SSL. S3
Monday
April 17, 1989
Part IV
Environmental • -
Protection Agency
40 CFR Part 261
Mining Waste Exclusion Under Subtitle C
of RCRA; Notice of Proposed Rutemaking
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* 15316" •"•? ,3 '.Federal Register / Vol. 54, No. 72 / Monday, April 17. 1989 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[SWH-FRL-3546-4]
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 as hazardous waste
under Subtitle C of RCRA, pending
completion of certain studies by EPA. In
1980, EPA interpreted this exclusion (on
a temporary basis) to encompass "solid
waste from the exploration, mining,
milling, smelting, and refining of ores
and minerals" (45 FR 76619, November
19,1980).
In today's notice, which supercedes
and substantially revises the NPRM
published on October 20,1988, EPA is
proposing to further define the scope of
the Bevill exclusion with respect to
mineral processing wastes. Specifically,
the Agency is proposing to remove from
the exclusion all mineral processing
wastes except for six wastes proposed
to be retained within the temporary
exclusion and 33 other wastes proposed
to be conditionally retained pending
• collection of data necessary .to evaluate^
hazard. Thus, a two-stage rulemaking
process is necessary in' order for the
Agency to complete determinations of '
Bevill exemption status for mineral '
processing wastes: one stage for wastes
that the Agency already has adequate
data to make such determinations, and a
second stage for those for which
'insufficient data are available.
All mineral processing wastes, other
than the 39 wastes referred to above,
that exhibit one or more of the
characteristics of hazardous waste
would become subject to the
requirements of Subtitle C of RCRA if
today's rule is promulgated as proposed.
All wastes retained within the Bevill
exclusion when the two stages of this
rule are promulgated will be studied in a
Report to Congress pursuant to section
8002(p) of RCRA prior to a
determination of their final regulatory
status.
DATES: EPA will accept public
comments on this proposal until May 31,
1989. The Agency will hold a public
hearing on May 23,1989 from 9:00 a.m.
to 5:00, unless concluded earlier, see the
section titled "Public Participation" for
details. -
ADDRESS: Those wishing to submit
public comments for the record must
send an original and two copies of their
comments to the following address:
RCRA Docket Information Center (OS-
305), U.S. Environmental Protection
Agency, 401M Street SW., Washington,
DC 20460. Place the docket #F-89-
MWRP-FFFFF on your comments.
The OSW docket is located in room
M2427 at EPA headquarters. The docket
is open from 9:00 to 4:00 Monday
through Friday, except for Federal
holidays. Members of the public must
make an appointment to review docket
materials. Call (202) 475-9327 for
appointments. Copies cost $0.15/page.
FOR FURTHER INFORMATION CONTACT:
RCRA/Superfund Hotline at (800) 424-
9346 or (202) 382-3000 or Dan Derkics,
U.S. Environmental Protection Agency,
401M Street SW., Washington, DC
20460, (202) 382-3608.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Overview
II. Background . .
A. History of the Mining Waste Exclusion
• for Mineral Processing Wastes
B. Summary of the October 20," 19(38 NPRM
III. Analysis of Public Comments on the 10/
20/88 NPRM
A. The Definition of "Mineral Processing"
B. The "High Volume" Criterion
C. The "Low Hazard" Criterion
D. Comments on Candidate "Special" Min-
eral Processing Wastes
E. Related RCRA Issues
IV. Changes to the October 1988 NPRM
A. Addition of a Low Hazard Criterion
B. -Revision of the High Volume Criterion
C. Clarification of the Definition of Miner-
al Processing
, D. Resulting Revisions to the Proposed
Regulation . - - .
V. Regulatory Impacts of This Proposal
VI. Public Participation
VII. Effect on State Authorizations '
VIII. Compliance with Executive Order 12291
IX. Regulatory Flexibility Analysis
X. list of Subjects in 40 CFR 261
I. Overview " .
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 as hazardous waste under
Subtitle C of RCRA, pending completion
of certain studies by EPA. In 1980, the
Agency interpreted this exclusion (on a
temporary basis) to encompass all
"solid waste from the exploration,
mining, milling, smelting, and refining of
ores and minerals" (45 FR 76619,
November 19,1980). In July, 1988, a
Federal Court of Appeals
(EnvironmentalDefense Fund v. EPA,
852 F.2d 1316 (D. C. Cir. 1988), cert.
denied, 109 S. Ct. 1120 (1989} (EDFv.
EPA)) found that this exclusion is based
upon the "special waste" concept first
proposed by EPA in 1978 (43 FR 58946)
and that
Congress intended the term "processing" in
the Bevill Amendment to include only those
wastes from processing ores or minerals that
meet the "special waste" concept, that is
"high volume, low hazard" wastes. 852 F.2d
at 1328-29.
In compliance with this Court
decision, on October 20,1988 EPA
published a proposal to further define
the scope of the section 3001(b)(3)(A)(ii)
of RCRA. (See 53 FR 41288) In the
October 20,1988 proposal, EPA .
presented a criterion for defining
mineral processing wastes and a two-
part criterion for identifying which
mineral processing wastes are high
volume, but proposed to defer judgment
on the hazard posed by high volume
mineral processing wastes' until
preparation of a required-report to
Congress. The Agency also applied the
processing and volume criteria to its
available data on mineral processing
wastes, and identified 15 which it
believed met the criteria, and which the
Agency therefore proposed to retain
within the exclusion and study for the
report to Congress:
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
- 7. 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 phosphorus
.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
. 16. Slag- from roasting/leaching of chromite
• ..ore; • . •• ' • ' ----- -
Today's proposal substantially revises
and supplements the NPRM published
on October 20,1988. Based on comments
received on the October 20,1988 NPRM,
EPA believes that, in spite of the .
technical difficulties .associated with
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Federal Register / Vol. 54. No. 72 / Monday, April 17, 1989 / Proposed Rules 15317
developing, and the very limited data
available for applying, a criterion for
evaluating the hazard of mineral
processing wastes prior to the
preparation of a report to Congress, such
a criterion is required in order to
identify those mineral processing wastes
that are "special wastes". As a result,
today's proposal includes a criterion- for
identifying mineral processing wastes
that are clearly not low hazard and,
therefore, not "special wastes" even if
they are high volume. This criterion
evaluates the corrosivity of the waste
and the mobility and toxicity of
constituents in the waste. Today's
proposal also provides some
clarification of the criterion used to
define mineral processing wastes and
modifies the volume criterion by
deleting the total national volume test
Based on these changes to the
"special waste" criteria and the
information provided in public
comments, EPA is today proposing to
remove from, the Bevill exclusion all but
39 mineral processing wastes. Of the 39
mineral.processing wastes being
proposed today to be retained within the
exclusion, the Agency believes that the
following six wastes satisfy all of the
"special waste" criteria described in
today's proposal:
1. Slag, from primary copper smelting
2. Slag from primary lead smelting
3. Red and brawn muds from bauxite refining
4. Phosphogypsum from phosphoric acid
production ' ' . .
5. .Slag from elemental phosphorus
production- . • • •
6. Furnace scrubber, blowdown from
elemental phosphorus production.
In compliance with a Court ordered
deadline, EPA intends to take final
action on the Bevill status of these six
wastes as well as the criteria used to
determine which mineral processing
wastes are "special wastes" by August
18,1989. This final rule will complete the
first stage of rulemaking regarding the
Bevill status of mineral processing
wastes.
The other 33 wastes are being
proposed to be conditionally retained
within the exclusion because they are
mineral processing wastes that the
Agency believes satisfy the volume
criterion but for which the Agency does
not currently have adequate data to
evaluate compliance with the hazard
criterion. The wastes that the Agency is
today proposing to conditionally retain
within the exclusion are:
1. Barren filtrate from primary beryllium
processing
2. Raffinate from primary beryllium
processing
3. Bertrandite thickener sludge from primary
beryllium processing
4. Process wastewater from primary cerium
processing
5. Ammonium nitrate process solution from
primary lanthanide processing
6. Roast/leach ore residue from primary
chrome ore processing - $-.
7. Gasifier ash from coal gasification
8. Cooling tower blowdown from coal
gasification
9. Process wastewater from coal gasification
10. Bleed electrolyte from primary copper
refining
11. Process wastewater from primary copper
smelting/refining
12. Slag tailings from primary copper
smelting
13. Calcium sulfate wasfewater treatment
plant sludge from primary copper smelting/
refining
14. Furnace off-gas solids from elemental
phosphorus production
15. Process wastewater from elemental
"phosphorus production
16. Fluorogypsum from hydrofluoric acid
production
17. Air pollutiuc control dust/sludge from
iron blast furnaces
18. Iron blast furnace slag
19. Process wastewater from primary lead
smelting/refining
20. Air pollution control scrubber
wastewater from light weight aggregate
production
21. Wastewater treatment sludge/solids from
• light weight aggregate production
22. Process wastewater from primary
magnesium processing by the anhydrous
process
23. Process wastewater from- primary
selenium processing
24. Process wastewater from phosphoric acid
production
25. Wastes from trona ore'processing
26. Basic oxygen furnace slag from carbon
steel production
27. Leach liquor from primary titanium
processing
28. Sulfate processing waste acids from
titanium-dioxide production.
29. Sulfate processing waste solids from -
titanium, dioxide production • .
30. Chloride processing waste acids from
trtanram and titanium dioxide production
31. Chloride processing waste solids from
titanium and titanium dioxide production
32. Blowdown from acid plants at primary
zinc smelters
33. Process wastewater from primary zinc
' smelting/refining.
In compliance with a Court ordered
deadline, EPA plans to complete a
second stage of rulemaking regarding
the Bevill exemption status of mineral
processing wastes. This will consist of a
proposal by September 15,1989 that
identifies the proposed status of these 33
wastes with respect to the hazard
criterion, as well as publication of a
final rule by January 15,1990 that
identifies which of these 33 wastes will
be retained within and which will be
removed from the regulatory exclusion
provided by the Bevill Amendment.
Those mineral processing wastes that
remain temporarily excluded as of
January 15,1990 will be studied for a
report to Congress that EPA-is required
by a Court order to prepare by July 31,
1990. Six months after submission of the
report to Congress, EPA will make a
determination as to whether Subtitle C
regulation of these wastes is warranted.
If today's proposal is promulgated, all
mineral processing wastes other than
the 39 wastes listed above will be
permanently removed from the Bevill
exclusion. That is, the exclusion from
Subtitle C regulation currently provided
by section 3001(b)(3](A)(ii3 of RCRA
would apply only to these 39 wastes
after the effective date of the August 18,
1989 rulemaking. After the second stage
of this rulemaking is completedKsome or
•all of the 33 conditionally retained
mineral processing wastes may be found
to not be low hazard and may,
accordingly, be removed from the.
exclusion.
Any commenters on today's proposal
who believe that the Agency should add
to or delete from the group of 39 wastes
that are today proposed to either be
retained within the temporary exclusion
from Subtitle C requirements or
conditionally retained pending
collection of additional data must
provide information that at least
demonstrates the status of the waste (to
be added or deleted) with respect to the
mineral processing operation and high
volume criteria. In the absence of
compelling additional information that
indicates that there are other high
volume mineral processing wastes, the
Agency .plans to retain, at most, only the
39 mineral processing wastes identified
above within the Bevill exclusion for
"solid wastes from . . . processing ores
and minerals".
The Agency is interested in receiving
data and comments on all aspects of
today's proposal. Of particular interest,
however, are the following areas:
(1) Analytical data on the physical,
chemical and radiological nature of the
33 proposed conditionally excluded
• wastes;
[2J The appropriateness of the toxicity
and pH tests for identifying "low
hazard" mineral processing-wastes; and
(3) Whether the definition of "mineral
processing" should be further narrowed
beyond that contained in today's
proposal. For example, should "mineral
processing" be considered confined to
only those mineral processing
operations that 'are co-located with
extraction and beneficiation operations?
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II. Background
A. History of the Mining Waste
Exclusion for Mineral Processing
Wastes
1. Introduction
Since the proposal of the first
regulations under the Resource
Conservation and Recovery Act (RCRA)
in 1978, mineral processing wastes have
been subject to a different regulatory
framework than most other categories of
potentially hazardous wastes. In the
1978 proposed rule implementing
Subtitle C of RCRA, EPA introduced the
"special waste" concept, which was
based on the belief that these "special
wastes" should, on a provisional basis,
be regulated less stringently than other
wastes because they were produced in
very large volumes, were thought to
pose less of a hazard than other wastes,
and were generally not amenable to the
management practices required by the
technical standards being proposed for
other hazardous wastes.
In 1980, Congress made this "special
waste" concept a statutory requirement
when it enacted the Bevill Amendment
as part of the 1980 amendments to
RCRA. The Bevill Amendment
temporarily exempted fossil fuel
combustion wastes, oil and gas field
production wastes, mining and mineral
processing wastes, and cement kiln dust
waste from potential regulation as
hazardous wastes under Subtitle C of
RCRA. Most of the continuing
controversy over the regulation of
mineral processing wastes results from
different interpretations of the
legislative intent with regard to the
Bevill Amendment, and of the
subsequent Court decisions.
This section provides a summary and
analysis of the history of the Bevill
exclusion, from the initial enactment of
RCRA through the present.
2. The Resource Conservation and
Recovery Act and Proposed Subtitle C
Regulations (1976-1980)
On October 21,1976, Congress
enacted the Resource Conservation and
Recovery Act (Pub. L. 94-580). Section
3001 of RCRA mandated that the EPA
Administrator "promulgate regulations
identifying characteristics of hazardous
waste, and listing particular hazardous •
wastes which shall be subject to the
provisions of this subtitle." Section 3004
required the Administrator to
• promulgate standards applicable to
owners and operators of hazardous
waste treatment, storage, and disposal _
facilities. Congress did not explicitly
address the regulation of mining and
mineral processing wastes, but Section
8002(f) instructed the EPA Administrator
to conduct:
* * * a detailed and comprehensive study on
the adverse effects of solid wastes from
active and abandoned surface and
underground mines on the environment,
including, but not limited to, the effects of
such wastes on humans, water, air, health,
welfare, and natural resources * * *"
This study requirement was based
upon the Congressional recognition that
mining wastes were generated in larger
quantities than any other type of solid
waste, and that historical and, perhaps,
contemporary mining wastes
management practices, could pose
danger to human health and the
environment. Mandated study factors
included sources and volumes of wastes
generated, present' and alternative
disposal practices, potential danger
posed by surface runoff and fugitive
dust emissions, the cost of waste
management alternatives, and the
potential for use of discarded materials
as secondary sources having mineral
value. The House report (No. 94-1491)
accompanying the RCRA bill indicates
that the focus of EPA's inquiry was to be
the environmental and technical
adequacy of current waste management
practices, with economic practicality
being a secondary consideration.
On December 18,1978, EPA proposed
its regulations for managing hazardous
wastes under Subtitle C of RCRA (43 FR
58946). These proposed regulations
introduced the "special wastes"
concept, upon which most of the debate
concerning the regulatory status of
mineral processing wastes has been
focused. "Special waste" referred to
wastes that were generated in large
volumes, were thought to pose less risk
to human health and the environment
than other hazardous wastes, and for
which the proposed technical
requirements implementing Subtitle C
might not be appropriate. EPA identified
waste materials from the "extraction,
beneficiation, and processing of ores .
and minerals" as one of six such
"special wastes" under the proposed
regulations.1 EPA proposed to defer •
most of the RCRA Subtitle C
requirements for these special wastes
until information could be gathered and
assessed that would enable EPA to
determine the most appropriate
regulatory approach.
In the fall of 1979, EPA completed a
draft background document that
outlined the development of EPA's
methodology for determining which
materials qualified as "special wastes"
(Introduction and Criteria for Special
Waste, November 2,1979, EPA Docket
#A-D1-SS0062). The background
document presents the eight criteria that
were used to develop the original list of
"special wastes" for the December 18,
1978 proposed Subtitle C regulations:
1. Limited information on waste
characteristics;
2. Limited information on the degree of
human health and environmental hazard
posed by disposal;
3. Limited information on waste disposal
practices and alternatives;
4. Very large volumes and/or large number of
facilities;
5. Limited movement of wastes from the'point
of generation;
6. Few, if any, documented damage cases;
7. Apparent technological difficulty in
applying current Subpart D2 regulations to
the waste because of volumes involved at
typical facilities; and.
8. Potential high economic impact if current
Subpart D regulations are imposed.
The background document states
further that criteria 1, 2, 3, 4, and 7 were
the driving forces in the'decision-making
process for the 1978 proposed Subtitle C
. regulations, while the other criteria were
met to some degree for individual
wastes.
EPA received many public comments
on the proposed Subtitle C regulations,
The background document indicates
that the Agency incorporated many of
these comments, as well as its own
continuing analysis, when it revised the
criteria used to designate "special
wastes." The concluding section
discussed the four criteria that EPA, at
that point, intended to use to evaluate
petitions to designate a waste as a
"special waste:"
1. The waste is or is anticipated to be
generated and disposed in large volumes.
This determination would be based on the
national volume generated per year; the
projected volume of waste generated over the
next decade; the volume of waste disposed at
a typical disposal facility; and extraneous
siting restrictions on the generator.
2. The waste should be uniform, i.e., the
waste exhibits the same characteristics
whenever disposed, and is amenable to being
predominantly managed without being mixed
with other wastes.
3. The waste must pose only a low
potential hazard to human health and the
environment This determination would be
based on the class of hazard of the waste; the
chemical composition and physical
characteristics of the waste; results of the
application of 40 CFR 250 Subpart A [now 40
1 The other five "special wastes" were cement
kiln dust waste; utility waste; phosphate rock
mining, beneficiation, and processing waste;
uranium mining waste; and gas and oil drilling muds
and oil production brines.
* 40.CFR Part 250, Subpart D contained iha
proposed RCRA Section 3004 management
standards (43 FR 59008). These requirements are
now found in final form at 40 CFR Parts 264-266).
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Federal Register / Vol. 54, No. 72 / Monday, April 17, 1989 / Proposed Rules 15319
CFR Part 261] procedures for determining
hazardous characteristics and other available
testing information (although ignitable,
corrosive, or reactive wastes would be
acceptable as special wastes at the discretion,
of the Administrator]; and information on
documented past damage cases.
4. Due to lack of information on current
treatment, storage, and disposal practices
and alternatives, the Agency would be „
unable to propose standards for control of the
waste.3
Using the revised list of four criteria,
the Agency considered expanding the
list of six "special wastes" in the 1978
proposed Subtitle C regulations to a
total of eleven:
1. Cement kiln-dust waste;
2. Utility waste;
3. Phosphate'mining, beneficiation, and
processing waste;
4. Uranium mining waste;
5. Wastes from the extraction, beneficiation,
and processing of ores and minerals other
than phosphate rock and uranium ore;
6. Gas, oil, and geothermal drilling and
production wastes; ' •
7. Shale oil industry wastes;'
8. Red muds [from bauxite refiningj; ; •
9. Black muds [from bauxite refining];.
10. Coal mining waste; and
11. Dredge spoils.
Though the special waste category '
was never promulgated, it is clear that
EPA was responsible for amplifying the
original study requirement under section
8002(f) into .a regulatory concept, that
the Agency had several specific criteria
[principally low hazard, high volume,
and infeasibility of Subtitle C technical
requirements) that.it employed to ,
evaluate potential special wastes, and
that the group of wastes that might have
received the temporary exemption from
full Subtitle C regulation was to be both
finite and relatively small. The concept
of and means of identifying.special .
wastes continue to be relevant to and
serve as-the basis for the present
rulemaking. .
3. Final Subtitle C Regulations and the
Solid Waste Disposal Act Amendments
of 1980, Including the Bevill Amendment
(1980) - • •
Throughout 1980, Congress was
conducting hearings to substantially
amend RCRA. On February 20,1980,
Rep^ Thomas Bevill (AL) offered an
amendment which, among other things,
amended .section 3001 to temporarily _
exempt three categories of waste from
Subtitle C regulation:
• Fly ash waste, bottom ash waste,
slag waste, and flue gas emission
control waste generated primarily from
3 EPA also considered and rejected a number of
criteria not included in the original list, including:
adequacy of current waste management practices
and resource recovery potential.
the combustion of coal or other fossil
fuels;
• Solid waste from the extraction,
beneficiation, and processing of ores
and minerals, .including phosphate rock
and uranium ore; and
• Cement kiln dust waste.
