Federal Register / Vol. 53, No. 5 / Friday. January 8, 1988 / Proposed Rules
519
R-2918 Valparaiso. FL [Amended)
By removing the present time of
designation and using agency and
substituting the following:
Time of designation. Intermittent 0600-
0100 local time daily; other time* by NOTAM -
6 hours in advance.
Using agency. U.S. Air Force; Commander,
Armament Division, Eglin AFB. FL.
R-2919A Valparaiso, FL [Amended]
By removing the current boundaries, time
of designation and using agency and
' substituting the following;
Boundaries. Beginning at tat. 3ff2asXT N~
long. 88°23W W.; tolai 3tf28!OfP N* long;
. 85'58-OQ" W.i to. lat. affZA'OO" M. long.
85'56'QQ" W4tolaL30?ia'15"It.Iong. "
85'5&W W.; to lat. 3O'22'00" N., long.
BS'oatxr W.; to Fat. 30*25'00" N.. long.
86°22'26" Wu to the point of beginning.
Time of designation. Intermittent, 0600-
0100 local time daily: other times by NOTAM
6 hours in advance.
Using agency. U.S. Air Force, Commander.
Armament Division. Eglia AFB, FL.
R-2919B Valparaiso, FL. [Amended!
By removing the present time of
designation and using agency and
substituting the following: .
Time of designation. Intermittent. 6600-
0100 local time daily: other fime«.by NOTAM
6 hours in advance.. • • - '.•'.'"" ' :
' Using agency. U.& Air Force; Commander,
Armament Division. Bgfin. AFB, Ft. • ,
R-29I9C Valparaiso, FL (New!
Boundaries. Beginning at lat 30?22'OQf Pt»
long. 86°08'Qa" W.; to lat. 30'19'15" N.. long.
85°S6'00" W.; to tat. Sall'DOT N, long.
85'56'Ott" W^ thence 3 nautical miles from
and parallel to the shoreline to tat. 30*15W
N.. long. 80*06nS" W.; to the point of.
beginning.
Designated altitudes. 8,500 feet MSL to
unlimited. • •- •'-
Time of designation. Intermittent. 060D- -
0100 local time daily, other times by NQTAM
6 hours .in advance.
Controlling agency. FAA, JacJtaonvitfe
ARTCC. .
Using agency. U.S. Air Force. Commander,
Armament Division. Eglin AFB. FL
Issued in Washington. DC, on December. 22,
1967. •
Sheloma Wugaltec,
Acting Manager* Airspace-Rules and
Aeronautical Infarmaitoa Division.
[PR Doc. 88-252 Filed 1-7-88: 8:45 ami
BILUNS COOt 49l»-t**l . -
DEPARTMENT OF AGRICULTURE
Forest Service ' .
36CFRPart22J
Sale and Disposal of NationatForest
Timber; Periodic Payments,
Downpayments, aiuf Market-Related
Contract-Term Additions
AGENCY: Forest Service, USD A.
ACTION: Notice; extension of public
comment period.
SUMMARY: On November 8,1987. at 52
FR 4302O, the Forest Service published a
notice, of proposed nilemaking te, , —-
implement periodic payments required
by the Federal Timber Contract Payment
Modification Act. Many timber sale
purchasers and trade associations have
requested additional time to prepare
comments on this proposed rale,
primarily because of ongoing efforts by
the Forest Service and timber industry
to develop an updated standard timber
sale contract-to submit for public .
comment Another reason is that they
may need additional tune to analyze the
several other proposed changes to
policy and regulations governing Forest
Service timber sales open fur comment
concurrently. The original comment
period ended January 5,1988. To permit
these purchasers and -the general public
a reasonable opportunity to submit their
comments, the public comment period is
hereby extended by 45 days to February
13,1988.
DATE Comments- now must be received
on or before February 19,1988, -
ADDRESS! Send written comments to F.
Dale Robertson, Chief (Z400),, Forest
Service, USDA. P.O. Box 36090.
Washington, DC 20090-6090.
. FOR FURTHER INFORMATlOliciDMTACT:
David' M, Spores. Timber Management
Staff. (2Q2J 447-4051.
. Datei.December3G.1987:
George M. Leonard,
Associate Chief.
[FR Doc. 88-284 Filed 1-7-68; 8:4? am [
WLUNQ CODE 3410-11-M
ENVIRONMENTAL PROTECTION
AGENCY
40CFRPart26t
[SWH-FRL-3283-41
AGENCY: l^vironmentef Protection
Agency.. ,
ACTION: Proposal Rule and request for
comment.
SUMMARY: On Jufy 31,1987, a panef of
die District of Columbia Cfroaif Court of
Appeals niled 2-1 that the
Environmental Protection. Agency (EPA)
had exceeded .its statutory authority by
regulatingv or claiming authority ta
regulater-certain recycled hazardous
secondary materials. American Mining
Congress v. EPA, 824 P.2d 1177. This
notice provides the Agency's
interpretation of the court's opinion, and
describes the portions of the rules
unaffected by the opinion and remaining
in force. This notice also proposes
amendments to the rules required by the
• court's opinion. In general, the Agency is
proposing to exclude from regulation
certain in-process-recycled secondary .
materials in the petroleum refining
industry, and certain other sludges,. by- '
products, and spent materials that are
reclaimed as part of continuous, on-
going manufacturing processes.
DATES: EPA will accept public
comments on the proposal until
February 22, 1988.
ADDRESSES: The public docket for this
nilemaking is located at Room LG-10Q,
U.S. Environmental Protection Agency,
401 M Street SW., Washington, DC
20460. The docket number assigned to
this notice i^|^-SWRP-FFFFF.: ~ «J
Persons who wTsh~"fo"cbmment on the
notice should place the docket number
on their comments, and provide an
original and 2 copies. The EPA RCRA
docket is open from 9:00 a.m. to 4:00
p.m., Monday through Friday, excluding.
Federal holidays. To review docket
materials, the public must make an
appointment by calling (202)475-9327. A
maximum of 50 pages may be copied
from any regulatory docket at no cost.
Additional copies cost $0.20 per page.
FOR FURTHER INFORMATION COMTACTi
For general information, contact the
- RCRA/Superfund Hotline toll free at
(800) 424-9346 (in Washington. DC, call
(202) 382-3000). For information on
specific aspects of today's notice,
contact liMig&gi&ibffice of
Solid WaWelWK^552Bj;tJ£.
Environmental Protection Agency. 401 M
StreetSW^ashington, DC2046O, (202)
l^^^li^
SUPPLEMENTARY INFORMATION:
Outline of Today's Notice
h Background
If.-Anatysia of the Court's Opinion
A. The Agency's Interpretation of the
Court's, Opinion. — General
B. Portions of the Existing Rules Affected
by .the- Court's Opinion
C..Other Regulations Dealing With
Recycling Activities
1. Use Constituting Disposal
2. Burning for En«rgy Recovery and Use
of Hazardous Secondary Materials ta
3. Reclamation
4. Speculative Accumulation
5. Inherenuy Waste-like Materials
D. The Opinion's Effect oa Specific Issues '
1. Secondary Materials. Discarded by
Means Other- than Final Commitment tor
a RCRA Disposal Unit
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520
Federal Register / Vol. 53. No. 5 / Friday, January 8, 1988 / Proposed Rules
2. On-Site Recycling Activities Involving
Solid Wastes
3. Precious Metals Reclamation
4. Scope of the Closed-Loop Exclusion ''
HI. Amendments to Conform to the Court's, ''
Decision ' = ' " •
A. Amendments Concerning Petroleum ••'
Refining •-.'
1. Use of Oil-Bearing Residuals from - •
Petroleum Refining in the Refining
Process
2. Petroleum Coke Produced with Oil-
Bearing Hazardous Secondary Materials
From Refining '' '
3. Changes In Regulations • •
B. Proposed changes in Srape of »-' '•••""
Reclamation Provision •• v«:,-u:-.
'C.' Exclusion of Spent Ma terials Reclaimed'
in Closed Systems and Returned to the ,i
Original Process
IV. State Authority
A. Applicability of Rules !n Authorized.
Slates
B. Effect on State Authorization
V. Executive Order No. 12201—Regulatory
Impacts • •. -.1,
VI. Paperwork Reduction Act *
VII. Regulatory Flexibility Act
VIII. Supporting Documents
I. Background
On July 31.1987, a panel of the United
States Court of Appeals for the District
of Columbia Circuit held in a 2-1
decision that the RCRA statutory
definition of solid waste contained in
section 1004(27) of RCRA limited the
Agency's authority over hazardous
secondary materials destined for
recycling to materials that are ' ' '
"discarded". American Mining Congress
V. EPA, 824 F. 2d 1177 (D.C. Cir. 1987).
More specifically, the court held that the
Agency has exceeded its. authority
insofar as it classified certain in-process
streams in the petroleum refining and
primary smelting industries as RCRA •
solid wastes. Today's notice sets out the
Agency's interpretation of the. portions
of its existing rules requiring " '"''xs
modification in light of the court's
opinion. The Agency is proposing the
changes that are necessEiry to conform
the existing rules to the court's mandate,
and is seeking public comment on those
changes.
