OSoO PR
Thursday
October 20, 1988
Part 111
Environmental
Protection Agency
40 CFR Part 261
Mining Waste Exclusion; Notice of
Proposed Ruiemaking
O
01
CD
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41288
Federal Register / Vol. 53. No. 203 / Thursday. October 20. 1988 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 2«1
[SWH-FRt 3455-1)
Mining Waste Exclusion
AGENCY: Environmental Protection
Agency.
ACTION; Notice of proposed rulemaking.-
SUMMARY: Section 3001(b)(3)(A)(ii) of
the .Resource Conservation and
Recovery Act (RCRA) excludes "solid
waste from the extraction, beneficiation.
and processing of ores and minerals"
from regulation at hazardous waste
under Subtitle C of RCFLA. pending
completion of certain studies by EPA.
The Agency Interpreted this exclusion
(on a temporary basis) Co encompass
"solid waste from the exploration.
mining, milling, smelting, and refining of
ores and minerals" (45 FR 76619,
November 19.1980). Th« purpose of this
notica is to further define the scope of
tho Bevill exclusion with respect to
mineral processing wastes.
Today'i proposed rulemaking would
eliminate from the mining waste
exclusion most wastes from the
processing of ores and minerals.
However. 15 specific high volume •
processing wastes that (he Agency is
defining herein as "special wastes." -
would remain within tho Bevill
exclusion, and hence, bit studied in a
Report to Congress and be subject to a
subsequent regulatory determination
pursuant to section 3001 of RCRA. In
addition, today's proposal includes the
criteria used by the Agency to identify
these "special" processing wastes.
Based upon the criteria articulated
below and EPA data on the mineral
processing industry, the Agency
proposes to retain the following mineral
processing wastes within the Bevill
exclusion:
1. Slag from primary copper smelting
2. Process wastewater from primary
copper smelting/refining
3. Slowdown from acid plants at
primary copper smelters
4. Bleed electrolyte from primary copper
refining
5. Slag from primary lead smelting
6. Slowdown from acid plants at
primary zinc smelters
~. Process wastewater from primary zinc
smelting/refining
8. Red and brown muds from bauxite
refining
9. Phosphogypsum from phosphoric acid
production
10. Slag from elemental phosphorous
production
11. Iron blast furnace slag
12. Air pollution control dust/sludge
from iron blast furnaces
13. Waste acids from titanium dioxide
production
14. Air pollution control dust from lime
kilns
15. Slag from roasting/leaching of
chromite ore
If this proposal is promulgated, all
other mineral processing wastes will be
permanently removed from the BeviU
exclusion. In other words, this
reinterpretation and the subsequent
Report to Congress and regulatory
determination represent the final stages
of EPA's response to the provisions of
RCRA section 8002(p); there will be no
further studies or regulatory
determinations related to ore and
mineral processing wastes as a group-
Operators of facilities that generate non-
excluded wastes will have to determine
whether their processing wastes exhibit
one or more of the hazardous
characteristics and. if the wastes exhibit
such characteristics, will have to comply
with the technical and administrative
requirements of Subtitle C of RCRA.
These requirements shall become
effective, at the latest six months after
promulgation of the final rule in thoea
states that do not have authorization to.
administer an EPA-approved hazardous
waste program, and somewhat later in
authorized states.
In response to a Court-ordered
deadline. EPA intends to finalize this
proposed rule by February 15,1940. The
Agency, therefore solicits public
comment on its choice of wastes to be
retained within the Bevill exclusion, and
in particular seeks information.
including chemical characterization or
other relevant hazard data, regarding
any other mineral processing wastes
that may meet the criteria for "special
wastes" described in the preamble to
today's proposed rule.
DATO: EPA will accept public
comments on this proposal until
November 21.1988. The Agency will
hold a public hearing on November 17,
1988 from 10 a.m. to noon: see the
section title "Public Participation" for
details.
AOMUSfi Comments should be sent to
the RCRA/CERCLA Docket Clerk.
Docket No. F-88-MWEP-FFFFF. Office
of Solid Waste (WH-56SA), U.S.
Environmental Protection Agency, 401M
Street. SW.. Washington. DC 20400.
(202) 475-9327. Additional information
pertinent to this proposal can be fouad
in the docket supporting the recent
relisting of six smelter wastes as
hazardous wastes (No. F-88-SWRF-
FFFFF). The public docket is available ,
in the Sub-basement at the above
address for viewing from 9:00 a.m. to
3:30 p.m., Monday through Friday.
except for Federal holidays. The public
hearing is at the U.S. Environmental
Prelection Agency, Conference Room 13.
401M Street SW.. Washington. DC.
FOft FUBTHIEH WFOflMATTON CONTACT:
RCRA/Superfund Hotline at (800) 424-
934« or (202) 382-3000 or Dan Derkics.
U.S. Environmental Protection Agency.
401 M Street SW.. Washington. DC
20480. (202) 382-3608.
SUfVUUKMTAMV INFORMATION:
Tibia of Contents
L Court Decinion on the Applicability of the
Mining Waste Exclusion to Processing
Wastes
A. History of the Mining Waste Exclusion
a Court Decision on the Mining Waste
Exclusion
IL Processing Waste* Remaining within the
Bevill Exclusion
A. Criteria for Identifying Wastes from Ore
and Mineral Processing
a Criteria for Identifying "High Volume"
Wastes from Ore and Mineral Proceasing
C Criteria for Identifying "Low Hazard"
Wastes from Ore and Mineral Proceusmg
O. Proposed Bevill-Excluded Processing
Waste*
UL Regulatory Impacts of this Proposal
IV. Public Participation
V. Effect an State Authorizations
VL Compliance with Executive Order 12291
VII. Regulatory Flexibility Analysis
VIII. List of Subjects in 40 CFR Part 291
L Court Decision on the Applicability of
the Mining Waste Exclusion to
Processing Wastes
A. History of the Mining Waste
Exclusion i"~-~...
In section 8002(f ^*~^«cee
Conservation an<7
(RCRA), enacted
Congress instru it
of EPA to cond /ith
the Secretary/ ailed
and compreb
adverse efftr
active and
undergrou'
including.
of such v
health, f
Onf
EPA p
wast/
RCf
aim
am
nd
/onment.
/is effects
ater, air.
/esources."
'FR 58946),
,or hazardous
.Subtitle C of
,'gulations.
/ewer
erse of so-called ;
/vere generated in
/ought to pose less
/r hazardous
/t thought to be
/itrol techniques
/dous waste
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treatment, storage, and disposal
facilities EPA identified waste materials
trom the extraction, beneficiation. and
Processing of ores and minerals" as one
group of such "special wastes" under
tne proposed regulations.
On May 19,1980, when it promulgated
the final hazardous waste management
regulations. EPA did not include a
special waste" category, stating that
such a distinction was unnecessary
because: (1) The EP toxicity and
corrosivity characteristics of hazardous
wastes had been narrowed, thus
excluding most "special wastes" from
regulatory control, and (2) the Agency
intended to promulgate tailored
standards for land disposal that could
incorporate site- and waste-specific
factors, as needed, in future regulations.
On October 21.1980. Congress
enacted Pub. L 98-482, 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!
benefication, and processing of ores
and minerals, including phosphate rock
and overburden from the mining of
uranium ore." and submit a Report to
££?££ f "' *£°? by Octobw 21-
uwa. (emphasis added). Section 7 of
these amendments (the "Bevill
Amendment") amended section 3001 of
RCRA to exclude these wastes from
regulation under Subtitle C of RCRA.
pending completion of the studies called
f°rr£ 2*£S "«»>««» (M-
planned to propose to "reinterpret" the
scope of the mining waste exclusion so
that it encompassed fewer wastes.
Therefore, EPA suggested two schedules
to the court: One for completing the
section 8002 mining waste studies and
submitting the Report to Congress, and
one for proposing and taking final action
on the reinterpretation. On August 21
1985. the District Court ordered EPA to
meet these two schedules. Id.»
Under the court order. EPA proposed
to narrow the scope of the mining waste
e«'u«°n- See 50 FR 40292 (October 2.
1985). fa preparing the proposed mining
waste exclusion reinterpretation. EPA
adopted the "high volume, low hazard-
special waste" concept from EPA's
1978 proposed hazardous waste
regulations (43 FR 58846).
In response to the proposal, many
commenters "nominated" wastes that
they believed fit the "special waste"
(i.e.. high volume low hazard) criteria
and therefore should remain excluded
from Subtitle C regulation as
"processing wastes." Because EPA had
not explicitly defined the terms "hiah
volume" or "low hazard" in the
proposal, the Agency was unable to
determine the status of these additional
wastes. When EPA triad to infer
definitions for these terms based upon
the four wastes listed in the proposal as
meeting the "special waste" criteria, it
u!?*LCie" ^' 9ever^ «?nificant
o'faced with co"
ordered deadline in Adamstown. the
Agency withdrew the proposal on
October 9.1986 (51 FR 36233). As a
consequence, the interpretation of the
mining waste exclusion established in
the November 19.1980. rulemaking
notice remained in effect
B. Court Decision on the Mining Waste
Exclusion
——T •«"*«*•. uffi UUt,
".. .i.icum final amendment to its
hazardous waste regulations to reflect
this mining waste exclusion. The
regulatory language incorporating the
exclusion is identical to the statutory
language (except the phrase "includina
coal was added). In the preamble to U»
amended regulation, however. EPA
tentatively interpreted the exclusioa to
include "solid waste from the ^^
exploration, mining, milling, .neltina
and refining of ore* and minerals"(45
FR 78618). The Agency also indicated
that this provisional interpretation of the'
exclusion was temporary and was to be
reconsidered following receipt of public
comment.
On September 28.1984. Concerned
Citizens of Adarnstown. Carroll Manor
Civic Association, and the
Environmental Defense Fund sued EPA
tor failure to complete the mining waste
hlUHrnTd R*POrt to Con8re« required
oy RCRA sections 8002 (f) and (r>)
Concerned Citizens ofAdamstown v.
1985). EPA explained to the court tha't it
,. Because the proposed mining
waste reinterpretation did not define the
criteria by which wastes were excluded
nor did it discuss any of the associated
issues, the public could not discern
whether a given waste might qualify for
continued exclusion as a l!high volume
^UM^fl. wote*OT """"rat on the
validity of those criteria.
The public's comments and the
Agency's own analyses convinced it
Uiat_ the proposed reinterpretation could
not be finalized because it did not set
out -practically applicable" criteria for
distinguishing "processing" (i.e.. high
volume, low hazard ore and mineral
processing residuals) from non-
processing (i.e.. non-excluded) wastes.
Moreover, the Agency was unsure
whether such criteria could be
developed, given the complexity of these
1 EPA submitted Its Report to Congress on waste*
fromth. "•traction and ben.rW.Hon of ore, and
minerals on Dacember 31.1965. On July 3.1988. EPA
'MiMd a regulatory determination that It would noi
raZMBS^Se'ull'S^r^ Sub'iU* ° °' RCRA-M
••
oi^JM0 ?-.18M)- •* ie attnntiy * *•
pnxaw of ^developing regulations under Subtitle 0
ja«« mil •ddrtM At management at extraction and
beneflciation waste*.
The Agency's decision to withdraw it*
proposed reinterpretation of the mining
waste exclusion was subsequently
challenged in court (Environmental
—. * «*•*»• o«£d <*,^u i3i8« OC
Cir.. 1988 (EDFv. EPA). In these cases
the petitioners contended, and the Covirt
of Appeals agreed, that EPA's
withdrawal of its proposed
reinterpretation of the Bevill
Amendment was arbitrary and
capricious because it reaffirmed an
impermissibly overbroad
interpretation" of the Bevill
Amendment EDF v. EPA, 852 F.2d at
1328.
In reaching this decision, the Court
found that the words "waste from * • *
processing of ores and minerals" do not
convey a self-evident accepted
meaning. Id. at 1327. Therefore, the
Court reviewed the structure .and the •
legislative history of the Beviil
Amendment to ascertain the intent of
Congress. The Court found that "ftlhe
structure of the Bevfll Amendment
suggests that the term 'solid waste from
t«« processing of ores and
minerals' should be interpreted in a
manner consistent with the concept of
large volume wastes." Id. The Court also
derided that "(t]he legislative history of
the Bevill Amendment establishes that
the key to understanding Congress-
intent is the concept of 'special waste'
articulated in the regulations proposed
by EPA on December 18,1978 following
the enactment of RCRA." Id. See 43 FR
58911 (1978) and 50 FR 40293 (1985).
In explaining this decision, the Court
cited statements made by Members of
Congress during the legislative
consideration of the exclusion and the
description of the provision in the
Conference Report accompanying the
legislation. Based on these indications of
congressional intent, the Court
concluded that
it is clew that Congress did not intend the
mining west* exclusion to encompass all
wastes from primary smelting and refining.
On the contrary. Congress Intended the term
^processing" in the Bevill Amendment to
include only those wastes from processing
ore* or mineral* that meet the "special
w««te" criteria, that is. "high volume, low
hazard" waste*. 852 F.2d at 1328-29.
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41290
Fedaral Register / Vol. 53;,No. 203 / Thursday. October 20. 1988 / Proposed Rules
Thui, when the Agency withdrew its
October 2.1985, proposed
reinterpretation of the mining waste
exclusion, which was based on implicit
"special waste" criteria. EPA fay default
reverted to its November 19. i960.
interpretation of the exclusion, which
did not distinguish between high
volume, low hazard processing wastes
and other processing wastes. As a
consequence, the number of temporarily
excluded processing wastes remained
very large. The Court ruled that thi»
result wag inconsistent with
congressional intent. Therefore, the
Court ordered EPA to propose, by
October 15,1968, a specific list of
mineral processing wastes that meet the
criteria of high volume and low hazard.
and thus remain temporarily excluded
from Subtitle C regulation. 8S2 F.2d at
1331. Today's propotial has been
developed pursuant to the Court's.
mandate.
In addition to requiring that EPA use a
high volume, low hazard paradigm in
defining the scope of the term "solid
wastes from the • • • processing of ores
or minerals." the Court also mandated •
the relisting (as hazardous wastes) of
six Individual metallic ore processing
waste streams that the Agency had
proposed on October 2.1985. The Court
concluded mat regardless of how EPA
might subseqently d«fine the high
volume and low haznrd parameters of •
the mining waste exclusion, these six
wastes would dearly fall outside of the
exclusion "[a]ince EPA found that those
six smelter wastes are low volume and
high hazard wastes * * *." 852 F.2d at
1330. EPA. in a separate mUmaldng, has
taken action to comply with the Court's
directive with regard to Luting these six
wastes. See 53 FR 35112, These newly
relisted wastes are presented ia Table 1.
below.
