  that an
authorized state can effectively
implement this element of the rule.
  As proposed, EPA is requiring that
there be opportunity for public
participation in the evaluation and
approval process of pads storing solid
mineral processing secondary materials.
62 FR at 2366. The Agency believes  it
is important that those citizens who
may be directly affected by these
determinations be notified of them and
  13 As proposed, these general decision factors are
drawn from the environmental performance
standard in the row-revoked 40 CFR 267.10.62 FR
at 2347. Commenters noted correctly that Part 267
is no longer codified, so that these requirements
should not be placed in regulatory language (or
preamble) by means of a cross-reference to the
revoked provisions.

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participate in the process, and notes
further that this requirement is fully
consistent with RCRA's strong
preference for public participation. See
RCRA section 7004(b).
  On the other hand, EPA is not
adopting any site-specific approval
process for storage of mineral processing
secondary materials in surface
impoundments. The Agency has
concluded that storage in
impoundments would likely lead to
their contributing to the waste
management problem. Many damage
incidents in this industry involve the
use of impoundments (see damage case
on phosphorus impoundments  in
Idaho). Furthermore, the Agency has
determined that there are no
engineering  or economic constraints on
requiring liquid mineral processing
secondary materials to be placed in
tanks.
  d. Speculative Accumulation. In this
rule, the  Agency is establishing a
condition that mineral processing
secondary materials cannot be
accumulated speculatively as defined in
40 CFR 261.1 (c) (8). EPA proposed this
condition, 61 FR at 2372, and indeed,
this condition already applies to every
other secondary material being recycled
which is excluded from being a solid
waste. See, e.g., 261.2 (e). Industry
comments noted that the 12-month limit
on speculative accumulation was overly
restrictive and that many mineral
processing secondary materials need to
be stored until economic conditions
warrant their recycling. The Agency
rejects these comments because no data
were presented that would indicate that
the volumes of materials being
generated could not be efficiently
recycled  within a 12-month period. In
the 12 years the speculative
accumulation provision has been in
effect, the Agency is unaware of other
industries suffering economic burdens
by complying with the limits placed on
speculative accumulation. Nor  is EPA
aware of any mineral processing facility
which has applied, pursuant to the
variance provision in 40 CFR 260.30(a)
and 260.31 (a) (which allow an extension
of the 12-month speculative
accumulation period), to extend the
existing 12-month requirement for
currently excluded mineral processing
secondary materials (like unlisted
sludges and  by-products). The Agency
infers that the existing 12-month
requirement is not imposing any type of
significant constraint on this industry.
  e. One Time Notification. EPA
proposed that mineral processing plants
generating mineral processing
secondary materials and utilizing the
conditional exclusion to the definition
                        of solid waste provide EPA (or an
                        authorized State) with a one-time
                        notification which describes the mineral
                        processing materials to be recycled and
                        the recycling processes being used. (See
                        61 FR at 2345). The Agency is finalizing
                        this provision in today's rule. It applies
                        to any facility utilizing the conditional
                        exclusion.
                          Today's rule requires that the one
                        time notification must specify the types
                        and amounts of mineral processing
                        secondary materials to be recycled and
                        the location and type of unit storing
                        mineral processing secondary material.
                        The notice should be submitted to the
                        appropriate EPA regional office or
                        authorized State. An amended
                        notification would not be required
                        unless the facility has significant
                        process changes affecting the
                        generation, location, or recovery of
                        mineral processing secondary materials.
                          The reason the provision is needed is
                        to assure that the conditioned-exclusion
                        approach in today's rule can be feasibly
                        implemented. To do so, EPA or States
                        must know what secondary materials
                        are being  stored, and where storage is
                        occurring, in order to determine
                        whether the other conditions in the rule
                        are being  satisfied. As described above,
                        these other conditions are necessary to
                        assure that secondary material storage
                        within the industry does not become
                        part of the waste management problem.
                        In this very real  sense, the notification
                        condition is likewise necessary to assure
                        that the storage is not part of the waste
                        management problem, since notification
                        is necessary to successfully implement
                        the other conditions.
                          Industry comments opposed this
                        condition, not so much on grounds of
                        unreasonable burden, but based on the
                        argument that the Agency lacks legal
                        authority  over non-waste activities.
                        Since EPA finds that the notification
                        condition is an integral part of a group
                        of conditions necessary to assure that
                        storage of these hazardous secondary
                        materials  does not become part of the
                        waste management problem, EPA has
                        legal  authority to adopt it. In addition,
                        the Agency notes that RCRA section
                        3007(a) provides authority to enter
                        facilities and obtain information needed
                        to assist in the enforcing of provisions
                        of Subtitle C. This provision can
                        reasonably be read to apply to gathering
                        information to determine whether or not
                        a particular hazardous secondary
                        material is a waste. The notification
                        condition obtains this same type of
                        information by regulatory condition.
                        The Agency thus believes that section
                        3007(a) (implemented here by rule,
                        pursuant to the Agency's general
                        rulemaking authority under RCRA
section 2002 (a)) likewise provides
authority to adopt this condition.
  In the January 1996 proposal, the
Agency solicited comment on whether a
Facility Operating Plan should be
required for facilities that generate,
store, or process hazardous mineral
processing secondary materials. (See 61
FR at 2345) Under this approach, a
Facility Operating Plan would include:
a spill prevention plan and procedures;
types, quantities, and analysis of
recycled materials; product
specifications; speculative accumulation
and storage requirements; closure plan;
and record keeping and reporting for
off-site shipments. In today's rule, the
Agency is not requiring the preparation
of such a plan. This requirement is not
necessary given the burden of proof
under existing 40 CFR section 261.2(f)
that a facility must meet to comply with
the conditions of legitimacy,
containment, and speculative
accumulation. The Agency does,
however, strongly encourage facilities to
develop a plan or at least components
of a plan as part of responsible
environmental management.

5. Bevill Related Issues
  a.  Uniquely'Associated. Under the
Agency's longstanding interpretation of
the Act, the Bevill amendment applies
to special wastes that are uniquely
associated with extraction/beneficiation
and certain mineral processing
activities. Because the decision whether
a particular waste is uniquely associated
may determine whether a particular
waste is subject to Subtitle C controls,
the Agency believed that it was
important and useful to receive public
input regarding the manner in which
EPA and authorized States apply this
principle and solicited comment
regarding  the criterion for determining
whether a waste is uniquely associated
with mineral operations. The Agency
has described non-uniquely associated
wastes at 45 FR 76619, November 19,
1980 and 54 FR 36623, September 1,
1989. In the May 1997 proposal, the
Agency noted examples of non-uniquely
associated wastes, which include spent
solvents, pesticide wastes, and
discarded commercial chemicals. As
stated in the May 1997 proposal, in the
Agency's view, these wastes are
logically viewed as not being "from"
extraction, beneficiation, or mineral
processing, and, therefore, are not
subject to  the Bevill exclusion. (See 62
FR 26054-56, May 12, 1997).
  In May 1997, the Agency proposed,
several alternative approaches to   ,,
determining whether a waste was
uniquely associated. One option to
determine if a waste is uniquely

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                                                                     28591
 associated was the simple application of
 the high volume threshold used in the
 Agency's 1989 rulemaklng. Under this
 option, the volume criterion would
 obviate the need to consider the
 uniquely associated principle further.
   The Agency based this option on the
 fact that Congress and the courts have
 established that only large volume
 special wastes should be eligible for the
 Bevlll exclusion (62 FR 26041, May 12,
 1991; Environmental Defense Fundv.
 EPA, 852 F.2d 1316 (D.C.  Cir 1988), cert.
 denied 489 U.S. 1011,  Solite
 Corporation v. EPA, 952 F.2d 473, 494-
 495 (D.C. Cir 1991)). The Agency
 reasoned that a large volume criterion is
 simple to apply and is consistent with
 the broad parameters of Congressional
 intent. Further, this approach would
 help prevent additional toxic
 constituents from being disposed with
 Bevlll wastes, potentially encouraging
 recycling, and may result in reduction
 of cleanup costs.
,  Industry commenters voiced strong
 opposition to the use of a  volume
 criterion to determine  whether a waste
 was uniquely associated. Commenters
 stated that the Bevill exclusion was
 Intended to exempt all mining wastes,
 regardless of their volume or toxlcity.
 As the regulatory history of EPA's
 implementation of the Bevill exemption
 makes clear, however, this is not the
 case, (see 54 FR 36592, September 1,
 1989).
   Nonetheless, while the Agency has
 used volume to make certain Bevlll
 determinations,  it has not in the past
 used the high volume criterion to make
 uniquely associated determinations. The
 Agency assessed the impact of applying
 a high volume criteria in making
 uniquely associated determinations and
 found that such  an application would
 make virtually all such wastes non-
 uniquely associated and subject to
 Subtitle C controls, regardless of the
 extent to which the waste was, in fact,
 associated with mining and mineral
 processing. EPA does not believe that it
 would be appropriate to ignore
 altogether the extent to which a
 particular waste is associated with
 mining and mineral processing
 activities that are subject to the Bevlll
 exclusion, since that exclusion on its
 face applies to wastes from those
 processes. In addition, the Agency
 believes that a certain degree of
 flexibility is needed for making    '
 uniquely associated determinations due
 to the complex and varied mineral
 operations and site-specific factors that
 must be considered in making these
 decisions. In today's rule,  the Agency is,
 therefore, not adopting the use of a
 volume criterion to determine whether
 a waste is uniquely associated.
  The Agency also proposed an option
 where a waste would be uniquely
 associated if it came into direct-contact
 with an ore or mineral or wastes from
 the extraction, beneficiation, or
 processing of ores and minerals. Several
 commenters expressed the view that,
 while contact can be one useful
 indicator of whether a waste is uniquely
 associated with mining, such contact
 should not be required in all cases.
 These commenters believed that the test
 should be whether the conduct of
 mining and mineral processing
 necessitates the generation of a
 particular waste; if so, then the waste
 should be considered uniquely
 associated. Other commenters believed
 that the "contact" principle  was
 potentially overly broad, since it would
 have the potential to sweep into Bevill
 wastes that typically would not be
 considered uniquely associated. As
 proposed, however, the contact option
 would consider only contact that
 occurred as part of a processing
 operation.
  After consideration of public
 comments, the Agency has concluded
 that a strict application of the "contact"
 principle, while appealing because of its
 simplicity, would not provide the best
 means of determining whether a waste
 is uniquely associated with mining or
 mineral processing. The Agency is
 concerned that, while contact may be
 one indicator of when a waste is
 associated with the mineral recovery
 process where, for example,  the contact
 with the process imparts chemical
 characteristics to the waste, EPA agrees
 with commenters that simple
 application of the contact principle has
 the potential to be over-inclusive of
 wastes that are properly viewed as
 "uniquely associated." The Agency has
 not, therefore, adopted that criterion as
 being determinative of whether a waste
 is uniquely associated.
  The other option in the May  1997
 proposal would modify the contact
 principle to exclude, as non-uniquely
 associated, wastes that only exhibit the
 same hazardous characteristic both
 before and after contact with the Bevill
 waste, feedstock, or product. This
 "modified contact" approach may
 reduce the potential for Bevill wastes to
 be dumping grounds for non-Bevill
 hazardous wastes. Under this approach,
wastes that are inherently hazardous
prior to contact with a Bevill waste, and
which retain the same hazardous
characteristic after contact, would be
subject to Subtitle C regulation when
discarded.
   Commenters pointed out that the
 Agency had never before proposed to
 use the hazardous characteristic to
 determine whether a waste was
 uniquely associated, nor had the Agency
 used this criterion in making uniquely
 associated determinations since 1980.
 They also pointed out that the Agency
 had already studied the hazardous
 characteristics of uniquely associated
 wastes but nevertheless stated that these
 wastes should not be subject to  RCRA
 Subtitle C (51 FR 24496).
   Some commenters also contended
 that the real issue is whether the waste
 is indigenous to the mining and mineral
 recovery process—i.e., whether it is
 necessary to generate the waste  in order
 to conduct the process—and that the
 hazardousness of a material prior to its
 use in the process is, therefore,
 irrelevant.
   EPA agrees, in part, with these
 commenters that the characteristics of a
 material (i.e., whether it is hazardous)
 prior to use in mineral recovery
 processes should not be solely
 determinative of whether the wastes are
 "uniquely associated." As a general
 matter, the closer the nexus between a
 particular waste and the mineral
 recovery process, the more likely it is
 "uniquely associated" within the
 meaning of Bevill. The Agency
 recognizes, however, that one fact that
 might help evaluate the relationship
 between a particular waste and the
 mineral recovery process is the extent to
 which the properties of a particular
 waste can be attributed to the process
 itself. Thus, while the Agency does not
 believe that hazardousness of a material
 prior to use in the mineral recovery
 process should be determinative of its
 Bevill status after use, the extent to
 which the material has acquired
 attributes through its involvement in
 that process is relevant.
  Based on consideration of all the
 public comments, the Agency believes
 that it is appropriate to evaluate
 whether a particular waste is uniquely
 associated with mining and mineral
 processing as follows. First, any waste
 from ancillary operations are not
 "uniquely associated" because they are
 not properly viewed as being "from"
 mining or mineral processing. In
 evaluating wastes from non-ancillary
 operations, one must consider the extent
 to which the waste originates or derives
 from processes that serve to remove
mineral values from the ground,
concentrate or otherwise enhance their
characteristics or remove impurities,
and the extent to which the mineral
recovery process imparts its chemical
characteristics to the waste. Under this
test, the greater the extent to which the

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waste results from the mineral recovery
process itself, and the more the process
imparts to the waste its chemical
characteristics, the more likely the
waste is "uniquely associated."
  The Agency believes that this
approach provides a reasonable basis to
determine whether a waste is "uniquely
associated." The Agency believes that
these factors touch on the full range of
facts that are likely to be relevant in any
particular case. As is evident from the
criteria summarized above, judgment
must be exercised where the question is
whether a waste from a non-ancillary
operation is uniquely associated. EPA
believes that this is appropriate because
of the fact-specific nature of this
determination and the myriad
circumstances that can arise. However,
as noted above, the Agency believes that
wastes generated from ancillary
operations (such as truck maintenance
shops at a mine and not from the mining
or mineral recovery process itself), are
not uniquely associated. Such
circumstances would likely present the
most readily identifiable cases of non-
uniquely associated wastes.
  The approach noted above reflects the
longstanding principle, based on the
clear language in Section 3001 of RCRA,
that uniquely associated wastes must
result from mining and mineral
processes themselves. This approach
also is generally consistent with
industry's underlying contention that
the uniquely associated concept should
exempt wastes that are "indigenous" to
mining. EPA disagrees, however, with
industry's contention that uniquely
associated wastes are any wastes that
are unavoidably generated by mining
operations. For example, arguably, it is
unavoidably necessary to conduct
maintenance on machinery that
supports mining at a site (e.g., used to
transport ores and minerals among
processes); however, such maintenance
is not necessarily part of the mining or
mineral recovery process itself. EPA
believes that the proper focus should be
the extent to which a waste is generated
as part of the mining and mineral
recovery process, not the extent to
which a facility must conduct an
activity as part of its operation.
  The elements of the "contact" options
discussed in the preamble to the
proposal, as well as regulatory language
contained in the May 1997 proposed
rule (see proposed 40 CFR 261.4(b)(7)
(stating that exempt extraction and
beneficiation wastes must "originate
from the extracted ore or mineral")) may
affect uniquely associated
determinations. While, as discussed
above, the Agency believes that sole
reliance on a contact principle would be
                         unjustifiably rigid, consideration of the
                         extent to which the mineral recovery
                         imparts to the waste its chemical
                         characteristics provides a useful means
                         of evaluating whether a waste is
                         uniquely associated. The greater the
                         extent to which the waste acquires its
                         chemical characteristics from the
                         process from the processing of an ore or
                         mineral, the more likely that waste
                         would be uniquely associated with the
                         Bevill process. Conversely, the less a
                         particular waste originated from or
                         acquired its characteristics from such
                         processes, the less likely it is uniquely
                         associated.
                           Some commenters asserted that the
                         Agency's proposal represented a sharp
                         departure from past Agency practice
                         under the uniquely associated principle
                         and would constitute, in effect, a
                         revision of prior Bevill regulatory
                         determinations. Neither contention is
                         correct. While the Agency has
                         articulated here its approach to the
                         uniquely associated principle in more
                         detail than previously, the Agency
                         believes that the approach is
                         fundamentally the same as how the
                         Agency has applied the uniquely
                         associated principle in the past. Second,
                         the Agency is not, through the uniquely
                         associated principle, seeking to revise
                         past regulatory determinations that
                         exempted extraction and beneficiation
                         wastes  and certain mineral processing
                         wastes  from Subtitle C regulation. The
                         list of exempt extraction/beneficiation
                         processes and mineral processing
                         wastes  in section 261.4(b)(7)  is not
                         altered by this approach. Even under
                         these existing regulatory provisions,  it
                         was necessary to determine in certain
                         cases whether a particular waste stream
                         was, in fact, "from" (i.e., "uniquely
                         associated" with) one of the enumerated
                         Bevill processes. EPA's past regulatory
                         determinations did not, therefore,
                         obviate the need for determining the
                         applicability of Bevill to particular
                         waste streams.  In this rule, EPA is
                         simply ensuring that the uniquely
                         associated criteria have the benefit of
                         full  public notice and comment; we
                         have not, however, altered the scope of
                         prior regulatory determinations through
                         this process.
                           Industry commenters nonetheless had
                         concerns about certain applications of
                         the uniquely associated principle
                         articulated in the mineral processing
                         identification document contained in
                         the docket at proposal. In particular,
                         commenters expressed concerns that the
                         document concluded that spent
                         kerosene in copper solvent extraction,
                         crud from electrowinning, crucibles and
                         cupels', and acid cleaning solutions from
                         gold heap leaches are not uniquely
associated. All of the wastes just noted
are generated as a result of
beneficiation. It should be noted that all
wastes generated after the
commencement of mineral processing
are mineral processing wastes. As a
result of the Agency's 1989 rule (54 FR
2322), all mineral processing wastes,
except those noted in 40 CFR
261.4(b)(7), are subject to RCRA Subtitle
C, if they exhibit a hazardous
characteristic. Therefore, the effect of
the uniquely associated principle is of
less import than at beneficiation
facilities.
  The Agency received numerous
comments challenging the Agency's
position that these wastes were not
uniquely associated. Comments from
the copper industry noted that slimes/
muds, crud, and spent kerosene
generated from copper solvent
extraction and electrowinning were
uniquely associated because these
wastes had been determined by the
Agency in 1989 (see 54 FR 36592) to be
wastes from extraction and
beneficiation. Based on these comments,
the Agency has reassessed its prior
conclusions regarding these wastes and
agrees with the copper industry that
slimes/muds, crud, and spent kerosene
generated from copper solvent
extraction and electrowinning are
uniquely associated.  40 CFR 261.4 states
that wastes from solvent extraction and
electrowinning are extraction/
beneficiation wastes  and are not subject
to regulation under Subtitle C. Applying
the approach described above, it is clear
that solvent extraction and
electrowinning are clearly not ancillary
activities since their sole purpose is to
concentrate copper values out of
pregnant leach solution. The "uniquely
associated" nature of these wastes is
also supported by the degree to which
the wastes originate and derive from the
mineral recovery process. Thus, the
Agency's view is that these wastes are
"uniquely associated" with
beneficiation.
  Comments received from the gold
industry noted that acid wash solutions
are generated solely from processes used
to concentrate gold values from cyanide
leach solutions. Again, the Agency has
reassessed its earlier interpretation and
now believes that acid wash solutions
from gold heap leaching are uniquely
associated. The Agency came to this
conclusion in light of the non-ancillary
nature of the process generating these
wastes (carbon columns must be kept
"clean" for the gold to be effectively
recovered), the extent to which the
wastes originate and derive from this
mineral recovery process, as well as the
fact that the process imparts some

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               Federal  Register/Vol.  63, No. 100/Tuesday, May 26,  1998/Rules and Regulations
                                                                     28593
 chemical characteristics to the waste
 (i.e.. the ore material that is cleaned
 from the carbon).
   Based on the approach articulated
 above, the Agency now believes that
" other wastes are best viewed as non-
 uniquely associated. For example, the
 Agency believes that lead anodes used
 In the electrowlnning process are not
 non-uniquely associated wastes. While
 lead anodes are used in the mineral
 recovery process and thus could be
 viewed as uniquely associated based on
 this consideration in isolation, a
 countervailing consideration is that the
 mineral recovery process Imparts
 virtually no characteristics to these
 materials. Lead  anodes are virtually
 Identical both before and after being
 used in the process. On balance, the
 Agency concludes that lead anodes are
 not uniquely associated with mining
 and mineral processing.
   The Agency also reassessed the status
 of cupels and crucibles and finds that
 they remain non-uniquely associated
 wastes. These wastes are the result of
 laboratory testing. Cupels and crucibles
 are also used in other industries (e.g.,
jewelry companies test the precious
 metal content of metals using cupels).
 These wastes are from an ancillary
 operation, laboratory analyses, and are
 not generated due to the direct recovery
 of gold and, therefore,  fail to meet the
 Agency's uniquely associated criteria. It
 should also be noted that the Agency
 has consistently found that laboratory
 wastes are generally non-uniquely
 associated.
   As stated previously, the applications
 of the "uniquely associated" principle
 articulated here reflect the Agency's
 interpretation of the criteria as applied
 to those particular wastes based on the
 best current information available to
 EPA. Like the positions articulated in
 the Identification Document, these calls
 represent the Agency's current best
 evaluation of whether  these wastes are
 "uniquely associated," based on
 available information.  However, the
 discussion above and in the
 Identification Document simply
 provides guidance on these issues, and
 therefore, the determinations are not
 legally binding on decisionmakers, the
 public, or the courts.
   Finally, one commenter argued that
 the uniquely associated principle as
 discussed by EPA is an impermissible
 reading of the Act to the extent it would
 authorize EPA to consider factors other
 than high volume/low toxicity in
 making Bevill determinations. The
 Agency disagrees with this position.
 The Court in EOF II directed the Agency
 to apply a high volume/low toxicity
 criteria to determine if a mineral
processing waste would retain the Bevill
exclusion. The uniquely associated
inquiry is somewhat different. The
question here is the threshold issue
whether a particular waste is "from"
extraction, beneficiation or mineral
processing in the first place. The
Agency does not believe that the
decision in EOF II spoke to that inquiry.
Rather, EOF II was concerned solely
with the circumstances under which a
waste that is "from" these processes
qualifies for the Bevill exclusion. Stated
another way, a waste is only subject to
the Bevill exclusion if it is, in fact,
"uniquely associated" with extraction/
beneficiation or one of the 20 exempt
mineral processing wastes. Thus, the
uniquely associated principle does not
expand the scope of the Bevill
exemption, and the  Agency's approach
is, therefore, entirely consistent with the
decision in EOF II.
  b. Addition of Mineral Processing
Secondary Materials to Units Processing
Bevill Raw Materials. The question
addressed in this section is: if a Bevill
extraction/beneficiation process uses as
feedstock a mineral processing
secondary material which otherwise
would be a hazardous waste, would the
resulting wastes still be considered to be
from extraction/beneficiation and hence
Bevill exempt?
  There are  two bases for potential
environmental concern prompting this
question. The narrower issue is that if
otherwise-hazardous wastes are used as
partial feedstocks, could they change
the resulting wastes' character in a
manner such that the existing exclusion
should no longer apply, or, put another
way, is the Bevill exemption being used
to shield disposal of non-exempt
hazardous wastes? The broader issue is
whether the Bevill amendment, which
creates an exemption from rules
designed to protect the public and the
environment from unsafe hazardous
waste disposal practices, should be
interpreted any more broadly than
necessary given that the effect is to
exempt more waste  from protective
controls.
  EPA proposed two different answers
to these questions. In the January 1996
proposal, the Agency proposed to apply
the same "significantly affected" test
used In the partially analogous context
of a Bevill device which co-processes
hazardous waste along with normal raw
material feedstock. 61 FR at 2351 and 40
CFR section  266.112. So long as
resulting wastes from the extraction/
beneficiation process were not
"significantly affected" by the addition
of hazardous secondary materials,
resulting wastes would remain exempt.
Id. Significantly affected meant either
that the resulting wastes reflecting co-
processing were statistically different
over the non-waste baseline, or that
there was an environmentally
significant increase in hazardous
constituents over the non-waste
baseline. Id.
  The May 1997 proposal would have
gone further and interpreted the Bevill
amendment narrowly (a common rule of
construction when construing
exceptions to plenary protective
regulatory schemes to apply only to
situations when extraction/beneficiation
raw material feedstocks are utilized) to
apply only to situations when
extraction/beneficiation raw material
feedstocks are utilized  (see 62 FR at
26052).
  After reviewing the public comments,
the Agency has decided not to adopt
either of these alternatives. As
explained below, EPA ultimately has
decided that the likely  result of either
proposal would be unwarranted
disruption to legitimate (and desirable)
recovery practices within the industry.
Nonetheless, as discussed in the final
subsection of this part of the preamble,
the Agency retains concerns that the
Bevill amendment not be used  as a
means of shielding disposal of non-
Bevill hazardous wastes, and therefore
cautions that the Agency intends to
scrutinize especially carefully claims of
legitimate recycling when hazardous
secondary materials are co-processed in
extraction/beneficiation operations.
  (i) Should the Bevill amendment
apply only when virgin materials are
processed in extraction/beneficiation
operations? In the Agency's May 1997
proposal, EPA sought comment on
whether a narrow reading of the Bevill
exclusion should be implemented
which would limit the availability of the
Bevill exemption to wastes generated
exclusively from the use of Bevill raw
materials, namely ores and minerals.
Under this approach only 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
any alternative materials were used as
feedstocks, the resulting waste would
not be eligible for the Bevill exclusion.
62 FR at 26052.
  In today's rule, the Agency is
declining to pursue this option. Industry
comments were uniformly opposed.
Industry noted that since 1989, the
Agency has established a clear use of
the 50 percent rule and was well aware
that the co-processing of a range of
materials was occurring at both
extraction/beneficiation and mineral
processing facilities when it finalized its

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Federal Register/Vol. 63,  No. 100/Tuesday, May  26,  1998/Rules  and Regulations
1989 rulemaking (see 54 FR 33620,
September 1, 1989). Industry further
pointed out that in the 1989 rulemaking
the Agency found that 20 mineral
processing wastes (see 40 CFR
261.4(b)(7)) would retain their Bevill
exempt status even though co-
processing was occurring. Industry also
noted that the Agency had not presented
any data to confirm that the co-
processing of virgin and non-virgin
materials would actually increase risks
to the environment. Public interest
groups on the other hand indicated that
the proposed option more closely
follows the intent of Congress to limit
the Bevill exemption to high volume,
low toxicity wastes.
  The Agency has reviewed the data on
co-processing of non-virgin and virgin
material and finds that it did evaluate
co-processing issues in its 1990 Report
to Congress on Wastes from Mineral
Processing (EPA Office of Solid Waste,
July 31, 1990). This review, as it relates
to the 20 mineral processing waste
streams that are still exempt, found that
co-processing had not significantly
changed the hazardous properties of the
resultant wastes.
  The Agency noted in its proposal that
it was unaware of the extent of co-
processing at extraction/beneficiation
facilities, particularly after 1985.
Industry comments noted that
background reports to the Agency's
1985 "Report to Congress on Extraction
and Beneficiation Wastes" (EPA Office
of Solid Waste, December 31, 1985)
discussed this co-processing issue.
Agency review of these documents
indicates that while some references to
feedstocks are discussed, the Agency
was not aware of the extent of this
practice until it began to restudy mining
and mineral waste management
practices in 1989 and initiated a series
of visits to mines and mineral
processing facilities in 1991-92.
   Industry also submitted comments
indicating that implementing this
option would have significant adverse
impacts on the mining and mineral
processing industries. The Agency
assessed industry comments and
conducted its own economic analysis.
The Agency found that implementation
of this option may reduce current
recycling in the copper and lead sectors,
and could cause potentially serious
economic disruption to industry. (See
EPA's Regulatory Risk Impact
Analyses.) Both the gold and copper
sectors pointed out that they routinely
reintroduce mineral-bearing streams
from their processing activities into
their beneficiation plants to further
recover metal values. Such practices
would diminish if this option were
                         implemented, since affected extraction/
                         beneficiation operations would not
                         recycle secondary materials if the result
                         is to lose Bevill status of the resulting
                         wastes. It makes little sense for the
                         Agency to implement a program which
                         may reduce recycling where its
                         knowledge of the environmental benefit
                         of the approach is limited.
                           (ii) Significantly Affected. Under the
                         Agency's January 1996 proposal,
                         mineral processing secondary materials
                         could be introduced into beneficiation
                         units generating Bevill-exempt wastes
                         (without affecting the wastes' Bevill
                         status) if they were legitimately
                         recycled, secondary materials
                         comprised less than 50% of the total
                         feed to the unit, and the resulting wastes
                         were not "significantly affected" by the
                         recycling practice.
                           EPA has decided to adopt the
                         proposed approach except the Agency
                         has decided not to adopt the proposed
                         "significantly affected" test in today's
                         final rule. It should be pointed out that
                         small volumes of mineral processing
                         secondary materials likely to be
                         recycled at beneficiation facilities
                         would be processed along with
                         enormous quantities of raw ore.
                         Therefore, the probability that the
                         introduction of such materials would
                         affect the characteristic of the resultant
                        1 wastes is very low.
                           Given the likelihood of minimal
                         environmental effect, the Agency must
                         therefore judge whether the benefits of
                         encouraging recycling these materials
                         outweigh the potential additive risks
                         that, however unlikely, could
                         potentially occur in unusual cases. The
                         Agency has decided that, from both an
                         implementation and an overall
                         environmental perspective, not
                         requiring a "significantly affected"
                         evaluation makes sense. While it is
                         possible that adoption of a
                         "significantly affected" test might catch
                         the unusual circumstance where
                         addition of secondary materials
                         substantially changes the characteristics
                         of the resultant wastes, imposing such a
                         requirement could potentially have a
                         chilling effect on the  amount of
                         secondary material that the industry
                         recycles. This is because industry would
                         not risk imperilling Bevill status, since
                         a consequence could  be RCRA
                         permitting and facility-wide corrective
                         action potentially affecting areas of
                         historic contamination. From an
                         environmental perspective, EPA
                         believes that the benefits of recycling
                         such materials are substantial, and far
                         outweigh the largely  marginal benefits
                         that could be associated with requiring
                         a "significantly affected" analysis on a
                         waste stream by waste stream basis.
  EPA originally viewed the situation
presented here as analogous to when
hazardous wastes are co-processed in
Bevill units, and so proposed the
identical test for resulting residues. 61
FR at 2351. On reflection, there are
important distinctions between the two
fact patterns. EPA applies the
"significantly affected" tests when what
are admittedly hazardous wastes are co-
processed. The usual case is when a
hazardous waste fuel is burned in a
Bevill unit (like a cement kiln) which
also processes normal raw materials.
The hazardous wastes can contribute
more and different hazardous
constituents not normally found in the
raw materials. In the extraction/
beneficiation example, however, the
mineral processing secondary materials
are being used as feedstock precisely
because those materials share attributes
found in raw materials (i.e., recoverable
amounts of metals). Because the rule
limits co-processing to mineral
processing secondary materials, such
materials would typically be similar in
nature to the raw materials  being
processed, making it far less likely that
co-processing would significantly alter
the attributes of resulting wastes. In
addition, unlike the burning in furnaces
example noted above, the mineral
processing secondary materials being
recycled are not hazardous  wastes.
Although they are secondary materials,
the Agency has decided to exclude them
from the regulatory definition of solid
waste (assuming legitimate  recycling)   -
because the activity resembles normal
reclamation practices within the
industry. Put another way, since the
mineral processing secondary materials
are from the same industry  sector and
are being reclaimed within  the same
industry, they can be viewed as
secondary materials which  are not
wastes. It is, thus, less appropriate to
apply a significantly affected test to
these non-waste feedstocks.
  EPA also was unable to apply the
"significantly affected" test in a manner
that would focus on those secondary
materials that actually could cause
significantly increased environmental
risks. The proposed test was the
Burning in Furnaces (BIF) 2-part test,
which would function in a different
manner in this rule. Under the BIF rule,
the concern was with the use of
hazardous wastes from outside
industries, and residuals rarely fail the
second part of the test, exceeding the
hazardous characteristic. Here, we are
dealing with materials from within the
industry, metal values are reclaimed,
and wastes typically exhibit a hazardous
characteristic. Since mineral processing

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                         Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations
                                                                     28595
           secondary materials often contain other
           metals In them, the resultant wastes
           from co-processing may show statistical
           Increases or decreases in the metals
           content of the resultant wastes. The
           Increases or decreases in metal
           constituents, however, does not
           necessarily mean that risk has
           increased. An increase in one
           constituent may be offset by a decrease
           In another constituent or by additional
           volumes of raw material feedstocks that
           would be needed to replace the mineral
           processing secondary materials. The
           application of the proposed test
           therefore could not be effectively used
           to determine if risks would increase if
           secondary materials are co-processed at
           beneficiation facilities.
             (iii) Conclusion. For these reasons', the
           Agency has decided to retain as a
           condition for retaining Bevill status the
           standard requirement that an extraction/
           beneficiation unit processes at least 50
           percent raw material. 54 FR at 33620
           (Sept. 1, 1989); 50 FR at 49190 (Nov. 25,
           1985); and 56 FR at 7198 (Feb. 21.1991)
           (previous instances where EPA has used
           this test); 61 FR at 2351 (proposal of that
           test here). If the 50 percent criterion is
           met, the resulting waste would still be
           from extraction/beneficiation and hence
           exempt. Raw materials can be mineral
           processing secondary materials and be
           placed into units generating Bevill-
           exempt wastes provided that the facility
           legitimately recycles these materials.
             The proviso is important. EPA repeats
           that the Bevill amendment is not to
           serve as a means of disposing of non-
           Bcvlll hazardous wastes. As explained
           later in the preamble, if a hazardous
           waste is mixed with a Bevill waste, the
           mixing is regulated under RCRA
           Subtitle C, and the mixed wastes may be
           Subtitle C hazardous wastes. While the
           mixture rule does not apply when
           materials are placed in a beneficiation
           unit for legitimate recycling, it would
           apply if a hazardous secondary material
           is not being recycled legitimately. See
           l/.S. v. Self, 2 F.3d at 1071,1079 (10th
           Cir. 1993) (sham recycling is simply
           hazardous waste disposal or treatment).
             It should also be pointed out that
           today's rule prohibits the storage on the
           ground of any characteristically
           hazardous mineral processing secondary
           material. Should a beneficiation facility
           wish to legitimately reclaim such
           materials, it should be aware that
           placement of these materials in raw
           material piles may change the RCRA
           status of the pile.
             c. Bevill Mixture Rule and Disposal.
           Disposal of waste mixtures is the focus
           of this section. The Agency promulgated
           the Bevill mixture rule in 1989 (see 54
           FR 36592). That rule was remanded to
 the Agency in Solite Corp v. EPA, 952
 F.2d 473, 493-94 (D.C. Cir. 1991). EPA
 reinstated the mixture rule in 1992;
 however, this reinstatement was found
 to be procedurally defective inMobil Oil
 v. EPA, 35 F.  3d 579 (D.C. Cir. 1994).
   In  the January 1996 proposal, the
 Agency proposed that if any mineral
 processing hazardous waste, or indeed
 any hazardous waste, is mixed with and
 disposed with a Bevill waste, the
 resulting waste is, under certain
 circumstances, regulated under RCRA
 Subtitle C. The Agency further stated
 that the mixture of Bevill wastes and
 hazardous wastes would normally be
 regulated as a form of treatment subject
 to regulation under Subtitle C. The
 Agency stated its concern about the
 potential human health and
 environmental risks due to increased
 hazardous constituents resulting from
 tfie disposal of mixtures of hazardous
 waste with Bevill-exempt wastes. The
 Agency based the proposal on the policy
 that Bevill wastes not be allowed to
 serve as an unregulated dumping
 ground for hazardous wastes. Cf.
 Horsehead Resource Development Co. v.
 Browner, 16 F. 3d at 1258.
   The rule being adopted today is a
 reinstatement of the mixture rule
 promulgated in 1989. The Agency
 continues to believe that the approach
 adopted in 1989 is sound, and properly
 balances the objectives of the Bevill
 amendment with those of RCRA as a
 whole. While  commenters criticized
 EPA on the grounds that the prior
 mixture rule has twice been struck
 down by the courts, those decisions did
 not address the merits of the Bevill
 mixture rule.
   One clarification of statements in the
 1996  proposal is in order. The Agency
 stated that the proposed rule differed
 from  the 1989 Bevill mixture rule in that
 the earlier rule had exempted mixtures
 of Bevill wastes and characteristic
 hazardous wastes from requirements
 pertaining to treatment. See 61 Fed. Reg.
 2352. This statement was, however, in
 error. The Agency stated in the 1989
 rulemaking that such mixing would, in
 fact, constitute treatment of a hazardous
 waste, and would be subject to the
 appropriate regulation for treatment
 storage and disposal of hazardous
 wastes, including obtaining a permit.  54
 Fed. Reg. 36622. Thus, the Agency is
 not taking a more stringent approach to
 regulating mixtures than was taken in
 1989.  As in 1989, moreover, the Agency
 is not amending in any way the
definition of treatment, storage, or
disposal of hazardous wastes; nor is the
Agency promulgating any specific
provisions related to how those
definitions apply to mineral processing
 wastes. The Agency is simply stating
 that mixtures of Bevill and non-Bevill
 wastes can, depending upon the
 particular facts, constitute treatment,
 storage or disposal under the existing
 regulatory program.
   Industry commenters generally
 opposed the proposed mixture rule.
 Several commenters argued that the
 proposed rule was contrary to the Act
 because it undermined the protection
 that the Bevill amendment was intended
 to provide the industry. These
 commenters argued that the legislative
 history indicates Congress intended the
 Bevill amendment to be read broadly, to
 incorporate waste products generated in
 the  "real world," and that Congress
 recognized co-management of wastes
 practiced by the industry occurred in
 the  "real world." According to these
 commenters, integrated facilities
 conducting  extraction, beneficiation and
 processing operations at a single
 location have historically co-managed
 wastes from these operations, including
 certain newly identified mineral
 processing wastes, and the proposed
 rule would effectively undermine the
 protections  of the Bevill amendment for
 these operations. One commenter
 contended that the mixture rule would
 subject "high volume/low hazard"
 waste mixtures from the mining and
 mineral processing industry to Subtitle
 C regulation without having conducted
 the special study and regulatory
 determination process set forth in
 section 3001 of RCRA. Since such
 mixtures of wastes are "high volume/
 low hazard," these commenters argued
 that section 3001, as construed by the
 Court in EOF v. EPA, 852 F.2d 1316
 (D.C. Cir. 1988), mandates exclusion of
 those wastes from regulation under
 Subtitle C.
   After careful consideration of these
 comments, EPA has concluded that they
 misconstrue the scope of the Bevill
 amendment, and that the proposed
 approach to Bevill mixtures is a
 reasonable one. First, the Agency
 disagrees with these commenters'
 interpretation  of the Bevill amendment
 as applying to not only to "special
 wastes" themselves, but also to any
 other hazardous waste that may be co-
 managed with them. Congress simply
 provided that "solid waste from
 extraction, beneficiation and processing
 of ores and minerals" are not subject to
 Subtitle C. RCRA §3001(b)(3)(A).
 Congress did not, as these commenters
suggested, apply this exclusion to such
wastes "and other hazardous wastes that
may be co-managed" with them. Rather,
Congress endorsed EPA's conclusion
that high volume/low toxicity "special
wastes" deserved special treatment
-

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Federal Register/Vol. 63, No.  100/Tuesday,  May 26, 1998/Rules  and Regulations
 under the Act by virtue of the
 difficulties that would be associated
 with managing these wastes under the
 Subtitle C program. Moreover, EPA's
 decade-long effort to demarcate the line
 between special wastes and non-
 excluded wastes was premised on the
 notion that the line between them is of
 some significance. If any hazardous
 waste can come within the scope  of the
 Bevill amendment simply by being
 mixed with Bevill waste, that line
 becomes blurred, potentially creating a
 universe of excluded wastes far beyond
 that envisioned by Congress when it
 enacted the Bevill amendment.
   The Court in EOF II indicated that
. those mineral processing wastes which
 did not meet the high volume/low
 toxicity criteria should be fully subject
 to Subtitle C. The Agency, in today's
 rule, has taken prudent steps to
 encourage the legitimate recycling of
 hazardous secondary materials. If
 hazardous mineral processing wastes
 can not be recycled and must be
 disposed, the Agency finds nothing in
 EOF II which precludes the Agency from
 treating these hazardous wastes like any
 other hazardous wastes. It should also
 be pointed out that today's rule does not
 affect  the disposal of extraction/
 beneficiation wastes as long as there is
 no mixing of non-exempt hazardous
 wastes with them. EPA believes that this
 rule is consistent with the scope of the
 Bevill amendment because it maintains
 the Bevill exclusion for mixtures that
 are hazardous due solely to any
 hazardous constituents of the Bevill
 waste. The fact that these resulting
 wastes retain their Bevill status does not
 mean, however, that the act of storing,
 treating, or disposing of hazardous
 wastes with Bevill wastes should  be
 exempted from normal Subtitle C
 controls.
   EPA also disagrees with the notion
 advanced by some commenters that EPA
 is required by section 3001 to conduct
 a study to determine whether mixtures
 of Bevill and other wastes meet the high
 volume/low toxicity test and thereby
 merit being covered by the Bevill
 amendment. EPA reads section 3001 as
 mandating that EPA study wastes
 generated by the mining and mineral
 processing industry for purposes of
 determining whether particular waste
 streams are subject to the Bevill
 amendment. EPA has done so and
 determined that mineral processing
 wastes that do not meet the high
 volume/low toxicity threshold are not
 subject to Bevill. EPA's orderly
 decision-making (see 54 FR 36592 and
 55 FR 2322), would be undermined if
 the Agency were then required to  revisit
                        these determinations based upon how
                        facilities happen to manage their wastes.
                          Stated another way, EPA reasonably
                        based its Bevill regulatory
                        determinations on the volumes of each
                        type of mineral processing waste
                        generated within the industry; the
                        Agency does not believe it is reasonable
                        to interpret section 3001 as mandating
                        that EPA disregard the volumes in
                        which wastes are generated and instead
                        base its determinations on the vagaries
                       1 of how those waste streams may be
                        aggregated through industry's disposal
                        practices. Such a result would be
                        counter to EPA's special waste concept,
                        and ignore the fact that mineral
                        processing wastes streams that are not
                        generated above Bevill's high volume/
                        low toxicity threshold would, in fact, be
                        amenable to management under Subtitle
                        C. Thus, the commenter's interpretation
                        would effectively allow the mining and
                        mineral processing industry to
                        "bootstrap" smaller volume wastes into
                        Bevill simply by co-disposing them with
                        Bevill wastes. The Agency and the
                        courts have never interpreted Bevill in
                        such an awkward fashion, and the
                        Agency declines to follow such an
                        approach here.
                          The Agency does not agree with
                        comments that any change to the Bevill
                        mixture rule would effectively eliminate
                        Bevill for integrated facilities. Today's
                        rule does not change the Bevill status of
                        extraction/beneficiation wastes nor does
                        it alter the Bevill status of 20 mineral
                        processing wastes (see 40 CFR 261.4).
                        Since a large number of "newly
                        identified" mineral processing waste
                        streams become subject to the LDR, the
                        Agency took steps to clarify the status
                        of non-exempt "Bevill" wastes (i.e.
                        mineral processing wastes not within
                        the scope of the Bevill amendment) in
                        this rulemaking. The Identification
                        report, placed in the docket in January
                        1996, was developed by the Agency to
                        assist companies in determining if
                        wastes were or were not exempt. The
                        Agency sought comment on the draft
                        Identification document and has
                        finalized this report. This report is,
                        however, guidance. Mineral processing
                        companies now have the ability to
                        identify the status of each waste stream
                        and to cease mixing non-exempt
                        hazardous wastes with exempt waste
                        streams.
                          Regarding commenters' critique of the
                        concerns expressed by EPA in the
                        proposal justifying the proposed
                        mixture rule, the Agency continues to
                        be concerned about the mixture of
                        hazardous wastes with Bevill exempt
                        wastes for treatment, storage or disposal.
                        The Agency has noted earlier that it is
                        not imposing the significantly affected
option because the mixture of hazardous
secondary materials with feedstocks
does not appear to adversely affect risk.
This is so because the mixtures are
destined for legitimate recovery of
metal, acid, water or cyanide, or other
values. Mixtures destined for disposal
will not have any of their hazardous
constituents removed or other values
utilized and may contribute to the waste
disposal problem. Nor is there the
slightest indication in law that normal
Subtitle C rules should not apply to
disposal of normal Subtitle  C hazardous
wastes.
  Commenters did point out several
errors made by EPA in the proposed
rule language. Many commenters noted
that there was an inconsistency between
the preamble of the January proposal
and its proposed regulatory language.
The proposed regulatory language
inadvertently omitted language in the
general mixture rule stating that mixture
of a solid waste with a hazardous
wasted listed solely because it exhibits
a characteristic identified in Part 261
subpart C is a hazardous waste "unless
the resultant mixture no longer exhibits
any characteristic of hazardous
waste. .  . "40C.F.R. 261.3(a)(2)(iii). It
was not EPA's intent to propose deleting
this language, and it therefore is
included in the final rule.
  In addition, as pointed out by
commenters, the proposed language
failed to track the preamble discussion
of mixtures of Bevill wastes and
characteristic hazardous wastes (as well
as wastes that are listed because they
exhibit a hazardous characteristic).
Under the proposed rule language,
mixtures of Bevill wastes and hazardous
wastes would be a hazardous waste
whenever it exhibited a hazardous
waste characteristic, even where that
characteristic was imparted to it solely
from the Bevill waste. (See proposed
section 261.3(1).) As shown by the
preamble, this was clearly not EPA's
intent, which was to preserve the Bevill
exclusion for mixtures that are
hazardous solely because of the Bevill
component of the mixture. See 61 FR
2352-53.
  Conversely, the preamble, although
ambiguous in spots on this issue, did
say at one point that mixtures of
characteristic hazardous waste and
Bevill wastes would be considered
hazardous waste only if the  mixture
continued to be hazardous due to
characteristics imparted to it by the non-
Bevill waste. 61 FR at 2352.  If the
mixture exhibited a hazardous
characteristic due solely to the  Bevill
waste, the Agency did not intend to
designate the mixture as a hazardous
waste.

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                                                                      28597
   Consistent with that discussion,
 under today's rule, the Agency has
 decided that if Subtitle C hazardous
 waste exhibiting a characteristic is
 mixed with Bevill-exempt waste
 exhibiting the same characteristic and
 the mixture continues to exhibit that
 common characteristic, then the entire
 mixture should be considered to be non-
 exempt hazardous waste. This result is
 consistent with normal rules on when
 wastes are hazardous, which state that
 if a waste exhibits a hazardous waste
 characteristic, it  remains a hazardous
 waste unless and until it no longer
 exhibits a characteristic. 40 CFR
 261.3(d)(l). In addition, such a principle
 will make this rule easier to administer
 (should this situation actually occur),
 since enforcement officials will not have
 to parse out which portion of the waste
 mixture is imparting the characteristic
 property. Finally, the result is consistent
 with the overall object of today's rule:
 not to let Bevill wastes be used as a
 means of allowing unregulated
 management of normal Subtitle C
 hazardous wastes.
   Several commenters noted concern
 that existing exemptions to the Agency's
 mixture rule, such as that given to
 totally enclosed treatment facilities and
 elementary neutralization units, would
 be eliminated under this rule. The
 Agency reiterates that this rule does not
 alter In any way the current Agency
 mixture rule. The purpose of this
 rulemaklng is to place the mixing of
 hazardous wastes that may occur at
 mineral processing plants on the same
 status as all other hazardous waste
 management.
   (i) Illustrations of how today's rule
 operates. Although the regulatory
 parlance for today's rule has always
 been the "Bevill mixture rule", the
 greatest practical consequence of the
 rule is probably on the units where
 mixing occurs. This is because units (i.e.
 tanks, Impoundments, piles, landfills,
 etc.) where hazardous wastes are placed
 will (absent some exemption or
 exclusion other than that provided by
 the Bevill amendment) be regulated
 units, i.e. units subject to Subtitle C
 standards for treatment, storage, and/or
 disposal. This point is illustrated by the
 following examples, which also
 illustrate the effect of the rule on the
 resulting mixtures:
  Example 1. Facility A generates F 001
 listed spent sol vents which it mixes with a
 solid waste that has Bevill exempt-status.
 The mixing occurs  in a landfill.
  The landfill Is a regulated unit because
 hazardous waste—F 001—is being disposed
 In it. (Among other things, this means that
'the F 001 wastes could not be placed in the
 landfill until the LDR treatment standard is
satisfied.) In addition, all of the wastes with
which the F 001 wastes are mixed are
hazardous wastes carrying the F 001 waste
code by application of the mixture rule.
  Example la. Same facts as in example 1,
except that the waste being mixed is F 003
spent solvent, a waste listed only because it
exhibits a characteristic of hazardous waste.
  The landfill becomes a regulated unit for
the same reason as in example 1. (See
Chemical Waste Management v. EPA, 976
F.2d at 20 n.4 and 24 n. 10 (placement of
waste which is hazardous for any amount of
time in a unit subject that unit to Subtitle C
regulation); 61 FR at 2352 (same). However,
the status of the resulting waste mixture is
determined by the principles for
characteristic hazardous wastes, illustrated
below.
  Example 2, Facility B generates a
characteristic ignitable solvent which it adds
to a surface impoundment containing a
Bevill-exempt waste that would exhibit the
TC for lead. The resulting mixture exhibits
TC for lead but is no longer ignitable.
  The surface impoundment is a regulated
unit, since it is engaged in treatment
(elimination of the ignitability characteristic)
and disposal  (the placement of the ignitable
waste). The remaining wastes in the unit
retain their Bevill-exempt status because they
do not exhibit the characteristic property of
the non-Bevill hazardous waste. Thus, if the
waste were to be removed from the
impoundment and disposed elsewhere,
disposal need not occur in a regulated unit.
  Example 3. Facility C generates a
characteristic hazardous waste exhibiting TC
for lead which it mixes in a tank with Bevill-
exempt wastes which also would exhibit the
TC for lead. The resulting mixture continues
to be TC for lead.
  The tank is engaged at least in storage of
hazardous waste, and possibly treatment
(depending on how the D008 hazardous
waste is affected by the mixing). If waste is
removed from the tank, it remains subject to
Subtide C because it continues to exhibit the
characteristic of the non-exempt hazardous
waste.
  d. Remining. The Agency clarified in
its January 1996 proposal that the
removal of historically land placed
mineral processing wastes for the
purposes of mineral recovery would not
constitute disposal for purposes of
triggering Subtitle C. Moreover, removal
of wastes would not render the historic
disposal unit subject to RCRA
hazardous waste requirements (see  53
FR at 51444, December 21, 1988). The
Agency is today again clarifying that
removal of waste from a unit does not
constitute disposal for the purposes of
triggering Subtitle C regulation.
  Commenters noted that the proposed
mixture rule would in effect eliminate
opportunities for remining. The Agency
disagrees. As noted previously, the
mixture restrictions in today's rule deals
primarily with disposal of mixtures. The
mixture rule therefore, will not affect
the co-processing of historically
 disposed mineral processing secondary
 materials with other feedstocks.