These wastes were to remain exempt
from Subtitle C regulation until
completion of the studies required under
sections 8002(f) and 8002(p), the latter of
which was to be added to RCRA (these .
sections are discussed below).
From his statements before the
Committee on Interstate and Foreign
Commerce, it is apparent that Rep.
Bevill offered his amendment primarily
to prevent regulatory disincentives for
the development of the nation's coal
resources. Rep. Bevill stated that "the
House [would] not allow EPA to take
steps that will discourage the use of
coal." Rep. Bevill noted that EPA "has
very little information on the -
composition, characteristics, and degree
of hazard posed by these [i.e., coal]
wastes" and that the Agency believed •
that any potential hazards presented by
the materials are relatively low.
Rep. Bevill.' also claimed that existing
.Federal and State regulation would
sufficiently regulate wastes from the
combustion of coal and other fossil fuels
while EPA was undertaking the required
studies. During the hearing, several .
other representatives spoke in favor of
the Bevill amendment, specifically
concerning refuse-derived fuel (Rep.
Horton-NY), fly ash and slag from coal
(Rep. Findley-IL), oil and gas muds and
brines (Rep. Moffett-CT), and large
. volume coal wastes (Rep. Rahall-WV;
Rep. Staggers-WV). Rep. Florio (NJ)
submitted for the record results of EPA
studies that documented the known
health risks associated with radioactive
uranium and phosphate wastes.
The discussion of mining wastes as a
part of the Bevill Amendment was
limited to brief comments by Rep.
Williams (MT), who stated that wastes
from mineral production should not be
subject to Subtitle C regulation at that'
time. As an example of the limited
potential hazard of these wastes, Rep.
Williams paraphrased a National
Academy of Sciences study, stating that
slag waste generated by the smelting of
copper
... is basically inert and weathers slowly.
The slag produced 2,500 years ago at King
Solomon's mines north of Eliat, Israel, has not
changed perceptibly over time.
Rep. Williams then continued
Should wastes such as smelting slag be
subject to stringent regulations at this time? I
think not—not until a thorough study is
conducted by the responsible agency which
clearly proves the need for additional
regulation. (Emphasis added.]
Based.on Rep. Bevill's comments, it is
apparent that the fundamental purpose
of the amendment was to limit the
impact of Subtitle C regulation on the
coal industry (the Senate version of this
bill, however, emphasized oil and gas
field production wastes), at a time when
the nation and the Congress were
extremely concerned about energy
self-sufficiency. Although the Bevill
Amendment, as read into the record
during the hearing, explicitly refers to
mineral processing wastes, Rep. Bevill
did not mention these wastes or respond
to Rep. Williams' statements.
Almost all of the major components of
the Bevill amendment were originally
conceived by EPA. The Bevill
amendment made the Agency's planned
activities, as expressed in the 1978
proposed Subtitle C regulations and the
1979 ."Special Waste" background
document, statutory requirements. In
fact, with very few exceptions, all of the
specific provisions of the Bevill
Amendment were lifted (often verbatim)
from EPA rulemakings and related
documents.
Furthermore, it is clear from the
legislative history that the Bevill
Amendment was designed to defer
regulation.of those wastes which EPA
had defined as special wastes.
Congressman Bevill referred specifically
to EPA's 1978' special waste proposal in
his explanation of the amendment,
noting that EPA had asserted
it did not have data on the effectiveness of
current or potential waste management
technologies or the technical or economic
practicability of imposing its proposed
regulations. In the same [12/18/78]
announcement, EPA also stated that it:
believed that any potential hazards presented
by the materials are relatively low.
26 Cong. Rec. 3361 (1980). Other '
Congressmen also referred to the Bevill
wastes in terms of the EPA "special
waste" concept. Congressmen Santini,
Staggers, and Findley all supported the
amendment on the basis that it would
defer regulation of "special wastes"
until EPA had completed the required
study. Id. at 3348, 3349, 3363, 3365.
Congressman Williams of Montana, in
explaining why smelting slag should be
studied (see above), noted that the
Bevill Amendment "would direct [EPA]
to evaluate certain high volume, low
toxicity wastes so as to assure a
reasoned set of regulations by which to
manage these wastes." Id. at 3364.
Clearly, the discussions on the floor of
the House imply Congressional intent to
incorporate the "special waste" concept
into the Bevill Amendment definitions of
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15320 Federal Register / Vol. 54, No. 72 / Monday. April 17, 1989 /- Proposed Rules
excluded wastes. (See also 852 F.2d at
1327).
On May 19,1980, EPA promulgated
final regulations under Subtitle C of
RCRA which addressed, among other
things, "solid waste from the extraction,
boneficiation, and processing of ores
and minerals" (45 FR 33068). In
promulgating these regulations, EPA
decided to withdraw rather than finalize
the "special waste" category. The
Agency's stated basis for this decision
was twofold:
(1) The thresholds for the (EP) extraction
procedure toxiciry and cprrosivity
characteristics tests (which are used to
identify hazardous wastes subject, to Subtitle
C regulation) hail been significantly relaxed.
As a result, the number of wastes in general,
and "special wastes" in particular, that
would be potentially subject to Subtitle C
regulation was greatly reduced.
(2) The Agency had incorporated more
flexibility, through phasing and standard-
sotting, in Parts 284 and 265 (which contain
the regulations for permitted and interim
status owners/operators of hazardous waste
facilities). Thus, a RCRA permit xvriter had
the ability to take into account site-specific
environmental characteristics and
management practices (i.e., "special waste"
study factors) in establishing permit
requirements.
As a result,-the Agency concluded
that these changes "accomplish the
objectives of, and eliminate the need for,
a special solid waste category." When
EPA eliminated the "special waste"
concept, it was aware of Congress*
intention to exempt mining and mineral
processing and other proposed "special"
wastes from Subtitle C regulation
because passage of the Solid Waste'
Disposal Act Amendments of 1980
(including the Bevill Amendment) was
expected (Senate and House versions
had been jpassed on June 4,1979 and
February 20,1980, respectively).
On October 12,1980, Congress
enacted the Solid Waste Disposal Act
Amendments of 1980 (Pub. L. 96-482),
which added section 3001(b)(3)(A)(ii)
(the BevHl Amendment) to RCRA. This
section temporarily prohibits EPA from
regulating, among other wastes, "solid
waste from the extraction, beneficiation,
and processing of ores and minerals,
including phosphate rock and
overburden from the mining of uranium
ore" as hazardous waste under Subtitle
C of RCRA until at least six months
after EPA completes and submits to.
Congress the studies required by section
8O02(f), and by section 8002(p), which
was also added to RCRA by the 1980
amendments. Section 8002(p) required
the Administrator to study the adverse
effects on human health and the
environment, if any, of the waste from
the disposal and utilization of "solid
waste from the extraction, beneficiation,
. and processing of ores and minerals,
including phosphate rock and
overburden from the mining of uranium
ores," and submit a Report to Congress
on its findings by October 1983. The
1980 amendments also added section
3001(b)(3)(C), which requires the
Administrator to make a regulatory
determination, within six months, of the
completion of the section 8002 studies,
whether to regulate mining wastes under
Subtitle C of RCRA.
On November 19, I960, EPA published
an interim final amendment to its
hazardous waste regulations to reflect
this mining waste exclusion (45 FR
76618). The regulatory language
incorporating the exclusion was
identical to the statutory language,
except EPA added the phrase "including
coal." In the preamble to the amended
regulation, however, EPA tentatively
interpreted the exclusion to include
"solid waste from the exploration,
mining, milling, smelting, and refining of
ores and minerals." The preamble made
it clear thai the Agency was interpreting
the scope of the exclusions very broadly
and that, over the next 90 days, EPA
intended to review the legislative
history of the Bevill amendment and the
public comments received in response to
the interpretation. The preamble
indicated that based on this review, EPA
would probably narrow the scope of the
exclusion. •
4. Litigation, the Hazardous and Solid
Waste Amendments of 1984, and Bevill
Exclusion Reinterpretations (1981-1988)
As noted above, the Solid Waste
Disposal Act Amendments of 1980
amended section 3001 to require the
EPA Administrator to make a regulatory
determination regarding the wastes'
temporarily excluded from Subtitle C
'regulation within six months of,
submitting the required Report to
Congress. EPA was required to submit
the Report to Congress by October 1983.
In 1984, the Concerned Citizens of
Adamstown and the Environmental
Defense Fund sued EPA for failing to
complete the section 8002 studies and
the regulatory determination by the
statutory deadlines (Concerned Citizens
of Adamstown v. EPA No. 84-3041,
D.D.C., August 21,1985). EPA explained
to the District Court for the District of
Columbia that the Agency planned to •
propose to "reinterpret" the scope of the
mining waste exclusion so that it would
encompass fewer wastes. Therefore,
EPA suggested two schedules to the
court: one for completing the section
8002 studies and submitting the Report
to Congress, and one for proposing and
taking final action on the
reinterpretation. On August 21,1985, the
court ordered EPA to meet these two
schedules; first, the Agency was to
complete the section 8002 studies and
Report to Congress by December 31,
1985, and to publish the regulatory
determination by June 30,1986; and
second, EPA was to propose to
reinterpret'the Bevill exclusion and
subsequently, to take final action on the
proposed reinterpretation by September
30,1986.
EPA submitted the Report to Congress
on December 31,1985. The Report to
Congress provided information on
sources and volumes of waste, disposal
and utilization practices, potential
danger to human health and the
environment from mining practices, and
evidence of damages. EPA focused on
the mining industry segments that
produced and/or concentrated metallic
ores, phosphate rock, or asbestos.
On July 3,1986, EPA issued its
regulatory determination for the
universe of mining wastes covered by
the Report to Congress (51 FR 24496).
The regulatory determination concluded
that Subtitle C regulation of the wastes
studied in the Report to Congress (i.e.,
extraction and beneficiation wastes)
was not warranted at that time. This
conclusion was based on EPA's belief
_that aspects of the Subtitle C standards
"were likely to be environmentally
unnecessary, technically infeasible, or •
economically impractical when applied
to mining waste. EPA announced its
intention to develop a program for
mining waste under Subtitle D of RCRA.
The July 3,1986 regulatory
determination was subsequently
challenged in court [Environmental
Defense Fund v. EPA, 852 F.2d 1309
(D.C.Cir. 1988)). The Court of Appeals
upheld EPA's regulatory determination
for extraction and beneficiation wastes.
In the interim, Congress enacted the
Hazardous and Solid Waste
Amendments to RCRA in 1984. These
• amendments added new requirements
applicable to owners and operators of
facilities that treat, store, or dispose
hazardous waste, and included
minimum technical standards for the
design, construction, and operation of
waste management units, land disposal
restrictions, and corrective action
requirements for continuing releases. In
developing these new requirements,
Congress considered their feasibility
with respect to and potential impact on
the management of certain categories of
wastes. This concern was embodied in
what-was to become section 3004(x) of
RCRA, the so-called "Simpson
Amendment," which allowed the EPA
Administrator to modify the Subtitle C
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15321
technical standards for managing mining
wastes, utility waste, and cement kiln
dust waste, as long as protection of
human health and the environment was
assured.
In the floor debate on the Simpson
Amendment, the Senate considered
remarks concerning the types of wastes
that would be eligible for the special
status conferred by the amendment. Sen.
Jennings Randolph (WV) read into the
record the description of mining wastes
that was contained hi the committee
report on the HSWA amendments. In
this report, "solid wastes from mining
and mineral beneficiation and
processing" are described as "primarily
waste rock from the extraction process,
and crushed rock, commonly called
tailings" The report continues by
stating -
[t]he 1980 amendments covered wastes from
the initial stages of mineral processing,
where concentrations of minerals of value are
greatly increased through physical means,
before applying secondary processes such as
pyrametallurgical or electrolytic methods.
Smelter slag might also be included. . .
These wastes were considered "special
wastes" under the 1978 proposed regulations
as being of large volume and relatively low
hazard. (Emphasis added.)
The remaining discussion in the
excerpt from the committee report
focuses on .the potential difficulties of
managing the huge volumes of waste
rock and tailings associated with
mineral exploitation under the new
minimum'technology standards under
debate.
Thus, although the Congress
explicitly considered the special study
wastes in crafting the provisions of
HSWA, there is nothing in either the
amendments themselves or in the
legislative record supporting them to
suggest that Congress construed the
term ."mineral processing" broadly, i.e.,
to include wastes that are not "special
wastes."
In keeping with its agreement in the.
Adamstown case, on October 2,1985,
EPA also proposed to narrow the scope
of the Bevill exclusion (50 FR 40292). In
preparing the proposed mining waste
exclusion, EPA implicitly applied-the
"high volume, low hazard, special
waste" concept from EPA's 1978 .
proposed hazardous waste regulations.
The proposed rulemaking would have
eliminated from the mining waste
exclusion most wastes from the
processing of ores and minerals; EPA
proposed to retain bauxite refining
muds, phosphogypsum from phosphoric
acid plants, and slag from primary metal
smelters and phosphorus reduction
facilities within the Bevill exclusion. In
the preamble, EPA stated that
Congressional intent supported the
Agency's special waste concept. The
proposed rule did not, however, outline
the criteria that EPA used to determine
high volume or low hazard. (i
In response to the proposed
reinterpretation, many commenters
"nominated" additional wastes that they
believed fit the "special waste" criteria.
and therefore should also be excluded
from Subtitle C regulation as
"processing wastes." Because EPA had
not explicitly defined the terms "high
volume" or "low hazard" in the October
. 2,1985 proposal, the Agency was unable
to determine the regulatory status of
these nominated wastes. EPA could not
infer definitions for these terms based
upon the four wastes listed in the
proposal as meeting the "special waste"
criteria. The public comments on the
proposal and the Agency's analysis
indicated that 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 wastes
(i.e., non-excluded) wastes. Moreover,
the Agency was unsure whether such
criteria could be developed. Therefore,
faced with the court-ordered deadline
for final Agency action in Adamstown,
EPA withdrew the proposal on October
9,1986 (51 FR 38.233). As a consequence,
the interpretation of the mining waste
exclusion established in the November
19,1980 rulemaking notice remained in
effect.
The Agency's decision to withdraw its
proposed reinterpretation of the mining
waste exclusion was subsequently
challenged in court [Environmental
Defense Fund v. EPA, 852 F.2d 1316
(B.C. Cir. 1988), cert, denied 109 S. Ct.
1120 (1989) (EDFv. EPA)}. In this case.
the petitioners contended, and the Court
of Appeals agreed, that EPA's
withdrawal of its proposed
reinterpretation of the Bevill
Amendment was arbitrary and
capricious because it reaffirmed an
"impermissibly over-broad
interpretation" of the Bevill
Amendment. EDFv. EPA, 852 F.2d at
1326.
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 Bevill
Amendment to ascertain the intent of
Congress. The Court found that "[t]he
structure of the Bevill Amendment
"suggests that the term "solid waste from
the * * * processing of ores and
minerals" should be interpreted in a
manner consistent with the concept of
large volume wastes. Id. The Court also
decided that "[tjhe 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 clear that Congress did not intend the
mining waste 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
ores or minerals that meet the "special
waste" criteria, that is, "high volume, low
hazard" wastes. 852 F.2d at 1323-29.
Thus, when the Agency withdrew its
October 2,1985, proposed
reinterpretation .of the mining waste
exclusion, which was based on implicit
"special waste" criteria, EPA by default
reverted to its November 19,1980,
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 this
result was inconsistent with
Congressional intent. Therefore, the
Court ordered EPA to propose, by
October 15,1988, 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. 852 F.2d at
1331.
5. Analysis and Implications
From the foregoing, it is clear that
EPA has considerable latitude in
defining the scope of the Bevill
exclusion for mineral processing'wastes,
within the boundaries of Congressional
intent. The legislative history of the
Bevill Amendment'indicates that the
Congress was relying very heavily upon
EPA's "special waste" concept when it
created the exclusion, and that it
therefore implicitly accepted the
Agency's ideas regarding the definition
of special wastes, as well as the
importance of the study factors that
were ultimately written into the RCRA
statute. This central fact has several
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important implications for how EPA can
and should respond to the Appeals
Court directive to modify the scope of
the Bevill exclusion for mineral
. processing wastes.
The first is that, contrary to the
assertions of several commenters, there
is-no basis for concluding that the
Congress intended the scope of the
Bevill exclusion for mineral processing
wastes to be broad. As noted above,
EPA had identified a small number of
special wastes as worthy of special
study in 1978, and clearly had no
intention of studying more than a few
other materials when it prepared the,
background document for the special
wastes concept. For its part, the
Congress did little to indicate that it
wanted EPA to expand the intended
scope of the study requirement when it
considered the issue in 1980. The only
suggested departure from EPA's original
short list of wastes is that metal
smelting slags also be included, based
upon the remarks of Rep. Williams,
which were never challenged on the
House floor or subsequently. Therefore,
and in keeping with the Appeals Court
directive, EPA can and should
significantly narrow the scope of the
Bevill exclusion for mineral processing
wastes.
Moreover, as discussed at length in
the Appeals Court decision that
precipitated the current rulemaking, EPA.
is obliged to consider whether candidate
wastes are high volume and low hazard
hi making Bevill mineral processing
waste exclusion decisions. These two
factors are, and have always been, the
key elements in identifying special
wastes. High volume is the principal
indicator of whether a particular waste
is amenable to management under
Subtitle C of RCRA. A consideration of
hazard is necessary to identify and
remove from the exclusion wastes that
may pose risk or hazard to such a great
extent or magnitude that they cannot be
considered "special wastes,"
irrespective of volume. There is,
however, no statutory directive or
legislative or regulatory guidance
addressing the specific components of
the necessary high volume and low
hazard criteria. Therefore, EPA is free to
use its discretion in developing and
applying these criteria.
EPA requests comment on its
approach for defining the scope of the
Bevill mineral processing waste
exemption, in light of the legislative
history discussed above. In particular,
the Agency has considered, and solicits
comments on, whether the scope of the
exemption should be narrowed to those
wastes that are both generated at
mineral processing operations that are
co-located with extraction and
beneficiation operations and meet the
"special waste" criteria.
B. Summary of the October 20, 1988
NPRM
. In compliance with the Court order in
EDFv. EPA, on October 20,1988, EPA
published a new proposed
reinterpretation of the Beviil exclusion
and listed 15 specific high volume
processing wastes that the Agency
designated as "special wastes" based on
criteria discussed in the proposal. (See
53 FR 41288.) Under the proposal, these
wastes would remain within the Bevill
exclusion and hence be studied in a
Report to Congress and be subject to a
subsequent regulatory determination
pursuant to section 3001 of RCRA.
In the proposal, EPA outlined the
criteria it used to determine whether a
mineral processing waste was a "special
waste." The Agency examined three
types of criteria in selecting the specific
wastes to be retained within the Bevill
exclusion: (1) a criterion for identifying
wastes from ore and mineral
"processing"; (2) a criterion for
identifying "high volume" wastes from
ore and mineral processing; and (3) a
criterion for identifying "low hazard"
wastes from ore and mineral processing.
EPA interpreted the term "solid waste
from the... processing of ores and
minerals" to refer to solid wastes,
including pollution control residuals,
that are uniquely associated with
mineral industry operations and that
possess the following attributes:
(1) Follow beneficiation 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;
• (4) Produce either a final mineral product
or an intermediate to the final 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 of
metal anodes and cathodes. •
In developing the high volume
criterion, EPA decided that any waste
generated from the processing of ores or
minerals, as defined above, that met
either of the following tests would be
designated a "high volume" processing
waste:
(1) For a specific waste stream arising from
mineral processing in any given mineral
commodity sector (e.g., primary copper
processing), the total quantity of the specific
waste generated by all facilities in the United
States in any one calendar year from 1982
through 19B7 equals more than two million
metric tons; or
(2) For a specific waste stream arising from
mineral processing in any given mineral
commodity sector, the specific waste stream
is generated at an average rate'(i.e., total
quantity of the specific waste generated by
all facilities in any one calendar year from
1982 through 1987 divided by the number of
facilities generating the waste) of more than
50.000 metric tons per facilities per year
EPA decided not to include a low
hazard criterion for three reasons: (1)
The existing data on mineral processing
waste characteristics were insufficient
to apply a low hazard criterion to these
wastes; (2) the existing hazardous waste
characteristics tests were inappropriate
for mineral processing wastes; and (3)
there was no appropriate substitute test
for determining low hazard.