TABLE 1.—LISTED HAZARDOUS WASTES
GENERATED IN MINERAL POOCESSWQ
OPERATIONS1
RCRA
WUta
No.
K064—
KO65—
KO68
K0«_
K090.-
Daacrlpatan
AcW plant bicmiXMn cfcxiy/sludga r*v
tuang from fii;1»Mang of bkxdoiin
sfcny from pnmary coppar ptodacHmv
Surfaoa mpounOm«rrt soKda contarad
In and dradgiM from mrfaoa Impound-
mama m primary Ma
Sludga from MaMant ol ^ ____
watlxmar nnoVor aad plant otew-
down fcom prnwyane production.
9parN pxMhiaii from pinwy aluminuRt
TABLE 1.—USTED HAZARDOUS WASTES
GENERATED IN MINERAL PROCESSING
OPERATIONS s—Continued
RCRA
wasta
No.
KO91
Description
Emission control dust or
rarroctvomium production
2 S«VATAJ nt tt-Mia n*M4u ralia^H MM*.
sludga (rom
ba similar to was«aaii tarn pnmary are amattingl cWfar
significantly n voiuma and n cnamical compoarion
from thasa Mod ******"* msta*.
In order to comply with the Court's
other directives ia this case. EPA will
publish a final rule based upon today's
proposal in the Federal Register by
February li 198aX and will submit the
required Report to Congress by July 31.
13W. 852 R2d at 1331. Th» report wiU
address the following eight srady factors
pertaining to ore and mineral processing
wastes that ore listed at section 8002fp)
of RCRA:
1. The source and volumes of such
materials generated per year;
2. Present disposal and utilization
practices;
3. Potential danger, if any, to human
heeJth aad tbe environment from the
disposal end revee of such materials;
4. Documented cases hi which danger
to human health or the environment has
been proved:
5. Alternatives to current disposal
6. Tl» coete of such alternatives:
7• Toe intpnct of tnose alleruatives on
the use of phosphate rock and uranium
ore. and e
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Federal Register / Vol". 53, No. 203 / Thursday. October 20. 1988 / Proposed Rules
41291
mineral industry operations * and that
possess the following attributes:
(1) Follow benefication of an ore or
mineral (if applicable];
(2) Serve to remove the desired
product from an ore or mineral, or
beneficiated ore or mineral:
(3) Use feedstock that is comprised of
less than 50 percent scrap materials (i.e..
at least 50 percent of the feedstock is an
ore or mineral, or beneficiated ore or
mineral);
(4) Produce either a final mineral •
product or an intermediate to the final
mineral product: and
(5) Do not include operations that
combine the product with another
material that is not an ore or mineral, or
beneficiated ore or mineral (e.g.,
alloying); fabrication (any sort of
shaping that does not cause a change in
chemical composition), except for
casting or metal anodes and cathodes;*
or other manufacturing activities.
EPA has chosen this definition of
processing because it provides maximal
flexibility in evaluating candidate waste
streams, while at the same time
eliminating prospective study of types of
wastes that were clearly not envisioned!
by the Congress as being "special
wastes."
Benefidation operations, which often
precede ore or mineral processing
operations, include primarily, but not
exclusively, physical operations (e.g,
crushing, grinding, sorting, sizing,.
washing, flotation) that concentrate tha
valuable constituents from an ore or
mineral in preparation for further
refinement (e.&, smelting) *, and so
differ from processing operations. The
solid wastes generated by these
beneficiation operations are normally
crushed or pulverized rock, or othar
earthen materials such as clays or
sands.
The Agency considered several
alternative definitions of ore and
mineral processing that would result in
4 As EPA hai previously explained the mining
and mineral processing waste exclusion does not
apply to solid waste* sock a* "spent solvents.
pesticide wastes, aad dienrdad commercial
chemical products that ere- not uniquely associated
with ' * * mining end allied processing
operations." 45 FR 78810(1980).
1 In certain metallic ore processing operations,
intermedlite metel product! most be poured or
cist, prior to further processing or thlppine; ton
casting operation is both integral end necessary la
the metal refining process, end generally precedes
other processing (i.e.. concentrating} operations.
' U.S. EPA. 198S. Report to Congrett on Wastm
from the Extraction and Benefication of Metallic
Ores. PhotphaU Rock. Atbttta. Ovfrburda* from
Uranium Mining, and Oil Shalt. Office of Solid
Waste end Emergency Response. EPA/S30-SW-OS3.
Thrush. P.W. 1968. A Dictionary of Mining.
Mirarals. and Rtlattd Term*. Washington. DC U-3.
Bureau of Mines. U.S. Dept. of the Interior.
a narrower interpretation of the term.
For example, ore and mineral processing
could be considered to end when metal
is' poured or the identity of the mineral is
destroyed. Under such a construction,
smelting would be considered a
processing operation while refining
would not. The Agency has not adopted
this approach to defining processing
because while such a definition is
relatively easy to understand for
metallic ores, in practice, it may be
difficult to apply in many situations,
such as in examining operations that use
certain non-metallic ore and mineral
" feedstocks.
Alternatively, processing could be
considered to refer only to operations
that generate waste earthen materials,
e.g., rock. sand, or ctoy. Under this
definition, processing and beneficiation
would be nearly synonymous terms, and
no wastes from smelting and/or refining
operations would be temporarily
excluded from RCRA Subtitle C
regulation. EPA chosa not to employ this
approach to defining the scope of ore
and mineral processing operations
because it would remove all smelter
slags from the excluded waste category.
The Agency believes that Congress, in
adopting the Bevill Amendment
intended to include at least certain
smelting slags within the excluded
waste category, since many smelting
slags tend to be generated in high
volumes.T
Solid wastes that satisfy the above •
criteria, and therefore are excluded from
Subtitle C regulation if they also satisfy
the proposed "high volume" criteria
described below, retain their temporary
exclusion when treated prior to disposal
if they continue to satisfy the criteria.
Likewise, the residuals arising from
treatment may also retain excluded
status, but only as long as they continue
to meet these criteria. For example, low
volume sludges produced from treating
temporarily excluded high volume:
aqueous wastes are not excluded from
Subtitle C regulation by the Bevill
Amendment
~ EPA does not consider mixtures of
excluded and other, non-excluded
hazardous wastes to be excluded by tha
Bevill Amendment from regulation
under Subtitle C of RCRA, It for
example, a listed hazardous waste is
combined with an excluded solid waste
from oro and mineral processing, the
resulting mixture ia a hazardous waste
subject to the requirements of Subtitle C.
unless and until the Agency "delists" it.*
Similarly, if a"characteristic" hazardous
waste is mixed with an excluded solid
waste, the mixture is subject to the
requirements of Subtitle C if it exhibits a
hazardous characteristic (i.e., EP-
toxicity. corrosivity, ignitability, or
reactivity) (40 CFR 261.3(b)(3)).
B. Criteria for Identifying "High
Volume" Wastes From Ore and Mineral
Processing
In EOF v. EPA. the Court states that:
Congress intended the term "processing" in
the Bevjll Amendment to include only thcwe
' waste* from processing ores or mineral* that
meet tha "special waste" criteria, that is.
"high volume, low hazard" watte*. 852 F-2d
at 1331-32 (emphasis added).
Given this directive, the requirements
of the Bevill Amendment, and the
legislative and regulatory history of the
"special waste" issue, it is dear that
EPA must unambiguously define criteria
by which to distinguish "high volume"
processing wastes. Accordingly,, today's
proposal describes the criteria that the
Agency used to distinguish between
high and low volume processing wastes,
and provides a list of the wastes that to
the best of the Agency's current
knowledge, meet the "high Tohnne"
criteria. In this way. EPA hope's to not
only communicate to industry and the
public which, wastes it considers to be
temporarily exempt from Subtitle C
regulation, but also to allow members of
the mineral processing industry to
evaluate whether or not they may,
generate) additional solid wastes that
should be studied under RCRA section
60Q2(p) prior to a determination as to
their regulatory status, dearly, the
application of the "high volume" criteria
to specific wastes will depend not only
on the specific elements of the criteria
themselves but on the definition of
"mineral processing" presented above.
Due to the extremely diverse nature of
domestic mineral processing operations
and their associated wastes. EPA has
experienced considerable difficulty in
the past in defining criteria that
addressed all of the wastes envisioned
by the Congress and by the) Agency's
original concept of "special wastes,"
while not concurrently including wastas
that are not truly high volume and/or
low hazard. When the Agency withdrew
its proposed reinterpretation in 1986, it
* S*« e,g, 128 Cong. Mac. 3364 (19*0) (remarks of
Rep. Williams) (referring to the) need to study
copper smelting slag* prior to regulation): S. Rep.
No. 284.90th Cong, 1st Sees. 28 (1988) (defining the
scope of tha 1980 aaMndnMot to include smelting
slug).
• Unkee the- haiardoM wasta is listed only
becaue* U oattbUs « hexardoesv chafactenstlc: m
that Instance, the weste is not considered
haxardooa when end if It no longer exhibits any of
the four characteristics of hazardous weste (40 CFR
2B1.3(a)(2XuiU.
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^^^^^^^^^^^^^^^^^^^^^***^^**BliaBBIiliaBBBBI><1*1'"™^
i»«e« Uurt needed to be
addressed in the derefepaaea* of a
lnr c
below along with th« "high *ohiaie
Became "high volume" has been so
difficult to define. EPA developed an
explicit analytical framework to
evaluate candidate high volume wastes.
In so doing, the Agency had to resolve a
number of methodological issues. The
following discussion ef the high volume
criteria addresses th« following four
primary methodological issues in "
sequence: (1) The appropriate degree of
aggregation of waste streams, (2) the
basis for quantitative analysis (plant-
specific vs. industry-wide), (3) the units
of measure, and (4) the types of other
wastes to be used as Che baais for
comparison.
1. Degree of Aggregation of Waste
Streams
EPA ha* evaluated ilhree options
e egre* o aggreg
be used at analyzing tl» volumes of
waste generated:
fj)j Consider each w,ute streaa
individually;
(2) Aggregate waste streams 'within
facility. U, conduct the analysis am a
facility-wide basis; or
. (3] Combine specific waste streams
across mineral commodity sectors.
according to similarities in feedstocks. '
production processes, physical/comical
characteristics, management practices,
or other characteristic!.
EPA has adopted the first option.
deciding to evaluate waste streams
individually, rather than in aggregate,
For example, waste furnace brick from
copper smelting/refining has been
evaluated separately from other copper
processing wastes such as slag and air
pollution control dusts. Given the
current level of available information.
the Agency believes that this is the most
clear and feasible approach.
Aggregating all wastes wHhfa a
facility for purposes of (onrjrvis would
ignore the obvious and irigniflcant
differences m volume and potential
hazard that exist betwasn the diverse
groups of waste stream* produced at
mineral processing facilities. Moreover.
the discussion of "high volume" or
"special" wastes in the RCRA statute.
amendments, and in particular the
legislative history tends to identify
specific waste streams rather 'h°n
generic or aggregated wustes generated
by facilities or industrieii. fa addition.
where practical. EPA listings o/
hazardous wastes under Subtitle C tend
to identify specific waste streams
generated at particular types of
On the other hand, inter-industry
similarities in production processes.
waste characteristics, and waste
management practices suggest that
certain waste types might reasonably be
combined across mineral commodity
sectors (e-g., non-ferrous slags from
copper, lead, and zinc smelting).
Statutory directive and Congnsetonai
intent are not available for guidance in
evaluating for appropriateaess of this
approach, though in its 1985 proposed
rein tei nictation of tha Bevill exclusion.
EPA explicitly placed "primary metal
smelting slags" inside the narrowed
5g?!-bSB°frI*""P*'-y « H"™ rather
Although tha> Agency baiieves that
coaabiniaf waste* for parpoees of
•nalyaia may in sone cases be
appropriate, tt haa not been able to
develop a sfaapia ad aoa-arfaiinay
system for iapiemeatmg tin* approach.
Therefore. EPA has not conririned waste
streama to determine which shoaid
continaa to receive the temporary Beviti
exclusion,
2. Basis for Quantitative Analysis
In deciding upon the proper focal
point for conducting its qaantitative
analysis to support a dafinitioa of "high
volume" processing waates. EPA
coosidesed Ore* basic options:
(1) Develop and analyze a plant-
specific measure of waste generation;
(2) Examine waste stream
on an industry-wide baais: and
(3) Develop and utilize a combination
of tiia first two alternatives.
EPA has chosen option 3. and has
evaluated waste streams using both
industry-wide and plant-specific
perspective*. In making mis decision.
tha Agency pat primary emphasis on
aareroping criteria (hat wen
unambiguous, could be easily
interpreted fey industry and the public,
and yielded results that were consistent
with previously published discussions.
concerning which mineral processing
wastes aro high volume and which are
n°t-*»*f-. «FR 58948. 50PR 40292.
Tne mgh-votame concept, as originally
propoeed by EPA in 1978. reflected the
Agency's concern that certain wastes
that were generated in very large
quantities could not feasibly be
managed m accordance with all of the
technical standard* of RCRA Subtitle C.
especially because many of these
wastes are managed on-site. When
Congress isKarpurated the high-volume
concept into the RCRA statute with the
adoption of tha Bevill Amendment it
echoed these concerns. See. A*. 128
Con8. tec. 3384 (1980) (remarks of Rep.
Wiffianw). In particular. Congress
o^S*^1 fJI^L!0 8tudy- nnder section
8002
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Fadaral Register / Vol. S3. No. 203 / Thursday. October 20. 1968 / Proposed Rates
41293
feasibility of Subtitle C regulation (
waste volume compared to available
disposal capacity). In addition, this
simple measure of waste quantity is
easy to calculate and existing.data
allow it to be computed for potential
"high volume" processing wastes.
Production levels, and nence, waste
generation volumes, in the mineral
processing industry, however, fluctuate
considerably over time, due prmarily to
market conditions. Relying upon data
frpm a single year or even several years
in succession may therefore present an
inaccurate view of likely waste
generation rates in the future.
The second alternative, expressing
waste generation as a ratio, provides a
measure of the degree of concentration
that occur* in the process that generates
each waste, potentially providing EPA
with an additional variable by which to
compare and contrast candidate "high
voluma"proce*Mng wastes with the
extraction and beneficiation wastes that
are clearly within the Bevill exclusion.
as well as other "special wastes."
Existingrflata. however, are not
adequate, to compile candidate ratios for
certain prominent large volume mineral
processing waste streams.