 6. Responses to Court Remands
   a. Applicability of the Toxicity
 Characteristic Leaching Procedure
 (TCLP) to Mineral Processing Wastes. In
 the January 1996 proposal, the Agency
 proposed to continue using the TCLP
 (SW-846 Test Method 1311)  as the basis
 for determining whether mineral
 processing wastes and manufactured gas
 plant wastes exhibit the toxicity
 characteristic (TC) of hazardous wastes,
 and developed a record supporting this
 position. When the Agency promulgated
 the TCLP method for testing whether
 wastes exhibit the toxicity
 characteristic, the applicability of the
 TCLP test to mineral processing wastes
 was challenged in Edison Electric
 Institute v. EPA, 2 F.3d 438 (D.C. Cir.
 1993) ("Edison"). The Court held that
 the information in the record at the time
 was insufficient to show a rational
 relationship between the TCLP and a
 likely mismanagement scenario for
 mineral processing wastes.
   Under the Court s holding, the
 Agency must at least provide some
 factual support that such a
 mismanagement scenario is plausible (2
 F.3d at 446-47). The Agency is
 addressing this remand in today's final
 rule because any applicable land
 disposal restrictions would have little
 meaning unless the Agency has a basis
 for determining whether these mineral
 processing wastes are hazardous, and,
 therefore, subject to the restrictions.
   Under the Court's ruling in Edison,
 the application of the TCLP test to
 mineral processing wastes is
 appropriate if the evidence available to
 EPA shows that disposal of such wastes
 in municipal solid waste landfills
 (MSWLF) is a "plausible"
 mismanagement scenario (not
 necessarily requiring that it be typical or
 common) 2 F.3d at 446. Moreover, it  is
 sufficient if there is "evidence or
 explanation on the record to justify a
 conclusion that mineral wastes ever
 come into contact with any form of
 acidic leaching medium."Id. at 447.
  In considering the plausibility of this
 mismanagement scenario, the Agency
 has first carefully evaluated those
 circumstances that industry has argued
 make such mismanagement implausible.
 Industry has argued that co-disposal
 with municipal solid waste is not
plausible because the huge volumes in
which the wastes are generated could
simply not be handled by an MSWLF.
EPA has, however, conducted a
comprehensive review of such wastes
and concluded that many wastestreams
are generated at low volumes. (See

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Characterization of Mining and Mineral
Processing Wastestreams, USEPA,
1998.) Thus, the volumes in which
mineral processing wastes are generated
do not render disposal in an MSWLF
implausible.
  Industry comments also indicated that
the location of its facilities were remote
and not close to municipal landfills.
Based on physical location alone,
industry suggested that disposal of their
wastes in municipal landfills was very
unlikely. This contention is not,
however, supported by the facts. The
Agency evaluated the location of
mineral processing facilities and found
that a considerable number of them are
located east of the Mississippi River and
some are located in or near urban areas.
(see Population Studies of Mines and
Mineral Processing Sites, 1998, U.S.
EPA.) This report indicates that there is
factual information which rebuts the
industry's position that the location of
mineral processing facilities is routinely
so remote so as to make co-disposal
with municipal solid waste implausible.
Thus, based on the Agency's population
study noted above, the Agency
concludes that some mineral processing
facilities are in fact located in or near
urban areas and their location in such
urban areas means that it is plausible
that their wastes could be disposed of in
urban landfills.
  Factual information collected by the
Agency (made available for public
comment) supports the conclusion that
mineral processing wastes may
plausibly be disposed of with municipal
solid wastes. Industry comments
contested EPA's factual basis for the
landfill disposal cases found in
Applicability of the Toxicity
Characteristic Leaching Procedure to
Mineral Processing Waste, U.S. EPA,
1998. Industry commenters contended
that the cases presented by the Agency
do not reflect current waste
management practices (which primarily
involve on-site disposal). Industry
commenters also argued that the facts of
particular cases did not, in fact, support
the conclusion that co-disposal had
occurred. EPA has reviewed the
information and concluded some of
these comments had merit, and EPA has
deleted from the final document those
cases for which there was not sufficient
information to be relied upon by the
Agency. However, even after a careful
sifting of the case studies, there
continues to be evidence to support the
conclusion that co-disposal of mineral
processing wastes with municipal solid
waste is plausible. While most mineral
processing wastes are generated in large
volumes and disposed on-site as
industry contends, the Agency has
                        found that some mineral processing
                        wastes are placed in dumpsters, or
                        similar containers, and shipped off-site
                        for commercial disposal.
                          These cases include, but are not
                        limited to, co-disposal of mineral
                        processing wastes from the refining of
                        alumina, copper, gold, ferrous metals,
                        lead, silver, and zinc. Such wastes have
                        been disposed in MSWLFs in various
                        states throughout the United States. The
                        Agency also found several cases where
                        manufactured gas plant wastes were
                        disposed in MSWLFs. (See Applicability
                        of the Toxicity Characteristic Leaching
                        Procedure to Mineral Processing Waste,
                        U.S. EPA, 1998.)
                          EPA acknowledges that the
                        information obtained by the Agency
                        does not show that the mismanagement
                        scenario is either typical or common,
                        but such a level of proof is not required.
                        Edison, 2 F.3d at 446. It is, moreover,
                        not surprising that the practice does not
                        appear to be widespread because, since
                        1989, disposal of any non-Bevill
                        hazardous mineral processing wastes in
                        a municipal solid waste landfill has
                        been illegal. Nonetheless, since some
                        mineral processing facilities are located
                        near urban areas and generate low
                        volume wastes, and some of these
                        facilities appear to have, in fact, co-
                        disposed of these wastes in this manner,
                        EPA believes it is reasonable to
                        conclude that application of its
                        mismanagement scenario to mineral
                        processing wastes is reasonable; that is,
                        if these wastes were no longer identified
                        as hazardous by means of the TCLP,
                        then the type of improper disposal
                        which occurred in the past could
                        resume.
                          Industry commenters further contend
                        that an alternative test, the Synthetic
                        Precipitation Leaching Procedure
                        (SPLP), is more appropriate for mineral
                        processing wastes. The National Mining
                        Association (NMA)  noted in its
                        comments that the leach solution used
                        in the SPLP test protocol would more
                        accurately reflect the environmental
                        exposure of mineral processing wastes.
                        The SPLP test uses a leach solution
                        which mimics acid rain, while the TCLP
                        uses a leach solution which mimics
                        acids formed in municipal landfills. The
                        TCLP test therefore uses a leach solution
                        which is more acidic that the SPLP test.
                        However,  "[n]othing in [RCRA] requires
                        EPA to tailor the TCLP to the conditions
                        to which mineral wastes are typically
                        exposed." Edison, 2 F.3d at 443. If that
                        were the case, it would not have been
                        appropriate  for EPA to even have
                        adopted a generic mismanagement
                        scenario as the basis for establishing its
                        approach for testing for the hazardous
                        characteristic. This approach has,
however, been upheld as a reasonable
exercise of the Agency's discretion. Id.
  Industry commenters supplied data
indicating that the TCLP is more
aggressive than the SPLP for most
metals and especially lead. Certain
states supported use of the test under all
or limited circumstances. EPA received
very limited data comparing the leach
tests. Because these data were extremely
limited, the Agency still does not have
data broadly comparing TCLP results to
SPLP results for a range of mineral
processing waste streams. Industry-
supplied data appear to indicate that the
SPLP test generates results which show
lower levels of lead than comparable
results using the TCLP. Thus, due to the
limited amount of data, the Agency is
unable to determine if the SPLP would
routinely show lower levels of lead, or
how the two tests compare when
analyzing other metals or whether such
lower levels would, in fact, better reflect
actual field conditions than would the
TCLP. At bottom, the fundamental issue
is not whether one test is more
conservative than the other. Rather, the
issue is whether it is plausible that
mineral processing wastes may be
disposed of in environments reflected
by the conditions mimicked in the
TCLP.
  Aside from the plausibility of the
Agency's mismanagement scenario,
application of the TCLP to mineral
processing wastes is supported by
comments from industry submitted
during the rulemaking regarding
disposal practices that are taking place
or advantageous at integrated mineral
processing/beneficiation facilities in the
industry. The proposed (and now final)
rule regarding mixtures of Bevill wastes
with non-Bevill hazardous wastes
(including mineral processing
hazardous wastes) effectively prohibits
such mixing. Some commenters
opposed the proposed mixture rule on
the grounds that integrated facilities
typically co-dispose of hazardous
mineral processing wastes (including
those exhibiting the TC)  with extraction
and beneficiation wastes, and desired to
continue this practice or to have mixing
available as a management option for
these mineral processing hazardous
wastes. It is well-documented that
extraction and beneficiation wastes can
often generate highly acidic
environments. (See Acid Rock Drainage
Prediction, U.S. EPA, 1994) Disposal of
mineral processing wastes with such
wastes means that the mineral
processing wastes would be subject to
acidic conditions that, in some cases,
may be comparable to the acidic
leacheate medium utilized in the TCLP
(if not somewhat more aggressive). This

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               Federal Register/Vol. 63, No. 100/Tuesday, May 26,  1998/Rules and Regulations
                                                                     28599
 is because water contacting the acidic
 waste would thereupon become acidic
 itself (an example being acid mine
 drainage). EPA's concern is that if the
 mineral processing wastes are no longer
 Identified as hazardous because a test
 other than the TCLP is used, then these
 wastes could be disposed with the
 acidic extraction/beneficiation wastes
 and be exposed to metal-mobilizing
 acidic leaching conditions as water
 percolates through the mixture. Given
 the evident economies noted in the
 public comments in disposing of
 mineral processing wastes along with
 extractlon/beneficiation wastes, such a
 scenario is at least plausible. Such a
 disposal scenario, which industry states
 is not only plausible, but is typical of
 some facilities, provides an additional
justification for the application of the
 acidic leachate approach reflected in the
 TCLP.
   EPA recognizes that the TCLP utilizes
 organic acids, while the disposal
 scenario discussed above would involve
 exposure to mineral acids. In part
 because of this difference, EPA utilized
 the SPLP in screening low hazard
 wastes as part of its 1989 Bevill
 determination. See 54 FR 36592 (Sept 1.
 1989). Commenters have pointed to this
 statement as  undercutting any
 application of TCLP to mineral
 processing wastes.
   EPA made clear in 1989, however,
 that the TCLP was still the appropriate
 test for determining whether a particular
 mineral processing waste is a hazardous
 waste subject to Subtitle C. Morever,
 EPA believes that the general statement
 contained in the 1989 preamble
 arguably swept too broadly in its
 conclusions. Notwithstanding  that
•statement, standard chemistry texts
 establish that certain metals are highly
 soluble in acidic environments,
 Including inorganic acids. Numerous
 factors can affect the precise solubility
 of a particular metal, and it is generally
 not possible to generalize whether
 organic or inorganic acids would cause
 more or less of a particular metal
 compound to solubilize. Based on
 generally accepted chemistry principles,
 however, a highly acidic environment,
 whether organic or mineral in nature,
 can be aggressive towards certain metals
 typically found in mineral processing
 wastes. Given that acidic leaching
 media can result when mineral
 processing wastes are co-disposed with
 extraction/beneficiation wastes, EPA
 believes that the acidic leachate
 procedure utilized in the TCLP can be
 appropriate for characterizing mineral
 processing wastes.
   EPA also notes a further policy
justification in its choice of the TCLP.
The final rule seeks to encourage
properly conducted recycling of mineral
processing secondary materials, and the
scheme in the final rule (whereby
recovery can occur provided facilities
do not utilize land-based storage units)
can be implemented at reasonable cost.
(See the Regulatory Impact Analysis for
the final rule, summarized later in this
preamble.) However, the Agency is
concerned that if integrated facilities
have a lower cost option of simply
disposing these mineral processing
secondary materials with extraction/
beneficiation wastes, facilities will
choose this alternative. Thus, not only
will the mineral processing wastes be
potentially exposed to acidic leaching
conditions, but properly conducted
metal recovery will be foregone. (See
RCRA section 1003 (a) (6) noting the
statutory goal to encourage properly
conducted recycling of hazardous
wastes.)
  In addition to questioning the choice
of a leaching medium, commenters
questioned certain other features of the
test, notably a particle size feature
which mirrors freeze/thaw cycles, and a
dilution/attenuation factor which is
premised on human receptors
potentially living relatively proximate to
the disposal site. These issues are
addressed in greater detail in responses
to comments and technical background
documents. However, the Agency has
documented in the record that many
mineral processing facilities are located
in parts of the country where freeze/
thaw cycles which reduce particle size
occur, and are also located near
populations reflecting the degree of
dilution and attenuation used in the
model. (See Population Studies of Mines
and Mineral Processing Sites, 1998, U.S.
EPA)
  Finally, EPA  notes that nothing in the
recent decision Columbia Falls
Aluminum Co.  v. EPA (no. 96-1234)
(April 3, 1998) is contrary to this
determination.  Columbia Falls does not
stand for the proposition that EPA must
customize a test for particular wastes to
reflect individual or even typical
disposal circumstances, a proposition
expressly rejected in Edison, 2 F. 3d at
445. Rather, Columbia Falls approvingly
cites Edison for the proposition that
"the TCLP must bear some rational
relationship to mineral wastes in order
for the Agency to justify the application
of the toxicity test to those wastes.'"
Columbia Falls, slip op. at 18; see also
Huls America Inc. v. Browner, 83 F. 3d
445, 454 (Edison involved an instance
"where the record was barren of any
rational relationship between the
methodology used by the EPA to set
regulatory levels and the known
behavior of the substance to which this
methodology was applied"). EPA has
rectified the record deficiencies noted in
Edison, showing how the TCLP "bears
a rational relationship to the reality it
purports to represent." Columbia Falls,
slip op. at 18. Today's action is thus
consistent with both Edison and
Columbia Falls.
  EPA is making the decision to retain
the TCLP as the test for identifying
mineral processing wastes effective
within 90 days, co-extensive with the
LDR prohibition effective date. This
effective date can be complied with
feasibly within 90 days since the TCLP
is already the applicable test for mineral
processing wastes (since it was
remanded, not vacated, by the Edison
ruling). Thus, the regulated community
does not need six months to come into
compliance. See RCRA section
3010(b)(l).
  b. Remanded Mineral Processing
Wastes. In the January 1996 proposal,
the Agency proposed to revoke the
current hazardous waste listings for five
court-remanded smelting wastes. The
Agency also proposed not to re-list them
as hazardous stating that these wastes
would be regulated as hazardous wastes
if they exhibit a characteristic of a
hazardous waste.
  In 1980, the Agency listed as
hazardous eight wastes generated by
primary metal smelters (45 FR 33066,
33124, 47832-34, (1980)). The Agency
listed the wastes pursuant to 40 CFR
261.11 (a) (3) because they contained one
or more of the hazardous constituents
listed in 40 CFR 261, Appendix VIII.
The eight wastes are described as
follows:
K064—Acid plant blowdown slurry/sludge
    resulting from the thickening of
    blowdown slurry from primary copper
    production.
K065—Surface impoundment solids
    contained in  and dredged from surface
    impoundments at primary lead smelting
    facilities.
K066—Sludge from treatment of process
    wastewater and/or acid plant blowdown
    from primary zinc production.
K067—Electrolytic anode slimes/sludges
    from primary zinc production.
K068—Cadmium  plant leach residue (from
    oxide) from primary zinc production.
K088—Spent potliners from primary
    aluminum reduction.
K090—Emission control dust or sludge from
    ferrochromium-silicon production.
K091—Emission control dust or sludge from
    ferrochromium production.
  In October of 1980, in response to
Congressional enactment of the Bevill
Exclusion, the Agency suspended its
listing of the eight wastes (46 FR 4614-
15,  27473 October, 1980). In 1985, EPA
proposed a new rule that would relist

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six of the eight wastes (50 FR 40292,
40295, October 2, 1985). (The Agency
chose not to propose to re-list two of the
original eight waste streams (electrolytic
anode slimes/sludges, K067, and
cadmium plant leach residue, K068,
from primary zinc production) because
it found that industry was routinely
recycling these secondary materials in
an environmentally sound manner.)
However, the Agency withdrew its 1985
proposal on October 9, 1986 (51 FR
36233).
  In Environmental Defense Fund v.
EPA, 852 F.2d 1316 (D.C. Cir. 1988) EPA
was ordered to make a final decision
regarding whether to re-list the six metal
smelting wastes that it had proposed to
list in 1985, and to reduce the scope of
the Bevill exemption as it applies to
mineral processing wastes. The Agency
complied with this order when it re-
listed the six wastes.
  The American Mining Congress
(AMC) challenged these listings. In
American Mining Congress v. EPA, 907
F.2d 1179 (D.C. Cir.,  1990) the Court
upheld the Agency's decision to re-list
waste K088, spent potliners from
primary aluminum reduction, but found
that the Agency's  record for the five
remaining waste streams did not
adequately address certain issues raised
in comments during the rulemaking.
Since the Court did not vacate the
listings, they technically remain in
effect.
  In today's rule, the Agency is revoking
the five remanded waste listings. The
Agency has found that several of these
wastes are still generated and in some
cases land disposed, but there is a  lack
of information demonstrating threats to
human health or the environment that
would justify a listing at this time. The
Agency believe that some wastes,
specifically copper acid plant
blowdown  (K064)  and surface
impoundment solids at primary lead
smelters  (K065), are inherently
hazardous due to the presence of arsenic
and lead, respectively. These wastes can
be effectively regulated under RCRA
Subtitle C if they exhibit a hazardous
characteristic.
  The Agency received no comments
opposing the proposed rule. To
summarize, the Agency is revoking the
listing for, and is not re-listing: copper
acid plant blowdown (K064); surface
impoundment solids at primary lead
smelters (K065); acid plant blowdown
from primary zinc production (K066);
emission control dust and sludge from
ferrochromium-silicon production
(K090); and emission control dust or
sludge from ferrochromium production
(K091). However, as explained
previously, should these wastes exhibit
                        a characteristic of a hazardous waste,
                        they will be subject to hazardous waste
                        regulations, including the hazardous
                        waste mixture rule.
                          c. Lightweight Aggregate Mineral
                        Processing Wastes. In the January 1996
                        proposal, the Agency proposed that air
                        pollution control dust and sludge from
                        the production of lightweight aggregate
                        be classified as a mineral processing
                        waste that is no longer eligible for the
                        Bevill exemption. Lightweight aggregate
                        air pollution control (APC) dust and
                        sludge were among the many mineral
                        processing wastes made  conditionally
                        exempt from RCRA Subtitle C
                        requirements under the 1980 Bevill
                        Amendment to RCRA. In 1990,
                        following more detailed study of the
                        generation rates for this waste, the
                        Agency determined that  it did not
                        qualify for the Bevill exemption (55 FR
                        2322, 2340, January 23, 1990). In 1991,
                        the D.C. Circuit directed the Agency to
                        reconsider, after providing notice and
                        soliciting comments, whether these
                        wastes qualify for the Bevill exemption.
                        (Solite Corporation v. EPA, 952 F.2d at
                        500 (D.C. Cir. 1991)).
                          In the January 1996 proposal, the
                        Agency stated that the wastes from
                        lightweight aggregate production do not
                        meet the high volume criterion for
                        excluded mineral processing wastes. For
                        purposes of EPA's 1989 and 1990 rules
                        concerning Bevill eligibility for mineral
                        processing wastes, high volume is
                        defined as greater than 45,000 metric
                        tons per year per facility, for a solid
                        waste, or 1,000,000 metric tons per year
                        per facility, for a liquid waste, averaged
                        across all facilities generating a
                        particular waste.
                          To determine whether  APC dust and
                        sludge from lightweight aggregate
                        production satisfied the high volume
                        criterion, the Agency analyzed data
                        from its 1989 National Survey of Solid
                        Wastes from Mineral Processing
                        Facilities (SWMPF Survey) and data
                        from public comments submitted by
                        affected companies. The Agency finds
                        that the lightweight aggregate wastes do
                        not meet the high volume criterion.
                          None of the methods used resulted in
                        a volume estimate that is greater than
                        45,000 metric tons per year per facility,
                        the high volume criterion for mineral
                        processing wastes. SWMPF survey data,
                        which includes Confidential Business
                        Information (CBI) from two facilities
                        have been included in a separate
                        analysis. The results, which remain
                        confidential, are not substantially
                        different from the results presented
                        previously.
                          Solite acknowledged in comments
                        that data do not support a determination
                        that lightweight aggregate air pollution
 control (APC) dust and sludge is
 generated in volumes that meet the high
 volume cutoff. However, Solite
 requested that the Agency delay making
 a final determination on the Bevill
 status of its wastes due to other Agency
 rulemaking activities dealing with
 cement kiln dusts, which Solite
 contends would be addressing similar
 issues to those posed by lightweight
 aggregate air pollution control (APC)
 dust and sludge.
  The Agency is aware that both cement
 kiln and aggregate kilns may both burn
 hazardous wastes fuels and that the
 dusts from air pollution control devices
 are often blended into final products.
 Under existing regulations, if these
 dusts resulting from burning listed
 hazardous waste fuels are blended into
 products that are used on the land, the
 product would be subject to RCRA's
 "derived from" rules which would
 render the product a hazardous waste.
 Since both cement and light weight
 aggregate products are usually placed on
 the land, the potential impacts on their
 use could be significant. The Agency
 noted in its 1993 Report to Congress on
 Cement Kiln Dust (CKD) that it did not
 have evidence that CKD was materially
 different when generated from kilns
 burning hazardous wastes as fuel and
 those which did not. The Agency does
 not have similar comparable analysis of
 light weight aggregate dusts and
 sludges, and can not at this point in
 time conclude that there is no difference
 between dusts and sludges from units
 burning hazardous waste fuels and
 those that do not. The Agency wants to
 encourage the sound recycling of these
 dusts and requires additional time to
 assess how to ensure that aggregate and
 cement kiln dusts are managed to
 ensure protection of human health and
 the environment. The Agency is
 currently developing a regulatory
 program for the safe management of
 cement kiln dusts and anticipates
 issuing a proposed rule in 1998. The
 Agency further anticipates that it will
 seek comment on how to best manage
 both wastes in this proposal and will
 seek information it needs to make a final
 determination on the status of
 lightweight aggregate wastes. The
 Agency is not finalizing its technical
 background document, Lightweight
 Aggregate Production and Air Pollution
 Control Wastes (1995), at this time.
  d. Mineral Processing Wastes From
 the Production of Titanium
 Tetrachloride. (i) Summary. In 1989,
following a study of this waste's
circumstances of generation,  the Agency
determined that titanium tetrachloride
waste acid did not qualify for the Bevill
exemption because it was a mineral

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processing waste, not an extraction/
beneficiation waste, and did not meet
the high volume/low hazard criteria for
determining eligibility for the Bevill
exemption, (See 54 FR 36592,
September 1,1989.) One producer of
titanium tetrachloride, DuPont,
requested a determination that waste
from its production process be
categorized as beneficiation waste on
the ground that, unlike processes used
by other manufacturers, their process
included a beneficiation step which
generated the wastes at issue. However,
EPA determined that DuPont's waste
acids were mineral processing wastes.
DuPont challenged this decision, and
the Court remanded EPA's decision for
further consideration on the grounds
that the Agency's explanation for its
decision was unclear. Solite  Corporation
•v. EPA, 952 F.2d 473.494-95 (D.C. Cir.
1991).
  DuPont submitted comments on the
January 1996 proposal that contend its
processes do not destroy the structure of
the mineral as it is placed into its
processes. The Agency does not accept
this contention, and, as described
below, finds that the waste iron chloride
acid is a mineral processing wastes.
  There are four sequential steps in
DuPont's chlodde-ilmenite process, the
first two of which occur within the same
vessel: (1) chlorine gas reacts with iron
from the llmenite ore to form iron
chloride gas; (2) chlorine gas reacts with
titanium in the ilmenite ore  to form
titanium tetrachloride gas; (3) the iron
chloride is condensed and separated to
form a waste iron chloride acid; and
finally (4) the titanium tetrachloride is
condensed and processed to form
titanium oxide pigment, the saleable
product. The issue remanded in Solite is
whether the iron chloride acid waste,
which is produced in gaseous form at
step (1) but removed from the vessel as
a liquid at step (3), is a mineral
processing waste that does not qualify
for the Bevill exemption, or is a
beneficiation waste covered by the
Bevill exclusion under 40 CFR
261.4(b)(7).
  (ii) Proposal. In the January 1996
proposal, the Agency proposed that iron
chloride waste acid from the production
of titanium tetrachloride be classified as
a mineral processing waste that is not
eligible for the Bevill exemption. In the
chloride-ilmenite production of
titanium tetrachloride, the Agency
found that mineral processing began
with the chlorination of the  iron in the
llmenite ore and the resulting acid is a
waste from mineral processing.
Specifically, the Agency found that the
acid wastes from this process are not
physically or chemically similar to the
feedstocks entering the operation, which
is indicative that mineral processing has
occurred.
  (iii) Response to Comments. One
commenter agreed with EPA's proposed
conclusion that Du Font's process is
properly classified as mineral
processing because the reaction of
ilmenite ore with chlorine gas forms
new chemical compounds, namely
titanium tetrachloride and ferric or
ferrous chloride. The commenter
remarked that such a reaction is a
chemical processing step that
fundamentally alters the make-up of the
feedstock ore. The commenter said that
EPA correctly drew the analogy between
the mineral processing that occurs in
the chloride-ilmenite operation and the
mineral processing that occurs in other
metallurgical operations.
  One commenter noted that no
beneficiation occurs in the chloride-
ilmenite process at all and that the iron
chloride waste stream is not eligible for
the Bevill exemption. The commenter
said that it too produces a waste iron
chloride acid in the production of
titanium tetrachloride but its waste acid
is neutralized in a waste treatment unit.
The commenter provided data showing
that its treatment of waste iron chloride
acid meets all proposed Land Disposal
Restrictions (LDR) treatment standards
for underlying hazardous
characteristics.
  DuPont objected to the Agency's
proposed classification. DuPont claims
that the removal of iron from the
ilmenite ore is more appropriately
classified as beneficiation. DuPont
remarked that the separation of the iron
chloride from the titanium ore grains
results in a beneficiated ore, similar in
nature to commercially available
beneficiated ores that EPA has
determined are Bevill exempt. The
Agency disagrees with this
characterization, and concludes that
since the ore is chlorinated, that
chlorination step changes the physical
and chemical structure of ore. The
Agency's rationale for this decision is
discussed below.
  The Agency reiterates its broad
standard for making mineral processing
determinations described in 54 Fed.
Reg. 36592, 36616, September 1,  1989.
Specifically, beneficiation operations
typically serve to separate and
concentrate the mineral values from
waste material, remove impurities, or
prepare the ore for further refinement.
Beneficiation activities do not, however,
change the chemical structure of the ore.
Mineral processing operations, in
contrast, generally follow beneficiation
and serve to change the concentrated
mineral value into a more useful
chemical form and change the chemical
composition of the waste. In contrast to
beneficiation operations, processing
activities often destroy the physical
structure of the incoming ore or mineral
feedstock such that the materials leaving
the operation do not closely resemble
those that entered the operation.
Typically, beneficiation wastes are
earthen in character,  whereas mineral
processing wastes are derived from
melting or other chemical changes.
  Today, the Agency again finds that
DuPont's chloride-ilmenite operation is
mineral processing. In DuPont's process,
chlorine gas is reacted with the iron in
the ore in the first step to produce a new
and significantly different chemical
compound than the feedstock ore,
namely liquid  waste iron chloride acid.
The iron  is more than simply removed;
the solid iron in the ore undergoes a
chemical reaction with the chlorine gas
to form a new compound that is highly
reactive and non-earthen in character,
namely iron chloride gas. This reaction
is the beginning of a significant change
to the physical and chemical structure
of the ore. This change is similar to the
reaction of chlorine gas with solid
titanium to form titanium tetrachloride
gas. The Agency finds that the net result
of the reaction of chlorine gas with both
iron and  titanium, which occur in the
same vessel, destroys the physical and
chemical nature of the ore.
   DuPont contends that the formation of
iron chloride gas is simply a process to
remove an impurity from the ore.
DuPont noted in its comments that
activities which remove impurities from
ores and  minerals are classified as
beneficiation and all  wastes from
beneficiation are exempt from
regulation under RCRA Subtitle C (see
40 CFR 261.4). DuPont therefore
contends that their processes are in fact
beneficiation and should  not be
classified as mineral  processing.
   As noted earlier, the Agency clarified
the definition of beneficiation and
mineral processing in its  1989
rulemaking. That rule clearly indicated
that beneficiation serves to remove
impurities as long as the resultant
materials remained earthen in nature
and had not undergone a physical/
chemical change. The Agency studied
the DuPont process numerous times and
met with the company several times to
assure that the Agency fully understood
DuPont process. The Agency concludes
that chlorination of the ore causes a
significant physical/chemical change to
the ore, and therefore the process is
more indicative of mineral processing
than beneficiation. Further, in the
DuPont case, the removal of impurities
is taking  place simultaneously with

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Federal Register/Vol. 63, No.  100 /Tuesday,  May 26, 1998/Rules and  Regulations
other reactions generating titanium
gases. This reaction alone would
classify the process as mineral
processing since the ore and titanium
gas are clearly physically and
chemically dissimilar from that point on
in the process. The Agency stated in
1989 that once mineral processing
began, all wastes generated after that
point would be classified as mineral
processing wastes, even those wastes
which are similar to those generated in
beneficiation.
  Thus, all wastes associated with the
chloride-ilmenite production of
titanium tetrachloride are mineral
processing wastes. They are neither high
volume nor low toxicity and therefore
are not eligible for the Bevill exemption.

VII. LDR Treatment Standards for Soil
  This section discusses final
regulations establishing land disposal
treatment standards specific to
contaminated soil. Contaminated soil is
subject to the land disposal restrictions,
generally,  when it contains a listed
hazardous waste or when it exhibits a
characteristic of hazardous waste.
(Throughout this discussion, the
specific term "hazardous contaminated
soil" refers to soil which contains a
listed hazardous waste or exhibits a
characteristic of hazardous waste; the
more general term "contaminated soil"
refers to both hazardous contaminated
soil and other soils—such as
decharacterized soil—which may be
subject to the land disposal restrictions.)
Prior to today's rule, contaminated soil
subject to LDRs was subject  to the same
land disposal restriction treatment
standards that apply to industrial
hazardous waste: soil contaminated by
listed hazardous waste was subject to
the standards that apply to those listed
wastes and soil that exhibited a
characteristic of hazardous waste was
subject to the same standards that apply
to the characteristic waste. Today's final
rule establishes a new treatability
group—contaminated soils—and
establishes land disposal restriction
treatment standards specifically tailored
to that treatability group. Although EPA
believes generators of contaminated soil
will typically choose to comply with the
new soil treatment standards
promulgated today, under today's final
rule, they have the option of complying
either with the existing treatment
standards for industrial hazardous waste
(i.e., the universal treatment standards)
or the soil treatment standards. This is
consistent with the approach the
Agency took in promulgating LDR
treatment standards for hazardous
contaminated debris. 57 FR 37221,
August 18, 1992.
                          EPA first proposed tailored land
                        disposal restriction treatment standards
                        for contaminated soil in September
                        1993. 59 FR 48122—48131 (September
                        14, 1993). In the September 1993
                        proposal,  EPA requested comment on
                        three soil  treatment standard options.
                        These three options involved various
                        combinations of percent reduction
                        requirements for hazardous constituents
                        (typically ninety percent—90%) and
                        multipliers of the universal treatment
                        standards (typically ten times the UTS—
                        10 x UTS). In response to comment on
                        the September 1993 proposal, EPA
                        deferred a final decision on soil
                        treatment standards to the Agency's
                        broader evaluation of application of
                        RCRA requirements to remediation
                        wastes, the Hazardous Waste
                        Identification Rule for Contaminated
                        Media, or HWIR-Media.
                          On April 29, 1996, as part of the
                        HWIR-Media proposal, EPA again
                        proposed tailored land disposal
                        restriction treatment standards for
                        contaminated soils. 61 FR at 11804
                        (April 29, 1996). In the April 29,  1996
                        proposal, soil-specific treatment
                        standards would have required
                        reduction in concentrations of
                        hazardous constituents by 90% with
                        treatment for any given constituent
                        capped at ten times the universal
                        treatment standard. Id. This is
                        commonly referred to  as "90% capped
                        at 10 times UTS."
                          In 1995, 1996 and 1997, EPA
                        proposed new land disposal restriction
                        treatment standards for waste identified
                        as hazardous because of metal content
                        and for mineral processing wastes. 60
                        FR 43654  (August 22,  1995) for metal
                        wastes; 61 FR 2338 (January 25, 1996)
                        for mineral processing wastes; and, 62
                        FR 26041 (May 12, 1997) supplemental
                        proposal for both types of waste.  In
                        these proposals, soil contaminated with
                        metal or mineral processing waste
                        would have been subject to the new
                        treatment standards for those wastes.
                        This was consistent with the way EPA
                        had historically addressed contaminated
                        soil and, at the time, considered proper
                        given that the proposals to establish
                        soil-specific treatment standards  were
                        not yet resolved.
                          EPA did not reopen  the issue of
                        whether LDRs apply to contaminated
                        soil or whether it is appropriate to
                        require that contaminated soil achieve
                        the same LDR treatment standards as the
                        contaminating waste (soil contaminated
                        by listed waste) or the characteristic
                        property (soil that exhibits a
                        characteristic of hazardous waste) in the
                        August 22, 1995, January 25, 1996, or
                        May 12, 1997 proposals. Commenters,
                        nonetheless, strongly opposed
application of the new LDR treatment
standards for metal and mineral
processing wastes to soil contaminated
with those materials. At about the same
time, EPA decided to go forward with
the soil-specific LDR treatment
standards proposed in April 1996.
Therefore, the Agency is promulgating
the land disposal restriction treatment
standards tailored to contaminated soils
proposed  on April 29, 1996 (i.e., 90%
capped at lOxUTS) today, with the new
LDR treatment standards for metal and
mineral processing wastes. The soil-
specific treatment standards
promulgated today may be applied to
any contaminated soil that is restricted
from land disposal, including but not
limited to soil contaminated by metal
and mineral processing wastes.
  The land disposal restriction
treatment standards for contaminated
soil promulgated today differ from the
standards proposed on April 29, 1996 in
three major ways. First, the Agency
proposed  that the soil treatment
standards would be available only for
contaminated soil that was managed
under an approved cleanup plan
(termed a remediation waste
management plan, or RMP). In today's
final rule, the Agency is making the soil
treatment standards available for all
contaminated soil that is restricted from
land disposal. Second, the Agency
proposed that, for soil contaminated by
listed hazardous waste, treatment would
be required only for the hazardous
constituents that originated from the
contaminating listed hazardous waste.
When the soil treatment standards are
used, today's final rule requires all
hazardous contaminated soil, including
soil contaminated by listed hazardous
waste, to be treated for each underlying
hazardous constituent reasonably
expected to be present when such
constituents are initially found at
concentrations greater than  ten times
the universal treatment standard. Third,
in response to comments asserting that
the proposed regulations governing the
applicability of LDRs to contaminated
soils were difficult to understand, the
Agency has reformatted these
regulations into an easier-to-read table.
These changes,  as well as other
significant issues associated with the
soil treatment standards and responses
to comments, are discussed below.
  Today's promulgation of land
disposal restriction treatment standards
specific to contaminated soil is largely
based on the April 29, 1996  proposal (62
FR at 18804-18818). It also relies on the
Agency's first effort to establish soil-
specific treatment standards, the LDR
Phase II proposal (58 FR 48092,
September 14, 1993). Today's action

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                         Federal Register/Vol. 63, No. 100/Tuesday, May  26,  1998/Rules  and Regulations
                                                                     28603
          resolves the portions of the April 29,
          1996 and September 14,1993 proposals
          that address land disposal restriction
          treatment standards for contaminated
          soil. However, other elements of the
          April 29, 1996 proposal remain open
          and will be acted on in a future
          rulemaking. Responses to comments
          submitted on the soil treatment
          standards proposals are included in the
          Soil Treatment Standards Response to
          Comments Background Document,
          available in the docket for today's
          action.
          A. Application of Land Disposal
          Restriction Treatment Standards to
          Contaminated Soil and Justification For
          Soil Specific WRs
            Prior to today's rule, soil that
          contained listed hazardous waste or
          exhibited a characteristic of hazardous
          waste were prohibited from land
          disposal unless they had been treated to
          meet the treatment standards
          promulgated for pure industrial
          hazardous waste. This means the same
          treatment standards which apply to a
          pure. Industrial hazardous waste were
          also applied to contaminated soil. 61 FR
          at 18804 (April 29, 1996) and other
          sources cited therein. In most cases
          then, contaminated soils were subject to
          the treatment standards listed in 40 CFR
          268.40, and the associated treatment
          standards in 40 CFR 268.48(a) table
          Universal Treatment Standards (UT$).14
            As EPA has discussed many times,
          the treatment standards developed for
          pure, industrial hazardous waste may be
          unachievable in contaminated soil or
          may be inappropriate for contaminated
          soil due to particularities associated
          with the soil matrix and the remediation
          context under which most contaminated
          soil Is managed, as discussed below. For
          that reason, EPA is promulgating today's
          LDR treatment standards specifically
          tailored to contaminated soil and to the
          remedial context.
            With respect to the soil matrix, the
          treatment standards developed for pure
          hazardous waste (i.e., the universal
          treatment standards) are generally either
          technically unachievable or technically
          or environmentally inappropriate. For
          metal constituents, the UTS may not be
          achievable In contaminated soil even
          using model technologies such as
          stabilization or high temperature metal
          recovery. Stabilization technologies are
          sensitive to soil characteristics such as
          the presence of oxidizing agents and
          hydrated salts, the distribution of soil
            14 The exception is when waste contaminating
          soil Is subject to a specified treatment method: In
          tint case, the contaminated soil would also be
          subject to the specified treatment method.
particle size and the concentrations of
sulfate and chloride compounds.
Various combinations of soil
characteristics can impair the
effectiveness or rate of reaction in
stabilization technologies. For example,
insoluble materials, such as materials
that will pass through a number 200
mesh sieve, can delay setting and curing
during stabilization, or small soil
particles can coat larger soil particles
weakening bonds between particles and
cement or other reagents. High
temperature metal recovery technologies
may not be appropriate for some
contaminated soil given the low
concentrations of metals that might be
present in the soil. In addition, clay and
silt content in some soil matrices may
add undesired impurities to the metal
concentrates or alloys that are formed
during high temperature metal recovery.
  Although EPA has data showing that
some soils can be treated to the existing
universal treatment standards for metals
using stabilization15 and high
temperature metals recovery, the
Agency continues to believe that
tailored soil treatment standards are
appropriate for metal contaminated soil
to ensure that the wide variety of soils
can be effectively treated to meet the
treatment standards. In addition, the
soil treatment standards will have the
added environmental benefit of
encouraging greater use of innovative
soil treatment technologies such as soil
or enhanced soil (acid) washing. See,
Proposed BOAT Background Document
for  Hazardous Soils, August 1993;
Technical Resource Document:
Solidification/Stabilization and its
Application to Waste Materials, EPA/
530/R-93/012, June 1993; and,
Technology Screening Guide for
Treatment of CERCLA Soils and
Sludges, EPA 540/2-88/004, September
1988.
  For soil contaminated with organic
constituents, EPA has noted many times
that, notwithstanding  the fact that such
soils can be treated by combustion to
meet the universal treatment standards,
it is generally unsuitable or impractical
from a technical standpoint to combust
large volumes of mildly contaminated
soil. See, for example, 55 FR at 8760 and
8761 (March 8, 1990) and 61 FR 18806-
18808 (April 29,  1996). In addition, the
Agency has documented potential
difficulties that may arise from the
combustion of soil due to soil/
contaminant characteristics that affect
incineration performance such as the
concentrations of volatile metals, the
presence of alkali salts, fine particles of
soils such as clays and silts, and the ash
fusion point of the contaminating waste.
For example, operation of an incinerator
at or near the waste ash fusion
temperature can cause melting and
agglomeration of inorganic salts; the
loading of clays and silts in some soils
may also result in high loadings of
particulate matter in flue gases.
Proposed BOAT Background Document
for Hazardous Soils, August 1993 and
Technology Screening Guide for
Treatment of CERCLA Soils and
Sludges, EPA 540/2-88/004, September
1988.
  With respect to the remedial context,
EPA, the states, and the regulated and
environmental communities have long
recognized that application of the LDR
treatment standards developed for pure,
industrial hazardous waste to
contaminated soil can be
counterproductive. See, for example,
"Hazardous Waste: Remediation Waste
Requirements Can Increase the Time
and Cost of Cleanups' U.S. General
Accounting Office, GAO/RCED-98-4,
October 1997. Application of LDRs
developed for pure, industrial
hazardous waste to contaminated soil
often presents remediation project
managers with only two choices: pursue
a legal option of capping or treating
hazardous contaminated soil in place
thereby avoiding a duty to comply with
LDRs, or excavate the soil and treat it to
the full extent of best demonstrated
available technology, usually, for
organic constituents, incineration. EPA
has found that this situation often
creates an incentive to select remedies
that minimize application of LDRs (e.g.,
remedies that involve capping or
leaving untreated soil in place) a result
obviously not contemplated by Congress
in enacting the LDR program.16 62 FR at
pages 64505-64506 (Dec. 5, 1997) and
61 FR at 18808 (April 29, 1996) and
other sources cited therein.
  Because of the differences between
the remedial context (responding to
wastes which have already been
released to the environment) and
  15 These soil treatment data have been claimed as
confidential business information.
  16 As discussed In the April 29, 1996 proposal,
EPA has, in the past, justified the existing treatment
standards, in part, because they create an incentive
to generate less of the affected waste In the first
instance. See. Steel Manufactures Association v.
EPA, 27 F.3d 642, 649 (D.C. Cir.  1994). In the
remedial context, the waste is already in existence;
therefore waste minimization is not an issue. Thus,
application of the current LDR treatment standards
to remediation waste can have the perverse effect
of creating an incentive to avoid "generating" waste
by leaving it in the ground. The Agency believes
that the goals of remediation are better served by
more aggresive remedial approaches, such as
excavation and management (including some
degree of treatment) of remediation wastes, that
generally result In more permanent remedies. Such
approaches should, therefore, be encouraged.
_

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regulation of wastes generated by on-
going industrial process (preventing
wastes from being released into the
environment in the first instance), EPA
has rejected the conclusion that
treatment standards for soil must be
based upon the performance of the
"best" demonstrated available treatment
technology in the way the Agency has
historically interpreted these terms.
Instead, the Agency has chosen to
develop soil treatment standards that
can be achieved using a variety of
treatment technologies which achieve
substantial reductions in concentration
or mobility of hazardous constituents
and, because they are generally used to
treat contaminated soils in remedial
settings, do not present site managers
with the type of dilemma described
above. As EPA has long maintained, the
strong policy considerations that argue
for using the traditional BOAT analysis
as the basis for LDR treatment standards
for hazardous wastes generated by on-
going industrial operations do not apply
when evaluating BDAT in the remedial
context. In the remedial context, for
example, waste minimization is not an
issue and the additional increment of
treatment necessary to achieve
traditional BDAT may yield little if any
environmental benefit over other
treatment options that adequately
protect human health and the
environment. 54 FR 41568 (October 19,
1989). Indeed there is a legitimate
question as to whether a technology
whose use results in foregoing other
substantial environmental benefits (such
as more aggressive, permanent
remedies) can be considered a "best"
technology. Portland Cement
Association v. Ruckelshaus, 486 F. 2d
375, 385-86 at n. 42 (D.C. Cir. 1973);
Essex Chemical Corp. v. Ruckelshaus,
486 F. 2d 427, 439 (D.C. Cir. 1973). This
issue was discussed fully in the April
29, 1996 proposal and in a number of
other EPA documents, see, for example,
54 FR 41568 (October 19, 1989) and 61
FR at 18808 (April 29, 1996) and other
sources cited therein.
  The soil treatment standards
promulgated today will significantly
improve management of contaminated
soil and remediations that involve
contaminated soil. However, the Agency
emphasizes that today's rule does not
resolve the larger, more fundamental
issues associated with application of
RCRA Subtitle C to remediation
generally. The Agency maintains that
additional reform is  needed to address,
more fundamentally, the application of
certain RCRA subtitle C requirements to
all remediation wastes, including
contaminated soil. The Agency will
                        continue to participate in discussions of
                        potential legislation to promote this
                        additional needed reform. If legislation
                        is not forthcoming, the Agency may
                        reexamine its approach to remediation
                        waste management, including the soil
                        treatment standards.

                        B. Detailed Analysis of Soil Treatment
                        Standards
                          All land disposal restriction treatment
                        standards must satisfy the requirements
                        of RCRA section 3004(m) by specifying
                        levels or methods of treatment that
                        "substantially diminish the toxicity of
                        the waste or substantially reduce the
                        likelihood of migration of hazardous
                        constituents from that waste so that
                        short-term and long-term threats to
                        human health and the environment are
                        minimized." As EPA has discussed
                        many times, the RCRA Section 3004 (m)
                        requirements may be satisfied by
                        technology-based standards or risk-
                        based standards. This conclusion was
                        upheld in Hazardous Waste Treatment
                        Council v. EPA, 886 F.2d 355, 362-64
                        (D.C. Cir.  1989), where technology-
                        based LDR treatment standards were
                        upheld as a permissible means of
                        implementing RCRA Section 3004(m)
                        provided they did not require treatment
                        beyond the point at which threats to
                        human health and the environment are
                        minimized. Today's treatment standards
                        for contaminated soils are primarily
                        technology-based; however, a variance
                        from the technology-based standards is
                        allowed when EPA or an authorized
                        state makes a site-specific determination
                        that threats posed by land disposal of
                        any given volume of contaminated soil
                        are minimized at higher concentrations.

                        1. Technology Basis for Soil Treatment
                        Standards
                          The land disposal restriction
                        treatment  standards for soil require that
                        concentrations of hazardous
                        constituents subject to treatment be
                        reduced by ninety percent (90%) with
                        treatment  for any given constituent
                        capped at  ten times the universal
                        treatment  standard (10 X UTS). In other
                        words, if treatment of a given
                        constituent to meet the 90% reduction
                        standard would reduce constituent
                        concentrations to less than 10 X UTS,
                        treatment  to concentrations less than 10
                        X UTS is not required. This is
                        commonly referred to as "90% capped
                        by lOxUTS."
                          As first discussed in the September
                        14, 1993 proposal, the Agency has not
                        used the statistical methods historically
                        used in the land disposal restriction
                        program to establish the soil treatment
                        standards. In the past, the Agency has
                        typically evaluated treatability data to
 identify the "most difficult to treat"
 waste and established treatment
 standards based on a statistical analysis
 of data from the best demonstrated
 available treatment technology for that
 waste. See, for example, 55 FR 26594
 and 26605, June 23, 1989. While the
 existing regulations allow treatment
 using any technology that will satisfy
 the treatment standards, the practical
 impact of that approach is that
 treatment using the most aggressive
 treatment technology available (i.e., for
 organic constituents, destruction of
 organic constituents based upon the
 performance of incineration) is often
 necessary to achieve the treatment
 standards.
  For contaminated soil, the Agency has
 chosen to establish technology-based
 soil treatment standards at levels that
 are achievable using a variety of
 common remedial technologies which
 destroy, remove or immobilize
 substantial amounts of hazardous
 constituents. 58 FR 48129 (September
 14, 1993). The levels chosen—90%
 reduction capped at 10 X UTS—are
 within the zone of reasonable levels the
 Agency could have selected as treatment
 standards for contaminated soil.
  Soil treatability data from EPA's Soil
 Treatment Database indicate that the
 soil treatment standards are achievable
 and that the Agency has selected a
 reasonable level of performance for the
 standard. After screening the Database
 to eliminate data from tests reflecting
 poorly designed or operated treatment,
 tests where EPA believes inappropriate
 technologies were applied (for example,
 data from "immobilization" of organic
 constituents), and other inappropriate
 data, the Agency was left with 2,541
 data pairs representing treatment of
 eighty hazardous constituents including
 nine BDAT list metals.17 EPA then
 analyzed these data to determine if the
 soil treatment standards could be
 reliably achieved using demonstrated
 soil treatment technologies. Based on
 this analysis, the Agency concluded that
 the soil treatment standards can be
 reliably achieved using a variety of
 available soil treatment technologies.
The Agency concluded that the soil
 treatment standards can be reliably
 achieved using: biological treatment,
 chemical extraction, dechlorination, soil
washing, stabilization and thermal
 desorption. Of course, since soil
treatment is generally matrix dependent,
the exact treatment technology which
  17 A complete discussion of the Agency's method
for screening the Soil Treatment Database can be
found in the LDR Phase II proposal (58 FR 48129—
48131, September 14, 1993) and the Best
Demonstrated Available Technology Background
Document for Hazardous Soil (August 1993).

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              Federal Register/Vol.  63, No. 100/Tuesday, May 26, 1998/Rules and  Regulations
                                                                    28605
might be applied to any given
contaminated soil will depend on the
specific properties of the soil and the
hazardous constituents of concern.
Choices about which soil treatment
technology to apply should be informed
by appropriate use of bench and pilot
scale studies and good engineering
Judgement. EPA acknowledges that the
treatment efficiency necessary to
achieve the soil treatment standards will
depend on, among other things, the
initial concentrations of hazardous
constituents in any given volume of
contaminated soil. Thus, not all soil
treatment technologies will be capable
of treating every contaminated soil to
meet the standards adopted in this ryle.
However, the Agency finds that the soil
treatment standards typically can be
achieved by at least one of the
demonstrated technologies, even in the
case of hard-to-treat hazardous
constituents such as dloxins and furans,
polychlorlnated biphenyls, and
polynuclear aromatics.
   Furthermore, the Agency has
concluded that it is appropriate to
express the soil treatment standards as
a treatment performance goal capped by
specific treatment levels. More specific
standards, for example, a single
numerical standard for all soil, could be
counterproductive—less often
achievable—given the varying
combinations of hazardous constituents
and soil properties that might be
encountered In the field. 58 FR 48130
(September 14,1993). An express
objective of this rule Is to increase the
range of appropriate treatment
altematives available to achieve the LDR
treatment standards in soil to increase
the likelihood that more remediations
will include treatment as a component
of the remedy. This objective could be
impeded by adopting single numeric
values as treatment standards, since that
approach would reduce needed
flexibility. The resulting soil treatment
standards, while still technology-based,
thus depart from EPA's past
methodology developed for process
wastes in that they are not based
exclusively on the application of the
most aggressive technology to the most
difficult to treat waste and are not
expressed as a single numeric value.
   Like any land disposal restriction
treatment standard, the soil treatment
standards may be achieved using any
treatment method except treatment
methods which involve impermissible
dilution (e.g., addition of volume
without destroying, removing or
Immobilizing hazardous constituents or
transfer of hazardous constituents from
soil to another medium such as air). For
organic constituents, the soil treatment
standards for volatile organic
constituents are based on the
performance of biotreatment, chemical
extraction, dechlorination, thermal
desorption or soil vapor extraction. The
standards for semivolatile organic
constituents are based on the
performance of biotreatment, chemical
extraction, dechlorination, soil washing,
thermal desorption, or soil vapor
extraction. The standards for
organochlorine pesticides are based on
the performance of biotreatment,
dechlorination, hydrolysis, or thermal
desorption. The standards for
phenoxyacetic acid pesticides are based
on the performance of dechlorination.
The standards for polychlorinated
biphenyls are based on the performance
of chemical extraction, dechlorination,
or thermal desorption. The standards for
dioxins and furans are based on the
performance of dechlorination or
thermal desorption. EPA does not have
specific data in the record on treatment
of organophosphorous insecticides.
Because they are based on a similar
chemical structure, these contaminants,
however, are likely as difficult to treat
as other polar nonhalogenated organic
compounds and are expected to respond
to treatment in a manner similar to other
polar nonhalogenated phenols, phenyl
ethers, and cresols. Therefore, EPA
believes that organophosphorous
insecticides can be treated using the
same technologies as would otherwise
be used to treat polar nonhalogenated
organics, i.e., biotreatment, chemical
extraction, or thermal desorption. For
all organic constituents the soil
treatment standards are also achievable
using combustion. EPA notes also that
a number of judicial opinions have
upheld EPA's extrapolation of
achievability results for technology-
based treatment standards based on
chemical structure and activity
similarity, as has been used here. See,
e.g.. Chemical Manufacturers Ass 'n v.
EPA, 870 F. 2d 177, 248 (5th Cir. 1989)
and National Ass'n of Metal Finishers v.
EPA, 719 F. 2d 624, 659 (3d Cir. 1983).
For metals, the soil treatment standards
are based on the performance of
stabilization, and for mercury, chemical
extraction. Achievability of the soil
treatment standards is discussed, in
detail, in section VII.B.8 of today's
preamble.
  a. Measuring Compliance With the
Soil Treatment Standards For hazardous
constituents which have  a treatment
standard measured by total waste
analysis (i.e. standards for organic
constituents and for cyanide),
compliance with the 90% reduction
standard should generally be measured
using total constituent concentrations.
For hazardous constituents which have
a treatment standard measured based on
concentrations in a TCLP extract (i.e.,
standards for metals and for carbon
disulfide, cyclohexanone and
methanol), compliance with the 90%
reduction standard should generally be
measured in leachate using the toxicity
characteristic leaching procedure. The
exceptions to these rules would be, for
example, if soils contaminated with
metal constituents were treated using a
technology which removed or
destroyed, rather than stabilized, metals.
In an example like this, compliance
with the 90% reduction standards
should generally be measured using
total constituent concentrations.
  EPA takes this opportunity to clarify
that when establishing the
concentrations of hazardous
constituents in any given volume of
contaminated soil from which the 90%
reduction will be measured, normal soil
characterization techniques and
procedures for representative sampling
should be used. For example, it is not
necessary to measure the 90% reduction
from the soil sample with the lowest
concentrations of hazardous
constituents. EPA will publish
additional guidance on establishing and
validating 90% reduction levels for
contaminated soil in the near future.
  Today's rule does not change existing
policies or guidance on soil sampling or
site characterization. Although soil is
often characterized using composite
sampling, EPA notes that, consistent
with the way the Agency measures
compliance with other LDR treatment
standards, compliance with the soil
treatment standards will be measured
and enforced using grab samples. This
is appropriate because well-designed
and well-operated treatment systems
should ensure that soil is uniformly
treated.
  b. Major Comments A number of
commenters expressed concern about
the achievability of the soil treatment
standards and/or the methodology EPA
used to develop the soil treatment
standards. These concerns are discussed
in Section VII.B.8 of today's preamble
and in the response to comments
document, available in the docket for
today's rulemaking.