II. Analysis of the Court's Opinion
A. Tti&Agency's Interpretation of the
Court's Opinion—General • •••.-
The Agency views the court's opinion ,
as applying to the "agency's authority to
regulate secondary materials reused . *,
within an industry's ongoing production
process" as solid waste, 824 F. 2d at
1178. See also id. at h.3,. describing as. ;,
"the central issue—whether EPA's-. ...
interpretation that the term 'discarded
material' encompasses materials
destined for recycling hi an on-going
production process is contrary to the
statute".
. • The facts described in the-opinion
. involved two particular types of in-
house recycling practices in the
petroleum refining and minjng (primary
.• smelting) industries. Petroleum
refineries often take oil-bearing
byproducts and sludges from the '
refining process, and return these
materials, either by direct reinsertion.
into the petroleum refining process or
(more normally) return to an oil
recovery system ("slop .oil") after which
' recovered oils are returned to the '
petroleum refining process. These '
byproducts'and sludges are sometimes
hazardous (for example, API separator
sludge and DAF Float from petroleum
refining, both listed hazardous wastes,
are sometimes recycled in this way),
and, if so, would be classified as
hazardous waste under the Agency's
existing rules because they are used to
produce fuels. The primary smelting
industries also frequently recover
additional metal values from sludges
and byproducts generated in the primary
smelting process. This recovery can
involve direct return to the smelting
process, or recovery in other unit
operations. 824 F. 2d at 1181. To the
extent these activities involve sludges
• 'and byproducts on the lists- of hazardous
wastes from non-specific and specific
soupes (§§261.31 and 261.32) and the
activity occurs outside of a closed-loop
reclamation system, they are classified
as solid wastes under the existing EPA
rules the court considered in its
decision.
The court held that "by regulating in-
process secondary materials, EPA has
acted in contravention of Congress'
intent" 824 F. 2d at 1193. See also id. at
n.26 ("we decide that EPA exceeded its
statutory authority in regulating in- -
process secondary materials"). The
' court reasoned that by defining solid
waste by using the phrase "other
discarded material", Congress intended
•that only secondary materials that were
income sense thrown away, abandoned* J
or disposed of could be solid wastes; - •/
The court acknowledged that certain
types of-recycling activities remain
within the Agency's authority, because
. they involve a form of discarding. E.g.,
Id, at n.14 (describing used oil recycling
activities). Id. at 1191 and n.20
(describing a metal reclamation,
operation storing metal-bearing .
• materials in open piles; and a pesticide
• drum.reused as a trash container).
Consequently,, the Agency intends to
amend its existing rules to state clearly
that the rules do-not extend to on-going
.manufacturing operations, particularly
. those like the refining and smelting
processes that were before the court
which are characterized by continuous
extraction of material values from an , :
original raw material. 824 F. 2d at 1181. .
The: court's opinion also compels
exclusion of certain types of reclamation
processes that closely resemble on-going
production activities, and the Agency
proposes to amend its rules to exclude
these activities as well. As will be
explained more fully below, secondary
materials being recycled in these ways
are not being "discarded" under the
court's interpretation of the term.
The court's/decision does not affect •
the .Agency's, authority to regulate as
hazardous wastes those secondary
materials recycled in ways where the
recycling activity itself is characterized
by discarding as defined by the court.
That is, .manufacturing processes (or
other types of recycling) involving an
element of discard which do not involve
secondary materials passing through a
continuous, on-going manufacturing
process remain within the Agency's
jurisdiction. We explain below more
specifically how we view these concepts
as applying to the present rules.
B. Portions of the Existing Rules
Affected by the Court's Opinion
For the most part. EPA's existing rules
already distinguish between on-going,
in-house types of manufacturing
activities and waste management.
Indeed, this was the Agency's avowed
purpose throughout the involved and
protracted series of rulemakings leading
to the current solid waste definition.
See, e.g., 50 FR at 617 (January 4,1985).
Accordingly, the existing rules .
specifically exclude the following
secondary materials from jurisdiction:
hazardous secondary materials that are
used directly as ingredients in
manufacturing processes to make new
products (provided the, secondary
materials aren't being reclaimed);
hazardous secondary materials that are
used directly as effective substitutes for
commercial products; hazardous
secondary materials reclaimed in
• closed-loop processes; and particular
.individual types of hazardous secondary
materials involved in on-going types of
recycling activities—black liquor from
the paper industry, spent sulfuric acid .
used to produce virgin sulfuric acid, and
certain closed processes characterized
by reclamation followed by return of.the
reclaimed feedstock to a manufacturing
process. See 40 CFR 261.2(e) and
261.4(a)(6)-(8).
In addition, and significantly, the
current rules state that byproducts and
sludges being reclaimed are not solid
wastes unless specifically listed. The
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Federal Register / Vol. 53, No. S / Friday, January 8, 198S /Proposed Rotes
521
listing process designates these
secondary materials as solid wastes
after considering specific factors bearing
expressly on the question of whether the
reclamation activity involves a •
continuous, on-going process. See
§ 261.2(c)(3) and 50 FR a 640-41 (January
4.1985).
The Agency's current rules,, however,
state that when hazardous- secondary
materials are used to produce fuels or-
are contained in fuels, both the
secondary materials and the resulting
fuels are solid wastes. The court held
that true in-process oil-bearing materials,
in the petroleum refining industry/ were
not solid wastes when continuously
reused in the refining process. Such
activity, in the court's view, involves
continued recovery of hydrocarbon
values from crude-oil, and the Oil-
bearing residuals, therefore, are not
discarded materials. Consequently* the
Agency proposes to change its existing
rules to state that oil-bearing secondary -
materials from the petroleum refining
process so recycled are not solid wastes,
provided there is no other element of
discard or disposal characterizing the
recycling activity. .. • .
The opinion also dealt with recycling
operations in. the primary_smelting
industry. The existing rules classify
these recycling activities as reclamation
processes because they involve recovery
of material values contained in the
secondary materials as end products
(for example, the recovery of lead from
primary lead emission control dustsj.
These reclamation processes may or
may not involve solid waste. Thus, in
promulgating the existing rules, the
Agency noted that many of these
reclamation operations would not
involve RCRA solid wastes as they
could be considered on-going processing
of the original ore concentrate. 50 FR at
640-41. Yet the Agency also indicated
that certain other reclamation
operations involving sludges and
byproducts'arer not part of art on-going
production process and involve
elements of discard. Such operations
could involve, for example,
discontinuous and unrelated processes,
infrequent reclamation, or disposal
through -storage on the- land. Id.
Because (he. Agency was unable to •
develop a self-implementing narrative
standard accounting for all of these
relevant factors, the final rules.state; that
hazardous sludges and byproducts'are.
solid wastes, when, they are to be '•
reclaimed on/y if the sludges and
byproducts-are Ksted by the Agency in
40 CER 26i:3t. and 261.32 on a case-by-
case basis. See § 261.2(c)(3). The
existing'rules direct the listing
determination to he based .on a
consideration of the factors, contained in
the preamble to the final rules relating
to whether; the sludges'arid byproducts.
are utilized in on-going, continuous
manufacturing processes. Id.
To bring the Agency's rules on
reclamation, into conformance with the
court's opinion, EPA is proposing to
amend the rules to indicate with more
particularity the bases for designating
sludges and byproducts as solid wastes.
•and to ensure that .materials reclaimed
in true on-going manufacturing
• processes without any element.of
discard are not considered to. be solid
wastes. To. make this change, the
Agency is proposing to list by rule rather
than by explanatory preamble the
relevant factors for determining whether
to designate these materials as solid .
wastes when they are to be reclaimed,
and to indicate in the rule that the
ultimate jurisdictional test is whether
these materials are being utilized in an
on-going continuous manufacturing
process.
The court did not overturn the
Agency's Jurisdiction over material
recovery when not characterized by on-
going, continuous production, processes.
For example* the Agency believes- that
the following recovery situations- could
• involve the disposal of byproducts and
sludges in, operations that are not on-
going, continuous production processes.
In such circumstances, the Agency could
retain jurisdiction under the court's
opinion:
1. Spent potliners, containing high
concentrations of cyanidev could be
disposed of through storage prior to
potential recovery of cryolite values (as.
fluoride) but not Jar any recycling of the
cyanide This reclamation step is
'ancillary to the main process (aluminum
production), since fluoride is. not
returned to the process to be recovered '
as a product (rather, it is a component in
the potlinerf, and the potliriera
themselves are dissimilar to raw
materials used originally. The lack of
cyanide recycling indicates a waste
treatment objective.
