Tuesday
September 13, 1988
Part II
Environmental
Protection Agency
40 CFR Parts 261 and 302
Hazardous Waste Management System;
Identification and Listing of Hazardous
Waste; and Designation, Reportabie
Quantities, and Notification; Final Rule
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35412
Federal Register / Vol. 53, No 177 / Tuesday. September 13. 1988./ Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 261 and 302
[FRL-3434-2]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; a\nd Designation,
Reportable Quantities, and Notification
AGENCY: Environmental Protection
Agency.
ACTION; Final rule.
SUMMARY: The Environmental Protection
Agency (EPA) is today amending its
regulations under the Resource
Conservation and Recovery Act (RCRA)
by relisting as hazardous certain wastes
generated from metal smelting
operations. These wastes were
previously listed as hazardous; however,
the listings were suspended by the
Agency in response 'to the enactment of
the "Seville Amendment." The Agency
is today removing the suspensions in
direct response to a court order.
Specifically, the Agency is adding six
wastes to the list of hazardous wastes
from specific source:) (40 CFR 281.32).
The Agency is also amending the
regulations promulgated under the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) at 40 CFR Part 302, which
designates these wastes as CERCLA
hazardous substances and establishes
the reportable quantities applicable to
these wastes.
The effect of removing the
suspensions and thereby relisting these
six wastes as hazardous is to subject
them to the hazardous waste regulation
requirements of Parts 262 through 266,
270,271, and 124 of this chapter, and to
the notification requirements of section
3010 of RCRA.
DATES: This final rule is effective March
13,1989.
FOR FURTHER INFORMATION CONTACT:
For further information on this listing
action, contact the RCRA/Superfund
hotline at (800) 424-9346 (toll free) or
David Topping at (202) 382-7737.
ADDRESSES: Copies of materials
relevant to this rule are located hi the
Docket at U.S. EPA, 401M Street, SW.,
Washington. DC 204<30. The docket
number for this rulemaking is F-88-
SWRF-FFFFF. The docket is located in
the sub-basement: the public must make
an appointment in order to review them
by calling (202) 475-9327. The docket is
available for inspection from 9:00 a.m. to
4;00 p.m., Monday through Friday. The
public may copy materials in the docket
at a cost of S0.15 per page.
SUPPLEMENTARY INFORMATION:
L Background
A. History
B. Court Decision
H. Description of and Rationale for Today's
Action
A. 1981 Suspensions are Lifted
B. Primary Copper Smelting and Refining
C. Primary Lead Smelting
D. Primary Zinc Smelting and Refining
E. Primary Aluminum Reduction
F. Ferroalloys
G. Identification of Impact on Regulated
Community
m. Future Action on these Listings
IV. State Authority
A. Applicability of Rules in Authorized
States
B. Effect on State Authorizations
V. CERCLA Designation and Reportable
Quantities
VI. Economic Impact Analysis
A. Scope and Coverage of Economic
Analysis
B. Methodology and Data Gathering
C. Costs of Compliance
D. Economic .Impacts
1. Production Costs and Prices
• 2. Capital Investment and Rates of
Return
3. Plant Closures and Employment Losses
4. Compliance with Executive Order
12291
VII. Regulatory Flexibility Act
Vm. Effective Date
A. Notice and Comment Requirements
' B. Notification
C. Compliance Dates
1. Interim Status in Unauthorized States
2. Interim Status in Authorized States
IX. Paperwork Reduction Act
List of Subjects
I. Background
A. History '
On December 18,1978 (43 FR 58948),
EPA proposed its initial regulations for
hazardous waste management under
Subtitle C of RCRA. These proposed
regulations, among other things,
identified a universe of so-called
"special wastes" that are generated in
large volumes, were thought to pose less
of a hazard than other hazardous
wastes, and were thought to not be
amenable to all of the control techniques
proposed for other types of RCRA
hazardous wastes. EPA identified waste
materials from the "extraction,
beneficiation, and processing of ores
and minerals," i.e., mining waste, as one
such "special waste" under the
proposed regulations.
Then, on May 19,1980, EPA
promulgated the final hazardous waste
management regulations. In
promulgating these regulations, the
Agency did not finalize the "special
waste" category. The Agency's basis for
this was twofold: (1) The extraction
procedure (EP) toxicity and corrosivity
characteristics had been narrowed to
exclude most "special wastes" from
control and (2) the Agency was
expecting to promulgate tailored
standards for land disposal, as needed,
in future regulations. However, at the
same time and shortly thereafter, EPA
listed as hazardous (as an interim finaf
rule) eight wastes that are generated
from primary metal smelters (45 FR
33112, May 19,1980, and 45 FR 47832,
July 16,1980), including the six waste
streams listed by today's notice.
On October 21,1980, Congress
enacted Pub. L 96-482, which included
various amendments to RCRA. Section
8002 was amended to include subsection
(p), which required the Administrator to
study the adverse effects on human
health and the environment, if any, of
waste from the disposal and utilization
of "solid waste from the extraction.
beneficiation, and processing of ores
and minerals, including phosphate rock
and overburden from the mining of
uranium ore," and submit a Report to
Congress on its findings by October 21,
1983. Section 7 of these amendments
(the "Bevill Amendment") amended
section 3001 of RCRA to exclude these
wastes from regulation as hazardous
wastes under Subtitle C of RCRA
pending completion of the studies called
for in sections 8002 (f) and (p).
On November 19,1980, EPA published
an interim final amendment to its
hazardous waste regulations to reflect
the mining waste exclusion. In this
notice, EPA explained that it interpreted
the exclusion to include "solid waste
from the exploration, mining, milling,
smelting, and refining of ores and
minerals" (45 FR 76819). EPA also
indicated that it intended to reconsider
its interpretation of the exclusion in the
future, particularly as it applied to .
smelting and refining wastes. The notice
also indicated that any subsequent
action to narrow the scope of the
exclusion would be through rulemaking.
To be consistent with its
interpretation of the scope of the
exclusion expressed in the November
19,1980 notice, the Agency suspended
the listings for five smelter wastes
which it promulgated as final-final on
November 12,1980 (see 45 FR 76618); in
addition, on January 16,1981, the
Agency suspended the other wastes
which were promulgated as interim final
on July 16,1980. In suspending all of
these listings, the Agency made it clear •
that although these wastes met the
criteria for listing in 40 CFR 261.11, they
appeared to come within the ambit of
the "Bevill" exclusion.
In 1984, several environmental
organizations challenged EPA's failure
to complete the required studies under
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Federal Register / Vol. 53. No 177 / Tuesday. September 13. 1988 / Rules and Regulations 35413
sections 8002 (f) and (p) by the statutory
deadline. Concerned Citizens of
Adamstown v. EPA, Civ. No. 84-3041.
(D.D.C.). As a result, the District Court
ordered EPA to complete the studies and
to take action on a planned proposed
rulemaking reinterpreting the scope of
the mining waste exclusion.
On October 2,1985. under the court
order in Adamstown. EPA proposed to
narrow the scope of the mining waste
exclusion (50 FR 40292). In preparing
this proposed reinterpretation, EPA was
unable to find any accepted standard
definitions, ie., plain meanings, for the
terms of the mining waste exclusion.
particularly the term "processing."