2. The Soil Treatment Standards Satisfy
RCRA Section 3004(m) Requirements
  The technology-based "90% capped
by 10 X UTS" treatment standard for
contaminated soil is sufficiently
stringent to satisfy the core requirement
of RCRA Section 3004(m) that short-
term and long-term threats to  human
health and the environment posed by

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Federal Register/Vol. 63, No.  100/Tuesday, May 26, 1998 /Rules and Regulations
land disposal are minimized.
Technology-based standards provide an
objective measure of assurance that
hazardous wastes are substantially
treated before they are land disposed,
thus eliminating the "long-term
uncertainties associated with land
disposal." Eliminating these     |
uncertainties was a chief Congressional
objective in prohibiting land disposal of
untreated hazardous wastes. Hazardous
Waste Treatment Council v. EPA, 886
F.2d at 361-64. In addition, the extent
of treatment required, 90 % reduction
capped at treatment to concentrations
within an order of magnitude of the
UTS, "substantially" reduces mobility
or total concentrations of hazardous
constituents within the meaning of
RCRA Section 3004(m)(l).
  EPA has made two changes from
proposal which strengthen the soil
treatment standards to assure that they
minimize threats to human health and
the environment. First, the Agency has
modified its approach to which
hazardous constituents will be subject
to treatment. In today's rule, when the
soil treatment standards are used, EPA
requires treatment for all hazardous
constituents reasonably expected to be
present in contaminated soil when such
constituents are initially found at
concentrations greater than ten times
the universal treatment standard. This
treatment is required both for soil
contaminated  by listed hazardous waste
and soil that exhibits (or exhibited) a
characteristic of hazardous waste.
Constituents subject to treatment are
discussed further in Section VII.B.4 of
today's preamble.
  To further ensure that contaminated
soil treated to comply with the soil
treatment standards is safely managed,
EPA has included additional restrictions
on the use of treated contaminated soil
in hazardous waste-derived products
that are used in a manner constituting
disposal (i.e., when such products will
be placed on the land). The restrictions
on use of treated contaminated soil in
hazardous waste-derived products that
are used in a manner constituting
disposal are discussed in Section VII.B.5
of today's preamble.
  Finally, the Agency reiterates that,  in
the remediation context, in assessing
whether threats posed by land disposal
have been minimized, one should
appropriately consider the risks posed
by leaving previously land disposed
waste in place as well as the risks posed
by land disposal of waste after it is
removed and treated. 62 FR at 64506
(December 5, 1997). For example, if a
treatment standard for organic
constituents based on performance of
incineration typically results in already
                        land disposed materials such as
                        contaminated soils being capped in
                        place rather than more aggressively
                        remediated, threats posed by land
                        disposal of the waste ordinarily would
                        not be minimized. Conversely, a
                        treatment standard that results in
                        substantial treatment followed by secure
                        land disposal can be said to minimize
                        threats, taking into account the totality
                        of threats posed (i.e. including those
                        posed if the soil were left in place
                        untreated). Id. The soil treatment
                        standards will ordinarily ensure that
                        contaminated soil is appropriately
                        treated within the meaning of RCRA
                        Section 3004 (m), considering both the
                        threats posed by new land disposal of
                        treated soil and  the threats posed by on-
                        going land disposal of existing
                        contaminated soil (e.g., if the soil were
                        left in place untreated).
                          EPA recognizes that some people may
                        be concerned that a situation may arise
                        where the soil treatment standards are at
                        levels that are higher than those that
                        EPA or an authorized state believes
                        should be required for soil cleanup
                        under a cleanup program. The Agency
                        acknowledges that this may occur. The
                        soil treatment standards, like other land
                        disposal restriction treatment standards,
                        are based on the performance of specific
                        treatment technologies. As discussed
                        earlier in today's preamble, technology-
                        based standards have been upheld as a
                        permissible means of implementing
                        RCRA Section 3004(m). Most soil
                        cleanup levels are based not on the
                        performance of specific treatment
                        technologies but on an analysis of risk.
                        For this reason,  technology-based
                        treatment standards will sometimes
                        over-and sometimes under-estimate the
                        amount of treatment necessary to
                        achieve site-specific, risk-based goals.
                          The purpose of the land disposal
                        restriction treatment standards is to
                        ensure that prohibited hazardous wastes
                        are properly pre-treated before disposal
                        (i.e., treated so that short- and long-term
                        threats to human health and the
                        environment posed by land disposal are
                        minimized). As  discussed above, the
                        Agency believes the soil treatment
                        standards promulgated today fulfill that
                        mandate for soil that contains
                        prohibited listed hazardous waste or
                        exhibits a characteristic of prohibited
                        hazardous waste. However, technology-
                        based treatment standards are not
                        necessarily appropriate surrogates for
                        site-specific risk-based cleanup levels.
                        In a circumstance where the soil
                        treatment standards result in constituent
                        concentrations that are higher than
                        those determined, on a site-specific
                        basis,  to be required for soil cleanup,
                        existing remedial programs such as
RCRA Corrective Action, CERCLA and
state cleanup programs could be applied
to ensure that remedies are adequately
protective. These programs already
ensure protection of human health and
the environment when managing most
contaminated soils—i.e., soils that are
not subject to the LDRs—and other
remediation wastes. Furthermore,  as
discussed later in today's rule, treated
contaminated soil would remain subject
to regulation under RCRA Subtitle C
unless and until EPA or an authorized
state made an affirmative decision that
the soil did not contain hazardous waste
or, in the case of characteristic soil, no
longer exhibited a hazardous
characteristic.
3. Variance From the Soil Treatment
Standards at Risk-Based Levels
  EPA has long indicated that its
preference would be to establish a
complete set of risk-based land disposal
treatment standards at levels that
minimize short- and long-term threats to
human health and the environment.
See, for example, 55 FR at 6641 (Feb. 26,
1990).  However, the difficulties
involved in establishing risk-based
standards on a nationwide basis are
formidable due in large part to the wide
variety of site-specific physical and
chemical compositions encountered in
the field and the uncertainties involved
in evaluating long-term threats posed by
land disposal. Id.: 60 FR 66380—66081
(Dec. 21, 1995). For these reasons the
Agency has chosen to establish land
disposal restriction treatment standards
based on the performance of specific
treatment technologies. Although
technology-based treatment standards
are permissible, they may not be
established at levels more stringent than
those necessary to minimize short and
long-term threats to human health and
the environment. Hazardous Waste
Treatment Council, 886 F. 2d at 362
(land disposal restriction treatment
standards may not be established,
"beyond the point at which there is not
a "threat" to human health or the
environment").
  While using risk-based approaches to
determine when threats are minimized
on a national basis has proven
extremely difficult, these difficulties
will diminish when evaluating risks
posed by a specific contaminated soil in
a particular remediation setting since,
during remediation, one typically has
detailed site-specific information on
constituents of concern, potential
human and environmental receptors,
and potential routes of exposure. For
this reason, EPA is establishing a site-
specific variance from the technology-
based soil treatment standards, which

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                Federal Register/Vol. 63,  No. 100/Tuesday, May 26,  1998/Rules and  Regulations
                                                                        28607
 can be used when treatment to
 concentrations of hazardous
 constituents greater (i.e., higher) than
 those specified in the soil treatment
 standards minimizes short- and long-
 term threats to human health and the
 environment. In this way, on a case-by-
 case basis, risk-based LDR treatment
 standards approved through a variance
 process could supersede the technology-
 based soil treatment standards. This
 approach was first discussed in the
 September 14, 1993 proposal, where
 EPA proposed that determinations that
 contaminated soil did not or no longer
 contained hazardous waste could
 supersede LDR treatment standards, if
 the "contained-in" level also
 constituted a "minimized threat" level.
 It was repeated in the April 29,1996
 proposal where the Agency proposed
 that, in certain circumstances, variances
 from land disposal restriction treatment
 standards could be approved in
 situations where concentrations higher
 than the treatment standards minimized
 threats.18 58 FR at 48128 (September  14,
 1993) and 61 FRat 18811 and 18812
 (April 29.1996).
   At this time, EPA is allowing the risk-
 based variances only for contaminated
 soils. The Agency believes this
 limitation is appropriate for a number of
 reasons. First, contaminated soils are
 most often generated during agency
 overseen cleanups, such as CERCLA
 cleanups, RCRA corrective actions or
 state overseen cleanups. This type of
 involvement in cleanups positions EPA
 and authorized states to appropriately
 consider site-specific, risk-based issues.
 Second, during remediation,  experts
 and field personnel typically gather
 detailed site-specific information on
 risks posed by specific hazardous
 constituents or combinations of
 hazardous constituents, potential direct
 and indirect exposure routes, risk
  " In the April 29,1996 proposal, the Agency
 proposed to limit variances based on a site-specific
 minimize threat determination to contaminated
 soils where all concentrations of hazardous
 constituents were below a "bright line," that Is,
 below » certain risk level. The Agency also
 requested comment on extending site-specific
 minimize threat variances to other contaminated
 soils. Based on further consideration and
 consideration of comments, the Agency is
 persuaded that« site-specific minimize threat
 variance should be available to all contaminated
 soils. The Agency believes this Is proper because
 the outcome of a site-specific, risk-based minimize
 threat variance—alternative, site-specific LDR
 treatment standards based on risk—will be the same
 regardless of the Initial concentrations of hazardous
 constituents. In any case, the Agency Is not. at this
 time, taking action on the portion of the April 29.
 1996 proposal that would have established a "bright
 line" to distinguish between higher- and lower-risk
•media, If, In the future, the Agency takes action to
 establish a bright line. It will address the
 relationship of a bright line to site-specific
 minimize threat variances.
 pathways and human and
 environmental receptors. Through
 application of this information,
 overseeing agencies can eliminate many
 of the long-term uncertainties associated
 with land disposal and, therefore, make
 appropriate risk-based decisions
 regarding the extent of treatment needed
 to minimize short- and long-term threats
 to human health and the environment
 from any given hazardous constituent or
 combination of hazardous constituents.
 EPA and state officials already routinely
 make these types of decisions when
 developing site-specific, risk-based
 cleanup levels and when making
 decisions  about whether any given
 contaminated medium contains
 hazardous waste.19 After experience
 implementing the site-specific minimize
 threat variance for contaminated soil,
 the Agency may consider extending it to
 other environmental media and
 remediation wastes.
   Some commenters expressed concern
 that allowing site-specific, risk-based
 minimize  threat determinations would
 abrogate the Agency's responsibilities
 under RCRA Section 3004(m). The
 Agency strongly disagrees. RCRA
 Section 3004(m) requires EPA to
 establish "levels or methods of
 treatment, if any. *  *  *." In the case of
 contaminated soil, EPA is establishing
 those levels today based on the
 performance of available, appropriate
 soil treatment technologies. Providing a
 variance process to modify a level or
 method of treatment on a case-by-case
 basis reduces the  likelihood that in any
 particular  situation technology-based
 treatment standards will result in
 treatment beyond the point at which
 threats are minimized. The Agency is
 requiring that minimize threat variance
 determinations for contaminated soils
 be evaluated using the existing site-
 specific variance process set out in 40
 CFR 268.44(h). EPA recently added
 language to this provision to clarify that
 variances cannot be approved without
 opportunity for public participation,
 including notice by appropriate means,
 opportunity for public comment and
 adequate explanation of an ultimate
  19 While not forbidden, the Agency believes that
site-specific, risk-based minimize threat
determinations will rarely be made in the context
of an Independent or voluntary cleanup action,
since, in these types of actions, an overseeing
Agency will not, typically, have been involved in
the identification exposure pathways and receptors
of concern or the calculation of site-specific, risk-
based cleanup levels. Of course, generators could
apply for a site-specific, risk-based minimize threat
variance during an independent or voluntary
cleanup and, provided EPA or an authorized state
agreed that the proposed alternative treatment
standards minimized threats considering
appropriate exposure pathways and receptors, a
variance could be approved.
 determination. 62 FR at 64507 (Dec. 5,
 1997).
   While not required, EPA anticipates
 that decisions about site-specific
 minimize threat decisions variances will
 often be combined with decisions that
 soil no longer contains hazardous waste.
 As discussed later in today's preamble.
 Agency guidance on "contained-in"
 determinations is essentially the same
 as the requirements for site-specific,
 risk-based minimize threat
 determinations promulgated today. For
 that reason, EPA believes it will always
 be appropriate to combine a contained-
 in determination with a site-specific,
 risk-based minimize threat variance. In
 these cases, EPA encourages program
 implementors and facility owners/
 operators to include information about
 the "contained-in" decision in the
 public notice of the site-specific
 minimize  threat variance. In cases
 where a site-specific minimize threat
 variance is combined with a decision
 that a soil no longer contains hazardous
 waste, once treated to comply with the
 treatment  standard imposed by the
 variance, the soil would no longer have
 any obligations under RCRA Subtitle C
 and could be managed—including land
 disposed—without further control
 under RCRA Subtitle C. The contained-
 in policy is discussed in more detail in
 Section VII.B.8 and Section VII.E of
 today's preamble.
   EPA reminds program implementors
 that, consistent with the rest of the land
 disposal restriction program, site-
 specific determinations that threats are
 minimized cannot be based on the
 potential safety of land disposal units,
 or engineered structures such as  liners,
 caps, slurry walls or any other practice
 occurring after land disposal. American
 Petroleum Inst. v. EPA, 906 F.2d  729,
 735-36 (D.C. Cir. 1990) (land treatment
 cannot be considered in determining
 whether threats posed by land disposal
 have been  minimized because land
 treatment is a type of land disposal and
 section 3004 (m) requires that threats be
 minimized before land disposal occurs);
 see also S.  Rep. No. 284, 98th Cong. 1st
 sess. at 15, stating that engineered
 barriers cannot be considered in
 assessing no-migration variances
 because "[a]rtificial barriers do not
 provide the assurances necessary to
 meet the standard." This means that
 site-specific minimize threat
 determinations must be based on the
 inherent threats any given contaminated
soil would pose. The Agency recognizes
that this will have the effect of
precluding site-specific minimize threat
variances for remedies that rely, even in
part, on capping, containment or  other
physical or institutional controls. In

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addition to being compelled by the
statute, the Agency believes this
approach is proper, in that it may
encourage remedy choices that rely
more predominantly on treatment to
permanently and significantly reduce
the concentrations (or mobility) of
hazardous constituents in contaminated
soil.  The Agency has a strong and
longstanding preference for these types
of more permanent remedial
approaches.
  In  addition, at a minimum, alternative
land disposal restriction treatment
standards established through site
specific, risk-based minimize threat
variances should be within the range of
values the Agency generally finds
acceptable for risk-based cleanup levels.
That is, for carcinogens, alternative
treatment standards should ensure
constituent concentrations that result in
the total excess risk from any medium
to an individual exposed over a lifetime
generally falling within a range from
10~4 to 10~6, using 10~6 as a point of
departure and with a preference, all
things being equal, for achieving the
more protective end of the risk range.
For non-carcinogenic effects, alternative
treatment standards should ensure
constituent concentrations that an
individual could be exposed to on a
daily basis without appreciable risk of
deleterious effect during a lifetime; in
general, the hazard index should not
exceed one (1).  Constituent
concentrations that achieve these levels
should be calculated based on a
reasonable maximum exposure
scenario—that is, based on an analysis
of both the current and reasonably
expected future land uses, with
exposure parameters chosen based on a
reasonable assessment of the maximum
exposure that might occur. The Agency
believes these represent an appropriate
range of minimum values for site-
specific, risk-based minimize threat
determinations  because sites cleaned up
to these levels are typically released
from regulatory control under the
Federal CERCLA program and the RCRA
corrective action program. See, for
example, the National Contingency Plan
(55 FR 8666, March 8, 1990) the 1990
RCRA Corrective Action Subpart S
Proposal (55 FR 30798. July 27, 1990),
and the 1996 RCRA Corrective Action
Subpart S ANPR (61 FR 19432, May 1,
1996). In addition to achieving
protection of human health, alternative
treatment standards must ensure that
environmental receptors are protected
and must also ensure that no
unacceptable transfer of contamination
from one medium to another, for
example, from soil to ground water, will
                        occur.20 Protection of environmental
                        receptors and against cross-media
                        contamination may, in some cases,
                        require more stringent (i.e., lower)
                        alternative treatment standards than
                        would be necessary to protect human
                        health alone. The Agency recognizes
                        that this approach is different from the
                        approach used in developing national
                        risk-based minimize threat levels
                        proposed in the Hazardous Waste
                        Identification Rule (HWIR-Waste). 60 FR
                        66344 (December 21, 1995). This
                        difference is proper, in that the HWIR-
                        Waste proposal contemplated
                        nationally-applicable risk-based LDR
                        treatment standards and, therefore, had
                        to consider the myriad of potential
                        exposure pathways and receptors which
                        might occur at any given site, nation
                        wide. A site-specific minimize threat
                        determination is informed by actual and
                        reasonable potential exposure pathways
                        and receptors at a specific land disposal
                        location.
                          Although not expressly limited to
                        land disposal of contaminated soil on-
                        site, EPA anticipates that site-specific
                        minimize threat variances will, most
                        often, be applied to these activities. The
                        basis for developing an alternative land
                        disposal restriction treatment standard
                        during the  site-specific minimize threat
                        variance is application of risk
                        information about specific exposure
                        pathways and receptors of concern. To
                        apply such a variance to off-site land
                        disposal, the treatment standard would
                        have to be informed by the exposure
                        pathways and receptors present at the
                        off-site land disposal areas (assuming no
                        physical or engineered structures or
                        other post-land-disposal controls).
                        While such an analysis is allowed, this
                        information is not, to the Agency's
                        knowledge, routinely gathered during
                        site remediation.
                          Most commenters supported the
                        concept of using a treatment variance to
                        reduce the likelihood that, in any
                        particular case, technology-based soil
                        treatment standards might prompt
                        treatment beyond the point at which
                        threats to human health and the
                        environment are minimized.
                          One commenter was concerned that
                        establishing a risk-based minimize
                        threat variance without adequate
                        minimum standards would be contrary
                        to law and impossible to oversee. EPA
                        was, in part, persuaded by these
                        comments and has added a requirement
                        that, at a minimum, alternative LDR
                        treatment standards approved through a
                          20 Unacceptable cross-media transfer would
                        Include, for example, transfer of contaminants from
                        soil to air in excess of applicable air emission
                        standards.
site-specific minimize threat variance be
within the range of acceptable values
the Agency typically uses for cleanup
decisions, as discussed above. In
addition, as discussed above, the
Agency has clarified that, unlike some
CERCLA or RCRA corrective action
remedies, site-specific minimize threat
variances may not rely on post-land
disposal controls.

4. Constituents Subject to Treatment
  For soil contaminated by listed
hazardous waste, EPA proposed that
treatment would be required for each
hazardous constituent originating from
the contaminating waste. For soil which
exhibits (or exhibited) a characteristic of
hazardous waste, EPA proposed that
treatment would be required: (1) in the
case of TC soil, for the characteristic
contaminant; (2) in the case of ignitable,
reactive or corrosive soil, for the
characteristic property; and, (3) in both
cases, for all underlying hazardous
constituents. 61 FR at 18809 (April 29,
1996). Under the 1996 proposal,
treatment would have been required
only when those constituents were
initially present at concentrations
greater than ten times the universal
treatment standard. EPA also requested
comment on, among other things,
whether, for soil contaminated by listed
hazardous waste, treatment should be
required for all underlying hazardous
constituents present at concentrations
above ten times the UTS. Underlying
hazardous constituent is defined in 40
CFR 268.2(i) as, "any constituent listed
in 40 CFR 268.48 table UTS, except
fluoride, sulfides, vanadium, selenium,
and zinc, which can reasonably be
expected to be present at the point of
generation of the hazardous waste, at a
concentration above the constituent-
specific UTS treatment standards."
  Many commenters supported the
proposed approach. Some commenters,
however, expressed concern that,
because contaminated soil often
contains numerous hazardous
constituents from a variety of sources,
limiting treatment of soil contaminated
by listed hazardous waste to
constituents originating from the
contaminating waste might result in soil
contaminated with listed waste
undergoing less treatment than soil
which exhibits (or exhibited) a
characteristic of hazardous waste. One
commenter also asserted that the
proposed approach to constituents
subject to treatment was, in the case of
soil contaminated by listed hazardous
waste, inconsistent with the Chemical
Waste opinion. On further
consideration, EPA was persuaded that
it is prudent to apply the logic of the

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               Federal Register/Vol. 63, No.  100/Tuesday,  May 26, 1998/Rules and Regulations
                                                                    28609
 Chemical Waste opinion both to soil
 contaminated by listed hazardous waste
 and to soils which exhibit a
 characteristic of hazardous waste.
   As the Agency explained in the 1996
 proposal, contaminated soils are
 potentially contaminated with a wider
 range of hazardous constituents than
 most pure hazardous wastes generated
 by on-going industrial processes—in no
 small part because contaminated soils
 generally reflect uncontrolled disposal
 settings, 58 FR at 48124 (September 14,
 1993). Since the Chemical Waste
 opinion addressed a similar situation
 (certain characteristic hazardous wastes
 that might contain a variety of
 hazardous constituents), the Agency is
 persuaded that it is prudent to apply the
 logic of the Chemical Waste opinion to
 contaminated soil and require treatment
 of all underlying hazardous
 constituents. See Chemical Waste
 Management v. US EPA, 976 F.2d at 16-
 18 (D.C. Cir 1992). Therefore, when the
 soil treatment standards are used,
 today's final rule requires that all
 contaminated soil subject to the LDRs be
 treated to achieve the soil treatment
 standards for each underlying
 hazardous constituent reasonably
 expected to be present in the soil when
 such constituents are initially found at
 concentrations greater than ten times
 the universal treatment standard. In
 addition to treatment of all underlying
 hazardous constituents as discussed
 above, as proposed, characteristic soil
 must also be treated, in the case of TC
 soil, for the TC constituent and, in the
 case of ignltable, corrosive, or reactive
 soil, for the characteristic property.
   Although,  when the soil treatment
 standards are used, treatment is now
 required for each underlying hazardous
 constituent when such constituents are
1 Initially found at concentrations greater
 than ten times the universal treatment
 standard, it will not be necessary to
 monitor soil  for the entire list of
 underlying hazardous constituents.
 Generators of contaminated soil can
 reasonably apply knowledge of the
 likely contaminants  present and use that
 knowledge to select appropriate
 underlying hazardous constituents, or
 classes of constituents, for monitoring.
 This is consistent with the approaches
 EPA typically takes in remedial
 programs, where it emphasizes  that
 remediation managers should focus
 investigations on constituents of
 concern and  with regulations that allow
 generators to rely on knowledge to
 determine whether any given solid
 waste is hazardous. Cf. 61 FR at 19444
 where EPA encouraged remediation
 managers to "tailor [facility
 investigations] to the specific conditions
and circumstances at the facility and
focus on the units, releases, and
exposure pathways of concern."
  For nonanalyzable constituents, EPA
is promulgating the approach discussed
in both the September 14, 1993 and the
April 29, 1996 proposals. In situations
where contaminated soil contains both
analyzable and nonanalyzable organic
constituents, treating the analyzable
constituents to meet the soil treatment
standards is also reasonably expected to
provide adequate treatment of the
nonanalyzable constituents. In
situations where contaminated soil
contains only nonanalyzable
constituents (i.e., soil contaminated
only by nonanalyzable U or P listed
wastes), treatment using the specified
method for the appropriate U or P listed
waste is required. 61 FR at 18810,  April
29, 1996. Most commenters supported
this approach.
5. Relationship of Soil Treatment
Standards to Naturally Occurring
Constituents
  In the April 29, 1996 proposal EPA
requested comment on whether
concentrations of naturally occurring
constituents should be evaluated when
identifying constituents subject to
treatment. Commenters who addressed
this issue overwhelmingly
recommended that, for naturally
occurring constituents, EPA cap LDR
treatment requirements for soil at
natural background concentrations.
After considering these comments, EPA
was persuaded that treatment to comply
with LDRs should not be required  if
constituent concentrations fall below
naturally occurring background
concentrations, provided the soil will
continue to be managed on site or in an
area with similar natural background
concentrations. If soil will be sent for
land disposal off-site, compliance with
LDRs is required,  since the Agency
believes that natural background
concentrations on-site will not
automatically correspond to natural
background concentrations at a remote
land disposal facility.
  The Agency notes that, for purposes
of this discussion, natural background
concentrations are constituent
concentrations that are present in soil
which has not been influenced by
human activities or releases. Since these
constituent concentrations are present
absent human influence and EPA has
determined that soil (like other
environmental media)  is not, of itself, a
waste but may be regulated as
hazardous waste under RCRA only
when it contains (or contained) waste,
EPA is not convinced the Agency would
have the authority to require
 compliance with LDRs when
 constituent concentrations fall below
 background concentrations even if it felt
 compelled to do so. (Of course, such
 constituents could be regulated as
 hazardous constituents under state and
 Federal cleanup authorities, including
 RCRA corrective action and other
 authorities.)
  Since natural background
 concentrations may vary across
 geographic areas, and to ensure that
 LDRs will only be capped at background
 where appropriate, EPA will require
 that individuals who wish to cap LDR
 treatment at natural background
 concentrations apply for and receive a
 treatment variance. EPA will presume
 that when LDRs would require
 treatment to concentrations that are less
 than natural background, such a
 variance will be appropriate, based on
 the finding that it is inappropriate, for
 contaminated soil,  to require treatment
 to concentrations less than natural
 background concentrations. This issue
 has been clarified in today's final
 regulations, see 40 CFR 268.44(h)(4).

 6. Restrictions on Use of Treated
 Hazardous Contaminated Soil in
 Products Used in a Manner Constituting
 Disposal
  Although, as discussed earlier in
 today's preamble, EPA believes the soil
 treatment standards satisfy the
 requirements of RCRA Section 3004 (m),
 EPA has determined that additional
 restrictions are necessary for hazardous
 contaminated soils that are used to
 produce products which are,
 subsequently, used in a manner
 constituting disposal (i.e., used to
 produce products which are placed in
 or on the land). Under current
 regulations, hazardous waste-derived
 products that are used in a manner
 constituting disposal must, among other
 things, comply with the applicable land
 disposal restriction treatment standards
 in 40 CFR part 268.40, that is, the
 Universal Treatment Standards. See 40
 CFR 266.23(a). EPA has concluded that
 hazardous contaminated soil used to
 produce products which are,
 subsequently, used in a manner
 constituting disposal must continue to
 meet the universal treatment standards.
 Such products, then, are not eligible for
 the soil treatment standards
 promulgated today. EPA has made this
 decision for several reasons. First,  EPA
 has chosen technology-based treatment
standards (such as today's soil treatment
standards) as a means of implementing
the LDR statutory requirements in order
to eliminate as many of the
uncertainties associated with land
disposal of hazardous waste as  possible.

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Federal Register/Vol. 63, No. 100/Tuesday, May 26,  1998/Rules and Regulations
55 FR at 6642 (Feb. 26, 1990). These
uncertainties increase sharply when one
considers possible dispositions of
hazardous waste-derived products used
in a manner constituting disposal. These
products can be placed virtually
anywhere, compounding potential
release mechanisms, exposure
pathways, and human and
environmental receptors. 62 FR at 64506
(Dec. 5, 1997) and 53 FR at 31197-98
(August 17, 1988). For these reasons, the
Agency in 1988 determined that these
wastes should be treated to reflect the
best treatment available, 53 FR at
31197-98, and the Agency believes this
reasoning continues to hold with
respect to contaminated soils. Second,
EPA has determined that the soil
treatment standards adopted in today's
rule are justified, in many instances, in
order to encourage remediation
involving treatment over remedies that
involve leaving un-treated contaminated
soils in place. The Agency is less sure
that this is a desirable incentive if the
contaminated soils are to be used in a
manner constituting disposal, again
because of the uncertainties posed by
this method of land  disposal.
  Note that EPA has explained,
however, that remediation activities
involving replacement of treated soils
onto the land is not a type of use
constituting disposal, in part, because it
is a supervised remediation instead of
an unsupervised recycling activity. 62
FR 26063 (May 12, 1997). This
interpretation is not affected by today's
rulemaking.

7. Availability of Soil Treatment
Standards
  EPA proposed that soil-specific land
disposal restriction treatment standards
would be available only for
contaminated soils managed  under an
agency approved, site-specific cleanup
plan termed a Remediation Management
Plan or "RMP." The Agency also
specifically requested comment on
whether soil-specific treatment
standards should be made available to
all contaminated soil.  61 FR at 18813
(April 29, 1996). The majority of
commenters who addressed this issue
strongly supported extending the soil
treatment standards to all contaminated
soil. These commenters argued that
extending soil-specific LDRs to all
contaminated soil would encourage
voluntary and independent cleanups,
especially at low and medium priority
sites where a regulatory agency might
not have the resources to provide real-
time oversight through a "RMP." After
considering these comments, EPA is
persuaded that the soil treatment
standards should be available for all
                         contaminated soil and has revised the
                         regulations accordingly.
                          EPA's thinking in proposing to
                         require a site-specific remediation
                         management plan to take advantage of
                         the soil treatment standards was that
                         site-specific oversight, and potentially
                         modification of the treatment standards,
                         would be necessary to ensure that all
                         contaminated soils were appropriately
                         treated. 61 FR at 18807 (April 29,  1996).
                         However, EPA now concludes that the
                         soil treatment standards will ensure
                         adequate treatment of all contaminated
                         soils for two reasons.
                          First and primarily, the residuals from
                         treatment of hazardous contaminated
                         soil will typically continue to be
                         regulated as hazardous waste and will
                         remain subject to applicable RCRA
                         Subtitle C requirements. 61 FR at  18810
                         (April 29, 1996). Non-soil residuals,
                         such as wastes generated during
                         application of separation technologies,
                         will be regulated as hazardous wastes if
                         they exhibit a characteristic of
                         hazardous waste or if they derive  from
                         treating a soil which contains listed
                         hazardous waste. Therefore, these types
                         of non-soil residuals will typically be
                         subject to the universal treatment
                         standards in 40 CFR 268.40. See 57 FR
                         at 37240 (Aug. 18, 1992) where EPA
                         took the same approach for residues
                         from treating contaminated debris. Soil
                         residuals will also be regulated as
                         hazardous waste unless it is determined
                         that the soil does not contain hazardous
                         waste.21 For example, application of a
                         thermal desorption technology would
                         likely generate two types of residuals:
                         treated soil (soil residual) and
                         concentrated contaminants removed
                         from the soil and captured in an air
                         pollution control device (non-soil
                         residual). If the contaminated soil
                         contained a listed hazardous waste or
                         exhibited a characteristic of hazardous
                         waste at the time of treatment, both
                         residuals would continue to be subject
                         to RCRA Subtitle C regulations. The
                         non-soil residual would be required to
                         comply with applicable universal
                         treatment standards prior to land
                         disposal; the soil residual would
                         generally require land disposal in a
                         Subtitle C unit unless a "contained-in"
                         determination was made. Therefore,
                         although a remediation management
                         plan is no longer required to take
                         advantage of the soil treatment
                         standards,  a site-specific decision is still
                          21 The exception would be soil residuals from
                        treatment of soils which were determined no longer
                        to contain a listed hazardous waste or were
                        decharacterized and yet remained subject to LDRs.
                        In this case, since the treatment would be
                        performed on non-hazardous soil, the soil residuals
                        would also be considered non-hazardous.
required before treated contaminated
soil can exit the system of RCRA
regulations.
  Second, as noted earlier, EPA has
extended the treatment requirement to
all underlying hazardous constituents
reasonably expected to be present in
contaminated soils when such
constituents are found at initial
concentrations greater than ten times
the universal treatment standard and
retained current treatment requirements
for hazardous contaminated soils used
to produce products that are
subsequently used in a manner
constituting disposal.

8. Achievability of Contaminated Soil
Treatment Standards
  The soil treatment standards
promulgated today are based primarily
on the data for soil treatability found in
EPA's Soil Treatment  Database (SDB).
See, Best Demonstrated Available
Treatment Background Document for
Hazardous Soils, August 1993 and LDR
Phase 2 proposal at 58 FR 48122, Sept.
14, 1993. Data from the soil treatment
database are corroborated by more
recent performance data for non-
combustion treatment of remediation
wastes. See Soil Treatability Analysis:
Analysis of Treatability Data for
Contaminated Soil Treatment
Technologies (April 1998, USEPA) and
references cited in note 5 below.
  The soil treatment data base contains
6,394 pairs of data points (for the same
sample, one datum for untreated soil
and one datum for treated soil)
describing the treatment of hazardous
constituents in contaminated soils
managed under the RCRA and the
Superfund programs. After screening
the database to eliminate data from tests
reflecting poorly designed or operated
treatment, tests where EPA believes
inappropriate technologies were applied
(for example, data from immobilization
of organic constituents) and other
inappropriate data, the Agency was left
with 2,541 pairs of data points. These
data pairs depict treatment of ninety-
four hazardous constituents, including
eighty-five organic constituents and
nine BOAT list metals. The retained
2,541 pairs of data points from the soil
treatment database represent the
treatment of organic and metal
constituents by various technologies
including: combustion, biological
treatment, chemical/solvent extraction,
dechlorination, thermal desorption, air/
steam extraction, photolysis, soil
washing, stabilization, and vitrification.
The soil treatment database includes
performance data from bench, pilot, and
full scale technologies. A complete
discussion of the Agency's method for

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               Federal Register/Vol.  63,  No. 100/Tuesday, May 26,  1998/Rules and Regulations
                                                                     28611
 screening the Soil Treatment Database
 can be found in the LDR Phase II
 proposal (58 FR 48129-31. September
 14, 1993) and the Best Demonstrated
 Available Technology Background
 Document for Hazardous Soil (August
 1993).
   A number of commenters were
 concerned that aggregated data, i.e., the
 2,541 pairs of data points representing
 the combined performance of
 combustion and non-combustion
 technologies, may mask the
 performance of non-combustion
 technologies alone. Commenters urged
 EPA to disaggregate these performance
 data to allow for more accurate analysis
 of non-combustion technology
 performance. As a result, EPA has
 disaggregated the combustion and non-
 combustion treatment data for purposes
 of analyzing the achievability of today's
 soil treatment standards. See generally,
 Soil Data Analysis: Soil Treatability
 Analysis of Treatabllity Data for
 Contaminated Soil Treatment
• Technologies (April 1998, USEPA) and
 Additional Information on Treatability
 of Contaminated Soils as Discussed in
 Section VH.B.8. of Phase IV Final Rule
 Preamble (April 1998. USEPA).
   After separating out combustion data,
 the remaining non-combustion soil
 treatment data base is reduced from
 2,541 to 2,143 paired data points. These
 2,143 *2 data pairs depict the treatment
 of 72 organics23 and nine metals in
 contaminated by biological treatment,
 chemical and solvent extraction,
 dechlorination, thermal desorption, air
 and steam stripping, hydrolysis,
 photolysis, soil washing, and
 stabilization.
   As discussed earlier in today's
 preamble, EPA did not use the
 traditional BOAT approach to develop
 the soil treatment standards. Instead, the
 Agency evaluated data from the 2,143
 non-combustion data pairs in the soil
 treatment database to identify,
 generally, the level of performance non-
 combustion soil treatment technologies
 achieve. In light of our multi-faceted
 objectives regarding remediation of
 contaminated soils (discussed earlier in
 this preamble), this approach and
 methodology are appropriate. As noted
 earlier In today's preamble, the
 numerical values chosen for soil
 treatment standards—90% reduction
  ** One single datum from the vitrification of.
 p.p'DDT was not Included since It appears to have
 mulled from treatment that was not optimally
 designed or conducted.
  a Out of 85 organic constituents, only 13 were
 treated exclusively by combustion. See. however,
 the discussion later In this preamble with regard to
 presence of data from Incineration and
 extrapolation of data among organic constituents.
capped at ten times the UTS—are
within the zone of reasonable values
from which the Agency can properly
select.
  For soil contaminated with organic
constituents, the retained 2,143 data
pairs from the soil treatment database
show generally that soils with moderate
levels of contamination are more
amenable to treatment by non-
combustion technologies than soils with
high levels of contamination. However,
the data also show that the soil
treatment standards promulgated today
can be achieved by non-combustion
technologies even in cases when soils
contain elevated levels of harder-to-treat
organic hazardous constituents, such as
dioxins and furans, polychlorinated
biphenyls (PCBs), and polynuclear
aromatics (PNAs). The available data on
the performance of non-combustion
technologies suggest that some
technologies are more effective with
certain organics within specific families
or chemical functional groups. For
example, while many organic treatment
technologies were effective in removing
volatile organics from the soils,
dechlorination is more effective than
other non-combustion treatment
technologies for treating chlorinated
organics. For soil contaminated by
metals, the retained 2,143 data points
from the soil treatment database show
that metals can typically be treated via
stabilization to meet the soil treatment
standards.
  Although, for the reasons discussed
earlier in today's preamble, EPA has
elected to base the soil treatment
standards on the performance of non-
combustion technologies, combustion of
soil is not prohibited. This is consistent
with all other numerical treatment
standards, which can likewise be
achieved through use of any technology
(other than impermissible dilution). It
may be that combustion  is, in fact,
chosen as the remedial treatment
technology at certain sites, most likely
because of economic considerations
(such as in the case of low soil volumes
where on-site treatment units are not
economically viable). Selection of the
best treatment technology for the
specific soil type and range of
contaminants present at  any given
remediation site is a site-specific
decision assuming, for soils subject to
the LDRs, that  the selected technology
does not involve impermissible dilution
and that today's soil treatment standards
are met. Further details about the results
of EPA's examination of  treatment
technologies for different groups of
contaminants are discussed in the
succeeding sections.
  a. Comments. Many commenters
expressed concern that the retained
2,541 data points from the soil treatment
database might not adequately address
the many types of soils and
contaminated site scenarios that may
arise in the field. Among other things,
these commenters asserted that: (1) the
list of chemical organic constituents for
which EPA has data may be too small
to extrapolate to other organics in the
list of underlying hazardous
constituents that must meet treatment
standards; (2) for organic constituents,
many of the treatment test results
examined by EPA involved mostly
combustion rather than non-combustion
technologies; (3) for soils with multiple
hazardous constituents and other
complex soil matrices, the soil treatment
standards could only be met via
incineration; and, (4) EPA should not
pool data from bench, pilot, and full
scale treatment applications. For the
most part, these commenters suggested
that EPA either exempt hazardous
contaminated soil entirely from a duty
to comply with land disposal restriction
treatment standards or, if hazardous
contaminated soil were to remain
subject to LDRs, allow risk-based
treatment standards to be developed
entirely on a site-by-site basis pursuant
to state oversight.
  EPA closely considered these
comments and carefully re-evaluated
the data from the soil treatment database
as well as other data from more recent
sources. These evaluations are
summarized in the background
documents for today's final rule. EPA is
not, at this time, taking action to
categorically exempt large volumes of
hazardous remediation waste (including
contaminated soil) from RCRA
hazardous waste management
requirements and, therefore, the issue of
achievability of today's soil treatment
standards is germane.
  Notwithstanding the treatment results
described in this section below, which
support the achievability of today's soil
treatment standards, EPA realizes that
national, technology-based treatment
standards are sometimes not achievable
because of site- and waste-specific
characteristics. Thus, EPA has long
provided for treatment variances under
these circumstances (see 40 CFR
268.44). In addition, because EPA and
authorized states are in a position
during remediation to make site-specific
risk-based minimize threat
determinations, the Agency is also
adopting in today's rule a new type of
variance for contaminated soils. This
variance can be granted if, on a case-by-
case basis, it is determined that the
technology-based treatment standard

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Federal Register/Vol. 63, No.  100/Tuesday,  May 26, 1998/Rules and  Regulations
would prompt treatment beyond the
point at which threats are minimized.
  Fundamentally, EPA agrees with
many commenters that today's land
disposal treatment standards for
contaminated soil may not remove all of
the barriers RCRA can impose on
efficient and aggressive site
remediation. As discussed earlier in
today's preamble, the Agency hopes the
application of RCRA Subtitle C
requirements to remediation of
contaminated soils and other wastes
will be addressed through legislation. If
there is no legislative action, EPA may
choose to take additional regulatory
action, which may include either a re-
examination of the application of LDRs
to contaminated soil or other
                        remediation wastes or a re-evaluation of
                        today's soil treatment standards, or
                        both. In the meantime, today's rule
                        represents a significant improvement
                        over the current practice of applying the
                        treatment standards developed for pure
                        industrial hazardous waste to
                        contaminated soil.
                          b. Analysis of Data from the Soil
                        Treatment Database. The soil treatment
                        standards promulgated today are based
                        EPA's Soil Treatment Database (SDB).
                        See, Best Demonstrated Available
                        Treatment Background Document for
                        Hazardous Soils (August 1993);  LDR
                        Phase 2 proposal (58 FR 48122, Sept. 14,
                        1993); and Soil Treatability Analysis:
                        Analysis of Treatability Data for
                        Contaminated Soil Treatment
Technologies (April 1998, USEPA)
(hereinafter, this document is referred to
as the "Soil Treatability Analysis
Report"). General concerns about the
soil treatment database (and in
particular, concerns about achieving the
10 times UTS or 90% reduction
standard) are addressed here. Results of
our analysis of the soil treatment
database data on treatment performance
for various technologies are shown in
Table 1 below. Results of additional
analysis for' various organic and metal
contaminant groups are shown in Tables
2-5 below. Further details of the
analysis and additional findings are
contained in the technical background
documents in this docket.
                TABLE 1 .—SUMMARY OF TREATMENT RESULTS PER TECHNOLOGY IN SOIL DATA BASE24
Treatment technology
Biological Treatment 	 	
Chemical Treatment 	

Stabilization 	
Stripping 	
Washing 	
Thermal Desorption 	
Total 	
Total paired data
points in the soil
data base
250
242
154
269
236
35
957
214325
Untreated
Data points
meeting 10 times
UTS standard
86
58
53
140
88
10
338
773
Treated
Data points
meeting 10 times
UTS but not 90%
reduction stand-
ard
176
226
134
250
206
21
833
1846
Data points
meeting 90% re-
duction but not
10 times UTS
standard
168
206
100
239
103
14
759
1589
Data points
meeting both 10
times UTS and
90% reduction
standards
109
200
84
232
103
11
692
1431
Data Points fail-
ing both 10 times
UTS and 90%
reduction stand-
ards
15
10
4
f2
30
11
57
139
  In aggregate, the results on Table 1
indicate that the Agency's selection of
standards are within the range of
reasonable values for non-combustion
technologies to achieve. These data
show that 139 (or 6%) paired data
points out of 2143 would fail to meet
the 10 times UTS or 90% reduction
standard. Among possible reasons for
these treatment performance deviations
are that some soil samples represent
cases in which the selected technology
was not appropriate for the range of
hazardous constituents in an organic
chemical admixture. A better selection
of treatment technology may include
either a more aggressive non-
combustion technology or may involve
use of two or more technology trains in
order to meet the soil treatment
standards. It is common practice to
employ multiple treatment trains at
facilities that have complex chemical
  24 For discussion of these treatment data, see Soil
TreatabUity Analysis Report, and Extrapolation of
Treatment Performance Data in the Soil Data Base
Among Hazardous Constituents in Contaminated
Soils (April 1998, USEPA).
  25 As noted earlier. EPA examined in detail up to
2,541 pairs of data points in total, and the number
of non-combustion data pairs examined is 2,143.
                        mixtures or soil textures at a site. As
                        further explained in succeeding sections
                        of this preamble and in various
                        background documents, EPA believes
                        that the hazardous soil treatment
                        standards promulgated today are within
                        a regime of reasonable treatment levels
                        normally achieved by non-combustion
                        technologies. See, e.g., Soil Treatability
                        Analysis Report and Extrapolation of
                        Treatment Performance Data in the Soil
                        Data Base Among Hazardous
                        Constituents in Contaminated Soils
                        (April 1998, USEPA).
                          (1) Concerns About Presence of Data
                        from Incineration and Extrapolation of
                        Data to Other Constituents. As
                        mentioned earlier, EPA has segregated
                        the available treatment data (2,541
                        paired data points) so that we can better
                        examine the 2,143 paired data points
                        describing the treatment of hazardous
                        soils by non-combustion technologies.
                        Although 50 organic constituents in the
                        original 2,541 paired data points were
                        treated by combustion (i.e.,
                        incineration), only 13 of these 50
                        organics were treated exclusively by
                        combustion. These 13 hazardous
                        constituents are: 1,2,4-trichloro-
                        benzene; p,p'-DDD; p.p'DDE; 2,4-
dichlorophenol; methoxychlor; 2,4,6-
trichlorophenol; 2,4,5-trichlorophenol;
carbon tetrachloride; chloroform;
hexachloroethane; l,2-dibromo-3-
chloro-propane; isodrin; and gamma-
BHC. None of the data describing
combustion of these 13 constituents or
the other 37 organics (for which there
are some combustion results) were
relied upon in assessing achievability of
today's hazardous soil treatment limits.
  With respect to commenters' concerns
about extrapolating the SDB data to
organic and inorganic constituents that
will need to be treated, EPA analyzed
the various non-combustion
technologies and their average treatment
efficiencies against various chemical
clusters and chemical functional groups
of hazardous constituents.  See: (1)
Extrapolation of Treatment Performance
Data in the Soil Data Base Among
Hazardous Constituents in
Contaminated Soils (April  1998,
USEPA);  (2) Derivation of Treatment
Achievability Results of Organic
Functional Groups and Types of
Compounds (April 1998, USEPA); (3)
Soil Treatability Analysis Report
(USEPA,  1998);  and (4)  Additional

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               Federal  Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and  Regulations
                                                                     28613
 Information on Treatability of
 Contaminated Soils as Discussed in
 Section VII.B.8. of the Final Rule
 Preamble (April 1998, USEPA).
   The results are summarized in Tables
 2-5 below. These results show that non-
• combustion technologies can achieve
 today's soil treatment standards. 93.5%
 (2,004 of the 2.143 data pairs) of the
 treatment test results meet the 10 times
 UTS or 90% reduction standard.
 Furthermore, non-combustion
 technologies can meet the soil treatment
 standards even In cases when soils
 contain elevated levels of harder-to-treat
 organic hazardous constituents,  such as
 dloxins and furans, polychlorinated
 blphenyls  (PCBs), and polynuclear
 aromatics (PNAs). See Appendix D in
 Soil Treatability Analysis Report.
   As noted earlier, available data on the
 performance of non-combustion
 technologies treating organics also show
 that some technologies are more
 effective with certain organics within
 specific families or chemical functional
 groups, e.g., organic treatment
 technologies removing volatile organics
 from the soils and dechlorination
 removing halogenated organics.
 Treatability tests at certain complex
 sites corroborate these findings of
 achlevability from the SDB.
   Regarding organics, at the Ninth
 Avenue Dump Site in Indiana,
 hazardous soils were contaminated with
 low to moderate concentrations of
 PNAs, aromatics, chlorinated aliphatics,
 and phthalates.  Untreated constituents
 showed concentrations that were about
 the same or up to two orders of
 magnitude higher than today's soil
 treatment standards.26 Among the  '
 volatlles were toluene (1,100 ppm), total
 xylene (2,100 ppm), ethylbenzene (420
 ppm), 1.1,1-trichloroethane (120 ppm),
 trlchloroethene  (93 ppm),
 tetrachloroethene (380 ppm), 1,1-
 dlchloroethane (81 ppm), and
 methylene chloride (800 ppm). The
 following semivolatile organics-PNAs
 (and their highest concentration) were
 phenanthrene (92 ppm) and
 naphthalene (84 ppm). Bis(2-ethylhexyl)
 phthalate, a semivolatile phthalate, was
 reported at 110 ppm. The soil particle
 distribution of the contaminated soil
 was not quantified, but the soil was
 reported as comprised primarily of sand
 and silt. Biotreatment achieved the
 following average treatment reduction
 efficiencies:
   • Volatile chlorinated aliphatics—
 99.9%;
  14 The following constituents were present at
 kvels bctow the soU treatment standards: fluorene,
 fluoramhcnc, pyrcnc, acenaphthalene,
 bcnzo(a}*nthraccne, chrysene. dl-n-butyl phthalate.
 and dlpbenylnltrosamlne.
  • Ethylbenzene—100%;
  • Volatile aromatics—99.9%;
  • Semivolatile PNAs—97.4%;
  • Bis(2-ethylhexyl)phthalate—93.2%.
  Regarding complex metal
remediations, the full-scale stabilization
study conducted at the Portable
Equipment Salvage Company, a
transformer and metal salvage operation
in Oregon, involved untreated levels of
lead up to 880 mg/1 (TCLP) and zinc up
to 71 mg/1 (TCLP). Organics were also
present—the highest sample showing
610 mg/1 lead (TCLP), 14,000 ppm oil
and grease, 41,000 ppm total organic
carbon, and 7.1 pH. The facility
conducted treatability studies on three
soil textures found at the site: (1) sandy
loam, (2) loamy sand, and  (3) loam. The
stabilized sandy loam sample showed a
concentration of 0.5 ppm lead, a 99.72%
reduction efficiency. The facility also
treated two samples of loamy sand, one
to 47 mg/1 lead (TCLP) (a 93.65%
reduction efficiency) and the other to
2.5 mg/1 lead (TCLP) (a 99.72%
reduction efficiency). The treated loam
sample showed 0.10 mg/1 lead, a
99.97% reduction.
  More information underlying EPA's
rationale for extrapolating the available
treatment performance data to other
organic and inorganic hazardous
constituents regulated under the land
disposal restrictions can be found in the
RCRA Docket for this rule (see
Appendix D in Soil Treatability
Analysis Report) and memorandum to
docket on extrapolation of treatment
performance data among different
hazardous constituents.
  Finally, we note that even though
there were treatment data on soils
containing cyanide in the larger data
base (6,394 paired data points), none of
the retained 2,541 or 2,143 paired data
points  included treatment data on
cyanide. However, the current UTS for
cyanide is based on the performance of
alkaline dechlorination, a non-
combustion technology. Cyanides can
form complexes with metals and
organics and, therefore, technologies
capable of removing both organic and
metals are also able to remove cyanide
from contaminated soils. As a result, it
is reasonable to expect that the average
treatment performance attained by
treating organics in soils will also be
achieved for cyanide-bearing
contaminated soils. We note that, for
example, 90% reduction can be
achieved based on the performance
efficiency that thermal desorption
attained in removing PNA's (with more
than five rings)  and chlorinated organics
from contaminated soil. These
constituents are among the hardest
chemical species to remove via thermal
 desorption. For these reasons, the
 Agency has concluded that today's soil
 treatment standard for cyanide can be
 achieved by a non-combustion
 technology as well.
   (2) Technology Scale and Soil
 Variability Issues. As noted earlier,
 several commenters objected to EPA's
 pooling of treatment data from pilot,
 bench, and full scale processes, and
 urged EPA to consider only performance
 data from full-scale field studies
 characterizing the treatment of soil
 volumes. EPA prefers, generally,  to rely
 on full scale studies for the purpose of
 developing and promulgating treatment
 standards, and this is true with respect
 to the soil treatment standards as well.
 However, in this case as well as in many
 prior LDR treatment standard efforts,
 EPA's data base includes more than just
 full scale data upon which EPA can
 properly rely. Bench and pilot scale
 technologies can be appropriately
 considered by EPA (and EPA has
 historically done so)  in setting treatment
 limits as long as full  scale operations of
 the treatment system under
 consideration exist or have been
 demonstrated on wastes/soils. Except
 for hydrolysis,27 the technologies in the
 SDB are demonstrated full scale,  and  the
 administrative docket contains bench,
 pilot, and full scale studies that reflect
 the Agency's field experiences at
 contaminated sites.
  Furthermore, in this rulemaking,
 given the variability of hazardous soils
 (in terms of types, concentrations and
 numbers of hazardous constituents and
 soil matrices), plus the special policy
 considerations associated with
 remediations, the Agency is adopting
 treatment standards from the zone of
 reasonable values that could be
 permissibly selected based upon the
 treatment performance data. Thus, the
 data are not being used so much to
 establish a precise performance level as
 to confirm the typical achievability of
 the promulgated standards, i.e., ten
 times UTS or 90% reduction.
  With respect to the SDB and
 commenters' concerns about the impact
 of soil variability on achievability of the
 soil treatment standards by non-
 combustion technologies, EPA collected
 6,394 pairs of data point describing the
 treatment of various hazardous soils.
  "Hydrolysis can be of normal occurrence or
Intentionally Induced at hazardous waste sites. EPA
does not have full-scale ex-sltu demonstration
studies on this technology but considers the data in
the SDB to be indicative of what levels can be
achieved.

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28614
Federal  Register/Vol.  63,  No. 100/Tuesday, May 26. 1998/Rules and Regulations
The retained 2,143 non-combustion
paired data points are reasonably
sufficient to adequately describe the
treatment of metal, organics, and
multiple metal and organic
contamihants that are frequently found
at different type of sites, including both
Superfund and RCRA sites. For
instance, the SDB has treatment data on
soils with varying textures including top
soils, silty/loam soils, and clay soils. For
the 14 different soil type groupings
analyzed, only .139 out of 2,143 data
pairs (about 6.5%) would not meet
today's soil treatment standards (see
Appendices C and D in Soil Treatability
Analysis Report).
  With respect to these 6.5% data pairs,
several potential reasons exist to explain
why 90 % reduction or 10 times UTS
level might not have been achieved.
First, the treatment study objectives may
not primarily have been to test whether
these standards could be met. For
example, the treatment study may have
been designed either to assess the
feasibility of using a particular (but not
necessarily optimum) technology on a
particular contaminated soil, or to  meet
a prescribed risk-based level under a
RCRA or CERCLA site remediation plan.
  Second, a treatment technology'may
have been applied to soils contaminated
with multiple hazardous constituents
where the technology may have been
inappropriate for a subset of those
contaminants  (and for which data were
reported anyway). For example, air
stripping is a technology that operates
best on volatile organics within a given
range of Henry constant values. In
contrast, air stripping of semivolatile
organics and metals is expected to be
much poorer.  (In this type of situation,
a technology amendment or treatment
train may be appropriate, i.e., air
stripping may be improved if steam
stripping is applied  first to enhance the
pool of semivolatiles that can respond to
the physical separation treatment
process.)
  Third, these treatment data likely
include instances when a treatment
technology encountered soil
heterogeneities that resulted in
undertreatment of portions of the soil.
For instance, during the clean up of
contaminated debris and soils, detailed
sampling protocols are typically
developed to ensure that desired
treatment constituent concentrations are
met because of the deleterious impact of
heterogeneous soil strata and the
presence of debris on treatment
technology performance. Re-processing
can often be required to comply with
the applicable treatment standards.
                         Another alternative is to optimize
                         specific technology operating
                         parameters that can enhance the ability
                         of the technology to meet the prescribed
                         treatment limits. Optimization can
                         involve: (1) feeding the correct soil/
                         debris particle size fractions to the
                         treatment system, (2) creating more
                         turbulence between soil and gaseous/
                         liquid treatment fluids, (3) using a
                         greater-than-normal amount of chemical
                         agents, (4) operating at the higher end of
                         an operating temperature range, (5)
                         adjusting the pH of the soil, (6) adding
                         adequate pre-/post-treatment steps that
                         address specific contaminants that may
                         be expected to receive sub-optimal
                         treatment, or (7) allowing longer
                         residence time in the treatment unit.
                           It is not possible to determine
                         precisely how many of these techniques
                         were used in the 139 instances that
                         failed the 90% reduction or 10 times
                         UTS levels. However, EPA expects that
                         not all optimization measures were used
                         since the operators of the treatment
                         technologies did not have as their
                         primary objective the attainment of
                         these particular levels, which are being
                         adopted today as the soil treatment
                         standard. On balance, the weight of
                         evidence and analysis from the SDB are
                         believed to reasonably indicate that
                         today's standards are achievable for
                         soils that may exhibit variability,
                         particularly if optimization techniques
                         or treatment technology trains are fully
                         considered. Of course, should an
                         unusual situation present itself in which
                         these measures are not successful, a
                         treatment variance can be sought  under
                         40 CFR 268.44(h) or under the risk-
                         based variance provisions being adopted
                         in today's rule.
                           Furthermore, EPA has a number of
                         bench and pilot studies on the treatment
                         of contaminated soils from wood
                         preserving, petroleum refining, and
                         electroplating sites, which contain a
                         wide range of constituents such as
                         polynuclear aromatic, phenolic,
                         chlorinated organics, spent solvents,
                         creosote, and metals. It is reasonable to
                         expect that these treatment results,
                         showing achievability, also lend support
                         to the conclusion that treatment at other
                         RCRA and Superfund sites, containing
                         these types of complex contaminant and
                         soil variability scenarios, can be
                         expected to achieve today's soil
                         treatment standards.28 See also Chapter
                         4 in Soil Treatability Analysis Report.
  Pooled bench, pilot, and full scale
data in the SDB are expected to depict
what the various treatment technologies
can achieve for other hazardous soils
managed under CERCLA and RCRA. As
noted earlier, non-combustion
technologies will behave better on a
given range or class of organic and metal
constituents. A given range of soil
characteristics that may inhibit
treatment performance can be amended
to facilitate the treatment of hazardous
soils.  Available information on other
full scale operations of the tested
technologies demonstrate that
optimization techniques can be used to
overcome potential soil interferences
and thus attain, generally, treatment
design objectives. Hence, it is important
to carefully evaluate the characteristics
of each site against the expected
capabilities of various non-combustion
technologies, which are summarized
below.
  (3) Performance Data for Organic
Constituents. EPA's conclusions with
respect to achievability of soil treatment
standards for organics in hazardous
soils are based on the performance of
biological treatment, chemical
extraction, dechlorination, soil washing,
thermal desorption, and soil vapor
extraction. Other treatment technologies
capable of achieving the treatment
limits (such as combustion) are not
prohibited except for those that may
constitute impermissible dilution.
Tables 2 and 3 below provide an
overview of the number of data points
and the average treatment efficiency
ranges that each of the technology
categories achieved. Also, each Table
below reports the range of test scales as
well as the available treatment
performance data per major chemical
family category/cluster assigned to
chemical  constituents in the BOAT List.
(For the whole list of BDAT constituents
and their classification, see Appendix B
in the BDAT Background Document for
Hazardous Soils, August 1993.) Further
details and discussion on the results for
major chemical family categories/
clusters is contained in the docket.
                           28 See (1) Remediation Case Studies:
                         Bioremediation and Vitrification July 1997. EPA
                         542-R-97-008 orPB97-177554; (2) Remediation
                         Case Studies: Soil Vapor Extraction and Other In
                         Situ Technologies. July 1997, EPA 542-R-97-009 or
NTIS PB97-177562; (3) Analysis of Selected
Enhancements for Soil Vapor Extraction, September
1997, EPA-542-R-97-007; (4) Remedial Case
Studies: Thermal Desorption. Soil Washing, and In
Situ Vitrification, March 1995. EPA 542-R-95-005
or NITS PB95-182945; (5) Remediation Case
Studies: Soil Vapor Extraction, March 1995, EPA
542-4-95-004 or NTIS PB95-182937; and (6)
Remediation case Studies: Bioremediation, March
1995. EPA 542-R-95-002 or NTIS PB95-182911.

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                Federal Register/Vol. 63, No. 100/Tuesday, May 26,  1998/Rules  and  Regulations
                                                                           28615
          TABLE 2,—SUMMARY OF NONTHERMAL TREATMENT PERFORMANCE DATA ON GROUPS OF ORGANIC HAZARDOUS CONSTITUENTS29
BOAT organic ck»:ar
VOftffM . . , 	 r ,,t -,trt
StniirVolatl** ,„..,*»„.,,,.„„.,„».....,«.«..„....„«..»
PD*mxyac*fc Add P«s«*ii 	 	
Orgtno Ptiotptotou* IrtMe&kte**' ...............
PotydtMntM Btphtnyt* — ,™ 	
Dtatln* and Furara — ........
Total Nurobaf ol Data PoJnU .,..,„..,„'.„.„.
Bfotreatmont scale:
0.01 kg to 1,250,000 kg
Data
points
48
185
12
Nona
Nona
None
None
245
Average removal
efficiency
>99% 	 „ 	
55-98.2% » 	
16.7—70.2% 	
None 	
None
None 	 	
None 	
	 - 	
Chemical extraction scale:
0.0075 kg to 37,000 kg
Data
points
9
163
None
None
None
52
12
236
Average removal
efficiency
>99% 	
62-98.8% 	
None 	
None 	
None 	
71.5%-99.9% 	
40->97% 	


Dcchlorinalion scale:
0.1 kg to 127,913 kg
Data
points
13
2
13
9
None
69
48
154
Average removal
efficiency
96.3 to 99.3% 	
99.8% 	
>95.2% 	
98.6-99.0% 	
68.8-97.1% 	
73.7->99.8% 	

Soil washing scale:
0.08-204 kg
Data
points
None
13
None
None
None
1
7
21
Average removal
efficiency
None 	
81.8-97.2% 	
None 	
None
None 	
88.5%32 	
84.8% 	


Hydrolysis scale:
0.1 kg to 2.75 kg
Data
points
None
None
2
None
None
None
None
2
Average removal
efficiency
None
None
67.9-91.7%
None
None
None
None
     TABLE 3.—SUMMARY OF THERMAL PERFORMANCE DATA ON GROUPS OF ORGANIC HAZARDOUS CONSTITUENTS33
BOAT organic cluster
Volatile s 	 .'. 	 	
Sofnivo{£ktil6sM . ,,1S . 4 „ 	 	 	 	 	

PtisnoxyQciitic Acki Pesticides . 	