2. A wastewater treatment sludge is .
generated in an impoundment. It is unfit
for recovery until it ia dewatered It can
be eventually recycled to- the smelting
process. The sludge must be reclaimed
before it can be re turned, to the process*.
and is accumulated initially, tor a manner
unlike-normal caw materials (raw . • -
materials are not customarily stored
underwater), and in a manner.
tantamount to land disposal (see RCRA
section 30Q4(k)]. The court's opinion
indicates such circumstances may
involve RCRA solid wastes. The court
specifically refers to similar.recQvery
scenarios as involving solid wastes at
824F.2dn.20. . ; •.-.-.
3. Wastewater treatment sludges from
a non-smelting process, containing high
concentrations of toxic constituents, that
are not found in ore concentrates and
that are not destined for recovery, are
disposed of by transfer to a primary
smelter for metal recovery. It rs possible
for such circumstances to give EPA
jurisdiction given the element of discard
and the lack of an on-going, continuous
production process. Moreover, toxic -
constituents would her discarded
because they are not recycled. .
' C. Other Regulations Dealing With
Recycling Activities
EPA's remaining regulations dealing
with recycling activities clearly involve-
elements of discard as construed by the
court. None of these activities consist of
on-going manufacturing involving
continuous extraction of material
values. The court's opinion,, therefore,
does not require modification of these
provisions in the solid waste rules. Thus,
the Agency expects the regulated
community ta continue- to, comply with
the applicable regulations. We explain
below the relationship of the court's
'decision ta each class, of activity. •
1. Use Constituting Disposal. Current
EPA regulations state that secondary
materials applied to the land or used to
produce products thai are placed on the
land are solid wastes (products
produced therefrom are also solid.
wastes). If the solid wastes are listed, or
exhibit a hazardous waste
characteristic, they are hazardous
wastes. See 40..CFR 261.2(c)(l).
Examples of uses that constitute
disposal include the use of hazardous
sludges as road-base material or as dust
suppressants and the use of a waste-
derived fertilizer placed on the land.
These recycling activities meet the
• court's-definition of discard because the
use activity ia also land, disposal.
Hazardous wastes disposed of
through uses constituting disposal
invariably contain toxic constituents
which do not further the use and which
are discarded by disposal when the
wastes are placed on the land. For
example, the dioxin found in Times
Beach, Missouri was from used oil
mixed with a dioxin-containing
byproduct disposed of on the land
through use as a dust suppressant.
Another example is the disposal of
cadmium through the use of the waste-.
derived fertilizers'produced from waste
KOB1.
These recycling activities are not OR.-'
going manufacturing'processes. When
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522
Federal Register / Vol. 53. No. 5 / Friday, January 8, 1988 / Proposed Rules --
solid wastes are placed on the land, .
there is no continuous stream of
manufacturing process, but rather there
is final disposal of the wastes."
Accordingly, the Agency believes that
this class of activity is properly within
its authority and is unaffected by the
court's opinion. Therefore, no rule
change is necessary, and the Agency is
not reopening this portion of the rule to
public comment.
2. Burning for Energy Recovery and •
' Use of Hazardous Secondary Materials
to Produce Fuels. Current J3PA rules
state that when hazardous secondary
materials are used directly as fuels or
used to produce fuels, both the
hazardous secondary material and any
fuel produced from these materials are
solid wastes, and, if hazardous,
hazardous wastes. See 40 CFR
261.2(c)(2). As indicated above, the court
held that these provisions could not
lawfully apply to conventional in-
process petroleum refining activities
occurring at petroleum refineries
characterized by continued extraction of
material values from crude oil. Thus,
secondary hazardous materials from
petroleum refining that are used to
produce fuels by introducing them into
the petroleum refining process would no
longer be'classified aa solid wastes
(assuming there is no element of discard
relating to this type-of recycling as
explained m section III.A. below). '.
The Agency does not view the opinion
as affecting any other aspect of the rules
relating to burning. As with the use
constituting disposal provisions, burning
processes for energy recovery often
involve disposal of waste through
incineration; a classic form of waste ''
management activity. In these
processes, hazardous secondary
materials are disposed of by burning
and releasing the constituents
(potentially indiscriminately) into the
air. Congress equated burning for energy
recovery and incineration when
promulgating section 3004(q) of RCRA
as part of the 1984 amendments. (See
H.R. Rep. No. 198,98th Cong. 1st Sess.
39-40.) The court did not overturn
regulation of such burning activities but
only on-going manufacturing activities. .
When a generator takes its spent
sovlent from a degreasing operation and
burns it in its boiler, for example, it is
not engaged in an on-going
manufacturing process, but rather is
disposing of a waste from one process
(e.g.. solvent from degreasing) by
burning it in a second unrelated process.
Similarly, when a plant takes hazardous
still bottoms that are unsuitable for
direct use as a chemical intermediate
and burns them to recover residual
energy, the hazardous constitutents are
disposed of as wastes by destruction,
just as.if they were .incinerated.
Moreover,, the manufacturing utility of
the material has come to an end, and the
manufacturing activity has concluded. In
sum, an energy recovery step is not
typically an integral part of the basic
manufacturing process, but rather is
ancillary and involves disposal of solid
waste.
Accordingly, with the exception of in-
house recycling activities in petroleum -
. refining, the Agency does not view any
of its rules related to burning for energy
recovery and the use of hazardous . .•,
secondary materials to produce fuels as
being affected by the court's opinion.
The Agency, therefore only .proposes to
amend the rules insofar as they affect
the petroleum refining industry.
One further issue involving burning
merits discussion. Under the Agency's
current rules, some forms of burning do
not involve recycling at all. When
burning occurs in a boiler or industrial
furnace for the dominant purpose of
destruction, the activity is classified as
incineration. Not only are these
incinerated materials solid wastes, but
the act of incineration is presently '
subject to regulation under Subpart O of
Parts 264 and 265: See 40 CFR
264.340(a)(2) and 265.340(a)(2). Obvious
factors bearing on whether burning is
for the purpose of destruction, and so is
presently subject to regulation as
incineration are: (a) Whether the
operator of the device is paid to burn
wastes and the percentage of income
derived from burning wastes as opposed
to producing a product; (b) whether the
wastes are selected to meet
'specifications related to a recycling
purpose or rather are simply solicited
and accepted indiscriminately; (c) the
energy value of the wastes (if burning is
for energy recovery); (d) how much
energy or material value each waste
contributes to the recycling purpose; (e)
whether each waste burned is as
effective for the claimed recycling
purpose as the raw materials normally
processed in the device; and (f) whether.
the toxic constituents in the waste '
contribute to the recycling objective or
are simply being destroyed. Other
factors are discussed at 50 FR 638
(January 4.1985) and 52 FR 17013 (May
6,1987)'. Persons burning the waste have
the burden of showing that each waste-
burned is burned for a legitimate
recycling purpose and not for
destruction. 40 CFR 281.2(f).
3. Reclamation, (a) Reclamation
Involving Spent Materials. Reclamation.
activities under the Agency's rules are
of two types: regeneration of materials
or materials recovery therefrom. See 40
CFR 261.1(c)(4) and 261.2(c)(3);,As
discussed earlier, this has always been
the area of recycling most difficult to
classify because certain reclamation
activities involve on-going production
activities, while others are forms of
waste management.
The Agency's rules deal with the
problem of classification by
differentiating among the types of
materials being reclaimed. (See Table 1
in § 261.2(c)(3).) The exact classification
, is between secondary materials- which .
, are previously used, and are used up
and no longer usable ("spent ". .
materials"), and previously unused
residual materials ("sludges and
byproducts"). As explained in section
II.B. above, sludges and byproducts are
more likely than spent materials to be
involved in on-going manufacturing
operations. The existing rules thus
classify sludges and byproducts as solid
wastes on a case-by-case basis based
on factors which distinguish on-going
manufacturing from waste management.
Spent materials requiring reclamation,
on the other hand, are not directly
usable in on-g.oing manufacturing
processes, because, by definition, they
are no longer usable and must first be
restored to a usable condition. There is
no continued utilization of material
values, though there may be potential
for lecovery of something usable from a
used up or spent material. Thus by
definition, these materials are no longer
available for use in continuous, on-going
manufacturing processes, and as such,
are disposed of from these processes
even if the reclamation activity occurs
at the site of generation (with one
exception discussed below).
• Of course, when a generator actually
disposes of a spent material by sending
it to an unrelated reclaimer, the spent
material is a solid waste. See 824 F. 2d
at EL. 14. Examples- of waste disposal
activities for spent materials include
spent solvent reclamation, used oil re-
refining, or recovery of spent catalyst.
The only exception to this principle is
where the reclamation operation
involves closed, continuous processes
where reclaimed materials are returned
directly to the initial manufacturing
process and the entire operation is
connected with pipes or other
comparable means of conveyance, and
there is no-element of disposal involved
(such as storage in an impoundment).
. The Court's opinion requires exclusion
from regulation in this situation because
there is no removal from an on-going
process and the court's decision holds
that no materials can be considered to
be discarded. The Agency proposes to
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523
change its existing rules to exclude such -
situations.