Therefore. EPA next looked to the
legislative history to aid in defining the
intended scope of the mining waste
exclusion. The Agency's review
indicated that the exclusion was
intended to cover the category of wastes
that were designated as "special
wastes" in the proposed hazardous
waste regulations at 43 FR 58946
(December 18,1978). These "special
wastes" included "solid wastes, from the
extraction, beneficiation. and processing
of ores and minerals." As mentioned
earlier. EPA interpreted "special
wastes" to be those that are generated
in large volumes and pose less of a
hazard than other hazardous wastes.
EPA adopted this "high volume, low
hazard" concept as the basis for the
proposed reinterpretation. Specifically,
EPA proposed to reinterpret the
exclusion so that red and brown bauxite
refining muds, phosphogypsum, slag
from phosphorous reduction, and slag
from primary metal smelters would be
the only processing wastes covered by
the mining waste exclusion because
EPA believed these were the only
processing wastes that met the "special
waste" criteria. However, EPA
requested that commenters identify any
other processing wastes that met the
"special waste" criteria and. therefore,
should remain within the mining waste
exclusion.
Under this proposed reinterpretation,
the suspension of the six smelter waste
listings would be removed since they
would no longer be considered "special
wastes". Therefore, the notice proposed
to relist the six smelter wastes.1
Subsequently, on October 9,1986, the
Agency announced that it was
withdrawing its proposed
reinterpretation (51 FR 36233). The
1 The two other waste streams suspended in 1981
(K067 and K068). were not proposed for relisting in
1885 and are not relisted here today. As explained
in 198S, these two waste streams do not meet EPA's
current definition of solid waste (see 50 FR 40296-
97). . .
Agency explained that it was
withdrawing the reinterpretation
because the terms "high volume" and
"low hazard" had not been quantified in
the proposal and. therefore, the Agency
was unable to determine the status of
additional wastes nominated by
commenters as "special wastes" (51 FR
36234). While it did not view the "high
volume, low hazard" standard as
inherently unsound, EPA pointed to
various definitional problems it faced in
determining how to group and classify
these wastes. The Agency concluded
that its proposal had to be withdrawn
because it failed to set out "practically
applicable criteria for distinguishing
processing from non-processing wastes"
and because there was insufficient time
to repropose a rule in light of the
Adamstown deadline. The withdrawal
of the proposed reinterpretation
effectively continued the suspension of
the six smelter waste listings.
Subsequently, two suits were filed
against EPA challenging the Agency's
decision to withdraw its proposed
reinterpretation of the mining waste
exclusion. The cases. Environmental
Defense Fundv. EPA, No. 86-1584 (D.C.
Cir.) ("EOF"] and Hazardous Waste
Treatment Coaneil'V. EPA. No. 86-1691
(D.C. Cir.) were decided on July 29,1988.
B. Court Decision
The U.S. Court of Appeals for the D.C.
Circuit ruled in EDF that EPA's decision
to withdraw the proposed
, reinterpretatioiji and failure to relist the
six smelting and refining wastes was
arbitrary and capricious. The Court
found that EPA's inclusion of all
smelting and refining wastes in the
"Bevill" exclusion for ore processing
wastes was "impermissibly overbroad"
and contrary to Congressional intent
EDFv. EPA. No. 86-1584 (D.C. Cir. July
29,1988), slip op. at 20. While the court
conceded that the statutory term
"processing" is ambiguous, the Court
nonetheless found EPA's interpretation
to be unreasonable in light of "clear"
legislative history that suggested that
Congress had intended the Bevill
Amendment to be limited to those ore
processing wastes which meet EPA's
1978 "special waste" concept, i.e., those
solid wastes which are high volume and
low hazard. Id. at 22, 25-26.
The Court also rejected EPA's
justification for withdrawal of the
proposed reinterpretation. The Court
noted that EPA could have asked the .
district court for additional time to
refine its 1985 proposal By withdrawing
the proposed reinterpretation in its
entirety, including the relisting of the six
smelter wastes, EPA failed to meet its
statutory obligation either to study
smelting and refining wastes under
8002(p) or to reinterpret the scope of the
exclusion. Slip op. at 28-29.
. In its order for relief, the Court
directed EPA to relist the six smelter
wastes by August 31,1988. The Court
noted that, regardless of the status of
an-y additional processing wastes, the
six smelter wastes dearly would not fit
any definition of "high volume, low
hazard." Slip op. at 30. hi summary, the
Court found that the six wastes cannot,
as a matter of law, be excluded from
regulation under the Bevill amendment
and must be regulated under Subtitle C
if they meet the listing or identification
criteria for hazardous wastes under 40
CFR 261.10 and 261.11.
In addition to relisting the six wastes.
EPA must, by October 15th, propose
. which "high volume, low hazard"
wastes from ore processing it will study
under section 8002(p) of RCRA. EPA
must finalize that proposal by February
15,1989, and submit a Report to
Congress on the large-volume processing
wastes on the final February 15th list by
July 31,1989. * In a forthcoming Federal
Register notice, EPA will propose new
criteria for determining which ore
processing wastes are "high volume, low
hazard" and will designate those wastes
which meet the criteria for study under
section 8002(p).
II. Description of and Rationale for
Today's Action
A. 1981 Suspensions are Lifted '•
As directed by court order, EPA is
today reinstating the hazardous waste
listing for six wastes associated with
smelting operations (see Table I).3
These wastes were originally listed on
May 19,1980, and July 16,1980, but were
suspended from the listing regulations
after the Bevijl Amendment was enacted
(see 45 FR 76618, November 19,1980, 46
FR 4615, January 16,1981, and 46 FR
27473, May 20,1981). As a result of
today's action, the six wastes are again
* In its July 29 opinion, the Court initially
mandated deadlines of August 31.1988: December
31,1988; and January 31.1989, respectively. On
August 23. the Court granted in part EPA's petition
for rehearing and modified the schedule to the one
listed above.
3 In a letter dated August 23.1988 from counsel
for Phelps Dodge Corporation, they suggested that
the Agency could meet the recent order of the
United States Court of Appeal ordering EPA to
regulate six mineral processing wastes as
hazardous wastes under Subtitle C of RCRA by
simply removing these wastes from the Bevill
exclusion and not relisting the wastes. The Agency
wishes to clarify that its decision to list these
wastes today is based on its evaluation of the listing
criteria (i.e.. these wastes are hazardous) as well as
the court finding that these wastes are not Bevill
wastes. For further discussion, see Section in of this
preamble.
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35414 Federal Register / Vol. 53. No 177 / Tuesday. September 13. 1988 / Rules and Regulations
defined as hazardous wastes based
upon the reasons set forth in the May 19
and July IB. 1980. listings (see 45 FR
33113,45 FR 47834, and the associated
Listing Background Documents for these
waste streams).
TABLE 1.—SMELTER WASTES LISTED AS
HAZARDOUS
Industry
Primary copper.
. -
Primary tad _~
Primary zinc —
Primary
aluminum.
FtrroaBoys
EPA
hazardous
wasta No.
K06*
K065
K068
"
K088
K080
.