As a result. EPA adopted a two-step
process for determining the wastes to be
retained within the Beviil exclusion.
Using the two criteria, EPA determined
that the following 15 wastes would
remain temporarily exempt from Subtitle
C regulation and all other mineral
processing wastes would be subject to
regulation as hazardous wastes under
Subtitle C if they exhibit one or more
hazardous characteristics as defined by
40 CFR Part 281:
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
7. 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
III. Analysis of Public Comments on the
10/20/88 NPRM
In response to the October 20,1988
NPRM, EPA received many written
comments addressing a number of rule-
related issues. This section summarizes
public comments on the major issues
pertaining to the October proposal, and
provides, where appropriate, the
Agency's tentative reactions to the
issues raised. Final EPA responses to
the issues discussed herein will be
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15323
presented when the Agency promulgates
the Bevill special waste criteria (by
August 18,1989).
A,- The Definition of "Mineral
Processing"
In the preamble to the October 20,
1988 proposed rule, EPA provided
criteria for defining and identifying
wastes from ore and mineral processing
operations. These criteria made it clear
that all solid wastes qualifying for
exclusion under the Bevill Amendment
must originate from a mineral-processing
operation; as defined by the following
elements:
(1} Excluded Bevill wastes must be
solid wastes as defined by EPA.
(2} Excluded solid wastes must be
uniquely associated with mineral
industry operations.
[3) Excluded solid wastes must
originate from mineral processing
operations that:
(a) Follow beneficiatidn of an ore or
mineral [if applicable);
(b) Serve to remove the desired
product from an. ore or mineral, or from
a beneficiated ore or mineral;
(c) Use feedstocks that are comprised
of less than 50 percent scrap materials;
• (d) Produce either a final mineral
product or an intermediate to the final
product;, and
(e) Do not combine the product with
another material that is not an ore or
mineral orfoeneficiated ore or mineral
(e.g., alloying), and do not involve
fabrication or other manufacturing
activities.
(4) Residuals from treatment of
excluded mineral processing wastes
must meet the high volume and low
hazard'criteria in order to retain
excluded status.
1. Excluded Bevill Wastes Must Be Solid
Wastes as Defined by EPA
The proposed rule requires that any
excluded Bevill wastes be solid wastes
as defined by EPA. The principal
comment regarding this requirement
was that the regulatory status of .
recycled residuals from mineral
processing is unclear. Many commenters
objected to EPA's characterization of
materials that are reused, further
processed, and/or recycled as solid
wastes. These commenters claimed that
materials that are not discarded (e.g.,
copper slag and wastewater treatment .
sludge that are resmelted) are not solid
wastes, and therefore, should not be
considered processing wastes; rather,
they should be considered intermediate
products. They contended that any other
interpretation would disrupt the present
recycling and reuse of processing
residuals, and dramatically increase
disposal costs.
Because of these concerns,
commenters recommended that EPA
develop regulatory language that
removes materials destined for
reprocessing or recycling from the
definition, and requested, furthermore,
that this clarification be in the rule itself
rather than in the preamble. Moreover*
in keeping with the status of residuals
from the treatment of Bevill wastes,
some commenters argued that residuals
from, the recycling of such non-waste
material should be afforded excluded
status if the residuals meet the high
volume and low hazard criteria.
EPA believes that there is nothing in
the regulatory history of the Bevill
Amendment that indicates that the
Agency is expected to or should apply a
definition of solid waste that is different
than that applied throughout the RCRA
program. Therefore, the Agency will
continue to use the definition of solid
waste in 40 CFR 261.2 to identify
materials that are eligible for
consideration as special wastes. This
definition subdivides secondary
materials by material type and recycling
activity in order to ascertain whether
they are solid wastes. EPA does not
accept the commenters' oversimplified
premise that materials that are recycled
are not "discarded" and therefore are
never solid wastes. Recycling activities
characterized by elements of discard,
such as use constituting disposal or
burning of hazardous wastes for energy
recovery, are activities that Congress
expressly ordered the Agency to either
prohibit or regulate. See, e.g., section
3004(q) and (1) of RCRA. At the same
time, the Agency has always limited the
scope of its definition to avoid asserting
authority over in-house recycling
operations that are essentially
continuations! of a manufacturing
process. See 5O FR 637-41 (Jan. 4,1985).
EPA has proposed to further limit the
definition's scope over these types of
activities in response to the opinion of
the U.S. Court of Appeals in American
Mining Congress v. EPA, 824 F.2d 1177
(D.C. Cir. 1987). See 53 FR 526-28 (Jan. 8,
1988). Pending further consideration of
these issues in the January 8,1988,
rulemaking, the existing definition found
at 40 CFR 261.2 (1988} will remain
applicable here.
The Agency notes, however, that
under certain circumstances, products
containing recyclable materials that are
produced for use by the general public
and that are used in a manner
constituting disposal may not be
considered solid wastes (see 40 CFR
266.20). Based upon its evaluation of
waste management practices for the
Report to Congress, EPA will consider
whether particular materials that have
been retained within the Bevill
exclusion might qualify for this
exemption from RCRA.
2. Excluded Solid Wastes Must Be
Uniquely Associated With Mineral
Industry Operations
To be excluded, solid wastes must be
uniquely associated with the mineral
processing industry. EPA received no
significant comments either in support of
or in opposition to this criterion.
3. Excluded Solid Wastes Must
Originate From Mineral Processing
Operations as Defined by the Five
Criteria
In general, commenters believed that
the attributes used in the proposed rule
to define mineral processing were
acceptable, although at least one
commenter declared that a broader
interpretation is supported by the
legislative history and prior EPA
rulemaking activity.
As discussed at length in the Appeals
Court decision that precipitated the
current rulemaking, EPA is obliged to
consider whether candidate wastes are
high volume and low hazard in making
Bevill mineral processing waste
exclusion decisions. These factors are,
and have always been, the key elements
in identifying special wastes.
Nonetheless, the distinction between
mineral processing and non-mineral
processing wastes is important. EPA
believes that it is abundantly clear that
the Congress intended to exclude only
wastes generated as a consequence of
exploiting a natural resource, not wastes
from other industrial activities, even if
both occur at the same facility.
a. Operation must follow
beneficiation of an ore or mineral (if
applicable). The proposed rule defined
processing as following beneficiation
and provided both a general definition
and some examples of beneficiation.
Several commenters stated that this
definition and discussion of
beneficiation do not adequately
delineate the boundary between
beneficiation and processing. Some
commenters requested that EPA utilize
the definition of beneficiation used hi
the Report to Congress on extraction
and beneficiation wastes.
The U.S. Bureau of Mines (BOM)
commented extensively on the
delineation between beneficiation and
processing. BOM was primarily
concerned with the status of leaching
operation^ claiming that the definition
in the preamble to the proposal did not
adequately express EPA's apparent
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presented when the Agency promulgates
the Bevill special waste criteria (by
August 18,1989).
A. Th& Definition of "Mineral
Processing"
In the preamble to the October 20,
1988 proposed rule, EPA provided
criteria for defining and identifying
wastes from ore and mineral processing
operations. These criteria made it clear
that all solid wastes qualifying for
exclusion under the Bevill Amendment
must originate from a mineral processing
operation as defined by the following
elements:
(1) Excluded Bevill wastes must be
solid wastes as defined by EPA.
(2) Excluded solid wastes must be
uniquely associated with mineral
industry operations.
[3) Excluded solid wastes must
originate from mineral processing
operations that
(a) Follow beneficiatidn of an ore or
mineral [if applicable);
(b) Serve to remove the desired
product from. an. ore or mineral, or from
a beneficiated ore or mineral;
(c) Use feedstocks that are comprised
of less than 50 percent scrap materials;
(d) Produce either a final mineral
product or an intermediate to the final
product; and ,
(e) Do not combine the product with
anothermaterial that is not an ore or
mineral, orbeneficiated ore or mineral
(e.g., alloying), and do not involve
fabrication or other manufacturing
activities.
(4) Residuals from treatment of
excluded mineral processing wastes
must meet the high volume and low
hazard criteria in order to retain
excluded status.
1. Excluded Bevill Wastes Must Be Solid
Wastes as Defined by EPA
The proposed rule requires that any
excluded Bevill wastes be solid wastes
as defined by EPA. The principal
comment regarding this requirement
was that the regulatory status of
recycled residuals from mineral
processing is unclear. Many commenters
objected to EPA's characterization of
materials that are reused, further
processed, and/or recycled as solid
wastes. These commenters claimed that
materials that are not discarded [e.g..
copper slag and wastewater treatment
sludge that are resmelted] are not solid
wastes, and therefore, should not be
considered processing wastes; rather,
they should be considered intermediate
products. They contended that any other
interpretation would disrupt the present
recycling and reuse of processing
residuals, and dramatically increase
disposal costs.
Because of these concerns,
commenters recommended that EPA
develop regulatory language that
removes materials destined for
reprocessing or recycling from the
definition, and requested, furthermore,
that this clarification be in the rule itself
rather than in the preamble: Moreover*
in keeping with the status of residuals
from the treatment of Bevill wastes.
some commenters argued that residuals
from the recycling of such non-waste
material should be afforded excluded
status if the residuals meet the high
volume and low hazard criteria.
EPA believes that there is nothing in
the regulatory history of the Bevill
Amendment that indicates that the'
Agency is expected to or should apply a
definition of solid waste that is different
than that applied throughout the RCRA
program. Therefore, the Agency will
continue to use the definition of solid
waste in-40 CFR 261.2 to identify
materials that are eligible for
consideration as special wastes. This
definition subdivides secondary
materials by material type and recycling
activity in order to- ascertain whether
they are solid wastes. EPA does not
accept the commenters' oversimplified
premise that materials that are recycled
are not "discarded" and therefore are
never solid wastes. Recycling activities
characterized by elements of discard,.
such as use constituting disposal or
burning of hazardous wastes for energy
recovery, are activities that Congress.
expressly ordered the Agency to either
prohibit or regulate. See, e.g., section
3004{q) and (1) of RCRA. At the same
time, the Agency has always limited the
scope of its definition to avoid asserting
authority over in-house recycling
operations that are essentially
.continuations of a manufacturing
process. See 50 FR 637-41 (Jan. 4,1985).
EPA has proposed to further limit the
definition's scope over these types of
activities in. response to the opinion of
the U.S. Court of Appeals hi American
Mining Congress v. EPA, 824 F.2d 1177
(D.C. Cir. 1987). See 53 FR 526-28 Qan. 8,
1988). Pending further consideration of
these issues in the January 8,1988,
rulemaking, the existing definition found
at 40 CFR 261.2 (1988) will remain
applicable here.
The Agency notes, however, that
under certain circumstances, products
containing recyclable materials that are
produced for use by the general public
and that are used in a manner
constituting disposal may not be
considered solid wastes (see 40 CFR
266.20). Based upon its evaluation of
waste management practices for the
Report to Congress, EPA will consider
whether particular materials that have
been retained within the Bevill
exclusion might qualify for this
exemption from RCRA.
2. Excluded Solid Wastes Must Be
Uniquely Associated With Mineral
Industry Operations
To be excluded, solid wastes must be
uniquely associated with the mineral
processing industry. EPA received no
significant comments either in support of |
or in opposition to this criterion.
3. Excluded Solid Wastes Must
Originate From Mineral Processing
Operations as Defined by the Five
Criteria
In general, commenters believed that
the attributes used in the proposed rule
to define mineral processing were
acceptable, although at least one
commenter declared that a broader
interpretation is supported by the
.legislative history and prior EPA
rulemaking activity.
As discussed at length in the Appeals
Court decision that precipitated the
current rulemaking, EPA is obliged to
consider whether candidate wastes are
high volume and low hazard in making
Bevill mineral processing waste
exclusion decisions. These factors are,
and have always been, the key elements
in identifying special wastes.
Nonetheless, the distinction between
mineral processing and non-mineral
processing wastes is important. EPA
believes that it is abundantly clear that
the Congress intended to exclude only
wastes generated as a consequence of
exploiting a natural resource, not wastes
from other industrial activities, even if
both occur at the same facility.
a. Operation must follow
beneficiation of an ore or mineral (if
applicable). The proposed rule defined
processing as following beneficiation
and provided both a general definition
and some examples of beneficiation.
Several commenters stated that this
definition and discussion of
beneficiation do not adequately
delineate the boundary between
beneficiation and processing. Some
commenters requested that EPA utilize
the definition of beneficiation used in
the Report to Congress on extraction
and beneficiation wastes.
The U.S. Bureau of Mines (BOM)
commented extensively on the
delineation between beneficiation and
processing. BOM was primarily
concerned with the status of leaching
operations, claiming that the definition
in the preamble to the proposal did not
adequately express EPA's apparent
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15325
In addition,- EPA wishes to clarify this
attribute by stating that the 50 percent
rule applies to all materials containing
the mineral value that enter a process
operation, rather than to the total of all
materials entering the operation. For
example, the 50 percent rule would
apply to crushed copper ore [or
beneficiated copper ore} and scrap
copper used in the feedstock for a
copper smelting operation, but coal or
natural gas used to fire the furnace
' would not be included in the calculation.
Materials not containing the mineral
value [e.g., reducing agents, fluxing
agents) are also not included in
determining whether a processing
operation or waste complies with the 50
percent rule.
With regard to accounting policies,
EPA agrees with the comment that the
accounting period over which to analyze
feedstock percentages should be one
year. However, in contrast to the
preference of some commenters, the
Agency believes that the rule must be
applied to individual processing
operations rather than to- an entire
plant's operations- Applying the 50
percent rule to an entire plant's
operations-would ignore the significant
'differences in volume and potential
hazard, that exist between the diverse
groups of wastes produced at mineral
processing facilities. The Agency wishes
to emphasize-that it is establishing a one
year accounting period to allow for
normal fluctuations in the composition
of mineral processing operation
feedstocks. Wastes generated by
operations that utilize ores, minerals, or
beneficiated ores or minerals as
secondary feedstocks or use them only
intermittently are not eligible for Bevill
status.' . '
d. Operation produces either a final
mineral product or an intermediate to
the final product The definition of
processing in the proposed rule requires
that, to be eligible for consideration for
the Bevill exclusion, the process
operation, must produce either a final
mineral product or an intermediate to
the final mineral product One
commenter stated that EPA should
follow Congress' intended broad view of
the tenn"processing" and include all
stages after beneficiation through
production of final products, including
all parts of multi-circuit processes.
As indicated earlier, EPA believes
that products that are not directly
related to mineral processing operations
or that are produced after mineral
processing is complete do not fall within
the scope of the definition intended by
Congress. For example, manufacturing
ammoniated phosphate fertilizer
products, which involves mixing
ammonia, a non-mineral material, with
mineral processing products, is not
considered a mineral processing
operation. Manufacturing of finished
products, such as copper wire, silver
jewelry, and lead weights, is also
outside the definition of mmeral
processing operations. Additional
information about the point at which
mineral processing: ceases and alloying
or fabrication begins is provided below.
e. Operation does not combine the
product with another material that is
not an ore or mineral, or beneficiated
ore or mineral fe.g.r alloying); and do-
not involve fabrication or other
manufacturing activities. The proposed
rule defined the end of mineral
processing as the point at which the
processed ore or mmeral is combined
with another material that is not an ore
or mineral, or beneficiated ore- or
mmeral, undergoes fabrication, or is
subjected to other manufacturing
operations. EPA believes that the end
point is reached when recovery or
enhancement of mineral valuefs) ends
and manufacturing begins. Some
commenters expressed general
dissatisfaction with this definition and
argued that it significantly narrows-the
definition of mineral processing wastes
eligible for the Bevill exclusion. They
contended that Congress intended the
exclusion to encompass all wastes
generated by mineral processing
operations, from the removal of minerals
from the ground through creation of a
. final saleable product. Many comments
centered around a particular processing
operation and associated wastes that
would potentially be removed from the
Bevill exclusion if this attribute is
included in the final rule.
The purpose of this portion of the
definition is to identify the end point of
mineral processing operations. The •
Agency believes that Congress, in
adopting the Bevill Amendment,
intended to include only those processes
that remove, concentrate, and/or
enhance values contained in ores' and
minerals or beneficiated ores and
minerals. EPA's view is that
manufacturing and alloying operations
clearly do not fit into this category.
Instead, EPA, in articulating the
special wastes concept, and the
Congress, in implicitly basing the Bevill
Amendment on this concept, wished to
distinguish between operations that- (1)
By their nature produce large volumes of
waste in retrieving valuable
commodities from native materials in
which concentrations of the values are
. relatively low, and (2) conventional
manufacturing operations. It is clear
from the legislative history that both
EPA and Congress intended the "special
waste" concept to have a finite scope
that did not encompass wastes from
operations that produce wastes in -
volumes similar to other manufacturing
operations. Accordingly, EPA has not
made any changes to this attribute for
today's proposal.
4. Residuals From Treatment of
Excluded Mineral Processing Wastes
Must Meet the High Volume and Low
Hazard Criteria
The October 20,1988 proposal
included, as processing wastes,
residuals from the treatment of excluded
mineral processing wastes if these
residuals also meet the high volume
criteria. Apparently, some confusion
exists regarding the status of these
residuals, as commenters requested both
rule language that was already present
in the preamble to the proposed rale and
additional clarification of rule
provisions. Several commenters, for
example, stated that the regulatory
status of wastewater treatment effluent
is unclear and requested that EPA
clarify in the final rule that wastes
which arise from the treatment of a
Bevill Amendment waste fall within the
Bevill exclusion.
Commenters also expressed concern
regarding the status of wastes that are
generated by pollution control
equipment:-they expressed concern that
a strict reading of the five attributes,
and the second and fourth attributes in
particular, might prevent any pollution
control residual from being classified as
a processing waste. Several commenters
specifically suggested that EPA simply
list for study, in the regulation itself, the
category "residues from the treatment of
all mineral-processing wastes on the
preceding list which are generated at a
rate greater than the high volume
criteria established by EPA." This
action, they contended, would make the
list more flexible and allow it to address
the different types of treatment which
may be utilized at different mineral
processing operations.
Other commenters suggested that high
volume criteria should not be applied to
treatment residuals, because, they
contended, this action would frustrate
the objectives of RCRA and the Bevill
Amendment by discouraging waste
reduction and the treatment of excluded
wastes. They argued that because
excluded wastes are the highest volume
mining wastes, the most environmental
good would come from volume reduction
innovations for these waste streams.
Therefore, these commenters suggested
including on the list for study, in the
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15326 Federal Register / Vol. 54, No. 72 / Monday, April 17, 1989 / Proposed Rules
regulation itself, "residues from the
treatment of all mineral processing
wastes on the preceding list regardless
of the rate of generation."
EPA believes that the most
appropriate interpretation of the term
"solid waste from the processing of ores
and minerals" should include pollution
control residuals as long as the residuals
meet the high volume and low hazard
criteria required for all excluded wastes.
The Agency believes that by including
qualifying mineral processing wastes
and pollution control residuals on the
list of wastes excluded under the Bevill
Amendment, the intent of Congress will
be achieved by allowing further study of
these high-volume, low-hazard wastes.
Pollution control residues would still
have to meet both the high-volume and
the low-hazard criteria being
established by today's proposed rule in
order to qualify as excluded special
wastes. The ultimate regulatory
approach imposed upon the wastes that
would be retained within the Bevill
exclusion under today's proposed rule
will be addressed in EPA's Report to
Congress and subsequent regulatory
determination.