(b) Reclamation Involving Sludges and
Byproducts. As discussed in section ILB.
above, the current EPA rules indicate
that listed sludges and byproducts are
solid wastes when they are reclaimed
(in other than closed-loop systems as
defined in the rules). This listing
determination is based on consideration-
of a range of factors which evaluate the
question of'whether the materials
remain in an on-going, continuous
manufacturing process. :
" As noted previously the1 Agency
proposes to amend these rules to
indicate that the Agency lacks authority .
to regulate secondary materials
reclaimed in this manner, and to
indicate explicitly what the relevant
factors are in making this determination.
4. Speculative Accumulation. The
Agency's rules state that.hazardous
secondary materials that are not solid
wastes for any other reason become
solid wastes when they are accumulated
without being recycled for one year
without 75 percent of the material being
recycled during the one year period. See
40 CFR 2B1.2(c)(4). Petitioners did not
challenge this provision in the American
Mining Congress litigation. The Agency
has concluded that situations satisfying
the speculative accumulation criteria
involve elements of discard since the
materials have been disposed of, are not
part of an on-going production process,
and are not being (and are unlikely to
be) recycled. Secondary materials
disposed of through storage for this -
length of time without recycling simply
cannot be characterized as in-process •
materials. The Agency does not believe
this provision requires alteration, but
requests comment on this interpretation.
It should be noted that the rules
provide a variance allowing persons
accumulating speculatively to
demonstrate that they are not storing
solid waste. 40 CFR 260.31(a). This
provision accommodates those unusual
situations where there is prolonged.
storage without recycling but the
material being stored might legitimately
be considered not a solid waste. 50 FR
652-54 (January 4,1985). There have
been no applications for a variance
under this provision since the rule was
adopted, supporting the soundness of
the existing one year 75 percent test.
5. Inherently Waste-like Materials.
Section 261.2(d) states that those types.
of secondary materials listed fay EPA
after consideration of specified criteria •.
are solid wastes regardless of how they
are recycled. The only wastes that the
Agency has so designated are the listed
dioxin-containing wastes (F020-F023,
F026. and F028). The factors the Agency
is required to consider in designating
secondary materials as solid wastes
under this section address the element
of discard necessarily involved in
recycling these materials (e.g., whether
the material is typically discarded, or
whether it contains.unusual hazardous
constituents not found, in corresponding
virgin material for which the secondary
material substitutes which do not
contribute to the recycling process, and
whether the recycling process may pose
a hazard to human health and the
environment). „'
The court's opinion does not affect
this provision. The factors upon which
the Agency would base a decision are
directly related to whether materials are
being disposed of, thrown away or
abandoned, i.e., discarded. Materials
must either be typically disposed of, or
contain hazardous constituents which
are disposed of by virtue of not
contributing to the recycling process.
The dioxins in the dioxin-containing
wastes serve as an.example.
Accordingly, the Agency is not
proposing to amend this provision and is
not soliciting any comment on it.
D. The Opinion's Effect on Specific
-Issues .
1. Secondary Materials Discarded by
Means Other Than Final Commitment
to a RCRA Disposal Unit. The court did
not equate discard with final disposition
in a RCRA disposal unit Rather, the
court held the term "discarded
materials" includes materials
' abandoned, thrown away, or disposed
of, and does not include secondary
materials recycled in on-going,
• continuous manufacturing'operations.
Indeed, some of the court's definitional
examples of discarded materials are
• secondary materials disposed of by
means other than final commitment to
RCRA disposal units—namely, used oil
destined for recycling, waste piles
involved in reclamation placed directly
on the land, and recycled pesticide
drums placed on the land. 824 F.2d n. 14
& 20. ':
Equating discard with final
disposition in a RCRA disposal unit
would not accord with industrial
disposal practices and would be
contrary to RCRA's purposes/
Hazardous secondary materials are
rarely, if ever, committed for final
disposition to a RCRA disposal unit and
then retrieved for recycling. Thus, to the
extent the-court identified'specific
discarded materials in certain recycling
processes and uses, the court'could not
have intended discard to niean'final
disposition in a RCRA disposal unit.
RCRA's definition of the term.
"disposal" includes a broader range of
activities, with the potential for
environmental releases than final
commitment to RCRA disposal units.
RCRA section 1004(3). Moreover. RCRA.
emphasizes the Agency's duty to
regulate solid wastes involved in .
recycling activities by requiring the
Agency to control the burning of
hazardous wastes, the recycling of used
oil, the use of waste as dust
suppressants, the recycling and reuse of
wastes by small quantity generators, -
and generally, any recycling involving
placement of hazardous waste on the
land. Id. at section 3004(g), 3014, 3004(1),
3001(d). and H. Rept. No. 198,98th Cong.
2d Sess.'46.' Equating discard with final
disposition in an RCRA disposal unit
would render these specific
congressional directives meaningless.2
'The estimated volume of such hazardous wastes
underscores the importance of distinguishing
between discard and final disposition in a RCRA
disposal unit. For example. EPA has estimated that
over 2.5 million tons of used oil are recycled
annually of wiiich virtually none was previously
committed for final disposal. (A few Superfund
remedial actions resulted in small volumes of
" previously disposed used oil being recycled.) The
Agency has also estimated that 440 million gallons
of spent solvents are reclaimed annually {52 FR at
3750 (February 5.1987)) none of which, to the
Agency's knowledge, was previously thrown away
in RCRA disposal units. An estimated one million
tons of hazardous secondary material residues are .
burned annually or incorporated into fuels. 52 FR.
17,023 (May 6,1987). EPA is unaware that any 01
this material was previously committed for final
disposal in RCRA disposal units. In'addition, the
Fertilizer Institute Indicated in public comments to
the Agency's 1985 rulemaking on recycling that its
members use upwards of 41.000 tons of byproducts
and sludges as ingredients in fertilizers annually,
many of which are hazardous wastes and none of
which are first landfilled or otherwise committed for
final disposition in RCRA disposal units.. ,.
• * More specifically, the statute and its legislative
history mandate regulation of secondary materials
not first committed for final disposal: Section
3004(q) commands explicitly that the Agency
regulate burning.of commercial chemical products
which are not themselves fuels and which are not
previously used, much less'used and committed for
final disposition. Section 3014(c) requires-EPA to
create an elaborate regulatory structure to prevent
used oil which is a hazardous waste from being
thrown-away and to regulate recycled used oil.
including in-house generator recycling. See section •
3014(c) (B) (i) (II) ("recycles'such used oil at one or
more facilities of the generator * * *'"). Section
3004(h) (2) indicates that the Agency may establish
a different effective date for a prohibition from land
disposal of a hazardous waste on the date when
alternative protective recovery technology is
available. This land ban applies to hazardous
wastes not yet committed to final disposition in
RCRA'disposal units.
.The legislative history to the waste as fuel
provisions (section 3004 (q)) also states Congress
intended to-close "amajor deficiency in the present •
Subtitle C regulations" which allows-"10-to 20 .
million tons of ' • • hazardous waste" to be burned
annually. S. Rep. No. 284 at 36: H.R. Rep.' No. 198 at .
39 (using the figure:10 to 15 million 'tons): These '
directives/volume estimates, and enunciationa of
determination to close off regulatory loopholes- .
would have no meaning if applied solely to the •
Continued
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' Federal Register / Vol. 53, No/ 5 / Friday ^ January 8. 1988 / Proposed Rules
Accordingly, EPA does not read the
opinion to-indicate that secondary
materials must first be committed for
final disposition in RCRA disposal units
before they can-be solid wastes. Thus;
aside from the types oficlosed processes
discussed below, recycling activities
involving the discarding of secondary
materials may remain within the
Agency's RCRA Subtitle C jurisdiction.
2. On-5//e Recycling Activities.
Involving Solid Wastes: '["he court's
opinion does not materially distinguish
off-site from on-site recycling. As noted
previously, on-site recycling activities
'may involve solid wastes; under certain
circumstances. The court found that
materials remaining in a continuous on-
going manufacturing operation are not
discarded. The mere fact that recycling
occurs on-site, however, or for that
matter is conducted by the initial
generator of & secondary material, does-
not necessarily mean that the activity is
part of one on-going manufacturing
operation. On-site or single generator , •
recycling activities can continue to be
characterized by elements of discard
and so remain within the Agency's
Subtitle C jurisdiction. The following
examples- make- this point
a. A degreasing operation disposes of
a spent degreaaing solvent, which is
removed from the production-process.
(i.e., not hi a closed process)^ taken to an
on-site. distillation uruX and regenerated.