Hazardous
waste
Acid plant
blow-
down
slurry/
sludge
resulting
from the
thicken-
ing of
blow-
down
slurry
from
primary
copper
produc-
tion.
Surface
Impound-
ment
solids
con-
tained in
and
degraded
from
surface
Impound-
ments at
primary
toad
smelting
facilities.
Sludge
from
treat-
ment of
process
waste-
water
and/or
acid
plant
blow.
down
from
primary
zinc
produc-
tion.
Spent
poHiners
from
primary
alumi-
num
reduction.
Emission
control
dust or
sludge
from
ferroch-
romium-
silicon
produc-
tion.
Hazard
code1
(T)
CO
cn
(T)
m
TABLE 1.—SMELTER WASTES LISTED AS
HAZARDOUS—Continued
Industry
EPA
hazardous
waste No.
K091
Hazardous
wasta
Emission
control
dust or
sludge
from
ferroch-
rormurn
produc-
tion.
Hazard
code1
m
i Hazard code 'T' indicates mat the waste is
listed due to its toxicfty (see 40 CFR 261.3(b)).
In addition to listing the six wastes as
hazardous at 40 CFR 261.32. EPA is
amending the definition of the mining
waste exclusion found at 40 CFR
261.4(b)(7) to further clarify that these
six wastes do not meet -the definition of
"processing of ores and minerals." In
response to the Court's order, EPA will,
by October 15,1988 propose additional
amendments to this paragraph to
specifically list only those processing
wastes which do fall within the
exclusion accordingly to the "high
volume, low hazard" criteria which EPA
is in the process of developing.
B. Primary Copper Smelting and
Refining: EPA Hazardous Waste No.
K064—Acid Plant Slowdown Slurry/
Sludge Resulting from the Thickening of
Slowdown Slurry (T)
Acid plant blowdown slurry/sludge,
resulting from the thickening of
blowdown slurry, is a waste stream
generated at facilities where primary
copper is smelted in a reverberatory
furnace. The waste arises from the acid
plant, which constitutes the principal
controller for removal of sulfur dioxide
from furnace and converter off-gases.
The blowdown slurry from the acid
plant is often thickened and the bulk of
the solids content recycled to the
reverberatory furnace. The overflow
from the thickener contains both
suspended and dissolved solids. The
suspended solids are settled in surface
impoundments and recycled to the
smelter; the dissolved solids are
discharged with the surface
impoundment effluent, often to a tailings
pond. It is the thickened slurry, the
settled suspended solids from the
thickener overflow, and the sludges that
form from the dissolved solids in the
thickener overflow that are the subject
of this listing. The Agency's decision to
subject these wastes to RCRA Subtitle C
requirements includes consideration of
the following factors:
1. Acid plant blowdown slurry
contains high concentrations of the
heavy metals lead and cadmium.
2. Lead and cadmium are toxic and .
are included in the list of hazardous
constituents at Appendix VTJI of 40 CFR- „
Part 261.
3. A solubility study has indicated
that lead and cadmium can be leached
from these wastes by even a mild *•
(distilled water) leaching medium.
Therefore, even under mild conditions,
the possibility of ground water
contamination via leaching exists if
these wastes are improperly disposed.
Further, lead and cadmium do not
degrade, so that contamination, and the
potential for contaminant contact with
living receptors will be long-term.
These and other factors considered by
the Agency are explained in the Listing
Background Document for Primary
Copper Smelting and Refining.
C. Primary Lead Smelting: EPA
Hazardous Waste No. K065—Surface
Impoundment Solids Contained in and
Dredged from Surface Impoundments at
Primary Lead Smelting Facilities (T)
The smelting of primary lead produces
a number of waste streams and slurries,
including acid plant blowdown, slag
granulation water, and plant washwater.
These wastewaters and slurries are sent .
to treatment and storage or disposal
impoundments to settle or precipitate
out the solids. These solids may be left
in the lagoons, or they may be
periodically dredged and disposed of or
recycled. The Agency's decision to
subject these wastes to RCRA Subtitle C
requirements includes consideration of
the following factors:
1. These solids contain significant
concentrations of the heavy metals lead
and cadmium.
2. Lead and cadmium are toxic and
are included in the list of hazardous
constituents at Appendix VQI of 40 CFR
Part 261.
3. Lead and cadmium have been
shown to leach from samples of the
waste that were subjected to an
extraction procedure designed to predict.
the release of contaminants into the
environment. If the wastes are not
properly managed, leachate could
migrate from the waste disposal site and
contaminate underlying drinking water
sources. Further, lead and cadmium do
not degrade, so that contamination, and
the potential for contaminant contact
with living receptors, will be long-term.
These and other factors considered by
the Agency are further explained in the
Listing Background Document for
Primary Lead Smelting.
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Federal Register / Vol. 53, No 177 / Tuesday. September 13. 1988 / Rules and Regulations 35415
There is a further question relating to
relisting these surface impoundment
solids—-whether they can be classified
as "solid wastes" when they are
destined for recycling by being
reclaimed to recover contained lead
values. Based on information compiled
in 1985, it appears that large percentages
of these surface impoundment solids are
eventually removed from surface
impoundments and reclaimed, albeit the
period between generation and
reclamation often extended for years.
(SO FR 40297, October 2,1985.) The
Agency also anticipated that the
percentage of surface impoundment
3olids~being reclaimed could decrease
due to declining lead demand. Id.
In response to the court's opinion in
American Mining Congress v. EPA. 824
F. 2d 1177 (P.C. Cir. 1987), EPA has
tentatively interpreted its jurisdiction
over hazardous secondary material
recycling activities to exclude those
materials that are reused .within an
industry's on-going production process.
Recycling activities involving elements
of discarding, on the other hand, can
continue to involve solid wastes. (53 FR
519, January 8,1988.) EPA also proposed
that in evaluating whether sludges (such
as the primary lead surface
impoundment solids at issue here) and
by-products being reclaimed can be
considered to be solid wastes, it would
evaluate the following factors bearing
on whether the material was being
discarded or was being used as part of a
continuous on-going manufacturing
process: (a) Whether the sludge or by-
product is typically recycled on an
industry-wide basis; (b) whether the
material is replacing a raw material and
the degree to which it is similar in
composition to the raw material; (c) the
relation of the recovery practice to the
principal activity of the facility; and (d)
whether the secondary material is
managed in a way designed to minimize
loss, plus other relevant factors. (53 FR
526.) EPA had previously proposed use
of these same factors in its discussion of
whether to list the primary lead surface
impoundment solids in the October, 1985
rulemaking. (50 FR 40, 296-297.)
It seems clear that surface
impoundments in the primary lead
industry are not part of the primary lead
production process, and that the solids
in these impoundments are. not in-
process materials but rather are
generated incidentally in the course of
wastewater treatment The purpose of
surface impoundments in the. primary
lead industry is to provide quiescent
settling to remove pollutants from .
wastewater before discharge. (Ponds are
sometimes used to equalize wastewater
flow into treatment units as well.)