Moreover, as discussed in more detail
below, the Agency is not proposing to
apply the high volume and low hazard
criteria prospectively, i.e., EPA will
define the final scope of the Bevill , .
mineral processing waste exclusion by
January 15,1990. Therefore, application
of these criteria will not discourage
future waste reduction and the
treatment of excluded wastes.
B. The "High Volume" Criterion
The preamble of the October 20,1988
NPRM articulated an explicit high
volume criterion to be used to identify
high volume mineral processing wastes.
This criterion consisted of two tests, one
of which would have to be met for a
waste to be considered high volume.
The first test was based on the average ,
annual per facility generation rate of a
waste, and the second on total annual
quantity of a waste generated
nationwide. Both tests applied only to
individual waste streams produced in
any single year between 1982 and 1987.
For a complete description of the basis
for this criterion, see the original notice
published at 53 FR 41288, October 20,
1988.
While several commenters expressed
concern with the high volume criterion,
most commenters supported the concept
of using an explicit quantitative high
volume criterion to help define special
mineral processing wastes.
Several commenters argued that
nothing in the Appeals Court decision
indicated that Bevill wastes must meet
both the high volume and-low hazard
criterion, arguing that, in fact, wastes
that do not satisfy either of the criteria
couid be retained within the exclusion.
The Agency rejects this conclusion,
and believes that to do otherwise would
be inconsistent with the Court's reading
of legislative intent as well as ignore the
essence of the special waste concept,
which EPA first articulated in 1978.
Several commenters recommended
that EPA not rely solely upon volumetric
data when making Bevill exclusion
decisions. Instead, they suggested that •
EPA use the criterion only as a guideline
and fully consider the unique or unusual
nature of mineral processing operations
rather than removing a waste from the
exclusion based solely upon volume. In
addition, one commenter stated that
EPA's use of the waste volume criterion
without reference to other mineral
processing considerations ignores
Congressional intent in requiring
specific studies, of each special waste •
category. . • ...
EPA disagrees. The-issue in,this
rulemaking is which mineral processing
wastes will be considered special
wastes .and hence, subject to further
study, and what criteria will be used to
identify these special wastes. Volume is .
the most relevant and objective measure
of the degree to which a waste is
amenable to management under the
provisions of Subtitle C. Other factors,
such as the special or unique
characteristics of a particular operation
or industry sector, are not relevant to
defining high volume, and therefore, the
feasibility of Subtitle C controls. These
factors will, however, be evaluated for
the wastes that are retained within the
exclusion and be discussed in the
Report to Congress.
Other commenters also noted that
Congress did not intend to create a
disincentive for voluntary waste
reduction efforts when it passed the
Bevill Amendment, and contended that
imposing a volume cut-off for defining .
special wastes would create such a
disincentive! One commenter stated that
because one of. the primary goals of
RCRA is reduction of waste, EPA should
not "reward" successful waste reduction 1
efforts by removing wastes from the
mining waste exclusion.
EPA agrees that neither the Congress
nor the Agency intended to discourage
waste reduction efforts on the part of
industry. The issue at hand, however, is'
establishing the boundaries of a
temporary exclusion which provides for
study of the unique aspects of managing'
some of the unavoidable high volume
residues of mineral processing.1
Presumably, if mineral processing waste'
volumes could be significantly reduced -
through process modifications, facility
operators would already have
implemented such modifications,
because waste management (of either
hazardous or non-hazardous waste) is
costly, particularly for large volumes of
wastes. Therefore, EPA believes that
wastes that can be greatly reduced in
volume through process modifications
are not truly special wastes in the first
instance. Moreover, the Bevill
Amendment was clearly intended to
provide a bridge between historical and
future waste management requirements
based upon current waste streams and
waste generation rates. Therefore,
prospective behavior on the part of
industry or individual facilities has no
effect on a waste stream's Bevill status,
since this status will be determined on
the basis of historical waste generation
rates. Nonetheless, EPA has made
allowances for recent waste reduction
efforts by accepting the highest annual
waste generation volume during any of
the five years from 1982 to 1987 (1983 to
1988. in. today's proposal).
In developing the high volume
criterion the Agency evaluated four
methodological issues, including: (1) The
appropriate degree of aggregation of
waste streams; (2) the basis for
quantitative analysis (facility-specific
vs. industry-wide); (3) the units'of
measure;' and (4) the types of o.ther
wastes to be used as the basis for
comparison.
1. Degree of Aggregation of Waste
Streams
For the 10/20/88 NPRM, the Agency
weighed three options concerning the
degree of aggregation; (1) Consider
individual waste streams generated by
specific industry sectors separately (the
option adopted); (2) aggregate all waste
streams within a given facility; and (3)
combine similar waste streams across
mineral commodity sectors.
Commenters in general requested more
aggregation, with several commenters
recommending specifically either the
second or third options or modification
of the first option (i.e., more aggregation
of similar individual waste streams).
These commenters identified several
precedents for aggregating waste
streams, citing EPA's effluent guidelines
and supporting documents, the 1985
proposed reihterpretation, and the
Agency's approach in addressing
extraction and beneficiation wastes.
They also maintained that aggregation is
consistent with Congressional intent
and with the 1985 proposed
reinterpretation which designated
"primary smelting slag" as a generic ' ".'
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Federal Register / Vol. 54, No. 72 / Monday, April 17, 1989 / Proposed Rules
15327
Bevill Amendment processing waste
category.
Several commenters claimed that EPA
has artificially segregated processing
wastes into specific waste streams (e.g.,'
. separating non-contact cooling water
from process wastewater). Several
suggested that within a facility, all
wastes should be grouped together for
the purpose of developing a per-facility '
high volume criterion. Several
commenters also indicated that EPA
should not treat lower volume waste
streams differently than higher volume
waste streams if all the streams are part
of the same process and if operations
are uniquely related to ore and mineral
processing operations. They argued that
• for purposes of the Bevill study, EPA
should aggregate, especially within but
also across sectors, waste streams-that
arise from the same types of feedstocks
and production processes and that are
similar in their generation rates,
physical or chemical waste
characteristics, management practices,
and/or other characteristics.
Several commenters discussed
specific waste streams within their
particular commodity sector(s) that they
felt were exemplary of waste streams
that should be aggregated. For example,
commenters representing the phosphate
sector contended that EPA should
aggregate process waters associated
with phosphate rock processing along
with the entrained solids. Similarly, .
commenters from the copper sector -
argued that EPA should not segregate
wastes such as process wastewater and
contact cooling water, various
blowdown effluents, and wastewater
treatment plant sludges. These
commenters also argued that all slags
from the various operations of copper
smelting and refining should be
aggregated into one waste stream (as
they were in the proposed rule). They
claimed that presently, EPA treats
smelting and refining wastes
inconsistently because the Agency
disaggregates smelting and refining
slags while concurrently aggregating
smelting and refining process
wastewaters.
EPA largely disagrees with these
comments. EPA believes, and the Court
has agreed, that mineral processing
wastes must meet all special waste
criteria to be entitled to the temporary
exclusion from Subtitle C requirements.
In order to complete the study
requirements listed at section 8002(p) of
RCRA, EPA must define current and
alternative practices that are and could
be employed to manage special mineral
processing wastes. In practical terms,
this requires that the Agency examine
individual waste streams in order to
determine whether current practices
(e.g., co-management) are adequately
protective of human health and the
environment, and whether individual
Bevill wastes are amenable to Subtitle C
controls. Moreover, because the Agency
believes that it is neither appropriate
nor practical to screen an assemblage of
dissimilar wastes with a criterion
addressing hazard to identify the wastes
that are clearly not low hazard, it is
similarly inappropriate to evaluate the
volumes of wastes on an aggregated
basis.
In determining the waste streams to
be included in the Bevill exclusion, EPA
did, however, employ some aggregation
within mineral commodity sectors,
specifically for copper slags and certain
process wastewaters. For purposes of
the rule, EPA continues to propose to
treat process wastewater as a generic
category comprising waters that are
uniquely associated with processing
operations that have accumulated
contaminants to the point that they must
be removed from the mineral production
system; the category includes contact
cooling water but does not include
aqueous waste streams from pollution.
control- devices (e.g., acid plant
blowdown, wastewater treatment
sludge).
Some commenters also suggested that
similar wastes should be aggregated
across mineral commodity sectors. They
claimed that EPA has created the
illusion of separate waste streams by
segregating processing wastes by
mineral commodity sectors. These
commenters contended that waste
streams should be considered on an
industry-wide, aggregate basis rather
than on a sector-specific basis, again
determining which waste streams to - -
aggregate based on similarities in
process, waste, and waste management
characteristics.
In particular, some commenters that
operate pyrometallurgical processes
maintained that all slags should be
aggregated across mineral commodity -
sectors because the slags have similar
characteristics. They maintained that
Congress'Intent was that all slags
should be considered as a single waste,
pointing out that the generic waste
category "smelting slag" was explicidy
mentioned hi the legislative history of
the Bevill Amendment and in the 1985
reinterpretation proposal (see 50 FR
40292, October 2,1985).
Although the Agency believes that
combining very similar wastes (e.g.,
copper reactor and converter slags)
within a commodity sector for purposes
of evaluating volume is appropriate, it
does not believe that aggregating wastes
across sectors is appropriate. Despite
the fact that metallic ore processing
facilities having pyrometallurgical
operations, for example, share many
attributes, the Agency believes that
differences in feedstock composition
may render processing wastes (e.g., slag]
at some facilities in some sectors
potentially more hazardous than similar
wastes at other facilities in other
sectors. Moreover, waste generation
rates (and hence, amenability to
management under Subtitle C) may vary
dramatically between industry sectors
for the same type of waste. Accordingly,
EPA continues to propose that a high
volume waste generated by one
commodity sector may be a special
waste while another waste that is
generated by the same type of process in
another sector and is physically similar
but is generated in low volumes is not a
special waste. :
2. The Basis for Quantitative Analysis •
(Industry-Wide vs. Per-Plant Waste •
Generation) .
In the October 20,1988, NPRM, EPA
discussed three options for conducting
its quantitative analysis of candidate
Bevill mineral processing waste streams:
(1) Develop and analyze a plant-specific
measure of waste generation; (2)
examine waste stream generation on an
industry-wide basis"; or (3) develop and
utilize a combination of the first two
alternatives by developing both a plant
and industry-specific criterion (the
option adopted).
Some commenters supported the use
. of the facility level test, because it
would not penalize sectors comprised of
a small number of individual facilities
(i.e., the zinc, lead, beryllium, chromium,
tungsten, and other sectors). Many
objected, however, to the use of a
facility average, pointing out that the
use of an average may remove wastes
from the exclusion that are generated in
large volumes at one or more facilities in
commodity sectors'comprised primarily
of small facilities.
The Agency believes that using a
sector-wide average is the most
equitable way to define high volume
mineral processing wastes. Allowing
any individual facility to qualify for the
exclusion if it exceeds the volume
criterion would discriminate against
smaller producers hi a sector, while
excluding a waste on a sector-wide
basis if any one facility fulfilled the
criterion might result in wastes that are
not truly high volume (i.e», are amenable
to Subtitle C controls at most facilities)
being retained within the exclusion.
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15328 Federal Register / Vol. 54, No. 72 / Monday. April 17. 1989 / Proposed Rules
Some commenters also felt that
individual facility operators would find
it difficult to determine whether their
particular wastes or residuals exceed
the volumetric threshold; different
facilities which generate the same waste
streams in different quantities could
arrive at opposite conclusions about
whether their wastes meet the high
volume criterion. Therefore, instead of a.
threshold based on a facility-level
average, several commenters
recommended that EPA establish a high
volume criterion on an individual
facility basis. This would, they
maintained, incorporate the benefits of
the facility level analysis while
countering the statistical and
administrative disadvantages of the
facility average.
The Bevill exclusion applies to
wastes, not individual facilities. In this
proposal, EPA has already applied the
criteria outlined in this preamble to
derive the list of waste streams
(including treatment residuals] proposed
for continued exclusion from regulation
under Subtitle C. Facility operators will
not have to apply the criterion
themselves but merely determine if the
facility generates the proposed Bevill
waste. Facility owner/operators who
believe that EPA has overlooked a
waste stream which meets the stated
criteria should submit public comments,
including supporting documentation,
regarding the physical, chemical, and
radiological characteristics and
generation rate of any potential.
candidate waste streamfs) managed at
their facilities. EPA will then utilize the
information submitted by all •
commenters representing a particular
commodity sector to determine whether
the candidate special waste satisfies the
high volume criterion (and the other
special waste criteria).
Some commenters objected to the use
of the facility level test as part of the
high volume criterion. They argued that
the most important and undesirable
effect of the current facility level
average test would be to retain wastes
that should be withdrawn from the
exclusion. They noted, furthermore, that
all but one of the wastes meeting the
total nationwide volume test, the
measure that they contended is the true
indicator of large volume, also meet the
facility-level test, rendering this facility-
level test ineffectual.
EPA believes that the Bevill exclusion
is intended to apply only to those waste
streams that are produced in such large
quantities that they may not be
amenable to management under Subtitle
C. The burden of waste management
(and, therefore, the feasibility of Subtitle
C controls) depends more on the
quantity of waste generated by a typical
facility than on the total amount
produced by a commodity sector. This is
particularly true in industries that
generate large quantities of waste that,
for technical and economic reasons, are
managed on-site.
Few comments directly addressed the
nationwide volume criterion. Several
commenters requested that EPA require
that wastes pass both the sector-wide .
and the facility-level test Other
commenters, however, were concerned
about any approach in which all
excluded wastes would be required to
meet the nationwide volume criterion,
because they felt this test would unfairly
remove.from the exclusion any sectors
with small numbers of waste generators.
One commenter suggested that the total
volume test be dropped altogether.
In response to these comments, the
Agency has decided to eliminate the
nationwide volume criterion and rely
solely upon a facility-level analysis of
waste generation. While the industry-
wide volume criterion is consistent with
past Agency proposals to resolve the
special mineral processing wastes issue,
the Agency believes that average per-
facility volumes provide a better
measure of amenability to management
under Subtitle C controls,- in large part
because large-volume mineral
processing wastes typically are
managed on-site. Based upon EPA data
and information submitted in public
comment on the 10/20/88 NPRM, '
eliminating the industry-wide test
results in the removal of only one waste
stream from the Bevill exclusion (lime
kiln APC dust).
3. Units of Measure
EPA weighed two options in
determining the appropriate units of .
measure to apply to mineral processing
wastes in order to serve as a basis of
evaluation and comparison with other
high volume wastes. These options
included (1) using the quantity of waste
generated annually in metric tons (the
option adopted), or (2) using ratios of
waste volume generated to quantity of ,
final product (or other appropriate
comparisons, e.g., to quantity of ore/
mineral feedstock). While EPA noted
several advantages to using a ratio in
the preamble to the proposed rule, the
Agency noted that existing data were
not adequate to compile ratios for ,
certain prominent large volume waste
streams.
The only comment regarding the
evaluation of waste generation in
absolute terms was directed at the use
of metric tons which, the commenter
indicated, is a unit of mass and not of
volume. This commenter points out that
the court decision specifically references
"large volume wastes" and requests that
EPA clarify this apparent contradiction.
As discussed above, the term "high
volume" has always been1 an integral
part of the definition' of special wastes.
For purposes of analysis, however, EPA
believes that it is convenient to utilize
data expressed on a common mass
basis, because candidate special wastes
having different physical forms are often
quantified in different units (e.g., cubic
yards vs. gallons). Because the wastes of
concern are typically either solids,
sludges, or liquids, conversion between
waste quantities expressed in terms of
mass/weight and volume is simple and
straightforward, requiring only the
density of the material in question.' EPA
has, accordingly, decided to utilize
metric tons as the common analytical
unit for this rulemaking. The Agency
notes that it has consistently discussed
high volume wastes in terms of metric
tons since 1973. Furthermore, EPA
believes that amenability to Subtitle G
controls may be addressed most
accurately through the use of units of
mass.
While EPA did hot utilize a ratio hi
support of the October 20,1988 proposal,
the Agency did solicit public comment
on the use of a ratio of waste volume-
generated to one or more measures of
material handled to further define the
term "high volume." EPA also requested
suggestions for the numerical value of
the appropriate ratio. Several
commenters strongly supported the
adoption of a waste-to-product ratio as
an additional or alternative test in
determining whether a waste should be
Bevill-excluded. For example, one
commenter suggested that'EPA consider
a waste-to-ore or mineral ratio. Other
commenters objected to the use of a
ratio approach, contending that it is
irrelevant to the process of identifying
high volume mineral processing wastes,
and could result in low volume wastes
being retained within the Bevill
exclusion.
Several commenters appealed to EPA
to not reject the ratio approach solely
because of the limitations of the
Agency's existing data base. They
argued that a ratio helps to ensure that
the high volume criterion does not
discriminate against small industry
sectors or against large volume waste
generators in sectors with
predominantly low volume waste
generators. Additionally, commenters
agreed that ratios remain relatively
constant whereas the total volume of
waste generated (both nationally and at
the facility level) varies with economic
-------
flrarke* fluctuations. They also
contended that, administratively, the
use of a ratio would be more accurate in
distinguishing between mineral
processing wastes and other industrial
wastes and be more easily used by
facility operators in determining which
of a facility's was tes might meet
volumetric criteria.
While recommending the ratio
• approach, some commenters did suggest
several conditions. They requested that
the ratio be employed as an alternative,
rather than additional, test that must be
met for a waste to be retained within the
exclusion. Several commenters
recommended that in administering this
criterion EPA retain any waste stream
that has met the ratio test for any
calendar year between 1982 and 1987, in
order to avoid penalizing firms and
industries that have reduced their waste
generation rates in recent years.
As mentioned above, several
commenters recommended that EPA not
employ a ratio approach. These
commenters maintained that the ratio
concept does not take into account the
efficiency of the processing operation
and that the use of ratios creates
incentives for poor processing or
• increasing waste generation rates,
which would be contrary to EPA's goal
of waste minimization.
Comments on potential ratio values
were varied. In the October 20,1988
NPRM, EPA suggested that if a waste-to-
product ratio were used, a value of 0.5
might be appropriate. In criticizing the
use of any ratio approach, some
commenters argued that this value is
miniscule in comparison to the ratios for
other mining wastes. Other commenters,
on the contrary, argued that the value
was not low enough to effectively
distinguish high volume from low
volume processing wastes, pointing out
that EPA's own data indicate that two of
the wastes proposed for exclusion,
• copper process wastewater and copper
bleed electrolyte, have ratios lower than
0.5. They also noted that although many
other special wastes (e.g., fly ash,
cement kiln dust) have ratios that are
less than 0.5, these materials are clearly
within the Bevill exclusion. Generally,
commenters supporting the use of a ratio
criterion suggested a waste-to-product
ratio in the range of 0.1 to 0.2.
Based upon an analysis of the
comments received, th& Agency has
concluded that the use of a waste-to-
product or other ratio would not
enhance EPA's understanding of the
amenability of mineral processing
wastes to management under Subtitle C
controls (the purpose of the volume .
criterion) and has, accordingly, decided
to not include a ratio of any kind in the
15329
high volume criterion. Ratios provide a
measure of the degree of concentration
and/or relative quantity of material
handled in the- production process.
Hence, they would be useful in
prediction the quantity of wastes that
might be generated assuming a given
quantity of mineral product or ore
feedstock. This information, however, is
not relevant to determining whether a
particular mineral processing waste is
amenable to Subtitle C control. In fact,
data submitted to EPA in public
comment indicate that many low volume
wastes (i.e., those generated in the 200-'
500 mt/yr/facility range) have relatively
high ratios of waste-to-product (greater
than 0.5). Therefore, EPA believes that
mis concept is not suitable for
identifying high volume mineral
processing wastes
4. Types of Wastes Used as the Basis for
•Comparison -
In the 10/20/88 NPRM, the Agency
discussed four options concerning the
basis for comparison that should be
utilized hi developing values for waste
volume thresholds: (1) Extraction and
. beneficiation wastes; (2) other special
wastes such as oil and gas wastes; (3)
RCRA Subtitle C wastes; and (4) some
combination of all three (the option
selected).