Here, not only is the spent solvent being
disposed from the operation in which it
is generated, but it is not part of a
manufacturing process at all.There is no
continued extraction of material values
from a raw material, but rather it is a
useless waste until restored through
treatment to a usable condition.
b. A generator generates an ignitable
byproduct which it blends with fuel oil
and disposes of through burning hi an
on-site boiler. This activity does not
involve materials passing through a
continuous on-going manufacturing •
process. Rather, a byproduct of a waste
generating process is-beiug; disposed of
by burning.
a A generator generates a Hazardous.
wastewater treatment sludge which is-
eventually returned to the
manufacturing process- fo r metal
recovery. The sludge is disposed of
through storage-in a surface.
impoundment prior to its return-. The
storage hi a surface impoundment-is .
disposal of solid waste because-it
involves placement on land with
potential entry into the aivironment
Processes where such-materials are
nearly notr-exltten* practice of boring hazardous-
secondary material) ttnt are committed to fins!"
dlipontfon in RCRA dispofaLuniU.
generated and stored in underwater
ponds or lagoons are not part, of
continuous on-going manufacturing
processes and may involve disposal.-
Such sludges also must normally be • : ••
reclaimed before they are reusable, a
further indication of lack of process
continuity. Impoundments, moreover,
are not process devices, but rather
function as wastewater treatment units.
The court's decision allowing for
regulation of on-site recycling processes
that involve discarding accords with the
statute and its legislative history which
likewise make dear that Congress.
contemplated and directly commanded
the Agency- to regulate many on-site
recycling activities- For instance, the
legislative history with respect to
.burning hazardous waste-derived fuels
indicates that Congress intended that
"the Administrator, in controlling the
burning of waste and the emissions from
facilities that burn such wastes, may not
make distinctions solely on the basis of
whether the facility is on the site of the
generator or is an-off-site facility." S.
Rep. No. 284 at 38; the same language is
in H.R. Rep. No. 198 at 41-42. The text of
the statute itself refers.pn the- context of
authorizing certain exemptions for
facilities burning de minimis quantities
of hazardous waste fuels) to regulation
of "wastes * * * burned at the same
facility at which such wastes are
generated." RCRA section 3004(q](2)(B).
The following provisions likewise
indicate specifically that on-site
recycling activities can involve
hazardous wastes: section 3004(r)(2) (A)
and (C) (generation and reinsertion on-
site of oil-bearing wastes into the
petroleum refining process at petroleum
refineries classified as SIC 2911: a
facility that refines crude oil); section
3014{c)(2}(B]{i)(II) (controlling used oil
recycling activities at a used oil
generator's facility}; section
3004(q){2)(A) (use of oil-bearing wastes
"at petroleum facility at which such.
.wastes were generated"). • .
The Agency-believes these provisions
make clear that there1 is no automatic
on-site/off^it* distinction. The- Agency
notes, however,, that the existence of on-
site recycling, is a relevant element far
assessing whether a recycling process is
really an on-going manufacturing-
activity or otherwise involves discarded
materials-. The Agency accordingly does-
not propose incorporating any such.,
automatic distinction in its rules,
3* Ptecious-Metal Reclamation. Under
the Agency's rules, secondary-materials.
being reclaimed for then* precious metal
content are-classified as solid wastes in
the same way as other secondary
materials being reciaintedr spent
materials so reclaimed are always
wastes, and sludges and byproducts so-
reclaimed must be specifically
designated as such (by listing] to be
wastes. The-court's, ruling does not
change this classification system. The
opinion did not refer specifically to
precious metal reclamation, and-normal
precious metal recycling operations are
not characterized'by continuous on-
going manufacturing processes, but
rather involve elements of discard in the
sense that materials are disposed of
from an industrial process. These
. operations involve an independent
reclaimer procuring waste materials •
generated by another person from
another industry and recovering metal
values therefrom. An example is
recovery of precious metals from
' electroplating wastes. This is not one
continuous process, but two unrelated
ones* with the electroplate? disposing of
his wastes. This type of operation is •
analogous to used oil recycling
operations described in n.14 of the
court's opinion. Specifically, the court
noted that when a generator sends used
oil to be recycled at a different facility,.
the generator is discarding the oil by
sending it to be recycled by a different
party. The generator was disposing of
the material by giving up control over it.
Similarly, when precious metals in
wastes-from one industry are eventually
recovered by another industry's process,
the generator is also discarding these
materials.
Accordingly, the Agency does not
propose to amend the existing rules
relating to classification of secondary
materials destined for precious metal
reclamation..The Agency notes that
precious metals reclamation is subject to
a set of special,, reduced standards at 40
CFR Part 266, Sufapart F. Further, EPA
has received a petition from the
International Precious Metals Institute-
(IPMI) requesting- an exemption from the
manifest requirements.. EPA requests
comment on this petition from any
interested party.
4; Scope of Closed-Loop Exclusion.
The Agency's existing rules provide that
hazardous secondary materials that are
reclaimed in closed-loop systems are
.excluded from being solid wastes. (See
40 CFR 281.2(e)(l)(iii).) A.closed-loop
system is one where secondary
materials are returned for reclamation
(i.e., foe contained material values to be
recovered from them} as feestock to the
primary process which generated them.
without first being reclaimed. Secondary
materials reclaimed in tanks and then
returned CD the original process as
feedstock are also excluded, when the
system is connected entirely by pipe.
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Federal Register /Vol. 53. No.. 5 / Friday.. January 8. 1988 / Proposed Rules
525
(See 40 CFR 261.4(a)(8).) The court's
opinion does not affect these provisions..
Accordingly the Agency proposes no
changes to this Section.
III. Amendments to. Conform to the
Court Decision
A. Amendments Concerning Petroleum
Refining
1. U'se of Oil-Bearing Residuals from
Petroleum Refining in the Refining
Process. The court held that the Agency
had exceeded its authority in regulating
on-going fuel production activities in the
petroleum refining industry. These
activities involve situations where crude
oil is refined, and oil-bearing residues
from that refining process are returned '
for further refining as part of. one
continuous and on-going process. The
oil-bearing residues are sometimes
reinserted directly into the petroleum
refining process, but more often are
placed in a centralized recovery system
("slop oil system") where oil is
recovered and returned to the petroleum
refining process. Materials so recycled,
the court held, are not discarded and so
cannot be solid wastes.
In light of this holding,.EPA is ,
proposing to exclude from jurisdiction
petroleum refining residues that are
recycled in this manner. The salient
elements of the exclusion are:
• The oil-bearing residue must be
generated and reir -?rted ohsite;
• It must be inserted into the
petroleum refining process; and
• The process must be on-going and
continuous, and not be characterized by
any elements of discard.
We believe these conditions
accurately reflect the Court's holding for
the following reasons. •
a. On-site. The Agency is proposing to
limit this- amendment to situations
where the oil-bearing residue is •
generated and reinserted onsite because
interpreting the court's holding as
excluding from the solid waste
definition all hazardous oil-bearing
secondary materials brought to a
petroleum refinery from off-site would
have the unintended and improper effect
of rendering a statutory provision,
RCRA section 3004(r)(3), without
meaning. This provision exempts from
the hazardous waste fuel warning label
requirement "fuels produced from oily
materials resulting.from normal
petroleum refining, production, and
transportation practices" where the oily
materials are reintroduced into the
petroleum refining process under
enumerated circumstances. This
provision differs from section 3004(r)(2)
as it applies to oily materials brought to
a refinery from off-site. 50 FR 28715 (July
15,1985). Since Congress refers, in
section,3004(r)(l), to such materials as
potential "hazardous wastes identified
or listed under section 3001" (i.e., a
subset of solid waste), the Agency must
include such materials within the solid
waste definition. The Agency also notes
this reading does not suffer from the
problem of circularity that concerned
the court in that the provision applies to
"oily materials", not to wastes. Applying
' the court's reasoning, these materials
are not part of an on-going, continuous
petroleum manufacturing-process, but
rather have been disposed of, 824 F.2d at
n.14. These materials are, therefore, -.
solid wastes. -. • '" '••'. •.
Finally, with respect to section
3004(r)(3), under the Agency's current
rules, solid wastes that are indigenous
to a manufacturing process ceuse to be
solid wastes when they are returned to
that process for recycling. 50 FR 600
(January 4,1985); 50 FR 49167 (Nov. 29,
1985); 52 FR 16989-99 (May 6,1987). This
would also be the case for the oil-
bearing materials mentioned in section
3004(r)(3). Consequently, when such
materials are reinserted into the
petroleum refining process, they would
cease to be solid wastes.
b. Reinsertion Must be Into a Refining
Process. The court directed the Agency
to exclude from the solid waste
definition those secondary materials
passing through a continuous petroleum
refining process. Petroleum refining
processes are those primarily producing
gasoline, kerosene, lubricants and fuel
oils from crude petroleum through
distillation of crude oil or intermediates
(gas oils, naptha, etc.). cracking and
other processes (this description
paraphrases the SIC 2911 definition).
Accordingly; the Agency proposes to •
exclude secondary materials reinserted
into these ongoing refining processes.
• However, use of oil-bearing .hazardous
residues in a non-refining process does
not fit the court's description of an on-
going manufacturing process. Rather,
such operations resemble the activities
involving used oil mentioned in footnote
14 of the opinion, which the court
indicated were examples of discarding.
There, used oils were taken, reclaimed
(i.e., some contaminants were removed)
in a process different than the one that
generated them, and used as fuels.