Indeed, industry characterized its
impoundments as wastewater treatment
units in all of its submittals to the
Agency during the rulemaking to
develop effluent limitations guidelines
for the industry. (The industry's
argument, in fact was that surface
impoundments are essential wastewater
treatment devices in the primary lead
industry, and could not even be replaced
with tanks.) Any recovery of the solids
that settle out. or are precipitated out of
the wastewater routed to these surface
impoundments, is thus incidental to the
principal purpose of wastewater
treatment. Consequently, these
wastewater treatment impoundments
are RCRA subtitle C regulated units.4
Another way of ascertaining whether
these surface impoundment solids (i.e..
wastewater treatment solids) are in-
process materials or wastes is to
compare the mode of handling and
storage of these solids with the way raw
materials to the primary lead process
are handled and stored before smelting.
The surface impoundment solids are
stored for long periods of time (often
years) under tens of millions of gallons
of water. The surface impoundments in
which they are generated and stored are
not designed to hold these solids
securely. In fact as has long been
documented, surface impoundments are
inherently insecure storage units with a
high potential for contaminating
groundwater. (See, e.g., 50 FR 40297.) fa
contrast, normal lead ores are stored
securely for short periods of time before
being charged to the smelter; to the
Agency's knowledge they are never
stored underwater. Materials held.
insecurely underwater for long periods
of time in a manner completely unlike
the way raw materials are. normally
handled in the industry are not in-
process materials and are being
discarded, in the Agency's view.3
Indeed, these surface impoundment
solids might also be covered by the
speculative accumulation provisions in
40 CFR 261.2(c)(4) simply due to the "'
length of time they are accumulated.
4 See letter from Douglas McAllister to James
Berlow. dated May 27,1983. and the memorandum
from Mark Hereth to James Berlow. dated
November 21.1983. These documents are available
in the public docket for today's notice.
* Once these wastes are actually removed from
the impoundment and smelted, they would no
longer be subject to RCRA. assuming they are
resmelted in a primary lead process. (See. e.g.. S3 FR
31162. August 17,1988, explaining the principle that
a listed sludge or by-product can be indigenous to
certain processes and so cease being waste when it
actually is reclaimed.) Surface impoundments in
which these wastes are generated and stored.
however, remain regulated units.
Given that the purpose of surface
impoundments in this industry is to treat
wastewater and not to serve as an
adjunct to the lead smelting process,
EPA does not need to base its decision
on the proposed factors discussed in the
October 2,1985 and January 8.1988
proposals. However, the Agency notes
that its decision to list would be the
same were it to rely on these factors.
The method in which a material is
handled before recycling is a relevant
decision factor (and was a basis for
EPA's proposed decision in 1985). and as
discussed above, storage of long
duration in insecure surface
impoundments is not commensurate
with calling a material a valuable in-
process material which is not being
discarded.8
Other issues relating to whether the
materials being listed today can be
classified as solid wastes when they are
recycled are addressed in a separate
background document entitled
"Background Information for Listing of 6
Smelting Wastes—Solid Waste
Determination." This document is
contained in the public docket for
today's notice.
D. Primary Zinc Smelting and Refiningr
EPA Hazardous Waste No. K066—
Sludge from Treatment of Process.
Wastewater and/or Acid Plant
Slowdown (T)
fa primary zinc smelting and reSning
'processes, cadmium and lead
contaminants present in the raw
materials are carried through numerous
processes. These contaminants are
subsequendy found in sludges generated
by treatment of process wastewater
and/or acid plant blowdbwn. It is these
sludges (i.e:, not the process
wastewaters) that is the subject of this
listing. The Agency's decision to subject
these wastes to RCRA Subtitle C
requirements includes consideration of
the following factors:
* EPA notes that in its 1985 decision, it
distinguished carefully between the lead surface
impoundment wastes and two other materials
(electrolytic anode slimes/sludges and cadmium
plant leach residue) from primary zinc smelting.
.both of which EPA determined would not be solid
wastes when they are recycled. This U because the
material are recycled (normally in the process from
which they were generated) a short time after being
generated, and are stored in a manner to avoid
discarding (storage in bins or concrete basins)
before they are recycled. The Agency found that
these were indeed in-process materials that are
more commodity-like than waste-like and thus
determined not to list them. (SO FR 40297.) EPA
believes the distinction between these materials
and the primary lead surface impoundment solids
remains valid.
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35416. .Federal Register / Vol. 53. No 377 /. .Tuesday. September 33, 1988 / Rules and Regulations
1. TlmT/tffMt<»mnnfntTi flignifirmnf
concentrations-of the heavy metals
cadmium and lead.
2. Cadmium and lend are toxic and
ace included in the list of hazardous
constituents-at.Appendix VIII of 40 CFR
Part 281.
2. Cadmium and lend nave -been
shown io leach from samples of these
wastes when the samples were
subjected to a distilled water extraction
procedure. Therefore, even under mild
conditions, the possibility of ground
water contamination via leaching may
exist if these wastes are mismanaged.
Further, cadmium and lead do not
degrade, so that contamination, and the
potential for contaminant contact with
livingTeceptors. will be long-term.
These and other factors considered by
the Agency are further explained in the
Listing Background Document for
Primary Zinc Smelting and Refining.
£ Primary Aluminum Reduction: EPA
Hazardous Waste No. K08B—Spent
Potliners from Primary Aluminum
Redaction (TJ
Primary aluminum metal is produced
by the electrolytic reduction of alumina,
an aluminum oxide. This process takes
place in carbon-lined, cast-iron
electrolytic cells knovra as "pots." After
confirmed use, the carbon pot lining
("potliner") cracks and must be removed
and replaced with a new potliner. The
Agency's decision to subject these
wastes to RCRA Subtitle C requirements
includes consideration of the following
factors:
1. Spent potliners from primary
ahoninum reduction may contain
significant amounts of iron cyanide
complexes. EPA has detected both iron
cyanide complexes (expressed as
cyanides) and free cyanide in spent •
potliners in significant concentrations.
2. Free cyanide is extremely toxic to
both humans and aquatic life if ingested.
3. Available data indicate that
significant amounts of free cyanide and
iron cyanide will leach from potliners if
the spent potliners are stored or
disposed in unprotected piles outdoors
and are exposed to rainwater. In fact,
the teachability of cyanide from
potHners is evidenced by a damage
incident in which private wells in the
vicinity of a spent potfoner disposal
facility were contaminated with cyanide
(see the Listing Background Document
for Primary Aluminum Reduction). In
addition, in the presence of sunlight, the
cyanide complexes may decompose to
release highly toxic hydrogen cyanide
into the environment
These and other factors considered by
the Agency are further explained in the
Document for
Primary Aluminum Reduction.
F. Ferroalloys: EPA Hazardous Waste
Nos. K09O — Emission Control Dust or
Sludge from Ferrochromiumsilicon
Production (T); andKOSl — Emission
Control Dust or Sludge from
Ferrochromhim Production
These wastes are generated when
p articulates entrained in the reaction
gases given off by electric furnaces
during the smelting process are removed
by air pollution control equipment. Dry
collection methods generate a dust.
while wet collection methods generate a
sludge-like residue.7 The Agency's
decision to subject these wastes to
RCRA Subtitle C requirements includes
consideration of the following factors:
1. Emission control dust and sludges
from ferrochromiumsilicon and
ferrochromium production contain high
concentrations of chromium.