Several commenters objected to some
degree to each of the approaches. For •
example, a commenter claimed that
EPA, regardless of which approach was
taken, compared disaggregated mineral
processing wastes to aggregated Subtitle
C, oil and gas, and mining wastes.
This statement is only partially true.
EPA compared aggregated wastes
managed under Subtitle C with
quantities of proposed Bevill mineral
processing wastes, because waste- and
facility-level data on Subtitle C waste
management were unavailable, making
comparisons with disaggregated Subtitle
C data infeasible. Other comparisons
developed in support of the volume
criteria, however, used disaggregated
data (e.g., mineral extraction and
beneficiation wastes on an individual
and commodity sector-specific basis,
distinct high volume oil and.gas wastes).
Another commenter argued that the
only permissible basis of comparison
with processing wastes is the universe
of industrial wastes because comparison
with Bevill or Subtitle C wastes is
improper and contrary to Congressional
directive.
This comment reflects an incomplete
understanding of the special wastes
concept and of Congressional intent in
enacting the Bevill exclusion. The
purpose of the high volume criterion is
to identify mineral processing wastes for
which the provisions of Subtitle C mi°ht
be potentially infeasible. Therefore,
comparisons with Subtitle C wastes are
not only reasonable and appropriate,
but necessary. Comparisons with other
Bevill wastes, on the other hand, do not
provide conclusive evidence, but do
suggest boundaries on what might be
considered a high volume special waste.
Finally, one commenter asserted that
the Court directive in EOF v. EPA to
, establish the Bevill exclusion's
boundaries on the basis of "high
volume" does not require EPA°to set a
volume threshold for special mineral
processing wastes that relates in anv
way to waste volumes in other
industries. They argued that EPA could
in fact establish a distinct volume
criterion for each industry or sector.
EPA agrees that the Court directive
does not require the Agency to establish
a volume threshold on the basis of
comparisons with other wastes. In fact
the Court directive leaves the reasoning
behind any volume threshold to EPA's °
discretion. The Agency believes, '
however, that the methodology it has
used to derive the specific volume
criterion levels is reasonable and
equitable.
With regard to the volume
comparisons using RCRA Subtitle C
wastes, a commenter correctly observed
that the specific volumetric criteria used
exceed the quantities of most wastes
that are managed under Subtitle C
Another commenter argued that ba'sino
the high volume criterion oh the waste"
V?L^?.S Se*e/ated in tfae top ten percent
of Subtitle C facilities has no legal or
logical basis. This commenter
recommended that rather than choosin«
the highest volume listed hazardous °
wastes to compare with mineral
processing wastes, EPA should have
utilized the average, or typical, Subtitle
C waste volume.
The Agency disagrees with the
argument that a relevant comparative
analysis should reflect "typical"
quantities of hazardous waste
generated. Because the Bevill exclusion
is intended to exempt only wastes
generated in volumes which may be too
large to be managed under Subtitle C of
RCRA, it would not be appropriate to
base the high volume criterion on
comparisons with the hazardous wastes
that are generated and managed in
typical" volumes.
Several commenters addressed the
use of other mineral processing wastes
arguing that in setting the high volume '
criterion, EPA should not concern itself
with the generation rates of the six
recently relisted smelting wastes. EPA
disagrees. Because the Court explicitly
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15330 Federal Register / Vol. 54, No. 72 / Monday, April 17, 1989 / Proposed Rules
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determined that the six smelting wastes
are not high volume, low hazard wastes,
the generation rates of these wastes can:
and should serve as a lower bound
bslow which wastes should not be
afforded Bevill status.
5. Definition of High Volume Mineral
Processing Wastes
In the October 20,1988 NPRM, EPA
proposed to designate a waste as a
"high volume" processing waste if it met
either of the following criteria: (1)
Produced annually by all U.S. facilities
in a processing sector in quantities
greater .than two million metric tons hi
any year frnra 1982 to 1987. or (2)
produced at an average per facility rate,
In a given sector, in excess of 50,000 .
metric tons during any of the years 1982
to 1987.
Several commenters maintained that
the thresholds were set higher than
necessary lind suggested values in the
range of 100,000 to 400,000 metric tons
per year for the sector-wide total and
25,000 to 35,000 metric tons per year for
the facility-level total Specifically, some
commenters also argued that the
proposed sector-wide and facility
thresholds are not supported by EPA's
own data on extraction and
beneficiation wastes. They contended
that EPA's data indicate that lowering
the criterion would allow EPA to
effectively distinguish between high and
low volume processing wastes. They
also noted that an evaluation of
generation rates of other special wastes
(e.gn utility wastes) indicates that the
thresholds are significantly higher than
they should be.
Some commenters also contended that
EPA's approach contradicts its earlier
statements (e.g., 51FR 36233) that using
the lowest of the traditionally
considered high volume wastes as the
threshold is inappropriate. They argued
that the fact that increasing or
decreasing the 50,000 metric tons per
year average facility threshold point by
25 percent would affect the designation
of only one mineral processing waste
(see 53 FR 41294) does not support EPA's
thresholds; this is an arbitrary fact that .
could easily be stated about a variety of
other thresholds "and demonstrates that
the threshold is too high.
Unlike the definition of extraction and
beneficiation wastes (materials that are,
in almost all cases, clearly high volume,
low hazard wastes), there has always
been some ambiguity regarding the
definition of mineral processing wastes
as it relates to regulatory status .under
the Bevill exclusion. For this reason,
EPA believes that it must explicitly
define'the criteria used to define special
mineral processing wastes, including
those used to define high volume.
In order to avoid the confusion caused
by the earlier proposed rulemaking, EPA
has attempted to define "high volume"
by making explicit comparisons with
several different types of wastes. The
Agency has not used the lowest of the
other Bevill waste generation rates to
establish the threshold but has instead
used this information as a "reality
check" for the criteria that it developed
based on data concerning Subtitle C
waste generation and management.
Finally, the fact that one extraction or
beneficiation waste is generated at
quantities less than the threshold for
Bevill mineral processing wastes does
not, in the Agency's view, invalidate the
adopted threshold.
Some commenters were concerned
that the criterion might discriminate
unfairly against smaller producers and
industry sectors. Utilizing the existing
volume criterion to formulate the final
rule would, they claimed, result in the
effective removal of all of the processing
wastes generated by 21 minor metals
industries from the mining waste
exclusion. In addition, these
commenters argued that fixed high
volume standards unfairly discriminate
against smaller producers and industries
that have recently experienced poor
market conditions.
The Court has ruled that the Bevill '
exclusion has always been intended to
cover only high volume, low hazard
wastes. The fact that some industry
sectors would no longer enjoy the
temporary exclusion from Subtitle C if .
the-proposed rule were promulgated is
not a relevant factor in defining either
the scope of the Bevill exclusion
generally or the provisions .of the high
volume criterion specifically. In
addition, EPA believes that the
proposed high volume standard avoids
discriminating against smaller producers
because it is based on average per-
facility waste generation rate. Similarly,
EPA believes that the proposed
approach accounts for variations in
market conditions by using the highest
average annual per-facility waste
volume for the most recent five year
period.
Other commenters argued that the
proposed thresholds are too low.
Specifically, they argued that the
thresholds are not supported by
comparisons with extraction and
beneficiation wastes, pointing out that
because extraction and beneficiation
wastes are clearly within the scope of
the Bevill exclusion, their generation
rates should serve as the lower bound
for evaluating processing wastes.
This line of argument ignores the
nature of the mineral production
process. In minerals processing, values
are progressively concentrated from
native materials in stagss; generally,
each successive step produces waste
volumes which are orders of magnitude |
lower than those generated by the
previous step. Accordingly, one would
not expect waste generation rates from |
mineral processing to parallel those
from extraction and faeneficiation
operations. Extraction and beneficiatior.
waste volumes, therefore, are not
appropriate for establishing a lower
bound for a processing waste volume
threshold. *
Some commenters argued that EPA's
comparisons with Subtitle C data are
faulty. They contended that EPA has no|
demonstrated that there is something
unique about the wastes identified by
the thresholds or the management
practices employed for these wastes
that would render Subtitle C regulatory |
controls technically infeasibie or
inappropriate. They claimed that the
fact that ten percent of Subtitle C
facilities manage waste quantities in
excess of the thresholds demonstrates
that it is indeed technically feasible to
manage these large waste volumes;
special wastes are not "special," they
contended, if the category applies to
such a substantial percentage of the
regulated community.
With regard to the actual comparison^
with Subtitle,C wastes, these
commenters argued that EPA has
distorted the facts in its attempt Lo
dismiss the overlap by using the
unsupported claim that the Subtitle C
data refer to combined wastes streams
dominated by aqueous waste streams.
In fact, the commenters argued that
proposed BDAT background documents I
report that generators producing at least|
two of the nine top listed hazardous
waste streams referred to in the 10/20/
88 NPRM averaged in excess of 50,000
metric tons per facility per year in 1985.
Four plants produced 801,000 metric tons]
of K104 wastes (combined wastewater
streams generated from nitrobenzene/
aniline production), averaging over
.200,000 metric tons per plant .Similarly,
seven plants produced 414,000 metric"
tons of K016 wastes (heavy ends or
distillation residues from the production |
of carbon tetrachloride), averaging
59,143 metric tons per plant.
As noted by another commenter and
as discussed above, there is no reason
to require that the ranges of volumes at
which excluded mineral processing and
Subtitle C wastes are generated and
managed be mutually exclusive. In
addition, EPA believes that some
-------
overlap between the available
aggregated Subtitle C data and the
volumes of excluded mineral-processing
wastes is indeed unavoidable, in part
because available Subtitle C data
include commercial facilities. Many of
the largest Subtitle C facilities are
commercial hazardous waste
management operations, which are in
the business of managing aggregated
wastes generated by other entities, for
which they receive compensation.
Facilities that manage only their own
wastes (such as most mineral processing
operations), on the other hand, incur
waste management expenses as an
operating cost. Because the incentives
for and costs/benefits of managing large
volumes of waste within these two
groups of facilities are quite different,
EPA believes that allowances must be
made in evaluating the aggregated
Subtitle C data. For example, the
proportion of non-commercial Subtitle C
facilities (i.e., those that may
appropriately be compared with mineral
processors) that generate waste volumes
above the specified high volume
threshold is actually less than ten
percent Moreover, mineral processing
facilities often manage multiple high
volume waste streams. For these
reasons, the Agency feels that an
overlap with ten percent of the total
Subtitle C universe is an appropriately
stringent approach and supports the
average facility criterion of 50,000 metric
tons per year.
Several commenters suggested that
separate tests be established for solid
and aqueous liquid waste streams, as
the typical waste generation rates of
these waste types vary dramatically.
Furthermore, these commenters noted
that managing solid waste streams
differs from managing aqueous liquid
waste streams with respect to
technologies employed, cost, and
technical feasibility. Conceptually, the
Agency believes that the idea of
separate tests for solid and aqueous
liquid waste streams may have merit. -
Industry routinely manages wastewater
volumes in the millions of gallons per
day per facility (i.e., well over one
million metric tons per year); thus, it
may be appropriate to set a much higher
criterion threshold for aqueous liquid
mineral processing wastes. Because of
time and data constraints, however,
EPA could not undertake the analysis
necessary to develop separate criteria
for this IsfPRM. EPA hereby solicits
comment on the idea of a different
volumetric criterion for aqueous liquid
wastes, as well as suggestions of
possible values for an aqueous liquid
waste volume cut-off for possible
incorporation into the final rule. EPA is
considering an aqueous liquid waste
volume criterion on the order of 1.5
million metric tons per year.
C. The "Low Hazard" Criterion
As discussed in the preamble to the
October 20,1988 NPRM, EPA evaluated
two options for characterizing a mineral
processing waste as low hazard:
Defining low hazard wastes as those
mineral processing wastes that exhibit
none of the characteristics of hazardous
waste (i.e., EP-toxicity, corrosivity,
reactivity, or ignitability—see 40 CFR
261.21 through 201.24), and deferring '
judgment of hazard until study for the
Report to Congress. Because of
reservations regarding the
appropriateness of applying the four
hazardous waste "characteristics", EPA
decided to defer judgment of hazard in
the proposed rule.
1. Deferring Judgment of Hazard Is
Appropriate
Several commenters supported EPA's
decision to not use the Subtitle C
characteristics of hazardous waste to
determine which mineral processing
wastes are covered by the Bevill
Amendment or to assess hazard within
the context of this rulemaking. They
argued that (a) EPA cannot and should
not require a low hazard criterion; (b) in
addition to insufficient data, EPA's tests
for hazardous "characteristics",
especially the EP-toxicity test, are not
appropriate or accurate for mining and
. mineral processing wastes; and (c) a
mineral processing waste that exhibits a
characteristic of a hazardous waste
should not automatically be subject to
Subtitle C regulations, as actual risk
from mineral processing facilities is low.
a. The Need for a Low Hazard
Criterion. Several commenters
maintained that EPA should retain a
waste within the exclusion if the waste
is either high volume or low hazard. This
would, they argued, address both the
need for. and feasibility of Subtitle C
regulations for mineral processing
wastes. Some commenters also argued
that the low hazard criterion is
unnecessary and that requiring that
wastes meet any such criterion may
actually be contrary to Congressional
intent. These commenters noted that in
the lawsuit over the regulatory
determination for mineral extraction
and beneficiation wastes [EDFv EP^
852 F.2d 1309 D.C. Cir. 1988), the Court
found that Congress designed the Bevill
Amendment to break with the previous
approach to regulation of hazardous
industrial waste, revealing a
Congressional understanding that some
"hazardous wastes" might require
management and control techniques
different than those of Subtitle C.
Some commenters also contended that
precedent exists for bypassing the low
hazard criterion, noting that in the 1986
regulatory determination for minin«
-wastes, EPA asserted that Subtitle C
regulation might not be necessary if
other Federal or State programs control
any risks associated with mining
wastes. In fact, commenters argued, the
Appeals Court decision on the mining
wastes regulatory determination
demonstrates that EPA must consider
lactors other than hazard in determining
whether a high volume mining or °
processing waste should be permanently
excluded from Subtitle C regulation.
, In addition, a commenter argued that
the proper time to apply a hazard
criterion would be when making a
regulatory determination as to which
processing wastes should be subject to
Subtitle C, and not when deciding which "
wastes are to be retained within the
Bevill exclusion. This position was
supported further by another commenter
who, reiterating EPA's proposed
position, stated that the determination
ot whether a waste is "low hazard" can
only be finally determined by the
studies that will support the next Report
- to Congress (i.e., after the
reinterpretation of the Bevill exclusion is
finalized).
As discussed in more detail below,
EPA believes that the criteria used to
-identify which mineral processing
wastes are properly within the scope of
the Bevill Amendment should include a
component that addresses hazard. This
conclusion is based upon review of
public comments, andmore detailed
analysis of the Appeals Court decision
prompting this rulemaking and of the
regulatory and legislative history of the
Bevill Amendment and the special
wastes concept the Agency recognizes
that a tull assessment of hazard can be
appropriately considered in a Report to
Congress. Nevertheless, a test designed
to identify any wastes that are clearly
not low hazard wastes is a necessary
and appropriate component of the
criteria for identifying mineral • •
processing wastes that remain
temporarily excluded from Subtitle C
regulation by the Bevill Amendment
Any wastes that are clearly not low''
nazard wastes are not special wastes
and would not, under this proposal
remain within the Bevill exclusion.'
b. Existing Test and Data Limitations
Several commenters also suggested that
existing data are insufficient to assess
the potential hazard posed by most, if - -
not all, mineral processing wastes.'
These commenters maintained, in
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15332 Federal Register / Vol. 54, No. 72 / Monday, April 17, 1989 / Proposed Rules
addition, that existing EPA toxicity tests
(e.g., EP, TCLP) are inappropriate for
. judging the hazard posed by mineral •
processing wastes, primarily because
these tests are based on the leaching of
constituents under conditions similar to
those found at municipal landfills while
mining and mineral processing wastes
are usually disposed in on-site .
xnonofills. Several commenters
contended that there are no available
valid substitute testing procedures.
Other commenters also maintained
that the EP-toxicity test is insufficient as
a means of assessing hazard. These
commenters suggested, however, that
the test is not strict enough and would
allow wastes that are actually toxic to
remain within the exclusion. They
noted, for example, that the test only
evaluates the effects of acidification on
wastes (e.g., copper slags) and does not
assess mobilization of metals under
other conditions. A commenter
specifically argued that testing of
recycled slag with the EP-toxicity test
produced concentrations of arsenic that
are significantly higher than
concentrations produced using
deionized water to perform the
extraction, but were lower than results
obtained using other extraction media
containing complexing agents such as
ethylenediamine tetra-acetic acid
(EDTA).
EPA believes that there are two -
principal questions regarding the use of
toxicity tests for determining the hazard
posed by mineral processing wastes: (1)
Are any measures of inherent toxicity
sufficient for defining the universe of
relevant wastes, and (2) if so, what sort
of test(s) can and should be used? As
discussed in more detail below, EPA
believes that the use of inherent toxicity
and pH tests as a low hazard criterion
is, in fact, feasible and represents the ,
only currently available approach for
identifying those mineral processing
wastes that are clearly not low hazard
wastes. With regard to the appropriate
test, EPA concurs with those
commenters who suggest that there may
be better approaches than the EP-
toxicity test for screening mineral
processing wastes to identify those
wastes that are clearly not low hazard.
The Agency has concluded, however,
that it disagrees with the contention of
some commenters that there are no
available valid substitute testing
procedures and, today, is proposing the
use of a different testing procedure for
determining which mineral processing
wastes are clearly not low hazard
wastes.
c. Consideration of Risks. Some
commenters contended that
contaminants released from mining sites
have a lower potential for human
exposure than do those from typical
industrial or hazardous waste
management facilities and, therefore,
any risk to health is minimal, if not non-
existenti One commenter suggested that
the nature of the processes that generate
high volume wastes also ensures that
the wastes are of low toxicity due to the
effects of dilution. Commenters
indicated, furthermore, that the location
of many mineral processing facilities is
such that they pose a uniquely low
degree of hazard in comparison with
othq_r industries. The reasons for this,
argued some commenters, are that (1)
because mineral processing facilities are
primarily located in dry climates,
leaching of wastes is unlikely; (2) these
facilities are usually in less densely
populated areas than those of other
industries; and (3) waste disposal areas
in mineral processing facilities are
farther from, ground-water and drinking
water supplies than are facilities in
other industries.
For example, one commenter
indicated that the probability of '
significant impact on the use of ground
water located beneath its large copper
facility is quite low because the
underlying shallow aquifer has always •
been highly saline and unusable while
the deep aquifer is both historically
undrinkable and protected from
contamination by an impervious clay
layer. Another commenter reported that
its wastewater from magnesium
production exhibits only low pH and is
managed in an area that is "a virtual
desert" in a calcium carbonate sand-
based pond that provides a
, neutralization medium for the acidic
wastewater. ,
EPA recognizes that'factors such as
distance to population centers and
hydrogeologic setting are important for
determining the risks posed by mineral
processing wastes to human health and
the environment The Agency also
recognizes that some mineral processing
facilities may pose negligible risks due
to their locations or settings.
Nonetheless, EPA believes that a
significant portion of the operations that
generate high volume processing wastes
may not be sufficiently isolated to pose
negligible risk and that, in any event,
available data are not sufficient to
substantiate claims to this effect. After
appropriately narrowing the scope of the
Bevill exclusion (i.e., removing wastes
that are clearly not low hazard), EPA
intends to collect the necessary data to
assess the risk posed by the special
mineral processing wastes, as required
for the Report to Congress.
2. Deferring Judgment of Hazard Is
Improper
Some commenters disagreed with
EPA's decision to defer the judgment of
hazard and argued that it was contrary
to both Congressional intent and the two
recent decisions of the U.S. Court of
Appeals (i.e., EDFv. EPA. 852 F.2d 1309,
and EDF v. EPA, 852 F.2d 1316).
Moreover, these commenters argued,
EPA's proposal is inconsistent with
previous Agency rulemakings because it
ignores the hazard component of the
criteria that the Agency used to describe
special wastes in 1978, which the Court
has reaffirmed as denoting the
limitations of the RCRA mining wastes
exemption.