Nonetheless, the Agency believes that
the ratio concept has merit and would
consider incorporating some form of
ratio into the fuul rule. For example.
EPA has examined several ratios, and
has found that a ratio of waste to
product of greater than 0.5 effectively
distinguishes high volume from law
volume processing wastes, based upon
the limited data that.are available, i.e.,
the same tist of excluded processing
wastes k obtained using this criterion as
is obtained using the total volume and
average volume criteria described
below. Although EPA eld not utilize this
ratio in selecting wastes to be retained
within the exclusion for today's
proposal, the Agency seeks public
comment on this approach and o» aa
appropriate ratio.
4. Wastes To Be Utilized as the Basis for
Comparison
EPA also considered several base* of
comparison with winch to evaluate
potential high volume wastes. "Sue issue
is important because "high vohime" is a
relative term, having essentially no
meaning when applied to anything in
isolation. Again, several option* are
available for comparing different types
of high volume and/or hazardous
wastes with mineral processing wastes:
(1) Extraction and beneficiation
wastes:
(2) Other special study wastes, e.g., oil
and gas wastes;
(3) RCRA Subtitle C wastes: and
(4) Some combjitatiaa of the previous
three.
EPA selected option 4 to analyze and
quantify the notion of "high volume."
Specifically, EPA has compared and
contrasted the wastes generated by
mineral processing with those generated
by the extraction and beneficiation of
ores and minerals, and those from oil
and gas production (i.e., other section
8002 wastes). See RCRA section
8002(m). bi addition, the Agency has
examined specific wastes currently
regulated under Subtitle C to highlight
the similarities and differences between
these wastes and those addressed ia
this proposed rule. EPA believes that
each of these three categories of wastes.
is relevant for pnrnoaaa of comparison
with Mineral proceniag wastes, and
that Men comparison offers insight into
the proper definition of the term "high-
volume."
Option 1 would compare each
processing waste to the waste* that are
(or were until studied} dearly and
unambiguously within the Bevill
exclusion, those from extraction and .
beneficiatioa of ores and minerals. EPA
believes that tins to a logical basis of
comparison, and. accordingly, has
examined the quantities of wastes
generated by on and mineral extraction
and beneficiation and related them to
the quantifies of mtnerail j
wastes (see the docket for additional
information}.
The second option is to compare
processing waste* with other special
study wastes, such as those generated
by oil and gas production. This n also a
reaeenabfe approach, given- the special
state* of these waste* trade? RCRA. as
amended. Moreover, ofl and ga*
production ie as artpactfn operation; in
whidi a valuable natarat resoorcj ia
remove*! von it* Mt*mran$ng* and
collected for farther refinement A*
such, it has a H ameer of obvioa*-
sumaaiitim with the- extraction (ranting)
and msbaequent beneficiaRon and ,
procaaaaag of ore* and minerals.
Th» third alternative would compare
processing waste* with the existing
-univane of Subtitle C wastes. Although
such a comnariaoai to not directly related
to ta* qaeation at hand-(becausa ef the
different regulatory environment
afforded to "special" wactaa under the
Bevill Amendment), it could yield a*
intereatiag comparison between the
waste* ID widen Subtitle C ia applied
and those fior which Safoutks C to aa
optico. Conparieaaw of this tyaav
however, are problematic, both in
theoretical and practical terms. Oaw
important n^aaaooo is bow to define thai
universe «tf Safatine C waste* to be used
for comparative puraoam. Alternative*
include examining all Subtitle C wastes.
thoae that closely resemble mineral
processing wastes with respect to
physical form and chemical
composition, those that are managed in
ways similar to the common practices
employed in the mineral processing
industry,, and doubtless, others. In
practical terms. EPA is limited by data
availability, and can only examine
waste generation and management at
Subtitle C facilities in fairly broad terms.
Therefore. EPA has conducted only
limited quantitative comparisons of
listed Subtitle C wastes with the special
wastes. These comparisons are not
exhaustive, hot demonstrate clearly that
typical Subtitle C waste volumes are
very different than those of many
mineral processing wastes.
For example, EPA has assembled data
oa the generation of the top nine listed
Subtitle C waataa oa an aggregate
national beats. These data are presented
in Table 2. The largest-volume wast* is
spent p*dde Uauor firom steel finishing,
at just over four mtlBoa Metric tons per
year. None of the other listed wastes (of
whack than are samara/ Aandred) is
gaaaiataiim
million metric tone par year. Aa
dJscaaaed beaow, thi* tatter generation
rate ia ane*ff*#1ae quantitative total
volume criierie* ueed by EPA to-
designate higa-vateaa* processing;
waste*. TrMimrd tea, distinct mineral
pmmnaing waste stream* are generated
ia quantities excaediat one nuflktn
metric loo* par year, audsusue are
generated at rates maay tines that This
indicates thai at least some en and
mineral processing waste* are generated
on a very different scale than are typical
listed Subtitle C wastes.
TABLE 2.—TOP NINE USTEO HAZARDOUS
WASTE* (1985 QATA> •
Coda
KOSa...
KOei-
KW4-
KO*S_
K043..
SPOT) pfctt Iqoor
I m flotation (OAF)
from m* pMQtown fofin-
ingnduMrf.
wut*
•0(1.000
MT/yr)
4.070
914
8Q1
707
= 700
-------
41294
Faderai Register / Vol. 53. No. 203 / Thursday. October 20. 19M / Proposed Rules
TABLE 2.—TOP NINE USTEO HAZARDOUS
WASTES (1985 DATA)*—Continued
Code
K051
K011.
K087
K018™__
Total
U.S.
Hazardous Waste
Oeticnpaon
API Mparalor sludge From
me petroleum refining «v
dusty.
Bottom itriam from me
wastamaMr saippar » ac-
fytoretrte ciroducflon.
Decanter Uink tar sludge
*om coking operations.
H«avy endii or jieeiaUuii
r**>duea Icon carbon let-
f^^ionde production.
Quantity
of
. hazard-
waste
gonerat-
sd 0.000
vrt/yr)
"TOO
687
576
414
245,129
US. EPA.
/
£•£?«•'
Prepared fa, OnW
Trtufntnt.
tf wider
Solid Wot*.
Moreovar. when 1JPA examined the
latest available data on. the quantities of
hazardous waste miinaged on-site at
RCRA-regulated facilities, it found that
only 180 facilities managing hazardous
wastes on-site (well under ten percent of
the total) handled more than 50,000
metric tons during tills same period (as
described below, 50,000 metric tons per
year per facility is the other high volume
cut-off that EPA has employed to
identify high-volume' processing wastes).
These quantities refbr to combined
volumes of all hazardous wastes
generated and managed on-site at the
facilities (most of which are in the
chemical and oil refining industries}.
and are probably dominated by
relatively dilute aqueous waste stream*.
Most of the mineral1 processing waste
streams proposed for retention within
the Bevill exclusion today, however, are
solid materials (e.g.. slags), and in any
case are evaluated iitdtridually rather
than in aggregate at the facility leveL
Despite these factors, which tend to
draw further distinctions between
typical Subtitle C wastes and mineral
processing wastes, any ore or mineral
processing facility that generates and
manages a waste on-iiite at a rate of
greater than 50.000 metric tons per year
would still be within the top ten percent
of hazardous waste treatment, storage,
or disposal (TSD) facijities nationwide
in terms of volume of waste managed if
the waste was to be regulated under
Subtitle C
5. Definition of High Volume Processing
Based on a consideration of the
factors outlined above, EPA decided
that any waste generated from the
processing of ores or minerals, as
defined in Section ILA. above, that met
either criterion 1 or criterion 2. below,
would be designated a "high volume"
processing waste:,
(1) Fat a sptcific waate stream arising from
mineral processing in any given mineral
commodity sector (t.g, primary copper
processing), the total quantity of the specific
waate generated by all facilities in the United
States in any one calendar year from 1982
through 1987 equals more than 2 million
metric tons; or
(2) For a specific waate stream arising from
mineral processing in any given mineral
commodity Motor, the specific waste stream
is generated at an average rate (l.e.. total
quantity of the specific waste generated by
all fatahties in the United States in any oni
calendar year from 1982 through 1987 divided
by the number of facilities generating the
waste) of more than 50.000 metric tone per*
facility per year.
These criteria effectively and
unambiguously distinguish the truly high
volume ore and mineral processing
wastes from those that are generated at
lower rates, at least in thus* industry
sectors for which EPA has adequate
data to apply the criteria. As discussed
below, the distribution of waste volumes
within and across these sectors is
essentially bimodal. with many sector*
having one or a few high volume wasta
streams along with several other low
volume waste streams. As a result, the
criteria serva mainly to highlight these
existing differences in volume) rather
than to draw arbitrary lines; changing
either of the specific numeric criteria
has lirtla effect on which wastes an
identified as being Ugh volume. For
example, lowering the total volume -
criterion from 2 million to 5004X10 metric
tons per year ot raising it to 3 million
metric tons p«r year would have no
effect on tha list of wastes proposed to
be retained within the exclusion, while
raising-or lowering the average volume
criterion by 10.000 metric tons per year
per facility (n change of 20 percent)
would affect the designation of. at most
one of approximately sixty waste
streams examined in depth for today's
proposal.
Further justification for setting a
lower limit of 2 million metric tons per
year on total waste generation volumes
can be found in the lists of wastes that
the Agency has considered to be "high
volume" ever since the "special waste"
concept was officially articulated in
1978. See 43 FR 58046. In addition, the
wates from ore and mineral extraction
and beneficiation. which are clearly
within the exclusion, are generated by
most commodity, sectors at a rate of at
least two million metric tons per year, as
are the drilling wastes and produced
waters from oil and gas production
identified in section 8002(m) of RCRA.''
Therefore, under today's proposal,
individual mineral processing waste
streams that are generated in the
aggregate in quantities exceeding 2 '
million metric tons per year shall be
retained within the Bevill excluoion.
These wastes will be studied by EPA to
determine whether regulation under
Subtitlu C is warranted.
At the same time, as discussed above.
EPA recognizes that some mineral
commodity sectors may comprise very
few facilities, and hence, generate lower
total waste quantities than others whose
wastes and waste management
problems at the individual facility level
are otherwise very similar. Therefore.
the Agency has explicitly incorporated a
consideration of typical (average) waste
quantities generated at the plant level
into its definition of "high volume." The
limit used (50,000 metric tons per facility
per year) does not retain within the
exclusion the vast majority of mineral
processing wastes, and in fact retains
only those that are generated on a
different and considerably larger scale
than both the other processing wastes
and typical Subtitle C wastes, as
discussed above. Here again, the limit
that EPA uses approximates the lower
end of the range of average, waate
quantities generated in mineral
extraction and beneficiation '* (oil and
gas waste data are available only on a
per-well basis and hence are not useful
in. establishing a quantitative limit for
this criterion).
C. Criteria for Identifying "Low Hazard"
Wastes from Ore-and Mineral
Processing
Based on the court's findings in EOF v.
EPA. an ore or mineral processing waste
must be a "special waste", that is. a
"high volume, low hazard" waste, in
order for it to be temporarily excluded
from RCRA Subtitle C regulation by the
Bevill Amendment. To determine
whether a processing waste is of "low
hazard". EPA began with three-
principles:
"U.S. EPA. 1988. Op. cit
U.S. EPA. 1987. Report to Contra* on
Management of Wa*U» from the Exploration.
Development, and Production of Crude Oil. Natural
COM. and Caothermai Energy: vol 1: Oil and Cat.
Wtihinston: OfTk* of Solid W««u and Emergency
RnponM. EPA/S30-SW-SB-003.
" U.S. GI'A. IDaB. Op. c;l :
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Federal Register / Vol. 53. No. 203 / Thursday. October 20. 1988 / Proposed Rales
41295
(1) The purpose of • "low hazard"
criterion is to assist in identifying the
wastes that EPA is required by the
Bevill Amendment to study so that
actual hazard can be assessed;
(2) The "tow hazard" criterion must be
consistent with Congressional intent;
and
(3) The "low hazard" criterion must be
easily applied to the universe of high
volume processing wastes using existing
or easily obtainable information.
EPA considered two approaches to
identifying "high volume" ore and
mineral processing wastes that are "low
hazard." and thus, should be
temporarily excluded from Subtitle C
regulation by the Bevill Amendment, as
follows:
(1) Define excluded waste as any
"high volume" processing waste that
. does not exhibit any of the
characteristics of hazardous waste as
defined in RCRA Subtitle C (EP-toxicity.
corrosivity, reactivity, or ignitability);
and
(2) Eliminate this criterion, and
consider all "high volume" procesaing
wastes to be temporarily excluded from
Subtitle C regulation.
Today* proposal is based on the
second approach listed above, i.e., EPA
consider* ail wastes that meet the
proposed "high volume" and
"processing" waste criteria to be
"special wastes" and thns, temporarily
excluded from RCRA Subtitle C
regulation by the Bevill Amendment
EPA takes this position because the
Agency believes that die alternative
approach is inappropriate as a basis for
screening high volume waste* to
determine the need for study in a Report
to Congress. Moreover, option 1 ia
impractical because the data needed to
implement it would not he available
until detailed studies, such.as thai* that
would support the Report to Congress.
have been conducted.
EPA believes that it would be
inappropriate to use the existing
hazardous waste characteristics as a
basis for determining which high-volume
processing waste* are "low hazard."
When EPA promulgated hazardous
waste regulation* on May 19,1980, that ''
deleted the "special waste" category
proposed in 1978, the Agency indicated
that a "special waste" category wa« no
longer necessary because the originally
proposed EP-tbxicity and corrosivity
characteristics for defining hazardous
waste had been more narrowly defined,
thus eliminating prospective Subtitle C
regulation of most previously identified
"special wastes." See 45 FR 33175.
When Congress adopted the Bevill
Amendment, it instructed EPA to study
wastes from the extraction.
beneficiation. and processing of ores
and minerals, prior to subjecting them to
Subtitle C regulation: some of these
wastes exhibit hazardous
characteristics and would therefore fall
under Subtitle C in the absence of the
Bevill exclusion. Indeed, several of the
extraction and beneficiation wastes
already studied by EPA under sections
8002 (f) and (p) of RCRA fail one or more
of the RCRA hazardous characteristics.
Yet. EPA determined to not regulate any
of these studied wastes iinrjpr Subtitle
C On the same day that the Court of
Appeals ordered EPA to propose today's
rule, it upheld the Agency's regulatory
determination for extraction and
beneficiation wastes, explicitly rejecting
the argument that if a waste fails a
characteristic then it moat be regulated
under Subtitle C and accepting EPA's
contention that other factors can be
considered in determining whether a
high-volume mining waste should be
permanently exdaded from Subtitle C
regulation. Eavuoaaxatal Defense Fund
v. EPA. 052 F2d 1300 (B.C. Or. 1986).