2. Chromium is toxic and is included
in the list of hazardous constituents at
Appendix VIE of 40 CFR Part 261.
3. Chromium has been shown to leach
from these wastes. Thus, ground water
contamination could occur if these
wastes are mismanaged. Further,
chromium does not degrade, so that
contamination, and the potential for
contaminant contact "wifh Jiving
receptors, will be long-term.
These and other factors considered by
the Agency are further explained in the
Listing Background Document for
Ferroalloys. ' •
G. Identification oflmpactan Regulated
Community
The community to be regulated under
this listing action is composed of
facilities that electrolytically refine
copper and zinc, or that are primary
producers of lead, lead alloys, aluminum
metal, and specific chrome-related
ferroalloys. This community will be
affected hi two ways by this listing:
They must comply with EPA generator
requirements found at 40 CFR Part 262.
In addition, if they treat, store, or
dispose of their wastes in such a manner
that a RCRA permit is required under 40
CFR Part 270, they must obtain a permit
and comply with the standards found at
40 CFR Parts 284 and 265. Finally,
disposal of these wastes must comply .
with the standards to be promulgated
under the land disposal restrictions
(LDR) program (40 CFR Part 268).
Most of the facilities affected by
today's rule have in the past not been
7 The definition of sludge includes all pollution
control residue (see 40 CFR 260.10): therefore, the
residue generated by both the dry and wet
collection methods are sludges for the purposes of
the hazardous waste rules.
subject to the RCRA hazardous waste
• requirements since-their operations
were excluded from RCRA regulation
under the Bevill Amendment Because
these facilities will become generators
of hazardous wastes, they will have to
obtain an EPA identification number '
and comply with the generator
standards contained in 40 CFR Part 282.
hi addition, if any of these faculties will,
treat store, or dispose of these wastes
in such a manner that will require them
to obtain a permit they will need to
submit a Part A application and notify
pursuant to section 3010 of RCRA to
obtain interim status for their current
hazardous waste treatment storage, and
disposal operations and subsequently
apply for a -final permit under RCRA
Part B provisions. The schedules for
these requirements are contained in
section vm of today's preamble.
Completion of the Part B applications
will require individual facilities to
compile and develop information on
their on-site waste management
operations including, but not limited to:
Ground water monitoring (if land
management is involved); manifest
systems, recordkeeping, and reporting;
closure and possibly, post-closure
requirements; and financial
requirements. The Part B applications
may also require development of
engineering plans to upgrade existing
facilities.
In addition to being affected by the
generator and permit requirements, as
well as the interim status standards
found in 40 CFR Part 265, these
segments of the primary metals industry
will (in the future) also be subject to the
LDR standards. As mandated by section
3004(g)(4) of RCRA, newly listed waste
, streams, such as those that are the
subject of today's notice, are prohibited
from land disposal unless EPA develops
standards for the treatment of each of
the waste streams. These standards are
to be promulgated within six months of
today's final rulemaking. Under EPA
regulations, standards must require
treatment of the wastes to a level or by
a method that reflects the use of Best
Demonstrated Available Technology
before they can be land disposed. Thus,
one future implication will be the ban on
the land disposal of these wastes unless
they are suitably pretreated prior to land
disposal. Also, facilities with existing
permits and permit applications
currently treating, storing,' or disposing
of these wastes will have to amend or
modify their permits or applications to
include provisions applicable to the
management of one or more of the six
wastes which are the subject of today's .
rulemaking.
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Federal Register / Vol. 53. No 177'I Tuesday, .September 13. 1988 / Rules and Regulations
35417
III. Future Action on These Listings
. As explained above, today's action
• removes the suspension on the 1980
listings of these six wastes. As a result,
EPA's determination that these wastes
are hazardous is based on its evaluation
of the hazardousness of these wastes in
1980. Since that time. EPA h£3 received
additional information regarding these
six wastes. Some of these data were
received as comments to EPA's 1985
proposed reinterpretation. Other data
were received more recently as EPA
was preparing an 8002(p) study and
Report to Congress on these wastes and
other waste streams from the lead,
copper, zinc, aluminum, and bauxite
sectors.8 The post-1980 data submitted
to EPA are relevant primarily to issues
other than the inherent hazardousness •
of these six wastes. They include
revised waste generation rates, current
waste management practices (including
the extent to which the wastes are
. recycled), and industry economic data.
To a lesser degree, EPA has received
data on the physical/chemical
properties of these wastes and their
hazardousness.
Since the issuance of the Court's
opinion, EPA has conducted a review of
- some of the waste characterization data
received since 1980. While EPA did not,
in light of the short time-frame .for
publication of this rule, exhaustively
evaluate all of the post-1980 waste
characterization data submitted, the
review that was conducted tends to
! corroborate and confirm that the six
waste streams meet the criteria for
hazardousness found in section 3001 [a]
of RCRA. EPA's review suggests that no
data have been submitted which would
clearly contradict EPA's 1980 decision to
list the six smelter wastes, i.e., no data
are available to refute the basic
conclusion that these wastes contain
significant concentrations of toxic
constituents and that the constituents
are mobile and persistent. Therefore,
EPA continues to believe that each of
these wastes meets the criteria for
listing as hazardous waste found at 40
CFR 281.11 and sees no reason not to
resume the 1980 listings of these six
wastes at this time.
EPA nevertheless intends to
thoroughly evaluate all information and
comments submitted since 1980
regarding the hazardousness of these six
wastes. Responses to a number of the
comments are included in the docket for
today's notice. The Agency will respond
• In light of the Court's order to relist the six
smelter wastes, EPA does not plan to complete and
submit this Report to Congress. However, some of
the information collected will be used to develop a
new Report, as required by the Court's order.
to the remainder of the comments within
the next few months. EPA will treat any
post-1930 submissions as a petition for '
rulemaking to reconsider these listings.
EPA will publish a subsequent Federal
Register notice on the results of its more
detailed evaluation of these six wastes
pursuant to 40 CFR 260.20. That
evaluation will consider new data
received in a timely manner as well as
the currently available data.
IV. State Authority
A. Applicability of Rules in Authorized
States
Under-section 3008 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 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 die
State that was aurnorized 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 non-authorized States. EPA is
directed to implement 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 HSWA-related
provisions as State law to retain final
authorization, the HSWA provisions
apply in authorized States in the interim.
3. Effect on State Authorizations
Today's final listings are not effective
in authorized States since the listings
are not being issued pursuant to the
HSWA. Thus, RCRA hazardous waste
management standards for the wastes
listed today will be applicable only in
those States that do not have interim or
final authorization by the effective date
of this regulation. In authorized States,
the standards will not be applicable
until the State revises its program to
adopt equivalent requirements under
State law.
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. The deadline by which the
State must modify its program to adopt
today's rule is July 1,1990, if no
statutory change is needed oris July 1.
1991, if a statutory change is needed.
These deadlines can be extended in
certain cases (40 CFR 271.21(e)(3)). Once
EPA approves the modification, the
State requirements become Subtitle C
RCRA requirements.
States with authorized RCRA
programs already may have regulations
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 teats for
authorization. Thus, a State is not
authorized to carry out these
requirements in lieu of EPA until the
State program modification is submitted
to EPA and approved. Of course. States
with existing standards may continue to
administer and enforce their standards
as a matter of State law.