In reviewing its October 1988 proposal
to defer judgment of waste hazard until
preparing the Report to Congress, as
well as the resulting public comments,
EPA has concluded that it should
change the approach it proposed by
developing and applying a hazard
criterion in determining the proper scope
of the Bevill exclusion. Specifically, EPA
believes that, in spite of the technical
difficulties associated with developing
and applying a low hazard criterion,
such a criterion was part of the original
special waste concept (see 43 FR 58946,
58991-2, December 18,1978) and is
required by the Court's reading of
Congressional intent. Although
additional analysis of the hazard
associated with wastes that would
remain excluded under this proposed
rulemaking will be performed during
preparation of the Report to Congress,
EPA will now be complying more
directly with Congressional intent by
removing from the exclusion those
wastes that are clearly not low hazard
wastes.
Another commenter objected to EPA's
failure to propose a low hazard
criterion, claiming that because mineral
processing wastes must pass either a
high volume or a low hazard criterion to
remain excluded and only the volume
criterion exists, many low volume
mineral processing wastes would be
removed from the Bevill exclusion under
the proposed rule. Therefore, they
contended, by deferring a judgment of
hazard EPA may cause low hazard
waste's to be included in the RCRA
Subtitle C program. Alternatively,
another commenter stated that EPA
should consider waste-related hazard
rather than volume in order to comport
with Congressional intent.
EPA has considered and rejected
these suggestions that the Agency rely
solely upon either volume or hazard to
make Bevill exclusion decisions because
-------
this approach would be inconsistent
Wffl Congressional intent and the
special wastes concept.
ti, SfIerr? C01mmenters recommended
that the final rule include explicit
toxicity criteria that would eliminate
from the exclusion any processing
wastes not qualifying as low hazard
wastes. These commenters generally
contended that adequate data exist to
make some waste-specific
determinations of hazard for at least
some large volume mineral processing
wastes. These commenters claimedZt
toxicity data on the copper, zinc, leacE
bauxite, and aluminum sectors indicate
Uiat several of these wastes are not low
hazard. They stated, for example, that fa
a previous EPA waste sampling effort
wastes from copper production showed
elevated teachable levels of arsenic
cadmium, and mercury in process '
wastewater and acid plant blowdown-
and arsenic, cadmium, and lead in slas
They also noted that large quantities of
these wastes are stored in unlined
EPA acknowledges that it previously
has collected and analyzed some date-
on some mineral processing wastes. The
Agency does not believe, however, that
those data provide an adequate means
For evaluating compliance with a low
hazard criterion on a waste-by-waste
-basis, except in a few limited cases, as
discussed below. Therefore, EPA plans
to coject and analyze the data required '
to determine which of the other high
volume mineral processing wastes also
pose low hazard, based on the PH and
toxicity and mobility tests presented
• • below.
Several commenters indicated that
X£,2? i? "" ^"nation on the risks
to human health and the environment,
either in addition to or in the absence of
data on waste characteristics, to
determine which mineral processing
wastes are low hazard wastes. Several
commenters stressed that risks from
muieral processing facilities are well
• known and that water contamination
risks for mining facilities as a group are
similar or even higher than for the group
of hazardous waste-producing facilities
borne commenters argued that there are
several well-established cases of
environmental damage resulting from
waste disposal activities at mineral
processing facilities. For example these
commenters claimed that two of the fiv»
active lead smelters have legal actions
tor damage pending against them
Another commenter, who reported
having used copper smelting slag
purchased from a mineral processing
facility for road base, indicated that
heavy metal contamination of soils and
run-off has resulted from the sale of this
Sskf 0^°Ut a Pr°per Indication o?
!?»? £ u r commenters contended
that phosphogypsum stacks pollute
groundwater, surface water, and air and
that residual radioactivity that tW
contain may produce harmful effects
such as lung cancer.
. EPA recognizes that there is limited
information indicating that som™
and current mineral processing waste
management practices may pose
unacceptable risks to human health or
the environment. However EPA
believes that it is infeasible to
systematically consider this information
w thin a low hazard criterion for this
rulemakmg, and then apply this
information uniformly to all of the
various mineral commodity sectors
distributed throughout the country
Therefore, EPA intends to utilize a .
nazard criterion based upon inherent
toxiaty, and to collect and analyze
various kinds of additional data [such as
damage cases) for the Report to
defined
appropriately
D. Comments on Candidate "Special"
Mineral Processins Wastes
This section discusses comments
received on specific wastes from •
mineral processing operations. The
discussion is organized around the
fifteen wastes proposed for exclusion in
the October, 1988 NPRM. In contrast tf
other sections within Part III of this
preamble, EPA has not, in genera?
provided responses to waste
nomination-related comments within
this section. Instead, the proposed status
ofCandidate Bevill mineral proving
wastes is addressed in Part IV, which
discusses the nature and implications of
the changes to the Bevill criteria used to
prepare today's proposed rule In this
way, EPA can provide responses to the
issues raised in public commentfas well
as articulate the effects of the new B™vl
criteria, on a waste-specific basis
fnr*?A pr°Posed ffteen waste streams
tor continued exclusion from Subtitle C
miderthe Bevill Amendment inks .
October 20,1988, proposal:
W Copper smelting slag;
(2) Copper process wastewater;
(3) Copper acid plant blowdown-
(4) Copper bleed electrolyte;
(5) Lead smelting slag;
(6) Zinc process wastewater;
(7) Zinc acid plant blowdown;
(8) Bauxite red and brown muds;
(9) Phosphogypsum;
(10) Elemental Phosphorus Slae:
(11) Iron Blast Furnace Slag-
(12) Iron Blast Furnace APC Dust/Slud°e-
(13) Lime Kiln APC Dust:
Titanium Dioxide
'WUUWUUA.I, tlUU I
(IS) Chromite Ore Roasting/Leaching Slag. I
fnr^th?U§.h 6ach °f the wastes Proposed
for exclusion met the mineral processing
definition and, tentatively, the hi<>h '
volume criterion articulated in the
h«!f f A-*0 the ProP°sed rule, none
naa, at that point, been evaluated with
regard to hazard. As explained in detail !
elsewhere, however, the basis o?toSv's '
proposed rule includes a low hazard
criterion. Therefore, becaa« of fce
hazard criterion, new waste
nominations, and data limitations the
IS • ^f-Stes PTOPosed for exclusion
today IS current than the group of
fifteen proposed in Octcbe?
In addition to reflecting the new
hazard criterion, the list of wastes
provisionally proposed for exclusion in
today's rule includes wastes nomSated
on tue previous
~7i/ "„"" uuuaidering the available
-£• • 6 Agency has decided that it has
sufficient data to propose the
exclusionary status of nine high volume
mineral orocfissi™ Wast6 -*~T^VUJUmb
,
hazard criteria and thus are propped
forexGl«sioniWMeto ^Posed
wo, K°W ha2ard Criterion and thus
would be removed from the Bevill
exdufiion and regulated under Subtitle C
rf they exhibit hazardous characteristics
Sl^T W3SteS nomi*ated for
exclusion by commenters
approximately thirty-three appear to
meet the revised high volume witerion
Because however, the Agency does not
have sufficient data at this n2e to *
determine whether these wastes meet
w 11 be addressed in a subsequent
rulemaking scheduled to be proposed on
or before September 15, 1989 P°sed°n
„ r resP°nse to the 10/20/88 proposed
rule commenters nominated man?
additional waste streams that thev
believed should be retained w£ the
Bevill exclusion. EPA has reviewed "
these nominations and, in most
instances has concluded that these
ft0^ Wastes shoilW ^t be
attorded special waste status. The
reasons for these waste-specific
decisions are varied; some wastes did
not meet the definition of mineral
processing wastes (e.g.,
outside d,, ,cope
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Federal Register / Vol. 54, No. 72 /Monday, April 17, 1989 / Proposed Rules
(e.g., secondary metal production). The
most common reason, however, for.
rejecting claims of Bevill status was that
the nominated materials are not high
volume wastes.
Comments on the proposed Bevill
status of the 15 original wastes are
presented below. Responses to most of
these comments may be found in Part
IV, below.
Wastes Identified in the October 20,
1988 Proposed Rule as Special Mineral
Processing Wastes
(1) Slag from Primary Copper
Production, Several commenters
supported the proposal to retain this
waste under the Bevill exclusion and
requested clarifications of the waste
definition. One commenter suggested
that because slag, acid plant blowdown,
process wastewater, and wastewater
treatment sludges from the processing of
primary copper are comprised of groups
of wastes that possess similar
characteristics and are managed in
similar ways, each waste should be
considered a single waste stream.
Moreover, this and another commenter
stated, EPA should include in the
definition of slag from primary copper
smelting both slag from converter
operations and slag from anode furnace
operations. In addition to asking for.
clarifications, several commenters
provided detailed process descriptions
in an attempt to demonstrate that the
slag and effluent resulting from primary
copper processing are not hazardous.
In contrast to these statements, '
several commenters argued that this
waste should not be retained within the
Bevill exclusion. One commenter noted
that EPA data indicate that one sample
of slag exceeded EP-toxicity limits for
arsenic, cadmium, and lead. A second
commenter indicated that it had
purchased primary copper slag from a
mineral processor for use in road
construction. This commenter contended
that the generator of the slag failed to
assess the suitability of the copper
smelting slag for reuse or to warn users
of its potential hazards. The commenter
also stated that copper smelting slag can
release large amounts of hazardous
metals when disposed of in an ordinary
manner or when reused as a substitute
for rock or gravel. Moreover, the
commenter argued, because copper slag •
is responsible for documented,
significant environmental damage, EPA
should remove this waste from the Bevill
exclusion.
As indicated earlier in this preamble,
EPA has elected to continue to consider
reactor slag, converter slag, and anode
furnace slag to be one waste stream,
and has evaluated its eligibility for
continued exclusion under Bevill on that
basis.
(2) Process Wastewater From Primary
Copper Production. Several commenters
expressed support for retaining this
waste within the Bevill exclusion and
suggested that the definition of the
waste be expanded. One commenter
suggested that EPA consider all
residuals from the treatment of process
wastewater as one aggregate waste
stream, while another commenter noted
that a representative of EPA had
assured the American Mining Congress
that wastewater streams separated from
copper smelter acid plant blowdown
could constitute "process wastewater."
Finally, several commenters stated that
process wastewater from primary
copper processing should also include
contact cooling water frpm primary
copper production. One of these
commenters argued that EPA should
apply the 50,000 metric tons per year ,
test to the aggregate quantity of both
process wastewater and contact cooling
water because there is no logical reason
to distinguish between the two waste
streams. Another contended that EPA,
not industry, made the first distinction
between "process wastewater" and
"contact cooling water."
In contrast to these arguments, one
commenter argued against retaining this
waste within the Bevill exclusion. This
commenter contended that wastewater
from primary copper processing is
frequently managed in unlined surface
impoundments and that, according to
EPA data, this wastewater regularly
fails the EP-toxicity test for arsenic,
cadmium, and mercury. Therefore, the
commenter argued, this waste should be
removed from the Bevill exclusion.
(3) Acid Plant Blowdown From
Primary Copper Production. Several
commenters expressed support for
retaining this waste in the Bevill
exclusion. One commenter indicated
that it generated a new waste stream
that is very similar to acid plant
blowdown, and contended that this
waste stream, called Lurgi scrubber
effluent, should be combined with acid
plant blowdown for analytical and
exclusionary purposes because, in
addition to physical and functional
similarities, the two waste streams are
co-managed at the commenter's facility.
The commenter indicated that the acid
plant blowdown and Lurgi scrubber
effluent are mixed with alkaline tailings,
which generates a neutral waste {Lurgi
effluent has a pH of 1.7 before being
mixed with tailings, after which it has a
pH of 7.0 to 8.0). A second commenter
simply stated that the definition of
hazardous waste K064 should specify
that this listed hazardous waste is
limited to thickened acid plant
blowdown that is disposed in surface
impoundments.
In contrast to these arguments, a
commenter contended that this waste is
frequently managed in unlined surface
impoundments and that according to
EPA data, acid plant blowdown from
primary copper processing routinely
fails the EP-toxicity test for arsenic,
cadmium, and mercury. Therefore, this
commenter argued, this waste should be
removed from the Bevill exclusion.
EPA agrees that, because Lurgi
scrubber effluent is generated by a
pollution control process similar to that
used in typical metallurgical acid plants,
this waste stream should be afforded
status similar to acid plant'blowdown
from primary copper production.
Accordingly, the Agency has broadened
the definition of this latter waste stream
to include Lurgi scrubber effluent.
(4) Bleed Electrolyte From Primary
Copper Production. One commenter
described the recycling process it uses
to manage its bleed electrolyte from
primary copper processing, in order to
demonstrate that this waste does not
pose a threat to human health and the
environment. Nonetheless, this
commenter admitted that due to
impurities in anode copper, bleed
electrolyte may exhibit the hazardous
waste characteristics of EP-toxicity and
corrosivity. A second commenter noted
that this waste is frequently managed in
unlined surface impoundments. This
commenter argued that, according to
EPA data, bleed electrolyte from
primary copper processing routinely
fails the EP-toxicity test for arsenic,
cadmium, and mercury and that this
material, therefore, should be removed
from the Bevill exclusion.
(5) Slag From Primary Lead
Production. The only comments that
EPA received concerning this waste
stated that the waste should not be
retained within the Bevill exclusion.
These commenters noted that EPA data
indicate that 28 percent of slag from
primary lead processing is placed in
- unlined storage facilities while 24
' percent is placed in unlined disposal
facilities. These commenters also noted
that in EPA sampling efforts, 13 of 17
samples of slag from lead processing
facilities showed evidence of EP-
toxicity. Moreover, except for "de-
zinced" slag, all samples of hot-dumped
or granulated slag were EP-toxic.
Finally, water extract samples of slag
displayed lead and cadmium
leachability in excess of the toxicity
characteristic regulatory levels.
Therefore, these commenters concluded,
based upon its own data, EPA should
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Federal Register / Vol. 54, No. 72 / Monday, April 17, 1989 /Proposed Rules
15335
withdraw slag from primary lead
processing from the Beviil exclusion.
(6) Process Wastewater From Primary
Zinc Production. The only comments
' received concerning this waste were in
opposition to retaining it within the
exclusion. Commenters noted that all
EPA samples of process wastewater
from the zinc industry showed evidence
of EP-toxicity from cadmium. These
commenters also noted that some
facilities in this sector already manage
this waste as a hazardous waste.
Therefore, these commenters concluded,
EPA should withdraw process
wastewater from primary zinc
processing from the Beviil exclusion.
(7) Acid Plant Slowdown From
Primary,Zinc Production. The only
comments received concerning this
waste were in opposition to retaining it
within the exclusion. Commenters noted
that one of two samples of acid plant
blowdown exhibited EP toxicity and
failed the test for corrosivity. These
commenters also noted that some
facilities in this sector already manage
this waste as a hazardous waste.
Therefore, these commenters concluded,
EPA should withdraw acid plant
blowdown from primary zinc processing
from the Beviil exclusion.
(8) Red and Brown Muds From Alumina
Production. Commenters representing
diverse interests agreed that red and
brown muds are low hazard, wastes.
One cpmmenter,.however, contended
•that red and brown muds have already
been studied and should properly be
considered extraction and beneficiation
wastes. The only other comment
received regarding this waste stated that
red scale produced at, a plant is
composed of the-same material as red
mud and that both this red scale and
pisolites should be included with red
and brown muds under the Beviil
exclusion. . • .
For purposes of analysis and
regulatory action, EPA considers
pisolites to be a component of red muds,
but considers red scale to be a cleaning
waste that is, not a mineral processing
waste, and therefore, is outside the
scope of the Beviil exclusion.
(9) Phosphogypsum From Phosphoric
Acid Production. Several commenters
expressed support for the exclusion of
phosphogypsum under the Beviil
Amendment and suggested expanding
the materials included under the
definition of this waste. These
commenters argued that EPA should
modify the definition of phosphogypsum
to include the associated solids and
liquids from the processing of phosphate
rock. One commenter also suggested
that EPA expand the scope of the Beviil
exclusion to include waters used for '
flash coolers, barometric condensers,
evaporators, air pollution control
equipment, phosphogypsum filters, and
other related equipment.
In contrast, one commenter objected
to the continued exclusion of
phosphogypsum under Beviil. This
. commenter contended that some Florida
residents are concerned that
phosphogypsum stacks may be
exempted under Beviil even though the
wastes are not actually "low hazard."
The commenter argued that -
phosphogypsum is hazardous because "
the concentrations of the radionuclide
Radium 226 in EPA samples were
consistently in the 25 to 35 pCi/g range.
The commenter argued further that
phosphogypsum stacks pollute ground
water, rivers, bays, and the air. Noting
that in Florida, phosphogypsum is being
stockpiled increasingly close to heavily
populated areas, and that by the year
2000 there will be over one billion tons
disposed hi Florida, the commenter
concluded that phosphogypsum should
be withdrawn from the Beviil exclusion
and subjected to special management
standards due to the hazardous nature
(e.g., residual radioactivity) of the
Waste.
EPA rejects the suggestion that the
definition of phosphogypsum be
broadened to include any of the various
water streams that may be mixed with
and used to transport the waste gypsum
to its disposal area (generally a gypsum
stack). Although facilities may operate
.their waste management operations in
an integrated fashion, the actual
generation of waste gypsum and process
wastewater in the. phosphoric acid
production process derive from different
steps in the process and have very
different characteristics, and hence,' will
be considered separately for analytical
and regulatory purposes.
(10) Slag From Elemental Phosphorus
Production. The only comment received
regarding this waste stated that EPA's
proposal to include phosphorus slag
among the wastes to be studied further
is appropriate. The commenter argued
•further that the slag has been used in the
construction industry and has not
imposed any adverse effects on human
health.
- (11) Iron Blast Furnace Slag. A
number of commenters argued that iron
blast furnace slag is not a waste but a
valuable material. These commenters
noted that such slag has been defined as'
a product by the American Society of
Testing and Materials, that at present 75
to 100 percent of all the slag produced is
recovered as useful product and is often
used as a replacement for scrap in steel
mills, and that the U.S. is currently
importing this material for industrial
use. Moreover, several commenters
argued, iron blast furnace, slag is not a
hazardous waste, has no history of
displaying hazardous characteristics,
and has even been used to stabilize
hazardous and radioactive wastes prior
to disposal. Therefore, at least one
commenter concluded, iron blast
furnace slag should be permanently
excluded from regulation under EPA's
hazardous waste rules.
EPA included iron blast furnace slag
on the original list of 15 wastes
proposed for exclusion because
preliminary information indicated that
this material is either disposed or used
in a manner constituting disposal (i.e.,
directly on the land) at some facilities.
Therefore, iron blast furnace slag may
be a solid waste at some facilities and
is, for purposes of this proposal,
considered a solid waste. If retained
within the Beviil exclusion in the final
rule, the dispoeition of this slag would
be addressed in the Report to Congress.
(12) APC Dust From Iron Blast
Furnaces. No comments were received
regarding the proposed exclusion of
APC dust from iron blast furnaces under
the Beviil Amendment.
(13) Lime Kiln APC Dust/Sludge. One
commenter stated that there are no
hazardous wastes produced from air
pollution control operations at lime
kilns. This commenter also stated that
studying the lime industry is
unnecessary. The only other comments
regarding this waste argued that lime
kiln APC dust should be withdrawn
from the Beviil exclusion because this
waste does not pass nationwide waste
generation test of the high volume
criterion.
(14) Waste Acids From Titanium
Dioxide Production. Several industry
commenters suggested revisions to the
definition of this waste. One commenter
suggested that EPA's definition be
modified in order to avoid
discriminating against producers of
titanium metal, requesting that the
definition read "waste acids from the
processing of titanium bearing ore." This
commenter noted that such an action
would treat equally all processors of
titanium bearing ore which produce the
.same acid wastewaters. Several other
commenters suggested that in order to
clarify that chloride process wastes
result from the production of titanium
tetrachloride, which is an intermediate
in the production of titanium dioxide,
the waste stream should be defined as
"waste acids and contained solids from
titanium tetrachloride and titanium
dioxide production and related air
pollution control devices."