Similarly, when oil-bearing hazardous
residues are taken to a non-refining
process—for example a process that
uses simple settling to remove bulk
solids and water—the process is exactly
analogous to the one involving used oil
except that a different type of oil-
bearing material is involved.
c. There Must Be No Element of
Discard Involved. The Agency also
proposes that to be excluded from
jurisdiction, hazardous secondary •
materials from petroleum-refining must
be returned to the refining process in a
way that involves no element of discard
as the court construed the term. For
example, secondary materials stored in
a surface impoundment would be within
the solid waste definition because they
have been disposed of. By placing the
material on the land' in a way that
contaminants can be released into the.
environment, the practice meets the
definitions of disposal in RCRA sections
1004 and 3004(k). The court also
• characterized such recycling practices
involving placement on the land
(whether for storage or end disposition)
as disposal and indicated that the
materials so managed were solid
wastes. 824 F.2d at n.20. And as
discussed earlier, recycling activities
may involve disposal through storage.
Thus, if secondary materials are stored
underwater in lagoons or ponds, such
materials have been disposed of and are
RCRA solid wastes. Indeed, the
impoundments themselves are
wastewater treatment units, not steps, in
a manufacturing process. Under today's
proposal, petroleum refining oil-bearing
hazardous secondary materials are solid
wastes if they are disposed of through
storage before recycling. Units in which
the materials are stored consequently -
would continue to be regulated units.
• However, as stated earlier, when such
materials are removed from such units
and reinserted into the petroleum
refining process, they would cease to be
solid wastes.
2. Petroleum Coke Produced With Oil-
Bearing Hazardous Secondary
Materials from Refining. The Agency
proposes to exclude from the solid
waste definition oil-bearing secondary
materials from petroleum refining used
to produce petroleum coke at a refinery,
provided there is no element of discard
involved in the recycling practice as
explained above. This activity is also
characterized by on-going utilization of
hydrocarbons contained in the original
crude oil and so comes' within the scope
of the court's opinion.
Such secondary materials are not
excluded if they are disposed of through
storage preceding reintroduction to the
coking process. The Agency also notes
that failure to exclude secondary
materials so disposed of would render
RCRA section 3004(q)(2)(A)
meaningless. This provision applies only
when petroleum refinery wastes are
converted into coke at the facility at
which they are generated, i.e., a
petroleum refinery. If the Agency were
to exclude from jurisdiction secondary
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Federal Register / VoL 53.. No. 5 / Friday. January 8. 1988 / Proposed Rules.
materials disposed: of through storage.
there would be no materials to which
this provision, would apply. In addition,
the legislative history to. this provision
indicates special concern for. and
directs regulation of petroleum refining
wastes stored in impoundments before
being used in the caking process. S. Rep.
No. 284 at 39. '
3. Changes in Regulations. The.
Agency is thus proposing two regulatory-
exclusions from the solid waste
definition. The first exclusion fs for
secondary materials which are
generated on-site and reinserted, into-the-
petroleum refming.process, (which:
language shouldtbe understood to •
include initial reinsertion to the. slop oil
system followed by reinsertion into-
actual refining processes) at
conventional petroleum refineries
provided the materials are not-disposed.
of through storage in a manner involving ,
placement on the land before being so
recycled (or are not disposed by being
accumulated speculative^ before
eventually being recycled). As noted
previously, such storage is disposal [a
type of discard], and the impoundment
is a regulated unit. Indigenous oil-
bearing sludges removed from the *
Impoundment and reinserted in the
process would, however, cease being.
solid wastes upon-reinsertfon.
The second proposed regulatory,
change involves oil-bearing hazardous
secondary materials from petroleum ,
refining which are used to produce
petroleum coke at the refinery
generating the material. This exclusion
likewise would not apply when disposal"
through storage (involving placement on
the land), precedes recycling or when
the secondary materials are
accumulated speculatively.
B. Proposed Changes in Scope of
Reclamation Provisions.
As previously discusned,. the Agency's
existing rules indicate that hazardous
spent materials being reclaimed are
always solid wastes. But sludges and .
byproduct* are only solid wastes if they
are specifically and affirmatively
designated as solid and hazardous
wastes through the listing process. 40
CFR 261.2(c)(3). The factors used by
EPA to justify listing a sludge or
byproduct destined for reclamation 39
solid-wastes, are currently not set forth
in the rule, but rather i« the-explanatory
preamble.These factors; are:
How frequently (he material is recycled on an
industry-wide basis, whether the material is
replacing a raw material end the degree to
which it i&sirailar in composition to the raw
material, tho relation of the recovery practice
to the principal activity of the facility, and
whether the secondary material is-managed
in a way designed to. minimize loss—all of
•which show that the material is handled as a
commodity. (See SO'FR at 641: lanaury, 4*
1985.)
Consideration of the factors is for the
purpose of determining whether the
normal means of reclaiming the-sludge
or byproduct resembles a continuous,
on-going production process. Id.
The rules for spent materials, in the
Agency's view, are for the most part
unaffected by the opinion because spent
materials are no longer useful, and so,
by definition, are not involved in a
continoua production process and are .
disposed of.These discarded wastes
must be treated before they can be put
back to use. (section III. C. o£ this - -. -
preamble- describes, one exception to .
this general principle.)
With regard to sludges, and
byproducts, the Agency's existing rules
for reclaimed sludges and byproducts ••
already, resemble the standard set out in
the. court's opinion. Yet to make the
rules more-clearly consistent with the •
court's opinion, the Agency proposes to
amend the rules to indicate that the
object in designating sludges and
byproducts-as solid wastes via listing is
to distinguish true on-going-
"manufacturing processes from
discontinoua.waste management
activities characterized by elements of
discard.
To da so, we are proposing .to make
two changes ia the existing, rules. Th
proposal makes explicit in the regulation
itself the factors used to designate ,
reclaimed sludges and byproducts as
solid wastes, and the proposal indicates
that the ultimate standard in making a
decision is whether reclamation of the
material is part of a eontinous on-going
manufacturing process. The factors the
Agency would consider in making this
determination are the same as those
described in the preamble to the final
regulation.. '
Since the Agency fully explained its
rationale for this choice of factors when
it promulgated, the final rule in 198%
only a.short additional explanation is
required here. These factors all bear on
a regulatory determination of whether a
particular material is discarded. The fact
that the sludge or byproduct at issue is
typically, disposed of rather than
recycled hears on whether a material is
discarded, or intended for discard. The
second factor—whether the. material is
replacing-a raw material—indicates that
the material would be utilized further in
a primary process, an indication of
process continuity.
The third factor, the relation of the
recovery practice to the principal
activity of the facility, is also relevant.
Where sludges and byproducts are
returned not to the- principal
manufacturing process at a facility, but
rather to an ancillary recovery step,
there is a potential element of discard
about the activity. The material is no
longer suitable for continued use in the
manufacturing process, but must set
aside for some other purpose. As
previously discussed, an example is
cryolite recovery from spent potliners in
the primary aluminum industry, an
activity similar to the recycling activities
described as involving waste
management in footnote 14 of the court's
opinion in that a material taken from a
process is no longer used in the process*
and.so is discarded when sent to a
different recovery operation. (Other
factors, perhaps more important, also-
indicate that this activity could, involve
a solid waste. That is, spent potliners
contain high concentrations of cyanide
which is not recycled—indicating a.
waste treatment objective—and
potliners are typically piled in the open
before being recycled.)
The final factor involves the means of
handling sludges and byproducts before
they are to be reclaimed. If these
materials are stored securely sa that
hazardous constitutents are not likely to
be released to land, air or water, their
status as valuable, in-process materials
is confirmedln an objective.way. On the
other hand, if the manner if storage
• meets the RCRA definition of disposal
i.e., placed on the land as in an
impoundment or an unenclosed pile—
the activity involves discard (see RCRA
section 3004{k)}. Consequently, this
factor is certainly relevant in
determining whether sludges and by-
• products are wastes when reclaimed. As
noted earlier, the opinion supports this
position. 824 F.2d at n,2Q.
In addition to the factors discussed
above relating to whether reclamation
occurs as part of a continuous
manufacturing process, the proposed
' rule also contains an important
consideration to be used to distinguish
reclamation; activities from waste
treatment This is the secondary
material's similarity to the raw material
it is replacing,, both in terms of material
value to be recovered and concentration
of toxic constituents* For example, an
emission control dust from primary lead
production sent ta a- different lead
smelter but containing as much lead,
and the same toxic constituents, as ore
concentrate, is much more l\kely to be
involved in a single., continuous
production process than a sludge from
an unrelated industry (for example,
electroplating) which contains less
recoverable metal than the virgin ore
concentrate and (more importantly)
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Federal Register / V6L 53. 'No. '5 / Friday. January 8, 1988 / Proposed Rules 527
significant concentrations of toxic
constituents not normally found in the
ore concentrate. Most importantly, these
other hazardous constituents are
normally not recovered, and .so are
typically discarded by'the process.