PoiychrOfinatsd Bfphenyls
Dioxkts &nd Fuf&ns 	 , 	
Total Number of Data Points 	

Thermal desorption34 scale: 21.6 kg to
3,823,000 kg
Data points
293
614
12
None
None
1
37
957
Average removal efficiency
79.2-99.9% 	
50-99.4% 	
88.5-98.8% 	
None 	
None 	
87.5% 	
85.6-97.6% 	


Soil vapor extraction scale:
4.5 kg to >1, 000 kg
Data points
189
47
None
None
None
None
None
236
Average
removal
efficiency
44-99.2%
0-57.2%
None
None
None
None
None
  As shown on Tables 2 and 3, EPA
lacks performance data for the thermal
  MFor« discussion of these treatment data, see the
Soil Treatment Achlcvabllity Report: Extrapolation
of Treatment Performance Data In the Soil Data
Base Among Hazardous Constituents In
Contaminated Soils (April 1998. USEPA): and the
Additional Information on Treatablllty of
Contaminated Soils as Discussed In Section VII.B.8.
of Phase IV Final Rule Preamble, (April 1998.
USEPA). These documents Indicate the numbers
»nd types of data pairs that meet the 10 times UTS
level, both prior to treatment and after the treatment
described in the table.
  30 Cyclical hydrocarbons with more than five
rings undergo lower reduction efficiencies.
  91 EPA Is transferring the available performance
data from the chemical extraction and the biological
treatment of (semlvolatlle) polar nonhalogenated
organic* In the hazardous solid treatment data base.
Thus, the columns are Intentionally left blank.
  M Only one test was performed.
  13 For a discussion of these treatment data, see the
Soil Treatment Achlevabiliry Report; Extrapolation
of Treatment Performance Data In the Soil Data
Base Among Hazardous Constituents In
Contaminated Soils (April 1998. USEPA) and the
Additional Information on Treatablllty of
Contaminated Soils as Discussed In Section VII.B.8.
of Phase IV Final Rule Preamble. (April 1998.
USEPA), These documents Indicate the numbers
•ml (ypcs of data pairs that meet the 10 times UTS
level, both prior to treatment and after the treatment
described In the table.
  M The term thermal desorption. as used In this
Ubte, Is a general description of various thermal
or non-thermal treatment of four organic
constituents classified in the BOAT list
as organophosphorous insecticides.
These four constituents are disulfoton,
famphur, methyl parathion, and
phorate. However, we can determine
achievability for these four organic
constituents based upon the transfer of
treatment data for other, similarly
difficult to treat organics. Because of
structural and chemical similarities,
these four organophosphorous
compounds are expected to behave
similarly during treatment to other polar
nonhalogenated phenols, phenyl ethers,
and cresols. Thus, EPA believes that
these four organophosphorus
compounds can be treated by the same
technologies as other polar
nonhalogenated organic compounds, for
techniques. No conclusion may be drawn about the
regulatory status or classification of a particular
thermal desorber from the Inclusion of treatment
data from that device in this column.
  35 The performance of combustion and soil vapor
extraction is less effective in treating semivolatile
organics that contain aromatic and heterocyclical
structures. The same is true for and nonvolatile
chlorinated organics.
  36 EPA is transferring the available performance
data from the chemical extraction and the biological
treatment of (semivolatile) polar nonhalogenated
organics In the hazardous soil treatment data base.
which EPA has data. Therefore, based
on the available data for polar
nonhalogenated compounds, EPA
concludes that the treatment standards
for soils contaminated with these four
organophosphorous compounds can be
achieved by biodegradation, chemical
extraction, and thermal desorption
(semivolatiles).

(4) Other Indicia of Achievability for
Organic Constituents

   EPA also re-analyzed certain portions
of the SDB with regard to ability of
various technologies to meet today's soil
treatment standards by looking more
closely at organic treatability groups
based on the structural features of the
hazardous constituents of concern. The
results of this analysis, presented in
Table 4 below, corroborate those in
Tables 1-3 and EPA's conclusion that
the soil treatment standards—ten times
UTS or 90% reduction—are within the
zone  of reasonable values that could
have  been selected. For further
information on the derivation of Table
4, see the background document entitled
"Derivation of Treatment Achievability
Results for Organic Functional Groups
and Types of Compounds."

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 28616
Federal Register/Vol.  63, No. 100/Tuesday,  May  26, 1998/Rules and  Regulations
     TABLE 4.—TREATMENT EFFICIENCY—PERCENT REDUCTION RANGES BY TECHNOLOGY FOR VARIOUS FUNCTIONAL
                                                         GROUPINGS
                        [Average percent reduction in brackets; number of data points analyzed in parentheses?7
Treatability group
Halogenated Nonpolar Aromatics
Dioxins, Furans, PCBs, and Precursors ...
Halogenated Phenols, Cresols, and Other
Polar Aromatics 	 .....
Halogenated Aliphatics 	
Halogenated Cyclic Aliphatics, Ethers,
Esters and Ketones 	
Nitrated Aromatics and Aliphatics 	
Simple Nonpolar Aromatics and
Heterocyclics 	
Polynuclear Aromatic Hydrocarbons 	
Other Nonhalogenated Polar Organics ....
Biological
treatment
52.05-99 97
[76.01]
(2)
none
45.1-95.14
[81.05]
(5)
99.87-99.99
[99.91]
(3)
9.76-99.77
[60.99]
(8)
none
99.97-100
[100]
(10)
5.13-99.85
[67.15]
(75)
none
Chemical
extraction
8042
[80.42]
(D
14.88-99.97
[90.13]
(40)
63.83-93.18
[79.46]
(3)
86.62-94.81
[91.09]
(3)
none
none
77.41-99.92
[90.77]
(6)
51 .55-99.98
[95.72]
(125)
75.96-99.82
[98.35]
(28)
Dechlorination
9905-100
[99.53]
(2)
91.66-99.88
[97.94]
(20)
none
89.06-100
[97.54]
(7)
none
none
96.39-100
[98.61]
(10)
10.92-97.42
[67.47]
(3)
90.81-99.89
[95.13]
(10)
Thermal
desorptionM
29.19-100
[95.31]
(29)
98.9-100
[99.57]
(17)
2.71-99.93
[56.21]
(15)
36.88-100
[96.49]
(80)
none
none
22.68-100
[94.3]
(158)
10.14-100
[94.19]
(301)
2.6-99.98
[82.04]
(36)
Soil washing
66.21-95 6
[85.41]
(4)
none
6.25-99.06
[73.71]
(6)
58.68-99.4
[90.58]
0)
none
none
47.74-99.91
[82.39]
(14)
81.83-92.19
[85.74]
(3)
51.07-99.97
[88.67]
(10)
Other
technologies39
30 13 — 49 68
[42.41]
(3)
none
9621
[96.21]
d)
72-99.68
[95.66]
(6)
none
none
977
[97.7]
(1)
95 9-99 55
[97.73]
(2)
94.59-99.89
[97.24]
(2)
(5) Performance Data for Metal
Contaminants

   Performance data for metals
contaminants are based on the
                           performance of stabilization and
                           chemical extraction (mercury) of soils
                           contaminated with metals. Other metal
                           treatment technologies are not
                           prohibited (except if impermissible
 dilution were to occur). The results of
 EPA's analysis of the data on treatment
 of metals in soils are summarized in
 Table 5 below.
                TABLE 5.—SUMMARY OF PERFORMANCE DATA FOR HAZARDOUS METALS CONSTITUENTS40
BOAT metals clus-
ter
Metals
Total

Stabilization scale: bench, pilot, and full
scale
Data
Points
269
269
Average removal effi-
ciency
91 1-99 8%


Chemical extraction
scale: pilot
Data
points
4
4
Average removal effi-
ciency
977%41


Soil washing
scale: bench & pilot
Data
points
14
14
Average removal effi-
ciency
17.9-97.2%
  The results in Table 5 corroborate
EPA's conclusion that the soil treatment
  37Table based on data from "Delivery of Graphs
and Data Tables Showing Corrected Treated
Concentrations vs. Data Point Number Index for
Selected Constituents," February 19,1992
(Administrative Record of the proposed LDR Phase
2 rules as F-93-CS2P-S0597). See also (1)
Derivation of Treatment Achievability Results for
Organic Functional Groups and Types of
Compounds, April 1998 (USEPA); (2) Additional
Information on Treatability of Contaminated Soils
as Discussed in Section Vn.B.8. of Phase IV Final
Rule Preamble, (April 1998, USEPA); (3)
Extrapolation of Treatment Performance Data in the
Soil Data Base Among Hazardous Constituents in
Contaminated Soils (April 1998, USEPA): and (3)
Soil Treatability Analysis Report (April 1998,
                          USEPA). These documents indicate the numbers
                          and types of data pairs that meet the 10 times UTS
                          level, both prior to treatment and after the treatment
                          described In the table.
                            38 The term thermal desorption, as used in this
                          table, is a general description of various thermal
                          techniques. No conclusion may be drawn about the
                          regulatory status or classification of a particular
                          thermal desorber from the inclusion of treatment
                          data from that device in this column.
                            39 These include air stripping, photolysis, and
                          treatment trains.
                            40 For a discussion of these treatment data, see the
                          Soil Treatment Achievability Report; Extrapolation
                          of Treatment Performance Data in the Soil Data
                          Base Among Hazardous Constituents in
                          Contaminated Soils (April 1998, USEPA); and the
                          Additional Information on Treatability of
                          Contaminated Soils as Discussed in Section VII.B.8
standards—ten times UTS or 90%
reduction—are within the zone of
reasonable values that could have been
selected. For further information on the
derivation of Table 5, see Soil
Treatability Analysis Report.
  With respect to multiple metal
constituents or organometallic
constituents in a contaminated soil, we
of Phase IV Final Rule Preamble, (April 1998,
USEPA). These documents indicate the numbers
and types of data pairs that meet the 10 times UTS
level, both prior to treatment and after the treatment
described in the table.
  41 Available data are exclusively for the treatment
of mercury on soils.

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              Federal Register/Vol.  63,  No. 100/Tuesday, May 26, 1998/Rules and Regulations
                                                                     28617
recognize that a situation may call for
tvvo or more treatment technology trains
to achieve the treatment standards
promulgated today (e.g., one treatment
for organics and another for metals).
This must include proper consideration
of the order in which various treatment
processes should be applied to the
contaminated soil so that treatment
effectiveness is optimized. However, if
these considerations have been properly
made and the required treatment
standards are not being met because, for
example, of unique soil matrices or
difficult to treat sites, then we expect
that entitles may elect to seek a
treatment variance pursuant to 40 CFR
268.44(h) or a risk-based soil treatment
variance, which is being adopted in
today's rule.
  c. Data Submitted by Commenters
  At least four commenters submitted
treatment data from studies describing
the performance of innovative and
conventional treatment technologies  on
hazardous soils. DuPont submitted
bench, pilot, and full scale treatment
data from various vendors describing
the operation of soil washing. DuPont
asserts these data supports the viability
of soil washing as an innovative
technology for hazardous soils.
  The Environmental Technology
Council (formerly the Hazardous Waste
Treatment Council) submitted full,
pilot, and bench scale treatment data
from various vendors of innovative
treatment technologies and provided an
extensive review of EPA's soil treatment
data base. See document entitled,
Evaluation of Proposed BDAT Soil and
Process Treatment Technologies-
Report to the Hazardous Waste
Treatment Council, November 1993
(filed as document number
CS2P00060.E in Docket No. F-92-
CS2P-FFFFF). Based on the ETC's
technical report and the subsequent
comments of the ETC to the HWIR-
Media rule (see comments from the
Environmental Technology Council,
filed as comment number MHWP 00088
In Docket No. F-92-CS2P-FFFFF). the
ETC believes that today's treatment
standards for hazardous soils are
achievable using thermal treatment.
Although the ETC report stated that EPA
may lack full-scale treatment data for
several innovative or alternative
technologies, the ETC data support
EPA's view that the many full scale
operations of non-combustion
technologies demonstrated in the field
were sufficient to support a view that
the soil treatment standards were
achievable. Further, the ETC pointed to
various examples of how various non-
combustion treatment technologies can
'be better optimized. EPA concurs with
many of those observations on how non-
combustion technologies can be
optimized.
 ' Two other commenters submitted
data in the Phase 2 rule regarding the
performance of non-combustion
technologies—USPCI and Sierra
Environmental Services. USPCI's
performance data describe the treatment
of polynuclear organics in soils via
chemical oxidation followed by
stabilization. These data were
determined to be insufficient to support
a broad national determination that
stabilization of organics can be
considered BDAT for organics.
However, use of organic stabilization
may, in some situations, be a
permissible treatment option since the
LDRs do not specifically prohibit the
use of stabilization or solidification to
treat nonwastewaters containing
hazardous organic constituents. See
Response to Comment Document,
Comment from Chemical Waste
Management, Inc. (No. PH4P-00048).
There are, however, specific
circumstances in which stabilization or
solidification would be considered
impermissible dilution. We expect that,
for these types of situations to be
properly evaluated, it will be necessary
to petition for a treatment variance
under 40 CFR 268.44(h) or under the
provisions for a risk-based soil
treatment variance being adopted in
today's rule. The Agency also is
currently considering whether, in the
near future, to issue guidance on when
stabilization or solidification of organic-
bearing waste is appropriate and when
it may constitute impermissible
dilution.
  Sierra Environmental Services
submitted performance data regarding
the treatment of carcinogenic
polyaromatic hydrocarbons (cPAH) via
bioremediation.  These data are based on
in-situ treatment of a 7.5 acre lagoon
which was divided into two cells.
Although the facility remediated 35
volatile, 65 semivolatile organics, PCBs,
and pesticides, the facility only
submitted data describing the treatment
of major PAHs. Based on the
performance of the biotreatment process
applied to this site, the commenter
argued the proposed treatment
standards, if promulgated as proposed,
would eliminate biotreatment as an
alternative at this facility. EPA
disagrees. Remediation processes that
are applied in-situ do not trigger land
disposal restrictions. If the facility were
biotreating the lagoon sludges ex-situ,
EPA concurs that the facility may be
unable to land dispose the treated
lagoon sludges. We also note that, under
the existing regulations and regulations
being adopted today, the commenter
may be able to avail itself of a treatment
variance, depending on the site-specific
circumstances involved.

9. Applicability of Soil Treatment
Standards and Readability of Final
Regulations
  Many commenters asserted that the
proposed regulations governing
applicability of LDRs to contaminated
soil were difficult to understand and
apply. EPA was persuaded by these
comments and has reformatted the
applicability regulations into an easier-
to-read table. The Agency recognizes
that determining whether or not LDRs
apply to any given volume of
contaminated soil can be complicated.
To further assist program implementors
and facility owners/operators, we will
review and discuss the principles that
govern LDR applicability for
contaminated soil in this section of
today's preamble.
  The following principles informed
EPA's decisions concerning application
of LDRs to contaminated soils.
  First principle: land disposal
restrictions only attach to prohibited
hazardous waste (or hazardous
contaminated soil) when it is (1)
generated and (2) placed in a land
disposal unit.42 Therefore, if
contaminated soil is not removed from
the land (i.e., generated), LDRs cannot
apply. Similarly, if contaminated soil is
removed from the land (i.e., generated)
yet never placed in a land disposal unit,
LDRs cannot apply.43 In other words,
LDRs do not apply to contaminated soil
in situ or force excavation of
contaminated soil. If soils are excavated,
however, LDRs may apply, as discussed
below.
  Second principle: once a decision has
been made to generate and re-land-
dispose contaminated soils, LDRs
generally only apply to contaminated
soils that contain hazardous waste. The
Agency considers soil to contain
hazardous waste: (1) when it exhibits a
  42 As discussed earlier in today's final rule, all
hazardous wastes that were listed or identified at
the time of the 1984 Hazardous and Solid Waste
Amendments to RCRA have been prohibited from
land disposal. EPA is required to prohibit
hazardous wastes listed or identified after 1984
within six months of the wastes' listing or
identification. RCRA Section 3004(g)(4). A table in
40 CFR Part 268 Appendix VII. outlines the dates
of LDR applicablity for hazardous wastes.
  43 Note that, as discussed later in today's
preamble, nothing in today's final rule affects
Implementation of the existing "area of
contamination" policy. Therefore, soil managed
within areas of contamination, even if it is
"removed from the land" within such an area,
would not be considered to be "generated." See the
discussion of the area of contamination policy later
in today's preamble.

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characteristic of hazardous waste; and,
(2) when it is contaminated by certain
concentrations of constituents from
listed hazardous waste. The contained-
in policy is discussed in Section VILE
of today's preamble.
  Third principle: once LDRs attach
(generally, at the point of generation, see
principle (1)) to any given hazardous
waste or volume of hazardous
contaminated soil, the LDR treatment
standards continue to apply until they
are met. This principle comes from
application of the logic of the Chemical
Waste opinion. In that opinion, the D.C.
Circuit held that land disposal
prohibitions attach at the point that a
hazardous waste is generated and
continue to apply until threats posed by
land disposal of the waste are
minimized. Chemical Waste
Management v. EPA, 976 F.2d at 13, 14
and 24. In illustration of this principle,
the court held that (in the case of
characteristic hazardous waste)
elimination of the property that caused
EPA to identify a waste as hazardous in
the first instance does not automatically
eliminate the duty to achieve
compliance with LDRs. As discussed
later in this section of today's preamble,
EPA has determined that, although the
Chemical Waste opinion did not address
contaminated soils per se, it is prudent
to apply the logic of the Chemical Waste
opinion to contaminated soils.
  Using these principles, EPA created
the regulations and table that govern
application of LDRs to contaminated
soils, as discussed below.
  The regulations that address
application of LDRs to soil that exhibits
a characteristic of hazardous waste are
relatively straightforward. Soil that
exhibits a characteristic of hazardous
waste when it is generated is subject to
LDRs and must be treated to meet LDR
treatment standards prior to land
disposal. EPA's conclusion that soil that
exhibits a characteristic of hazardous
waste must be treated to meet LDRs
prior to land disposal derives from a
simple application of the principles
above. First, LDRs have the opportunity
to attach to contaminated soil at the
point of generation (principle (1)) and,
second, under the contained-in policy,
soil that exhibits a characteristic of
hazardous waste must be managed as
hazardous waste (principle (2)) and,
therefore, must comply with LDRs. Note
that, once LDRs have attached to soil
that exhibits a characteristic of
hazardous waste, LDR treatment
standards must be met prior to land
disposal of the soil, even if the
characteristic is subsequently
eliminated (principle (3)).
                           The remainder of today's regulations
                         on application of LDRs to contaminated
                         soil, which are in table form, apply to
                         soil contaminated with listed hazardous
                         wastes. The table lists four scenarios.
                           In the first scenario, soil is
                         contaminated with untreated listed
                         hazardous waste that was prohibited
                         from land disposal when first land
                         disposed (e.g., prohibited hazardous
                         waste that was illegally placed or
                         prohibited hazardous waste that was
                         spilled). In this case, LDRs have already
                         attached to the hazardous waste.
                         Therefore, since LDRs have attached to
                         the waste and threats have not yet been
                         minimized (i.e., treatment standards
                         have not been met), under principle (3)
                         LDRs continue to apply to the waste
                         and, automatically, to any contaminated
                         soil.44 The Agency has concluded that
                         LDRs apply to soils contaminated in this
                         way regardless of whether the soil is
                         determined not to (or no longer to)
                         "contain" hazardous waste either when
                         first generated or at any time in the
                         future. This conclusion comes from
                         application of principle (3): once
                         something is prohibited from land
                         disposal, LDRs continue  to apply until
                         threats to human health and the
                         environment posed by land disposal are
                         minimized regardless of whether the
                         material is at some point determined no
                         longer to be "hazardous."
                           In the next two scenarios, soil is
                         contaminated with hazardous wastes
                         that were not prohibited  from land
                         disposal when first land disposed, but,
                         sometime after land disposal, LDRs have
                         gone into effect. In these cases, whether
                         or not LDRs apply to contaminated soil
                         is governed by a determination of
                         whether or not any given volume of
                         contaminated soil "contains" hazardous
                         waste at its point of generation. If any
                         given volume of soil is determined to
                         contain hazardous waste at its point of
                         generation, LDRs attach (principles  (1)
                         and (2)) and, therefore, the LDR
                         treatment standards must be met prior
                         to placement of such soil in a land
                         disposal unit (principle (3)). If any given
                         volume of soil is determined not to
                         contain hazardous waste at its point of
                         generation, there is no hazardous waste
                         to which a land disposal  prohibition
                         could attach and the soil, thus,  would
                         not be prohibited from land disposal
                          44 EPA is assuming that the waste did not meet
                        a treatment standard when it was placed on the soil.
                        Wastes which meet a treatment standard are no
                        longer prohibited from land disposal and, unless it
                        is determined to "contain" hazardous waste at its
                        point of generation and are subsequently land
                        disposed, soils contaminated by these wastes are.
                        likewise, not prohibited from land disposal. See,
                        RCA section 3004 (m) (2) {hazardous wastes meeting
                        treatment standards are no longer prohibited from
                        land disposal).
 (principles (1) and (2)). (It would be the
 same if a hazardous waste land disposed
 before the effective date of an applicable
 land disposal prohibition were delisted
 when first re-generated. In that case too,
 there would be no hazardous waste to
 which a land disposal prohibition could
 attach and the delisted waste, thus,
 would not be prohibited from land
 disposal.) Note that, under principle (3),
 once  LDRs attach to contaminated soil,
 the treatment standards must be met
 prior to 'land disposal even if the soil is,
 subsequently, determined no longer to
 contain hazardous waste.
  The final scenario requires no
 elaboration; it simply makes clear that if
 soil is contaminated by hazardous waste
 that was never prohibited from land
 disposal, LDRs do not apply. This is
 through application, primarily, of
 principle (2)—LDRs attach only to
 hazardous wastes or soil that contains
 hazardous waste.
  Note that, because LDRs apply to the
 waste "contained-in" soil, and not the
 soil itself (see principle (2)), LDRs do
 not apply to soil that is at any time
 completely separated from its
 contaminating waste (i.e., the soil
 contains no solid or hazardous waste,
 it's "just soil"). One might determine
 that soil contained no solid or
 hazardous waste, for example,  if
 concentrations of hazardous
 constituents fall below natural
 background levels or are at non-
 detectable levels. Such a determination
 would terminate all RCRA Subtitle C
 requirements, including LDRs, since
 waste would not longer be "contained-
 in" the soil.  See September 15, 1996
 letter from Michael Shapiro (EPA) to
 Peter Wright (Monsanto Company),
 making this finding; see also, 61  FR
 18806 (April 29, 1996) and other
 sources cited therein.
  The following examples illustrate
 application of LDRs to contaminated
 soil:
  1. Generator A is excavating soil
 mildly contaminated with wastewater
 treatment sludge (listed waste F006).
The sludge was land disposed before
 1980. The soil does not exhibit a
characteristic of hazardous waste and
has been determined by an authorized
state not to contain listed hazardous
waste. The soil  is not prohibited from
land disposal. This is because,  for LDR
purposes, the point of generation is
when the soil is first excavated from the
land (principle  (1)). Since no prohibited
hazardous waste existed before that time
 (i.e., the contaminating waste was not
prohibited) and the soil does not
contain listed hazardous waste or
exhibit a characteristic of hazardous
waste at its point of generation, there is

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               Federal Register/Vol. 63, No.  100/Tuesday, May 26, 1998/Rules and Regulations
                                                                     28619
no hazardous waste to which a land
disposal prohibition could attach
(principle (2)).
   2. Generator B is excavating soil
contaminated by leaks from a closing
hazardous waste surface impoundment.
The surface impoundment received
listed hazardous wastes K062 (spent
pickle liquor) and characteristic
hazardous waste D018 (wastes that fail
the TCLP test for benzene). The surface
Impoundment stopped receiving K062
waste in 1987 and D018 waste in 1993.
The soil does not exhibit a characteristic
of hazardous waste and  has been
determined by an authorized state not to
contain listed hazardous waste. The soil
is not prohibited from land disposal.
This is because, for LDR purposes, the
point of generation is when the soil is
first excavated from the land (principle
(1)). Since no prohibited hazardous
waste existed before that time (i.e., the
contaminating wastes were not
prohibited) and the soil  does not
contain listed hazardous waste or
exhibit a characteristic of hazardous
waste at Its point of generation, there is
no hazardous waste to which a land
disposal prohibition could attach
(principle (2)).
   3. Generator C is excavating soil
contaminated with listed hazardous
waste F024. The F024 waste was land
disposed after 1991. after it was
prohibited from land disposal, and was
not first treated to meet  applicable land
disposal treatment standards (i.e., it was
illegally land disposed or accidentally
spilled). Since the contaminating waste
was prohibited from land disposal and
treatment standards were not achieved
prior to land disposal, die  LDR
prohibition continues to apply to any
Soil contaminated by the waste
(principle (3)) regardless of whether the
soil "contains" hazardous waste when
generated. The soil is prohibited from
land disposal and, before land disposal,
must be treated to meet applicable
technology-based treatment standards or
until a site-specific, risk-based minimize
threat determination is made through
the variance process.
   4. Generator D is excavating soil
contaminated by an accidental spill of
benzyl chloride, which,  when
discarded, is listed hazardous waste
P028 and is  prohibited from land
disposal. The accidental spill occurred
yesterday. The contaminating waste was
prohibited from land disposal and, since
the treatment standards  were not
achieved prior to the accidental spill,
the prohibition continues to apply to
any soil contaminated by the waste
(principle (3)). Thus, the soil is
prohibited from land disposal and,
before land disposal, must be treated to
meet applicable technology-based
treatment standards or until a site-
specific, risk-based minimize threat
determination is made through the
variance process.
  5. Generator E is excavating soil
contaminated by listed hazardous waste
F004 (generally, spent non-halogenated
solvents). The F004 waste was land
disposed in 1984, prior to the effective
date of an applicable land disposal
prohibition; however, on generation the
soil contains high concentrations of
cresols constituents, so that an
authorized state determines it
"contains" hazardous waste. The soil is
prohibited from land disposal. Although
the contaminating waste was not
prohibited from land disposal, since the
soil contained hazardous waste at the
point of generation (and the waste had
since become prohibited from land
disposal), the land disposal prohibition
attaches  to the contaminated soil and,
before  land disposal, the soil must be
treated to meet applicable technology-
based treatment standards or until a
site-specific, risk-based minimize threat
determination is made through the
variance process (principles (1), (2), and
(3)).
  EPA acknowledges that the reading of
LDR applicability to contaminated soil
discussed above creates potential
administrative difficulties, since, in
many cases, a factual determination will
be required as to when hazardous
wastes were land disposed in order to
determine whether they were prohibited
at that time and whether, therefore, the
prohibition continues to apply to
contaminated soil. The Agency expects
that these difficulties will be minimal
because, in most cases, contamination
will be caused by hazardous wastes
placed before the effective date of
applicable land disposal prohibitions
since land disposal after prohibition
would be illegal. The exception is
accidental spills of hazardous waste,
which  the Agency believes are (1) rare,
and (2) known, so determining dates of
land disposal should not be
problematic. This issue was discussed
in detail  in the HWIR-Media proposal.
61 FR 18805 (April 26, 1996).
  As discussed in the April 29, 1996
proposal, the Agency continues to
believe that, if information is not
available or inconclusive, it is generally
reasonable to assume that contaminated
soils do not contain untreated
hazardous wastes placed after the
effective  dates of applicable land
disposal  prohibitions. This is because
placement of untreated hazardous waste
after applicable LDR effective dates
would be a violation of RCRA, subject
to significant fines and penalties
including criminal sanctions. 61 FR at
18805 (April 29, 1996). Of course,
program implementors and facility
owners/operators cannot make the
determination that information on the
types of waste contamination or dates of
waste placement is unavailable or
inconclusive without first making a
good faith effort to uncover such
information. By using available site- and
waste-specific information such as
manifests, LDR records required under
40 CFR 268.7, vouchers, bills of lading,
sales and inventory records, storage
records, sampling and analysis reports,
accident reports, site investigation
reports, spill reports, inspection reports
and logs, EPA believes that program
implementors and facility owners/
operators will typically be able to make
informed decisions about the types of
waste contamination and dates of waste
placement. Most commenters supported
this approach.
  EPA notes that it is not critical for a
decision about whether contaminated
soil contains listed hazardous waste or
exhibits a characteristic of hazardous
waste to be made without removing any
of the soil (other than the sample
volume) from the land. In an area of
generally dispersed soil contamination,
soil may be consolidated or managed
within the area of contamination to
facilitate sampling, for example, to
ensure that soil samples are
representative or to separate soil from
non-soil materials. However, care
should be taken not to remove
hazardous contaminated soils from
separate areas ,of contamination at a
facility and place such hazardous
contaminated soil into a land disposal
unit unless,  of course, the soil meets
applicable LDR treatment standards.
The area of contamination policy is
discussed later in this section of today's
preamble.
  A few commenters expressed concern
or confusion over the application of
LDRs to soil contaminated by accidental
spills of hazardous wastes. The Agency
clarifies that accidental spills of
hazardous wastes (or products or raw
materials) are not considered placement
of hazardous waste into a land disposal
unit since, in the case of a spill,
prohibited waste is not being placed in
one of the identified units named in
RCRA Section 3004(m).« See, 45 FR
76626 (Nov. 19, 1980), issuing clarifying
regulations at 40 CFR 264.10(g) to
provide that hazardous waste treatment
  45 Although, if such a spill were not cleaned up
in a timely way, EPA or an authorized state could
determine that the contaminated area should be
considered a land disposal unit for purposes of
requiring cleanup under RCRA Subtitle C. 55 FR at
20809 (July 27. 1990).

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and storage activities undertaken in
immediate response to an accidental
spill are exempt from the 40 CFR Part
264 and 265 regulations governing
treatment and storage and do not require
permits and Sept. 29, 1986 memo from
J. Winston Porter (EPA Assistant
Administrator) to Fred Hansen
interpreting the 40 CFR 264.10(g)
regulations; also see, 55 FR at 30808-
30809 (July 27, 1990) ("a one-time spill
of hazardous waste would not be
considered a solid waste management
unit.") However, contaminated soils
generated through remediation of spills
of untreated listed prohibited hazardous
wastes are, as discussed above, subject
to land disposal prohibitions since the
LDR prohibition that had attached to the
contaminating hazardous waste
continues to apply until threats are
minimized, and, therefore, any
contaminated soil remains subject to
LDRs (see principle (3)).
  A number of commenters expressed
concern that EPA's interpretation of
LDR applicability to contaminated soil
might preclude application of the
existing area of contamination policy. In
the area of contamination policy, EPA
interprets RCRA to allow certain
discrete areas of generally dispersed
contamination to be considered a RCRA
unit (usually a landfill). 55 FR 8758-
8760 (March 8, 1999). This
interpretation allows hazardous wastes
(and hazardous contaminated soils) to
be consolidated, treated in situ or left in
place within an area of contamination
without triggering the RCRA land
disposal restrictions or minimum
technology requirements—since such
activities would not involve "placement
into a land disposal unit," which is the
statutory trigger for LDR. EPA clarifies
that its interpretation of LDR
applicability for contaminated soil does
not, in any way, affect implementation
of the area of contamination policy.
  Finally, many commenters expressed
concern over EPA's application of the
LDR treatment standards to soil that is
determined no longer to contain
hazardous waste or exhibit a
characteristic of hazardous waste. As
discussed in detail in the 1996 proposal,
at this time EPA has concluded that
although the Chemical Waste opinion
did not speak to contaminated soil
specifically, it is prudent to apply the
Chemical Waste logic—that a duty to
comply with LDRs attaches to
hazardous waste when it is first
generated and elimination of the indicia
of "hazardousness" does not,
necessarily, fulfil the statutory land
disposal restriction treatment
standard—to contaminated soil. See
Chemical Waste Management v. EPA,
                        976 F.2d at 13-16. Although, as
                        discussed later in today's preamble,
                        EPA believes that contained-in
                        determinations will rarely, if ever, be
                        made at constituent concentrations
                        which do not minimize threats, without
                        codifying the contained-in policy, the
                        Agency cannot make the generic finding
                        that this will be the case at every site.
                        For this reason, EPA is requiring that
                        the standards and procedures
                        promulgated today for site-specific, risk-
                        based minimize threat variances alone
                        be used to make minimize threat
                        determinations. This issue is discussed
                        in section VILE of today's preamble.

                        C. Conforming and Supporting Changes
                          To support the land disposal
                        restriction treatment standards for
                        contaminated soil, the Agency is today
                        promulgating a number of conforming
                        and supporting regulations, as follows.

                        1. Recordkeeping Requirements
                          A number of commenters expressed
                        confusion over the recordkeeping and
                        reporting requirements that would
                        apply to contaminated soil. The Agency
                        is today clarifying that contaminated
                        soil subject to the land disposal
                        restrictions must comply with the same
                        recordkeeping and reporting
                        requirements as other wastes subject to
                        the land disposal restrictions. That is,
                        the recordkeeping and reporting
                        requirements of 40 CFR 268.7 will
                        apply.
                          EPA has clarified  this in the final
                        regulations by adding appropriate
                        recordkeeping requirements for
                        contaminated soils to the tables in 40
                        CFR 268.7(a) and 40 CFR 268.7(b).
                        These rules specify that, for
                        contaminated soil, generators and/or
                        treaters must include the following
                        information with their land disposal
                        restriction paperwork: the constituents
                        subject to treatment as described in 40
                        CFR 268.49(d) and this statement, "this
                        contaminated soil [does/does  not]
                        contain listed hazardous waste and
                        [does/does not] exhibit a characteristic
                        of hazardous waste and [is subject to/
                        complies with] the soil treatment
                        standards as provided by 268.49(c) or
                        the universal treatment standards." Note
                        that because in some cases
                        contaminated soil will continue to be
                        subject to LDRs even after it has been
                        determined not to or no longer to
                        contain listed hazardous waste (or de-
                        characterized), the statement includes  a
                        notification of whether the soil is still
                        considered hazardous. This is consistent
                        with the approach the Agency used
                        when establishing land disposal
                        restriction treatment standards for
                        hazardous contaminated debris.
2. Definition of Soil

  The Agency is promulgating the
definition of soil from the April 29,
1996 proposal with one change made in
response to comments. Soil is defined
as, "unconsolidated earth material
composing the superficial geologic
strata (material overlying bedrock),
consisting of clay, silt, sand, or gravel
size particles as classified by the U.S.
Soil Conservation Service, or a mixture
of such materials with liquids, sludges
or solids which is inseparable by simple
mechanical removal processes and is
made up primarily of soil by volume,
based on visual inspection." The
Agency has'added the phrase "by
volume, based on visual inspection" in
response to comments recommending
that EPA explicitly conform the
definition of soil with the definition of
debris. See 57 FR 37222  (August 18,
1992). This clarification is consistent
with the Agency's intent, as discussed
in the 1996 proposal, that
determinations of whether any material
was "soil," "debris," or "waste" to be
made in the field. 61  FR 18794 (April
26,  1996).
  The definition of soil includes the
concept that mixtures of soil and other
materials are to be considered soil
provided the mixture is made up
predominantly of soil and that the other
materials are inseparable using simple
physical or mechanical means. This
approach allows program implementors
and facility owners/operators to
determine whether any given material is
soil, waste, or debris  based on the
results of simple mechanical removal
processes commonly used to separate
materials, such as pumping, dredging,
or excavation by backhoe, forklift or
other device. It avoids requiring
chemical analysis for soil properties in
order to differentiate  precisely between
wastes, soil and debris. As discussed in
the April 29, 1996 and September 14,
1993 proposals, the Agency believes
that attempting to distinguish more
precisely between waste, soil or debris
using chemical analysis or other tests
would be prohibitively difficult to
develop and support and cumbersome
to administer. Cf. 57 FR at 37224,
August 18,  1992, where the Agency
adopted a similar classification system
for hazardous debris. Most commenters
supported this approach. Note that any
non-soil that is separated from
contaminated soil that contains listed
hazardous waste or is found to exhibit
a characteristic of hazardous waste
should be considered hazardous waste
and is subject to the applicable
universal treatment standard.

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               Federal Register/Vol.  63,  No. 100/Tuesday, May 26,  1998/Rules and Regulations
                                                                     28621
   EPA also emphasizes that any
 dilution of a prohibited contaminated
 soil (or of a prohibited hazardous waste
 with soil) as a substitute for adequate
 treatment to achieve compliance with
 LDR treatment standards or to
 circumvent the effective date of an LDR
 prohibition is considered a type of
 impermissible dilution and is illegal.
 Therefore, any deliberate mixing of
* prohibited hazardous waste with soil in
 order to change its treatment
 classification (i.e., from waste to
 contaminated soil) is illegal.  Existing
 regulations concerning impermissible
 dilution already make this point. See 40
 CFR 268.3(a) and (b); see also 57 FR at
 37243 (Aug. 18, 1992) (adopting the
 same principle for contaminated debris).
 The Agency expects that deliberate
 mixing of hazardous waste with soil
 (and vice versa) will be rare because
 such actions are clearly illegal and
 would subject generators to substantial
 fines and penalties, including criminal
 sanctions. In addition, the resulting
 mixture (hazardous waste impermissible
 diluted by soil) would continue to be
 subject to the LDRs for the original
 hazardous waste (i.e., generally, the
 universal treatment standards), so no
 benefit in terms of reduced treatment
 requirements would occur. The Agency
 took a similar approach when
 promulgating treatment standards
 specific to hazardous debris.  See 57 FR
 at37224  (August 18, 1992).
   The Agency notes that the normal
 mixing of contaminated soil from
 various portions of a site that typically
 occurs  during the course of remedial
 activities or in the course of normal
 earthmoving and grading activities is
 not considered intentional mixing of
 soil with  non-media or prohibited  soil
 with non-prohibited soil and, therefore,
 is not a type of impermissible dilution.
 D. Seeking Treatment Variances
 Because the National Treatment
 Standard Is Unachievable or
 Inappropriate
   Under existing regulations  at 40 CFR
 268,44, people may obtain a variance
 from a land disposal restriction
 treatment standard when a waste cannot
 be treated to the specified level or  when
 a treatment standard may be
 inappropriate for the waste. With
 respect to contaminated soils, EPA has
 to this point presumed that a treatment
 variance would generally be needed
 because the LDR treatment standards
 developed for process wastes were
 either unachievable (generally applied
 to soil contaminated by metals) or
 inappropriate (generally applied to soil
 contaminated by organic constituents).
 See, for example, 55 FR 8760 (March 8,
 1990); 58 FR 48092, 48125 (September
 14, 1993); 61 FR 18805-18808, 18810-
 18812 (April 29, 1996); and, 61 FR
 55717 (October 28, 1996). This
 presumption will no longer apply once
 today's soil treatment standards take
 effect. This is because today's standards
 were developed specifically for
 contaminated soils and are intended to
 specifically address the past difficulties
 associated with applying the treatment
 standards developed for process waste
 to contaminated soil.
  This is not to say that treatment
 variances based on the "unachievable"
 or "inappropriate" prongs of the test are
 now unavailable for contaminated soils.
 For example, in some cases it may prove
 that even though an appropriate
 technology, suited to the soil matrix and
 constituents of concern was used, a
 particular soil cannot be treated to meet
 the soil treatment standards using a
 well-designed well-operated application
 of one of the technologies EPA
 considered in establishing the soil
 standards. In these types of cases, under
 existing regulations, the soil treatment
 standard would be considered
 "unachievable" and a treatment
 variance could be approved. In other
 cases, under existing regulations,
 application of the soil treatment
 standards might be "inappropriate" in
 that, for example, it would present
 unacceptable risks to on-site workers.
  As noted earlier in today's preamble,
 alternative LDR treatment standards
 established through treatment variances
 must, according to 40 CFR 268.44 (m),
 "minimize threats to human health and
 the environment posed by land disposal
 of the waste." In cases where an
 alternative treatment standard does not
 meet this requirement, a treatment
 variance will not be approved even
 though application of a technology more
 aggressive than the technologies on
 which the soil treatment standards are
 based might then be necessary. For
 example, in cases where the soil
 treatment standards cannot be achieved
 through application of a well-designed,
 well-operated application of one of the
 model soil treatment technologies and
 application of the model technology or
 other non-combustion technologies will
 not result in constituent concentrations
 that minimize threats, a variance would
 not be approved and combustion would
 be necessary. This is proper given that
 the soil treatment standards were not
 developed using the methodology
 typically used in the land disposal
restriction program (i.e., application of
the most aggressive treatment
 technology to the most difficult to treat
waste), but, instead are designed to
accommodate a variety of soil treatment
 technologies that are typically used
 during remediation. Variances for
 treatment of contaminated soil will be
 applied during the remedial context,
 where, as discussed in Section VII.B.3 of
 today's preamble, EPA and authorized
 states will typically have detailed
 information about the risks posed by
 specific hazardous constituents, direct
 and indirect exposure routes, risk
 pathways and human and
 environmental receptors. This
 information can be used to inform
 decisions about whether threats are
 minimized.

 E. The Contained-In Policy
  The contained-in principle is the
 basis for EPA's longstanding
 interpretation regarding application of
 RCRA Subtitle C requirements to
 mixtures of contaminated media and
 hazardous wastes. Under the
 "contained-in" policy, EPA requires
 that soil (and other environmental
 media), although not wastes themselves,
 be managed as if they were hazardous
 waste if they contain hazardous waste or
 exhibit a characteristic of hazardous
 waste. See, for example, 53 FR 31138,
 31148 (August 17, 1988) and 57 FR
 21450, 21453 (May 20, 1992)
 (inadvertently citing 40 CFR 261(c)(2)
 instead of 40 CFR 261.3(d)(2)); see also
 Chemical Waste Management v. EPA,
 869 F.2d 1526, 1539-40 (D.C. Cir. 1989)
 (upholding the contained-in principle as
 a reasonable interpretation of EPA
 regulations). In practice, EPA has
 applied the contained-in principle to
 refer to a process where a site-specific
 determination is made that
 concentrations of hazardous
 constituents in any given volume of
 environmental media are low enough to
 determine that the media does not
 "contain" hazardous waste. Typically,
 these so called "contained-in"
 determinations do not mean that no
 hazardous constituents are present  in
 environmental media but simply that
 the concentrations of hazardous
 constituents present do not warrant
 management of the media as hazardous
 waste.46 For contaminated soil, the
 result of "contained-in determinations"
 is that soil no longer "contains" a
  46 Of course, as noted earlier, EPA or an
authorized state could determine, at any time, that
any given volume of environmental media did not
contain (or no longer contained) any solid or
hazardous waste (i.e., it's just media). These types
of determinations might be made, for example, if
concentrations of hazardous constituents fall below
background levels, or are at non-detectable levels.
Such a determination would terminate all RCRA
Subtitle C requirements, including LDRs. See,
September 15. 1995 letter from Michael Shapiro
(EPA) to Peter Wright (Monsanto Company), making
this finding, and 61 FR 18806 (April 29, 1996).

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Federal Register / Vol. 63, No.  100/Tuesday,  May 26, 1998/Rules and Regulations
hazardous waste; however, as discussed
above, the result is not automatically
that soil no longer must comply with
LDRs.
  In order to preserve flexibility and
because EPA believes legislative action
is needed, the Agency has chosen, at
this time, not to go forward with the
portions of the September 14, 1993 or
April 29, 1996 proposals that would
have codified the contained-in policy
for contaminated soils. The Agency
continues to believe that legislation is
needed to address application of certain
RCRA subtitle  C requirements to
hazardous remediation waste, including
contaminated soil. If legislation is not
forthcoming, the Agency may, in the
future, re-examine its position on the
relationship of the contained-in policy
to site-specific minimize threat
determinations based on
implementation experience and/or may
choose to codify the contained-in policy
for contaminated soil in a manner
similar to that used to codify the
contained-in policy for contaminated
debris.

1. Current Guidance on Implementation
of the Contained-in Policy

  EPA has not, to date, issued definitive
guidance to establish the  concentrations
at which contained-in determinations
may be made. As noted above, decisions
that media do not or no longer contain
hazardous waste are typically made on
a case-by-case basis considering the
risks posed by the contaminated media.
The Agency has advised that contained-
in determinations be made using
conservative, health-based levels
derived assuming direct exposure
pathways. 61 FR at 18795 (April 29,
1996) and other sources cited therein. A
compilation of many of the Agency's
statements on the contained-in policy
has been placed in the docket for
today's  rulemaking.
  The land disposal  restriction
treatment standards for contaminated
soil promulgated today do not affect
implementation of the contained-in
policy. They are not considered, and
should not be used, as de facto
"contained-out" concentrations
although, in some cases, it may be
appropriate to determine that soil
treated to the soil treatment standards
no longer contains hazardous waste.
Remediation project managers should
continue to make contained-in decisions
based on site-specific conditions and by
considering the risks posed by any given
contaminated  media.
                        2. Relationship of the Contained-in
                        Policy to Site-Specific, Risk-Based
                        Minimize Threat Determinations

                           As discussed above, the D.C. Circuit
                        held in the Chemical Waste opinion that
                        the RCRA Section 3004 (m) obligation to
                        minimize threats can continue even
                        after a waste would no longer be
                        identified as "hazardous." Chemical
                        Waste Management v. EPA, 976 F.2d at
                        13-16. The Agency believes that it is
                        prudent to apply the logic of the
                        Chemical Waste opinion to
                        contaminated soil. Therefore, when the
                        contained-in policy is applied to soil
                        that is already subject to a land disposal
                        prohibition, the Agency is compelled to
                        decide if a determination that soil does
                        not or no longer "contains" hazardous
                        waste is sufficient to determine that
                        threats posed by subsequent land
                        disposal of those soils have been
                        minimized. As discussed earlier in
                        today's preamble, EPA is not, at this
                        time, able to make a generic finding that
                        all contained-in determinations will
                        automatically satisfy this standard. This
                        is largely because, for reasons of needed
                        administrative  flexibility and because
                        we believe legislation is needed, EPA
                        has  not codified standards for approving
                        contained-in determinations and has not
                        codified procedures for making such
                        determinations. Absent such standards
                        and procedures, the Agency cannot, at
                        this time, make a generic finding that all
                        contained-in determinations will result
                        in constituent concentrations that also
                        minimize threats within the meaning of
                        RCRA Section 3004(m). These
                        decisions, of course, could be made on
                        a site-specific basis, by applying the
                        standards and procedures for site-
                        specific, risk-based minimize threat
                        variances, promulgated today.
                           The regulations governing site-
                        specific, risk-based minimize threat
                        determinations promulgated today are,
                        essentially, the same as the Agency's
                        guidance for making contained-in
                        determinations. See, for example, 61 FR
                         18795 (April 29, 1996) and other
                        sources cited therein. That is, decisions
                        should be made by considering the
                        inherent risks posed by any given soil,
                        assuming direct exposure (i.e., no post-
                        land disposal controls) and applying
                        conservative information to calculate
                        risk. Therefore, the Agency expects that,
                        in most cases, a determination that soils
                        do not (or no longer) contain hazardous
                        waste will equate with minimize threat
                        levels and, therefore, encourages
                        program implementors to combine
                        contained-in determinations, as
                        appropriate, with site-specific, risk-
                        based minimize threat variances.
F. Relationship of Soil Treatment
Standards to the Final HWIR-Media
Rule

  In the April 29, 1996 HWIR-Media
proposal, EPA proposed to establish a
comprehensive alternative management
regime for hazardous contaminated
media, of which the treatment standards
for contaminated soil would have been
a small part. The HWIR-Media proposal
discussed a number of options for
comprehensive management standards
for hazardous contaminated media.
  Today's action resolves and finalizes
the portion of the HWIR-Media proposal
that addressed land disposal restriction
treatment standards for contaminated
soil. See 61 FR 18805-18814, April 29,
1996. Other portions of the proposal are
not resolved by this action and will be
addressed by EPA in future actions. EPA
continues to emphasize that, while the
soil-specific LDR treatment standards
will improve contaminated soil
management and expedite cleanups, the
Agency also recognizes that additional
reform is needed, especially for
management of non-media remediation
wastes like remedial sludges. The
Agency will continue to participate in
discussions on potential legislation to
promote this additional needed reform.

VIII. Improvements and Corrections to
LDR Regulations

  Summary: The regulated community
has pointed out several examples of the
LDR regulations  that were unclear or
had typographical errors.  These sections
are clarified and corrected below.

A. Typographical Error in Section
  A typographical error was found in
the cross reference in the note in
§261.1(c)(10). The first Phase IV final
rule ("Minirule," 62 FR 25998) said
"They are covered under the exclusion
from the definition of solid waste for
shredded circuit boards being recycled
(261.4(a)(13))." The correct cross
reference is to "(261.4(a)(14)." This
typographical error is corrected in this
final rule.

B. Typographical Error in Section
268.4(a)(2)(ii) and (a)(2)(iii)

  These paragraphs have referred to
§ 268.8 for some time. Section 268.8 was
where the so called "soft hammer"
provisions were once found in the
regulations. These provisions expired in
1990, and the provisions have been  .-
removed from the regulations; thus  -
there is no need to continue to include
references to §268.8.

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               Federal Register/Vol. 63, No.  100/Tuesday, May 26,  1998/Rules and Regulations
                                                                     28623
 C. Clarifying Language Added to Section
 268.7
   The first item in the paperwork tables
 requires that the EPA Hazardous Waste
 and Manifest numbers be placed on the
 notification forms. Today's changes
 clarify that the manifest number
 required to be placed on the notification
 form is that of the first shipment of
 waste to the treatment or disposal
 facility.
   The tables of paperwork requirements
 found at §268.7(a)(4) and (b)(3)  have
 entries that describe what waste
 constituents have to be identified on the
 one-time LDR notification (see item 3 in
 the generator table at §268.7(a)(4), and
 item 2 in the treatment and storage
 facility table at §268.7(b)(3)). The
 language of these items has been
 changed to avoid confusion about
 whether wastes managed at facilities
 subject to the Clean Water Act (CWA),
 CWA-equivalent facilities, or wastes
 injected into deepwells subject to the
 Safe Drinking Water Act (SDWA) are
 subject to a paperwork requirement (and
 if so, what requirements). Wastes
 managed in these facilities are subject to
 a one-time notification requirement.
 This notification must be placed in the
 facility's on site files and must contain
 the information described in the
 paperwork tables. Therefore, the
 parenthetical language that appeared to
 exclude such facilities from the
 paperwork requirements has been
 removed from item 2 in the "Generator"
 table, and item 3 in the "Treatment
 Facility" table.
  In addition, these items have been
 further clarified by adding the language
 "in characteristic wastes" after the
 clause "and underlying hazardous
 constituents."  to indicate exactly what
 type of wastes must be considered when
 determining whether underlying
 hazardous constituents are present. The
 title of the paperwork table at
 §268.7(b)(3) has been changed to clarify
 that the requirements apply to storage
 facilities as well as treatment facilities.
 A number of certifications were
 inadvertantly removed from §268.7(b)
 through Office of Federal Register
 drafting errors. Those certifications are
 reinstated because it was never the
 intention of the Agency that they were
 removed.
 D. Correction to Section 268.40—
 Treatment Standards for Hazardous
 Waste
  In the Phase III Final Rule (61  FR
 15566), the Agency promulgated a UTS
of 12.0 mg/L for 1,4-dioxane
wastewaters based on the performance
of distillation. At that time, 1,4-dioxane
 was the only UTS constituent for which
 EPA had promulgated a nonwastewater
 standard but not a wastewater standard.'
 However, as part of that rule, the
 Agency failed to extend the treatment
 standard to wastewater forms of U108
 wastes. Today, the Agency is correcting
 this oversight in Section 268.40—
 Treatment Standards for Hazardous
 Wastes, by replacing the "NA"
 designation under AU108 -1,4-Dioxane
 wastewaters@ with "12.0 mg/L." As
 such the 1,4-Dioxane alternate treatment
 standard now applies to both
 wastewater and nonwastewaters forms
 of U108 waste.

 E. Removal of California List
 Requirements and de minimis Provision
 From Section 268.42
   In the Phase IV rule promulgated on
 May 12, 1997, EPA removed the
 California List requirements because
 they have all been superseded by more
 specific treatment standards. The
 California List included liquid wastes
 containing certain metals, cyanide,
 polychlorinated biphenyls (PCBs) above
 specified levels, and liquid and
 nonliquid halogenated organic
 compounds (HOCs) above specified
 levels. These wastes  were removed from
 the Table of Treatment Standards in
 § 268.40; however, the requirements in
 §268.42(a)(l) and (a) (2) were
 overlooked. These paragraphs are
 removed by today's rule. And because
 these paragraphs are being removed, it
 is necessary to revise the language of
 § 268.42(a) to remove references to these
 paragraphs.
  The de minimis provision of
 paragraph §268.42 (a) (3) is also being
 removed by today's rule. The de
 minimis provision applied to
 wastewaters regulated under the Clean
 Water Act (CWA) mixed with high total
 organic carbon (TOC) ignitable wastes.
 In the Phase III final rule, however,
 wastes discharged under the CWA, or in
 a facility that is CWA-equivalent, are
 not subject to the LDRs (61 FR 15660,
 April 8, 1996). Therefore thecfe minimis
 provision was redundant and has been
 removed by today's rule.

 F. Typographical Errors and Outdated
 Cross-references in Section 268.45
  There is a typographical error in
 §268.45(a). The language has referred to
 § 261.3(c)(2), a section removed from the
 regulations on September 30, 1992 (57
 FR 49278). It should refer to
§261.3(f)(2). The correction is being
made in this final rule.
  In paragraphs (3) and (4) in
§ 268.45 (d)  there are outdated cross
references to treatment standards that
were once found at §268.42 and
 § 268.43 (the treatment standards once
 found in these sections have been
 consolidated into the "Table of
 Treatment Standards" at §268.40).
 These cross references have been
 removed from § 268.45 (d) (3) and (d)(4).
   G. Correction to §268.48 to Explain
 That Sulfides are not Regulated as
 Underlying Hazardous Constituents in
 Characteristic Wastes
   In response to a comment received on
 the original Phase IV proposal, EPA
 reviewed the basis for the universal
 treatment standard for sulfides in the
 Universal Treatment Standard Table at
 40 CFR 268.48. EPA is correcting the
 table in this rule. Sulfides are regulated
 only in Waste Code F039 (multi-source
 leachate), and not as underlying
 hazardous constituents in characteristic
 wastes.

 H.  Cross References in Section 268.50(e)
  Erroneous references appeared in this
 section to §§268.41,  268.42, 268.43, and
 268.32. They are eliminated in this final
 rule.

 /. Mistakes in Appendices VII and VIII
  Table 1 includes entries for F033.
 There is no hazardous waste with the
 EPA waste code F033. Therefore, these
 entries are being removed. The second
 entry for waste codes F032, the second
 entry for F034, and the first entry for
 K088 contained typographical errors
 that are being revised in today's final
 rule. In addition, two entries for waste
 code F035 are being added to the table.
 Table 2 is amended by revising entry
 number 9 to change the prohibition date
 for soil and debris contaminated with
 K088 wastes.
  The title of appendix VIII is revised to
 clarify that it provides the effective
 dates for wastes injected into deep
 wells.

 /. Clarification Regarding Point of
 Generation of Boiler Cleanout Rinses
  In the May 12, 1997 final Phase IV
 rule, EPA included in the preamble an
 interpretive discussion regarding at
 what point the Agency considers a
 waste to be generated when power plant
 boilers are cleaned out using multiple
 rinses.  62 FR at 26006. The question is
 relevant to the issue of whether subtitle
 C rules apply to such waste, and also,
 if the waste is to be land disposed,
whether LDR prohibitions apply. In
essence, the interpretation is that the
cleanout of the boiler is to be viewed as
a single process, so that if the boiler
cleanout liquids are commingled in a
single tank system, the hazardousness of
the  resulting cleanout liquids is to be
determined at the end of the cleaning
process. Id.