EPA believes that the Court wo«M abo
recognize that the characteristic teat*
should not be the primary factor* ia
determining whether a mineral
proceeding waste k to be afforded the
temporary exchwism provided by tho
Bevfll Aimmrimoat
In addition to examining
Congressional intact and recent Court
decisiom, the Agency al*o considered
the practicality of using the hazardous
waste "characteristics" for identifying
"high volume'* wastes that an not "low
hazard." Specifically. EPA examined the
data available on mineral processing
wactea, and concluded that the
necessary data on waste characteristics
are only rarely available, and. where
available, are highly variable. Extensive
study by EPA would therefore be
necessary before the Agency could
apply these criteria to the high-volume
processing wastes. Accordingly, the
Agency also concluded that the
implementation of a "low hazard"
criterion based on RCRA Subtitle C
hazardous waste "characteristics"
would not be feasible.
EPA also briefly considered
developing a substitute test for
determining whether large-volume
processing wastes are low hazard.
However, EPA does not have an
appropriate alternative test currently in
place. Further, EPA has even fewer data
to characterize the hazards of large-
volume processing wastes using
alternate tests. In light of the very short
time granted by the Court of Appeals to
propose this reinterpreUtion. EPA found
it infeasible.to develop an alternate test
and collect the necessary data.
For the reasons stated above. EPA
believes that it ia both necessary and
appropriate that the empkasn in
defining mineral processing wastes that
are temporarily excluded from Subtitle
C regulation by the Bevill Amendment
> be OB the volume of waste generated
Thte ia toe same concision that EPA
reached hi 1385 when the Agency
proposed to reinterpret the scope of the
Bevill Amendment and stated that:
Based on the various indication* of
ConxveseiOBsi into! described IB the text
EPA believe* it i* ee**esable to rely
primarily am vaian>B of vaMm generated to
determine wMca waste* AaM have been
excluded by the Bevill Aaeadneot (50 FR
4029*).
D. Proposed BevrH-ExcJaded Processing
Wastes
Based upoe. available data. EPA
propose* te retain the waste* presented
in TabJe 3, below, witow (fee Beval
exclusion, because they meet the criteria
for "special" mineral processing wastes
articulated in thi* proposal. The Agency
encourage* member* of industry and the
public to submit, ia public comment
description* of and quantitative data
regarding aay additional specific waste
stream* that they believe meet'these
criteria tor study by EPA poor to the
final resolution of their regulatory
status.
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41296
Federal Register / Vol. 53. No. 203 / Thursday. October 20. 1988 / Proposed Rules
TABLE 3.—SrecJAt WASTES GENERATED FROM MINERAL PROCESSING THAT ARE PROPOSED FOR RETENTION WITHIN THE Beviu
EXCLUSION
Commodity sector and waste typ«
Number o(
factfree*
estimated
Industry-wide
waste
generation
(MT/yr) •
Averaqo
waste
generation
lor facility
(MT/yr) *
Cooper*
Pfocosfi W*attw*t*f ...„«,..««...
Aod PUKrt SkjwOcwn „..„.-....„....„ — „ „ „ ....".
(.•*<£* SfMllins Slij »««.•• ........ „......'.. ............... «.«.,
2inc«
PiOCfM Wist***!** ,„ ..»..«.....«..„.„ ...„., . „ rt.
Acxl Plant Slowdown ,.......—....,. »...««..™.......w......«.™.™ .......... „ „
Bewactt: * Had and Brawn Muds -„«.....«..«....„. ............. „ «....«.....„.....„ ™™
otto'
Elemenm Pt>oacftOfOfj> S1*g ......,IJ1 . . 4
Iron Blast Furnace* S2j|Q.».«.H....«.««»».«. -. ... „
fron Blast Furnace AFC Duat/SkxJoe „._ _._......„..... „ _ .-..
time Kiln APC Ou^..^«.««».«..«. .. W.M. «
Wute And* from Titiwum Dionde Production •_._ T. „ _
Ctiiotnta Oft noiitifijfLaaynmj llij'.... ,
g
10
7
7
s
2
4
4
27
5
24
24
117
3
2
3652080
530500
4 399.710
444600
328630
1 451 000
305.800
2.697.000
47000000
3,000.000
9.805.000
3.197.000
3300000
1 375000
< 'i. <
^56 5tO
53 050
628 530
63 514
65 726
76,450
674,250
1 740 741
600000
406,542
133.208
j7i 925
•Tola! Eilimaled Industry-Wide Watte Generation*:(Faciliry Capacity) * (Projected Average Long-term Utilization) * (Generation Rate). Source: EPA
estimates baud on data provided by the U.S. Bureau of Mines. PEDCo Environmental Incorporated. Radian Incorporated, and individual facility operators.
•Average Wane Generation per PaciIity-fTotal Estimated Industry-Wide Waata Generarion)/(Number of Facilities).
•Detailed data are tivailable on wanes In these commodity MCtors because EPA waa about to complete and submit a required Report to Congress
atldreiting their management when today's proposed rule wee mandated by the Court Oat* on the other wastes remaining within the exclusion are far more
limited. •
' Industry-wide wastu totals were obtained Froa a phor proposed rulemaklng (SO FR *OZ92)vNumber of facilitiea generating each waste were obtained from
the Bureau of Mises (penonal communication. 1988).
• Data on waste geMratkn rates were obtained from PH Associates. Inc. 1964. Overview of Solid Wastu Generation. Management, and Chemical
Cnanxun'ilia: Primary Antimony. Magnesium. Tin. and Titanium Smelting and Refining Induttrie*. Prepared for Industrial Environmental Research Laboratory.
Office of Research and Development U.S. EPA.
'Total waste generation,data are unavailable. Average waste generation ia believed to be greatar than 50400 MT/yr. baaed upon production volumes and
quantities of feedstocks consumed.
Most mineral processing wastes on
which the Agency has information do
not conform to the "high volume"
criteria used to compile the list
presented in Table 3. This includes most
that has been proponed for study under
the Bevill Amendment in public
comment on the 198J5 proposed
remterpretation. In addition, none of the
six smelting wastes that were recently
relisted as hazardous wastes satisfy the
high volume criteria described here.
Within the five metallic ore processing
sectors that have been most extensively
studied by EPA (aluminum, bauxite.
copper, lead, and zinc), the range of total
sector-wide volumen of waste streams
(hat are not retained within the
proposed exclusion is very broad, from
100 to 228.000 metric tone per year,
(hough the upper end of this range is a
full order of magnitude lower than the
cutoff for meeting the high volume
criterion. Average generation rates at
individual plants range from 20 to 38.000
metric tons per year. Only one waste
stream (wastewater treatment plant
sludge in the copper sector) is generated
in volumes that approach the limit
necessary to remain within the
exclusion (average of 50.000 MT/Yr).
All other waste streams arising from
these five metal processing sectors are
generated at an average of less than
10.000 metric tons per year, and most
are generated in the hundreds of tons
per facility per year.
Therefore. EPA believes that it has
correctly and unambiguously identified
the wastes that were of concern to
Congress when it enacted the Bevill
amendment, and has, at the same time,
presented explicit criteria that will
enable members of the regulated
community and the public to evaluate
whether any additional wastes should
' be added to the list in Table 3 for the
continued regulatory exclusion and
study provided by the Bevill
amendment The Agency has identified
and proposed for temporary exclusion
all of the wastes from ore and mineral
processing that, according to available
data, meet these criteria. In the absence
of new information submitted during the
public comment period. EPA does not
anticipate that additional wastes will be
proposed for exclusion under the Bevill
Amendment when this proposed rule is
finalized on February 15.1989.
Accordingly. EPA hereby solicits public
comment (and supporting data) on the
approach described in this proposal, on
the specific numerical criteria, on the
specific waste streams proposed for
continued exclusion from Subtitle C
under Bevill. and on any additional
candidate Bevill wastes. EPA will
address all major comments received
during the 30-day comment period prior
to finalizing the rule.
IIL Regulatory Impacts on This Proposal
When this rule is promulgated in final
form, mineral processing wastes that
have been temporarily excluded from
regulation under Subtitle C of RCRA
since 1980 and that do not meet the
criteria for "special wastes," as
described above, may now be subject to
Subtitle C requirements beginning, at the
latest six months after publication of
the final rule in those states that do not
have authorization to .administer their
own hazardous waste program in lieu of
EPA (see RCRA section 3010). These
requirements include determining
whether the solid waste(s) exhibit
hazardous characteristics (40 CFR
282.11), and. if so would require the
operator to obtain an EPA identification
number (40 CFR 262.34), comply with
recordkeeping and reporting
requirements (40 CFR 282.40-262.43),
and submit an application for a
treatment, storage, or disposal permit
(RCRA section 3005 "Part A" permit) for
interim status if the waste is managed
onsite.
-------
Federal Register / Vol. 53. No. 203 / Thursday. October 20. 1988 / Propo3ed Rules
41297
Subsequently, these treatment.
storage, or disposal (TSD) facilities
would have to apply for a final permit
under RCRA Part B provisions.
Completion of Part B applications would
require individual facilities to develop
and compile information on their on-site
waste management operations
including, but not limited to the
following activities: Ground-water
monitoring (if waste management on
land is involved): manifest systems,
recordkeeping. and reporting; closure.
and possibly, post-closure requirements;
and financial responsibility
requirements. The Part B applications
may also require development of
engineering plans to upgrade existing
facilities.
In addition, many of these facilities
will, in the future, be subject to land
disposal restriction (LDR) standards.
EPA will promulgate LDR standards for
all characteristic hazardous wastes by
May 8.1990. Under EPA regulations,
these standards must require treatment
of the affected wastes to a level or by a
method that reflects the use of Best
Demonstrated Available Technology
(BOAT) before the wastes can be
disposed on the land. Thus, one future
implication of today's proposal (when
finalized) will be the ban on land
. disposal of these wastes unless they are
appropriately treated prior to such
disposal. Also, facilities with existing
permits and permit applications that are
currently treating, storing, or disposing
of wastes that will be subject to Subtitle
C regulation when this rule is
promulgated, will have to amend or
modify their permits or applications to
include provisions applicable to
managing these newly non-excluded
wastes.
IV. Public Participation
Requests to speak at the public
hearing should be submitted in writing
to the Public Hearing Officer, Office of
Solid Waste. (WH-662). U.S.
Environmental Protection Agency, 4O1M
Street SW.. Washington, DC 20460. The
public hearing is at the U.S.
Environmental Protection Agency.
Conference Room 13, 401M Street SW..
Washington. DC. The hearing will begin
at 10:00 a.m. with registration beginning
at 9:30 a.m. The hearing will end at noon
unless concluded earlier. Oral and
written statements may be submitted at
the public hearing. Persons who wish to
make oral presentations must restrict
these to 15 minutes, and are requested
to provide written comments for
inclusion in the official record.
V. Effect on State Authorization*
This proposal, if promulgated, will not
be automatically effective in authorized
States, since the requirements will not
be imposed pursuant to the Hazardous
and Solid Waste Amendments of 1984. "
Thus, this ^interpretation will be
immediately applicable only in those
few States that do not have interim or
final authorization to operate their own
hazardous waste programs in lieu of the
Federal program. In authorized States,
the reinterpretation and the regulation of
non-excluded processing wastes will not
be applicable until the State revises its
program to adopt equivalent
requirements under State law.
40 CFR 271.21(e) requires States that
have final authorization to revise their
programs to adopt equivalent standards
by July 1.1990 if only regulatory changes
are necessary, or by July 1,1991 if
statutory changes are necessary. These
deadlines can be extended in
exceptional cases (4OCFR 271.21(e){3)).
Once EPA approves the revision, the
State requirements become Subtitle C
RCRA requirements in that State.
States that submit an official
application for final authorization less
than 12 month* after the effective date
of the reinterpretatioa mmy be approved
without including an equivalent
provision (i.e., to address "special"
mineral processing wastes) in the
application. However; once authorized. •
a State must revise it* program to
include an equivalent provision within
the time period discussed above. The
process and schedule for revisions to
State programs are described in the
amendment to 40 CFR 271.21 published
on May 22.1964. See 48 FR 21768. (See
also 51 FR 33722. Sept 22,1966.)
VL Compliance With Executive Oxde;
12291
Sections 2 and 3 of Executive Order
12291 (46 FR 13193) 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, individuals, 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 in domestic or export
markets.
Section 8 of Executive Order 1Z291
exempts an agency from the
requirements of the order when
compliance would conflict with
deadlines imposed by statute or judicial
•order. Accumulating the information and
conducting the analyses required to fully
comply with the requirements of
sections 2 and 3 takes many months.
Therefore, compliance with these
requirements is not possible within the
schedule specified by the Court for this
rulemaking.
Although the Agency cannot conduct
a complete economic impact analysis
within the period of time allowed by the
Court, several economic impact
analyses conducted in support of
previous Agency rulemaking activity
suggest that today's proposal does not
meet the criteria for a "major" rule.
In 1985, EPA conducted cost and
economic impact studies to analyze the
potential cost and market impacts of the
proposed reinterpretation of the Bevill
Amendment on metal processing sectors
and to evaluate possible impacts on
small businesses. These studies
involved detailed compliance cost and
economic impact analyses for ten major
primary metal smelting and refining
sectors, and less detailed impact
screening analyses for 21 other metals
sectors,1* containing a total of 110
operating facilities that produced 97
percent of total U.S. nonferrous and
ferroalloy product tonnage in 1983. The
ten major sectors were aluminum.
copper, lead, zinc, ferroalloys.
magnesium, titanium metal, titanium
dioxide, zinc oxide, and zirconium/
hafnium. EPA determined that the 1985
proposed reinterpretation would impose
annual compliance cost* of
approximately $20 million on these ten
sectors, and therefore would not
constitute a "major" rule. The 1985
studies did not address risk to human
health and the environment posed by
the wastes generated and the waste
management practices employed in
these commodity sectors.
In the preamble to the 1995
reinterpretation. EPA also discussed
13 Policy Planning * Evaluation. Inc. 1985.
Economic Impact Analysis of Proposed
Reinterpretation of Solid Watte Exemption for the
Primary Smelting and Refining Industry. Office of
Solid Wa»t». US. EPA.