These materials are not only discarded.
. but their presence often indicates that
the recycling activity is largely a waste
treatment process.
Finally, there may be situations where
the Agency has designated a sludge or
byproduct as a solid waste via listing
but the material at a particular facility is
acntally being reclaimed.in a manner
resembling on-going production without
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528
Federal Register / Vol. 53. No. 5 / Friday,- January .8. 1988 /Proposed Rules
burning or land placement activities
themselves disposal, but the statute *
specifically addresses oil-site waste
burning activities and commands their
regulation. See section 3004(q)(2)(B)rsee
also sections 3004(q)(2)(A), 3004(r)(2). '
and 3014(2)(B)(i)(II). Similarly, if the
materials are being incinerated, they are
not being recycled at all and so would
be disposed of via destruction. The
proposed rule consequently also
indicates that the exclusion does not
apply when hazardous secondary
materials are piped to.incinerators.
IV. State Authority . "
A. Applicability 'of Rules in Authorized
States . ' , ' • • -
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
Part 271 for the standards and
requirements for authorization.)
Following authorization, EPA retains
enforcement authority under sections
3008,7003 and 3013 of RCRA. although
authorized States have primary
enforcement responsibility.
Prior to the Hazardous! and Solid
Waste Amendments of 1984 ("HSWA").
a State with final authorization
administered its hazardous waste
program entirely 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 in the State which 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 section 3006(g) of
RCRA, 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 nonauthorized States. EPA is
directed to carry out those requirements
and prohibitions in authorized States,
including the issuance of permits, until
the State Is granted authorization to do
so. While States must still adopt
HSWArrelated provisions as State law
to retain final authorization, the HSWA
applies in authorized States in the
interim.
Today's proposed amendments are
not imposed pursuant to HSWA. The
rule changes, therefore, will become
effective immediately only in those
States without interim or final
authorization, not in authorized States.
The effect of the rule changes on State
authorization is discussed next.
B. Effect on State Authorizations
Today's rule, if adopted as final, will
not be effective in authorized States •
since the requirements are not being •-
imposed pursuant to HSWA. Thus, the
requirements will be applicable only in
those States that do not have interim or
final authorization. In authorized States,
the requirements will not be applicable .
until the State revises its program to
adopt equivalent requirements under
State laws. • ' ' ' '.'•-.'
40 CFR 271.21(e)(2) requires that • ''.
States that have final authorization must
modify their programs to reflect Federal
program changes and must subsequently
submit the modifications to EPA for
approval. However, it should be noted
that authorized States are only required
to modify their programs when EPA
promulgates Federal standards that are
more stringent or broader in scope than
the existing Federal standards. Section
3009 of RCRA allows States to impose
standards more stringent than those in
the Federal program. For those Federal,
program changes that are less stringent
or reduce-the scope of the Federal
program, States are not required to
modify their programs. See 40 CFR
271.1(k); The amendments proposed
today reduce the scope of the existing •
Federal requirements. Those provisions
appear in 40 CFR 261.2 and 261.4.
Therefore, authorized States will not be
required to modify their programs to
adopt requirements equivalent or
substantially equivalent to the
provisions proposed today.
However, as noted above, States are
required by § 271.21 (51FR 33722) to
revise their programs to reflect Federal
program changes. A number of States
qualified for final authorization prior to
being required to adopt the redefinition
of solid waste rulemaking of January 4,
1985 (50 FR 614). Since the January 4.
1985 rule is more stringent than the rule
under which such States were
authorized, such States were required to
revise their programs in accordance
with § 271.21. Today's proposed
changes, if promulgated, will not
preclude EPA'a ability to authorize
States which.h'ave subsequently
adopted the January 4 rule since it
would reduce the scope of the Federal
requirements. However, certain aspects
of the State's regulation will be broader
in scope than the Federal program and
therefore not part of the authorized
State program. This means .that ygbjjg^
they are enforceable under State law,
they are not subject to Federal
enforcement.
40 CFR 271.21(e) (51 FR 33722,
September 22,1986) provides for
extensions of time at the discretion of
the Regional Administrator for States to
adopt changes to their regulations
- and/or statutes to conform to change in
the Federal program. The question
arises, however, of whether States
which have not yet adopted the January
4 rule must adhere to EPA's published
compliance schedules for such adoption.
Where States have delayed rulemaking
pending today's proposal clarifying the,
impact of the court's decision, the
Regional Administrators may be flexible
in-further extending the modification
deadlines. The Regional Administrators
should take into account the States'
regulatory and/or legislative procedures
in deciding what further extensions may .
be warranted. However, any States
which have delayed rulemaking should
now proceed to expeditiously adopt the
January 4,1985, rules.as amended by
today's notice, when rule changes
resulting from today's proposal are
finalized.
V. Executive Order No. 12291—
Regulatory Impacts
Under Executive Order No. 12291,
EPA must determine whether a
regulation is "major" and thus subject to
the requirement to prepare a regulatory
impact analysis. A rule is major if it will:
(I) Hv :e an effect on the economy of
$100 million or more; (2) significantly
increase costs or prices to industry; or
(3) diminish the ability of the U.S.-based
companies to compete in domestic or
export markets. The Administrator has
determined that today's proposed
amendments do not constitute a major
rule because the amendments will
decrease the scope of the Subtitle C
regulatory program. This proposed rule
has been submitted to OMB for review
under E.O. No. 12291.
VI. Paperwork Reduction Act
Under the Paperwork Reduction Act,
44 U.S.C. 3501 et. seq., EPA must
consider the paperwork burden imposed
by any information collection request in
a proposed or final fule. This rule will
not impose any new information
collection requirements.
VII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5
U.S.C. 601 et. seq., EPA must prepare a
regulatory flexibility analysis for all
proposed rules unless the Administrator
certifies that the rule will not have a
significant impact on a substantial
number of small entities. Accordingly, I
hereby certify, pursuant to 5 U.S.C.
G01(b), that this rule will not have a
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Federal Register / Vol. 53. No. 5 / Friday. January 8, 1988 ./ Proposed Rules
significant impact on a substantial
number of small entities because today's
proposed amendments reduce the scope
of the^Subtitle C regulatory program.
VIII. Supporting Documents
The documents used in developing
this notice are available in the EPA
RCRA Docket at Room LG-100,.401 M
Street SW., Washington, DC 20460.
Persons who wish to view docket
materials must make an appointment by
calling (202) 475-9327. The docket cede -
number is F-87-SWRP-FEFFE.
last of Subjects in 40 CFR Part 261
Hazardous waste. Recycling. .
Dated: December 31,1987. -
Lee M. Thomas
Adm'm'stratoe.
For the reasons set out in the
preamble, it is proposed to amend Title
40 of the Code of Federal Regulations as
follows:
PART 261—IDENTIFICATION AND
LIST OF HAZARDOUS WASTE
1. The authority citation for Part 261
continues to read a& follows:
Authority: 42 U-ffcC. 9905,6312(3), 6823, and
6922. - ...
2. Section 26142 is amended by
revising paragraph tcK3} to read as
follows: • . . >
§251.2 Definition of sofid waste.
* • * * • '
(c) * * • '
(3) Reclaimed. (\) Materials noted
with a "*" in column 3 of Table 1 are '
solid wastes when reclaimed. Sludges
and byproducts will be designated by :
EPA as solid wastes by listing in
§ 261.31 or 5 281.32 of this.part based on
consideration of the following factors,
no one of which shall be determinative:
(A) Whether the sludge or byproduct,
on an industry-wide basis, is typically
recycled rather than disposed of;
(B) Whether the sludge iar byproduct
is replacing a.raw material when it»
reclaimed (i.e^ whether it is reclaimed in
a primary rather than a secondary
process);
(C) Whether the reclamation practice
is closely related -to the principal
activity of the reclamation facility;
(D) Whether tise sludge or byproduct
is stored before being reclaimed in a
manner designed to minimize loss -(for
example, by utilizing storage practices
that •do, not involve placement on the
land); and
(E) Other appropriate factors.
(ii) The ultimate object ia applying
these factors is to determine -whether
the sludges .or'byproducts are being
utilized in on-going, continuous
manufacturing processes. However,
when the sludges or byproducts contain
significant concentrations of toxic
constituents 'not normally found in the
- raw materials they are replacing, which
toxic constituents are not reclaimed by
the process, the process may be waste
treatment rather than reclamation. In
addition, if a byproduct or sludge
actually has been designated as a sofid
waste pursuant to this provision, an
individual generator may .nevertheless '
demonstrate that his sludge or-'
byproduct is being reclaimed In an on-
going continuous manufacturing process
based on the factors used by the
Agency. This demonstration is self-
implementing; but under paragraph [f) of
this section, the burden of proof is on
the generator making the demonstration.
The Agency will not accept
demonstrations where there is storage
involving placement on the land.
* • •* * *
2. Section 261.4 is amended by
revising paragraph (a)(8) and by adding
paragraphs (a)(9) and (a)(10) to read as
follows:
$261.4 Exclusions.