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Federal Register/Vol. 63, No. 100/Tuesday, May  26,  1998/Rules and Regulations
  Some confusion has arisen regarding
whether this interpretation applies to
permanent storage tanks, or only to
temporary tanks brought on-site to
manage the boiler cleanout rinses. The
Agency's view is that the interpretation
applies to temporary tanks, and also to
permanent tanks when such units are
used exclusively for the management of
boiler cleanout during the  boiler
cleanout process. (Such tanks could, of
course, be engaged in other activities
when they are not dedicated to
management of boiler cleanout waste
during the cleanout process.)
  EPA did state in the May 12 notice
that "[t]he interpretation * *  * does not
apply where there are permanent
storage units involved." 62 FR at 26007.
What the Agency had in mind was a
tank already engaged in the permanent
storage of hazardous waste. However, so
long as a tank is dedicated solely to
storage of boiler cleanout rinses during
the boiler cleanout process, there is no
environmental distinction  between
whether or not a temporary or
permanent tank is used for the purpose.
Consequently, the point of generation
interpretive principle announced in the
May 12 notice applies to both
permanent and temporary tanks
systems.
IX. Capacity Determination for Phase
IV Land Disposal Restrictions
A. Introduction
  This section summarizes the results of
the capacity analysis for the wastes
covered by today's rule. For a detailed
discussion of capacity analysis-related
data sources, methodology, and
response to comments for each group of
wastes covered in this rule, see the
background document for the  capacity
analysis and the background document
for the comment summary and response
for capacity-related issues  (i.e.,
collectively referred to as the Capacity
Background Documents).
  In general, EPA's capacity analysis
focuses on the amount of waste to be
restricted from land disposal that is
currently managed in land-based units
and that will require alternative
treatment as a result of the LDRs. The
quantity of wastes that are not managed
in land-based units (e.g., wastewater
managed only in RCRA exempt tanks,
with direct discharge to a Publicly
Owned Treatment Works (POTW)) is
not included in the quantities requiring
alternative treatment as a result of the
LDRs. Also, wastes that do not require
alternative treatment (e.g.,  those that are
currently treated using an appropriate
treatment technology) are not  included
in these quantity estimates.
                           EPA's decisions on when to establish
                         the effective date of the treatment
                         standards (e.g., by granting a national
                         capacity variance) are based on the
                         availability of alternative treatment or
                         recovery technologies. Consequently,
                         the methodology focuses on deriving
                         estimates of the quantities of waste that
                         will require either commercial treatment
                         or the construction of new on-site
                         treatment as a result of the LDRs. EPA
                         also estimates the quantities of waste
                         that will be treated adequately either on
                         site in existing systems or off site by
                         facilities owned by the same company
                         as the generator (i.e., captive facilities),
                         and attempts to subtract that amount
                         from the overall amount of required
                         capacity.
                         B. Available Capacity for Surface
                         Disposed Wastes
                           Available capacity was estimated for
                         four treatment technology categories
                         that are expected to be used for the
                         majority of wastes in today's rule:
                         stabilization (including chemical
                         fixation), vitrification, metal recovery,
                         and thermal treatment. (Numerous other
                         types of treatment also can meet the
                         treatment standards for much of these
                         wastes, although the Agency did not
                         find it necessary to present the estimates
                         of available capacity of these treatments.
                         See the Capacity Background
                         Documents for further information.)
                         1. Stabilization
                           EPA estimates that there are at least
                         several million mt/yr of available
                         stabilization capacity, with most of it
                         able to meet the treatment requirements
                         for the TC metal wastes and newly
                         identified mineral processing wastes.
                         Furthermore, the Agency found that
                         currently utilized stabilization capacity
                         can be quickly modified (i.e., in less
                         than 90 days) to meet the new treatment
                         standards by implementing relatively
                         simple changes to formulations. For
                         additional details, see the Capacity
                         Background Documents.
                         2. Vitrification
                           EPA has determined that vitrification
                         technology is commercially available for
                         treating limited quantities of Phase IV
                         wastes, such as some arsenic wastes,
                         that are difficult to treat using
                         stabilization and other techniques.  EPA
                         estimates that there are approximately
                         15,000 mt/yr of available vitrification
                         capacity.
                         3. Metal Recovery
                           High temperature and other types of
                         metal recovery appears to be the most
                         applicable treatment for certain wastes
                         containing high concentrations of metal
constituents. EPA identified and
reviewed several metal recovery
technologies that are commercially
available, and has determined that at
least 800,000 mt/yr of metal recovery
capacity exists.
  EPA recognizes, however, that not all
of this capacity will be available for
Phase IV wastes. For example, there are
technical constraints on the metal
recovery systems stemming from metal
content limitations of the waste.
Nevertheless, the Agency believes that a
significant portion of this capacity is
amenable to Phase IV wastes. For
additional details, see the Capacity
Background Documents.
4. Thermal Treatment
  EPA estimates that there are
approximately 231,000 mt/yr of
commercial sludge/solid/soil
combustion capacity and 651,000 mt/yr
of commercial liquid combustion
capacity available for wastes covered by
today's rule. Other types of thermal
treatment, such as thermal desorption,
also are available. For additional details,
see the Capacity Background
Documents.
C. Required Capacity and Variance
Determination for Surface Disposed TC
Metal Wastes
  EPA estimates that at most, 1.2
million mt/yr of TC metal wastes could
require alternative treatment as a result
of promulgation of today's rule. This
estimate includes both wastes that are
newly-identified TC wastes (i.e., wastes
that do not fail the EP test, and,
consequently, were not part of the Third
Third LDR rule)  and wastes that fail the
EP test (i.e., those wastes that were
regulated in the Third Third LDR rule).
Although only the newly identified TC
wastes are eligible for a national
capacity variance, the capacity analysis
includes all wastes affected by the rule
because estimates for each category are
not available, and, furthermore, because
all of these wastes need to be assessed
to determine the full impact of this rule
on the need for a capacity variance.
Additionally, the 1.2 million estimated
quantity is likely to be an overestimate
because most of these wastes are already
meeting the new treatment standards.
Also, most of these wastes are likely to
fail the EP test and, therefore, are no
longer eligible for a capacity variance.
  The wastes that will require
alternative treatment are expected to
primarily only require optimization of
existing stabilization formulations and
systems. Also, sufficient vitrification
capacity exists to treat the otherwise
difficult-to-treat TC metal wastes, high
temperature metal recovery capacity

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              Federal Register/Vol.  63, No. 100/Tuesday, May 26,  1998 /Rules and Regulations
                                                                    28625
exists for some of the TC metal wastes,
and sufficient and other combustion
capacity exists to pre-treat TC metal
wastes that contain organic underlying
hazardous constituents (UHCs). The
Agency has determined that these
conclusions also apply to TC metal
contaminated debris. In addition, the
other debris treatment technologies set
out in 268.45 are widely available.
  ForTC metal contaminated soils, the
Agency believes that the treatment
standards, ten times UTS or 90%
reduction, will not result in any
capacity problems for treating metals
since most soils are already meeting
these standards and, furthermore, there
Is an excess of stabilization treatment
capacity. Additionally, for treating
organics to the alternative treatment
standards, sufficient treatment capacity
exists from use of other technologies
(e.g., thermal desorption, soil washing,
blotreatment).
  To allow facilities time to determine
whether their wastes are affected by this
rule and identify and locate alternative
treatment capacity if necessary, EPA is
providing 90 days between the
publication of today's rule and the
effective date of the treatment standards
for the TC metal wastes, including soil
and debris, covered by today's rule. For
a detailed discussion on data sources,
methodology, and comments and
responses for these wastes, see the
Capacity Background Documents.
D. Required Capacity and Variance
Determination for Surface Disposed
Mineral Processing Wastes
  EPA estimates that the maximum
quantity of newly identified mineral
processing wastes potentially requiring
alternative treatment is approximately
1.9 million mt/yr. Most of these wastes
(approximately 1.8 million mt/yr) are
already being treated to nonhazardous
levels and, therefore, are not expected to
require much, if any, additional
treatment. The remaining wastes,
approximately 71,000 mt/yr, will
require treatment to meet the treatment
standards. However, adequate on-site
and off-site treatment capacity is
available for these wastes. The Agency
has determined that these conclusions
also apply to debris contaminated with
mineral processing wastes. In addition,
the other debris treatment technologies
set out in 268.45  are widely available.
For soils contaminated with mineral
processing wastes, the Agency believes
that the treatment standards, ten times
UTS or 90 percent reduction, will not
result in any capacity problems.
Nevertheless, to allow time for activities
such as treatment system modifications
or to identify and locate alternative
treatment capacity for process wastes,
soil, and debris, EPA is providing 90
days between the publication of today's
rule and the effective date of the
treatment standards for the mineral
processing wastes, contaminated soil
(including MGP soil; see discussion
below), and debris covered by today's
rule (one exception is the elemental
phosphorus wastes; see discussion
below). For a detailed discussion on
data sources, methodology, and
comments and responses for these
wastes, see the Capacity Background
Documents.
  EPA estimates that up to 1.2 million
mt/yr of soil contaminated with "de-
Bevilled" wastes may be remediated
from historic manufactured gas plant
(MGP) sites. In response to the first
supplemental proposal, several
commenters stated that more than 50
percent of the MGP remediation sites
are currently co-burning the wastes in
on-site coal-fired utility boilers and
requested the Agency to allow co-
burning of MGP soils in coal-fired
utility boilers and exclude them from'
RCRA requirements. In today's
rulemaking,  the Agency is confirming
its existing (and not reopened)
interpretation that residues from co-
burning hazardous MGP soils along
with coal are covered by the Bevill
amendment  (assuming the residues are
not significantly affected by such
burning, as provided in section
266.112). In addition, as discussed
elsewhere in this notice, the Agency is
promulgating treatment standards (ten
times UTS or 90 percent reduction) for
contaminated soils. On-site treatment
and existing commercially available
treatment technologies can readily
achieve—and to a large extent are
already achieving—the treatment
standards for contaminated MGP soil.
Therefore, the Agency does not
anticipate any capacity problems. To
allow facilities time to determine
whether their wastes are affected by this
rule, to identify alternative treatment
capacity if necessary, and to make
contractual arrangements for
transportation and other logistics, EPA
is providing 90 days between the
publication of today's rule and the
effective date of the treatment standards
for MGP soils.
  In the first supplemental proposed
rule, the Agency identified the
following three waste streams generated
from elemental phosphorus production
as lacking sufficient commercial
treatment capacity: Medusa scrubber
blowdown, Anderson filter media
rinsate, and furnace building
washdown. A major generator of these
waste streams, the FMC Corporation's
Pocatello, Idaho facility, provided a
substantial amount of data to show that
these waste streams pose unique
treatability problems (e.g., due the
presence of naturally occurring
radioactive materials (NORM)) and that
a two-year national capacity variance is
needed to develop and construct
treatment capacity. After careful review
of the data, EPA discussed in the May
10, 1996 Notice of Data Availability, the
possibility of a two-year national
capacity variance for these three large
volume wastewater streams. In May
1997, EPA proposed the second
supplemental Phase IV rule (62 FR
26041) and, in response to this proposal,
FMC submitted a comment to EPA with
new information identifying three other
waste streams (NOSAP slurry,
precipitator slurry, and phossy water) at
its Pocatello, Idaho facility that FMC
believes would be subject to Phase IV
LDR requirements. FMC requested that
a two-year national capacity variance
also be granted for these three new
waste streams. Like the original waste
streams, the three newly identified
streams are generated in the elemental
phosphorous production process and
contain varying amounts of both NORM
and elemental phosphorous. FMC also
noted that the AFM Rinsate waste
stream, for which FMC originally
requested a national capacity variance,
has been completely eliminated, and
that therefore a national capacity
variance would no longer be needed for
this waste stream. The Agency'made
these additional data available for
public comment in a November 10, 1997
NODA (62 FR 60465). No adverse
comments were received. The Agency
has decided to grant a two-year capacity
variance for all five FMC wastestreams.
  Details of the methodology and
estimates of affected facilities  and waste
quantities for the newly identified
mineral processing wastes are provided
in the Capacity Background Documents.
E. Phase IV Mineral Processing and TC
Metal Wastes Injected Into Underground
Injection Control (VIC) Class I Wells
  Summary: EPA is granting a two-year
capacity variance for UIC wells that
inject newly identified mineral
processing wastes from titanium dioxide
production.
  There are approximately 272 Class I
injection well facilities  nationwide. The
Agency identified approximately 46 of
those facilities as potentially injecting
Phase IV wastes. These injected Phase
IV wastes account for less than 15
percent of the total injectate being
managed by Class I wells annually. Most
of these facilities potentially identified
already have approved no-migration

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Federal  Register/Vol.  63,  No. 100/Tuesday, May 26, 1998/Rules and  Regulations
petitions. In assessing the impact of the
Phase IV rule to operators of UIC
facilities, the Agency found that the
only potentially affected wells are those
injecting newly identified characteristic
mineral processing wastes, since other
characteristic wastewaters were already
prohibited in 1990 and the period for
possible capacity extensions for these
wastes has run out. (See UIC
background document explaining in
detail why the other  wastes are
unaffected.)
  For a facility with  an existing
approved no-migration determination,
the facility operator may have already
incorporated the subject waste in the
original petitions. Any facility with an
approved no-migration determination
without the waste already incorporated
may submit a modified petition (40 CFR
Part 148.20 (f)). However, if an injection
well has received a no-migration
determination,  it can inject a newly
prohibited waste only if the waste is
similar to wastes included in the initial
no-migration petition. The new wastes
must behave hydraulically and
chemically in a similar manner to those
already included in the initial petition
demonstration such that they will not
interfere with the containment
capability of the injection zone and the
location of the waste plume will not
significantly differ from the initial
demonstration (See 40 CFR 148.20  (f) &
UIC Program Guidance* 74)). Based on
this information, promulgation of the
Phase IV LDRs should have little impact
on any facilities with approved
petitions.
  EPA estimates that approximately five
million tons of mineral processing
wastes are being disposed annually in
UIC wells. Of these, approximately three
million tons are attributable to titanium
dioxide production from two DuPont
facilities.  This volume is a conservative
estimate based on highly complex,  non-
segregable waste stream mixtures. This
total volume would be subject to the
LDR treatment standards. Titanium
dioxide (TiO2) production wastes are
either generated onsite at facilities  with
injection wells, or at  facilities without
injection.  For these DuPont facilities,
this waste is generated and  disposed
onsite by injection wells. In order for
these facilities to continue injection of
this restricted waste, a no-migration
petition must be approved to meet the
conditions of 40 CFR Part 148.20 of the
UIC regulations.
  For those facilities disposing
restricted Phase IV TiO2 mineral
processing waste, their options may be
limited to meeting treatment standards
(onsite or offsite), submitting a no-
migration petition, transporting their
                         waste to a commercial Class I hazardous
                         disposal well facility, or deactivating
                         (diluting) the waste to make it
                         nonhazardous before injection (see
                         RCRA section 3004 (g) (9), a recent
                         amendment which allows such
                         dilution). All of these options are
                         resource intensive and owners/operators
                         of these facilities will be faced with
                         critical economic and business
                         decisions. These TiO2 facilities do not
                         have immediate capability to treat their
                         waste onsite. If they were to opt for
                         treatment onsite, it would require
                         substantial time and resources to build
                         a treatment facility or to substantially
                         modify their existing facility. It would
                         take at least two years (and possibly
                         longer) to construct such a treatment
                         system. In evaluating various disposal
                         alternatives, one DuPont facility is
                         currently constructing a treatment
                         works that will integrate a
                         neutralization project based on current
                         production. As an alternative to deep
                         well injection disposal, the long term
                         construction at this facility has been
                         costly and operational start-up will
                         require additional time  to work out
                         issues. See DuPont letter of Feb. 5, 1998.
                           With respect to the options of
                         managing the waste water offsite, severe
                         practical constraints limit the
                         availability of capacity to these DuPont
                         Ti02 facilities. A typical volume of Ti02
                         wastewater is 900,000 Gallons (3,750
                         tons)  per day; and peak production
                         volumes are 1 million Gallons (4,167
                         tons)  per day. DuPont letters of Feb. 5
                         & 20, 1998. At peak production, this
                         would take 200 tanker trucks per day for
                         each affected facility to ship the volume
                         of waste that is currently injected.
                         Additionally, these trucks must be
                         constructed with fiberglass or titanium
                         tanks to be compatible to the low pH-
                         highly corrosive acid waste (Note from
                         ICF to R. E. Smith to RCRA Docket (Feb.
                         17, 1998)). Indeed, it is not even certain
                         that existing 10, 000 gallon tanker trucks
                         are compatible with this wastestream,
                         due to its weight (the TDS content is so
                         high that a 10, 000 gallon tanker could
                         only be half full) and corrosivity.
                         Dupont letter of Feb. 20, 1998.
                          Commercial waste management
                         facilities normally cannot feasibly
                         accommodate this daily volume. There
                         are at least ten operating commercial
                         Class I hazardous waste injection
                         facilities nationwide, it is uncertain
                         whether they have the capacity to
                         accept 3 million tons of TiO2 mineral
                         processing waste annually for disposal
                         because of permitting limitations. These
                         commercial wells also have finite
                         capacity limitations. The Agency
                         studied the operational permit
                         parameters of these commercial
 facilities and found that individual
 injection and flow capacity rates
 (UICWELLS Database) may restrict
 injection of additional high volumes of
 waste. Rates are scientifically and
 mathematically determined to avoid
 damage to the well and the injection
 zone. Further study of compatibility
 requirements for these wells suggest that
 they have acceptable construction for
 most wastes disposed but not
 necessarily for the TiO2 production
 waste in its present concentration.
 Without pretreatment, these waste
 characteristics would require a more
 exotic well construction that is
 composed of fiberglass injection tubing,
 titanium casing and packer, epoxy and
 acid resistance compatible cement.
  EPA has also looked at commercial
 wastewater treatment capacity in the
 vicinity of the two DuPont facilities. For
 one facility, there are no available
 commercial waste water treatment
 plants within 200 miles. For the other
 facility, there are two treatment plants
 within 75 miles but neither has the
 capacity to accept the high volumes of
 waste generated by either DuPont
 facility (based on BSR data).
 Commercial waste water treatment
 facilities generally handle corrosive
 toxic metal waste waters by stabilization
 and neutralization techniques.
 Treatment plants managing the Ti02
 production waste waters would have to
 be specially constructed and equipped
 not only to be amenable to a high
 volume of acidic waste but also have the
 capacity to manage the huge amount of
 solids that will yield from treatment.
 Thus, wastewater treatment requires
 having pre-storage and processing units,
 adequate chemicals to neutralize the
 corrosive characteristic of the waste and
 stabilization technology to immobilize
 the metals before they are either stored
 onsite, marketed, or landfilled. While
 the Agency is satisfied that this
 treatment technology is applicable to
 T102 waste water, there is much
 reservation whether DuPont's facilities
 could realistically mobilize 200 tanker
 trucks per day per facility to safely ship
 this waste to these treatment facilities
 even if treatment capacity were readily
 available at them.
  The statute also allows injection of
 waste waters which no longer exhibit a
 characteristic into Class I wells without
 meeting any other LDR treatment
 standard, and dilution may be used as
a means of decharacterizing the waste.
 RCRA section 3004 (g)  (9). However,
 deactivation of certain characteristic
wastes through dilution is not always
practical or even feasible. The whole
waste stream process may not be
amenable to dilution prior to injection

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              Federal Register/Vol.  63,  No. 100/Tuesday, May 26,  1998/Rules and Regulations
                                                                    28627
at the wellhead, and the geologic
reservoirs into which the wells inject
have a finite capacity. Sometimes filling
up reservoirs with huge volumes of
additional water shortens the life of the
well operation because reservoir
pressures build up much more quickly
and the injection zone becomes
"overpressurized." EPA finds that this
Is the case for the TiO2 wastewater at
issue here. Thus, the dilution option
cannot be utilized here to find that there
Is adequate available treatment capacity
for these TiO2 wastes.
  Capacity analyses usually focus on
the demand for alternative capacity
once existing on-site capacity and
captive off-site capacity have been
accounted for. However, capacity also
may be unavailable if there is no
practical means of utilizing it due to
logistical problems. For example, in the
Third Third rule. EPA relied on such
logistical factors to determine when
capacity was realistically available (see
55 FR 22645-22646, June 1, 1990). The
Agency noted that injection wells at on-
site facilities are directly connected to
the plant operations and that in order to
realistically arrange for off-site
disposition of the waste, the plant
managers will need time to make
considerable logistical adjustments such
as. replping, retooling, and development
of transportation networks at the plant
operations. Similarly, forTiO2 waste
facilities, the Agency doesn't believe
that treatment capacity is available since
there is no feasible way for generators to
transport their wastes to the treatment
facilities at this time, plus all of the
other repiping that would be entailed.
The Agency believes that it would take
at least two years for the TiO2 facilities
to alter their operations to ship
wastewater to offsite facilities and for
off-site facilities to make corresponding
changes to their operations to
accommodate the large influx of highly
corrosive, high volume, dense
wastewater (even if off-site facilities
were to be willing to accept the waste,
which is quite unclear).
  Under these circumstances, the
Agency finds that there is inadequate
treatment, recovery, or disposal capacity
presently available for TiO2 injected
waste waters currently being injected
into Class I hazardous wells, and
therefore is granting a two-year national
capacity variance for these wastes. The
Agency expects that affected generators
will utilize this period for applying for
no-migration petitions for their existing
wells, or to construct on-site wastewater
treatment systems.
  EPA estimates that there is
approximately 2 million tons of other
injected Phase IV mineral processing
wastes (i.e. from processes other than
TiO2 production). One facility with the
largest volume of that injected waste has
applied for and received an approved
no-migration petition thus meeting the
conditions of 40 CFR Part 148.20. The
rest of these facilities are  either applying
dilution as a means of decharacterizing
their waste (as allowed under Section
3004(g)(9)), or are treating their waste
before disposal. Their waste volumes
are much less than the TiO2 production
waste being injected. Since the volume
of wastes is so much less than TiO2, and
the wastes are more amenable to
conventional management, EPA does
not see the same types of difficulties
arising, and is therefore not delaying the
effective date of the prohibition for
these facilities. (See UIC background
document).

F. Mixed Radioactive Wastes

  Significant uncertainty exists about
quantities of mixed radioactive wastes
containing wastes that will require
treatment as a result of today's rule.
Despite this uncertainty, any new
commercial capacity that becomes
available will be needed for mixed
radioactive wastes that were regulated
in previous LDR rulemakings and whose
variances have already expired. Thus,
EPA has determined that sufficient
alternative treatment capacity is not
available, and therefore is granting a
two-year national capacity variance for
mixed RCRA/radioactive TC metal
wastes that are newly identified (i.e.,
wastes, soil, or debris  identified as
hazardous by the TCLP but not the EP),
and newly identified characteristic
mineral processing wastes including
soil and debris.

G. Summary
  Table 1 summarizes the capacity
variance determination for each
category of Phase IV RCRA wastes for
which EPA is promulgating LDR
treatment standards.
                               TABLE OF CAPACITY VARIANCES FOR PHASE IV WASTES
                                  [Note: Capacity variances begin from the publication date]
Waste description

Newly Identified mineral processing wastes from titanium dioxide production 	
Newty Identified TC metal wastes (i e wastes identified as hazardous by the TCLP but not the
EP), and newly identified characterisitc mineral processing wastes including soil and debris
Radioactive wastes mixed with newly identified TC metal wastes (i e wastes identified as haz-
ardous by the TCLP but not the EP), and mixed with newly identified characteristic mineral
processing wastes, including soil and debris
Surface-disposed
wastes
Two years 	
90 days 	
90 days 	
Two years 	

Deep well-injected
wastes
Not applicable.
Two years.
90 days.
Two years.

X. Change to Definition of Solid Waste
To Exclude Wood Preserving
Wastewaters and Spent Wood
Preserving Solutions From RCRA
Jurisdiction

  Summary: As proposed on May 12,
1997 {FR 62 26055), EPA is today
amending the definition of solid waste
to exclude wood preserving wastewaters
and spent wood preserving solutions
from RCRA jurisdiction provided that
certain conditions are met, as specified
below.

A. Summary of the Proposal

  On May 12, 1997 in the Phase IV LDR
second supplemental rulemaking, EPA
proposed to amend the RCRA
regulations to provide an exclusion from
the definition of solid waste for certain
materials generated and recycled by the
wood preserving industry. Specifically,
the proposal would exclude certain
wood preserving wastewaters and spent
wood preserving solutions from
classification as solid waste under
RCRA. Any wood preserving plant
claiming the exclusion for these wastes
would need to manage them according
to the following criteria: (1)  the
materials must be recycled and reused
on-site in the production process for
their original intended purpose; (2) the
materials must be managed to prevent
release; (3) the plant must assure that
the units managing these materials can
be visually or otherwise determined to

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Federal  Register/Vol. 63, No.  100/Tuesday, May 26, 1998/Rules and Regulations
prevent releases; and (4) drip pads
managing these materials must comply
with Subpart W drip pad standards
regardless of whether the plant has been
classified as a conditionally exempt
small quantity generator (CESQG) (see
40 CFR 261.5). For a more detailed
discussion of these conditions, please
consult the relevant sections in the May
12, 1997 proposed rule.
  As noted above, the exclusion was to
be limited to wood preserving
wastewaters and spent wood preserving
solutions that are recycled and reused
on-site at wood  preserving plants in the
production process for their original
intended purpose. As EPA explained in
the proposal, any listed wastewater or
spent solution that is not recycled on-
site according to the conditions of the
exclusion is not excluded from the
definition of solid waste. Moreover, the
F032, F034 and  F035 listings cover
wastestreams other than wastewaters
and spent solutions. These other listed
wastestreams would not be eligible for
exclusion even if recycled. This could
include materials associated with
wastewaters and spent solutions, such
as residues that accumulate in a drip
pad sump. EPA affirms this scope of the
exclusion for the final rule.
  It was neither the Agency's intent nor
belief that the proposed exclusion
would in any way reduce 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
§264.570{c) and §265.440(c)
requirements under for response to
infrequent and incidental drippage in
storage yards. The Agency specifically
requested comment on whether the
proposed exclusion would reduce these
requirements. The Agency also sought
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 to
submit it to either the EPA Regional
Administrator or State Director to allow
review. Finally, EPA asked for comment
concerning the conditions under which
the proposed exclusion, once claimed,
would no longer apply.
  Of course, this exclusion from the
definition of solid waste under the
federal RCRA statute does not modify
any regulatory requirements that are
independently imposed under other
environmental statutes.
B. Modifications to the Proposal
  The Agency received four sets of
comments on the proposed exclusion
for wood preserving wastewaters and
spent wood preserving solutions. While
some comments were supportive of the
                        proposal, others were critical of the
                        Agency for, among other things,
                        relinquishing some regulatory oversight
                        of the wood preserving industry. The
                        comments  EPA received on the scope of
                        the proposed exclusion and the
                        Agency's response can be found in the
                        docket for this rulemaking. All
                        comments  were carefully considered.
                        This section addresses those changes
                        that EPA made to the proposed rule
                        based on comments the Agency
                        received. The next section ("Other
                        Comments")  addresses those aspects of
                        the proposal  that, though they remain
                        unchanged by today's rule, require
                        further clarification based on the
                        comments  received.

                        1. Notification
                          EPA received two responses to its
                        request for comment on whether it was
                        necessary for a plant claiming the
                        proposed exclusion to provide notice to
                        the appropriate regulatory agency and, if
                        so, what type of notice that should be.
                        One commenter suggested that the
                        publication of the exclusion and its
                        effective date by EPA in this final rule
                        would serve as sufficient notice, and
                        that notification on a plant specific basis
                        is unnecessary. EPA does not consider
                        publication of the final rule to provide
                        adequate notice on the names and
                        locations of wood preserving plants
                        planning to operate under the
                        conditional exclusion. Moreover, EPA is
                        concerned that this commenter may
                        have  assumed that the exclusion would
                        take effect  nationwide upon publication.
                        As explained below in the section titled
                        "state authorization," this is not correct.
                        The exclusion will not take effect in any
                        authorized state unless and until the
                        state  adopts it.
                          The other commenter suggested that it
                        is appropriate for wood preserving
                        plants claiming an exclusion for their
                        recycled wastewaters and spent
                        solutions to notify the appropriate state
                        agency. EPA  considers notification to
                        the appropriate regulatory agency to be
                        essential to the proper implementation
                        of this provision. To allow EPA and
                        authorized states to verify that the
                        conditions placed upon today's
                        exclusion are properly met, it is
                        important that wood preserving plants
                        inform the appropriate Regional
                        Administrator or State Director that they
                        are claiming  the exclusion and will
                        therefore be reporting significantly
                        lower waste generation totals. EPA is
                        therefore revising the proposed
                        exclusion to require a plant owner or
                        operator (prior to operating pursuant to
                        this exclusion)  to submit to the
                        appropriate Regional Administrator or
                        State Director a one-time notification
stating that the plant intends to claim
the exclusion, giving the date on which
the plant intends to begin operating
under the exclusion, and containing the
following language: "I have read the
applicable regulation establishing an
exclusion for wood preserving
wastewaters and spent wood preserving
solutions and understand it requires me
to comply at all times with the
conditions set out in the regulation."
The plapt must maintain a copy of that
document in  its on-site records for a
period of no less than 3 years from the
date specified in the notice.

2. Conditions Under Which the
Exclusion Would No Longer Apply
   EPA requested comment on
conditions that void the exclusion.
Specifically, EPA asked whether a spill
should result in the loss of the exclusion
just for the spilled material, or also for
the wastewaters and spent solutions
generated after the spill occurred. EPA
received two  comments on conditions
under which  the exclusion, once
claimed, would no longer apply. One
commenter stated that RCRA regulation
should be required for all materials that
are spilled or otherwise exit the
recycling loop. The other commenter
suggested that "a simple spill... is
obviously not related to the normal
operation of the drip pad . . ."and
should therefore not void the  exclusion
for wastewaters and spent solutions that
are collected  and not spilled or released.
   EPA agrees with the commenter who
took the position that the spilled
material itself should be ineligible for
the exclusion. The spilled material
inherently fails to meet the condition
requiring plant operators to manage
wastewaters and solutions so  as to
prevent releases. Although there could
potentially be conditions under which a
spilled material could still be eligible
for the existing exclusions under
§261.4(a)(9)(i) and (ii) following
reclamation, such materials are in all
cases ineligible for today's new
exclusion under § 261.4(a) (9) (iii).
   To respond to the second comment,
EPA has decided to clarify the effect of
a violation of any condition, including
the condition prohibiting spills, on
wastewaters and spent solutions
generated after a violation occurs. EPA
has decided that the exclusion should
not be available until the plant owner or
operator notifies the appropriate
regulatory agency, and the agency
determines that the problem has been
adequately addressed. It is appropriate
to impose this requirement even for
spills, because the significance of a spill
may vary greatly from plant to plant and
from incident to incident. EPA hopes

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               Federal  Register/Vol. 63, No.  100/Tuesday,  May 26, 1998/Rules and Regulations
                                                                    28629
 that a reviewing agency would quickly
 reinstate the exemption after a one-time
 spill, particularly if small, and would
 not require specific actions to correct
 the problem. In contrast, EPA would
 expect the reviewing agency to require
 specific actions (such as creation and
 implementation of a spill prevention
 plan) for a plant that experienced
 repeated spills. EPA believes the
 severity of any violation and the precise
 actions needed to return the plant to
 compliance can best be assessed on a
 case-by-case basis. EPA has added
 language to the regulation to clarify this
 issue. It applies to all of the conditions
 of the exclusion.
 C. Other Comments
   A number of comments indicated a
 need for EPA to clarify other aspects of
 the proposal that the Agency is
 finalizing today.
 1. Oil Borne Facilities
   One commenter suggested that the
 exclusion that EPA is finalizing today
 applies not only to water borne wood
, treating plants but also to oil borne
 wood treating plants. At the time of
 proposal, EPA intended to create an
 exclusion only for plants using water
 borne preservatives. See, for example,
 the discussion at 63 FR 26057, col. 1.
 EPA did not evaluate oil borne plants at
 the time. It is EPA's general
 understanding that plants which use oil
 borne preservatives do not recycle
 wastewateTS and spent solutions by
 using them in the work tank to treat
 wood. Rather, they reuse these
 wastewaters in cooling systems, vacuum
 seals, and other devices. EPA wants to
 limit today's exclusion to materials that
 are reused for their original intended
 purpose—the treatment of wood. EPA
 has not had time to investigate the
jurisdktional and factual issues posed
 by the use of wastewaters for other,
 more ancillary purposes. Consequently,
 EPA is not expanding the exclusion
 beyond the proposal. It applies only to
 water borne processes.
 2. Application of the Conditions to
 Units Other Than the Drip Pad
   One commenter expressed opposition
 to "any language that would extend the
 EPA's RCRA authority to devices that
 have previously not been regulated
 under RCRA." In view of this comment,
 the Agency is prompted to clarify that
 the conditions for claiming the
 exclusion must be met with regard to
 any unit that comes into contact with
 the recycled wastewaters and spent
 wood preserving solutions excluded in
 today's rule.
  Thus, sumps or other units that are
arguably part of an exempt wastewater
treatment unit and that manage
wastewaters and spent solutions are
subject to these conditions. EPA has
already stated that "management to
prevent releases would include, but not
necessarily be limited to, compliance
with [Subpart W] and maintenance of
the sumps receiving the wastewaters
and spent solutions from the drip pad
and retort to prevent leaching into land
and groundwater." (62 FR 26057). The
Agency must be able to verify that the
excluded materials are being managed
to prevent release at every step of the
recycling process through reclamation
to ensure that the basic technical and
policy conditions underlying the
exclusion are properly met.

3. Relationship of Today's Exclusion to
Previous Industry Exclusions
  One commenter wanted to assure that
today's exclusion would not now
regulate units that transmit or store
materials that have been excluded
according to other, currently existing
regulations. EPA does not intend to use
today's exclusion to rescind either of the
exclusions that the Agency has
previously granted the wood preserving
industry under §§261.4(a)(9)(i) and (ii).

4. Units That May Be Visually or
Otherwise Determined to Prevent
Release
  One commenter expressed concern
that the term "units" is an overly broad
way to refer to those portions of the
system subject to RCRA inspection. EPA
will now clarify which "units" are
subject to inspection under the
conditions of this exclusion. As
mentioned above, all units that come
into contact with the excluded materials
prior to reclamation must necessarily be
subject to verification that they are able
to contain these materials in a manner
that prevents their release to the
environment. This includes, but is not
necessarily limited to, any drip pad,
sump, retort or conduit that conies into
contact with the wastewaters and spent
solutions prior to reclamation. This also
includes any unit that is arguably part
of a plant's wastewater treatment system
but that comes into contact with the
wastewaters or spent solutions prior to
reclamation. An inspector must be able
to determine (by visual or other means)
whether these units are managing the
wastewaters and spent solutions in a
manner that prevents release. When
relying on a visual inspection (as
opposed to a leak detection system or
other means), it may be necessary for an
inspector to require these units be
drained or cleaned for the inspector to
 make an informed determination as to
 whether the unit is cracked or leaking.

 5. CESQG Status
   One commenter also requested EPA to
 prevent wood preserving plants from
 becoming conditionally exempt small
 quantity generators (CESQGs) after
 claiming the exemption. The commenter
 was concerned that other, non-excluded
 wastestreams generated at these plants
 that are covered by the listings would
 no longer be subject to any hazardous
 waste regulation. As explained in more
 detail in the response to comment
 document, EPA lacks sufficient
 information about the volumes of these
 other wastes and the risks they pose to
 promulgate a rule creating an exception
 to the long-established CESQG
 exemption for them.
 D. State Authorization
  Upon promulgation, this exclusion
 will immediately go into effect only for
 plants in those states and territories that
 are not currently authorized to
 implement the RCRA program (i.e.,
 Alaska, Iowa, Hawaii, American Samoa,
 Northern Mariana Islands, Puerto Rico
 and Virgin Islands). Plants in these
 states are subject to the provisions of the
 federal program. Conversely, any plant
 located in a RCRA authorized state will
 be unable to claim the exclusion we are
 finalizing today unless and until that
 state amends its regulations to include
 the exclusion. Because EPA allows state
 programs to be more stringent than the
 federal program, it is not necessarily
 guaranteed that all authorized states
 will elect to adopt this exclusion.
 XI. Clarification of the RCRA Exclusion
 of Shredded Circuit Boards
  In the May 12, 1997 final rule on Land
 Disposal Restrictions, the
 Environmental Protection Agency (EPA)
 excluded shredded circuit boards from
 the definition of solid waste
 conditioned on containerized storage
 prior to recovery. To be covered by this
 exclusion shredded circuit boards must
 be free of mercury switches, mercury
 relays, nickel-cadmium batteries or
 lithium batteries. On a related issue,
 current Agency policy states thatwhole
 circuit boards may meet the definition
 of scrap metal and therefore be exempt
from hazardous waste regulation. In a
parenthetical statement in the May 12,
 1997 rule, the Agency asserted that
whole used circuit boards which
contain mercury switches, mercury
relays, nickel-cadmium batteries, or
lithium batteries also do not meet the
definition of scrap metal because
mercury (being a liquid metal) and
batteries are not within the scope of the

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Federal Register/Vol. 63, No. 100/Tuesday, May  26,  1998/Rules  and Regulations
definition of scrap metal. The preamble
cited 50 FR 614, 624 (1985).
  Members of the electronics industry
expressed concern to the Agency about
the preamble statement regarding the
regulatory status of whole used circuit
boards which contain mercury switches,
mercury relays, nickel-cadmium
batteries, or lithium batteries. The
electronics industry indicated that its
member have developed a sophisticated
asset/materials recovery system to
collect and transport whole used circuit
boards to processing facilities. The
industry explained that the boards are
sent to processing facilities for
evaluation (continued use, reuse or
reclamation) where the switches and the
types of batteries are generally removed
by persons with the appropriate
knowledge and tools for removing these
materials. Once these materials are
removed from the boards, they become
a newly generated waste subject to a
hazardous waste determination. If they
fail a hazardous waste characteristic,
they are handled as hazardous waste,
otherwise they are managed as a solid
waste. Information was also provided
regarding the quantity of mercury on
these switches and on the physical state
in which they are found  on the boards.
The information indicates that the
mercury switches and relays on circuit
boards from some typical applications
contain between 0.02-0.08 grams of
mercury and are encased in metal which
is then coated in epoxy prior to
attachment to the boards.
  In today's final rule, the Agency
recognizes that the preamble statement
in the May 12, 1997  final rule is overly
broad in that it suggested that the scrap
metal exemption would not apply to
whole used circuit boards containing
the kind of minor battery or mercury
switch components and that are being
sent for continued use, reuse, or
recovery. It is not the Agency's current
intent to regulate under RCRA circuit
boards containing minimal quantities of
mercury and batteries that are
protectively packaged to minimize
dispersion of metal constituents. Once
these materials are removed from'the
boards, they become a newly generated
waste subject to a hazardous waste
determination. If they meet the criteria  ,
to be classified as a hazardous waste,
they must be handled as hazardous
waste, otherwise they must be managed
as a solid waste.

XII. 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 final rule to determine if it is a
                         significant regulation as defined by  the
                         Executive Order.  The analysis
                         considered compliance  costs and
                         economic impacts for newly identified
                         wastes affected by this rule, as well  as
                         media contaminated with these wastes.
                         In addition, the analysis addresses the
                         cost savings associated with the new
                         soil treatment standards being
                         promulgated in today's 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. Today's final rule also
                         covers treatment standards for
                         contaminated media (i.e., soil and
                         sediment). EPA estimates the total cost
                         of the rule to be a savings of $6 million
                         annually, and concludes that this rule is
                         not economically significant according
                         to the definition in E.O. 12866.
                         However, the Agency does  consider this
                         rule to be significant for novel policy
                         reasons. 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 documents: (1)
                         "Regulatory Impact Analysis of the
                         Phase IV Land Disposal  Restrictions
                         Final Rule for Newly Identified Mineral
                         Processing Wastes," (2)"Regulatory
                         Impact Analysis of the Phase IV Land
                         Disposal Restrictions Final  Rule for TC
                         Metal Wastes," and (3) "Regulatory
                         Impact Analysis of the Phase IV Land
                         Disposal Restrictions Final  Rule for
Contaminated Media," which were
placed in the docket for today's final
rule.

1. Methodology Section

   The Agency estimated the volumes of
waste and contaminated media 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
or risk-screens used to document the
inherent hazard of materials being
evaluated.

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 secondary
materials. The estimated volume for
these potentially affected newly
identified mineral processing secondary
materials is 22 million tons. Also,
approximately 1.3 million tons of
contaminated soil containing coal tar
and other wastes from manufactured gas
plants are potentially affected by this
rule. As discussed below, EPA does not
believe that any TC metal process
wastes are potentially affected by
today's final rule. EPA estimates that
approximately 165,000 tons per year of
soil and sediment contaminated with
TC metals and approximately 90,000
tons per year of previously regulated
contaminated soils is impacted by
today's rule.
   b. Cost Results For the part of today's
final rule that prohibits land storage of
mineral processing residues (below the
high volume threshold) prior to being
recycled, EPA estimates these expected
case annualized compliance costs to be
$10 million. The cost results for this
part of today's final rule are a function
of two factors: (1) the expense
associated with purchasing new storage
units or upgrading existing storage
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 wastes the Agency
believes that there will be no
incremental costs associated with
stabilization of these wastes from the
promulgation of these treatment
standards.47 In addition, EPA believes
  47 One possible exception to this are producers of
hazardous waste-derived fertilizers. This is

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               Federal  Register/Vol. 63, No. 100/Tuesday, May 26.  1998/Rules and Regulations
                                                                     28631
 that there will be no incremental
 treatment costs for the treatment of TC
 metal wastes that contain organic
 underlying hazardous constituents.
 Based on public comment and data
 collected from commercial hazardous
 waste treaters and generators, EPA
" believes that TC metal wastes are often
 already treated to these universal
 treatment standard levels when waste
 handlers treat to the current treatment
 standards using bona fide treatment
 reagents (e.g., portland cement).48
 Therefore, no additional treatment
 reagent or capital equipment associated
 With stabilization is required with these
 wastes.
   Previously, EPA had estimated costs
 to the nonferrous foundry industry
 associated with complying with today's
 treatment standards. This estimate was
 modeled on trisodium phosphate with a
 ph buffer. When this type of treatment
 reagent is used, incremental quantities
 are required to achieve the universal
 treatment standards for cadmium
 promulgated in today's rule. However,
 based on contacts with trade
 associations and vendors of stabilization
 equipment, EPA  believes that portland
 cement Is equal to or less than the cost
 of trisodium phosphate and is therefore
 a more appropriate choice for modeling
 a compliance baseline from which to
 estimate the costs of the rule. Unlike
 trisodium phosphate, portland cement
 currently being used to meet existing
 treatment standards has been shown to
 meet the universal treatment standards
 without additional reagent.
 Accordingly, EPA believes that no
 incremental costs (or benefits) for
 stabilization are attributable to the
 promulgation of the universal treatment
 standards for TC metal wastes.
   Although according to the American
 Foundrymen's Society iron filings are
 used by many nonferrous foundries as a
 treatment reagent, for the reasons
 discussed above  under Section III (f),
 EPA does not believe that iron filings
 are a legitimate and effective form of
 treatment. Therefore, the costs of
 switching from iron filings to another
 form of treatment reagent such as
 portland  cement is more appropriately
 characterized as a cost of coming into
 compliance with already existing
 treatment standards rather than an
 incremental cost attributable to today's
 rule. Although EPA does not believe the
 discussed below under the Regulatory Flexibility
 section,
   "December 19,1996 letter to Anita Cummings.
 USEPA Office of Solid Waste from Michael G.
 Fusco, Director of Regulatory Analysis. Rollins
 Environmental Inc.. pA of edited draft EPA trip
 report letter to Rollins Highway 36 facility in
 Colorado,
cost of switching from iron filings to
another treatment reagent is attributable
to today's final rule, the Agency has
estimated these compliance costs and
included this information in the
background document "Regulatory
Impact Analysis of the Phase IV Land
Disposal Restrictions Final Rule for TC
Metal Wastes," which was placed in the
docket for today's final rule. EPA
estimates that the annual cost to
nonferrous foundries to switch from
iron to portland cement to stabilize
hazardous foundry sands is $11.7
million. Results from the risk screen for
nonferrous foundry sands are discussed
below.
  For TC metal hazardous wastes that
contain organic underlying hazardous
constituents, one commenter has
suggested that the Phase IV final rule
would result in costs resulting from
changing from stabilization of these
wastes to incineration.  EPA has
evaluated data from the National
Hazardous Waste Constituent Survey to
assess both the prevalence and level of
organic  underlying hazardous
constituents in TC metal wastes (solid
and sludges). The results indicate that
organic  underlying hazardous
constituents are rarely present in these
wastes.  Only seven of 181 TC metal
hazardous wastes examined contained
organic  underlying hazardous
constituents. Of these seven, only three
contained organics above the Univeral
Treatment Standard. None of the three
waste steams that contained organics
above the Univeral Treatment Standard
was present in concentrations high
enough  to warrant incineration. In short,
it is unlikely that organic underlying
hazardous constituents will be present
in TC metal wastes. And if present,
incineration is unlikely to be used to
treat these wastes. For reasons, EPA
believes that the Phase  IV final rule will
not result in incremental costs for TC
metal wastes containing organic
underlying hazardous constituents.
  The Agency is also promulgating new
soil treatment standards in today's final
rule. As these  standards are less
stringent than those currently required
for previously regulated soils, an
estimate of the cost savings associated
with these standards has been prepared.
The total incremental savings estimated
for the new soil treatment standards is
$25 million per year.
  For contaminated soils which exhibit
a characteristic for TC metals (including
soils containing newly identified
mineral processing wastes) but do not
contain  organic underlying hazardous
constituents, there is no incremental
cost expected from today's rule. These
soils are subject to the new treatment
standards which are less stringent than
current LDR treatment standards for
contaminated soils. The one category of
TC hazardous metal contaminated soil
that is potentially impacted by today's
rule is TC hazardous metal
contaminated soil which contains
organic underlying hazardous
constituents. These soils require
additional treatment over that received
in the baseline to effectively treat the
organic constituents of concern. The
Agency estimates that this additional
requirement will result in a $3 million
per year cost for these wastes, occurring
mainly at voluntary cleanups and
Superfund sites.
  Manufactured gas plant contaminated
soils (MGP) are a class of contaminated
media that has heretofore not been
subject to LDR treatment standards. EPA
believes that some incremental costs
may result from today's final rule to
MGP clean ups involving the use of
MGP soils in land applied recycling
such as hot or cold mix asphalt, brick
and concrete. It is possible that some of
these soils will not meet the conditional
exemption for waste-derived products
that are used in a manner constituting
disposal. 40 CFR §266.20(b). For this
reason, it is also possible that owner/
operators of these sites may select an
alternative remedy such as in-situ
treatment or co-burning which are not
affected by today's rule. On balance,
EPA still believes that the promulgation
of new treatment standards will
encourage remediation of hazardous
soils. The estimated annual costs to
owner/operators of MGP sites for
selecting remedies that are alternatives
to asphalt, brick or concrete recycling
are $6.2 million.
  c. Economic Impact Results. To
estimate potential economic impacts
resulting from today's final rule, EPA
has used first order economic impacts
measures such as the estimated
compliance cost of the rule as a
percentage of sales/revenues, value
added (sales less and material cost) and
profit or return on capital. EPA has
applied these measures to newly
identified mineral processing hazardous
wastes.
  For recycled mineral processing
secondary materials, EPA has evaluated
the estimated compliance costs as  a
percentage of value (i.e. sales), value
added and profits of the mineral
commodities produced in each sector.
In-addition EPA has compared
estimated compliance costs as a
percentage of revenues to specific
mineral processing firms to provide
additional information on potential
impacts.

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Federal  Register/Vol.  63,  No. 100/Tuesday, May 26, 1998/Rules and Regulations
   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. In the expected case
 scenario up to 5 of the 29 commodity
 sectors are expected to incur
 compliance costs equal to or greater
 than 1 percent of the economic value of
 the mineral commodities produced
 under the Agency's proposed option in
 today's rule. These sectors include:
 cadmium, fluorspar and hydrofluoric
 acid, mercury, selenium and tungsten.
 The range of percentages in these
 sectors is between 2 percent (cadmium)
 and 36 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 secondary materials. For example,
 EPA has estimated that today's final rule
 may affect the cadmium and selenium
 sectors by imposing incremental costs
 equal to 18 percent of the value added
 of those minerals. The value added is
 equal to the market value of the  i
 minerals less the cost of the raw
 materials (i.e., ore concentrate).
 Cadmium is a co-product of zinc
 production and selenium is co-product  :
 of copper production; hence, these
 economic impacts are expected
 primarily to affect the production of
 these co-products and the reclamation
 of their residuals rather than the mineral
 processing operation as a whole.
 Because recovery for these co-product
 residuals is generally less expensive
 than treatment and disposal, EPA
 believes that the costs for these
 residuals will not significantly decrease
 their recovery although the storage costs
 could add to the expense.
  As stated above, the Agency believes
 that there are no incremental costs
 associated with today's final rule for
 stabilization for handlers of TC metal
 hazardous wastes. Moreover, the
 Agency believes that there are  no
 incremental costs associated with TC
 metal wastes containing organic
 underlying hazardous constituents may
 incur costs as described above  and
 corresponding impacts. Accordingly,
 there is no economic impact for waste
 handlers managing TC metal wastes.
  For TC hazardous foundry sands, EPA
also believes that there is no economic
impact attributable to today's final rule.
As stated above,  EPA views the cost
associated from switching from iron
filings to cement or other treatment
                         reagent are not properly considered
                         attributable to this rulemaking but
                         rather a cost of coming into compliance
                         with existing regulations. Moreover,
                         even if these costs were attributable to
                         this rulemaking, EPA estimates that
                         incremental costs attributable to this
                         switching from iron filings to portland
                         cement are less than one percent of
                         industry revenues and six percent of
                         industry profits and therefore would 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.
                           As previously stated, EPA does not
                         believe there are incremental costs
                         associated with today's rule for TC
                         hazardous metal contaminated soils
                         except for TC hazardous metal
                         contaminated soils that contain organic
                         underlying hazardous constituents. EPA
                         has evaluated the industries generating
                         these TC metal organometallic soils and
                         has determined that incremental costs
                         from today's final rule do not impose a
                         significant impact.
                           Similarly, EPA has determined for
                         MGP site  clean ups that the economic
                         impact of today's rule is not a
                         significant impact. The estimated
                         percentage of compliance costs to firm
                         sales is less than 1 percent.
                           d. Individual Risk Estimate Results.
                         The Agency has performed an
                         individual risk analysis to estimate the
                         quantifiable central tendency and high-
                         end hypothetical individual risk for
                         mineral processing secondary materials
                         associated with today's final rule to be
                         above levels of concern for cancer and
                         noncancer risks for specific mineral
                         processing streams in both groundwater
                         and nongroundwater pathways. Results
                         suggest that central tendency and high-
                         end hypothetical individual cancer and
                         non-cancer risks may be decreased
                         below lxlO~s and below a reference
                         dose ratio of 1 in a number of mineral
                        processing facilities. These results are
                        linked primarily with mineral
                        processing liquid secondary materials
                        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 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 each pathway. This
 could result in overestimation in risks
 due to double counting of constituent
 mass. To address this factor, EPA
 conducted mass balance calculations for
 all non-groundwater 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 of
 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.
   As stated above the Agency's efforts to
 evaluate benefits for mineral processing
 secondary materials were limited to
 calculations for central tendency and
 high-end individual risk. However, due
 to data limitations, the Agency has been
 unable to evaluate additional more
 explicit risk-reduction benefits,
 including populations benefits. In
 general, the Agency's experience has
 been that it is unusual to predict high
 population risks, unless 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
 operations49, 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.
   For TC metals, because the analysis
 shows that many handlers of TC metal
 wastes are already meeting the universal
 treatment standards being promulgated
  49 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 Southshore Wetlands for the Kennecott
Utah Copper Salt Lake City. Utah. Working Draft
March 4, 1996; May 7, 1996 letter from Max H.
Dodson, Assistant Regional Administrator for
Ecosytem Protection and Remediation, U.S.E.P.A,
Region VHI to Michael Sahpiro, Director, Office of
Solid Waste, U.S.E.P.A.

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                                                                    28633
          In today's rule, EPA does not believe
          that there are either incremental costs or
          benefits associated with stabilization of
          these wastes. However, for TC
          hazardous nonferrous foundry sands,
          the Agency has completed a risk
          screening for groundwater releases of
          lead and cadmium resulting from the
          disposal of untreated or poorly treated
          sands in municipal solid waste landfills.
          The results of the screen indicate that
          the probability the lead and cadmium
          would exceed the action level for lead
          of 0.015 mg/1 or the drinking water
          standard for cadmium of 0.005 mg/1 for
          untreated foundry sands was
          approximately 9 percent for lead and 14
          percent for cadmium. The risk results
          also showed that the probability for
          hazardous foundry sands treated to the
          universal treatment standard to exceed
          these standards were approximately 2
          percent for lead and 7 percent for
          cadmium. Because of data limitations,
          EPA is not able to demonstrate
          population benefits associated with
          effective treatment of foundry sands.
          These risk results do, however,
          document the intrinsic hazard of the
          sands and the need for effective
          treatment of these sands. However, as
          Indicated above, EPA would attribute
          any public health benefits associated
          with decreasing lead and cadmium
          concentrations from foundry sands
          leachate to coming into compliance
          with existing regulations rather than
          promulgation of today's universal
          treatment standards.
          B. Regulatory Flexibility
           The Regulatory Flexibility Act (RFA)
          generally requires an agency to conduct
          a regulatory flexibility analysis of any
          rule subject to notice and comment
          rulemaklng requirements unless the
          agency certifies that the rule will not
          have a significant economic impact on
          a substantial number of small entities.
          Small entities include small businesses,
          small not-for-profit enterprises, and
          small governmental jurisdictions. Based
          on the following discussion, this final
          rule will not have a significant impact
          on a substantial number of small
          entities.
            With respect to mineral processing
          facilities that are small entities, EPA
          believes that today's final 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 the 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.
  As discussed above in the cost and
economic impact section on TC metal
wastes, EPA has determined that
treating TC metal wastes will not result
in incremental costs to the regulated
community. As stated above, data from
commercial treaters and generators of
TC metal wastes indicate that the wastes
are already treated to below UTS levels.
Moreover, today's rule will not result in
increased costs from incinerating TC
metal wastes with organic underlying
hazardous constituents. EPA's review of
data from commercial hazardous wastes
treatment facilities indicates that TC
metal wastes with organic underlying
hazardous constituents are not prevalent
and when present would rarely require
incineration.
  Finally, after the close of the public
comment period, representatives of
small business hazardous waste-derived
fertilizer producers met with the Agency
claiming economic hardship resulting
from the Agency's proposed UTS for
metal wastes. Under existing 40 CFR
§ 266.20(b) commercial fertilizers sold
for public use must meet treatment
standards in order to be placed on  the
land. Currently all such hazardous
waste fertilizers (except for K061-
derived fertilizers) are subject to
treatment standards for metals at the
characteristic level. Based  on available
information, the Agency has found that
out of 10 secondary small business zinc
fertilizer producers only two firms in
the United States produce a hazardous
waste-derived fertilizer, meet the
definition of a small business and  are
subject to this today's rule. Considering
a limited range of regulatory responses
(such as switching from a hazardous to
a non-hazardous source of zinc waste),
EPA believes that only one of the two
firms could potentially incur a
significant economic impact. Because
only one firm in this industry  is
potentially affected by today's rule, EPA
does not consider this to be a substantial
number of small entitities.
  Additionally, there are incremental
costs estimated to result from today's
rule to facilities undergoing remediation
of TC metal contaminated soils and
sediments with organic underlying
hazardous constituents. EPA estimates
that between 34 and 93 small entities
would be impacted by these costs. Two
firms out of the 93 identified as an
upper bound estimate incurred
estimated compliance costs that exceed
1 percent of reported firm revenues.
Therefore, I certify that this action will
not have a significant economic impact
on a substantial number of small
entities.
C. Unfunded Mandates Reform Act
  Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), P.L. 104-
4, establishes requirements for Federal
Agencies to assess the effects of their
regulatory actions on State, local, and
tribal governments and the private
sector. Under Section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with "Federal mandates" that may
result in expenditures to State, local,
and tribal governments, in the aggregate,
or to the private sector, of $100 million
or more in any one year. Before
promulgating an EPA rule for which a
written statement is needed, section 205
of the UMRA generally requires EPA to
identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, most cost-
effective, or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law.
Moreover, section 205 allows EPA to
adopt an alternative other than the least
costly, most cost-effective, or least
burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted. Before EPA establishes
any regulatory requirements that may
significantly or uniquely affect small
governments, including tribal
governments, it must have developed
under section 203 of the UMRA a small
government agency plan. The  plan must
provide for notifying  potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of EPA regulatory
proposals with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
  EPA has determined that 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. The
rule would not impose any federal
intergovernmental mandate because it
imposes no enforceable duty upon State,
tribal or local governments. States,
tribes and local governments would
have no compliance costs under this
rule. It is expected that states will adopt
similar rules, and submit those rules for
inclusion in their authorized RCRA
programs, but they have no legally
enforceable duty to do so. For the same
reasons, EPA also has determined that
this rule contains no  regulatory
_

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Federal Register/Vol. 63, No.  100/Tuesday, May  26,  1998/Rules and Regulations
 requirements that might significantly or
 uniquely affect small governments. In
 addition, as discussed above, the private
 sector is not expected to incur costs
 exceeding $100 million. EPA has
 fulfilled the requirement for analysis
 under the Unfunded Mandates Reform
 Act.

 D. Paperwork Reduction Act
   The information collection
 requirements in this rule have been
 submitted for approval to the Office of
 Management and Budget (OMB) under
 the Paperwork Reduction Act, 44 U.S.C.
 3501 et seq. EPA has prepared an
 Information Collection Request (ICR)
 document: OSWER ICR No. 1442.15
 would amend the existing ICR approved
 under OMB Control No. 2050-0085.
 This ICR has not been approved by
 OMB and the information collection
 requirements, although they are less
 stringent than those previously required
 by the EPA,  are not enforceable until
 OMB approves the ICR. EPA will
 publish a document in the Federal
 Register when OMB approves the
 information collection requirements
 showing the valid OMB control number.
 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.
   Copies of this 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 Agency has estimated the average
 information collection burden of this
 final Phase IV rule to the private sector
 and the government. The burden of this
 final rule to the private sector is
 approximately 4,880 hours over three
 years, at a cost of $943,942. The burden
 to EPA is approximately 787 hours over
 three years, at a cost of $29,841. The
 term "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; process and maintain
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.
                          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.