Policy Planning ft Evaluation. Inc. 198S. Economic
Impact Analysis of Proposed Retnterpretation of
Solid Waste Exemption for the Primary Smeltirg
and Refining Indultry (Supplemental Analysis o>?l
Minor Metals Industries!. Office of Solid Waste.
U.S. EPA.
ICF Incorporated. IMS. Hazardous Waste
Management Cost* in Selected Primary Smelting
and Refining Industries. Office of Soled Waste. U S.
EPA.
-------
41296 Federal Register /, Vol. 53. No. 203 / Thursday. October 20, 1988 / Proposed Rules
economic impacts on Ihe ten major
nonferrous metal- and ferroalloy-
producing sectors, including effects on
production costs, prices, international
trade, total investment! requirements.
return on investment and potential for
plant closures and job losses. See 50 FR
40299. The analysis indicated that the
average increases in production costs or
prices would be small to moderate (less
than two percent) for nine of the ten
sectors. On average across all ten
sectors, the annualized costs of the 1985
proposed remterpretation amounted to
less than 0.4 percent of production costs
or prices. Because of these very limited
effects on prices, the study did not
explore the possible effects of the
proposed rule on international trade.
To examine effects on investment,
EPA estimated average capital
investment costs of compliance as a
percent of normal capital expenditures.
and found that this ratio ranged from
one percent (In aluminum and copper •
sectors) to 75 percent (in the zinc
sector). The effect of today's rule would
be significantly lower for the zinc sector
than that of the 1985 proposed"
^interpretation becauiie acid plant
blowdown and procesu wastewater
(which were not proposed for continued
exclusion in 1985) accounted for a large
part of the estimated Subtitle C
compliance costs of tint 1985 proposal.
The results for return on investment
showed a majority of sectors with
maximum impacts on profit of about two
percent. Firms in the zinc, ferroalloys.
and titanium dioxide sectors, however,
would have experienced larger changes
in return on investment: had the 1985
proposed reinterpretation been
promulgated. Both the zinc and titanium
dioxide sectors generate high volume
waste streams (accounting for a
significant fraction of any incremental
RCRA waste management costs) that
would be temporarily exempted from
Subtitle C regulation as a result of
today's proposed rule. Finally, EPA's
plant closure and employment loss
analysis indicated that the 1985
proposed reinterpretation might result in
the closure of one plant (in the
ferroalloys sector) and the concomitant
loss of approximately 30 jobs.
In 1986. in response to comments
regarding the 1985 impact studies, EPA
made extensive revisions to its 1985 cost
and impact estimates for the major
primary metals sectors. Although the
revisions resulted in increases in the
estimated costs for most sectors, total
after tax compliance costs for the
facilities in aggregate were around S25
million, still well below the $100 million
annual cost threshold. Accordingly, the
Agency considered its initial judgment
that the 1985 proposed reinterpretation
was not a major rule, validated.
There are a number of differences
between the 1985 proposed
reinterpretatioa and today's proposed
rule. In 1985. the only processing wastes
that would have been temporarily
excluded Gram Subtitle C regulation
under the provisions of the Bevili
Amendment were phosphogypsum.
bauxite refining muds, primary metal
smelting slags, and slag from elemental
phosphorous reduction. Today's notice
establishes an expanded list of the
wastes that would remain within the
exclusion as special wastes. Waste
streams that were included in the 1985
coat and impact estimate* in 1985 but
that would be excluded under today's
proposal include process wastewater
from primary copper smelting/refining.
bleed electrolyte from primary copper
refining, blowdown from acid plants at
primary copper smelters, blowdown
from acid plants at primary zinc
smelters, wastewater from primary zmc
smelting, and waste acids from titanium
dioxide production. These additional
proposed exclusions from immediate
Subtitle C regulation imply substantial
reductions in costs and economic
impacts from those estimated for the
1985 reinterpretation.
In 1988, EPA analyzed in depth the
five major smelting and refining sectors
that accounted for approximately SO
percent of total 1985 nonferrous metal
production. These sectors comprise the
aluminum, bauxite, copper. lead, and
zinc processing industries. The 1988
estimates represent the most recent and
reliable assessment of the costs and
economic impacts of Subtitle C
compliance for these sectors, after
factoring out the effects of the listing of
the six hazardous smelter wastes and of
the high volume wastes identified
above, which wiH be subject to further
study and regulatory consideration,
Based on this 1988 analysis. EPA
estimates that the five major metal
commodity sectors would incur before-
tax incremental annual costs for Subtitle
C compliance of about $11 million under
today's proposal. The annual revenue
requirements by sector and the number
of affected facilities are displayed in
Table 4. In total the Agency estimates
that the incremental compliance cost is
a IP« than 10 percent increase over the
current costs of waste management and
only 33 of 57 operating facilities would
experience increased waste
management costs of any kind.
TABLE 4.—COST IMPACTS OP TODAY'S PROPOSAL ON FIVE MAJOR METALLIC ORE PROCESSING SECTORS
Sector
Copp«rr
DUCU UWM M III UJ *
Smeiong and/or Htfiomg ..„„.„_._..„.. „..__„
Z nc
t«»<),, „„„,_„. „__„„ __.__. ' '"""""
Ahjmmum — .._ ..„ . „ . „,.,„,„ ,_ ,,UI
S»uxrt» „_,.„„ ,
ToUl,,,...., „
NumtMrof
tflOMM
10
12
£
5
24
4
57
NurtMTOl
fM^t^M
g
4
4
21
0
33
QuantitiM
at
ruizvdouv
y.)
Q
157 460
a* 719
1^780
110,246
0
375,218
annual
r*rH •••MT^rrt
l$1.000/yr.)
2603
319
2574
0
1 1 142
to«ttcun«ni
manag*-
nwnlcsKM
11
16
11
9
0
10
Although EPA has not updated Its
analyses for the remaining sectors of the
metals industry, the Agency believes
that the impacts in these sectors will be
roughly proportional to those predicted
for the five major sectors.
In terms of economic impact in 1968
the Agency calculated two financial
ratios for the five major nonferrou*
metal-producing industry sectors. These
ratios are: Annual revenue requirement
(incremental compliance.cost) as a
percentage of value of shipments, and
new capital investment needed for
-------
regulatory compliance as a percentage
of average annual investment.
Th= «„, ratio mea8ures the maximum
i price nse if the industry is able
. -.» all increased costs throush to
whlrhTf3 °r the maxim"n1 amount by
which before-tax profits will decline if
no costs can be recovered by increasina
prices. The second ratio allows a
comparison between new capital
TABLE 5.—ECONOMIC IMPACTS
.—
required and the amount of new
investment that the inH,,.^, historically
« The results are presented in Table 5
and indicate that for the five industry
sectors the incremental annual revenue-
requirements would average 0.1 percent
of the value of shipments. The only
industry with a ratio greater than one
percent is the zinc sector with a ratio of
,.=„-•, . ' The avera8e compliance
capital cos would average 0.1 percent
of historical capital investment acrogs
efter!™';';'0?1 indicatin« a negligible
etfect on the firms' capital investment
decisions The potential impacts on
several of the remaining 21 metals
sectors, however, is unclear because
EPA does not have sufficient data to
undertake a detailed analysis
OPE
Incremental
Annuel Cost • -•—"•"*»•«•
«1.000/yr, j c^co*
Copper
Zinc
Lead ".'""".".'.'.'
Aluminum
Bauxite "".'.....
The costs and impacts that EPA has
estimated to date have not included
considerations of the nossihlp ofFo^t. *e
*L * , . * M*c pwoaiuie eiiects ot
tfie land disposal restrictions and
corrective action requirements
contained in the provisions of the
Hazardous and Solid Waste
Amendments (HSWA) of 1984
In addition. EPA has little or no data
on the non-metallic ore and mineral
processing sectors, such as elemental
phosphorous production, some of which
generate wastes that would be
temporarily excluded from Subtitle C
under today's proposed rule. At the
same time, many of these facilities also
generate small volume wastes that
would be affected by the proposal.
Therefore, the Agency is unable to
SH.?! 'mf-aCt °-f today>* ProP°««l on
nr- J H T™ ln the non-metallic
ore and mineral processing industry
sectors, and hereby requests public
comment on any such sectora that might
be affected by this proposal becau«r
they generate low volume, characteristic
hazardous wastes.
This proposal wcs submitted to the
Office of Management and Budget
Kf?!!forrevie" «• «
-------
41300 Federal Register / Vol. 53. No. 203 / Thursday. October 20. 1988 / Proposed Rule3
phosphate rock and overburden from the
mining of uranium ore. For purposes of
this paragraph, solid v/aste from the
processing.of ores and minerals includes
only the following materials:
(i) Slag from pnmary copper smelting;
(ii) Process wastewater from primary
copper smelting/refining;
(iii) Slowdown from acid plants at
primary copper smelters:
(!v) Bleed electrolyte from primary
copper refining;
(v) Slag from primary lead smelting:
(vi) Slowdown from acid plants at
primary zinc smelters;
(vii) Process wastewater from primary
zinc smelting/refining;
(viii) Red and brown muds from
bauxite refining;
(ix) Phosphogypsum from phosphoric
acid production;
(x) Slag from elemental phosphorous
production:
(xi) Iron blast furnace slag;
(xii) Air pollution control dust/sludge
from iron blast furnaces:
(xiii) Waste acids from titanium
dioxide production:
(xiv) Air pollution control dust from
lime kilns: and
(xv) Slag from roasting/leaching of
chromite ore.
• * • * •
(FR Doc. 88-24348 Filed 10-18-88: 8:51 am|
MUJMOCOOe U4O-OM*
-------
553d*
'if.
Not 25& £ Fridays Decgmbep
.. TABUt302.4r-LlST OF HAZARDOUS SUBSTANCES AND RERORTABLE QUMfKriE&- ••
C See footnote* at end of table- 302.41
Hazardous substance
Wastewaters,"pr'oOTS^"residual9, preservative drippage, and dis-
carded spent formulation* from wood ? ^^^?«!fj"
facilities that currently use or have prevwusly used chtorophon-
ofc formulations (except wastes from processes that have
compiled with the cleaning or replacement procedures set
forth in § 261.35 and do not resume or mrtiate use of chloro-
phenolic formulations). This listing does not .nclude K001
bottom sediment sludge from the treatment of wastewater from
wood preserving processes that use creosote and/or pentach-
lorophenol.
F033 « ...••« —....- -•« •
Wastewaters. "process residuals, protectant drippagft and dis-
carded spent formulations from wood surface protection proc-
esses at facilities that currently use or have previously used
chlorophenolic formulations (except wastes from processes
that have compiled with the cleaning or replacement proce-
dures set forth in § 261.35 and do not resume or initiate use of
chlorophenolic formulations).
Wastewaters, process residuals, preservative drippage, and dis-
carded spent formulations from wood preserving processes
that currently use creosote formulations. This listing does not
include K001 bottom sediment sludge 'from the treatment of
wastewater from wood preserving processes that use creosote
and/or pentachlorophenol.
F035 - -
Wastewaters, process residuals, preservative drippage, and dis-
carded spent formulations from wood preserving processes
using inorganic preservatives containing arsenic or chromium.
This listing does not include K001 bottom sediment sludge
from the treatment of wastewater from wood preserving proc-
esses that use creosote and/or pentachlorophenol.
Statutory
Final RQ
Regulatory
synoflyms
RQ
Code
10
1 °
RCRA
waste
number
Category Pounds (Kg)
4 F032 X 1 (0.454)
1 (0.454)
4 F034 X_ I (0.454*
4 F035 X...
1 (0.454)
[FR Doc. 88-30073 Filed 1-2-29-88; 8:45 am)
BILUNG CODE 6560-5O-M
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[SW-FRL-3500-6]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Tentative Petition
Denial
AGENCY: Environmental Protection
Agency. _y
ACTION: Tenatu • aetermination to deny
petition for rulemaking; request fo.r
comments. . '•
SUMMARY: The U.S. Environmental
Protection Agency (EPA or Agency)
today is issuing a tentative
determination to deny a petition from
the American Wood Preservers Institute
(AWPI), to: (1) Reconsider the Agency's
interpretation that EPA hazardous
waste K001 may form from application
of wood preserving Wastewaters to
spray irrigation fields and (2) more
clearly define K001 by specifying the
concentrations of listing constituents
that identify a wood preserving
wastewater treatment sludge as K001. If
EPA finds that K001 can form in spray
irrigation fields, the petitioner requests
that owners or operators of such
facilities be given six months from the
date of EPA's response to comply with
the regulations. EPA also has
determined tentatively to deny, this
request. The Agency has, however,
provided in this Federal Register notice
a description of how EPA Hazardous
Waste K001 applies to spray irrigation
fields. This guidance is intended to
provide additional assistance to
generators in indentification of K001.
The Agency bases today's tentative
determination to deny the petition on (1)
the listing description, (2) the
information provided in the docket •
supporting the K001 listing and (3) EPA's
examination of the data submitted by
the petitioner, to support their claim that
spray irrigation fields used for the land
treatment of wood preserving'
wastewaters do not generate
wastewater treatment sludges and that
any wastes that are so generated do not
contain significant concentrations of the
constituents of concern specified for
K001 in 40 CFR Part 261, Appendix VII.
It is the Agency's tentative
determination that the K001 Background
Document and the data submitted by the
petitioner support the conclusion that
wastewater treatment sludges that meet
the K001 listing description may be
generated, treated or otherwise '
managed in spray irrigation fields.
Therefore, the Agency believes that the
K001 listing applies to sludge that forms
"in spray irrigation fields used for the
treatment of wastewaters from wood
preserving processes that use creosote
and/or pentachlorophenol. Further, the
Agency believes it provided adequate
notice to wood preservers who use
spray irrigation fields of the description
of K001 by publication of a notice of the
listing in the Federal Register and by
providing opportunities for public
comment on the listing. For this reason.
the Agency does not propose to give
these facilities additional time to come
into compliance with RCRA regulations.
Accordingly, the Agency tentatively
denies the AWPI petition.
-------
Federali Register / Vol. 53, No. 251 / Friday, December 30. 1988 / Proposed Rules 53331
DATES: EPA is requesting public
comments on today's tentative
determination to deny the petition from
AWPL Comments will be accepted until
February 28,1989. Comments
postmarked after this date will be •
stamped "late" and may not be
considered
Any person may request a hearing on
this tentative determination by filing a
request with Mr. Devereaux Barnes,
whose address appears below, by
January 17,1989. The request must
contain the information prescribed in 40
CFR 260.20{d).
ADDRESSES: Comments on this tentative
determination should be sent in
triplicate to the EPA RCRA Docket Clerk
(WH-582), U.S. Environmental
Protection Agency, 401M Street, SW.,
Washington, DC 20460. All comments
must be marked "Docket Number F-
88WPDP-FFFFF".