States that submit official applications
for final authorization less than 12
months after the effective date of these
standards are not required to include
standards equivalent to these standards
in their application. However, die State
must modify its program by the
deadlines set forth in § 271.21(e). States
that submit official applications for final
authorization 12 months after the
effective date of these standards must '.
include standards equivalent to these
standards in their application. 40 CFR
271.3 sets forth the requirements a State
must meet when submitting its final
authorization application.
V. CERCLA Designation and Reportafale
Quantities
The wastes listed as hazardous in
today's rule will, on the effective date,
automatically become hazardous
substances under section 101(14)
CERCLA. as amended. CERCLA section
103(a) requires that persons in charge of
vessels or facilities from which a
hazardous substance has been released
in a quantity that is equal to or greater
than its reportable quantity (RQ)
immediately notify the National
Response Center (at (800) 424-8802 or at
(202) 426-2675) of the release.
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35418 Federal Register / VoL 53, No 177 / Tuesday, September 13, 1988 / Rules and Regulations
Under section 102(b) -of CERCLA, new
RCRA hazardous waste listings that
have not been previously designated as
hazardous under CERCLA have tha
atatutorily imposed RQ of one pound
unless or until adjusted by regulation. In
order to coordinate tbo RCRA and
CERCLA tulemakings with respect to
new waste listings, the Agency today is
promulgating regulatory amendments
under CERCLA authority in connection
with the listing of wastes K064, K065.
K068, K088, K090, and K091. The Agency
is adding wastes K064, K065, KQ68, K088,
K090, and K091 to 40 CFR 302.4. the
codified list of CERCLA hazardous
substances and publishing (as part of
this lisfttgj the statnory RQ of one
pound for each of the wastes. The
Agency may propose to adjust the
statutory one-pound RQ for each of
these wastes in a future rulemaking.
Such adjustments would be based upon
the RQ*s of the hazardous constituents
in each of the listed wastes.
VI. Economic Impact Analysis
In 1985, the Agency conducted cost
and economic impact studies to analyze
the potential impact of the proposed
reinterpretation to determine whether
the regulation would have been a major
rulemaking (under Executive Order
12231) or would cause significant
impacts on small business (pursuant to
the Regulatory Flexibility Act). Although
EPA determined that the rule was not a
"major" rule, detailed cost and impact
studies were performed In 1583 for a
substantial portion of the potentially
affected industry sectors. Although not
reported on separately for economic
cost and impact purpoaes, the six waste
streams subject to today's listing
comprise a relatively small part of •me
sectors and waste streams studied for
the 1985 reinterpretation rule".
EPA received numerous comments on
its 1985 studies. Some commenters
stated that the Agency had
mischaracterized the economic impact
of the rule. The Agency conducted a
detailed review and made extensive
revisions to the 1985 cost data.
However, those revisioms would not
cause the Agency to change its
conclusion that the original 1985
proposed reinterpretation is not a •
"major rule." Since today's rule includes
only six listed waste streams from four
of the affected processing sectors
studied, it follows that today's rule
would also not be "major."
A. Scope and Coverage of Economic
Analysis
The Agency's 1985 economic impact
analysis .consisted of a detailed
compliance cost and economic impact
analysis covering ten major primary
. metal smelting and refining sectors
containing a total of 110 operating
facilities producing 97 percent of the
total U.S. nonferrous and ferroalloy
product tnnfTflgg in 1983. These sectors
included, among others, afl of the
sectors with previously listed •metallic
ore processing wastes (aluminum.
copper, lead, zinc, and ferroalloys).
According to ILS. Bureau of Mines and
EPA survey data, the remaining
nonferrous production is •contributed to
by 26 metals sectors (over 420
facilities)—many of them by-product
sectors—not covered in the.detailed
impact assessment A comprehensive
but non-detailed evatertiim was also
conducted for these metals.
B. Methodology and Data Gathering
In 1984-85, EPA conducted a series of
technical survey and sampling studies
covering the major ore-processing
industries mentioned above to
determine the volume of wastes
generated, identify those wastes which
could be hazardous (because they
exhibit one or more of the
characteristics defined in 40 CFR
261.20), estimate the volume of these
hazardous wastes, and delineate the
practices used to manage these wastes.
The major findings are summarized in
the October 2,1985 Federal Register and
referenced background documents (50
FR. 40296^. Based on the technical survey
and sampling results, a plant-by-plant
waste management and compliance cost
assessment was made in 1985 for all 110
facilities in the sectors studied,
including those producing the six listed
wastes. A complete discussion of the
methodology for the ten-sector study
can be found in the October 2.1985,
preamble to the ralemaking |50 FR
40298) and in the background studies for
that preamble.
C. Costs of Compliance
In the 1985 detailed, 10-sector
analysis, EPA identified 67
manufacturing facilities that would
likely have incurred increased costs to
comply with -the 1985 proposal. Of these
67, the Agency estimates mat 44
facilities would have incurred costs
solely or partly due to the six listed
wastes (among their other potentially
hazardous wastes). See 50 FR 40299.
From the 1985 study, the six wastes
would have required total investment
. costs for compliance of about $92
million, and total before tax annualized
costs of about $4.2 million. During 1986,
the Agency revised its estimates to
incorporate new data received during
the comment period, including updated
information from industries and the U.S.
Bureau of Mines, and modified certain
of its .cost-estimating assumptions and
methods. Revised (1986) estimates for
the six listed waste streams totaled
about $12 million in before tax annnnl
revenue requirements.
In general, it was found that
annualized compliance costs would vary
considerably, both among sectors and
among individual facilities within each »
sector. See 50 FR 40299.
D. Economic Impacts
Based on the compliance cost
estimates and other economic variables
for individual facilities in each of the 10
sectors studied, EPA assessed several
categories of possible economic impacts,
including efforts on production costs
and prices, .international trade, total
investment requirements, profit (return
on investment), and potential for plant
closures and job losses. See 50 FR 40299.
The 1985 economic impact analysis was
conducted on a facility-wide basis
(including all potentially affected
hazardous wastes, not just those
specifically listed. Therefore.
quantitative impact conclusions are not
available (or generally practical to
deduce) for the six specific listed
wastes.
1. Production Costs and Prices
To assess relative effects on total
production costs, zero pass-through of
compliance costs to market prices was
assumed, whereas to assess price
changes a 100 percent pass-through of
compliance costs was assumed.
Therefore, these effects should be
regarded as mutually exclusive
estimates for purposes of presenting
extreme possibilities. For the most part,
these sectors compete in international
markets and are limited in their ability
to pass on cost changes in the form of
price increases.
For the five sectors relevant -to today's
rule—aluminum, copper, zinc, lead, and
ferroallys—the Agency estimated m
1986 that the average increases in
production costs and prices, due to
compliance with Subtitle C, would be
small to moderate. For zinc, which was
the most affected sector, the effect on
cost or price would have been less than
1.5 percent and for aluminum, copper, or
lead, the effect was less than 0.25
percent. Since today's rule would only
contribute a portion of these compliance
costs, the effects of today's rule, taken
alone, would be less than those
previously estimated. Because of these
relatively low effects on prices, the
study did not explore any further the
possible effect on international trade.