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Federal Register / Vol-. 54. No. 72. / Monday, April 17, 1989 / Proposed Rules
Several commenters expressed
opposition, to the continued exclusion, of
this waste. They argued thatcertain
facilities already manage titanium
dioxide acids as hazardous wastes, thus
demonstrating that the management of
these wastes under Subtitle C is
technically and economically feasible.
EPA agrees that it should recognize
differences-in processes aa well as the;
dissimilar components of waste streams
that are generated-from. titanium, ore-
processing. Accordingly,. EPA will-make
* separate Bevill exclusion, decisions-for,
sulfate process waste acids, sulfate.
process waste solids, chloride process-
waste acids, chloride process waste
solids, and leach liquors, and will
consider all facilities-that are primary
producers of either titanium metal or
titanium dioxide.
(IS) Chromite Ore Roasting/Leaching
Slag.-One commenter contended! that
chromite. ore roasting/leaching slag is-a
law hazard wastes This commenter
argued-further that the exclusion: of such
slag under the Bevill Amendment should
include all slags disposed irt the past.
Another commenter suggested that for
clarity, "chrome- orer tailings- and-
chromium-contaminated waste." should
be substituted for "slag." in the text of
the proposed rules. Finally, thaoperator
of one chromite ore processing facility
indicated that its-roasting/leaching slag
is generated at a rate high enough to.
surpass EPA's proposed cut-off rate of
50,000 metric, tons per year,.but didnot
provide a quantity-
EPA rejects the suggestion: that the
definition of this waste should be
broadened in any way:. For clarity;
however,, this candidate special waste •
is, in today's proposal, referred fc as
"roast/leack ore-residue from primary
chrome-ore'processing,"
•».' ,
K Related RCKA Issues . .
1. Applicability of the Mixture Rule
The October, 20,. 1988 proposal to
reinterpret the scope, of trie Bevill
exclusion-as-it applies to> wastes from.
mineral processing, operations, contained
Specific language in Pirating tfint miypft
waste streams, would Be removed from. .
the Bevill exclusion if they ar& mixtures
of(I) characteristic, hazardous wastefsj
and" a BaviH-excluded waste that
continues to exhibit one or more
hazardous characteristics, or [2J any
Hsted'hazardous Waste and a Bevill-
excl'uded waste. Several commenters
opposed the application, of the mixture;
rule-to.ffavilT wastes,, contending that
EPA cannot legally apply the mixture
rule to-any mixtures containing. Be vill
wastes, because Heviff wastes are
temporarily exempt from all Subtitle C
requirements, including the mixture rule.
Several commenters also maintained
that applying, the mixture rule and not
excluding Bevill, wastes that are mixed
with hazardous waste-is unrealistic;
many mineral processing facilities
combine their waste streams with those
generated by beneficiation and other-
processing operations in. common
tailings or evaporation; ponds*
Fur thennore, while much, of the
justification: for co-management is-
economic or technical hi nature,
commentera indicated that often the
practice- is employed for environmental
and regulatory reasons,. Le.,. Bevill
wastes may be co-managed In order to.
comply with non-RCRA regulatory
requirements such, as-NPDES permit
limitations.
Some commenters specifically argued
that the interpretation of the mixture-
rale with regard to- co-management with
a characteristic- hazardous waste is
overly restrictive. Mixing low volume
characteristic hazardous wastes with
high volume Bevill wastes that also-
exhibit a characteristic of hazardous
waste often- does not- appreciably
change- the characteristics of the waste
mixture and hence, its environmental
impact. In cases where-waste-mixtures
display none of the characteristics of a
hazardous waste other than those
exhibited by the Bevill waste alone,, the
eommenters- contended that
environmental protection is not
. improved' by depriving the mixture of its
Bevill exclusion.
Therefore, several comraenters
recommended that EPA suspend or
modify the mixture rule as applied to
mineral processing'wastes, thus
' permitting the co-mihglfng of wastes, and
avoiding-imposition of a less effective
and environmentally, protective waste .
management system-. One commenter
specifically recommended that EPA
determine that when a Bevill waste is
intentionally mixed with another, waste
stream, in order fa treat that waste, and
thereby achieve compliance with other
regulatory requirements [e.g*. NPDES
permit" limitations],, the resulting treated
waste would retain its exempt status.
Another commenter requested
specifically that EPA modify its
interpretation of the mixture rule so that
the rule would Be inappEcaHe to
mixtures, of Bevill waste and recently
listed hazardous wastes from mineral
processing.. Finally, several commenters '
requested that the final rule be altered
act that mixtures of Bevill wastes- and
relatively small quantities, of non-Bavill
hazardous wastes retain their Bevill
status, so. long as the- only hazardous:
characteristics displayed are those
displayed by the Bevill waste alone.
Some commenters: contended that
precedent exists for EPA to modify the
regulations regarding mixtures. They
argued that EPA has authority from
various sections of RCRA, in particular
the Simpson Amendment (section
3004(x)) and section 3004(a}r to- modify
regulation of certain wastes to allow for
special circumstances^ They also
maintained that in the past EPA has
indicated that de minimis quantities of
hazardous wastes that are mixed1 with
Bevill wastes would retain their
excluded status £e.g^ in- a letter from
EPA to- the Utility Solid Waste Activities
Group dated January 13,1981),
establishing a precedent for exempting
certain- co-mingling practices from the
mixture- rule; Finally, some commenters
contended that EPA has previously
articulated a modified mixture rule
position regarding the injection of
methancl into extraction wellheads by
the oil and gas industry in its Report to
' Congress on oil and gas wastes.*In light
of these- precedents and in keeping with
Congressional intent- these commenters
indicated that EPA can and should.
exempt and study large volume, co-
mingled, exempt/nonexempt waste
streams before making: any final
determinations.
After review of these comments and
further analysis, EPA has resolved to
continue to-apply the mixture rule to
Bevilf and non-Bevill mixed waste
streams-under almost all circumstances,
because to- do- otherwise would allow
many small volume mineral processing
wastes to remain- effectively excluded '
from potential Subtitle C regulation,
which would be- inconsistent with both
Congressional intent and the decision of
the Court fir EDFv. EPA, and might not
be adequately protective of human
health and the environment. Therefore.
mixtures of one or more listed
hazardous wastes and a large volume,
low hazard mineral processing waste-
will be-considered a hazardous waste
unless arid until the mixture is delisted.7
EPA has decided, however,, that it is
appropriate to revise the proposed
regulatory status of some mixtures of
non-excluded "characteristic^ wastes
and Bevill wastes; Fn these instances,
• U.S. EPA. Report to Congress; Management of
Wastes from the Exploration, Development, and
Production of Crude Off, Natural gas? and
Geotheanal. Energy. December 1987, pi IM7-
1 Unless the hazardous waste »listed only
Because it exhibits a hazardous characteristic; in.
thatinsrance,; the waste is not considered
hazardous when anrf if H no- longer exhibits any ol
the four characteristics of a hazardous waste. E4&
OB 26a.3(aK2)(iii)). ,
-------
7, 1989
UIO..UUAMUV wul be considered a
hazardous waste if it exhibits one or
more of the same hazardous
characteristics that are exhibited by the
non-excluded waste. If the mixture
exhibits one or more hazardous
characteristics that are exhibited by the
Bevill waste but not by the non-
excluded cnaracteristic waste, then the
mi*ture is not a hazardous waste.
fcPA wishes to make clear, however,
that in any case, mixing a characteristic
hazardous waste with a Bevill waste -
would constitute treatment of a
hazardous waste, which would require a
> treatment, storage, or disposal
t (Section 3005 "Part A" permit) for
n stasis, amj> subsequently, a final
•—-—•.»ui i J permit.
EPA will consider modifying the
regulatory language addressing the
mixture rule found at 40 CFR 261.3(d) to
reflect its final position on the
applicability of the mixture rule to Bevill
• mme.ral Processing wastes, and hereby
solicits public comment on this issue.
2. Applicability of the Derived-From
Kule . .. •
.The proposed rule contained'no '
exphcil discussion of the interaction of
... :the denved-from,rule with the mineral
: processing waste exclusion. Several
,.,.: commenters, however, raised this issue
• -" b|guesting clarification of the status
of wastes generated from co-combustion
, of hazardous wastes with minerals or
. ores in mineral processing furnaces; • "
beyeral commenters indicated that
hazardous waste is regularly burned as '
s rueHn the' kilns of lightweight aggregate ;
producers. These commenters
..- contended that this activity is an
environmentally sound hazardous waste
management practice that advances the
objectives of RCRA and, moreover, has.
been considered within the Bevill
exclusion as a.matter of Agency policy.'
These commenters were concerned that
a restnctive application of the derived-
trom rule might prevent or discourage
this type of practice within the industry.
They suggested that EPA disregard thT
Subtitle C deriyed-from rule where
nuneral processing is involved, .
effectively, allowing wastes generated '
from processes that burn hazardous :
waste in mineral processing furnaces to
be eligible for retention within the Bevill
exclusion.
In contrast, some commenters
believed that the application of the
denved-from rule prohibits EPA from
excluding wastes from mineral
processing operations that burn
hazardous waste as fuel. They argued
that the language of the Bevill
Amendment applies only to the
extraction, beneficiation, and processing
of ores and mmerals and does not
include or even mention hazardous
wastes. Therefore, noted one
commenter, any attempt to expand the
statutory exemption to encompass
residues from the co-burning of
hazardous and mineral processing
wastes would be counter to
Congressional intent and, in fact,
unlawful. Furthermore, argued
commenters, processes generating these
fif^OI^St!°n wfstes fail to satisfy the
nith attribute of the definition of mineral
processing listed in the proposed rule
U-e., they represent operations that
SESSf °?8 orminerals with materials
that are not ores or minerals). Therefore
Aey requested that EPA state explicSly'
m the final rule that the mining waste
exclusion does not encompass residues
generated from the co-burning of
hazardous wastes with ores and
mAfa nn^ mt-nfral ProceS8ing furnaces.
As a potential precedent for excluding
these denved-from wastes, several
commenters addressed the exclusion of
wastes generated from the combustion
of hazardous wastes and fossil fuels in -
coal-fired utility boilers, another °*.
on in-bath smelting and
. -tlninf'If successful, this
. ... to the development of totally
new processes with environmental and
process advantages over current .
technology, but which would also create
..new types of waste streams. ., -
that EPA is obligated to study and issn'p
a regulatory determination for any
waste that may meet EPA's criteria in
the future. They also argued that it is
mor| appropriate to define the scope of
the Bevill exclusion for mineral
processing wastes directly by the
criteria instead of creating a list of '
wastes that EPA data indicate meet the
of nrSfr?' VS^ Criteria ^eal
effeluaoworthe
effects of changing market conditions
and new mineral' processing
technologies. These commenters
recommended, therefore, that EPA
amend the proposed rule to include a
y if a Waste VuWto
waste in the future, it
depth, EPA has decided to
mamtam its proposed approach and
make a one-bine reinterpretation of the
scope of the Bevill exclusion for mfneral
processing wastes. EPA recognizes that
technological advances and ££$*•
market conditions may lead to the
genesis of new waste streams and/or
the generation of existing waste streams
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15338
Federal Register / Vol. 54, No. 72: f Monday, April 17. 1989 / Proposed Rules
In larger quantities* Tins is. However,
irrerevant to a? determination: of the
proper scope of the-Bevill'exclusion:
Moreover. EPA believes that a- one-time
decision will- serve? to- encourage rather
than discourage environmentally sound
mineral production and.waste treatment
process innovations.
Both tRa administrative.record and
Congressional intent clearly indicate
that therBevill Amendment was-
intended, topravide-a temporary
exclusion, pending further study, oven a
fixed tirfleperiodu Congress-directed
EPA to- conduct a single: study o£ wastes
generated by mineral; mining, ami
processing facilities,, because of concern-
that existing! wastes: might not be readily,
amenable to Subtitle C controls, and
might pose relatively low hazard to
human health and' the environment.
Moreover, contrary to some
commenter's* assertions, the statutory
language includes explicit time Emits orr
the Beviu* exclusion; which: apply to the-
submissfon of the-required; Report to
Congress and subsequent regulatory
determination.
IrLaoTditioruEPA Believes thai malting.
a,on&-time reinterpretation.is.not .
contrary to. the interests- of either
industry or. the environment. With
regard to the concern raised by several
commenters that th& development of
new technologies: would be stifled, EPA
notes-thatany new wastes generated in-
the future will beregulated underarr
established regulatory scheme [i^:,
either the Subtitle C on D program)-.
Therefore; ratherthartfacingregulatory
uncertainty and. incentives; to generate
large volumes; of any new mineral'
processing wastes', industry will" instead
have substantial Knowledge of the
regulatory regime that it will- face.
Moreover, in keeping with-recent EPA
policy initiatives, industry wrll have s
clear incentive to ensure that process
changes or, waste treatment technologies
that it develops, will generate non-
hazardous wastes and'waste treatment
residuals-.
jEPAalsabelieves-thatbasing Bevili
exclusion determinations, on historical
waste generation rates wiH not provide
any disincentives for continuing, existing
waste reduction- initiatives. Because the
criteria- would, be applied- to-wastes and
volumes of. wastes-that weregenerated
between: 1983- and 1988, n& incentive
exists for a-facility to increase (or
decide not to treat and/or decrease), its.
generation of a, particular, mineral
processing' waste in the future ire order
to meet the criteria.
4. The Status-of Historical
Accumulation's of Mineral Processing-
Wastes
As EPA stated in. the preamble ta the-
proposed rule,, a number of mineral
processing wastes that have, been
provisionally excluded from regulation
as hazardous, wastes by- EPA's.1980
interpretation of the. Bevill Amendment
would become subject to RCRA, Subtitle
Cregul'ations if they exhibit hazardous-
characteristics. Several commenters
indicated concern, that the implications-
of the proposed rule have not been
completely articulated, stating that the
proposed rule-is. not clear about whether
existing waste-management units at
active oc potentially active facilities-
would be subject toSubtitle C
requirements- if the wastes they contain
exhibit hazardous, characteristics.
These commenters contended that if
wastes- removed from the Bevill-
exclusion, under the finaL rule are
retroactively subjected: to Subtitle C
requirements^ large- cost impacts;
associated with closurerand post-closure
care of existing.-storage; and disposal-
units would occur. Therefore,, they
argued! that in resolving- this, issue,. EPA
must consider easts, technical
feasibility. Subtitle C landfill capacity,
and other practical problems; One
commenter added that retroactive
application of Subtitle C to wastes
Withdrawn: front Bevill: by this proposal
is not only unwarranted, but potentially
unlawful Other commentars expressed
concern; that the retroactive application?
of the mixture rule, particularly hi case* •
in which, the-vast majority of the waste
is exempt, was never anticipated by
Congress and would entirely eviscerate
the Bevilf Amendment exclusion.
Many commentera argued that EPA
must clarify its-position on thia issue In
the final? rule. Somecommenters-
' recommended that existing-wastes be
"grandfathered" and any new Subtitle C
regulation- of processing waste* should
only occur prospectively. Some
suggested that this could1 be-
accomplished by explaining in the
preamble, that? wastes disposed of prior
to the effective date of the rule would
corrtzhneto be considered1 excluded if
either (1)' they would be excluded under
the new rule or £21 they would
reasonably have been considered
excluded under hrterr/rerations existing
at the time of disposal.
In keeping with EPAV long-standing.
policy, the Agency intends- to treat non-
exduded mineral processing wastes that
are disposed prior to the effective date
of the rule that makes them subject to
Subtitle C requirements (air this case, as
a result of this proposed? reinterpretation
of the Bevill exclusion) as- not being
subject tcr direct Subtitle C controls such
as closure and post-closure care
requirements. Therefore, existing
accumulations of waste that were
tentatively considered to be excluded
from Subtitle C requirements by the
Bevill amendment prior to the effective
data of this proposed reinterpretalion
would not be subject to direct Subtitle C
controls unless and. until the
accumulated wastes, are actively
managed (i.e., accumulations left
undisturbed will not be subject to
Subtitle C regulation). The waste
management units-that contain, these
wastes might,, however, be subject to the
requirements for solid waste
management units promulgated
pursuant to section 30Q4(-u) of RCRA,. if
the facility were otherwise subject to
RCRA Subtitle C permitting.
requirements.
5. R'CKA Section 3004(xJ
As part of the 1984 HSWA'
Amendments, Congress incorporated a
provision that allows the EPA
Administrator to relax certain of the
Subtitle C standards, contained in the. •
new amendments as they relate to- the '
'management of mining wastes, utility
wastes* and; cement kiln dust waste.
This-provision,, found at section 3004{x},
is commonly called the Simpson
Amendment. The Simpson Amendment
allows EPA to modify the minimum
technical standards for the design,
construction, andoperation. of waste
management unitSy.Iand- disposal
restrictions* and corrective action
requirements for continuing releasesv as
long' as- protection of human health and
the environment is= assured.
One eommenter contended that EPA
should exercise the authority provided
by the Simpson Amendment to modify
the Subtitle C technical standards for
the wastes that would be removed: from
the Bevill Amendment exclusion. This
commenter-argued further that modified
requirements: should follow the Subtitle
D program- being developed for
extraction and' benefrciation wastes1.
EPA believes that the provisions of
section 3004(xJ; and hence, the
opportunity for flexible application of
Subtitle C requirements, apply only to
the special wastes identified in the
statute. Accordingly, section 3004(xJ
would not apply to wastes that are not
special wastes and that would therefore
be removed from the Bevill exclusion by
this, proposed rule. Although- the Agency
might, under other circumstances, be
willing to consider modifying; the
technical standards of Subtitle C to
account for unique or unusual
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Federal Register / Vol. 54, No. 72 / Monday, April 17, 1989 / Proposed Rules 15339
characteristics of mineral processing
operations (as long as the revised
standards would ensure protection of
human health and the environment),
EPA does not have the authority to
apply the flexibility afforded by section
3004(x) to materials that are not special
wastes.
IV. Changes to the October 19S8 NPRM
Today's proposed rulemaking
contains several substantial changes
from the October 20,1988 NPRM. The
primary changes are to the criteria used
, for selecting the specific wastes
proposed for retention within the Eevill
exclusion. In particular, today's rule
modifies the "high volume" criterion and
adds, for the first time, an explicit
criterion for identifying "high hazard"
mineral processing wastes. Although
basically unchanged from the October •
20, NPRM, the criteria used to define
"mineral processing waste" are further
clarified in this NPRM.
Following analysis of public
comments received on today's proposal,
EPA will, by August 18r 1989, finalize
this rulemaking. Although the status of
the wastes that are today proposed to
be conditionally retained within the
Bevill exclusion will be considered in a
subsequent rulemaking, no changes to
the mineral processing "special waste"
criteria will be entertained after August
18,1989. The subsequent proposal (by
September 15,1989) will simply apply
the final Bevill mineral processing waste
criteria to the conditionally excluded
wastes; in light of additional data that
EPA will collect during the next several -
months.
A. Addition of a Low Hazard Criterion
As discussed above, in light of public
comments and further internal analysis,
EPA has decided'to include in this
proposal a criterion by which to address
the "low hazard" aspect of the "special
wastes" concept. The purpose of this
new hazard criterion is to identify.
candidate Bevill mineral processing
wastes that pose an unambiguously high
level of hazard to human health and/or
the environment EPA believes that any
waste failing such a criterion is
sufficiently hazardous to justify
immediate Subtitle C regulation, rather
than postponement pending completion
of the 8002(p) study and subsequent
regulatory determination. Moreover,
such wastes should not, in the Agency's
view, be eligible for any permanent
exclusion from Subtitle C regulation,
irrespective of volume, costs of controls,
or any of the other section 8002(p) study
factors. Hence, these wastes should not
qualify as "special wastes." EPA wishes
to emphasize that the use of the criterion
would be restricted to this and the
subsequent rulemakings regarding
which mineral processing wastes are
temporarily exempted from Subtitle G
requirements by the'Bevill Amendment
(i.e., those addressing the proposed and
final status of candidate Bevill mineral
processing wastes), because it is a
screening criterion specifically intended
for identifying mineral processing
wastes that are also special wastes. The
Agency does not contemplate, for
example, using the Bevill hazard
criterion in making hazard
determinations'under RCRA Section
3C01(a), or as an ARAR in assessing
potential remedies at CERCLA mining
sites or, necessarily, as the basis for
subsequent determinations as to which
temporarily excluded wastes should be
• regulated under Subtitle C, With respect
to CERCLA sites, any processing waste
which does not pass the Beviil hazard
criterion will be treated identically to
any other hazardous waste in
. establishing ARARs. If a processing
waste does pass the Bevill hazard.
criterion, RCRA Subtitle C requirements
will not be applicable, but may be
relevant and appropriate.