Requests for a hearing should be
addressed to Mr. Devereaux Barnes,
Director, Characterization and
Assessment Division (GS-330), Office of
Solid Waste, U.S. Environmental
Protection Agency, 401M Street, SW.,
Washington, DC 20480.
The RCRA regulatory docket for this
tentative determination is located at the
U.S. Environmental Protection Agency,
401M Street, SW. (sub-basement),
Washington, DC 20460. The public must
make an appointment in order to review
the docket by calling (202) 475-9327. The
docket is available for viewing from 9:00
a.m. to 4:00 p.m., Monday through
Friday, excluding Federal holidays. The
public may copy a maximum of 100
pages of material from any one
regulatory docket at no cost. Additional
copies cost 15 cents per page.
FOR FURTHER INFORMATION CONTACT:
The RCRA Hotline, toll free at (800) 424-
9348. or at (202) 382-3000. For technical
information concerning this notice,
contact Mr. Edwin F. Abrams, Listing
Section, Office of Solid Waste (OS-333),
U.S. Environmental Protection Agency,
401M Street. SW., Washington. DC
20460, (202) 382-4787.
SUPPLEMENTARY INFORMATION: The
contents of today's notice are listed in
the following outline:
I. Background
A. Identification and listing of Hazardous
Wastes
: B. American Wood Preservers Institute
Petition
C RCRA Regulations Governing Petitions
II. Summary of the Determination
III. Analysis of EPA's Tentative
Determination
A. Formation of EPA Hazardous Waste
K001 as a Result of Spray Irrigation
B. Guidance For Determining When EPA
Hazardous Waste K001 Forms in Spray
Irrigation Fields
C. Six-Month Suspension.
IV. References
I. Background
A. Identification and Listing of
Hazardous Wastes
Section 3001 of RCRA directs EPA to
promulgate criteria for identifying the
characteristics of a solid waste that
make the waste hazardous and to
promulgate criteria listing specific
wastes as hazardous. Following the
identification of these criteria, the
Agency is also required to promulgate,
regulations identifying the
characteristics of hazardous wastes and
listing particular hazardous wastes. Any
wastes identified as hazardous are
subject to regulation under Subtitle C.
On May 19,1980, the Agency
promulgated rules listing specific wastes
that have been found to be hazardous
based upon the criteria set out in 40 CFR
261.11(a). See 40 CFR Part 261, Subpart
D. These criteria require EPA to
evaluate a number of factors, including
the waste's chemical constituents,
whether those constituents that are
hazardous are present in the waste in
significant concentrations, and whether
these, constituents have the potential to
migrate from the waste, persist in the
environment, and cause substantial
harm when they reach human or
environmental receptors.
, Under section 3001 of RCRA, EPA
listed K001, and other wastes, as
hazardous wastes. K001 is defined as
bottom sediment sludge from the
treatment of wastewaters from wood
preserving processes that use creosote
and/or pentachlorophenol. This listing
was made effective pursuant to an
interim final, regulation, promulgated on
May 19,1980 (45 FR 33084). EPA
concurrently proposed to regulate as
hazardous the wastewaters from wood
preserving processes using creosote
and/or pentachlorophenol (45 FR 33136,
May 19,1980). The Agency, however,
did not finalize the listing of wood
preserving wastewater (45 FR 74884,
November 12,1980). (In a separate part
of today's Federal Register, EPA is again
• proposing to regulate these
wastewaters.)
B. American Wood Preservers Institute
Petition
AWPI is an industry trade association
representing approximately 80 member
companies in the wood preserving
industry. Over half of its members use
creosote and pentachlorophenel in their
wood preserving processes. On January
10,1985, AWPI sent a letter to John H.
Skinner, then the Directorof the Office
of Solid Waste at EPA, requesting
reconsideration of EPA's interpretation
that sludges generated in spray
irrigation fields used to treat wood
preserving wastewaters are bottom
sediment sludges described as EPA
Hazardous Waste No. K001.
Although the AWPI letter was not *
sent to the EPA Administrator (nor was
it sent by certified mail) as prescribed
by the rulemaking petition procedures in f
40 CFR 260.20, the caption of the letter,
"Petition for Reconsideration of
Decision to Classify Wood Preserving
Spray Irrigation Fields as Hazardous
Waste Land Treatment Units and for
Clear Definition of K001 Sludge," and
information included in the request
manifested AWPI's intent to have the
letter serve as a petition for rulemaking
under that section. The Agency has
therefore treated the AWPI January 10,
1985 letter as a rulemaking petition.
In the petition, AWPI asserts that EPA
has incorrectly interpreted the scope of
the K001 listing. AWPI further alleges
that this incorrect interpretation appears
id a letter written in November of 1984,
by John Skinner, then Director of the
Office of Solid Waste (OSW), to James
Scarbrough, a Region IV Branch
Manager. In this November 1984
interpretation, the Director of OSW
confirmed the regulatory status of land
treatment units used to treat
wastewaters by spray irrigation, plow
injection, or flooding. Mr. Skinner
concluded that such land treatment
units used to treat wastewaters from
wood preserving operations using
creosote or pentachlorophenol can
generate K001. Therefore, such units,
when generating, treating, storing, or
disposing of K001, are subject to the
hazardous waste regulations, including
appropriate permitting standards, found
in 40 CFR Parts 262, 263, 264, 265, 268,
270, 271 and 124.
In its petition, AWPI argues that the
application of wastewatens from wood
preserving processes to spray irrigation
fields does not result in the production
of K001 or other sludge, and that the
waste produced in a spray irrigation
field is physically and chemically
different than K001. AWPI further
claims that the chemical and biological
interactions between the wastewater
and the soil in the spray irrigation field
would result in a different material from
the K001 produced from wastewater
treatment by trickling'filters or surface
impoundments. AWPI also.points out
that the wastewater itself is not a listed
waste and asserts that a properly
designed and operated spray irrigation ,
field does not allow migration of
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53332-
Fe&ral Register /. VoL 53, No-. 254 /rFriday;^ December 30,. 1988. A> P»poaecLRttks>,
coiwtitaents outside theiMMtaadi
therefore, cannotbea hasaniaus. waste
land management unit, .
In addition*. AWPI. requested guidance-
regarding the K001 listing, including a
description of the physical and chemical
composition of K001, and an
identification of the constituents of
concern in K001 and of the levels of
concern for the hazardous constiuents of
KOOl. AWPI believes this additional
information is-needed in order for wood
treaters to determine if their spray
irrigation fields produce a sludge and, if
so, whether this sludge is indeed KOOl.
without this information, AWPI
maintains its member facilities will be
unable to prove to EPA that {hey do not
generate K001 and will be unable to
deliat the waste if they do generate it.
Finally, if the petition to reinterpret
the scope of the listing ia denied, AWPI
requests a six-month suspension of the
effective date of the K001 listing and
associated RCRA requirements for
spray irrigation fields, AWPI argues that
a suspension is necessary for their
member facilities to come into
compliance with RCRA because the
Agency's interpretation of the KOOl
listing is analogous to a new or revised
regulation, AWPI also requests that the
Agency formally notify all facilities that
use spray irrigation fielda to treat wood
preserving wastewaters of the Agency's
final decision on AWPI's petition,
C. RCRA Regulations Governing
Petitions-
EPA's process for addressing
rulemaking petitions under RCRA is
specified in 40 CFR 26O.20. Under 40 .-
CFR 260.20, which implements section .. .
7004(a) of RCRA, any person may
petition the Administrator to modify or
revoke any-provision of Parts 260
through 265 and 268 or Title 40 of the
Code of Federal Regulations. Persons
submitting a rulemaking petition must
include a statement of the need and
justification for the proposed action,
including supporting data, tests, studies,
or other information.
Section 260.20 requires the
Administrator to publish in the Federal
Register a tentative determination on
the petition and solicit public comment.
The tentative determination may be in
the form of an advance notice of
proposed rulemaking, a proposed rule,
or a tentative determination, to deny the
petition. Upon written request of any
interested person, the Administrator
may at hi» or her discretion, hold an
. informal public hearing to consider oral
comments. After evaluating all public
comments, EPA will make a final
decision by pttblishin&in the Federal
Register-»reguiatory amendment txr- a>- h
denial of the petitions
This notice constitutes EPA*» tentative
determination to deny-AWPFs petition.
II. Summary of the Determination
EPA has tentatively determined to
deny AWPrs.requests (1) to consider its
interpretation that K001 may form from
application of wastewaters from wood
preserving processes that use creosote
and/as pentachlorophenol to spray
irrigation fields, (2) to define K001 in
terms of the concentrations of. listing.
constituents that cause it to be
hazardous, and (3) to grant a six-month
suspension of the effective date of the
Subtitle C hazardous-waste ,
management regulations for wood
preserving spray irrigation fields- that
contain K001 following formal
notification to generating facilities of the
petition denial. EPA believes that the
existing information and the KOOl listing
description clearly indicate that KOOt
may form in spray irrigation fields, and
this listing, which has been effective:
since 1980, already applies to facilities
generating or managing KQ01.
EPA has. in this tentative-
determination^ provided additional-
guidance for determining when EPA
Hazardous Waste KOQ1 forms in spray
irrigation fields, so that wood preservers
who generate this waste in spray
irrigation fields may more easily identify
it. This guidance is found in Section IIL
B. of this notice..
The KOOl listing is a broad, generic
listing and includes sludges generated ia
spray irrigation, fields that treat
wastewaters from, wood preserving
processes-that use creosote and/or
pentachlorophenoL The listing
description for KOOl bottom sediment
sludges is not based on a concentration
criterion for hazardous constituents in
the wastes. Instead, all bottom sediment
sludges generated from the treatment of
wastewaters from wood preserving
processes that use creosote and/or
pentachlorophenol. are listed, regardless
of the concentrations of constituents in
the sludges. Under 40 CFR 261.11(b), the
Agency has the authority to list classes
or types of waste that typically or
frequently are hazardous. A waste is not
required to contain any minimum
concentration of toxic constituents in
order to meet the listing description.
Contrary to AWPPs allegation, the
toxic constituents that, are the basis for
the KOOl listing have been, identified in
40 CFR Part 251. Appendix VH. since-
1980: However, it is not necessary- to..
show -that a particular waste contains.
any OF aU o£ the Bsting constituents, in
order, to establish that the waste is. ......
hazaidoBS;:Th6iiatiDgestabiisfae3,al ; .. .
presumptioa tnat-ft waste-re hazardous; .
based upon, the constituents that
typically are present in all wastes of this-
general category. The actual presence
and concentrations of toxic constituents
in wastes, meeting the listing description
are only relevant, however, as to
whether EPA should grant petitions to
delist specific wastes that-already are
considered hazardous waste KOOl.
Delisting is the only means to refute the
presumption, that a waste meeting the
listing description is hazardous and
contains hazardous levels of particular
constituents of concern. Accordingly, if
any sludge is formed or managed in
spray irrigation fields as a result of
spray application of wastewaters from
wood preserving processes that use
creosote and/or pentachlorophenol,
then the sludge is KOOl unless delisted.
As explained in Section III. B> of this
notice, the presence of listing
constituents may be helpful, however, in
demonstrating the presence of KOOl.
A six-month suspension of the
effective date of the Subtitle C
hazardous waste management
regulations for KOOl generated or
managed in spray irrigation fields and
the formal notification of affected
facilities are not warranted. The sludge
generated in spray irrigation fields
treating wood preserving wastewaters
has been. listed as a hazardous waste
since November 19,1980. The November
1984 letter from John Skinner to James
Scarbrough was not a new or revised
regulation and did not impose any new
requirements. Any facility generating or
managing KOOl as a result of treatment
of wood preserving wastewaters in
spray irrigation fields has been required
to be in compliance with RCRA since
November 19,1980.
III. Analysis of EPA's Tentative
Determination
A. Formation of EPA Hazardous Waste
KOOl as a Result of Spray Irrigation
EPA Hazardous Waste No. KOOl is
defined as "bottom sediment sludge
from the treatment of wastewaters from
wood preserving processes that use
creosote and/or pentachlorophenol."
The RCRA definition of sludge, found at
40 CFR 280.10, is "* * * any solid, semi.
solid, or liquid waste generated from a
municipal, commercial or industrial
wastewater treatment plant * * *
exclusive of the treated effluent from a
wastewater treatment plant" The KOOl
listing is generic, i.e., it is intentionally
broad enough to encompass any waste
meeting the listing description. Bottom
sediment sludge generated during the
treatment of wastewaters from wood
-------
Feda«d Register / Voh 53. Mo.- 251 / Friday. December 38. 1988 / Proposed* Rule*
preser»ing-proce»«e»tiiBt use cxeeeotr
arui/orpestacnk>rop&£n0i it :
encompassed by tfasliHtaig wherever
such sludge is formed.1
The Background Document describes
typical treatment of wood preserving
waatewaters as "* * * evaporation,
combined biological arid irrigation
process [sic] or incineration."
(Background Document at 37, emphasis
added). The following specific
wastewater treatment practices that
generate K001 are also described in the
Background Document:
—Sedimentation in the bottom of
wastewater treatment ponds or
lagoons (Background Document at 13.
36.37);
—Flocculation {Background Document
at 21,24);
—Sand filtratioa {Background Document
at 24);
—Primary oil water separation
(Background Document at 24);
—Evaporation, with or without the
addition of heat (Background
Document at 2.26):
—Adsorption of wood preserving oils by
the addition of days, resins, alum,
lime, or polymer (Background
Document at 21); and
—Adsorption of pentachlorophenol and
high molecular weight toxic pollutants
onto the biomaas resulting from
biological treatment (Background
Document at 24).
K001 bottom sediment sludge,
therefore, includes wastewater
treatment residuals generated by any of
these mechanisms in any wastewater
treatment unit, including spray irrigation
fields,
Wastewater treatment removes
undesirable contaminants from
wastewater, or destroys or inactivates
contaminants contained in wastewater.