* * * * . •
(a)* V '
. (8) Secondary materials that are
reclaimed'and returned to the'original
process or processes in which they were
• generated provided:
(f) Only tank storage is involved, and
the entire process through completion of
" reclamation is closed by being entirely
connected with pipes or other
comparable enclosed means of
conveyance; ' .
(ii) Reclamation does hot also involve
controlled flame combustion for energy
recovery (such as could occur in boilers
or industrial furnaces) or incineration (by
burning in an incinerator);
(iiij The secondary materials are
never accumulated in such tanks for
over twelve months without being
reclaimed; and •
(iv) The reclaimed material is not-used"
to produce a fuel, or used to produce
products that are used in a manner
constituting disposal
(9) Oil-bearing hazardous secondary
materials from petroleum refining which
are converted into petrolemn coke at the
same facility at which such materials
are generated, provided the materials
are not stored in a manner 'rnvwlvrng
plaeeruent on the land, or accumulated
speculative*?, before being-so recycled.
(However, coke produced from such
recycling is not a solid waste.')
(10) Oil-bearing hazardous secondary
materials from petroleum refining that
are generated onstte and .reinserted into
the petroleum refining process along
with normal process, streams, provided •
that the materials are not stored in a
manner involving placement on the land,
or accumulated speculatively, before
being.so recycled. (Fuels produced from
such recycling activities are not solid
wastes.)
*••.**•
[FR Doc. 88-310 Filed 1-7-88; 8:45 am}
BILLING CODE 6560-50-M
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 74 and 78
[MM Docket No. 86-405; FCC 87-390]
Broadcast Services; Flexible
Operational and Licensing Procedures
for the Broadcast Auxiliary Services
and the Cable Television Relay Service
AGENCY: Federal Communications
Commission.
ACTION: Proposed rule.
SUMMARY: This action terminates a .
proceeding that was initiated by a "
Notice of Inquiry ffJOr\, FCC 86-453,
released November 4,1986 (51 FR 40990,
November 12,1986} to gather
information related to frequency
coordination and the feasibility of
relaxing licensing for portable and
mobile stations in the broadcast
auxiliary and the cable television relay
services. The record lacks specific
proposals and suggestions that could
provide guidance to implement required
participation in local frequency
coordination, a necessary prerequisite to
relaxing present licensing procedures.
ADDRESS: Federal Communications
Commission, Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT:
Hank VanDeursen, Mass Media Bureau,
(202) 632-9660.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission's
Memorandum Opinion and Order in MM
Docket No. 86-405, adopted December
15,1987, and released December 30.
1987.
This full text of this Commission
decision is available for inspection and
copying during normal business hours in
the FCC Dockets Branch |JRoom 230),
1919 M Street NW., Washington, DC
20554. The complete text of this decision
may also be purchased from the
Commission's copy 'contractor,
Internafional'Transcription Services, • '
(202) 857-3800V 2100 M Street NW.;.Suite
140. Washrngtorr, DC 20037, .
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530
Federal Register / Vol- 53. No. 5 / Friday. January 8. 1988 / Proposed Rules
Summary of Memorandum Opinion and
Order
1. The NOI suggested that broadcast
and cable entities might be granted
blanket authorization to .operate
portable and mobile stations on any •
frequencies in bands that they are
permitted to use rather than being
licensed for specific frequencies. This
blanket license concept is predicated
and critically dependent upon the
existence of highly developed local
frequency coordination and a minimum
of Commission involvement The
proceeding, therefore, focuses on
frequency coordination issues.
2. The comments received raised
concerns about issues such as uniform
quality of coordination service,,limited ,
time and resources available to
coordinators, and the authority and
selection of coordinators. Although most
commenters urged required local
coordination by all licensees, the •
concerns raised in the NOI were not
addressed and no guidance was offered
to aid in formulating a proposal in this
a.*ea. However, comments indicate that
there is an active effort by an industry-
\% ide group, the National Frequency
Coordinating Council, which is making
progress toward formulating mutually
beneficial solutions to frequency
coordination problems. . ,
3. Therefore, the Commission will not
now propose rule changes to mandate .
aspects of the cc,.V!aation program.
The industry is invited to develop a
viable, comprehensive plan that
resolves the concerns uncovered in this
proceeding and to submit its proposal in
an appropriate petition for rulemaking.
This will afford industry the opportunity
to set its own priorities and timetable in
this matter.
H. Walker Feasterm.
Acting Secretary, Federal Communications
Commissions
[PR Doc. 88-341 Filed 1-7-B8; 8:45 am]
MUJMQ COOC S712-O1-M
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 226
(Dock«t No. 70639-7206]
Critical Habitat for Hawaiian Monk
Seals; Endangered Spucles Act
AGENCY: National Marine Fisheries
Service (NMFS), NOAA, Commerce.
ACTION: Notice of proposed nilemaking.
SUMMAltv: NMFS proposes to extend
critical habitat for Hawaiian monk seals
beyond 10 fathoms in areas designated
as critical on April 30.1986. NMFS
believes the designation of critical
habitat to 20 fathoms would benefit the
species because it will include.
'additional areas that may require
special management consideration or
protection. Also, NMFS proposes to add
Maro Reef to the areas designated as
critical in the Northwestern Hawaiian
Islands (NWHI).
DATE: Comments should be received by
February 8,1988.
ADDRESS: Dr. Nancy Foster, Director,
Office of Protected Resources and .
Habitat Programs; NMFS, Washington,
DC 20235.
FOR FURTHER INFORMATION CONTACT:
James H. Lecky, Southwest Region,
NMFS, 300 South Ferry Street, Terminal
Island, CA 90731, 213-548-2518; or
Margaret Lorehz, Protected Species
Management Division, NMFS,
Washington, DC 20235, 202-673-5349.
Copies of the final environmental impact
statement are also available from these
offices.
SUPPLEMENTARY INFORMATION:
Background '
Since the final rule designating critical
. habitat out to 10 fathoms was issued
(April 30,1986, 51 FR 16047), NMFS has
continued to examine the basis for its
decision. Of particular concern is
whether areas beyond 10 fathoms may
be in need of special management
considerations or protection either now
or in the reasonably forseeable future.
To provide the agency with the best
available information on this issue and
to assist it in determining whether a
reconsideration of the current
designation is appropriate, NMFS
solicited public comments on this
matter.
"Comments were invited on whether
the areas.between 10-to 20 fathoms -
around the islands that are included in
the current designation of critical
habitat "may require special
management considerations or
protection." The phrase "special
management considerations or
protection" has been defined by
regulation at 50 CFR 424.02(j) as "any
methods or procedures useful, in
protecting physical and biological
features of the environment for the
conservation of listed species."
Commenters were asked to address
activities that may occur within the
range of the Hawaiian monk, seal which
would require special management
measures.,Also,, comments were
requested on whether Maro Reef should
be included in any revision to the
designation of critical habitat that may
result from this consideration.
Comments were received from the
State of Hawaii, Marine Mammal
Commission, Greenpeace,' Sierra Club
Legal Defense Fund, American Cetacean
Society, New England aquarium,
Conservation Council for Hawaii,
American Society of Mammalogists,
Humane Society of the U.S. and eight
individuals during the public comment
period on the advance notice of
proposed rulemaking.
All commenters, except the Slate of
Hawaii, favored extending critical
habitat out to 20 fathoms and including
. Maro Reef in the areas designated as
critical; The State believes there is
insufficient evidence to show that
waters from 10 to 20 fathoms deep, or
around Maro Reef, are particularly
critical, and they believe there is no
legal basis for the proposed rulemaking.
The State did not agree with the original
designation of critical habitat in the
NWHI. In this case, the State believes
that NMFS does not have data on what
proportion of their time monk seals
spend hi this range, how much food or
other requirements they derive from it,.
and how the designation of critical • •
habitat out to 20 fathoms would provide
significantly greater protection for the
seals than existing critical habitat.
- The comments submitted by the
Marine Mammal Commission were
representative of the other commenters.
Their recommendations are based on
the conclusion that available data and
information clearly indicate that
essential feeding occurs out to and
beyond the 20 fathom contour. Depth-of-
dive studies, indicating that.monk seals
spend a substantial amount of time
diving and presumafaly.feeding in waters
deeper than 10 fathoms, suggest that
monk seals cannot sustain themselves
exclusively in depths of less than 10
fathoms and that waters deeper than 10
fathoms provide necessary space for
normal behavior. The Commission
believes that areas within and beyond
the 20 fathom isobath need special
management considerations or
protection because of commercial
fishing, marine debris, and increasing
ship traffic associated with fishing
operations, potential offshore mining,
research and management activities and
. other activities. Entanglement-has
occured in active fishing gear and
recently caused the death of one -
Hawaiian monk seal. In the Hawaiian
Island National Wildlife Refuge, the Fish
and Wildlife Service has. identified
provisions in its Master Plan/
Environmental Impact Statement for the
Refuge to prohibit the transit of vessels
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