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Federal Register / Vol. 53, No 177 / Tuesday, September 13, 1988 / Rules and Regulations 35419
2. Capital Investment and Rates of
Return
In its revised 1968 estimates, the
Agency projected the average initial
investment cost for compliance as a
percent of normal annual capital
expenditures- to range-from nominal
(three to seven percent) in the
aluminum, copper and lead sectors, to
very large (40 to 85 percent) in the-zinc
and ferroalloys sectors. This result may
be partly due to the abnormally
depressed state of capital expenditures
in the 1979-85 base period for some of
these sectors. Non-growth or declining
sectors generally can be expected to
show very high ratios in this column due
to low base capital investment figures.
These estimates were also based on the
extreme assumption of zero passthrough
of costs to prices, a worst-case
assumption that also tends to increase
these ratios somewhat
Similar reasoning may in part explain
the 1988 estimates regarding the impact
of this rule on rates of return on
investment. In general, results here fell
into two categories: The majority of
sectors with maximum impacts on profit
in the range of 1 to. 3 percent, with zinc
and ferroalloys showing compliance
costs in the range of 8 to 38 percent of
reductions in rate of return on
investment In part, these high
percentages were due to higher than
average RCRA compliance costs and in
part due to lower than average baseline
rates of return. Again, these results
reflect the effect of all small volume
processing wastes and not just the listed
wastes for the five sectors.
Due to many of the Agency's
estimating assumptions, these impact
conclusions should be regarded as • •
conservative on the high side.
3. Plant Closures and Employment
Losses
Based on the Agency's 1988 analysis,
plants in the ferroalloy subcategory
might close as a result of removal of the
Bevill Amendment exemption for these
waste streams. However, all or most of
these closures would be in ferroalloy
segments other than those subject to
today's listing for K090 (which the
Agency estimates to have only two
affected facilities), and none would be
associated with KG91 (which we believe
would not be significantly affected by
this rule). Most of the closures predicted
in the 1986 analysis were associated
with wastes (other than those being
relisted today) that would be expected
to be hazardous by virtue of the
•hazardous waste characteristics.
4. Compliance With Executive Order
12291
Sections 2 and 3 of Executive Order
12291 (48 FR13193; February 9.1981)
require that a regulatory agency
determine whether a new regulation will
be "major" and. if so, that a Regulatory
Impact Analysis be conducted. A major
rule is defined as a regulation which is
likely to result in:
1. An annual effect on the economy of
$100 million or more;.
2. A major increase in costs or prices
for consumers: individual industries;
Federal, State, and local government
agencies; or geographic regions; or
3. Significant adverse effects on
competition, employment investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign*
based enterprises hi domestic or export
markets.
Today's rule will have none of the
above effects. Therefore, the Agency is
not conducting a Regulatory Impact
Analysis. This rule has been reviewed
by the Office of Management and
Budget (OMB).
VIL Regulatory Flexibility. Analysis
The Regulatory Flexibility Act (RFA)
of 1980 [Pub. L 96-354) requires Federal
regulatory agencies to Consider "small
entities" throughout the regulatory
process. The RFA requires an initial
screening analysis to be performed.to
determine whether a substantial number
of small entities will be significantly
affected by a regulation. If so, regulatory
alternatives that eliminate or mitigate
the impacts must be considered.
This section presents the results of the
Agency's small business screening
analysis; based on a review of industry
plant ownership patterns and estimated
compliance costs, as revised in 1988
following the October 1985 proposed
rule. Based on this analysis, EPA
concludes that there will not be a
significant impact on a substantial
number of small businesses.
In the nonferrous metals smelting and
refining industry, the Small Business
Administration (SBA) defines small
entities based on employment levels.
For most primary metal sectors, tha
criterion for a small entity is fewer than
750 employees: however, a higher
threshold of 1,000 is used for some
sectors. Based on the appropriate
definitions for each sector, the Agency
screened all the facilities in the ten
industry sectors that were studied in
detail and determined that, among these.
only the ferroalloy sector contained
facilities owned by small business
enterprises. The 1985 analysis indicated
further that none of the ferroalloy
facilities owned by small businesses
were among those projected to incur
costs due to this remterpretation. Since
the 1988 revision did not significantly
alter the list of plants or waste streams
included in the EPA data file, this
conclusion should remain valid.
Vm. Effective Date
A. Notice and Comment Requirements
Today's rule is being issued without
additional prior notice and opportunity
for comment. EPA is issuing this rule
directly as final for a number of reasons.
First, in light of the extremely short, one-
month time period allowed by the court
to relist these six wastes, EPA
determined that a public comment
period would be impracticable and
would prevent EPA from meeting the-
explicit deadline set by the court's
order. Furthermore, EPA believes that
public comment is unnecessary. By
today's action, EPA is merely removing
the suspension from the listings that
were finalized in 1980. These listings
have already been through full notice
and comment procedures. When the
listings were suspended, EPA explained
that the only reason for suspension was
EPA's belief that these wastes fell
within the scope of the Bevill exemption.
EPA reiterated this view when it
proposed its reinterpretation in 1985. For
the most part, the appropriateness of
listing of these wastes under the criteria
of section 3001(a) of RCRA was not an
issue in the 1985 rulemaking, only
whether the wastes were Bevill wastes.
The Court of Appeals has now ruled that
the six wastes are "clearly" not Bevill
wastes. Thus, EPA's original 1980
decisions to list these six wastes is
reinstated by today's action. EPA need
not take public comment prior to
reinstating the six listings. However, as
described above in section III. EPA will
treat any information on the hazards
posed by these wastes submitted after
1980 as a petition for rulemaking on the
listings, and will publish the results of
its moire detailed review of this
information in the Federal Register.
B. Notification
All persons who generate, transport,
treat, store, or dispose of wastes which
are covered by today's regulation must
notify EPA or a State authorized by EPA
to operate the hazardous waste program
of their activities under Section 3010 of
RCRA not later than December 12.1988.
unless these persons previously have
notified EPA or an authorized State that
they generate, transport, treat, store, or
dispose of hazardous wastes and have
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35420 Federal Register / Vol. 53. No 177 / Tuesday. September 13. 1988 / Rules and Regulations
received an identification number (see
40 CFR 262.12.263.11. and 265.11).
Notification instructions are set forth in
45 FR12748. February 26, I960.9 Persons
without EPA identification numbers are
prohibited from generating, transporting,
treating, storing, or disposing of
hazardous wastes.
The Agency views Ihe section 3010
notification requirement to be necessary
in this case because il: is believed that
many persons that mainage the wastes
being listed today have not previously
notified EPA and received an EPA
identification number.
C. Compliance Dates
1. Interim Status in Unauthorized States
Facilities that currently treat, store, or
dispose of the wastes subject to this
rule, but that have not received a permit
pursuant to section 3005 of RCRA and
are not operating pursuant to interim
status, may be eligible for interim status
under HSWA (see section
3005(e](l)(A](ii) of RCRA, as amended).