The contaminants found in wood
preserving wastewaters are: Large
particles, such as sand, and sawdust;
fine particles, such as suspended clay;
oil and grease, which may be present as
a discrete floating or sinking layer or
present as large or finu particles; and
dissolved constituents, such as
pentachlorophenol; polynuclear
aromatic hydrocarbons (PAHs), which
1 The K001 lifting definition refers to wood
preserving wastewater treatment sludges as
"bottom sediment sludge*." u reference to the fact
that wood preserving waiteaieoiaaoniy accumulate
by gravity •edkoeBhttkMt'Oa the IxXtomref
wsstewaler surface impoundments And tanks. In the
Background Document prepared In support of die
K00I KiHng. the Agency dhi -not limit the listing 4»
which boltosi •edteint«ludi!m ace generated. Hit
de«r. a« dlsonjd below, thai .bottom sediment •
sludg* produced Sam treating wood preserving
waitewsrfen by spray .Irrlgatian^to aiduifed in ft*
scopaofthalOmiistii^. , . . •
are creosote-wmsu'tuwrts?and wood - •
sugar** '
Wastewater treatment mechanisms
mat destroy or inactivate contaminants,
such as ultraviolet photolysis and
hydrolysis, have only limited application
to wood preserving wastewater. All
other physical/chemical mechanisms
used to treat wood preserving
wastewaters transfer the contaminants
of the wastewater to another medium,
thus forming a sludge. The mechanisms
used to treat wood preserving
wastewater and how each mechanism
generates sludge are described below,
Biological treatment uses
microorganisms to digest and degrade
wastewater contaminants. While
contaminants are removed from the
wastewater, a sludge in the form of
expended microorganisms (which may
or may not be contaminated with
toxicants) is generated.
Sedimentation is the separation from
water, by gravitational settling, of
suspended materials that are heavier
than water. It is used to remove large
particles and oils (e.g., creosote) that are
heavier than water from wood
preserving wastewater in devices such
as sumps, holding tanks, and ponds.
Granular bed filtration is an operation
used to remove fine particedates- from
water. In this operation, wastewater
flows by gravity or pressure through a
bed of granular material, such as sand,
anthracite coal, and/or various types of
gravel The size of the granular material
is much larger than the size of the
particles captured by the filter. Particles
that are larger than the pore space of the
filtering medium are strained out of the
wastewater mechanically. Smaller
particles are captured in the depth of the
filter bed fay-mechanisms such as
sedimentation, impaction, and
interception. Because the particles are
captured in the spaces between the
granules within the bed, there may be no
visible sludge layer. However, the small
particles captured within the bed do
constitute sludges.
Coagulation and flocculation are two
mechanisms used together to remove
small dispersed particles from water.
Coagulation refers to the addition of
chemicals (lime, alum, ferric chloride,
synthetic polyelectrolyte polymers) to
an aqueous suspension of fine particles
in order to change the electrical charge
on the exterior of the particles, a process
called dettabiUzation. Once the
partides are destabilized, they- •
flocculate, or combine into larger •
agglomerates. The flocculated particles-
can be removed frota the wastewater by
some other mechanism such-as-
sedimentation, floatation, orfHteatioa,
treatment is-the process of accuimriating
dissolved contaminants on a solid
surface called an adsorbent. Activated
carbon is- an adsorbent used to remove
dissolved pentachlorophenol and PAHs
from wood preserving wastewaters.
Activated carbon is effective because 1
pentachlorophenol and PAHs have
relatively low polarities, as does the
activated carbon. Dissolved substances
will adsorb to solid materials of similar k
polarity. Other solid surfaces of low
polarity, such as waste biomass in a
biological treatment system and organic
matter in soil, also act as adsorbents for
pentachlorophenol and PAHs in wood
preserving wastewater. The dissolved
constituents that sorb onto the activated
carbon may not be visible but
nevertheless constitute a sludge.
Ion exchange is a process in which
ions held by electrostatic forces to
charged functional groups on the surface
of a solid (such as soil or a synthetic
resin) are exchanged for tons of similar
charge in a solution (such as"'
wastewater) in which the solid is
immersed (Weber, p. 261). An example
of the use of ion exchange for
wastewater treatment is the recovery of
ionic forms of precious metals from
plating wastes. Again, in ion exchange,
the ions exchanged onto the solid
surface may not be visible, but spent ion
exchange resin is considered to contain
a sludge.
Evaporation is a physical process in
which water is removed from its
contaminants and, thus, is distinguished
from other wastewater treatment
mechanisms that remove contaminants
from water. Wastewater evaporation
can be accomplished at ambient
temperatures or heat may be added to
speed up the process. Highly volatile
dissolved constituents will evaporate
with the water but other dissolved
constituents, suspended solids, and oils
will form a sludge in the evaporation
unit as water is removed.
All of the mechanisms described
above operate in spray irrigation fields
that treat wood preserving wastewaters.
The technical studies supplied by AWPI,
in support of its argument that K001
does not form in spray irrigation fields.
. confirm the fact that these fields are
used for the land treatment of
wastewaters from pentachlorophenol
and/or creosote wood preserving '
processes. In the .context of these
studies, it i* clear that spray irrigation of
. wastewatera is not merely a means of
disposal, but also a treatment method
•used to reduce the concentration of"
contaminants in the wastewater.
Further, EPA believes this wastewater ;
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53334 Federal-Register / Vol. 53. Mo. 25tr/ Friday. December 30. 1988 7 Proposed: Rules
treatment may generate sludge by the
mechanisms described above, As
previously explained, such, sludge would
meet the K001 listing description.
AWPI, however, claims that the
application of wastewaters from wood
preserving processes to spray fields
does not result in the production of
K001. AWPI states that K001 is
precipitated solid or semisolid matter
produced by wastewater treatment, and
that: (1) The waste generated in a spray
irrigation field and K001 are not
physically and chemically alike and (2)
spray irrigation field waste and K001 are
produced by different "wastewater-soil
chemical and biological interactions"
{AWPI at 2).
The agency does not agree that the
wasewater treatment mechanisms that
occur in a spray irrigation field differ
from the wastewater treatment
mechanisms that form K001 in other
wastewater treatment units.
Additionally, the Agency does not agree
that the waste generated in a spray
irrigation field and K001 generated in
other wastewater treatment units are
physically and chemically different.* On
the contrary, the Agency believes that
the contaminants removed from wood
preserving wastewater in surface
impoundments, sand filters, and other
wastewater treatment units that AWPI
accepts as generating K001 are similar
or identical to the contaminants
removed from wood preserving
wastewater in a spray irrigation field.
The only issue is whether sludge in fact
forms in the spray irrigation fields. The
Agency believes that the same
mechanisms that operate in surface
impoundments and sand filters may
operate in spray irrigation fields to
produce sludges..
In one of the technical studies
supplied by AWPI, Quagliotti presents
detailed descriptions of the treatment
mechanisms that he believes are
occurring in spray irrigation fields
(Quagliotti at 7-24). Under the scenario
presented by Quagliotti, soil filtration
(i.e., granular bed filtration) and
adsorption act to retain.wastewater
contaminants "in the surface soil matrix
for a long enough period to allpw
material decomposition" (Id. at 17). As
described above, filtration and
adsorption are wastewater treatment
mechanisms that form bottom sediment
sludge. • . .••'<•
2 The Agency recognizes, however, that bilogical
treatment in spray irrigation fileds may in some
cases effectively degrade the constituents removed
from the land-treated wastewatera. Thus, K001
formed in spray fields may in some instances
. contain lower concentrations of particular
constituents than are typically present in other K001
sludges. .
Other wastewater and;sludges
treatment mechanisms that Quagliotti
believes occur in spray irrigation fields
are: biological degradation, both aerobic
and anaerobic; chemical degradation,
including precipitation, hydrolysis and
polymerization; photochemical
degradation; evaporation; and
volatilization (which plays a minor role
in spray irrigation fields due to the
adsorption of wastewater contaminants
to soil). Two mechanisms Quagliotti
considers to play a major role in
wastewater treatment in spray irrigation
fields, biological degradation and
evaporation, are treatment mechanisms
that generate bottom sediment sludge,
as described above. Further,
precipitation and polymerization, two of
the mechanisms Quagliotti includes in
the term chemical degradation, also
form such sludge. It is clear that the
treatment of wood preserving
wastewaters by application to spray
irrigation fields, as described by
Quagliotti, can generate sludge meeting
the K001 listing description.
. In the other technical study supplied
by AWPI, Koppers Company, a member
facility of AWPI, evaluated the spray
irrigation field at its Florence, South
Carolina facility, as part of a
wastewater treatability study. The
conclusion of the evaluation was "the
field appears to be quite adequate to
serve as a wastewater treatment
process." This conclusion was based on
characteristics of the soil in the field,
which were believed to be "generally
sufficient to adsorb pentachlorophenol
and PAHs * * *".
Other studies performed by the wood
preserving industry were also designed
to show contaminant removal from
wastewater by biological degradation,
filtration, and adsorptive processes, all
sludge-forming wastewater treatment
mechanisms (see NCASI, 1985; Gaudy
et. al., 1971; and Fisher, 1971). Sludges
formed by these methods from wood
preserving wastewates in spray
irrigation fields meet the K001 bottom
sediment sludge listing description.
Koppers Company, moreover,
acknowledged in a Corrective Action
Consent Order, dated June 4,1986, that
K001, bottom sediment sludge, in fact, is
collected in spray irrigation fields as a .
result of wood preserving wastewaf er
treatment. (See Findings of Fact, In the
Matter of Koppers Company, Inc.,
Docket No. VW-86-R-O01 at 4.)
AWPI also asserts that KQ01 is solid
or semi-solid material that "has some
identifiable thickness on the bottom of a
collection unit" (AWPI. petition, at 9,
emphasis added). At the same time,
AWPI asserts that.no sludge, K001 or
other, forms in spray irrigation fields- • •
because it has never been observed (Id.
at 2,12). In short, AWPI claims that the
criterion for the generation of a bottom
sediment sludge in a spray irrigation
field should be the generation of a
distinct, .visible layer of material on top
of the soil. .
The Agency disagrees that an
observable sludge layer is a necessary
criterion that must be used to establish
the presence of bottom sediment sludge,
although it would be a sufficient (and
easily implemented) criterion. Using
visible accumulation of matter from
wastewater as a necessary criterion for
sludge formation would preclude from
regulation many wastewater treatment
sludges that were included in the listing
Background Document as specific
examples of the sources of K001. For
example, as described previously, no
visible sludge is formed during
grandular bed filtration, such as sand
filtration, because the fine particulate
separated from wastewater in this
process is captured in the depth of the
filter bed. However, sand filtration units
are specifically described in the K001
listing Background Document at 24).
Also, dissolved constituents that have
adsorbed to a solid material often are
not visible, although saturated solid
adsorbent (e.g., spent activated carbon)
contains waste meeting the listing
definition. (Adsorption is described on
page 21 of the Background Document as
a process that also generates the listed
bottom sediment sludge, K001.)
The petitioner also argues that spray
irrigation fields are not included in the
definition of K001 because the
concentration of 40 CFR Part 261,
Appendix VII listing constituents are
significantly reduced over time by the
spray irrigation process. •
The petitioner fails to recognize and
to appreciate the difference between
treating constituents in the wastewater
and treating constituents in sludge that
has formed from the wastewater, i.e.,
treating hazardous waste.
The Agency recognizes that land
treatment of wastewaters is normally
intended to remove constituents from
wastewater, by processes such as
adsorption, and to degrade such
constituents before or after removal, by
processes such as biological treatment.
. The petitioner has not attempted to
demonstrate, that all wastewater
contaminants are destroyed in the'
wastewater, precluding the formation of
sludge. Nor has the petitioner attempted
to demonstrate that no treatment of
sludge, once formed, occurs when
constituents are destroyed. The Agency
does not believe that any such
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Ragirter /VoE' 53; No. 25J-:/ FMday,. December30M98»;/:
... 5333S
demonstration ooeld b« forthcoming..
The Ageocy-tamlud* tie-petitioner..-
however, that «ny.«a«truction of
hazardous constitant* contained ia
K001, whether in spray irrigation fields
or elsewhere, is treatment of a listed
hazardous waste. As such, a treatment
permit and compliance with Subtitle C .
treatment regulations arc required.
Finally, the petitioner contends that a
properly designed and operated spray
irrigation unit does not allow migration
of any hazardous constituents beyond
the unit's boundaries {AWPI Petition at
10). Although proper design and
operation of a spray irrigation, unit may
not allow migration of any hazardous
constituents from the unit, wastes are
evaluated and included on the RCRA
hazardous -waste lists based on several
criteria, including the potential of the
hazardous constituents; to migrate from
the waste if improperly managed.
Therefore, the ideal or actual design and
operation of wood preserving
wastewater treatment units is irrelevant
to whether the wastewater treatment
sludge is hazardous and to whether the
wastewater treatment unit is required to
comply with the Subtitle C treatment
regulations.3
B, Guidance for Determining When EPA
Hazardous Waste K001 Forms in Spray
Irrigation Fields
In its petition. AWPI claims that the
Agency's definition of EPA Hazardous
Waste K001 is so vague that it does not
provide dear guidance to wood treaters
as to whether their spray field contains
a waste sludge and, if so, whether that
sludge is Hazardous Waste K001. The
petitioner argues that without clear
guidance on the identify of KOCH*
including identification of the
concentration of those constituents in
the sludge which cause the listing, wood
perservers are not able to demonstrate
that K001 is not formed in their spray
irrigation units, nor are they able to
delist the sludges in such units (AWPI
petition at 10}.
Bottom sediment sludge from the
treatment of wastewaters from wood
preserving processes that us& creosote
and/or pentachlorophenol was listed as
a hazardous waste because it typically
and frequently meets the criterion for
listing found at 40 CFR 261.11(a)(3).
(Under Section 2fil.il(b), the Agency
a The fact that apurticulw waste might be
managed property does DO! mean that the waste
docs not meet tire tlstiug deadijjtiuxi and is not
hautdoac Iks Afloocy baciirevionljr evaluated
(ho potential »»«j.rJ« po«od by At phmsibto
mismanagement of £hn hararrimii conati touts
found In K001, at described la the Background
Document supporting the KOOllhling. and found •
them to bo significant.
has the anthoffstjrto Ifefclasaiwiortype* '
of wastes-that typically *r freqaenHyaw
hazardous.} •KTOl contains a number of -
the toxic constituents identified by EPA
in 40 CFR Part 261, Appendix VIH. In
addition, the Agency determined that
this waste is capable of posing a
substantial present or potential hazard
to human health or the environment
when improperly treated, stored,
transported, disposed of, or otherwise
managed. This determination was not
challenged during the public comment
period following the proposed listing of
EPA Hazardous Waste K001.
The presence, generally, of Appendix
VIII hazardous constituents in wood
preserving bottom sediment sludge is
documented in the Background
Document supporting the K001 listing.