                        XIII. 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 rule covers high-metal wastes
                        ("TC metal wastes," hazardous mineral
                        processing wastes, and mineral
                        processing materials). The rule will
                        possibly affect many facilities
                        nationwide, with the potential for
                        impacts to minority or low-income
                        communities. Today's rule 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.

                        XIV. State Authority

                        A. Statutory Authority
                         Under section 3006 of RCRA, EPA
                        may authorize qualified States to
                        administer and enforce the RCRA
                        hazardous waste program within the
                        State. Following authorization, EPA
                        retains enforcement authority under
                       sections 3008 (a) (2), 3013, and 7003 of
                        RCRA, although authorized States have
                       primary enforcement responsibility. The
                       standards and requirements for
 authorization are found in 40 CFR Part
 271.
   Prior to the Hazardous and Solid
 Waste Amendments of 1984 (HSWA), a
 State with final authorization
 administered its hazardous waste
 program in lieu of EPA administering
 the Federal program in that State. The
 Federal requirements no longer applied
 in the authorized State, and EPA could
 not issue permits for any facilities that
 the State was authorized to permit.
 When new, more stringent Federal
 requirements were promulgated or
 enacted, the State was obliged to enact
 equivalent authority within specified
 time frames. New Federal requirements
 did not take effect in an authorized State
 until the State adopted the requirements
 as State law.
   In contrast, under RCRA section
 3006(g) (42 U.S.C. 6926(g)) new
 requirements and prohibitions imposed
 by HSWA take effect in authorized
 States at the same time that they take
 effect in unauthorized States. Although
 States are still required to update their
 hazardous waste programs, EPA is
 directed to carry out the HSWA
 requirements and prohibitions in
 authorized States, including the
 issuance of permits, until the State is
 granted authorization.
   Authorized States are required to
 modify their programs only when EPA
 promulgates Federal requirements that
 are more stringent or broader in scope ,
 than existing Federal requirements.
 RCRA section 3009 allows the States to
 impose standards more stringent than
 those in the Federal program. See also
 40 CFR 271.1(i).  Therefore, authorized
 States can, but do not have to, adopt
 Federal regulations, both HSWA and
 non-HSWA, that are considered less
 stringent. Less stringent regulations,
 promulgated under both HSWA and
 non-HSWA authority, do not go into
 effect in authorized States until those
 States adopt them and are authorized to
 implement them.

 B. Effect on State Authorization
  Today's rule is promulgated in part
 pursuant to non-HSWA authority, and
 in part pursuant  to HSWA. The more
 stringent HSWA  portions of this rule
 will  become effective at the same time
 in all states. The new LDR treatment
 standards for metal-bearing and mineral
 processing wastes are being
 promulgated pursuant to section 3004
 (g)(4) and (m), provisions added by
 HSWA. (Note, however, that the
 treatment standards, even though they
 are promulgated  pursuant to HSWA,
will not apply to mineral processing
wastes unless the wastes are currently
included in the authorized State's

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              Federal Register/Vol. 63. No.  100/Tuesday, May 26,  1998/Rules  and Regulations
                                 28635
definition of solid waste.) The
application of the TCLP to mineral
processing wastes likewise implements
a HSWA provision, section 3001(g).
These requirements are being added to
Table 1 in 40 CFR 271.1Q). which
identifies the Federal program
requirements that are promulgated
pursuant to HSWA, and would take
effect in all States, regardless of
authorization status. States may apply
for final or interim authorization for the
HSWA provisions in Table 1. as
discussed in the following section of
this preamble. Table 2 in 40 CFR
271.1Q) is also modified to indicate
those provisions of this rule that are
self-implementing provisions of HSWA.
Note that there are other HSWA
provisions that are not more  stringent
than the current program, such as the
revisions to certain of the existing LDR
treatment standards. These would not
be implemented by EPA in those states
authorized for the existing provisions
prior to a State being authorized for
them. These provisions are further
discussed below.
   Today's rule contains provisions, both
under HSWA and non-HSWA authority,
that are less stringent than the current
Federal program. First is the non-HSWA
provision which would allow mineral
processing spent materials being
reclaimed within the mineral processing
industry sector, or in beneficiation
processes, to be excluded from the
definition of solid waste. This provision
can be adopted at the States' option,
although EPA strongly encourages
States to adopt this provision. As stated
earlier in the preamble, part of the
purpose of this rule is to eliminate
distinctions among reclaimed spent
materials, by-products, and sludges
within this industry. This change, in
combination with the conditioned
exclusion for the reclaimed byproducts
and sludges, will result in more control
over land-based mineral processing
units than exists presently, encourage
additional material recovery within the
industry, properly control land-based
storage ofmineral processing industry
secondary materials awaiting intra-
Industry recovery, and also simplify the
solid waste regulatory classification
scheme. In addition. State adoption of
these provisions will provide national
consistency.
   Similarly, another less stringent non-
 HSWA provision in this rule excludes
from RCRA regulation certain recycled
wood preserving wastewaters and spent
wood preserving solutions. The
 exclusion will not be effective in
 authorized States until they amend their
 regulations and received authorization.
• Although the States do not have to
on
adopt these provisions, EPA strongly
encourage them to do so, because the
exclusion encourages properly
conducted material recovery in the
wood preserving industry.
  Last, the treatment standards for soil
contaminated with hazardous waste
(and the associated site-specific risk
based variance provision for
contaminated soils), promulgated under
HSWA, are less stringent than the
existing treatment standards. Although
the authority for these standards is
under HSWA, EPA will not implement
them in those States that are authorized
for the existing standards because they
are less stringent. EPA will implement
them in those States that are
unauthorized for the applicable existing
treatment standards. However, EPA
strongly encourages States to seek
authorization for these standards in
order to encourage and speed up
cleanups of contaminated sites based
remedies involving treatment of
contaminated soils, thus providing more
permanent remedial solutions.
  Some of today's regulatory
amendments are neither more or less
stringent than the existing Federal
requirements. These are the revisions to
the existing UTS numbers. EPA clarified
in a December 19, 1994, memorandum
(which is in the docket for today's rule)
that EPA would not implement the
Universal Treatment Standards
(promulgated under HSWA authority in
the Phase II LDR rule) separately for
those States for which the State has
received LDR authorization. EPA views
changes from the existing limits to be
neither more or less stringent since the
technology basis of the standards has
not changed. Accordingly, EPA will not
implement today's amendments to the
UTS in those States with authorization
for the treatment standards.
  Today's rule also clarifies the scrap
metal exemption from solid waste as it
applies to whole circuit boards. This
part of the preamble simply clarifies the
Agency's interpretation of the existing
rules. If authorized for the scrap metal
exemption, States do not need further
authorization to interpret their rules in
conformity with this interpretation.

 C. Authorization Procedures
   Because portions of today's rule are
promulgated pursuant to HSWA, a State
submitting a program modification for
those portions may apply to receive
interim authorization under RCRA
section 3006(g)(2) or final authorization
under RCRA section 3006(b), on the
basis of requirements that are,
respectively, substantially equivalent or
equivalent to EPA's. For program
modifications for the non-HSWA
portions of this rule, States can received
final authorization only. The procedures
and schedule for final authorization of
State program modifications are
described in 40 CFR 271.21. It should be
noted that all HSWA interim
authorizations will expire January 1,
2003. (See 40 CFR 271.24(c) and 57 FR
60132, December 18, 1992.)
  Section 271.21(e)(2) requires that
States with final authorization modify
their programs to reflect Federal
program changes and subsequently
submit the modification to EPA for
approval. The deadline by which the
State would have to modify its program
to adopt these regulations is specified in
section 271.21(e). This deadline can be
extended in certain cases (see section
271.21(e)(3)). Once EPA approves the
modification, the State requirements
become Subtitle C RCRA requirements.
  States with authorized RCRA
programs may already have
requirements similar to those in today's
rule. These State regulations have not
been assessed against the Federal
regulations being promulgated today to
determine whether they meet the tests
for authorization. Thus, a State is not
authorized to implement these
requirements in lieu of EPA until the
State program modifications are
approved. Of course, States with
existing standards could continue to
administer and enforce their standards
as a matter of State law. In
implementing the Federal program, EPA
will work with States under agreements
to minimize duplication of efforts.

D. Streamlined Authorization
Procedures

  It is EPA's policy to provide as much
flexibility as possible to encourage
States to become authorized for rules
under the hazardous waste program.
EPA discussed an expedited
authorization approach in the proposed
Phase IV LDR rule (60 FR 43688, August
22, 1995), and the supplemental
proposal (61 FR 2338, January 25, 1996).
EPA also discussed streamlined
authorization procedures in a more
comprehensive fashion in the proposed
HWIR-media rule (61 FR 18780, April
29, 1996). This expedited approach
would apply to those minor or routine
changes  to the existing program that do
not expand the scope of the program in
significant ways, and was called
Category 1. EPA has decided to address
this proposed authorization procedure
in the upcoming HWIR-Media rule
rather than here, so that the expedited
authorization approaches can be dealt
with in a comprehensive manner.

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 28636
Federal Register/Vol. 63, No.  100/Tuesday,  May 26, 1998/Rules and Regulations
XV. Submission to Congress and
General Accounting Office
  The Congressional Review Act, 5
U.S.C. § 801 et seq., as added by the
Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. This rule is not a
"major rule" as defined by 5 U.S.C.
§804(2).

XVI. Executive Order 13045: Protection
of Children From Environmental Health
Risks and Safety Risks
  Executive Order 13045: The Executive
Order 13045 applies to any rule that
EPA determines (1)  "economically
significant" as defined under Executive
Order 12866, and (2) the environmental
health or safety risk addressed by the
rule has a disproportionate effect on
children. If the regulatory action meets
both criteria, the Agency must evaluate
the environmental health or safety
effects of the planned rule on children,
and explain why the planned regulation
is preferable to other potentially
effective and reasonably feasible
alternatives considered by the Agency.
  This final rule is not subject to E.O.
13045, entitled "Protection of Children
from Environmental Health Risks and
Safety Risks (62FR19885, April 23,
1997), because this is not an
economically significant regulatory
action as defined by E.O. 12866.

XVII. National Technology Transfer
and Advancement Act
  Under § 12(d) of the National
Technology Transfer and Advancement
Act, the Agency is directed to use
voluntary consensus standards in its
regulatory activities unless to do so
would be inconsistent with applicable
law or otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
                        test methods, sampling procedures,
                        business practices, etc.) that are
                        developed or adopted by voluntary
                        consensus standard bodies. Where
                        available and potentially applicable
                        voluntary consensus standards are not
                        used by EPA, the Act requires the
                        Agency to provide Congress, through
                        the Office of Management and Budget,
                        an explanation of the reasons for not
                        using such standards.
                          EPA is not proposing any new test
                        methods or other technical standards as
                        part of today's final rule. Thus, the
                        Agency has no need to consider the use
                        of voluntary consensus standards in
                        developing this proposed rule.

                        List of Subjects

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

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

                        40 CFR Part 266
                          Energy, Hazardous waste, Recycling,
                        Reporting and recordkeeping
                        requirements.

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

                        40 CFR Part 271
                          Administrative practice and
                        procedure, Hazardous materials
                        transportation, Hazardous waste,
                        Penalties, Reporting and recordkeeping
                        requirements.
                          Dated: April 30, 1998.
                        Carol M. Browner,
                        Administrator.
                          For the reasons set out in the
                        preamble, Title 40, chapter I of the Code
                        of Federal Regulations is amended as
                        follows:

                        PART 148—HAZARDOUS WASTE
                        INJECTION RESTRICTIONS

                          1. The authority citation for Part 148
                        continues to read as  follows:
  Authority: Sees. 3004, Resource
 Conservation and Recovery Act, 42 U.S.C.
 690 Let seq.

   2. Section 148.18 is amended by
 redesignating paragraphs (a) through (f)
 as (c) through (h) respectively, and by
 adding paragraphs (a) and (b) to read as
 follows:

 § 148.18  Waste specific prohibitions—
 newly listed and Identified wastes.

   (a) Effective August 24, 1998, all
 newly identified D004-D011 wastes and
 characteristic mineral processing
 wastes, except those identified in
 paragraph (b) of this section, are
 prohibited from underground injection.
   (b) Effective May 26, 2000,
 characteristic hazardous wastes from
 titanium dioxide mineral processing,
 and radioactive wastes mixed with
 newly identified D004-D011 or mixed
 with newly identified characteristic
 mineral processing 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 is amended by
revising Table 1 in paragraph (c)(4),
paragraph (c)(3) and (e)(l)(iii) 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 (except as
provided under 40 CFR 261.4(a)(15)).
Materials noted with a "—" in column
3 of Table 1 are not solid wastes when
reclaimed (except as provided under 40
CFR261.4(a)(15)).
*****

  (4) *  * *

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               Federal Register/Vol. 63, No.  100/Tuesday, May 26, 1998/Rules and  Regulations
                                                                     28637
                                                      TABLE 1










Use constitut-
ing disposal
(§261.2(c)(1))






Energy
recovery/ fuel
(§261.2(c)(2))



Reclamation
(§261.2(c)(3))
(except as
provided in
261.4(a)(15)
for mineral
processing
secondary
materials)



Speculative
accumulation
(§261.2(c)(4))






R\/ nrrutotMe. /licfnri In ACl HFH 9fi1 31 or 261 32} 	


Scrap metal olherthan excluded scrap metal (see 261.l(c)(9)) 	
(*)
n
(*)
n
o
n
(*)
o
o
o
(*)
o
n
n
o
n
o
o
3 1 33333
  Nott: The terms "spent materials," "sludges," "by-products," and "scrap metal" and "processed scrap metal" are defined in §261.1
 *****
   (e) * * *
   (1) * * *
   (HiX In cases where the materials are
 generated and reclaimed within the
 primary mineral processing industry,
 the conditions of the exclusion found at
 §261.4(a}(15) apply rather than this
 provision.
 *****
   5. Section 261.3 is amended by
 revising paragraphs (a)(2)(i) and
 (a) (2) (Hi) 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 of this part. However, any mixture of
 a waste from the extraction,
 beneficiation, and processing of ores
 and minerals excluded under
, §261.4(b)(7) and any other solid waste
 exhibiting a characteristic of hazardous
 waste under subpart C is a hazardous
 waste only if it exhibits a characteristic
 that would not have been exhibited by
 the excluded waste alone if such
 mixture had not occurred, or if it
 continues to exhibit any of the
 characteristics exhibited by the non-
 excluded wastes prior to mixture.
 Further, for the purposes of applying the
 Toxlclty Characteristic to such mixtures,
 the mixture is also a hazardous waste if
 it exceeds the maximum concentration
 for any contaminant listed in table I to
 §261.24 that would not have been
 exceeded by the excluded waste alone if
 the mixture had not occurred or if it
 continues to exceed the maximum
 concentration for any contaminant
 exceeded by the nonexempt waste prior
 to mixture.
  (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,
unless the resultant mixture no longer
exhibits any characteristic of hazardous
waste identified in subpart C of this
part, or unless the solid waste is
'excluded from regulation under
§261.4(b)(7) and the resultant mixture
no longer exhibits any characteristic of
hazardous waste identified in subpart C
of this part for which the hazardous
waste listed in subpart D of this part
was listed. (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) and (a)(16)
and by revising paragraph (b) (7) to read
as follows:

§261.4  Exclusions.
  (a) *  *  *
  (9) *  *  *
  (iii) Prior to reuse, the wood
preserving wastewaters and spent wood
preserving solutions described in
paragraphs (a)(9)(i) and (a)(9)(ii) of this
section, so long as they meet all of the
following conditions:
  (A) The wood preserving wastewaters
and spent wood preserving solutions are
reused on-site at water borne plants in
the production process for their original
intended purpose;
  (B) Prior to reuse, the wastewaters and
spent wood preserving solutions are
managed to prevent release to either
land or groundwater or both;
  (C) Any unit used to manage
wastewaters and/or spent wood
preserving solutions prior to reuse can
be visually or otherwise determined to
prevent such releases;
  (D) Any drip pad used to manage the
wastewaters and/or spent wood
preserving solutions prior to reuse
complies with the standards in part 265,
subpart W of this chapter, regardless of
whether the plant generates a total of
less than 100 kg/month of hazardous
waste; and
  (E) Prior to operating pursuant to this
exclusion, the plant owner or operator
submits to the appropriate Regional
Administrator or State Director a one-
time notification stating that the plant
intends to claim the exclusion, giving
the date on which the plant intends to
begin operating under the exclusion,
and containing the following language:
"I have read the applicable regulation
establishing an exclusion for wood
preserving wastewaters and spent wood
preserving solutions and understand it
requires me to comply at all times with
the conditions set out in the regulation."
The plant must maintain a copy of that
document in its on-site records for a
period of no less than 3 years from the
date specified in the notice. The
exclusion applies only so long as the
plant meets all of the conditions. If the
plant goes out of compliance with any
condition, it may apply to the
appropriate Regional Administrator or
State Director for reinstatement. The
Regional Administrator or State Director
may reinstate the exclusion upon
finding that the plant has returned to
compliance with all conditions and that
violations are not likely to recur.
*****
  (16) Secondary materials (i.e., sludges,
by-products, and spent materials as
defined in §261.1) (other than

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28638
Federal Register/Vol. 63, No. 100/Tuesday, May  26,  1998/Rules  and Regulations
hazardous wastes listed in subpart D of
this part) generated within the primary
mineral processing industry from which
minerals, acids, cyanide, water or other
values are recovered by mineral
processing, provided that:
  (i) The secondary material is
legitimately recycled to recover
minerals, acids, cyanide, water or other
values;
  (ii) The secondary material is not
accumulated speculatively;
  (iii) Except as provided in paragraph
(a)(15)(iv) of this section, the secondary
material is stored in tanks, containers,
or buildings meeting the following
minimum integrity standards: a building
must be an engineered structure with a
floor, walls, and a roof all of which are
made of non-earthen materials
providing structural support (except
smelter buildings may have partially
earthen floors provided the secondary
material is stored on the non-earthen
portion), and have a roof suitable for
diverting rainwater away from the
foundation; a tank must be free
standing, not be a surface impoundment
(as defined in 40 CFR  260.10), and be
manufactured of a material suitable for
containment of its contents; a container
must be free standing  and be
manufactured of a material suitable for
containment of its contents. If tanks or
containers contain any particulate
which may be subject  to wind dispersal,
the owner/operator must operate these
units in a manner which controls
fugitive dust. Tanks, containers, and
buildings must be designed, constructed
and operated to prevent significant
releases to the environment of these
materials.
  (iv) The Regional Administrator or the
State Director may make a site-specific
determination, after public review and
comment, that only solid mineral
processing secondary  materials may be
placed on pads, rather than in tanks,
containers, or buildings. Solid mineral
processing secondary  materials do not
contain any free liquid. The decision-
maker must affirm that pads are
designed, constructed and operated to
prevent significant releases of the
secondary material into the
environment. Pads must provide the
same degree of containment afforded by
the non-RCRA tanks, containers and
buildings eligible for exclusion.
  (A) The decision-maker must also
consider if storage on  pads poses the
potential for significant releases via
groundwater, surface water, and air
exposure pathways. Factors to be
considered for assessing the
groundwater, surface water, air
exposure pathways are: the volume and
physical and chemical properties of the
                         secondary material, including its
                         potential for migration off the pad; the
                         potential for human or environmental
                         exposure to hazardous constituents
                         migrating from the pad via each
                         exposure pathway, and the possibility
                         and extent of harm to human and
                         environmental receptors via each
                         exposure pathway.
                           (B) Pads must meet the following
                         minimum standards: be designed of
                         non-earthen material that is compatible
                         with the chemical nature of the mineral
                         processing secondary material, capable
                         of withstanding physical stresses
                         associated with placement and removal,
                         have run on/runoff controls, be operated
                         in a manner which controls fugitive
                         dust, and have integrity assurance
                         through inspections and maintenance
                         programs.
                           (C) Before making a determination
                         under this paragraph, the Regional
                         Administrator or State Director must
                         provide notice and the opportunity for
                         comment to all persons potentially
                         interested in the determination. This
                         can be accomplished by placing notice
                         of this action in major local newspapers,
                         or broadcasting notice over local radio
                         stations.
                           (v) 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; the type and location of the
                         storage units and recycling processes;
                         and the annual quantities expected to be
                         placed in land-based units. This
                         notification must be updated when
                         there is a change in the type of materials
                         recycled or the location of the recycling
                         process.
                           (vi) For purposes of §261.4(b)(7),
                         mineral processing secondary materials
                         must be the result of mineral processing
                         and may not include any listed
                         hazardous wastes. Listed hazardous
                         wastes and characteristic hazardous
                         wastes generated by non-mineral
                         processing industries are not eligible for
                         the conditional exclusion from the
                         definition of solid waste.
                           (b) * * *
                           (7) Solid waste from the extraction,
                         beneficiation, and processing of ores
                         and minerals (including coal, phosphate
                         rock, and overburden from the mining
                         of uranium ore), except as provided by
                         § 266.112 of this chapter for facilities
                         that burn or process hazardous waste.
                           (i) For purposes of §261.4(b)(7)
                         beneficiation of ores and minerals is  .
                         restricted to the following activities;
                         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 and/or chlorination)/
leaching sequence produces a final or
intermediate product that 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.
  (ii) For the purposes of §261.4(b)(7),
solid waste from the processing of ores
and minerals includes only the
following wastes as generated:
  (A) Slag from primary copper
processing;
  (B) Slag from primary lead processing;
  (C) Red and  brown muds from  bauxite
refining;
  (D) Phosphogypsum from phosphoric
acid production;
  (E) Slag from elemental phosphorus
production;
  (F) Gasifier ash from coal gasification;
  (G) Process wastewater from coal
gasification;
  (H) Calcium sulfate wastewater
treatment plant sludge from primary
copper processing;
  (I) Slag tailings from primary copper
processing;
  0) Fluorogypsum from hydrofluoric
acid production;
  (K) Process wastewater from
hydrofluoric acid production;
  (L) Air pollution control dust/sludge
from iron blast furnaces;
  (M) Iron blast furnace slag;
  (N) Treated residue from roasting/
leaching of chrome ore;
  (O) Process wastewater from primary
magnesium processing by the
anhydrous process;
  (P) Process wastewater from
phosphoric acid production;
  (Q) Basic oxygen furnace and open
hearth furnace air pollution control
dust/sludge from carbon steel
production;
  (R) Basic oxygen furnace and open
hearth furnace slag from carbon steel
production;
  (S) Chloride process waste solids
from titanium  tetrachloride production;
  (T) Slag from primary zinc processing.
  (iii) A residue derived from co-
processing mineral processing
secondary materials with normal
beneficiation raw materials remains
excluded under paragraph (b) of this
section if the owner or operator:
  (A) Processes at least 50 percent by
weight normal beneficiation raw
materials; and,
  (B) Legitimately reclaims the      -
secondary mineral processing materials.

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               Federal Register/Vol.  63,  No. 100/Tuesday, May  26,  1998/Rules and Regulations
                                                                     28639
 PART 268—LAND DISPOSAL
 RESTRICTIONS
   7. The authority citation for Part 268
 continues to read as follows:
   Authority: 42 U.S.C. 6905. 6912(a). 6921.
 and 6924.
   8. Section 268.2 is amended by
 revising paragraph (i) and adding
 paragraph (k) to read as follows:

 §268.2  D«flnltlons applicable In this part.
 *****
   (i) Underlying hazardous constituent
 means any constituent listed in
 §268.48. Table UTS—Universal
 Treatment Standards, except fluoride,
 selenium, sulfldes, vanadium, and zinc,
 which can reasonably be expected to be
 present at the point of generation of the
 hazardous waste at a concentration
 above the constituent-specific UTS
 treatment standards.
• *    *    *    *    *
   (k) Soil means unconsolidated earth
 material composing the superficial
 geologic strata (material overlying
 bedrock), consisting of clay, silt, sand,
 or gravel size particles as classified by
 the U.S. Soil Conservation Service, or a
 mixture of such materials with liquids.
 sludges or solids which is inseparable
 by simple mechanical removal
 processes and is made up primarily of
 soil by volume based on visual
 inspection.
   9. Section 268.3 is amended by
 adding paragraph (d) to read as follows:
 §268,3  Dilution prohibited as a substitute
 (or treatment
 *****
   (d) It is a form of impermissible
 dilution, and therefore prohibited, to
 add iron filings  or other metallic forms
 of iron to lead-containing hazardous
 wastes in order to achieve any land
 disposal restriction treatment standard
 for lead. Lead-containing wastes include
 D008 wastes (wastes exhibiting a
 characteristic due to the presence of
 lead), all characteristic wastes
 containing lead  as an underlying
 hazardous constituent, listed wastes
 containing lead  as a regulated
 constitutent. and hazardous media
 containing any of the aforementioned
 lead-containing wastes.
   10. Section 268.4 is amended by
 revising paragraphs (a)(2)(ii) and
 (a)(2)(ili) to read as follows:

 §268.4  Treatment surface Impoundment
 exemption.
   (ii) Removal. The following treatment
 residues (Including any liquid waste)
 must be removed at least annually;
residues which do not meet the
treatment standards promulgated under
subpart D of this part; residues which
do not meet the prohibition levels
established under subpart C of this part
or imposed by statute (where no
treatment standards have been
established); residues which are from
the treatment of wastes prohibited from
land disposal under subpart C of this
part (where no treatment standards have
been established and no prohibition
levels apply); or residues from managing
listed wastes which are not delisted
under §260.22 of this chapter. If the
volume of liquid flowing through the
impoundment or series of
impoundments annually is  greater than
the volume of the impoundment or
impoundments, this flow-through
constitutes removal of the supernatant
for the purpose of this requirement.
  (iii) Subsequent management.
Treatment residues may not be placed
in any other surface impoundment for
subsequent management.
*****
  11. Section 268.7 is amended by
revising paragraphs (a)(l), (a)(3)(ii),
(a)(7), (b)(l), (b)(2), (b)(5) and (b)(6); by
revising the first sentence of the
paragraphs (a) (2), (a) (3) introductory
text, (a) (4), (a) (5) introductory text,
(a) (6), and (b)(3) introductory text; by
adding paragraph (a) (2) (i) and three
sentences to the end of paragraph (b) (4)
introductory text and adding paragraphs
(b)(4)(iv), (b)(4)(v), and (e) and adding
and reserving paragraph (a)(2)(ii); and
by revising entries 1 and 3,  designating
entry 8 as 9, and adding entry 8 in the
table entitled "Generator Paperwork
Requirements Table" in paragraph
(a) (4), and by revising entries 1 and 2
designating entry 5 as 6, and adding
entry 5 in the table entitled  "Treatment
Facility Paperwork Requirements
Table" in paragraph (b)(3)(ii) to read as
follows:

§268.7   Testing, tracking, and
recordkeeplng requirements for generators,
treaters, and disposal facilities.
  (a) * *  *
  (1) A generator of hazardous waste
must determine if the waste has to be
treated before it can be land disposed.
This is done by determining if the
hazardous waste meets the treatment
standards in §268.40, §268.45, or
§ 268.49. This determination can be
made in either of two ways: testing the
waste or using knowledge of the waste.
If the generator tests the  waste, testing
would normally determine the total
concentration of hazardous  constituents,
or the concentration of hazardous
constituents in an extract of the waste
obtained using test method  1311 in
 "Test Methods of Evaluating Solid
 Waste, Physical/Chemical Methods,"
 EPA Publication SW-846, as referenced
 in §260.11 of this chapter, depending
 on whether the treatment standard for
 the waste is expressed as a total
 concentration or concentration of
 hazardous constituent in the waste's
 extract. In addition, some hazardous
 wastes must be treated by particular
 treatment methods before they can be
 land disposed and some soils are
 contaminated by such hazardous
 wastes. These treatment standards are
 also found in §268.40, and are
 described in detail in §268.42, Table 1.
 These wastes, and soils contaminated
 with such wastes, do not need to be
 tested (however, if they are in a waste
 mixture, other wastes with
 concentration level treatment standards
 would have to be tested). If a generator
 determines they are managing a waste or
 soil contaminated with a waste, that
 displays a hazardous characteristic of
 ignitability, corrosivity, reactivity, or
 toxicity, they must comply with the
 special requirements of §268.9 of this
 part in addition to any applicable
 requirements in this section.
  (2) If the waste or contaminated soil
 does not meet the treatment standard:
 With the initial shipment of waste to
 each treatment or storage facility, the
 generator must send a one-time written
 notice to each treatment or storage
 facility receiving the waste, and place a
 copy in the file. * * *
  (i) For contaminated soil, the
 following certification statement should
 be included, signed by an authorized
 representative:
  I certify under penalty of law that I
 personally have examined this
 contaminated soil and it [does/does not]
 contain listed hazardous waste and
 [does/does not] exhibit a characteristic
 of hazardous waste and requires
 treatment to meet the soil treatment
 standards as provided by 268.49(c).
  (ii) [Reserved]
  (3) If the waste or contaminated soil
 meets the treatment standard at the
 original point of generation:
 *****
  (ii) For contaminated soil, with the
 initial shipment of wastes to each
 treatment, storage, or disposal facility,
 the generator must send a one-time
written notice to each facility receiving
 the waste and place a copy in the file.
The notice must include the information
 in "268.7(a)(3) of the Generator
Paperwork Requirements Table in
§268.7(a)(4).
  (4) For reporting, tracking, and
recordkeeping when exceptions allow
certain wastes or contaminated soil that

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28640
Federal Register/Vol. 63, No. 100/Tuesday,  May 26,  1998/Rules and Regulations
do not meet the treatment standards to
be land disposed: There are certain
exemptions from the requirement that
                         hazardous wastes or contaminated soil
 meet treatment standards before they
 can be land disposed. * * *
 *****
                                    GENERATOR PAPERWORK REQUIREMENTS TABLE
                           Required information
                                                                           §268.7
                                                                        §268.7
                   §268.7
§268.7
 1. EPA Hazardous Waste Numbers and Manifest Number of first shipment.
3. The waste is subject to the LDRs. The constituents of concern for F001-F005, and
  F039, and underlying hazardous constituents in characteristic wastes, unless the
  waste will be treated and monitored for all constituents. If all constituents will be
  treated and monitored, there is no need to put them all on the LDR notice	
8. For contaminated soil subject to LDRs as provided in 268.49(a), the constituents
  subject to treatment as described in 268.49(d), and the following statement: This
  contaminated soil [does/does not] contain listed hazardous waste and [does/does
  not] exhibit a characteristic of hazardous waste and [is subject to/complies with' the
  soil treatment standards as provided by 268.49(c) or the universal treatment stand-
  ards	
  (5) If a generator is managing and
treating prohibited waste or
contaminated soil in tanks, containers,
or containment buildings regulated
under 40 CFR 262.34 to meet applicable
LDR treatment standards found at
§ 268.40, the generator must develop
and follow a written waste analysis plan
which describes the procedures they
will carry out to comply with the
treatment standards. * *  *
*    *    *     *    *
  (6) If a generator determines  that the
waste or contaminated soil is restricted
based solely on his knowledge  of the
waste, all supporting data used to make
this determination must be retained on-
site in the generator's files. * * *
  (7) If a generator determines  that he is
managing a prohibited waste that is
excluded from the definition of
hazardous or solid waste or is exempted
from Subtitle C regulation under 40 CFR
                         261.2 through 261.6 subsequent to the
                         point of generation (including
                         deactivated characteristic hazardous
                         wastes managed in wastewater
                         treatment systems subject to the Clean
                         Water Act (CWA) as specified at 40 CFR
                         261.4(a)(2) or that are CWA-equivalent,
                         or are managed in an underground
                         injection well regulated by the SDWA),
                         he must place a one-time notice
                         describing such generation, subsequent
                         exclusion from the definition of
                         hazardous or solid waste or exemption
                         from RCRA Subtitle C regulation, and
                         the disposition of the waste, in the
                         facility's on-site files.
                         *****
                           (b) *  *  *
                           (1) For wastes or contaminated soil
                         with treatment standards expressed in
                         the waste extract (TCLP), the owner or
                         operator of the treatment facility must
                         test an extract of the treatment residues.
 using test method 1311 (the Toxicity
 Characteristic Leaching Procedure,
 described in "Test Methods for
 Evaluating Solid Waste, Physical/
 Chemical Methods," EPA Publication
 SW-846 as incorporated by reference in
 § 260.11 of this chapter) to assure that
 the treatment residues extract meet the
 applicable treatment standards.
   (2) For wastes or contaminated soil
 with treatment standards expressed as
 concentrations in the waste, the owner
 or operator of the treatment facility must
 test the treatment residues (not an
 extract of such residues) to assure that
 they meet the applicable treatment
 standards.
   (3) A onertime notice must be sent
 with the initial shipment of waste or
 contaminated soil to the land disposal
 facility. * *  *
 *****

   (ii) * * *
                               TREATMENT FACILITY PAPERWORK REQUIREMENTS TABLE
                                             Required information
                                                                                              §268.7(b)
1. EPA Hazardous Waste Numbers and Manifest Number of first shipment.
2. The waste is subject to the LDRs. The constituents of concern for F001-F005, and F039, and underlying hazardous constitu-
  ents in characteristic wastes, unless the waste will be treated and monitored for all constituents. If all constituents will be treated
  and monitored, there is no need to put them all on the LDR notice	
5. For contaminated soil subject to LDRs as provided in 268.49(a), the constituents subject to treatment as described in 268.49(d)
  and the following statement, "this contaminated soil [does/does not] contain listed hazardous waste and [does/does not] exhibit
  acharacteristic of hazardous waste and [is subject to/complies with] the soil treatment standards as provided by 268.49(c)	
  (4) * *  * A certification is also
necessary for contaminated soil and it
must state:
                          I certify under penalty of law that I have
                         personally examined and am familiar with
                         the treatment technology and operation of the
treatment process used to support this
certification and believe that it has been
maintained and operated properly so as to

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               Federal Register/Vol. 63. No. 100/Tuesday, May 26, 1998/Rules and Regulations
                                                                      28641
 comply with treatment standards specified in
 40 CFR 268.49 without impermissible
 dilution of the prohibited wastes. I am aware
, there are significant penalties for submitting
 a false certification, including the possibility
 of fine and imprisonment.
 *****
   (iv) For characteristic wastes that are
 subject to the treatment standards in
 S 268.40 (other than those expressed as
 a required method of treatment) that are
 reasonably expected to contain
 underlying hazardous constituents as
 defined in §268.2(1); are treated on-site
 to remove the hazardous characteristic;
 and are then sent off-site for treatment
 of underlying hazardous constituents,
 the certification must state the
 following:
   I certify under penalty of law that the
 waste has been treated in accordance with
 the requirements of 40 CFR 268.40 to remove
 the hazardous characteristic. This
 dccharacterized waste contains underlying
 hazardous constituents that require further
 treatment to meet universal treatment
 standards. I am aware that there are
 significant penalties for submitting a false
 certification, including the possibility of fine
 and imprisonment.
   (v) For characteristic wastes that
 contain underlying hazardous
 constituents as defined § 268.2(i) that
 are treated on-site to remove the
 hazardous characteristic to treat
 underlying hazardous constituents to
 levels in § 268.48 Universal Treatment
 Standards, the certification must state
 the following:
   I certify under penalty oflaw that the
 waste has been treated in accordance with
 the requirements of 40 CFR 268.40 to remove
 the hazardous characteristic and that
 underlying hazardous constituents, as
 defined in S 268.2(1} have been treated on-site
 to meet the S 268.48 Universal Treatment
 Standards, I am aware that there are
 significant penalties for submitting a false
 certification. Including the possibility of fine
 and imprisonment.
   (5) If the waste or treatment residue
 will be further managed at a different
 treatment, storage, or disposal facility,
 the treatment, storage, or disposal
 facility sending the waste or treatment
 residue off-site must comply with the
 notice and certification requirements
 applicable to generators under this
 section.
   (6) Where the wastes are recyclable
 materials used in a manner constituting
 disposal subject to the provisions of
 §268.20(b) regarding treatment
 standards and prohibition levels, the
 owner or operator of a treatment facility
 (i.e., the recycler) is not required to
 notify the receiving facility, pursuant to
 paragraph (b)(3) of this section. With
 each shipment of such wastes the owner
 or operator of the recycling facility must
submit a certification described in
paragraph (b)(4) of this section, and a
notice which includes the information
listed in paragraph (b) (3) of this section
(except the manifest number) to the
Regional Administrator, or his delegated
representative. The recycling facility
also must keep records of the name and
location of each entity receiving the
hazardous waste-derived product.
*    *    *    *    *
  (e) Generators and treaters who first
receive from EPA or an authorized state
a determination that a given
contaminated soil subject to LDRs as
provided in § 268.49 (a) no longer
contains a listed hazardous waste and
generators and treaters who first
determine that a contaminated soil
subject to LDRs as provided in
§ 268.49(a) no longer exhibits a
characteristic of hazardous waste must:
  (1) Prepare a one-time only
documentation of these determinations
including all supporting information;
and,
  (2) Maintain that information in the
facility files and other records for a
minimum of three years.

Subpart C—Prohibitions on  Land
Disposal

  12. Section § 268.34 is revised to read
as follows:

§ 268.34  Waste specific prohibitions—
toxlclty characteristic metal wastes.
  (a) Effective August 24,  1998, the
following wastes are prohibited from
land disposal: the wastes specified in 40
CFR Part 261 as EPA Hazardous Waste
numbers D004—D011 that are newly
identified (i.e. wastes, soil, or debris
identified as hazardous by the Toxic
Characteristic Leaching Procedure but
not the Extraction Procedure), and
waste, soil, or debris from mineral
processing operations that is  identified
as hazardous by the specifications at 40
CFR Part 261.
  (b) Effective May 26, 2000,  the
following wastes are prohibited from
land disposal: newly identified
characteristic wastes from elemental
phosphorus processing; radioactive
wastes mixed with EPA Hazardous
wastes D004—D011 that are newly
identified (i.e. wastes, soil, or debris
identified as hazardous by the Toxic
Characteristic Leaching Procedure but
not the Extraction Procedure); or mixed
with newly identified characteristic
mineral processing wastes, soil, or
debris.
  (c) Between May 26,1998 and May
26, 2000, newly identified characteristic
wastes from elemental phosphorus
processing, radioactive waste mixed
with D004--D011 wastes that are newly
identified (i.e. wastes, soil, or debris
identified as hazardous by the Toxic
Characteristic Leaching Procedure but
not the Extraction Procedure), or mixed
with newly identified characteristic
mineral processing wastes, soil, or
debris 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

  13. Section 268.40 is amended by
revising paragraph (e), adding paragraph
(h), and revising the Table of Treatment
Standards 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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28642
Federal  Register/Vol. 63, No. 100/Tuesday,  May 26, 1998/Rules and Regulations
deep injection well, all underlying
hazardous constituents (as defined in
§ 268.2(1)) must meet Universal
Treatment Standards, found in § 268.48,
Table Universal Treatment Standards,
                        prior to land disposal as defined in
                        §268.2(c) of this part.
                        *****
                          (h) Prohibited D004-DO11 mixed
                        radioactive wastes and mixed
                        radioactive listed wastes containing
                        metal constituents, that were previously
treated by stabilization to the treatment
standards in effect at that time and then
put into storage, do not have to be re-
treated to meet treatment standards in
this section prior to land disposal.
BILLING CODE 6560-50-P

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Federal Register/Vol. 63, No.  100/Tuesday, May 26, 1998/Rules and Regulations
                                                             28643
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28644
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      Federal Register/Vol. 63; No. 100/Tuesday, May 26, 1998/Rules and Regulations	28645
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Nonwastewaters that exhibit, or are expected 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 mercury that are
inorganic, including incinerator residues and
residues from RMERC. (High Mercury-Inorganic
Subcategory)
Nonwastewaters that exhibit, or are expected 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 and that are residues from
RMERC only. (Low Mercury Subcategory)
All other nonwastewaters that exhibit, or are
expected 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 and that are not
residues from RMERC. (Low Mercury
Subcategory)
All D009 wastewaters.
Elemental mercury contaminated with radioactive
materials. (Note: This Subcategory consists of
nonwastewaters only.)
Hydraulic oil contaminated with Mercury
Radioactive Materials Subcategory. (Note: This
subcateqorv consists of nonwastewaters only.)
REGUUTED HAZARDOUS CONSTITUENT
Common Name
Mercury
Mercury
Mercury
Mercury
Mercury
Mercury
CAS2
Number
7439-97-6
7439-97-6
7439-97-6
7439-97-6
7439-97-6
7439-97-6
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
NA
NA
NA
0.15
and meet §268.48
standards8
NA
NA
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
RMERC
0.20 mg/l TCLP
and meet §268.48
standards8
0.025 mg/l TCLP
and meet §268.48
standards0
NA
AMLGM
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    Federal  Register/Vol. 63, No. 100/Tuesday, May 26.  1998/Rules and  Regulations
                                                                                         28647

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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
D0149
D0159
D0169
D0179
D0188
D0198
D0209
D0219
D0229
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Wastes that are TC for Methoxychlor based on the
TCLP in SW846 Method 1311.
Wastes that are TC for Toxaphene based on the
TCLP in SW846 Method 1311.
Wastes that are TC for 2,4-D (2,4-
Dichlorophenoxyacetic acid) based on the TCLP in
SW846 Method 1311.
Wastes that are TC for 2,4,5-TP (Silvex) based on
the TCLP in SW846 Method 1311.
Wastes that are TC for Benzene based on the
TCLP in SW846 Method 131 1 .
Wastes that are TC for Carbon tetrachloride based
on the TCLP in SW846 Method 1311.
Wastes that are TC for Chlordane based on the
TCLP in SW846 Method 1311.
Wastes that are TC for Chlorobenzene based on
the TCLP in SW846 Method 1311.
Wastes that are TC for Chloroform based on the
TCLP in SW846 Method 1311.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Methoxychlor
Toxaphene
2,4-D (2,4-
Dichlorophenoxyacetic acid)
2,4,5-TP (Silvex)
Benzene
Carbon tetrachloride
Chlordane (alpha and
gamma isomers)
Chlorobenzene
Chloroform
CAS2
Number
72-43-5
8001-35-2
94-75-7
93-72-1
71-43-2
56-23-5
57-74-9
108-90-7
67-66-3
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
WETOXorCMBST
BIODGorCMBST
CHOXD, BIODG, or
CMBST
CHOXD or CMBST
0.14
and meet §268.48
standards'
0.057
and meet §268.48
standards"
0.0033
and meet §268.48
standards8
0.057
and meet §268.48
standards8
0.046
and meet §268.48
standards8
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
0.18
and meet §268.48
standards*
2.6
and meet §268.48
standards8
10
and meet §268.48
standards8
7.9
and meet §268.48
standards8
10
and meet §268.48
standards8
6.0
and meet §268.48
standards8
0.26
and meet §268.48
standards8
6.0
and meet §268.48
standards8
6.0
and meet §268.48
standards8
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      Federal Register/Vol. 63, No. 100 /Tuesday, May 26, 1998/Rules and Regulations	28653
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
F006
F007
F008
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Wastewater treatment sludges from electroplating
operations except from the following processes:
(1) SuKuric acid anodizing of aluminum; (2) tin
plating on carbon steel; (3) zinc plating (segregated
basis) on carbon steel; (4) aluminum or zinc-
aluminum plating on carbon steel; (5)
cleaning/stripping associated with tin, zinc and
aluminum plating on carbon steel; and (6) chemical
etching and milling of aluminum.
Spent cyanide plating bath solutions from
electroplating operations.
Plating bath residues from the bottom of plating
baths from electroplating operations where
cyanides are used in the process. .
REGULATED HAZARDOUS CONSTITUENT
Common Name
Cadmium
Chromium (Total)
Cyanides (Total)7
Cyanides (Amenable)7
Lead
Nickel
Silver
Cadmium
Chromium (Total)
Cyanides (Total)7
Cyanides (Amenable)7
Lead
Nickel
Silver
Cadmium
Chromium (Total)
Cyanides (Total)7
Cyanides (Amenable)7
Lead
Nickel
Silver
CAS2
Number
744043-9
7440-47-3
57-12-5
57-12-5
7439-92-1
7440-02-0
7440-22-4
7440-43-9
7440-47-3
57-12-5
57-12-5
7439-92-1
7440-02-0
7440-22-4
7440-43-9
7440-47-3
57-12-5
57-12-5
7439-92-1
7440-02-0
7440-22-4
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.69
2.77
1.2
0.86
0.69
3.98
NA
NA
2.77
1.2
0.86
0.69
3.98
NA
NA
2.77
1.2
0.86
0.69
- 3.98
NA
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
0.11 mg/l TCLP
0.60 mg/l TCLP
590
30
0.75 mg/l TCLP
11 mg/l TCLP
0.14 mg/l TCLP
0.11 mg/l TCLP
0.60 mg/l TCLP
590
30
0.75 mg/l TCLP
11 mg/l TCLP
0.14 mg/l TCLP
0.11 mg/l TCLP
0.60 mg/l TCLP
590
30
0.75 mg/l TCLP
11 mg/l TCLP
0.14 mq/ITCLP
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     Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations      28655
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

F019
F020,
F021,
F022,
F023,
F026
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Wastewater treatment sludges from the chemical
conversion coating of aluminum except from
zirconium phosphating in aluminum can washing
when such phosphating is an exclusive conversion
coating process.
Wastes (except wastewater and spent carbon from
hydrogen chloride purification) from the production
or manufacturing use (as a reactant, chemical
intermediate, or component in a formulating
process) of: (1) tri- or tetrachlorophenol, or of
intermediates used to produce their pesticide
derivatives, excluding wastes from the production
of Hexachlorophene from highly purified 2,4,5-
trichlorophenol (F020); (2) pentachlorophenol, or of
intermediates used to produce its derivatives (i.e.,
F021); (3) tetra-, penta-, or hexachlorobenzenes
under alkaline conditions (i.e., F022); and from the
production of materials on equipment previously
used for the production or manufacturing use (as a
reactant, chemical intermediate, or component in a
formulating process) of: (1) tri- or
tetrachlorophenols, excluding wastes from
equipment used only for the production of
Hexachlorophene from highly purified 2,4,5-
trichlorophenol (F023); (2) tetra-, penta-, or
hexachlorobenzenes under alkaline conditions (i.e.,
F026).
REGULATED HAZARDOUS CONSTITUENT
Common Name
Nickel
Silver
Chromium (Total)
Cyanides (Total)7
Cyanides (Amenable)7
HxCDDs (All
Hexachlorodibenzo-p-
dioxins)
HxCDFs (All
Hexachlorodibenzofurans)
PeCDDs (All
Pentachlorodibenzo-p-
dioxins)
PeCDFs (All
Pentachlorodibenzofurans)
Pentachlorophenol
TCDDs (All
Tetrachlorodibenzo-p-
dioxins)
TCDFs (All
Tetrachlorodibenzofurans)
2,4,5-Trichlorophenol
2,4,6-Trichlorophenol
2,3,4,6-Tetrachlorophenol
CAS2
Number
7440-02-0
7440-22-4
7440-47-3
57-12-5
57-12-5
NA
NA
NA
NA
87-86-5
NA
NA
95-95-4
88-06-2
58-90-2
WASTEWATERS
Concentration in mg/13;
or Technology Code4
3.98
NA
2.77
1.2
0.86
0.000063
0.000063
0.000063
0.000035
0.089
0.000063
0.000063
0.18
0.035
0.030
NONWASTEWATERS
Concentration in mgykg5
unless noted as "mg/1
TCLP"; or Technology
Code4
11 mg/ITCLP
0.14 mg/ITCLP
0.60 mg/ITCLP
590
30
0.001
0.001
0.001
0.001
7.4
0.001
0.001
7.4
7.4
7.4
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      Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations	28657
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

F027

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Spent filters and filter aids, and spent desiccant
wastes from the production of certain chlorinated
aliphatic 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
substitution.
F025 - Spent Filters/Aids and Desiccants
Subcategory
Discarded unused formulations containing tri-,
tetra-, or pentachlorophenol or discarded unused
formulations containing compounds derived from
these chlorophenols. (This listing does not include
formulations containing hexachlorophene
synthesized from prepurified 2,4,5-trichlorophenol
as the sole component).
REGULATED HAZARDOUS CONSTITUENT
Common Name
Carbon tetrachloride
Chloroform
Hexachlorobenzene
Hexachlorobutadlene
Hexachloroethane
Methylene chloride
1,1,2-Trichloroethane
Trichloroethylene
Vinyl chloride
HxCDDs (All
Hexachlorodibenzo-p-
dioxins)
HxCDFs (All
Hexachlorodibenzofurans)
PeCDDs (All
Pentachlorodibenzo-p-
dioxins)
PeCDFs (All
Pentachlorodibenzofurans)
Pentachlorophenol
TCDDs(AII
Tetrachlorodibenzo-p-
dioxins)
TCDFs (All
Tetrachlorodibenzofurans)
CAS2
Number
56-23-5
67-66-3
118-74-1
87-68-3
67-72-1
75-9-2
79-00-5
79-01-6
75-01-4
NA
NA
NA
NA
87-86-5
NA
NA
WASTEWATERS
Concentration in mg/13;
or Technology Code4
0.057
0.046
0.055
0.055
0.055
0.089
0.054
0.054
0.27
0.000063
0.000063
0.000063
0.000035
0.089
0.000063
0.000063
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/1
TCLP"; or Technology
Code4
6.0
6.0
10
5.6
30
30
6.0
6.0
6.0
0.001
0.001
0.001
0.001
7.4
0.001
0.001
00
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Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations      28659
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
F032
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Wastewaters (except those that have not come into
contact with process contaminants), process
residuals, preservative drippage, and spent
formulations from wood preserving processes
generated at plants that currently use or have
previously used chlorophenolic 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
otherwise currently regulated as hazardous wastes
(i.e., F034 or F035), and where the generator does
not resume or initiate use of chlorophenolic
formulations). This listing does not include K001
bottom sediment sludge from the treatment of
wastewater from wood preserving processes that
use creosote and/or penta-chlorophenol.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Acenaphthene
Anthracene
Benz(a)anthracene
Benzo(b)fluoranthene
(difficult to distinguish from
benzo(k)fluoranthene)
Benzo(k)fluoranthene
(difficult to distinguish from
benzo(b)fluoranthene)
Benzo(a)pyrene
Chrysene
Dibenz(a,h)anthracene
2-4-Dimethyl phenol
Fluorene
Hexachlorodibenzo-p-dioxins
Hexachlorodibenzofurans
Indeno (1,2,3-c,d) pyrene
Naphthalene
Pentachlorodibenzo-p-
dioxins
CAS2
Number
83-32-9
120-12-7
56-55-3
205-99-2
207-08-9
50-32-8
218-01-9
53-70-3
105-67-9
86-73-7
NA
NA
193-39-5
91-20-3
NA
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.059
0.059
0.059
0.11
0.11
0.061
0.059
0.055
0.036
0.059
0.000063. or
CMBST11
0.000063, or
CMBST11
0.0055
0.059
0.000063, or
CMBST11
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
3.4
3.4
3.4
6.8
6.8
3.4
3.4
8.2
14
3.4
0.001, or
CMBST11
0.001, or
CMBST11
3.4
5.6
0.001. or
CMBST11
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      Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations      28661
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

F035
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Wastewaters (except those that have not come into
contact with process contaminants), process
residuals, preservative dnppage, and spent
formulations from wood preserving processes
processes generated at plants that use inorganic .
preservatives containing arsenic or chromium.
This listing does not include K001 bottom sediment
sludge from the treatment of wastewater from wood
preserving processes that use creosote and/or
pentachlorophenol.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Chrysene
Dibenz(a,h)anthracene
Fluorene
Indeno (1,2,3-c.d) pyrene
Naphthalene
Phenanthrene
Pyrene
Arsenic
Chromium (Total)
Arsenic
Chromium (Total)
CAS2
Number
218-01-9
53-70-3
86-73-7
193-39-5
91-20-3
85-01-8
129-00-0
7440-38-2
7440-47-3
7440-38-2
7440-47-3
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.059
0.055
0.059
0.0055
0.059
0.059
0.067
1.4
2.77
1.4
2.77
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
3.4
8.2
3.4
3.4
5.6
5.6
8.2
5.0 mg/l TCLP
0.60 mg/l TCLP
5.0 mg/l TCLP
0.60 mg/l TCLP
 S.