In order to operate pursuant to interim
status, such facilities must submit a
section 3010 notice pursuant to 40 CFR
270.70(a) by December 12,1988. and
must submit a Part A permit application
by March 13,1989. Under section
3005(e)(3), land disposal faculties
qualifying for interim status under
section 3005 (e)(l)(A)(ii) must also
submit a Part B permit application and
certify that the facility is in compliance
with all applicable ground water
monitoring and financial responsibility
requirements by March 13,1990. If not,
interim status will terminate on that
date.
All existing hazardous waste
management facilities (as defined in 40
CFR 270.2) that treat, store, or dispose of
hazardous wastes covered by today's
rule, and that are currently operating
pursuant to interim status under section
3005(e) of RCRA, muut file with EPA an
amended Part A permit application by
March 13,1989.
Under current regulations, a
hazardous waste management facility
that has received a permit pursuant to
section 3005 may not treat, store, or
dispose of the wastes covered by
today's rule until a permit modification
allowing such activity has been
approved in accordance with § 270.41.
However, EPA has proposed a rule
which would amend the permit
modification requirements for newly-
• Under the Solid Waata Disposal Amendment* of
1980, (Pub. L. 90-452) EPA wai given the option of
waiving tha notification requirement under section
3010 of RCRA following revision of the section 3001
regulations. >t the discretion of the Administrator.
listed or identified wastes. For more
details on this proposal, see 52 FR 35838.
2. Interim Status in Authorized States
Until the State is authorized to
regulate these wastes, no permit
requirements apply and facilities lacking
a permit need not seek interim status.
Any facility treating, storing or
disposing of these wastes on or before
the effective date of authorization of the
State to regulate these wastes under
RCRA may qualify for interim status
but, in order to be no less stringent than
the Federal program, that date may not
be after the effective date of EPA's
authorization of the State to regulate
these wastes. These facilities must also
provide the required 3010 notification as
described in section VIIIB above and
must also provide the State's equivalent
of a Part A permit application as
required by authorized State law.
Finally, RCRA section 3005(e)(3) or
any authorized State analog will apply
to land disposal facilities qualifying for
State interim status.
IX. Paperwork Reduction Act
The requirements of the Paperwork
Reduction Act of 1980,44 U.S.C. 3501 et
seq., were considered in developing this
regulation. This rulemaking does not
contain any information collection
requirements.
List of Subjects
40 CFR Part 261
Hazardous waste. Waste treatment
and disposal, Recycling. Reporting and
recordkeeping requirements.
40 CFR Part 302
Air pollution control, Chemicals,
Hazardous materials, Hazardous
materials transportation. Hazardous
substances, Intergovernmental relations,
Natural resources. Nuclear materials,
Pesticides and pests, Radioactive
materials, Reporting and recordkeeping
requirements, Superfund, Waste
treatment and disposal. Water pollution
control.
Date: August 31.1988.
John A. Mooro,
Acting Administrator.
For the reasons set out in the
preamble, 40 CFR Parts 261 and 302 are
amended as follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTES
1. The authority citation for Part 281
continues to read as follows:
Authority: 42 U.S.C. 6905,6912(a), 6921. and
6922.
2. Section 261.4(b) (7) is revised to
read as follows:
§ 281.4 Exclusions
(7) Solid waste from the extraction,
beneficiation and procesing of ores and
minerals (including coal), including
phosphate rock and overburden from thtf
mining of uranium ore. For the purposes
of this paragraph, solid waste from the
processing of ores and minerals does not
include:
(i) Add plant blowdown slurry /sludge
resulting from the thickening of
blowdown slurry from primary copper
production;
(ii) Surface impoundment solids
contained in the dredged from surface
impoundments at primary lead smelting
facilities;
(iii) Sludge from treatment of process
wastewater and/or acid plant .>
blowdown from primary zinc
production; '
. (iv) Spent potliriers from primary
aluminum reduction;
(v) Emission control dust or sludge
from ferrochromiumsilicon production;
(vi) Emission control dust or sludge
from ferrochromium production.
*****
3. In § 261.32, add after entries for
"Iron and steel" and before entries for
"Secondary lead", die following waste
streams:
§ 261.32 Hazardous waste from specified
sources.
Industry
and EPA
hazard-
ous
waste
No.
Hazardous waste
Primary
copper
K064
Primary
lead:
K06S....
Primary
zinc:
K066....
Primary
alumi-
num:
KOS8...
Acid plant blowdown sJurry/ (T)
sludge resulting from trie
thickening of blowdown
slurry from primary copper
production..
Surface Impoundment solids (T)
contained in and dredged
from surface impoundments
at primary lead smelting fa-
cilities.
Sludge from treatment of (T)
process wastewater and/or
acid plant blowdown from
primary zinc production.
Spent potiinafs from primary (T)
aluminum reduction.
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Federal Register / Vol. 53, No 177 / Tuesday, September 13. 1988 /. Rules and Regulations 35421
Industry
and EPA
hazard-
ous
waste
No.
Ferroal-
loys:
K09t
Hazardous waste H^d
.. Emission control dust or (T)
sludge from ferrochromium-
silicon production.
.. Emission control dust or (T)
sludge from ferrocnromium
production.
4. In Appendix VII— Basis for Listing
Hazardous Waste, add the following in
the appropriate numerical sequence:
Appendix VII— Basis for Listing
Hazardous Waste;
EPA hazardous waste
1 numbar
K064 „
K065 ~~~ .
K066 „.__.„.—.....
K088 ....„„_.„„-.....................
K090 ...._.....— ~~
K091- - ~ .-
* * *
Hazardous constituents
for which listed
Lead, cadmium.
Do.
Do.
Cyanide (complexes).
Chromium.
Do.
• *
PART 302—DESIGNATION,
REPORTABLE QUANTITIES, AND
NOTIFICATION
1. The authority citation for Part 302
continues to read as follows:
Authority: 42 U.S.C. 9602; sees. 311 and
S01(a) and 33 U.S.C. 1321 and 1381.
2. In § 302.4(a), amend Table 302.4 by
adding the hazardous substances K064.
K065, K066, K088, K090, and K091.
§ 302.4 Designation of hazardous
substances.
(a) * * *
TABLE 302.4.—UST OF HAZAROUS SUBSTANCES AND REPORTABLE QUANTITIES
Statutory
Hazardous substance
'CASRN
Regulatory synonyms
RO iCode
Final RQ
Category Pounds (Kg)
K064 .
Acid plant blowdown slurry/sludge resulting
from thickening of blowdown slurry from pri-
mary copper production
K065...J
Surface impoundment solids contained in and
dredged from surface impoundments at pri-
mary lead smelting facilities
K066 I
Sludge from treatment of process wastewater
and/or acid plant blowdown from primary
zinc production
K088
Spent potiiners from primary aluminum reduc-
tion ' - ' '
K090
Emission control dust or sludge from ferrochro-
miumsiltcon production
K091
Emission control dust or sludge from ferrochro-
mium production
•1 4 K064 X
•1 '4 K065 X
•1 4 K066 X
•1 4 K088 X
•1 4; K090 X
•1 4 K091 X
1 (0.454)
1 (0.454)
1 (0.454)
1 (0.454)
1 (0.454)
1 (0.454)
[FR Doc. 88-20780 Filed 9-12-88: 8:45 am]
BILLING CODE 8560-50-M
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