The concentrations of these constituents
typically and frequently found in these
sludges were sufficient to meet the
§ 261.11(a}(3) criterion and are described
in the Background Document. Moreover,
the 19 hazardous constituents for which
K001 was listed are found in 40 CFR Part
261, Appendix VII, entitled "Basis for
Listing Hazardous Waste." Appendix
VII was publishd on November 12,1980
(45 FR 74884.74891) in the same Federal
Register document as the publication of
the Interim Final K001 listing. Therefore,
the petitioner's request that the Agency
identify the constituents of concern in
K001 has been satisfied since 1980.
AWPI also requests that EPA clarify
the concentrations of hazardous
constituents that would cause waste
generated in spray irrigation fields to be
K001, presumably so wood preservers
may test their fields to determine if they
contain wastes meeting the K001 listing
description. Again, the listing
description for K001 wastewater
treatment sludges, while based on the
typical and frequent presence of
constituents of concern at hazardous
concentrations, does not contain
particular concentrations of hazardous
constituents in specific wastes. There
are no minimum concentrations for the
19 toxic constituents for which K001 was
listed below which the waste fails to
meet the listing description. Instead, the
entire class of bottom sediment sludges
generated from wastewaters from wood
, preserving processes that use creosote '
and/or pentachlorophenol are listed as
hazardous.
A waste, therefore,-may meet a
general listing description and'
accordingly be regulated as a hazardous
waste without having the hazardous
properties for which it was listed. It fa
precisely for this reason that the Agency
developed procedures to exchidefrom
the .lists of hazardous wastes {OF
"delisf-'J'sjpecifie wasted from
Until a petition for exclusion is granted, ' <
however, wastes meeting the listing
description are hazardous and must be
treated as such pursuant to Subtitle C of
RCRA.
In order to determine if their spray
irrigation fields contain materials that >
meet the listing description of K001.
wood preservers need only determine if
"bottom sediment sludge from the v
treatment of wastewaters from wood
preserving processes that use creosote
and/or pentachlorophenol" has been
generated and stored, treated, or
disposed of in their fields. Wood
preservers need not measure the
concentrations of hazardous •
constituents in their spray irrigation
fields. For the purpose of clarity,
however, EPA will explian how wood
preservers may determine if K001 is
forming in their spray irrigation fields.
Wastewater treatment consists of the
removal of contaminants from
wastewater. Bottom sediment sludges
are generated during wastewater
treatment as described above in Section
HI.A. Spray irrigation treatment of wood
preserving wastewater may generate
sludge by the following mechanisms:
The simple evaporation of water;
sedimentation and/or filtration of
particulate matter; adsoprtion of
dissolved constituents to solid or
organic matter in the soil; in exchange of
any dissolved cations in the wastewater1
with soil cations; conversion of
dissolved constituents to biomass
through the action of microorganisms:
and sedimentation, filtration,
adsorption, or biodegradation of free or
emulsified oils contained in the
wastewater. Therefore, if wood ,,
preservers test their wastewater from -
processes using creosote and/or
pentachlorophenol (by methods
specified in Test Methods for Evaluating
Solid Waste, SW-846, 3rd Edition, 1987,
or by other EPA-approved methods) and
find particulate matter, dissolved
constituents (such as chlorophenols,
PAHs, or wood sugars) or oil and grease,
they should presume that the
wastewater will form bottom sediment
sludge (K001.) when applied to a field by
spray irrigation. Alternatively, having
found contaminants in the wastewater,
the wood preserver could attempt to
demonstrate why none of the sludge-
generating mechanisms described above
would occur in the particular field to
which the wastewater is applied.
If the wastewater that is applied to a
spray irrigation field is tested (by .
methods specified in SW-846 or by
other EPA-approved methods) and
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Federal Register / Vol. 53, No. 251 / Friday, December 30, 1988 / Proposed Rule*
determined to contain no participate
matter, dissolved constituents, or oil and
grease, a wood preserver may presume
that no treatment of this wastewater
will occur as a result of the spray.
irrigation process. No treatment will
occur because there are no
contaminants present that can be
t removed (i.e. treated) during spray
application. If no wastewater treatment
occurs, no bottom sediment sludge can .
be generated and the spray irrigation
field can contain no waste materials
that meet the listing description of
Hazardous Waste'KOOt.
Wood preservers, may also identify
the presence of K001 by testing their
spray irrigation fields. If any of the K001
listing constitutents found in 40 CFR
Part 261, Appendix VII, are present
above the background concentration of
the soils before the wastewaters were
first applied, and the presence of these
constituents.cannot be traced
conclusively to sources other than
treatment of wastewaters from
processes using creosote and/or
pentachlorophenol, the wood preserver
should presume that the spray irrigation
field contain bottom sediment sludge
that meets the K001 listing description.
For example, EPA Region IV collected
toil samples from a spray irrigation field
used to treat wastewater from wood
preserving prbceses using creosote and
pentachlorophenol. At the same time, a
background soil sample was collected
from a location outside of the
boundaries of the wood preserving
facility. Nine K001 listing constituents
were detected in the sprayfield soil, all
at concentrations above the
concentrations measured in the
background soil. For example,
pentachlorophenol was detected at 32
mg/kg in the sprayfield soil, but it was
not detected in the background soil.
Chrysene was present in the sprayfield
soil at 210 mg/kg but the concentration
in the background soil was only 0.33
mg/kg. (USEPA, Transmittal of RCRA
Waste Sampling Investigation Report,
December 1,1986.) Because of these
. analytical results and the knowledge
that the wastewater applied to the spray
irrigation field is derived from wood
preserving processes using
pentachlorophenol and/or creosote, the
wood preserver should presume that the
field contains bottom sediment sludge
that meets the KOOl listing description.
If, however, a spray irrigation field is
tested and no listing constituents are
found to be present above background
soil concentrations, the wood preserver
cannot necessarily conclude that K001
does not form or has never formed in the
spray irrigation field. The lack of such
concentrations may demonstrate
successful treatment of the sludge
(rather than the wastewater}. In
addition, the listing constituents may
have been converted to different
chemical species by bioligical
degradation, chemical degradation, or
photo-degradation. Similarly, sludge may
be present in the field, but may not be
detectable, because of dilution with a
large volume of soil. Sludge also may
have been formed in the spray irrigation
field but may have been washed off or
washed through the soil.
Finally, testing a spray irrigation field
and rinding no listing constitutents
present above soil background
concentrations may simply result from
the presence of high background
concentrations. This is a likely scenario
at wood preserving facilities where
preservative solutions drip or have
dripped from treated wood as it is
moved from the treatment area to
storage yards or preservative is-
dispersed over the treating facility area
by aerosols from pressure treating
equipment. (See, e.g., Quagliotti at 5&-
59).
If a wood preserver tests a spray
irrigation field and finds K001 listing
constitutents are not present above soil
background concentrations, the wood
preserver may believe that the spray .
irrigation field, although containing
wastes that meet the listing description
of KOOl, presents no risk to human
health or the environment. The wood
preserver may then petition EPA to
exclude from regulation or "delist" the
wastewater treatment sludge contained
in their particular spray irrigation field.
Under 40 CFR 260.20 and 260.22, the
Agency must consider the factors for
which the waste was originally listed;
then, the Agency must examine factors
other than those for which the waste
was listed (including additional
Appendix VTII constitutents) in cases
where the Administrator has a
reasonable basis to believe that such
other factors could cause the waste to
be hazardous. Additional information is
provided in a guidance document
entitled, "Petitions to Delist Hazardous
Waste, A Guidance Manual" (April
1985, Office of Solid Waste). Further
information on delisting is available by
contacting the Assistance Branch of the
Permits and State Programs Division,
Office of Solid Waste.
AWPI also claims that spray irrigation
effectively would be banned if wood
. preservers were required to determine .
that no sludge forms in the irrigation
fields or if they were required to delist -
any sludge that does form in .order to
avoid the need to comply with the
Subititle C treatment and permit
requirements (AWPI Petition at 11).
AWPI is also concerned that wood
preservers who treat and dispose of
their wastewater by spray irrigation
might lack alternative dispposal options.
Additionally, AWPI is concerned that
spray irrigation fields operated by wood
preservers might need alteration in
order to comply with Subtitle C
requirements and that, after
modification, the disposal of the KOOl
that forms in the spray irrigation fields
might be banned by the land disposal
restrictions mandated by HSWA1984
(Id. at 13; see also id. at 11).
The Agency agrees with many of
these comments. Most treatment of
hazardous sludge (not treatment of the
wastewater) will, as a matter of law,
sujbect the facility to the RGRA
treatment standards and permit
requirements. If KOOl forms, the facility
is required to obtain appropriate
storage, treatment, or disposal permits
(unless accumulated pursuant to 40 CFR
Section 262.34).
With regard to the applicability of the
land disposal restriction rules, EPA has
developed treatment standards for KOOl
that must be met before KOOl is land
disposed (i.e., placed into, a land-based
unit), unless placement occurs in a no-
migration unit. All generators and
treaters of KOOl are subject to this
standard, wherever KOOl is generated,
even if this makes spray irrigation more
costly or less practicable.
As applied to spray irrigation fields,
KOOl generated in the fields prior to the
effective date of the land disposal
restrictions, August 8,1988, will not be
subject to the restriction unless the KOOl
in the field is managed so as to create
an act of placement after the effective
date (for example, if sprayfield soil
containing KOOl is excavated and
removed to a landfill). Treatment in situ
is not normally considered to trigger the
land disposal restrictions, since it does
not involve "placement." See RCRA
section 3004(k). Generation on the land
after the effective date, however, does
constitute disposal, see id., and the
waste consequently must meet the
treatment standard at the time of
placement (or the irrigation field must
.satisfy the no-migration standard). The
facility might be able to demonstrate, by
measuring the concentrations of the
constituents of the wastewater applied
to the field, that spray irrigation sludges
will not exceed BOAT levels when
generated; EPA will consider any such
demonstration on a case-by-case basis.
Testing the sludges in the spray
irrigation fields will not suffice,
however, since subsequent treatment or
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Federal Register / Vol. 53, No. 251 / Friday, December 30. 1988 A Proposed Rules ... 53337
accumulation of sludge» in the field may
alter the concentration* originally
present in the sludge when it is
generated- < •
C. Six-Month Suspension!
In the petition, AWPI requests that if
the Agency does not reinterpret the
scope of the K001 listing so as to
exclude wood preserving spray
irrigation fields, then EPA should
suspend the applicability of the Subtitle
C regulations for such units until six
months after the Agency has responded
to the AWPI petition and has formally
notified all affected facilities of the
petition denial, EPA believes that
AWPFs arguments in support of such,a
request have no merit and, *
consequently, the Agency tentatively
denies the request for a six-month
suspension.
Bottom sediment sludge generated in
spray irrigation fields treating wood
preserving wastewaters lias been EPA
listed hazardous waste K001 since
November 19,1980. No modifications
have been made to the K001 listing since
that time. The "Skinner memo" was not
a new or revised regulation and did not
impose any new requirements on the
regulated community. The memo merely
provided interpretive guidance to
Regional employees on the scope of the
existing K001 listing. Accordingly, any
facility generating or managing K001 as
a result of treatment of wood preserving
wastewaters in spray irrigation fields
has been required to be in compliance
with RCRA since November 19,1980.
EPA does not believe it is appropriate to
extend the compliance date for six
months when these facilities may have
been out of compliance for over eight
years.
Date: December 23,1988.
Lee M. Thomas,
Administrator.
IV. References
USEPA. Hazardous Waste Guidelines and
Regulations. Supplemental Proposed Rule. 44
FR 49402 (August 22.1979).
USEPA. Hazardous Waste Management
System: Identification and Listing of
Hazardous Waste. Final Rule, Interim Final
Rule, and Request for Comments. 45 FR 33084
(May 19,1980).
USEPA. Hazardous Waste Management
System; Identification and Listing of
Hazardous Wastes. Final Rule and Interim
Final Rule. 45 FR 74884 (November 12,1980).
USEPA. Listing Background Document-
Wood Preserving. Washington, DC
November, 1980.
Quagliotti, John A., Jr. An Investigation of
Spray Irrigation Treatment Systems at the
Koppers' Green Spring and Susquehanna
Plants. Monroeville Science & Technology
Center, Monroeville, PA. January 24,1983.
Koppers Company, Inc., Water Quality
Engineering Section, Environmental
Resources Department Wastewater
Treatability Study, Report for Koppers
Company, Inc., Florence, South Carolina
Wood Treating Plant February 1985.
USEPA. Regulatory Status of Sludges from
Land Treatment of Wood Preserving •
Wastewaters. Memorandum from John H.
Skinner, Director, Office of Solid Waste.
USEPA, to James H. Scarbrough, Chief
Residuals Management Branch, Air and
Waste Management Division, Region IV,
USEPA. November 23,1984.
AWPI. Petition for Reconsideration of
Decision to Classify Wood Preserving Spray
Irrigation Fields as Hazardous Waste Land
Treatment Units and for Clear Definition of
K001 Sludge. Letter from Walter G. Talarek.
General Counsel American Wood Preservers
Institute, to Dr. John Skinner, Director, Office
of Solid Waste, USEPA. January 10,1985.
Consent Order, In re Koppers Company.
Inc., USEPA Docket No. VW-86-R-001 (June
4,1986).
Metcalf and Eddy, Inc. Wastewater
Engineering: Treatment, Disposal, Reuse,
Second Edition. New York, 1972.
Sundstrom. Donald W. and Herbert E. Klei.
Wastewater Treatment. Englewood Cliffs, NJ,
1979.
Weber. Walter J., Jr. Physicochemical
Processes for Water Quality Control. New
York. 1972.
NCASI. "The Land Application of
Wastewater in the Forest Products Industry,"
Technical Bulletin No. 459. May 1985.
Gaudy, A.F., R. Scudder, M.M. Neeley, J.J.
Perot, and L.E. Crane. "Studies on the.
Treatment of Wood Preserving Wastes,"
American Wood Preservers'Association:
Proceedings. 1971.
Fisher, C.W. "Soil Percolation and/or
Irrigation of Industrial Effluent Waters—
Especially Wood Treating Plant Effluents,"
Forest Products Journal 21, pp. 76-79.
September 1971.
USEPA. Transmittal of the RCRA Waste
Sampling Investigation Report; Southern
Wood Piedmont Company; Spartanburg,
South Carolina. EPA ID #SCD049690001 ESD
Project #88-436. Memorandum from Steve
Hall, Hazardous Waste Section, USEPA,
Region IV to Alan Antley, Chief, Waste .
Compliance Section, USEPA. Region IV.
December 1,1986.
[FR Doc. 88-30077 Filed 12-29-88; 8:45 am]
BILLING CODE 6S60-SO-M
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