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-------
       Federal Register/Vol. 63, No. 100/Tuesday, May 26,  1998/Rules and Regulations
                    28663
£
W
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          o
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to
oo
OJ
a>
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
F038

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Petroleum refinery secondary (emulsified)
oil/water/solids separation sludge and/or float
generated from the physical and/or chemical
separation of oil/water/solids in 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 an sludges generated in DAF
units. Sludges generated in stormwater units that
do not receive dry weather flow, sludges generated
from non-contact once-through cooling waters
segregated for treatment from other process or oily
cooling waters, sludges and floats generated in
aggressive 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
biological units) and F037, K048, and K051 are not
included in this listing.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Benzene
Benzo(a)pyrene
bis(2-Ethylhexyl) phthalate
Chrysene
Di-n-butyl phthatate
Ethylbenzene
Fluorene
Naphthalene
Phenanthrene
Phenol
Pyrene
Toluene
Xylenes-mixed isomers
(sum of o-, m-, and p-xylene
concentrations)
Chromium (Total)
Cyanides (Total)7
Lead
Nickel
CAS2
Number
71-43-2
50-32-8
117-81-7
218-01-9
84-74-2
100-41-4
86-73-7
91-20-3
85-01-8
108-95-2
129-00-0
108-88-3
1330-20-7
7440-47-3
57-12-5
7439-92-1
7440-02-0
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.14
0.061
0.28
0.059
0.057
0.057
0.059
0.059
0.059
0.039
0.067
0.080
0.32
2.77
1.2
0.69
NA
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
10
3.4
28
3.4
28
10
NA
5.6
5.6
6.2
8.2
10
30
0.60 mg/l TCLP
590
NA
11 ma/ITCLP
s?
I
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 GO


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00
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-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not apptfcabto
WASTE
CODE
F039

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Leachate (liquids that have percolated through land
disposed wastes) resulting from the disposal of
more than one restricted 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 Numbers): F020, F021, F022, F026, F027.
and/or F028.).
REGULATED HAZARDOUS CONSTITUENT
Common Name
Acenaphthylene
Acenaphlhene
Acetone
Acetonftrite
Acetophenone
2-Acetylaminofluorene
Acrolein
Acrylon'rtrile
Aldrin
4-Aminobiphenyl
Aniline
Anthracene
Aranite
alpha-BHC
beta-BHC
delta-BHC
gamma-BHC
Benzene
Benz(a)anthracene
Benzo(b)fluoranthene
(difficult to distinguish from
benzo(k)fluoranthene)
CAS2
Number
203-96-8
83-32-9
67-64-1
75-05-8
96-86-2
53-96-3
107-02-8
107-13-1
309-00-2
92-67-1
62-53-3
120-12-7
140-57-8
319-84-6
319-85-7
319-86-8
58-89-9
71-43-2
56-55-3
205-99-2
WASTEWATERS
Concentration in mg/P;
or Technology Code4
0.059
0.059
0.28
5.6
0.010
0.059
0.29
024
0.021
0.13
0.81
0.059
0.36
0.00014
0.00014
0.023
0.0017
0.14
0.059
0.11
NONWASTEWATERS
Concentration In mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
3.4
3.4
160
NA
9.7
140
NA
84
0.066
NA
14
3.4
NA
0.066
0.066
0.066
0.066
10
3.4
6.8
I
(9
I
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 §=
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-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

REGUUTED HAZARDOUS CONSTITUENT
Common Name
Benzo{k)fluoranthene
(difficult to distinguish from
benzo(b)fluoranthene)
Benzo(g,h,i)perylene
Benzo(a)pyrene
Bromodichloromethane
Methyl bromide
(Bromomethane)
4-Bromophenyl phenyl ether
n-Butyl alcohol
Butyl benzyl phthalate
2-sec-Butyl-4,6-dinitrophenol
(Dinoseb)
Carbon disulfide
Carbon tetrachloride
Chlordane (alpha and
gamma isomers)
p-Chloroaniline
Chlorobenzene
Chlorobenzilate
2-Chloro-1 ,3-butadiene
Chlorodibromomethane
Chloroethane
bis(2-Chloroethoxv)methane
CAS2
Number
207-08-9
191-24-2
50-32-8
75-27-4
74-83-9
101-55-3
71-36-3
85-68-7
88-85-7
75-15-0
56-23-5
57-74-9
106-47-8
108-90-7
510-15-6
126-99-8
124-48-1
75-00-3
111-91-1
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.11
0.0055
0.061
0.35
0.11
0.055
5.6
0.017
0.066
3.8
0.057
0.0033
0.46
0.057
0.10
0.057
0.057
0.27
0.036
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
6.8
1.8
3.4
15
15
15
2.6
28
2.5
NA
6.0
0.26
16
6.0
NA
NA
15
6.0
7.2
N
00
O5
O
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-------
      Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations       28667
       S 8-g,
                        CM
                                          in
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-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

WASTE DESCRIPTION AND
TREATMENT/REGUUTORY SUBCATEGORY1

REGUUTED HAZARDOUS CONSTITUENT
Common Name
2,4-D (2,4-
Dichlorophenoxyacetic acid)
o.p'-DDD
p.p'-DDD
o.p'-DDE
P.P--DDE
o,p'-DDT
p.p'-DDT
Dibenz(a,h)anthracene
Dibenz(a,e)pyrene
m-Dichlorobenzene
o-Dichlorobenzene
p-Dichlorobenzene
Dichlorodifluoromethane
1,1-Dichloroethane
1,2-Dichloroethane
1,1-Dichloroethylene
trans-1 ,2-Dichloroethylene
2,4-Dichlorophenol
2,6-Dichlorophenol
1 ,2-Dichloropropane
CAS2
Number
94-75-7
53-19-0
72-54-8
3424-82-6
72-55-9
789-02-6
50-29-3
53-70-3
192-65-4
541-73-1
95-50-1
106-46-7
75-71-8
75-34-3
107-06-2
75-35-4
156-60-5
120-83-2
87-65-0
78-87-5
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.72
0.023
0.023
0.031
0.031
0.0039
0.0039
0.055
0.061
0.036
0.088
0.090
0.23
0.059
0.21
0.025
0.054
0.044
0.044
0.85
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
10
0.087
0.087
0.087
0.087
0.087
0.087
8.2
NA
6.0
6.0
6.0
7.2
6.0
6.0
6.0
30
14
14
18
to
CO
Oi
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I
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-------
      Federal Register/Vol. 63, No.  100/Tuesday, May 26, 1998/Rules and Regulations	28669
a
ili
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          1
        1
        .§

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                                                                           13=5

-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE


WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

REGUUTED HAZARDOUS CONSTITUENT
Common Name
Disulfoton
Endosulfan 1
Endosulfan II
Endosulfan sulfate
Endrin
Endrin aldehyde
Ethyl acetate
Ethyl cyanide
(Propanenitrile)
Ethyl benzene
Ethyl ether
bis(2-Ethylhexyl) phthalate
Ethyl methacrylate
Ethylene oxide
Famphur
Fluoranthene
Fluorene
Heptachlor
Heptachlorepoxide
Hexachlorobenzene
Hexachlorobutadiene
Hexachlorocyclopentadiene
CAS2
Number
298-04-4
939-98-8
33213-6-5
1031-07-8
72-20-8
7421-93-4
141-78-6
107-12-0
100-41-4
60-29-7
117-81-7
97-63-2
75-21-8
52-85-7
206-44-0
86-73-7
76-44-8
1024-57-3
118-74-1
87-68-3
77-47-4
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.017
0.023
0.029
0.029
0.0028
0.025
0.34
0.24
0.057
0.12
0.28
0.14
0.12
0.017
0.068
0.059
0.0012
0.016
0.055
0.055
0.057

NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
6.2
0.066
0.13
0.13
0.13
0.13
33
360
10
160
28
160
NA
15
3.4
3.4
0.066
0.066
10
5.6
2.4
DO
00
Oi
8?
8-
I.
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-------
      Federal Register/Vol. 63, No.  100/Tuesday, May 26, 1998/Rules and Regulations	28671
I


g
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-------
DO
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE


WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

REGULATED HAZARDOUS CONSTITUENT
Common Name
Methyl methacrylate
Methyl methansulfonate
Methyl parathion
Naphthalene
2-Naphthylamine
p-Nitroaniline
Nitrobenzene
5-Nitro-o-toluidine
p-Nrtrophenol
N-Nitrosodiethylamine
N-Nitrosodimethylamine
N-Nitroso-di-n-butylamine
N-Nitrosomethylethylamine
N-Nitrosomorpholine
N-Nitrosopiperidine
N-Nitrosopyrrolidine
Parathion
Total PCBs
(sum of all PCB isomers, or
all Aroclors)
Pentachlorobenzene
CAS2
Number
80-62-6
66-27-3
298-00-0
91-20-3
91-59-8
100-01-6
98-95-3
99-55-8
100-02-7
55-18-5
62-75-9
924-16-3
10595-95-
6
59-89-2
100-75-4
930-55-2
56-38-2
1336-36-3
608-93-5
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.14
0.018
0.014
0.059
0.52
0.028
0.068
0.32
0.12
0.40
0.40
0.40
0.40
0.40
0.013
0.013
0.014
0.10
0.055

NONWASTEWATERS
Concentration in trig/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
160
NA
4.6
5.6
NA
28
14
28
29
28
NA
17
2.3
2.3
35
.35
4.6
10
10
I
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-------
     Federal Register/Vol.  63, No. 100/Tuesday, May 26,  1998/Rules and Regulations        28673
       fi

       s §•
    §
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                                                                            o>
                  8
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                8
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-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE


WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

REGULATED HAZARDOUS CONSTITUENT
Common Name
TCDFs(AII
Tetrachlorodibenzofurans)
1,1,1 ,2-Tetrachloroethane
1 ,1 ,2,2-Tetrachloroethane
Tetrachloroethylene
2,3,4,6-Tetrachlorophenol
Toluene
Toxaphene
Bromoform
(Tribromomethane)
1 ,2,4-Trichlorobenzene
1,1,1-Trichloroethane
1,1 ,2-Trichloroethane
Trichloroethylene
Tnchloromonofluoromethane
2,4,5-Trichlorophenol
2,4,6-Trichlorophenol
1 ,2,3-Trichloropropane
1,1,2-Trichloro-1,2,2-
trifluoroethane
tris(2,3-Dibrpmopropyl)
phosphate
Vinyl chloride
CAS2
Number
NA
630-20-6
79-34-6
127-18-4
58-90-2
108-88-3
8001-35-2
75-25-2
120-82-1
71-55-6
79-00-5
79-01-6
75-69-4
95-95-4
88-06-2
96-18-4
76-13-1
126-72-7
75-01-4
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.000063
0.057
0.057
0.056
0.030
0.080
0.0095
0.63
0.055
0.054
0.054
0.054
0.020
0.18
0.035
0.85
0.057
0.11
0.27

NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
0.001
6.0
6.0
6.0
7.4
10
2.6
15
19
6.0
6.0
6.0
30
7.4
7.4
30
30
NA
6.0
to
00
85
a
I
I
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 to
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-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

REGULATED HAZARDOUS CONSTITUENT
Common Name
Xylenes-mixed isomers
(sum of o-, m-, and p-xytene
concentrations)
Antimony
Arsenic
Barium
Beryllium
Cadmium
Chromium (Total)
Cyanides (Total)7
Cyanides (Amenable)7
Fluoride
Lead
Mercury
Nickel
Selenium
Silver
Sulfide
Thallium
Vanadium
CAS2
Number
1330-20-7
7440-36-0
7440-38-2
7440-39-3
7440-41-7
7440-43-9
7440-47-3
57-12-5
57-12-5
16964-48-
8
7439-92-1
7439-97-6
7440-02-0
7782-49-2
7440-22-4
8496-25-8
7440-28-0
7440-62-2
WASTEWATERS
Concentration in mg/13;
or Technology Code4
0.32
1.9
1.4
1.2
0.82
0.69
2.77
1.2
0.86
35
0.69
0.15
3.98
0.82
0.43
14
1.4
4.3
NOKWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/1
TCLP"; or Technology
Code4
30
1.15 mg/lTCLP
5.0 mg/ITCLP
21 mg/1 TCLP
NA
0.11 rng/ITCLP
0.60 mg/ITCLP
590
NA
NA
0.75 mg/ITCLP
0.025 mg/ITCLP
11 mg/ITCLP
5.7 mg/ITCLP
0.14 mg/1 TCLP
NA
NA
NA
O.
2?
EL
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-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
K001
K002
K003
K004
K005
K006
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Bottom sediment sludge from the treatment of
wastewaters from wood preserving processes that
use creosote and/or pentachlorophenol.
Wastewater treatment sludge from the production
of chrome yellow and orange pigments.
Wastewater treatment sludge from the production
of molybdate orange pigments.
Wastewater treatment sludge from the production
of zinc yellow pigments.
Wastewater treatment sludge from the production
of chrome green pigments.
Wastewater treatment sludge from the production
of chrome oxide green pigments (anhydrous).
Wastewater treatment sludge from the production
of chrome oxide green pigments (hydrated).
REGULATED HAZARDOUS CONSTITUENT
Common Name
Naphthalene
Pentachlorophenol
Phenanthrene
Pyrene
Toluene
Xylenes-mixed isomers
(sum of o-, nv, and p-xylene
concentrations)
Lead
Chromium (Total)
Lead
Chromium (Total)
Lead
Chromium (Total)
Lead
Chromium (Total)
Lead
Cyanides (TotaO7
Chromium (Total)
Lead
Chromium (Total)
Lead
CAS2
Number
91-20-3
87-86-5
85-01-8
129-00-0
108-88-3
1330-20-7
7439-92-1
7440-47.3
7439-92-1
7440-47-3
7439-92-1
7440-47-3
7439-92-1
7440-47.3
7439-92-1
57-12-5
7440-47-3
7439-92-1
7440^7-3
7439-92-1
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.059
0.089
0.059
0.067
0.080
0.32
0.69
2.77
0.69
2.77
0.69
2.77
0.69
2.77
0.69
1.2
2.77
0.69
2.77
0.69

NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
5.6
7.4
5.6
8.2
10
30
0.75 mg/l TCLP
0.60 mg/l TCLP
0.75 mg/l TCLP
0.60 mg/l TCLP
0.75 mg/l TCLP
0.60 mg/l TCLP
0.75 mg/l TCLP
0.60 mg/l TCLP
0.75 mg/l TCLP
590
0.60 mg/l TCLP
0.75 mg/l TCLP
0.60 mg/l TCLP
NA
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     Federal Register/Vol. 63, No.  100/Tuesday, May 26, 1998/Rules and Regulations
                                                                    28677
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

K015
K016
K017
K018

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Still bottoms from the distillation of benzyl chloride.
Heavy ends or distillation residues from the
production of carbon tetrachloride.
Heavy ends (still bottoms) from the purification
column in the production of epichlorohydrin.
Heavy ends from the fractionation column in ethyl
chloride production.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Benzene
Cyanide (Total)
Anthracene
Benzal chloride
Benzo(b)fluoranthene
(difficult to distinguish from
benzo(k)fluoranthene)
Benzo(k)fluoranthene
(difficult to distinguish from
benzo(b)fluoranthene)
Phenanthrene
Toluene
Chromium (Total)
Nickel
Hexachlorobenzene
Hexachlorobutadiene
Hexachlorocydopentadiene
Hexachloroethane
Tetrachloroethylene
bis(2-Chloroethyl)ether
1,2-Dichlorbpropane
1 ,2,3-Trichloropropane
Chloroethane
CAS2
Number
71-43-2
57-12-5
120-12-7
98-87-3
205-99-2
207-08-9
85-01-8
108-88-3
7440-47-3
7440-02-0
118-74-1
87-68-3
77-47-4
67-72-1
127-18-4
111-44-4
78-87-5
96-18-4
75-00-3
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.14
1.2
0.059
0.055
0.11
0.11
0.059
0.080
2.77
3.98
0.055
0.055
0.057
0.055
0.056
0.033
0.85
0.85
0.27

NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
10
590
3.4
6.0
6.8
6.8
5.6
10
0.60 mg/l TCLP
11 mg/l TCLP
10
5.6
2.4
30
6.0
6.0
18
30
6.0

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Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations
                                         28679
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28680      Federal Register/Vol. 63, No. 100/Tuesday, May 26,  1998/Rules and Regulations
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                                                                         28681
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
K029
K030
K031
K032
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Waste from the product steam stripper in the
production of 1,1,1-trichloroethane.
Column bodies or heavy ends from the combined
production of trichloroethylene and
perchloroethylene.
By-product salts generated in the production of
MSMA and cacodylic acid.
Wastewater treatment sludge from the production
ofchlordane.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Chloroform
1,2-Dichloroethane
1 ,1-Dichloroethylene
1,1,1-Trichloroethane
Vinyl chloride
o-Dichlorobenzene
p-Dichlorobenzene
Hexachlorobutadiene
Hexachloroethane
Hexachloropropylene
Pentachlorobenzene
Pentachloroethane
1 ,2,4,5-Tetrachlorobenzene
Tetrachloroethylene
1 ,2,4-Trichlorobenzene
Arsenic
Hexachlorocyclopentadiene
Chlordane (alpha and
gamma isomers)
Heptachlor
Heptachlor epoxide
CAS2
Number
67-66-3
107-06-2
75-35-4
71-55-6
75-01-4
95-50-1
106-46-7
87-68-3
67-72-1
1888-71-7
608-93-5
76-01-7
95-94-3
127-18-4
120-82-1
7440-38-2
77-47-4
57-74-9
76-44-8
1024-57-3
WASTEWATERS
Concentration in mg/P;
or Technology Code4
0.046
0.21
0.025
0.054
0.27
0.088
0.090
0.055
0.055
NA
NA
NA
0.055
0.056
0.055
1.4
0.057
0.0033
0.0012
0.016
NONWASTEWATERS
Concentration in mg/kgs
unless noted as "mg/l
TCLP"; or Technology
Code4
6.0
6.0
6.0
6.0
6.0
NA
NA
5.6
30
30
10
6.0
14
6.0
19
5.0 mg/l TCLP
2.4
0.26
0.066
0.066
DO
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE MA means not appMcabte
WASTE
CODE
K033
K034
K035
.
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Wastewater and scrub water from the chlonnation
of cydopentadiene in the production ofchlordane.
Filter solids from the filtration of
hexachlorocydopentadiene in the production of
chlordane.
Wastewater treatment sludges generated in the
production of creosote.
REOUiATEO HAZARDOUS CONSTITUENT
Common Name
Hexachlorocydopentadiene
Hexachlorocydopentadiene
Acenaphthene
Anthracene
Benz(a)anthracene
Benzo(a)pyrene
Chrysene
o-Cresol
m-Cresol
(difficult to distinguish from
p-cresol)
p-Cresol
(difficult to distinguish from
m-cresol)
Dibenz(a,h)anthracene
Fluoranthene
Fluorene
Indenofl ,2,3-cd)pyrene
Naphthalene
Phenanthrene
Phenol
CAS2
Number
77-47-4
77-47-4
83-32-9
120-12-7
56-55-3
50-32-8
218-01-9
95-48-7
108-39-4
106-44-5
53-70-3
206-44-0
86-73-7
193-39-5
91-20-3
85-01-8
108-95-2
WASTEWATERS
Concentration In mg/I3;
or Technology Code4
0.057
0.057
MA
NA
0.059
0.061
0.059
0.11
0.77
0.77
NA
0.068
NA
NA
0.059
0.059
0.039
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/1
TCLP"; or Technology
Code4
2.4
2.4
3.4
3.4
3.4
3.4
3.4
5.6
5.6
5.6
8.2
3.4
3.4
3.4
5.6
5.6
6.2
D.
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

K036
K037
K038
K039
K040
K041
K042
K043

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Still bottoms from toluene reclamation distillation in
the production of disulfoton.
Wastewater treatment sludges from the production
of disulfoton.
Wastewater from the washing and stripping of
phorate production.
Filter cake from the filtration of
diethylphosphorodithioic acid in the production of
phorate.
Wastewater treatment sludge from the production
of phorate.
Wastewater treatment sludge from the production
oftoxaphene.
Heavy ends or distillation residues from the
distillation of tetrachlorobenzene in the production
of2,4,5-T.
2,6-Dichlorophenol waste from the production of
2,4-D.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Pyrene
Disulfoton
Disulfoton
Toluene
Phorate
NA
Phorate
Toxaphene
o-Dichlorobenzene
p-Dichlorobenzene
Pentachlorobenzene
1 ,2,4,5-Tetrachlorobenzene
1 ,2,4-Trichlorobenzene
2,4-Dichlorophenol
2,6-Dichlorophenol
2,4,5-Trichlorophenol
2,4,6-Trichlorophenol
2,3,4,6-TetrachloroDhenol
CAS2
Number
129-00-0
298-04-4
298-04-4
108-88-3
298-02-2
NA
298-02-2
8001-35-2
95-50-1
106-46-7
608-93-5
95-94-3
120-82-1
120-83-2
187-65-0
95-95-4
88-06-2
58-90-2
WASTEWATERS
Concentration in mg/13;
or Technology Code4
0.067
0.017.
0.017
0.080
0.021
CARBN;orCMBST
0.021
0.0095
0.088
0.090
0.055
0.055
0.055
0.044
0.044
0.18
0.035
0.030
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/1
TCLP"; or Technology
Code4
8.2
6.2
6.2
10
4.6
CMBST
4.6
2.6
6.0
6.0
10
14
19
14
14
7.4
7.4
7.4
N
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     Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations      28685
                     8
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ro
oo
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

K049

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Slop oil emulsion solids from the petroleum refining
industry.
REGULATED HAZARDOUS CONSTITUENT
Common Name
bis(2-Ethylhexyl) phthalate
Chrysene
Di-n-butyl phthalate
Ethylbenzene
Fluorene
Naphthalene
Phenanthrene
Phenol
Pyrene
Toluene
Xylenes-mixed isomers
(sum of o-. nv, and p-xylene
concentrations)
Chromium (Total)
Cyanides (Total)7
Lead
Nickel
.Anthracene
Benzene
Benzo(a)pyrene
bis(2-Ethylhexyl) phthalate
Carbon disulfide
CAS2
Number
117-81-7
218-01-9
84-74-2
100-41-4
86-73-7
91-20-3
85-01-8
108-95-2
129-00-0
108-88-33
1330-20-7
7440-47-3
57-12-5
7439-92-1
7440-02-0
120-12-7
71-43-2
50-32-8
117-81-7
75-15-0
WASTEWATERS
Concentration in mg/13;
or Technology Code4
0.28
0.059
0.057
0.057
0.059
0.059
0.059
0.039
0.067
0.080
0.32
2.77
1.2
0.69
NA
0.059
0.14
0.061
0.28
3.8

NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/1
TCLP"; or Technology
Code4
28
3.4
28
10
NA
5.6
5.6
6.2
8.2
10
30
0.60 mg/ITCLP
590
NA
11 mg/ITCLP
3.4
10
3.4
28
NA
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    Federal Register/Vol. 63, No. 100/Tuesday, May 26,  1998/Rules and Regulations       28687
       lie*
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
K051
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
API separator sludge from the petroleum refining
industry.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Acenaphthene
Anthracene
Benz(a)anthracene
Benzene
Benzo(a)pyrene
bls(2-Ethylhexyl) phthalate
Chrysene
Di-n-butyl phthalate
Ethylbenzene
Fluorene
Naphthalene
Phenanthrene
Phenol
Pyrene
Toluene
Xylenes-mixed isomers
(sum of o-, m-, and p-xylene
concentrations)
Cyanides (Total)7
Chromium (Total)
Lead
Nickel
CAS2
Number
83-32-9
120-12-7
56-55-3
71-43-2
50-32-8
117-81-7
2218-01-9
105-67-9
100-41-4
86-73-7
91-20-3
85-01-8
108-95-2
129-00-0
108-88-3
1330-20-7
57-12-5
7440-47-3
7439-92-1
7440-02-0
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.059
0.059
0.059
0.14
0.061
0.28
0.059
0.057
0.057
0.059
0.059
0.059
0.039
0.067
0.08
0.32
1.2
2.77
0.69
NA
NONWASTEWATERS
Concentration in mg/kg6
unless noted as "mg/l
TCLP"; or Technology
Code4
NA
3.4
3.4
10
3.4
28
3.4
28
10
NA
5.6
5.6
6.2
8.2
10
30
590
0.60 mg/l TCLP
NA
11 ma/1 TCLP
N

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Federal Register/Vol. 63, No. 100/Tuesday,  May 26, 1998/Rules and Regulations       28689
                     CD

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-43-2
95-
330-20-7
44

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(O
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

K061
K062
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Emission control dust/sludge from the primary
production of steel in electric furnaces.
Spent pickle liquor generated by steel finishing
operations of facilities within the iron and steel
industry (SIC Codes 331 and 332).
REGULATED HAZARDOUS CONSTITUENT
Common Name
Benzo(a)pyrene
Naphthalene
Phenol
Cyanides (Total)7
Antimony
Arsenic
Barium
Beryllium
Cadmium
Chromium (Total)
Lead
Mercury
Nickel
Selenium
Silver
Thallium
Zinc
Chromium (Total)
Lead
Nickel
CAS2
Number
50-32-8
91-20-3
108-95-2
57-12-5
7440-36-0
7440-38-2
7440-39-3
7440-41-7
7440-43-9
7440-47-3
7439-92-1
7439-97-6
7440-02-0
7782-49-2
7440-22-4
7440-28-0
7440-66-6
7440-47-3
7439-92-1
7440-02-0
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.061
0.059
0.039
1.2
NA
NA
NA
NA
0.69
. 2.77
0.69
NA
3.98
NA
NA
NA
NA
2.77
0.69
3.98
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/I
TCLP"; or Technology
Code4
3.4
5.6
6.2
590
1.15 mg/l TCLP
5.0 mgflTCLP
21 mgflTCLP
1.22 mg/l TCLP
0.11 mg/l TCLP
0.60 mg/l TCLP
0.75 mg/l TCLP
0.025 mgflTCLP
11 mgflTCLP
5.7 mg/l TCLP
0.14 mg/l TCLP
0.20 mg/l TCLP
4.3 mgflTCLP
0.60 mgflTCLP
0.75 mgflTCLP
"NA
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Federal Register/Vol. 63, No.  100/Tuesday, May 26, 1998/Rules and Regulations
                                   28691
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

K084
K085

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Wastewater treatment sludges generated during
the production of veterinary Pharmaceuticals from
arsenic or organo-arsenic compounds.
Distillation or fradionation column bottoms from the
production of chlorobenzenes.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Diphenylnitrosamine (difficult
to distinguish from
diphenylamine)
Nitrobenzene
Phenol
Nickel
Arsenic
Benzene
Chlorobenzene
m-Dichlorobenzene
o-Dichloro benzene
p-Dichlorobenzene
Hexachlorobenzene
Total PCBs
(sum of all PCB isomers, or
all Aroclors)
Pentachlorobenzene
1 ,2,4,5-Tetrachlorobenzene
1 ,2,4-Trichlorobenzene
CAS2
Number
86-30-6
98-95-3
108-95-2
7440-02-0
7440-38-2
71-43-2
108-90-7
541-73-1
95-50-1
106-46-7
118-74-1
1336-36-3
608-93-5
95-94-3
120-82-1
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.92
0.068
0.039
3.98
1.4
0.14
0.057
0.036
0.088
0.090
0.055
0.10
0.055
0.055
0.055

NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
13
14
6.2
11 mg/l TCLP
5.0 mg/l TCLP
10
6.0
6.0
6.0
6.0
10
10
10
14
19
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WASTE
CODE
K086
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not apptaWe
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
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
stabilizers containing chromium and lead.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Acetone
Acetophenone
bis(2-Elhylhexyl) phtnalate
n-Butyl alcohol
Butylbenzyl phthalate
Cydohexanone
o-Dichloro benzene
Diethyl phthalate
Dimethyl phthalate
Di-n-butyl phthalate
Di-n-octyl phthalate
Ethyl acetate
Ethylbenzene
Methanol
Methyl ethyl ketone
Methyl isobutyl ketone
Methylene chloride
Naphthalene
Nitrobenzene
Toluene
1 .1 ,1-Trichloroethane
CAS'
Number
67-64-1
96-86-2
117-81-7
71-36-3
85-68-7
108-94-1
95-50-1
84-66-2
131-11-3
84-74-2
117-84-0
141-78-6
100-41-4
67-56-1
78-93-3
108-10-1
754)9-2
91-20-3
98-95-3
108-88-3
71-55-6
WASTEWATERS
Concentration in mg/P;
or Technology Code*
0.28
0.010
0.28
5.6
0.017
0.36
0.088
0.20
0.047
0.057
0.017
0.34
0.057
5.6
0.28
0.14
0.089
0.059
0.068
0.080
0.054
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
160
9.7
28
2.6
28
NA
6.0
28
28
28
28
33
10
NA
36
33
30
5.6
14
10
6.0
 a
 m
 I

s
 05
 CO




 2
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

K087
K088
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Decanter tank tar sludge from coking operations.
Spent potliners from primary aluminum reduction.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Trichloroethylene
Xylenes-mixed isomers
(sum of o-, nv, and p-xylene
concentrations)
Chromium (Total)
Cyanides (Total)7
Lead
Acenaphthylene
Benzene
Chrysene
Fluoranthene
lndeno(1 ,2,3-cd)pyrene
Naphthalene
Phenanthrene
Toluene
Xylenes-mixed isomers
(sum of o-, nv, and p-xylene
concentrations)
Lead
Acenaphthene
Anthracene
Benz(a)anthracene
Benzo(a)ovrene
CAS2
Number
79-01-6
1330-20-7
7440-47-3
57-12-5
7439-92-1
208-96-8
71-43-2
218-01-9
206-44-0
193-39-5
91-20-3
85-01-8
108-88-3
1330-20-7
7439-92-1
83-32-9
120-12-7
56-55-3
50-32-8
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.054
0.32
2.77
1.2
0.69
0.059
0.14
0.059
0.068
0.0055
0.059
0.059
0.080
0.32
0.69
0.059
0.059
0.059
0.061
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
6.0
30
0.60 mg/l TCLP
590
0.75 mg/l TCLP
3.4
10
3.4
3.4
3.4
5.6
5.6
10
30
0.75 mg/l TCLP
3.4
3.4
3.4
3.4
ro
oo
Oi
CO
tU
 8-
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I
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Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations	28695
      O
    I
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-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: MA means not applicable
WASTE
CODE

K093
K094
K095
K096
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Distillation light ends from the production of
phthalic anhydride from ortho-xylene.
Distillation bottoms from the production of phthalic
anhydride from ortho-xylene.
Distillation bottoms from the production of 1,1,1-
trichloroethane.
Heavy ends from the heavy ends column from the
production of 1,1,1-trichloroethane.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Cyanide (Amenable)7
Fluoride
Phthalic anhydride
(measured as Phthalic acid
orTerephthalicacid)
Phthalic anhydride
(measured as Phthalic acid
or Terephthalic acid)
Phthalic anhydride
(measured as Phthalic acid
orTerephthalicacid)
Phthalic anhydride
(measured as Phthalic acid
orTerephthalicacid)
Hexachloroethane
Pentachloroethane
1,1,1,2-Tetrachloroethane
1 ,1 ,2,2-Tetrachloroethane
Tetrachloroethylene
1 ,1 ,2-Trichloroethane
Trichloroethylene
m-Dichlorobenzene
Pentachloroethane
1 ,1 ,1,2-Tetrachloroethane
CAS2
Number
57-12-5
16984-48-
8
100-21-0
85-44-9
100-21-0
85-44-9
67-72-1
76-01-7
630-20-6
79-34-6
127-18-4
79-00-5
79-01-6
541-73-1
76-01-7
630-20-6
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.86
35
0.055
0.055
0.055
0.055
0.055
0.055
0.057
0.057
0.056
0.054
0.054
0.036
0.055
0.057
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
30
48 mg/l TCLP
28
28
28
28
30
6.0
6.0
6.0
6.0
6.0
6.0
6.0
6.0
6.0
 to
 00
 m
 to
 a

 I

I
•<


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 CD

 CO
 00

-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

K097
K098
K099
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Vacuum stripper discharge from the chlordane
chlorinator in the production of chlordane.
Untreated process wastewater from the production
oftoxaphene.
Untreated wastewater from the production of 2.4-D.
REGULATED HAZARDOUS CONSTITUENT
Common Name
1 ,1 ,2,2-Tetrachloroethane
Tetrachloroethylene
1 ,2,4-Trichlorobenzene
1 ,1 ,2-Trichloroethane
Trichloroethylene
Chlordane (alpha and
gamma isomers)
Heptachlor
Heptachlorepoxide
Hexachlorocyclopentadiene
Toxaphene
2,4-Dichlorophenoxyacetic
acid
HxCDDs(AII
Hexachlofodibenzo-p-
dioxins)
HxCDFs(AII
Hexachlorcdibenzofurans)
PeCDDs (All
Pentachlorodibenzo-p-
dioxins)
PeCDFs (All
Pentachlorodibenzofurans)
CAS2
Number
79-34-6
127-184
120-82-1
79-00-5
79-01-6
57-74-9
76-44-8
1024-57-3
77-47-4
8001-35-2
94-75-7
NA
NA
NA
NA
WASTEWATERS
Concentration in mg/P;
or Technology Code4
0.057
0.056
0.055
0.054
0.054
0.0033
0.0012
0.016
0.057
0.0095
0.72
0.000063
0.000063
0.000063
0.000035
NONWASTEWATERS
Concentration in mg/kg9
unless noted as "mg/l
TCLP"; or Technology
Code4
6.0
6.0
19
6.0
6.0
0.26
0.066
0.066
2.4
2.6
10
0.001
0.001
0.001
0.001
I
O5
W
o
o
 PO
 05
 CO
 CD
 00
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 &
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-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: MA means not applicable
WASTE
CODE

K100
K101
K102
K103
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Waste leaching solution from acid leaching of
emission control dust/sludge from secondary lead
smelting.
Distillation tar residues from the distillation of
aniline-based compounds in the production of
veterinary Pharmaceuticals from arsenic or organo-
arsenic compounds.
Residue from the use of activated carbon for
decolonization in the production of veterinary
Pharmaceuticals from arsenic or organo-arsenic
compounds.
Process residues from aniline extraction from the
production of aniline.
REGULATED HAZARDOUS CONSTITUENT
Common Name
TCDDs(AII
Tetrachlorodibenzo-p-
dioxins)
TCDFs(AU
Tetrachlorodibenzofurans)
Cadmium
Chromium (Total)
Lead
o-Nitroaniline
Arsenic
Cadmium
Lead
Mercury
o-Nitrophenol
Arsenic
Cadmium
Lead
Mercury
Aniline
Benzene
2,4-Dinitrophenol
Nitrobenzene
Phenol
CAS2
Number
NA
NA
7440-43-9
7440-47-3
7439-92-1
88-74-4
7440-38-2
744043-9
7439-92-1
7439-97-6
88-75-5
7440-38-2
7440-43-9
7439-92-1
7439-97-6
62-53-3
71-43-2
51-28-5
98-95-3
108-9&-2
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.000063
0.000063
0.69
2.77
0.69
0.27
1.4
0.69
0.69
0.15
0.028
1.4
0.69
0.69
0.15
0.81
0.14
0.12
0.068
0.039
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
0.001
0.001
0.11 mg/ITCLP
0.60 mg/ITCLP
0.75 mg/ITCLP
14
5.0 mg/ITCLP
NA
NA
NA
13
5.0 mg/ITCLP
NA
NA
NA
14
10
160
14
6.2
 to

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 8
 S1
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$
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Federal Register/Vol. 63, No.  100 /Tuesday. May 26,  1998 /Rules and Regulations	28699
                        CD
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-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: MA means not applicable
WASTE
CODE

K107
K108
K109
K110
K111
K112
K113
K114
K115
WASTE DESCRIPTION AND
TREATMENT/REGUUTORY SUBCATEGORY1
AIIK106wastewaters.
Column bottoms from product separation from the
production of 1,1-dimethylhydrazine (UDMH) from
carboxylicadd hydrazides.
Condensed column overheads from product
separation and condensed reactor vent gases from
the production of 1,1-dimethylhydrazine (UDMH)
from carboxylic acid hydrazides.
Spent filter cartridges from product purification from
the production of 1,1-dimethylhydrazine (UDMH)
from carboxylic acid hydrazides.
Condensed column overheads from intermediate
separation from the production of 1,1-
dimethylhydrazine (UDMH) from carboxylic acid
hydrazides.
Product washwaters from the production of
dinttrotoluene via nitration of toluene
Reaction by-product water from the drying column
in the production of toluenediamine via
hydrogenation of dinitrotoluene.
Condensed liquid light ends from the purification of
toluenediamine in the production of toluenediamine
via hydrogenation of dinitrotoluene.
Vicinals from the purification of toluenediamine in
the production of toluenediamine via hydrogenation
ofdinitrotolune.
Heavy ends from the purification of toluenediamine
in the production of toluenediamine via
hydroqenation of dinitrotoluene.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Mercury
NA
NA
NA
NA
2,4-Dinitrotoluene
2,6-Dinitrotoluene
NA
NA
NA
Nickel
NA
CAS2
Number
7439-97-6
NA
NA
NA
NA
121-1-2
606-20-2
NA
NA
NA
7440-02-0
NA
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.15
CMBSTiorCHOXDfb
CARBN; or BIODGfb
CARBN
CMBSTiorCHOXDfb
CARBN; or BIODGfb
CARBN
CMBSTiorCHOXDfb
CARBN; or BIODGfb
CARBN
CMBSTiorCHOXDfb
CARBN; or BIODGfb
CARBN
0.32
0.55
CMBST;orCHOXDfb
CARBN; or BIODGfb
CARBN
CARBN; OR CMBST
CARBN; or CMBST
3.98
CARBN; or CMBST
NONWASTEWATERS
Concentration in mg/kgs
unless noted as "mg/l
TCLP"; or Technology
Code4
NA
CMBST
CMBST
CMBST
CMBST
140
28
CMBST
CMBST
CMBST
11 mg/l TCLP
CMBST
to
00
o
o-
I
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    Federal Register/Vol. 63. No. 100/Tuesday, May 26, 1998/Rules and Regulations      28701
CO
to




1
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-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
K132
K136
K140
K141
K142
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Spent absorbent and wastewater separator solids
from the production of methyl bromide.
Still bottoms from the purification of ethylene
dibromide in the production of ethylene dibromide
via bromination of ethene.
Floor sweepings, off-specification product, and
spent filter media from the production of 2,4,6-
tribromophenol.
Process residues from the recovery of coal tar,
including, but not limited to, collecting sump
residues from the production of coke or the
recovery of coke by-products produced from coal.
This listing does not include K087 (decanter tank
tar sludge from coking operations).
Tar storage tank residues from the production of
coke from coal or from the recovery of coke by-
products produced from coal.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Methyl bromide
(Bromomethane)
Methyl bromide
(Bromomethane)
Chloroform
Ethylene dibromide (1,2-
Dibromoethane)
2,4,6-Tribromophenol
Benzene
Benz(a)anthracene
Benzo(a)pyrene
Benzo(b)fluoranthene
(difficult to distinguish from
benzo(k)fluoranthene)
Benzo(k)fluoranthene
(difficult to distinguish from
benzo(b)fluoranthene)
Chrysene
Dibenz(a,h)anthracene
lndeno(1 ,2,3-cd)pyrene
Benzene
Benz(a)antriracene
Benzo(a)Dvrene
CAS2
Number
74-83-9
74-83-9
67-66-3
106-93-4
118-79-6
71-43-2
56-55-3
50-2-8
205-99-2
207-08-9
218-01-9
53-70-3
193-39-5
71-43-2
56-55-3
50-32-8
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.11
0.11
0.046
0.028
0.035
0.14
0.059
0.061
0.11
0.11
0.059
0.055
0.0055
0.14
0.059
0.061
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
15
15
6.0
15
7.4
10
3.4
3.4
6.8
6.8
3.4
8.2
3.4
10
3.4
3.4
N
00
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    Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations      28703
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

K145
K147
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Residues from naphthalene collection and recovery
operations from the recovery of coke by-products
produced from coal.
Tar storage tank residues from coal tar refining.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Benzo(k)fluoranthene
(difficult to distinguish from
benzo(b)fluoranthene)
Chrysene
Dibenz(a,h)anthracene
Benzene
Benz(a)anthracene
Benzo(a)pyrene
Chrysene
Dibenz(a,h)anthracene
Naphthalene
Benzene
Benz(a)anthracene
Benzo(a)pyrene
Benzo(b)fluoranthene
(difficult to distinguish from
benzo(k)fluoranthene)
Benzo(k)fluoranthene
(difficult to distinguish from
benzo(b)fluoranlhene)
Chrysene
Dibenz(a,h)anlhracene
lndeno(1 .2.3-cd)pvrene
CAS2
Number
207-08-9
218-01-9
53-70-3
71-43-2
56-55-3
50-32-8
218-01-9
53-70-3
91-20-3
71-43-2
56-55-3
50-32-8
205-99-2
207-08-9
218-01-9
53-70-3
193-39-5
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.11
0.059
0.055
0.14
0.059
0.061
0.059
0.055
0.059
0.14
0.059
0.061
0.11
0.11
0.059
0.055
0.0055
NONWASTEWATERS
Concentration in mgykg5
unless noted as "mg/l
TCLP"; or Technology
Code4
6.8
3.4
8.2
10
3.4
3.4
3.4
8.2
5.6
10
3.4
3.4
6.8
6.8
3.4
8.2
3.4
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE NA mean* not appHcabta
WASTE
CODE
K148
K149
K150

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Residues from coal tar distillation, including, but not
limited to, still bottoms.
Distillation bottoms from the production of alpha-
(or methyl-) chlorinated toluenes, ring-chlorinated
toluenes, benzoyi chlorides, and compounds with
mixtures of these functional groups. (This waste
does not include still bottoms from the distillations
of benzyl chloride.)
Organic residuals, excluding spent carbon
adsorbent, from the spent chlorine gas and
hydrochloric acid recovery processes associated
with the production of alpha- (or methyl-)
chlorinated toluenes, ring-chlorinated toluenes,
benzoyi chlorides, and compounds with mixtures of
these functional groups.
REGULATED HAZARDOUS CONSTITUENT
Common Name
Benz(a)anlhracene
Benzo(a)pyrene
Benzo(b)fluoranthene
(difficult to distinguish from
benzoQOfluoranthene)
Benzo(k)fluoranthene
(difficult to distinguish from
benzo(b)fluoranthene)
Chrysene
Dibenz(a,h)anthracene
lndeno(1 ,2,3-cd)pyrene
Chlorobenzene
Chloroform
Chloromethane
p-Dichlorobenzene
Hexachlorobenzene
Pentachlorobenzene
1 ,2,4,5-Tetrachlorobenzene
Toluene
Carbon tetrachloride
Chloroform
Chloromethane
p-Dichlorobenzene
CAS7
Number
58-55-3
50-32-8
205-99-2
207-08-9
218-01-9
53-70-3
193-39-5
108-90-7
67-66-3
74-87-3
106-46-7
118-74-1
608-93-5
95-94-3
108-88-3
56-23-5
67-66-3
74-87-3
106-46-7
WASTEWATERS
Concentration in mg/P;
or Technology Code4
0.059
0.061
0.11
0.11
0.059
0.055
0.0055
0.057
0.046
0.19
0.090
0.055
0.055
0.055
0.080
0.057
0.046
0.19
0.090

NONWASTEWATERS
Concentration in mgflcg5
unless noted as "mg/1
TCLP"; or Technology
Code4
3.4
3.4
6.8
6.8
- 3.4
8.2
3.4
6.0
6.0
30
6.0
10
10
14
10
6.0
6.0
30
6.0

I
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 to
 i
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

K151
K156
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Wastewater treatment sludges, excluding
neutralization and biological sludges, generated
during the treatment of wastewaters from the
production of alpha- (or methyl-) chlorinated
toluenes, ring-chlorinated toluenes, benzoyl
chlorides, and compounds with mixtures of these
functional groups.
Organic waste (including heavy ends, still bottoms,
light ends, spent solvents, filtrates, and decantates)
from the production of carbamates and carbamoyl
oxlmes. m
REGULATED HAZARDOUS CONSTITUENT
Common Name
Hexachlorobenzene
Pentachlorobenzene
1 ,2,4,5-Tetrachlorobenzene
1 ,1 ,2,2-Tetrachloroethane
Tetrachloroethylene
1 ,2,4-Trichlorobenzene
Benzene
Carbon tetrachloride
Chloroform
Hexachlorobenzene
Pentachlorobenzene
1 ,2,4,5-Tetrachlorobenzene
Tetrachloroethylene
Toluene
Acetonitrile
Acetophenone
Aniline
Benomyl
Benzene
Carbarvl
CAS2
Number
118-74-1
608-93-5
95-94-3
79-34-5
127-18-4
120-82-1
71-43-2
56-23-5
67-66-3
118-74-1
608-93-5
95-94-3
127-18-4
108-88-3
75-05-8
96-86-2
62-53-3
17804-35-
2
71-43-2
63-25-2
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.055
0.055
0.055
0.057
0:056
0.055
0.14
0.057
0.046
0.055
0.055
0.055
0.056
0.080
5.6
0.010
0.81
0.056
0.14
0.006
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
10
10
14
6.0
6.0
19
10
6.0
6.0
10
10
14
6.0
10
38
9.7
14
1.4
10
0.14
 I
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 58

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     Federal Register/Vol. 63, No. 100/Tuesday,  May 26. 1998/Rules and Regulations	28707
                                    CO
                                                      (O
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE

K158
K159
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1

Bag house dusts and filter/separation solids from
the production of carbamates and carbamoyl
oximes. 10
Organics from the treatment of thiocarbamate
wastes. 10
REGUUTED HAZARDOUS CONSTITUENT
Common Name
Methyl ethyl ketone
o-Phenylenediamine
Pyridine
Triethylamine
Benomyl
Benzene
Carbenzadim
Carbofuran
Carbosulfan
Chloroform
Methylene chloride
Phenol
Benzene
Butylate
EPTC (Eptam)
Molinate
Pebulate
Vemolate
CAS2
Number
78-93-3
95-54-5
110-86-1
121-44-8
17804-35-
2
71-43-2
10605-21-
7
1563-66-2
55285-14-
8
67-66-3
75-09-2
108-95-2
71-43-2
2008-41-5
759-94-4
2212-67-1
1114-71-2
1929-77-7
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.28
0.056
0.014
0.081
0.056
0.14
0.056
0.006
0.028
0.046
0.089
0.039
0.14
0.042
0.042
0.042
0.042
	 0.042 	
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
36
5.6
16
1.5
1.4
10
1.4
0.14
1.4
6.0
30
6.2
10
1.4
1.4
1.4
1.4
1.4
 PO
 00


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 8
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Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations      28709
            p
                                  o
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                                       8
                                       
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28710
      Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and  Regulations
CMB
ETL;
CMBST
BST
CMBST
                                                            in
                                                            CM
CMB

                                    eo
I
10
§
Concentration i

or Technology
                                                                 CM
           !'
                                                CM
542
357-57-3
                                                           CO
                                                           CO
75-15-0
7-8
      (0



      1
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      X
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CO

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                                  £
ID
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-------
Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations      28711
           CD

           o
                 CO
                 m
     CO
     m
                       O I
                       i
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                                              co
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 to
 00

WASTE
CODE
P042
P043
P044
P045
P046
P047
P048
P049
P050
P051
P054
P056
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Epinephrine
Diisopropylfluorophosphate (DFP)
Dimethoate
Thiofanox
alpha, alpha-Dimethylphenethylamine
4,6-Dinitro-o-cresol
4,6-Dinitro-o-cresol salts
2,4-Dinitrophenol
Dithiobiuret
Endosulfan
Endrin
Aziridine
Fluorine
REGULATED HAZARDOUS CONSTITUENT
Common Name
Epinephrine
Diisopropylfluorophosphate
(DFP)
Dimethoate
Thiofanox
alpha, alpha-
Dimethylphenethylamine
4,6-Dinitro-o-cresol
NA
2.4-Dinitrophenol
Dithiobiuret
Endosulfan 1
Endosulfan II
Endosulfan sulfate
Endrin
Endrin aldehyde
Aziridine
Fluoride (measured in
wastewaters only) 	 '
CAS2
Number
51-43-4
55-91-4
60-51-5
39198-18-
4
122-09-8
543-52-1
NA
51-28-5
541-53-7
939-98-8
33213-6-5
1031-07-8
72-20-8
7421-93-4
151-56-4
16964-48-
8
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
(WETOXorCHOXD)fb
CARBNiorCMBST
CARBNiorCMBST
CARBNiorCMBST
(WETOXorCHOXD)fb
CARBNiorCMBST
(WETOXorCHOXD)fb
CARBN;orCMBST
0.28
(WETOXorCHOXD)fb
CARBNiorCMBST
0.12
(WETOXorCHOXD)fb
CARBN; or CMBST
0.023
0.029
0.029
0.0028
0.025
(WETOXorCHOXD)fb
CARBNiorCMBST
35
NONWASTEWATERS
Concentration in mg/kgs
unless noted as "mg/l
TCLP"; or Technology
CMBST
CMBST
CMBST
CMBST
CMBST
160
CMBST
160
CMBST
0.066
0.13
0.13
0.13
0.13
CMBST
ADGASfbNEUTR
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 90


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Federal Register/Vol. 63. No. 100/Tuesday, May 26, 1998/Rules and Regulations      28713
                                       o
           o
                55 £
     ll
     SS
     °z
     gm
                           s
1
                £ S
                                            0)
     III
    II
                                                   18
I
                                               is
                                             :5s
                    |
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                    ; o
                    :j
                 Q) =J •
                 ?1
I ^
£
£r
•1 £s a
5! «

                                                   illl
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
P066
P067
P068
P069
P070
P071
P072
P073
P074
P075
P076
P077
P078
WASTE DESCRIPTION AND
TREATMENT/REGUUTORY SUBCATEGORY1
Methomyl
2-Methyl-aziridine
Methyl hydrazine
2-Methyllactonitrile
Aldicarb
Methyl parathion
1-NaphIhyl-2-thiourea
Nickel carbonyl
Nickel cyanide
Nicotine and salts
Nitric oxide
p-NHroaniline
Nitrogen dioxide
REGULATED HAZARDOUS CONSTITUENT
Common Name
Methomyl
2-Methyl-aziridine
Methyl hydrazine
2-Methyllactonitrile
Aldicarb
Methyl parathion
1-Naphthyl-2-thiourea
Nickel
Cyanides (Total)7
Cyanides (Amenable)7
Nickel
Nicotine and salts
Nitric oxide
p-NHroaniline
Nitrogen dioxide
CAS2
Number
16752-77-
5
75-55-8
60-34-4
75-86-5
116-06-3
298-00-0
86-88-4
7440-02-0
57-12-5
57-12-5
7440-02-0
54-11-5
10102-43-
9
100-01-6
10102-44-
0
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
(WETOX or CHOXD) fb
CARBN;orCMBST
(WETOX or CHOXD) fb
CARBN;orCMBST
CHOXD; CHRED;
CARBN; BIODG; or
CMBST
(WETOX or CHOXD) fb
CARBN; or CMBST
(WETOX or CHOXD) fb
CARBN; or CMBST
0.014
(WETOX or CHOXD) fb
CARBN; or CMBST
3.98
1.2
0.86
3.98
(WETOX or CHOXD) fb
CARBN; or CMBST
ADGAS
0.028
ADGAS
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
CMBST
CMBST
CHOXD; CHRED; or
CMBST
CMBST
CMBST
4.6
CMBST
11 mg/l TCLP
590
30
11 mg/l TCLP
CMBST
ADGAS
28
ADGAS
 00
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    Federal Register/Vol. 63, No. 100/Tuesday. May 26. 1998/Rules and Regulations      28715
     "fa..
ill!
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 DO
 00
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
P093
P094
P095
P096
P097
P098
P099
P101
P102
P103
P104
P105
WASTE DESCRIPTION AND
TREATMENT/REGUUTORY SUBCATEGORY1
Phenylthiourea
Phorate
Phosgene
Phosphine
Famphur
Potassium cyanide.
Potassium silver cyanide
Ethyl cyanide (Propanenitrile)
Propargyl alcohol
Selenourea
Silver cyanide
Sodium azide
REGULATED HAZARDOUS CONSTITUENT
Common Name
Phenylthiourea
Phorate
Phosgene
Phosphine
Famphur
Cyanides (Total)7
Cyanides (Amenable)7
Cyanides (Total)7
Cyanides (Amenable)7
Silver
Ethyl cyanide
(Propanenitrile)
Propargyl alcohol
Selenium ,
Cyanides (Total)7
Cyanides (Amenable)7
Silver
Sodium azide
CAS2
Number
103-85-5
298-02-2
75-44-5
7803-51-2
. 52-85-7
57-12-5
57-12-5
57-12-5
57-12-5
7440-22-4
107-12-0
107-19-7
7782-49-2
57-12-5
57-12-5
7440-22-4
26628-22-
8
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
(WETOX or CHOXD) fb
CARBN;orCMBST
0.021
(WETOX or CHOXD) Ib
CARBN;orCMBST
CHOXD; CHRED; or
CMBST
0.017
1.2
0.86
1.2
0.86
0.43
0.24
(WETOX or CHOXD) fb
CARBN; or CMBST
0.82
1.2
0.86
0.43
CHOXD; CHRED;
CARBN; BIODG; or
CMBST
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
CMBST
4.6
CMBST
CHOXD; CHRED; or
CMBST
15
590
30
590
30
0.14 mg/l TCLP
360
CMBST
5.7 mg/l TCLP
590
30
0.14 mg/ITCLP
CHOXD; CHRED; or
CMBST
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   Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations
                                                        28717
E
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440-28-
79-19-6
62-2
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-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
P122
P123
P127
P128
P185
P188
P189
P190
P191
P192
P194
P196
P197
P198
P199
P201
P202
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Zinc phosphide Zn,P2, when present at
concentrations greater than 10%
Toxaphene
Carbofuran 10
Mexacarbate 10
Tirpate 10
Physostigmine salicylate 10
Carbosulfan 10
Metolcarb w
Dimetilan 10
Isolan 10
Oxamyl10
Manganese dimethyldithiocarbamate 10
Formparanate 10
Formetanate hydrochloride 10
Methiocarb 10
Promecarb to
m-Cumenyl methylcarbamate 10
REGULATED HAZARDOUS CONSTITUENT
Common Name
Zinc Phosphide
Toxaphene
Carbofuran
Mexacarbate
Tirpate
Physostigmine salicylate
Carbosulfan
Metolcarb
Dimetilan
Isolan
Oxamyl
Dithiocarbamates (total)
Formparanate
Formetanate hydrochloride
Methiocarb
Promecarb
m-Cumenyl
methylcarbamate
CAS2
Number
1314-84-7
8001-35-2
1583-68-2
315-18-4
26419-73-
8
57-64-7
55285-14-
8
1129-41-5
644-84-4
119-38-0
23135-22-
0
NA
17702-57-
7
23422-53-
9
2032-65-7
2631-37-0
64-00-6
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
CHOXD; CHRED; or
CMBST
0.0095
0.006
0.056
0.056
0.056
0.028
0.056
0.056
0.056
0.056
0.028
0.056
0.056
0.056
0.056
0.056
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
CHOXD; CHRED; or
CMBST
2.6
0.14
1.4
0.28
1.4
1.4
1.4
1.4
1.4
0.28
28
1,4
1.4
1.4
1.4
1.4
PO
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Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations
                                                  28719
  8
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-------
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
U014
U015
U016
U017
U018
U019
U020
U021
U022
U023
U024
U025
U026
U027
U028

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY'
Auramine
Azaserine
Benz(c)acridine
Benzal chloride
Benz(a)anthracene
Benzene
Benzenesulfonyl chloride
Benzidine
Benzo(a)pyrene
Benzotrichloride
bis(2-Chloroethoxy)methane
bis(2-Chloroethyl)elher
Chlomaphazine
bis(2-Chloroisopropyl)ether
bis(2-Ethvlhexvl) ohthalate
REGULATED HAZARDOUS CONSTITUENT
Common Name
Auramine
Azaserine
Benz(c)acridine
Benzal chloride
Benz(a)anthracene
Benzene
Benzenesulfonyl chloride
Benzidine
Benzo(a)pyrene
Benzotrichloride
bis(2-Chloroethoxy)methane
bls(2-Chloroethyl)ether
Chlomaphazine
bis(2-Chloroisopropyl)ether
bis(2-Ethvlhexvl) phthalate
CAS2
Number
492-80-8
115-02-6
225-51-4
98-87-3
OO-55-3
71-43-2
98-09-9
92-87-5
50-32-8
98-07-7
111-91-1
111-44-4
494-03-1
39638-32-
9
117-81-7
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
(WETOXorCHOXD)fb
CARBN; or CMBST
(WETOX or CHOXD) fo
CARBN;orCMBST
(WETOX or CHOXD) to
CARBN;orCMBST
(WETOX or CHOXD) fb
CARBN;orCMBST
0.059
0.14
(WETOX or CHOXD) fb
CARBN; or CMBST
(WETOXorCHOXD)fb
CARBN; or CMBST
0.061
CHOXD; CHRED;
CARBN; BIODG; or
CMBST
0.036
0.033
(WETOX or CHOXD) fb
CARBN; or CMBST
0.055
0.28
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
CMBST
CMBST
CMBST
CMBST
3.4
10
CMBST
CMBST
3.4
CHOXD; CHRED; or
CMBST
7.2
6.0
CMBST
7.2
28
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      Federal Register/Vol. 63, No. 100/Tuesday. May 26, 1998/Rules and Regulations
                                                                  28721
1
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
U047
U048
U049
U050
U051
U052
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
2-Chloronaphthalene
2-Chlorophenol
4-Chloro-o-toluidine hydrochloride
Chrysene
Creosote
Cresols(Cresylicacid)
REGULATED HAZARDOUS CONSTITUENT
Common Name
2-Chloronaphthalene
2-Chlorophenol
4-Chloro-o-toluidine
hydrochloride
Chrysene
Naphthalene
Pentachlorophenol
Phenanthrene
Pyrene
Toluene
Xylenes-mixed isomers
(sumofo-, m-, and p-xylene
concentrations)
Lead
o-Cresol
m-Cresol
(difficult to distinguish from
p-cresol)
p-Cresol
(difficult to distinguish from
m-cresol)
Cresol-mixed isomers
(Cresylic acid)
(sum of o-, m-, and p-cresol
concentrations)
CAS2
Number
91-58-7
95-57-8
3165-93-3
218-01-9
91-20-3
87-86-5
85-01-8
129-00-0
108-88-3
1330-20-7
7439-92-1
95-48-7
108-39-4
106-44-5
1319-77-3
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.055
0.044
(WETOXorCHOXDJfb
CARBN;orCMBST
0.059
0.059
0.089
0.059
0.067
0.080
0.32
0.69
0.11
0.77
0.77
0.88
NONWASTEWATERS
Concentration in mg/kg6
unless noted as "mg/l
TCLP"; or Technology
Code4
5.6
5.7
CMBST
3.4
5.6
7.4
5.6
8.2
10
30
0.75 mgyiTCLP
5.6
5.6
5.6
11.2
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-------
Federal  Register/Vol. 63, No. 100/Tuesday,  May 26. 1998/Rules and Regulations      28723

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WASTE
CODE
U064
U066
U067
U068
U069
U070
U071
U072
U073
U074
U075
U076
U077
U078
U079
U080
U081
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not aoolicable
WASTE DESCRIPTION AND
TREATMENT/REGUUTORY SUBCATEGORY1
Dibenz(a,i)pyrene
1 ,2-Dibromo-3-chloropropane
Ethylene dibromide (1,2-Dibromoethane)
Dibromomethane
Di-n-butyl phthalate
o-Dichlorobenzene
m-Dichlorobenzene
p-Dichlorobenzene
3,3'-Dichlorobenzidine
1,4-Dichloro-2-butene
Dichlorodifluoromethane
1.1-Dichloroethane
1.2-Dicnloroethane
1,1-Dichloroelhylene
1,2-Dichloroethylene
Methylene chloride
2,4-Dichlorophenol
REGUUTED HAZARDOUS CONSTITUENT
Common Name
Dibenz(a,i)pyrene
1,2-Dibromo-3-
chloropropane
Ethylene dibromide (1,2-
Dibromoethane)
Dibromomethane
Di-n-butyl phthalate
o-Dichlorobenzene
m-Dichlorobenzene
p-Dichlorobenzene
3,3'-Dichlorobenzidine
cis-1 ,4-Dichloro-2-butene
trans- 1 ,4-Dichloro-2-butene
Dichlorodifluoromethane
1.1-Dichloroethane
1,2-Dichloroethane
1,1-Dichloroethylene
trans- 1 ,2-Dichloroethylene
Methylene chloride

CAS2
Number
189-55-9
96-12-8
106-93-4
74-95-3
84-74-2
95-50-1
541-73-1
106-46-7
91-94-1
1476-11-5
764-41-0
75-71-8
75-34-3
107-06-2
75-35-4
156-60-5
75-09-2
120-83-2
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
(WETOXorCHOXD)fb
CARBN; or CMBST
0.11
0.028
0.11
0.057
0.088
0.036
0.090
(WETOXorCHOXD)fb
CARBN; or CMBST
(WETOXorCHOXD)fb
CARBN; or CMBST
(WETOXorCHOXDJfb
CARBN; or CMBST
0.23
0.059
0.21
0.025
0.054
0.089
	 0,044 	
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
CMBST
15
15
15
28
6.0
6.0
6.0
CMBST
CMBST
CMBST

6.0
6.0
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Federal Register/Vol. 63, No. 100/Tuesday, May 26. 1998/Rules and Regulations
                                                      28725
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WASTE
CODE
U095
U096
U097
U098
U099
11101
U102
U103
U105
U106
U107
U108
U109
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
3,3'-Dimethylbenzidine
alpha, alpha-Dimethyl benzyl hydroperoxide
Dimethylcarbamoyl chloride
1 ,1-Dimethylhydrazine
1,2-Dimethylhydrazine
2,4-Dimethylphenol
Dimethyl phthalate
Dimethyl sulfate
2,4-Dinitrotoluene
2,6-Dinitrotoluene
Di-n-octyl phthalate
1,4-Dioxane
1 ,2-Diphenylhydrazine
REGUUTED HAZARDOUS CONSTITUENT
Common Name
3,3'-Dimethylbenzidine
alpha, alpha-Dimethyl benzyl
hydroperoxide
Dimethylcarbamoyl chloride
1,1-Dimethylhydrazine
1 ,2-Dimethylhydrazine
2,4-Dimethylphenol
Dimethyl phthalate
Dimethyl sulfate
2,4-Din'rtrotoluene
2,6-Dinitrotoluene
Di-n-octyl phthalate
1,4-Dioxane
1,4-Dioxane; alternate8
1 ,2-Diphenylhydrazine
CAS2
Number
119-93-7
80-15-9
79-44-7
57-14-7
540-73-8
105-67-9
131-11-3
77-78-1
121-14-2
606-20-2
117-84-0
123-91-1
123-91-1
122-66-7
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
(WETOXorCHOXD)fb
CARBN; or CMBST
CHOXD; CHRED;
CARBN; BIODG; or
CMBST
(WETOX or CHOXD) fb
CARBN; or CMBST
CHOXD; CHRED;
CARBN; BIODG; or
CMBST
CHOXD; CHRED;
CARBN; BIODG; or
CMBST
0.036
0.047
CHOXD; CHRED;
CARBN; BIODG; or
CMBST
0.32
0.55
0.017
{WETOX or CHOXD) fb
CARBN; or CMBST
12.0
CHOXD; CHRED;
CARBN; BIODG; or
CMBST
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
CMBST
CHOXD; CHRED; or
CMBST
CMBST
CHOXD; CHRED; or
CMBST
CHOXD; CHRED; or
CMBST
14
28
CHOXD; CHRED; or
CMBST
140
28
28
CMBST
170
CHOXD; CHRED; or
CMBST
to
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Federal Register/Vol. 63, No. 100/Tuesday,  May 26, 1998/Rules and Regulations
                                                                                          28727
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22-68-7
CMBST

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75-21-8
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Ethylene oxide; al
standard for wast
only
                                           IO
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CMBST
5-7
rea
Ethylene

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WASTE
CODE
U123
U124
U125
U126
U127
U128
U129
U130
U131
U132
U133
U134
U135
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Formic acid
Furan
Furfural
Glycidylaldehyde
Hexachlorobenzene
Hexachlorobutadiene
Undane
Hexachlorocydopentadiene
Hexachloroethane
Hexachlorophene
Hydrazine
Hydrogen fluoride
Hydrogen Sulfide
REGULATED HAZARDOUS CONSTITUENT
Common Name
Formic acid
Furan
Furfural
Glycidylaldehyde
Hexachlorobenzene
Hexachlorobutadiene
alpha-BHC
beta-BHC
delta-BHC
gamma-BHC (Lindane)
Hexachlorocydopentadiene
Hexachloroethane
Hexachlorophene
Hydrazine
Fluoride (measured In
wastewaters only)
Hydrogen Sulfide
CAS2
Number
64-18-6
110-00-9
98-01-1
765-34-4
118-74-1
87-68-3
319-84-6
319-85-7
319-86-8
58-89-9
77-47-4
67-72-1
70-30-4
302-01-2
16964-48-
8
7783-06-4
WASTEWATERS
Concentration in mg/13;
or Technology Code4
(WETOXorCHOXD)fb
CARBN; or CMBST
(WETOX or CHOXD) fb
CARBN;orCMBST
(WETOXorCHOXD)fb
CARBN; or CMBST
(WETOX or CHOXD) fb
CARBN; or CMBST
0.055
0.055
0.00014
0.00014
0.023
0.0017
0.057
0.055
(WETOX or CHOXD) fb
CARBN; or CMBST
CHOXD; CHRED;
CARBN; BIODG; or
CMBST
35
CHOXD; CHRED, or
CMBST 	
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/1
TCLP"; or Technology
CMBST
CMBST
CMBST
CMBST
10
5.6
0.066
0.066
0.066
0.066
2.4
30
CMBST
CHOXD; CHRED; or
CMBST
ADGASfbNEUTR;or
NEUTR
CHOXD; CHRED; or
CMBST.
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Federal Register/Vol.  63, No. 100/Tuesday, May 26,  1998/Rules and Regulations      28729

-------

WASTE
CODE

U152
U153
U154
U15S
U156
U157
U158
U159
U160
U161
U162
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
U151 (mercury) nonwastewaters that contain less
than 260 mg/kg total mercury and that are not
residues from RMERC.
All U151 (mercury) wastewaters.
Elemental Mercury Contaminated with Radioactive
Materials
Methacryionitrile
Methanethiol
Melhanol
Methapyrilene
Methyl chlorocarbonate
3-Methylcholanthrene
4,4'-Methylene bis(2-chloroaniline)
Methyl ethyl ketone
Methyl ethyl ketone peroxide
Methyl isobutyl ketone
Methyl methacrylate
REGUUTED HAZARDOUS CONSTITUENT
Common Name
Mercury
Mercury
Mercury
Methacrylonitriie
Methanethiol
Methanol
Methanol; alternate" set of
standards for both
wastewaters and
nonwastewaters
Methapyrilene
Methyl chlorocarbonate
3-Methylcholanthrene
4,4'-Methylene bis(2-
chloroaniline)
Methyl ethyl ketone
Methyl ethyl ketone peroxide
Methyl isobutyl ketone
Methyl methacrvlate
CAS2
Number
7439-97-6
7439-97-8
7439-97-6
126-98-7
74-93-1
67-56-1
67-56-1
91-80-5
79-22-1
56-49-5
101-14-4
78-93-3
1338-23-4
108-10-1
80-62-6
WASTEWATERS
Concentration in mg/13;
or Technology Code4
NA
0.15
NA
0.24
(WETOXorCHOXD)fb
CARBN;orCMBST
(WETOXorCHOXD)fb
CARBN;orCMBST
5.6
0.081
(WETOXorCHOXD)fb
CARBN;orCMBST
0.0055
0.50
0.28
CHOXD; CHRED;
CARBN; BIODG; or
CMBST
0.14
	 0.14 	
NONWASTEWATERS
Concentration in mg/kg8
unless noted as "mg/l
TCLP"; or Technology
0.025 mg/1 TCLP
NA
AMLGM
84
CMBST
CMBST
0.75 mg/1 TCLP
1.5
CMBST
15
30
36
CHOXD; CHRED; or
CMBST
33
160
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     Federal Register/Vol. 63, No. 100/Tuesday. May 26.  1998/Rules and Regulations
                                                                     28731
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WASTE
CODE
U180
U181
U182
U183
U184
U185
U186
U187
U188
U189
U190
U191
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not aoolicable
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
N-Nitrosopyrrolidine
5-Nitro-o-toluidine
Paraldehyde
Pentachlorobenzene
Pentachloroethane
Pentachloronitrobenzene
1,3-Pentadiene
Phenacetin
Phenol
Phosphorus sulfide
Phthalic anhydride (measured as Phthalic acid or
Terephthalicacid
2-Picoline
REGULATED HAZARDOUS CONSTITUENT
Common Name
N-Nitrosopyrrolidine
5-Nitro-o-toluidine
Paraldehyde
Pentachlorobenzene
Pentachloroethane
Pentachloroethane;
alternate6 standards for both
wastewaters and
nonwastewaters
Pentachloronitrobenzene
1,3-Pentadiene
Phenacetin
Phenol
Phosphorus sulfide
Phthalic anhydride
(measured as Phthalic acid
or Terephthalicacid)
Phthalic anhydride
(measured as Phthalic acid
or Terephthalicacid)
2-Picoline
CAS2
Number
930-55-2
99-55-8
123-63-7
608-93-5
76-01-7
76-01-7
82-68-8
504-60-9
62-44-2
108-95-2
1314-80-3
100-21-0
85-44-9
109-06-8
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.013
0.32
(WETOXorCHOXD)fb
CARBN;orCMBST
0.055
(WETOXorCHOXD)fb
CARBN; or CMBST
0.055
0.055
(WETOXorCHOXD)fb
CARBN; or CMBST
0.081
0.039
CHOXD; CHRED; or
CMBST
0.055
0.055
(WETOX or CHOXD) fb
CARBN: or CMBST
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
35
28
CMBST
10
CMBST
6.0
4.8
CMBST
16
6.2
CHOXD; CHRED; or
CMBST
28
28
CMBST
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Federal Register/Vol. 63, No. 100/Tuesday. May 26. 1998/Rules and Regulations
                                                        28733
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WASTE
CODE
U213
U214
U215
U216
U217
U218
U219
U220
U221
U222
U223
U225
U226
U227
U228
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Tetrahydrofuran
Thallium (1) acetate
Thallium (1) carbonate
Thallium (1) chloride
Thallium (1) nitrate
Thioacetamide
Thiourea
Toluene
Toluenediamine
o-Toluidine hydrochloride
Toluene diisocyanate
Bromoform (Tribromomethane)
1,1,1-Trichloroethane
1 ,1 ,2-Trichloroethane
Trichloroethylene
REGUUTED HAZARDOUS CONSTITUENT
Common Name
Tetrahydrofuran
Thallium (measured in
wastewaters only)
Thallium (measured in
wastewaters only)
Thallium (measured in
wastewaters only)
Thallium (measured in
wastewaters only)
Thioacetamide
Thiourea
Toluene
Toluenediamine
o-Toluidine hydrochloride
Toluene diisocyanate
Bromoform
(Tribromomethane)
1,1,1-Trichloroethane
1,1 ,2-Trichloroethane
Trichloroethvlene
CAS2
Number
109-99-9
7440-28-0
7440-28-0
7440-28-0
7440-28-0
62-55-5
62-56-6
108-88-3
25376-45-
8
636-21-5
26471-62-
5
75-25-2
71-55-6
79-00-5
79-01-6
WASTEWATERS
Concentration in mg/13;
or Technology Code4
(WETOXorCHOXD)fb
CARBN;orCMBST
1.4
1.4
1.4
1.4
(WETOXorCHOXD)fb
CARBN; or CMBST
(WETOXorCHOXD)fb
CARBN; or CMBST
0.080
CARBN: or CMBST
(WETOXorCHOXDJfb
CARBN; or CMBST
CARBN; or CMBST
0.63
0.054
0.054
0.054
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
Code4
CMBST
RTHRM; or STABL
RTHRM;orSTABL
RTHRM; or STABL
RTHRM; or STABL
CMBST
CMBST
10
CMBST
CMBST
CMBST
15
6.0
6.0
6.0
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TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA mean s not applicable
WASTE
CODE
U234
U235
U236
U237
U238
U239
U240
U243
U244
U246
U247
U248
U249

WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
1 ,3,5-Trinitrobenzena
tris-(2,3-Dibromopropyl)-phosphate
Trypan Blue
Uracil mustard
Urethane (Ethyl carbamate)
Xylenes
2,4-D (2,4-Dichlorophenoxyacetic add)
2,4-D (2,4-Dichlorophenoxyacetic acid) salts and
esters
Hexachloropropylene
Thlram
Cyanogen bromide
Methoxydilor
Warfarin, & salts, when present at concentrations
of 0.3% or less
Zinc phosphide, Zn3P2, when present at
concentrations of 10% or less
REGULATED HAZARDOUS CONSTITUENT
Common Name
1 ,3.5-TrinitrobenzenB
tris-(2,3-Dibromopropyl)-
phosphate
Trypan Blue
Uracil mustard
Urethane (Ethyl carbamate)
Xylenes-mixed isomers
(sum of o-, n>, and p-xylene
concentrations)
2,4-D (2.4-
Dichlorophenoxyacetic acid)

Hexachloropropylene
Thiram
Cyanogen bromide
Methoxydilor
Warfarin
Zinc Phosphide
CAS2
Number
99-35-4
126-72-7
72-57-1
66-75-1
51-79-6
1330-20-7
94-75-7
NA
1888-71-7
137-26-8
506-68-3
72-43-5
81-81-2
1314-84-7
WASTEWATERS
Concentration In mgfl*;
or Technology Code4
OA/ETOXorCHOXD)fb
CARBN; or CMBST
0.11
(WETOXorCHOXD)fb
CARBN; or CMBST
(WETOXorCHOXD)fb
CARBN; or CMBST
(WETOXorCHOXD)fb
CARBN; or CMBST
0.32
0.72
(WETOXorCHOXD)fb
CARBN; or CMBST
0.035
(WETOXorCHOXD)fb
CARBN; or CMBST
CHOXD;WETOX;or
CMBST
0.25
(WETOXorCHOXDJfb
CARBN; or CMBST
CHOXD;CHRED;or
CMBST
NONWASTEWATERS
Concentration In mgflcg5
unless noted as "mg/1
TCLP"; or Technology
Code4
CMBST
0.10
CMBST
CMBST
CMBST
30
10
CMBST
30
CMBST
CHOXD;WETOX;or
CMBST
0.18
CMBST
CHOXD; CHRED; or
CMBST
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WASTE
CODE
U271
U278
U279
U280
U328
U353
U359
U364
U367
U372
U373
U387
U389
U394
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Benomyl 10
Bendiocarb 10
Carbaiyl 10
Barban 10
o-Toluidine
p-Toluidine
2-Ethoxyethanol
Bendiocarb phenol 10
Carbofuran phenol to
Carbendazim 10
Propham 10
Prosulfocarb 10
Triallate 10
A2213 10
REGUUTED HAZARDOUS CONSTITUENT
Common Name
Benomyl
Bendiocarb
Carbaryl
Barban
o-Toluidine
p-Toluidine
2-Ethoxyethanol
Bendiocarb phenol
Carbofuran phenol
Carbendazim
Propham
Prosulfocarb
Triallate
A2213
CAS2
Number
17804-35-
2
22781-23-
3
63-25-2
101-27-9
95-53-4
106-49-0
110-80-5
22961-82-
6
1563-38-8
10605-21-
7
122-42-9
52888-80-
9
2303-17-5
30558-43-
1
WASTEWATERS
Concentration in mg/13;
or Technology Code4
0.056
0.056
0.006
0.056
CMBST;orCHOXDfb
(BIODG or CARBN); or
BIODGfbCARBN.
CMBST; or CHOXDfb
(BIODGorCARBN);or
BIODG fb CARBN
CMBST; or CHOXDfb
(BIODG or CARBN); or
BIODGfbCARBN
0.056
0.056
0.056
0.056
0.042
0.042
0.042
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/l
TCLP"; or Technology
1.4
1.4
0.14
1.4
CMBST
CMBST
CMBST
1.4
1.4
1.4
1.4
1.4
1.4
1.4
 6.

I
 O)
 CO
 GO
 a
<<


 05
 CO
 CO
 00
 w
 s.

I
 I
 o

-------
S.
n>


I
TREATMENT STANDARDS FOR HAZARDOUS WASTES NOTE: NA means not applicable
WASTE
CODE
U395
U404
U408
U409
U410
U411
WASTE DESCRIPTION AND
TREATMENT/REGULATORY SUBCATEGORY1
Diethylene glycol, dicarbamate 10
Triethylamine 10
2,4,6-Tribromophenol
Thiophanate-methyl 10
Thiodicarb 10
Propoxur 10
REGUUTED HAZARDOUS CONSTITUENT
Common Name
Diethylene glycol,
dicarbamate
Triethylamine
2,4,6-Tribromophenol
Thiophanate-methyl
Thiodicarb
Propoxur
CAS2
Number
5952-26-1
101-44-8
111-79-6
23564-05-
8
59669-26-
0
114-26-1
WASTEWATERS
Concentration in mg/l3;
or Technology Code4
0.056
0.081
0.035
0.056
0.019
0.056
NONWASTEWATERS
Concentration in mg/kg5
unless noted as "mg/1
TCLP"; or Technology
Code4
1.4
1.5
7.4
1.4"
1.4
1.4
O)
 8

 I
t
 CO

 O5
 CO

 CD

 00
 o>
 a
 I
 ro
 oo
 ^i
 to

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28738
Federal Register/Vol.  63,  No.  100/Tuesday, May 26, 1998/Rules  and Regulations
Footnotes to Treatment Standard Table
268.40
  1 The waste descriptions provided in this
table do not replace waste descriptions in 40
CFR 261. Descriptions of Treatment/
Regulatory Subcategories are provided, as
needed, to distinguish between applicability
of different standards.
  2 CAS means Chemical Abstract Services.
When the waste code and/or regulated
constituents are described as a combination
of a chemical with its salts and/or esters, the
CAS number is given for the parent
compound only.
  3 Concentration standards for wastewaters
are expressed-in mg/1 and are based on
analysis of composite samples.
  4 All treatment standards expressed as a
Technology Code or combination of
Technology Codes are explained in detail in
40 CFR 268.42 Table 1—Technology Codes
and Descriptions of Technology-Based
Standards.
  * Except for Metals (EP or TCLP) and
Cyanides (Total and Amenable) the
nonwastewater treatment standards
expressed as a concentration were
established, in part, based upon incineration
in units operated in accordance with the
technical requirements of 40 CFR Part 264
Subpart O or Part 265 Subpart O, or based
upon combustion in fuel substitution units
operating in accordance with applicable
technical requirements. A facility may
comply with these treatment standards
according to provisions in 40 CFR 268.40(d).
All concentration standards for
nonwastewaters are based on analysis of grab
samples.
  6 Where an alternate treatment standard or
set of alternate standards has been indicated,
a facility may comply with this alternate
standard, but only for the Treatment/
Regulatory Subcategory or physical form (i.e.,
wastewater and/or nonwastewater) specified
for that alternate standard.
  7 Both Cyanides (Total) and Cyanides
(Amenable) for nonwastewaters are to be
analyzed using Method 9010 or 9012, found
in "Test Methods for Evaluating Solid Waste,
Physical/Chemical Methods." EPA
Publication SW-846, as incorporated by
reference in 40 CFR 260.11, with a sample
size of 10 grams and a distillation time of one
hour and 15 minutes.
  8 These wastes, when rendered
nonhazardous and then subsequently
managed in CWA, or CWA-equivalent
systems, are not subject to treatment
standards. (See §268.1 (c) (3) and (4))'.
  9 These wastes, when rendered
nonhazardous and then subsequently
injected in a Class ISDWA well, are not
subject to treatment standards. (See
§148.1(d)).
  10 Between August 26, 1996, and August
26, 1997, the treatment standard for this
                          waste may be satisfied by either meeting the
                          constituent concentrations in this table or by
                          treating the waste by the specified
                          technologies: combustion, as defined by the
                          technology code CMBST at §268.42 Table 1
                          of this Part, for nonwastewaters; and,
                          biodegradation as definded by the technology
                          code BIODG, carbon adsorption as defined by
                          the technology code CARBN, chemical
                          oxidation as defined by the technology code
                          CHQXD, or combustion as defined as
                          technology code CMBST at §268.42 Table 1
                          of this Part, for wastewaters.
                           11 For these wastes, the definition of
                          CMBST is limited to: (1) combustion units
                          operating under 40 CFR 266, (2) combustion
                          units permitted under 40 CFR Part 264,
                          Subpart O, or (3) combustion units operating
                          under 40 CFR 265, Subpart O, which have
                          obtained a determination of equivalent
                          treatment under 268.42 (b).
                            14. Section 268.42 is amended by
                          revising the introductory text of
                          paragraph (a) and removing paragraphs
                          (a)(l), (a) (2), and (a) (3) to read as
                          follows:

                          § 268.42  Treatment standards expressed
                          as specified technologies.
                            (a) The following wastes in the table
                          in § 268.40 "Treatment Standards for
                          Hazardous Wastes," for which standards
                          are expressed as a treatment method
                          rather than a concentration level, must
                          be treated using the technology or
                          technologies specified in the table
                          entitled "Technology Codes and
                          Description of Technology-Based
                          Standards" in this section.
                          *****
                            15. Section 268.44 is amended by
                          redesignating paragraph (h) (3) as (h) (5),
                          and adding new paragraphs (h) (3) and
                          (4) to read as follows:

                          § 268.44  Variance from a treatment
                          standard.
                          *   *    • *    *    *
                           (h) *  * *
                           (3) For contaminated soil only,
                          treatment to the level or by the method
                          specified in the soil treatment standards
                          would result in  concentrations of
                          hazardous constituents that are below
                          (i.e., lower than) the concentrations
                          necessary to minimize short- and long-
                          term threats to human health and the
                          environment. Treatment variances
                          approved under this paragraph must:
                           (i) At a minimum, impose alternative
                          land disposal restriction treatment
                          standards that, using a reasonable
                          maximum exposure scenario:
   (A) For carcinogens, achieve
 constituent concentrations that result in
 the total excess risk to an individual
 exposed over a lifetime generally falling
 within a range from 10 ~4 to 10 ~6; and
   (B) For constituents with non-
 carcinogenic effects, achieve constituent
 concentrations that an individual could
 be exposed to on a daily basis without
 appreciable risk of deleterious effect
 during a lifetime.
   (ii) Not consider post-land-disposal
 controls.
   (4) For contaminated soil only;
 treatment to the level or by the method
 specified in the soil treatment standards
 would result in concentrations of
 hazardous constituents that are below
 (i.e., lower than) natural background
 concentrations at the site where the
 contaminated soil will land disposed.
 *****

   16. Section 268.45 is amended by
 revising the introductory text of
 paragraph (a), and paragraphs (d)(3) and
 (d) (4) to read as follows:

 § 268.45  Treatment standards for
 hazardous debris.
   (a) Treatment standards. Hazardous
 debris must be treated prior to land
 disposal as follows unless EPA
 determines under §261.3 (f) (2) of this
 chapter that the debris is no longer
 contaminated with hazardous waste or
 the debris is treated to the waste-
 specific treatment standard provided in
 this subpart for the waste contaminating
 the debris:
 *****
   (d) *  * *
   (3) Cyanide-reactive debris. Residue
 from the treatment of debris that is
 reactive because of cyanide must meet
 the treatment standards for D003 in
 "Treatment Standards for Hazardous
 Wastes" at §268.40.
   (4) Ignitable nonwastewater residue.
 Ignitable nonwastewater residue
 containing equal to or greater than 10%
 total organic carbon is subject to the
technology specified in the treatment
standard for D001: Ignitable Liquids.
 *****

   17. Section 268.48 is amended by
revising the table Universal Treatment
Standards to read as follows:

§ 268.48  Universal treatment standards.
   (a) * * *

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Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations
28739
UNIVERSAL TREATMENT STANDARDS NOTE: NA means not applicable
REGULATED CONSTITUENT
Common Name
Organic Constituents
A2213*
Acenaphthylene
Acenaphthene
Acetone
Acetonitrile
Acetophenone
2-Acetylaminofluorene
Acrolein
Acrylamide
Acrylonitrile
Aldicarb sulfone *
Aldrin
4-Aminobiphenyl
Aniline
Anthracene
Aramite
alpha-BHC
beta-BHC
delta-BHC
gamma-BHC
Barban *
Bendiocarb '
Bendiocarb phenol 6
CAS1 Number

30558-43-1
208-96-8
83-32-9
67-64-1
75-05-8
96-86-2
53-96-3
107-02-8
79-06-1
107-13-1
1646-88-4
309-00-2
92-67-1
' 62-53-3
120-12-7
140-57-8
319-84-6
319-85-7
319-86-8
58-89-9
101-27-9
22781-23-3
22961-82-6
Wastewater
Standard
Concentration in
mg/12

0.042
0.059
0.059
0.28
5.6
0.010
0.059
0.29
19
0.24
0.056
0.021
0.13
0.81
0.059
0.36
0.00014
0.00014
0.023
0.0017
0.056
0.056
0.056

Nonwastewater
Standard
Concentration in
mg/kg3 unless
noted as "mg/1
TCLP"

1.4
3.4
: 3.4
160
38
9.7
140
NA
23
84
0.28
0.066
NA
14
3.4
NA
0.066
0.066
0.066
0.066
1.4
1.4
1.4

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28740
Federal Register/Vol. 63, No.  100/Tuesday, May 26, 1998/Rules and Regulations
UNIVERSAL TREATMENT STANDARDS NOTE: NA means not applicable
REGULATED CONSTITUENT
Common Name
Benomyl '
Benzene
Benz(a)anthracene
Benzal chloride
Benzo(b)fluoranthene (difficult to distinguish
from benzo(k)fluoranthene)
Benzo(k)fluoranthene (difficult to distinguish
from benzo(b)fluoranthene)
Benzo(g,h,i)perylene
Benzo(a)pyrene
Bromodichloromethane
Bromomethane/Methyl bromide
4-Bromophenyl phenyl ether
n-Butyl alcohol
Butylate *
Butyl benzyl phthalate
2-sec-Butyl-4,6-dinitrophenol/Dinoseb
Carbiaryl '
Carbenzadim 6
Carbofuran 6
Carbofuran phenol 6
Carbon disulfide
Carbon tetrachloride
Carbosulfan '
Chlordane (alpha and gamma isomers)
p-Chloroaniline
CAS1 Number
17804-35-2
71-43-2
56-55-3
98-87-3
205-99-2
207-08-9
191-24-2
50-32-8
75-27-4
74-83-9
101-55-3
71-36-3
2008-41-5
85-68-7
88-85-7
63-25-2
10605-21-7
1563-66-2
1563-38-8
75-15-0
56-23-5
55285-14-8
57-74-9
106-47-8
Wastewater
Standard
Concentration in
mg/I2
0.056
0.14
0.059
0.055
0.11
0.11
0.0055
0.061
0.35
0.11
0.055
5.6
0.042
0.017
0.066
0.006
0.056
0.006
0.056
3.8.
0.057
0.028
0.0033
0.46
Nonwastewater
Standard
Concentration in
rag/kg3 unless
noted as "mg/1
TCLP"
1.4
10
3.4
6.0
6.8
6.8
1.8
3.4
15
15
15
2.6
1.4
28
2.5
0.14
1.4
0.14
1.4
4.8 mg/1 TCLP
6.0
1.4
0.26
16

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Federal Register/Vol. 63, No. 100/Tuesday, May 26. 1998/Rules and Regulations  .     28741
UNIVERSAL TREATMENT STANDARDS NOTE: NA means not applicable
REGULATED CONSTITUENT
Common Name


2-Chloro-l,3-butadiene

Chloroethane
bis(2-ChIoroethoxy)methane
bis(2-ChloroethyI)ether
Chloroform
bis(2-Chloroisopropyl)ether

2-ChIoro«thyl vinyl ether
Chloromethane/Methyl chloride
2-ChIoronaphthalene
2-Chlorophenol
3-Chloropropylene
Chrysene
o-CresoI
m-Cresol (difficult to distinguish from p-cresol)
n-Cresol ( difficult to distinguish from m-cresol)


o,p'-DDD
p,p'-DDD
o.p'-DDE
p.p'-DDE 	
CAS1 Number
108-90-7
510-15-6
126-99-8
124-48-1
75-00-3
111-91-1
111-44-4
67-66-3
39638-32-9
59-50-7
110-75-8
74-87-3
91-58-7
95-57-8
107-05-1
218-01-9
95-48-7
108-39-4
106-44-5
64-00-6
108-94-1
53-19-0
72-54-8
3424-82-6
72-55-9
Wastewater
Standard
Concentration in
mg/12
0.057
0.10
0.057
. 0.057
0.27
0.036
0.033
0.046
0.055
0.018
0.062
0.19
0.055
0.044
0.036
0.059
0.11
0.77
0.77
0.056
0.36
0.023
0.023
0.031
0.031
Nonwastewater
Standard
Concentration in
mg/kg3 unless
noted as "mg/1
TCLP"
6.0
NA
0.28
15
6.0
7.2
6.0
6.0
7.2
14
NA
30
5.6
5.7
30
3.4
5.6
5.6
5.6
1.4
0.75 mg/1 TCLP
0.087
0.087
0.087
0.087

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28742
Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations
UNIVERSAL TREATMENT STANDARDS NOTE: NA means not applicable
REGULATED CONSTITUENT
Common Name
o,p'-DDT
p.p'-DDT
Dibenz(a,h)anthracene
Dibenz(a,e)pyrene
1 ,2-Dibromo-3-chloropropane
1,2-Dibromoethane/Ethylene dibromide
Dibromomethane
m-Dichlorobenzene
o-Dichlorobenzene
p-Dichlorobenzene
Dichlorodifluoromethane
1 , 1 -Dich loroethane
1 ,2-Dichloroethane
1 , 1 -Dichloroethylene
trans- 1 ,2-Dichloroethylene
2,4-Dichlorophenol
2,6-Dichlorophenol
2,4-Dichlorophenoxyacetic acid/2,4-D
1 ,2-Dichloropropane
cis- 1 ,3-Dichloropropy lene
trans- 1 ,3-Dichloropropylene
Dieldrin
Diethylene glycol, dicarbamate 6
Diethyl phthalate
p-Dimethylaminoazobenzene
CAS1 Number
789-02-6
50-29-3
53-70-3
192-65-4
96-12-8
106-93-4
74-95-3
541-73-1
95-50-1
106-46-7
75-71-8
75-34-3
107-06-2
75-35-4
156-60-5
120-83-2
87-65-0
94-75-7
78-87-5
10061-01-5
10061-02-6
60-57-1
5952-26-1
84-66-2
60-11-7
Wastewater
Standard
Concentration in
mg/12
0.0039
0.0039
0.055
0.061
0.11
0.028
0.11
0.036
0.088
0.090
0.23
0.059
0.21
0.025
0.054
0.044
0.044
0.72
0.85
0.036
0.036
0.017
0.056
0.20
0.13
Nonwastewater
Standard
Concentration in
mg/kg3 unless
noted as "mg/1
TCLP"
0.087
0.087
8.2
NA
15
15
15
6.0
6.0
6.0
7.2
6.0
6.0
6.0
30
14
14
10
18
18
18
0.13
1.4
28
NA

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Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations
28743
UNIVERSAL TREATMENT STANDARDS NOTE: NA means not applicable
REGULATED CONSTITUENT
Common Name
2-4-Dimethyl phenol
Dimethyl phthalate
Dimetilan '
Di-n-butyl phthalate
1 ,4-Dinitrobenzene
4,6-Dinitro-o-cresol
2,4-Dinitrophenol
2,4-DinitrotoIuene
2,6-Dinitrotoluene
Di-n-octyl phthalate
Di-n-propylnitrosamine
1,4-Dioxane
Diphenylamine (difficult to distinguish from
diDhenylnitrosamine)
Diphenylnitrosamine (difficult to distinguish from
diphenylamine)'
1 .2-D iDhenylhydrazine
Disulfoton
Dithiocarbamates (total) 6
Endosulfan I
Endosulfan II
Endosulfan sulfate
Endrin
Endrin aldehyde
EPIC*

CAS1 Number
105-67-9
131-11-3
644-64-4
84-74-2
100-25-4
534-52-1
51-28-5
121-14-2
606-20-2
117-84-0
621-64-7
123-91-1
122-39-4
86-30-6
122-66-7
298-04-4
NA
959-98-8
33213-65-9
1031-07-8
72-20-8
7421-93-4
759-94-4
141-78-6
Wastewater
.Standard
Concentration in
mg/12
0.036
0.047
0.056
0.057
0.32
0.28
0.12
0.32
0.55
0.017
0.40
12.0
0.92
0.92
0.087
0.017
0.028
0.023
0.029
0.029
0.0028
0.025
0.042
0.34
Nonwastcwater
Standard
Concentration in
mg/kg3 unless
noted as "mg/1
TCLP"
14
28
1.4
28
2.3
160
160
140
28
28
14
170
13
13
NA
6.2
28
0.066
0.13
0.13
0.13
0.13
1.4
33

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28744
Federal Register/Vol. 63, No. 100/Tuesday, May 26, 1998/Rules and Regulations
UNIVERSAL TREATMENT STANDARDS NOTE: NA means not applicable
REGULATED CONSTITUENT
Common Name
Ethyl benzene
Ethyl cyanide/Propanenitrile
Ethyl ether
bis(2-Ethylhexyl) phthalate
Ethyl methacrylate
Ethylene oxide
Famphur
Fluoranthene
Fluorene
Formetanate hydrochloride 6
Formparanate 6
Heptachlor
Heptachlor epoxide
Hexachlorobenzene
Hexachlorobutadiene
Hexachlorocyclopentadiene
HxCDDs (All Hexachlorodibenzo-p-dioxins)
HxCDFs (All Hexachlorodibenzofurans)
Hexachloroethane
Hexachloropropylene
Indeno (l,2,3-c,d) pyrene
lodomethane
Isobutyl alcohol
Isodrin
Isolan 6
CAS1 Number
100-41-4
107-12-0
60-29-7
117-81-7
97-63-2
75-21-8
52-85-7
206-44-0
86-73-7
23422-53-9
17702-57-7
76-44-8
1024-57-3
118-74-1
87-68-3
77-47-4
NA
NA
67-72-1
1888-71-7
193-39-5
74-88-4
78-83-1
465-73-6
119-38-0
Wastewater
Standard
Concentration in
mg/12
0.057
0.24
0.12
0.28
0.14
0.12
0.017
0.068
0.059
0.056
0.056
0.0012
0.016
0.055
0.055
0.057
0.000063
0.000063
0.055
0.035
0.0055
0.19
5.6
0.021
0.056
Nonwastewater
Standard
Concentration in
mg/kg3 unless
noted as "mg/1
TCLP"
10
360
160
28
160
NA
15
3.4
3.4
1.4
1.4
0.066
0.066
10
5.6
2.4
0.001
0.001
30
30
3.4
65
170
0.066
1.4

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Federal Register/Vol.  63, No. 100/Tuesday, May 26.  1998/Rules and Regulations
28745
UNIVERSAL TREATMENT STANDARDS NOTE: NA means not applicable
REGULATED CONSTITUENT
Common Name
Isosafrole
Kepone
Methacrylonitrile
Methanol
Methapyrilene
Methiocarb *
Methomyl *
Methoxychlor
3-Methy!choIanthrene
4,4-Methylene bis(2-chloroaniline)
Methylene chloride
Methyl ethyl ketone
Methyl isobutyl ketone
Methyl methactylate
Methyl methansulfonate
Methyl parathion
Metolcarb *

Molinate *
Naphthalene
2-NaphthyIamine

o-Nitroaniline

5-Nitro-o-toIuidine
CAS1 Number
120-58-1
143-50-0
126-98-7
67-56-1
91-80-5
2032-65-7
16752-77-5
72-43-5
56-49-5
101-14-4
75-09-2
78-93-3
108-10-1
80-62-6
66-27-3
298-00-0
1129-41-5 -
315-18-4
2212-67-1
91-20-3
91-59-8
88-74-4
100-01-6
98-95-3
99-55-8
Wastewater
Standard
Concentration in
mg/12
0.081
0.0011
0.24
5.6
0.081
0.056
0.028
0.25
0.0055
0.50
0.089
0.28
0.14
0.14
0.018
0.014
0.056
0.056
0.042
0.059
0.52
0.27
0.028
0.068
0.32
Nonwastewater
Standard
Concentration in
mg/kg3 unless
noted as "mg/1
TCLP"
2.6
0.13
84
0.75 mg/1 TCLP
1.5
1.4
0.14
0.18
15
30
30
36
33
160
NA
4.6
1.4
1.4
1.4
5.6
NA
14
28
14
28

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28746
Federal  Register/Vol. 63, No.  100/Tuesday,  May 26, 1998/Rules and Regulations
UNIVERSAL TREATMENT STANDARDS NOTE: NA means not applicable
REGULATED CONSTITUENT
Common Name
o-Nitrophenol
p-Nitrophenol
N-Nitrosodiethylamine
N-Nitrosodimethylamine
N-Nitroso-di-n-butylamine
N-Nitrosomethylethylamine
N-Nitrosomorpholine
N-Nitrosopiperidine
N-NitrosopyrroIidine
Oxamyl *
Parathion
Total PCBs (sum of all PCB isomers, or all
Aroclors)
Pebulate*
Pentachlorobenzene
PeCDDs (All Pentachlorodibenzo-p-dioxins)
PeCDFs (All Pentachlorodibenzofurans)
Pentachloroethane
Pentachloronitrobenzene
Pentachlorophenol
Phenacetin
Phenanthrene
Phenol
o-Phenylenediamine 6
Phorate
Phthalic acid
CAS1 Number
88-75-5
100-02-7
55-18-5
62-75-9
924-16-3
10595-95-6
59-89-2
100-75-4
930-55-2
23135-22-0
56-38-2
1336-36-3
1114-71-2
608-93-5
NA
NA
76-01-7
82-68-8
87-86-5
62-44-2
85-01-8
108-95-2
95-54-5
298-02-2
100-21-0
Wastewater
Standard
Concentration in
mg/f
0.028
0.12
0.40
0.40
0.40
0.40
0.40
0.013
0.013
0.056
0.014
0.10
0.042
0.055
0.000063
0.000035
0.055
0.055
0.089
0.081
0.059
0.039
0.056
0.021
0.055
Nonwastewater
Standard
Concentration in
mg/kg3 unless
noted as "mg/l
TCLP"
13
29
28
2.3
17
2.3
2.3
35
35
0.28
4.6
10
1.4
10
0.001
0.001
6.0
4.8
7.4
16
5.6
6.2
5.6
4.6
28

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Federal Register/Vol.  63, No. 100/Tuesday, May 26,  1998/Rules  and Regulations
28747
UNIVERSAL TREATMENT STANDARDS NOTE: NA means not applicable
REGULATED CONSTITUENT
Common Name
Phthaltc anhydride
Physostigmine *
Physostigmine salicylate *
Promecarb*
Pronamide
Propham*
Propoxur*
Prosulfocarb *
Pyrene
Pyridine
Safrole
SiIvex/2,4,5-TP
1 ,2,4,5-TGtrachIorobenzene
TCDDs (All Tetrachlorodibenzo-p-dioxins)
TCDFs (All Tetrachlorodibenzofiirans)
1,1,1,2-Tetrachloroethane
1 , 1 ,2,2-Tetrachloroethane
Tetrachloroethylene
2,3,4,6-Tetrachlorophenol
Thiodicarb *
Thiophanate-methyl *
Tirpate*
Toluene
Toxaphene
Triallate*
CAS1 Number
85-44-9
57-47-6
57-64-7
2631-37-0
23950-58-5
122-42-9
114-26-1
52888-80-9
129-00-0
110-86-1
94-59-7
93-72-1
95-94-3
NA
NA
630-20-6
79-34-5
127-18-4
58-90-2
59669-26-0
23564-05-8
26419-73-8
108-88-3
8001-35-2
2303-17-5
Wastewater
Standard
Concentration in
mg/l2
0.055
0.056
0.056
0.056
0.093
0.056
0.056
0.042
0.067
0.014
0.081
0.72
0.055
0.000063
0.000063
0.057
0.057
0.056
0.030
0.019
0.056
0.056
0.080
0.0095
0.042
Nonwastewater
Standard
Concentration in
mg/kg3 unless
noted as "mg/l
TCLP"
28
1.4
1.4
1.4
1.5
1.4
1.4
1.4
8.2
16
22
7.9
14
0.001
0.001
6.0
6.0
6.0
7.4
1.4
1.4
0.28
10
2.6
1.4

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28748
Federal Register/Vol. 63, No.  100/Tuesday,  May 26, 1998/Rules and Regulations
UNIVERSAL TREATMENT STANDARDS NOTE: NA means not applicable
REGULATED CONSTITUENT
Common Name
Tribromomethane/Bromoform
2,4,6-Tribromophenol
1,2,4-Trichlorobenzene
1,1,1-Trichloroethane
1,1,2-Trichloroethane
Trichloroethylene
Trichloromonofluoromethane
2,4,5-TrichlorophenoI
2,4,6-Trichlorophenol
2,4,5-Trichlorophenoxyaceticacid/2,4,5-T
1 ,2,3-Trichloropropane
1 , 1 ,2-Trichloro- 1 ,2,2-trifluoroethane
Triethylamine 6
tris-(2,3-Dibromopropyl) phosphate
Vernolate 6
Vinyl chloride
Xylenes-mixed isomers (sum of o-, m-, and p-
xylene concentrations)
Inorganic Constituents
Antimony
Arsenic
Barium
Beryllium
Cadmium
Chromium (Total)
Cyanides (Total)*
CAS1 Number
75-25-2
118-79*6
120-82-1
71-55-6
79-00-5
79-01-6
75-69-4
95-95-4
88-06-2
93-76-5
96-18-4
76-13-1
101-44-8
126-72-7
1929-77-7
75-01-4
1330-20-7

7440-36-0
7440-38-2
7440-39-3
7440-41-7
7440-43-9
7440-47-3
57-12-5
Wastewater
Standard
Concentration in
mg/1*
0.63
0.035
0.055
0.054
0.054
0.054
0.020
0.18
0.035
0.72
0.85
0.057
0.081
0.11
0.042
0.27
0.32

1.9
1.4
1.2
0.82
0.69
2.77
1.2
Nonwastewater
Standard
Concentration in
mg/kg3 unless
noted as "mg/1
TCLP"
15
7.4
19
6.0
6.0
6.0
30
7.4
7.4
7.9
30
30
1.5
0.10
1.4
6.0
30

1.15 mg/1 TCLP
5.0 mg/1 TCLP
21 mg/1 TCLP
1.22 mg/1 TCLP
0.11 mg/1 TCLP
0.60 mg/ITCLP
590

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Federal Reglster/Vol. 63, No. 100/Tuesday, May 26. 1998/Rules and Regulations      28749
UNIVERSAL TREATMENT STANDARDS NOTE: NA means not applicable
REGULATED CONSTITUENT
Common Name .
Cyanides (Amenable)4
Fluoride5
Le»d
Mercury - Nonwastewater from Retort
Mercury - All Others
Nickel

Silver
Sulfide5


Zinc5
CAS1 Number
57-12-5
16984-48-8
7439-92-1
7439-97-6
7439-97-6
7440-02-0
7782-49-2
7440-22-4
18496-25-8
7440-28-0
7440-62-2
7440-66-6
Wastewater
Standard
Concentration in
mg/12
0.86
35
0.69
NA
0.15
3.98
0.82
0.43
14
1.4
4.3
2.61
Nonwastewater
Standard
Concentration in
mg/kg3 unless
noted as "mg/1
TCLP"
30
NA
0.75 mg/1 TCLP
0.20 mg/1 TCLP
0.025 mg/lTCLP
11 mg/1 TCLP
5.7 mg/1 TCLP
0.14 mg/1 TCLP
NA
0.20 mg/1 TCLP
1.6 mg/1 TCLP
4.3 mg/1 TCLP

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28750	Federal Register/Vol. 63. No.  100/Tuesday, May 26,  1998/Rules and Regulations	

           FOOTNOTES TO TABLE UTS


   1       CAS means Chemical Abstract Services.  When the waste code and/or regulated constituents are described as a
           combination of a chemical with it's salts and/or esters, the CAS number is given for the parent compound only.44


   2       Concentration standards for wastewaters are expressed in mg/1 and are based on analysis of composite samples.


   3       Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards
           expressed as a concentration were established, in part, based upon incineration in units operated in accordance with
           the technical requirements of 40 CFR part 264, subpart O or 40 CFR part 265, subpart O, or based upon combustion
           in fuel substitution units operating  in accordance with applicable technical requirements. A facility may comply
           with these treatment standards according to provisions in 40 CFR 268.40(d). AH concentration standards for
           nonwastewaters are based on analysis of grab samples.


   4       Both Cyanides (Total) and Cyanides (Amenable) for nonwastewaters are to be analyzed using Method 9010 or
           9012, found in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW-846,
           as incorporated by reference in 40 CFR 260.11, with a sample size of 10 grams and a distillation time of one hour
           and 15 minutes.


   5        These constituents are not "underlying hazardous constituents" in characteristic wastes, according to the definition
           at §268.2(i).


   6        Between August 26,1996, and August 26,1997, these constituents are not "underlying hazardous constituents" as
          defined at §268.2(1) of this part


   7       This constituent is not an underlying hazardous constituent as defined at §268.2(i) of mis part because its UTS level
          is greater than its TC level, thus a treated selenium waste would always be characteristically hazardous, unless it is
          treated to below its characteristic level.
BILLING CODE 6560-50-C

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              Federal Register /Vol. 63,  No. 100/Tuesday, May 26, 1998/Rules and Regulations
                                                                              28751
  18. Subpart D is amended by adding
§ 268.49 to read as follows:
        § 268.49  Alternative LDR treatment
        standards for contaminated soil.
           (a) Applicability. You must comply
        with LDRs prior to placing soil that
        exhibits a characteristic of hazardous
        waste, or exhibited a characteristic of
                 hazardous waste at the time it was
                 generated, into a land disposal unit. The
                 following chart describes whether you
                 must comply with LDRs prior to placing
                 soil contaminated by listed hazardous
                 waste into a land disposal unit:
            If LDRs
                                        And if LDRs
                                                                         And if
                                                                     Then you
Applied to the listed waste when it
  contaminated the soil*.
Didn't apply to  the listed  waste
  when It contaminated the soil*.

Didn't apply to  the listed  waste
  when jt contaminated the soil*.

Didn't apply to  the listed  waste
  when R contaminated the soil".
Apply to the listed waste now.

Apply to the listed waste now.


Apply to the listed waste now .
Don't apply to the listed waste now
The soil is determined to contain
  the listed waste when the soil is
  first generated.
The soil is determined  not to con-
  tain the  listed waste when the
  soil is first generated.
Must comply with LDRs

Must comply with LDRs.


Needn't comply with LDRs.


Needn't comply with LDRs.
  •For dates ol LDR applicability, see 40 CFR Part 268 Appendix VII. To determine the date any given listed hazardous waste contaminated any
given volume ol soil, use the last date any given listed hazardous waste was placed into any given land disposal unit or, in the case of an acci-
dental spW. the date of the spill.
  (b) Prior to land disposal,
contaminated soil identified by
paragraph (a) of this section as needing
to comply with LDRs must be treated
according to the applicable treatment
standards specified in paragraph (c) of
this section or according to the
Universal Treatment Standards
specified in 40 CFR 268.48 applicable to
the contaminating listed hazardous
waste and/or the applicable
characteristic of hazardous waste if the
soil is characteristic. The treatment
standards specified in paragraph (c) of
this section and the Universal
Treatment Standards may be modified
through a treatment variance approved
In accordance with 40 CFR 268.44.
  (c) Treatment standards for
contaminated soils. Prior to land
disposal, contaminated soil Identified
by paragraph (a) of this section as
needing to comply with LDRs must be
treated according to all the standards
specified In this paragraph or according
to the Universal Treatment Standards
specified in 40 CFR 268.48.
  (1) All soils. Prior to land disposal, all
constituents subject to treatment must
be treated as follows:
  (A) For non-metals, treatment must
achieve 90 percent reduction in total
constituent concentrations, except as
provided by paragraph (c)(l)(C) of this
section,
  (B) For metals, treatment must
achieve 90 percent reduction in
constituent concentrations as measured
in leachate from the treated media
(tested according to the TCLP) or 90
percent reduction in total constituent
         concentrations (when a metal removal
         treatment technology is used), except as
         provided by paragraph (c) (1) (C) of this
         section.
           (C) When treatment of any constituent
         subject to treatment to a 90 percent
         reduction standard would result in a
         concentration less than 10 times the
         Universal Treatment Standard for that
         constituent, treatment to achieve
         constituent concentrations less than 10
         times the universal treatment standard
         is not required. Universal Treatment
         Standards are identified in 40 CFR
         268.48 Table UTS.
           (2) Soils that exhibit the characteristic
         of ignitability, corrosivity or reactivity.
         In addition to the treatment required by
         paragraph (c) (1) of this section, prior to
         land disposal, soils that exhibit the
         characteristic of ignitability, corrosivity,
         or reactivity must be treated to eliminate
         these characteristics.
           (3) Soils that contain nonanalyzable
         constituents. In addition to the
         treatment requirements of paragraphs
         (c) (1) and (2) of this section, prior to
         land disposal, the following treatment is
         required for soils that contain
         nonanalyzable constituents:
           (A) For soil that also contains
         analyzable constituents, treatment of
         those analyzable constituents to the
         levels specified in paragraphs (c)(l) and
         (2) of this section; or,
           (B) For soil that contains only
         nonanalyzable constituents, treatment
         by the method specified in § 268.42 for
         the waste contained in the soil.
           (d) Constituents subject to treatment.
         When applying the soil treatment
                  standards in paragraph (c) of this
                  section, constituents subject to
                  treatment are any constituents listed in
                  40 CFR 268.48, Table UTS—Universal
                  Treatment Standards that are reasonably
                  expected to be present in any given
                  volume of contaminated soil, exc'ept
                  fluoride, selenium, sulfides, vanadium
                  and zinc, and are present at
                  concentrations greater than ten times
                  the universal treatment standard.
                    (e) Management of treatment
                  residuals. Treatment residuals from
                  treating contaminated soil identified by
                  paragraph (a) of this section as needing
                  to comply with LDRs must be managed
                  as follows:
                    (1) Soil residuals are subject to the
                  treatment standards of this section;
                    (2) Non-soil residuals are subject to:
                    (A) For soils contaminated by listed
                  hazardous waste, the RCRA Subtitle C
                  standards applicable to the listed
                  hazardous waste; and
                    (B) For soils that exhibit a
                  characteristic of hazardous waste, if the
                  non-soil residual also exhibits a
                  characteristic of hazardous waste, the
                  treatment standards applicable to the
                  characteristic hazardous waste.
                    19. Table 1 in Appendix VII to Part
                  268 is amended by removing the entries
                  for waste code F033; revising the second
                  entry for waste code F032, the second
                  entry for F034, and the first entry for
                  K088; revising the entries for D003-D011
                  and two entries for waste code F035;
                  and, Table 2 is amended by revising
                  entry number 9 and adding entries 12
                  and 13 to read as follows:

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 28752
Federal Register/Vol. 63, No.  100/Tuesday, May 26,  1998/Rules and Regulations
                               TABLE 1 .—EFFECTIVE DATES OF SURFACE DISPOSED WASTES
                                 [(Non-soil and Debris) Regulated in the LDRS°—Comprehensive List]
     Waste code
                                                        Waste category
                                                                                            Effective date
 D003 	  Newly identified surface-disposed elemental phosphorus processing wastes	  May 26, 2000.
 D004 	  Newly identified D004 and mineral processing wastes	  August 24, 1998.
 D004 	  Mixed radioactive/newly identified D004 or mineral processing wastes	  May 26, 2000.
 D005 	  Newly identified D005 and mineral processing wastes	'.	  August 24, 1998.
 D005 	  Mixed radioactive/newly identified D005 or mineral processing wastes	  May 26, 2000.
 D006 	  Newly identified D006 and mineral processing wastes	  August 24,1998.
 D006 	  Mixed radioactive/newly identified D006 or mineral processing wastes	  May 26, 2000.
 D007 	  Newly identified D007 and mineral processing wastes	  August 24,1998.
 D007 	  Mixed radioactive/newly identified D007or mineral processing wastes	  May 26, 2000.
 D008 	  Newly identified D008 and mineral processing waste 	  August 24, 1998.
 D008 	  Mixed radioactive/newly identified D008 or mineral processing wastes	  May 26, 2000.
 D009 	  Newly identified D009 and mineral processing waste 	  August 24, 1998.
 D009 	  Mixed radioactive/newly identified D009or mineral processing wastes	  May 26, 2000.
 D010 	  Newly identified D010 and mineral processing wastes	  August 24, 1998.
 D010 	  Mixed radioactive/newly identified D010 ormineral processing wastes	  May 26, 2000.
 D011 	  Newly identified D011 and mineral processing wastes	  August 24,1998.
 D011 	  Mixed radioactive/newly identified D011or mineral processing wastes	  May 26, 2000.
 F032	  All others ,
                                                                                                        August 12, 1997.
 F034	  All others	  August 12, 1997.
 F035	  Mixed with radioactive wastes	  May 12, 1999.
 F035	  All others	  August 12, 1997.
 K088	  All others ,
                                                                                                        Octobers, 1997.
*****
   TABLE 2.—SUMMARY OF EFFECTIVE DATES OF UNO DISPOSAL RESTRICTIONS FOR CONTAMINATED SOIL AND DEBRIS
                                                          (CSD)
                                    Restricted hazardous waste in CSD
                                                                                                           Effective date
9. Soil and debris contaminated with K088 wastes	  October 8,1997.

    »                   *                  *                   *                   »                  «                 •
12. Soil and debris contaminated with newly identified D004-D011 toxicity characteristic wastes and mineral processing  August 24, 1998.
  wastes.
13. Soil and debris contaminated with mixed radioactive newly identified D004-D011 characteristic wastes and mineral  May 26, 2000.
  processing wastes.

    20.  Appendix VIII to Part 268  is amended by revising the title and adding  in  alpha numeric order the entry "NA"
to read as follows:

                 Appendix VIII to Part 268—LDR Effective Dates of Injected Prohibited Hazardous Wastes

                                 NATIONAL CAPACITY LDR VARIANCES FOR UIC WASTES
     Waste code
                                                         Waste category
                                                                                             Effective date
NA
                     Newly identified mineral processing wastes from titanium dioxide production and mixed radioactive/ May 26, 2000.
                       newly identified D004-D011 characteristic wastes and mineral processing wastes.

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              Federal Register/Vol. 63, No.  100/Tuesday,  May 26, 1998/Rules and Regulations        28753
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
                                       Subpart A—Requirements for Final
                                       Authorization
             2 in chronological order by effective
             date in the Federal Register, to read as
             follows:
  21. The authority citation for Part 271   adding the following entries to Table 1    §271.1  Purpose and scope.
continues to read as follows:             in chronological order by date of         *****
  Authority: 42 U.S.C. 6905.6912(a) and      publication in the Federal Register^ and     Q) *  *  *
5926.                                  by adding the following entries to Table     w

          TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
  PromuJgation data
                                      Title of regulation
                                                                         Federal Register reference
                                                                                                     Effective date
May 26, 1988 .............  Land Disposal Restrictions Phase IV Final Rule
                                                                       [Insert FR page numbers] ....... August 24, 1998.
       TABLE 2.—SELF-IMPLEMENTING PROVISIONS OF THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
      Effective data
                                 Self-implementing provision
                                                                  RCRA citation
                                                                                       Federal Register reference
August 24.1998 	



May 26. 2000	
                         Prohibition on land disposal of newly identified
                          wastes including TC metal wastes and char-
                          acteristic  mineral processing wastes; treat-
                          ment standards for contaminated soil.
                         Prohibition on land disposal of newly identified
                          wastes from elemental phosphorus processing
                          and mixed radioactive and newly identified TC
                          metal/mineral  processing  wastes  (including
                          soli and debris).
                         Prohibition on underground injection of newly
                          Identified mineral processing wastes from tita-
                          nium dioxide production
                                                                 3004(m)	  Date of publication and FR page cite.
3004(m)	  Date of publication and FR page cite.
 tFR Doc. 98-12575 Filed 5-22-98; 8:45 am]
 attUNO COOS W40-50-P
                                                                                                                 ,,,1'il, i,	,: ,	 I, ii,, 1;

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