In today's proposal, all high volume
mineral processing wastes that are low
hazard based on.currently available
data and. the hazard criterion described
in the proposal-are proposed for
continued temporary exclusion, from
RCRA Subtitle C requirements under the
Bevill Amendment. Large volume
mineral processing Wastes that are not
low hazard based on currently available
data and the hazard criterion, and which
. the Agency today is proposing to
remove from the Bevill exclusion, are
identified below. EPA believes that
these materials pose a sufficiently high
hazard to demonstrate that they are not
special wastes. The data used to make
these proposed decisions are presented
in Appendix I.
A number of additional wastes do,
according to available data (including
data submitted in public comment on
the October 20,1988 NPRM), meet EPA's
criteria for high volume mineral
processing wastes. The Agency does
not, however, possess sufficient data at
this time to apply the hazard criterion to
these wastes. Hence, EPA is today
proposing to retain these wastes within
the exclusion on a conditional basis.
Upon development of the necessary
data, EPA plans to propose, by
September 15,1989, which of the wastes
in this group qualify as special wastes.
A final rulemaking on the status of this
group of wastes is planned to occur by
January 15,1990. AH wastes that are
found to meet the final processing,
volume, and hazard criteria will be
subjected to further study according to
the provisions of RCRA section 8002(p)
and a subsequent regulatory
determination pursuant to section
3001(b)(3)(c).
The criteria EPA has developed for
this rulemaking are intended to identify
those mineral processing wastes that are
clearly not "special wastes". Because
the "low hazard" criterion is a screening
criterion for determining which high
volume wastes will be subject to special
study and regulatory consideration,
rather than a criterion that will
determine the final regulatory status of a
waste, EPA believes that it is
appropriate to-use a measure of hazard
that identifies highly hazardous wastes.
This measure need not be identical to
the characteristics tests that EPA has
promulgated under section 3001(a) of
RCRA to identify hazardous wastes. As
discussed above, some wastes that fail
these tests may still be appropriate' for
further study and possible permanent
exclusion from Subtitle C, as EPA
determined for mineral extraction and
beneficiation wastes (see 51FR 24498).
The U.S. Court of Appeals for the D.C.
Circuit has already agreed that the
hazardous characteristic tests need not,
by themselves, be determinative of the
ultimate regulatory status of special
wastes (852 F.2d at 1314).
To develop a hazard criterion, EPA
looked at the four types of waste
characteristics that are generally used to
identify wastes that are hazardous (i.e.,
ignitability, corrosivity, reactivity, EP
toxicity). The ignitability and reactivity
tests used to identify wastes that exhibit
hazardous- characteristics, however, are
such that they can not be readily
"relaxed" for use as part of a screening
criterion. In addition, the Agency
currently has virtually no information on
the potential reactivity or ignitabilitv 'of
any mineral processing wastes. -
Therefore, the hazard criterion
described in today's proposal is based
on the other two types of tests, which
have been or will be applied to those
mineral processing waste streams
meeting the high volume criterion: (1) A
pH test and (2) a mobility and toxicity
test. Candidate Beviil wastes must pass
both of these tests to be eligible to
remain within the exclusion.
The pH test that EPA is using requires
that a mineral processing waste have a
pH between 1 and 13.5 to be considered
a "special waste". This criterion
represents a one order of magnitude
"relaxation" of the pH levels used to
identify corrosive hazardous wastes.
The proposed mobility and toxicity
test parallels the EP toxicity test used to
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15340
Federal Register / Vol. 54, No. 72 / Monday, April 17, 1989 / Proposed Rules
identify solid wastes that exhibit
hazardous characteristics, but utilizes a
different leaching procedure and •
leaching medium to predict the mobility
of contaminants. Mineral processing
waste samples prepared for analysis
according to this procedure will provide
the basis for determining mobility and
toxicity. Concentrations of constituents
in the resulting extracts will then be
compared with 100-times Maximum
Contaminant Levels (MCLs) as
promulgated under authority of the Safe
Drinking Water Act for each of the
standard EP toxicity test contaminants.
The dilution factor of 100 is consistent
with that used in the EP and TCLP
procedures.
The Agency is proposing to use a
recently developed synthetic
precipitation leaching procedure*
(Method 1312) to predict the mobility of
contaminants in candidate low hazard
wastes. In addition, the proposed (54 FR
3212, January 23,1989) mandatory
quality assurance/quality control
procedures described in Chapter One of.
SW-848 would also apply to this
method. Method 1312 simulates the
leaching process created by acidified
precipitation percolating through a . .
waste. The Agency believes that this
leaching procedure is the appropriate
method to use in screening the mobility
and toxicity of these particular large
volume wastes to determine whether
they are dearly not low hazard wastes.
Using Method 1312, which is fully
described in the dockeffor today's
proposal and is available through the
RCRA Hotline, the waste is mixed with
a mildly acidic aqueous leaching
medium, and the mixture is agitated to
extract any mobile toxicants present in
the waste. The acidity and composition
of the leaching fluid are designed to
simulate the acidity of rainfall that
occurs in the general region of the
country where the waste is managed
(i.e., east or west of the Mississippi
River). The resulting extract is then
analyzed via established SW-848
analytical methods to determine the
degree to which contaminants might
leach out of the waste and migrate away
from the disposal area. *
While the Agency has not yet
completed its evaluation of Method
1312, work conducted to date indicates
that the procedure is of acceptable
precision. A recent study (EMSL, 1989) 8
• "Performance Testing of Method 1312—QA
Support for RCRA Testing." T.C. Chiang. CA.
Valkcnburg. and P-A. Miller, Lockheed Engineering
and Scicnco Co.. and S. Wayne Sovocool, EMSL—
LV. March 21.1989. '
indicates that Method 1312 produces a
reasonably precise measurement of the
mobilization of organic compounds and
certain metals from soil. The method
was also found to be fairly robust with
respect to the effects of small variations
in extraction fluid pH, waste-extraction
fluid contact time, and the ratio of
extraction fluid to waste. Based on the
results of this study and the similarity of
Method 1312 to the more completely
evaluated Method 1311 (the Toxicity
Characteristic Leaching Procedure) on
which it is based, the Agency feels
confident in using Method 1312 for this
application.
Because Method 1312 is a new
procedure, the Agency has not yet
completed its evaluation of the testing
procedure and does not currently
possess data from its application, to
mineral processing Wastes. The Agency
does, however, have data from neutral
water testing of several candidate
special mineral processing wastes upon
which to base today's proposal. These
water extract data serve as the primary
basis for making the limited number of
proposed Bevill exclusion decisions that
are listed below. Because neutral water
is only slightly less aggressive than the
Method 1312 leaching medium, the
Agency believes that any wastes
excluded based on neutral water extract
data would also be excluded using
Method 1312. In cases where the Agency
did not have neutral water data, EPA
made limited use of Method 1310 (the
EP-Toxicity Test Procedure) extract
data. If Method 1310 indicated that a
waste had low leaching potential, the
Agency assumed that Method 1312 data
would yield a similar result, because the
Method 1310 extraction medium is
generally a more aggressive extraction
medium than that used in Method 1312.
That is, if a waste passes the Extraction
Procedure Toxicity Test procedure, it'
would almost certainly not exceed the
inherent toxicity test being used as part
of the Bevill low hazard criterion for
today's proposed rule. '
Evaluation of candidate Bevill mineral
processing waste streams with respect '
to both hazard criterion tests is a two ,
step process:
(1) Determine if the waste stream fails the
hazard criterion at each facility for which
data are available; and
(2) Determine if the waste stream fails the
hazard criterion for the commodity sector.
For step 1, different procedures are
required depending on the number of
samples taken from a facility, as
follows:
• If only one sample was or is taken at a
facility, then analysis of that sample
determines whether the waste stream fails or
passes at that facility;
• If two samples were or are taken at a
facility, then the lower value is analyzed in
the pH test,9 and the mean of the two
samples is used for the toxicity and mobility
test; and
• If more than two samples were or are
taken from a facility, then the median value is
used for the pH test, while the mean value is
used to assess toxicity and mobility.10
In step 2, a waste stream will fail the
proposed hazard criterion for the
commodity sector if it fails either of the
hazard tests at two or more facilities,
regardless of the number of facilities
generating the candidate Bevill waste.
For each high volume mineral
processing waste generated by two or
more facilities that previously have not
been sampled adequately to apply the
hazard criterion, EPA plans to sample
two facilities selected at random. In
those instances in which a waste is
generated at only one operating facility,
then that facility will be sampled and
the waste stream will be removed from
the Bevill exclusion if it fails the hazard
criterion. EPA recognizes that this
method is not rigorously valid in a
statistical sense, but believes that it is a
reasonable way to make decisions
based upon extremely Limited data.
Under today's proposed rule, a waste
stream would be removed from the
Bevill exclusion if it failed either of the
proposed hazard criterion tests. The
procedure for evaluating a waste stream
for purposes of developing today's
NPRM was based In part on the
availability of data. In cases where EP
extract data were available for a
mineral processing waste and these data
indicated that the waste does not
exhibit the hazardous characteristic of
EP-toxicity, EPA has assumed that the
waste would pass the toxicity portion of
the proposed low hazard criterion
(which uses Method 1312) and is today
proposing that it be retained within the
Bevill exclusion. In cases where no data
were available or the data indicated
that a waste stream failed the EP
toxicity test, but no water extraction
data were available, further sampling is
required and EPA is proposing to
conditionally retain the waste within the
Bevill exclusion if it is high volume.
EPA recognizes that the concept of
explicitly addressing hazard in making
' The lower pH value is used because pH is
measured on a logarithmic scale and the average of
the anti-logs of multiple values will be dominated
by the lowest value.
10 The median value is used for pH because pH is
measured on a logarithmic scale and an average pH
is a meaningless number. Mean values of
constituent concentrations are used due to the
limited data available.
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Federal Register / Vol. 54, No. 72 / Monday, April 17. 1989 / Proposed Rules
15341
waste-specific Bevill exclusion decisions
is a. departure from previous Agency •
rulemaking proposals related to the
proper scope of the Bevill exclusion.
Accordingly, EPA solicits public
comment on a number of issues
pertaining to the new hazard criterion:
(1) The appropriateness of using pH and
mobility and toxioity tests to evaluate waste-
specific hazard;
[2) The appropriateness of EPA's decision
not to employ a consideration of ignitability,
and reactivity in the hazard criterion.
(3) Whether additional constituents or
_ measurements, particularly residual
radioactivity, should be incorporated into the
inherent toxicity test, and what measure is
appropriate;
{4} The appropriateness of using Method
• 1312 and the EP-toxicity characteristic
regulatory levels contained in 40 CFR "
261.24{b);
• (5) The appropriateness of using neutral
water extracts as surrogates for data
obtained using Method 1312;
(6) The appropriateness of the assumption
that leachate concentrations obtained using
Method 1312 will not be greater than those
obtained by Method 1310;
(7) Whether EPA should incorporate
selected indices of environmental hazard
(e.g.. Ambient Water Quality Criteria] for
• contaminants that are more toxic to non-
human organisms than to humans (e.g^.
copper, zinc]; and'
• (8) The appropriateness of the two-facility
test to determine whether a candidate waste
fails the hazard criterion.
B. Revision of the High Volume
Criterion . .-'
In the October 20,1988 NPRM. a
waste stream was classified as a high
volume waste and proposed for
continued temporary exclusion from
Subtitle C regulation if one of the
following two conditions were fulfilled:
(1) The annual total quantity of the specific
waste generated by all of the facilities in the
United States in any one calendar year
equals more than 2. million metric tons; or
(2] The specific waste stream is generated
at an average rate of more than 50,000 metric
tons per facility per year.
As discussed above, for today's
proposal EPA has used only the average
facility generation rate to determine
whether a candidate mineral processing
waste is a high volume, special waste.
That is, for any waste stream arising
from mineral processing in any given
mineral commodity sector, the high
volume criterion is satisfied if the
average annual per-facility generation
rate for all facilities generating that
waste exceeds 50,000 metric tons. Based.
on currently available information, the
Agency's proposal to use only the
average annual facility generation rate
to identify high volume mineral
processing wastes affects' the status of
only one mineral processing waste: air
pollution control dust from lime kilns.
Industry comments indicate that the -
lime industry does not object to this
proposed change in the status of this
waste with respect to the Bevill
exclusion.
Because EPA wishes to obtain the
most recent available data, the Agency
will now entertain data pertaining to
waste generation during the period from
1983 through 1988. inclusive, rather than
the period from 1982 through 1987, as
indicated in the October 20,1988, NPRM.
Wastes- that exceed the volume
threshold for any-single year during this
five year period satisfy the high volume
.criterion. According to the information
available to EPA, changing the dates of
eligibility in this way will not remove
any wastes from Bevill that would
otherwise qualify as high volume
wastes.
C. Clarificatfon of the Definition of
fr'tineraJ Processing
EPA is continuing to use the definition
of mineral processing that it articulated
in the Octeber 20,1988, NPRM, but
offers the following clarifications.
• Pollution control residuals may be
considered solid wastes from the-processing
df'ores and minerals. The residuals, however,
must independently meet the high volume
and low hazard criteria to- qualiry for
continued exclusion under the Bevill
Amendment Wastewater can qualify as a
mineral processing waste if the influent is
derived wholly from mineral processing
operations and slso meets the high volume
and low hazard criteria.
• Heap, dump, and in-situ leaching, as well
as tank and vat leaching, are specifically
defined as beneficiation operations. EPA
currently considers active leach piles to be
raw materials used in the production process,
and leach solutions to be intermediate
products. As long as the leaching operations
are active, only leach solutions that escape"
from the production process are considered
wastes.
•• Processes that use heat to change the •
chemical composition of ores and minerals
(or beneficiated ores or minerals) are, in
general considered mineral processing
operations. These processes include activities
such as roasting,, smelting, calcining, and
other pyrometallurgical techniques, which '
may not act to concentrate the ore or mineral
value, but do enhance its characteristics.
Operations that use heat only for purposes of
drying, such as heating of diatomaceous earth
to drive off waters of hydration, do not
change the chemical composition of the
materials involved in the process and hence,
are considered beneficiation rather than.
processing operations.
• The 50 percent rule applies to all
materials entering a process operation that
contain the mineral value rather than all
materials entering the operation irrespective
of function. The requirement that at least 50
percent of the feedstock be ores or minerals
for beneficiated ores and minerals] allows
mineral processing operations to use recycled
materials, while ensuring that secondary
processing wastes do.not receive an
unintended regulatory exclusion. Materials
not containing the mineral value (e.g.,
reducing or fluxing agents] are not included
when determining whether a waste complies
with the 50 percent rule.
• Activities, such as manufacturing and
alloying, that use concentrated ores or
minerals (or faeneficiated ores or minerals)
without further removing or enhancing the
desired mineral produot(s) do not fall within
the scope of mineral processing operations. .
Similarly, operations that involve mixing
products of ouneral processing with other
non-mineral materials (e.g., ammonia, refined
metals) are also not considered mineral
processing.
D, Resulting Revisions to the Proposed
This section describes the was te-
" specific implications of applying the
revised special mineral processing
wastes criteria included in today's
proposal, given the Agency's current
state of knowledge. For some candidate
wastes, EPA believes that it has
sufficient data to make a'decision to
- either propose to retain or propose to
withdraw the waste from" the Bevill
exclusion. These decisions, and the data
and analysis that support them, are
discussed below.
Today's proposed rule also contains
an explicit definition of ore and mineral
beneficiation, so as to eliminate
confusion and provide clear guidance as
to whether a particular material is. a
beneficiation or a processing waste. "
For a number of candidate wastes,
particularly those nominated, in public
comment on the October 20, 1988 NPRM,
however, the Agency is presently unable
to apply the hazard criterion, and hence,
cannot propose to either retain or
withdraw the wastes. In these instances,
EPA is proposing to conditionally retain
the wastes within the exclusion until
January 15, 1990, at which time EPA
plans to make a final decision as to their
Bevill status. If EPA obtains information
that enables it to make a determination
of hazard on a sufficiently timely basis
then the Agency will formally propose
to either retain or withdraw any such
waste(s) by September 15, 1989. The
wastes that EPA believes meetthe •
processing definition and high volume
criterion constraints, but for which the
data necessary to apply the hazard
criterion are not currently available, are
listedbelow.
Finally, as discussed above, the
Agency received nominations for a lar<*e
number of additional wastes, that, afte'r
review of the available information, the
Agency believes do not qualify for
-------
15342
Federal Register / Vol. 54, No. 72 / Monday, April 17, 1989 / Proposed Rules
temporary exclusion under Bevill. These
wastes are, in EPA's judgment, outside
the scope of the Bevill mineral
processing wastes exclusion, for a
number of reasons. Some are clearly
beneficiation wastes; others are wastes
that are generated downstream of
mineral processing, or in some
instances, have a very tenuous link with
mineral processing of any kind. Still
others are wastes from mineral
processing, but are generated in
quantities too small to be considered
"special wastes." Finally, some waste-
nominations were accompanied by
statements or data that were too vague
and incomplete to fully evaluate. In the
absence of complete and compelling
evidence to the contrary, EPA is
proposing that these materials are
outside the scope of the Bevill exclusion.
1. Wastes for Which Current Data
Support a Proposed Exclusion Decisi.on
a. Wastes Meeting the Processing and
High Volume Criteria for Which Hazard
Data are Available. Because of the
addition of the hazard criterion and data
limitations, the group of wastes
proposed for exclusion today is different
than the group of fifteen proposed in
October, 1988. After consideration of the
available information, the Agency has
decided that it has sufficient data to
determine the exclusionary status of
nine mineral processing waste streams,
some of which were previously
proposed to be retained within the
exclusion and some of which were
nominated in public comment. Of those
waste streams, six meet both the high
volume and low hazard criteria and thus
are proposed for continued exclusion,
while three waste streams fail the low
hazard criterion and thus would be
removed from the Bevill exclusion and
regulated under Subtitle C if they exhibit
one or more hazardous characteristics.
The data supporting these proposed
exclusion decisions (i.e., against which
the special wastes criteria were applied)
are presented in Appendix I to this
preamble.
Wastes Proposed for Retention Within
the Bevill Exclusion
. 1. Slag from primary copper
processing;
2. Slag from primary lead processing;
3. Red and brown muds from bauxite
processing;
4. Phosphogypsum from phosphoric
acid production;
5. Slag from elemental phosphorus
production; and
6. Furnace scrubber blowdown from
elemental phosphorus production.
Wastes Proposed for Withdrawal from
the Bevill Exclusion
1. Acid plant and scrubber blowdown
from primary copper processing;
2. Acid plant blowdown from primary
lead processing; and
3. Air pollution control scrubber
blowdown from primary tin processing.
b. Materials not Meeting the
Processing Waste Definition and
Wastes Which Fail the Volume
Criterion. In response to the proposed
rule, commenters nominated many
additional waste streams that they
believed should be retained within the
temporary exclusion. EPA has reviewed
these nominations, and in most
instances, has concluded that these
additional wastes should not be
afforded special waste status, and
hence, is today proposing to remove
.them from the temporary exclusion (a
few, however, fall within the exclusion
as extraction and beneficiation wastes).
The reasons for these waste-specific
decisions are varied; some wastes did
not meet the definition of mineral
processing wastes [e.g., are
beneficiation or alloying wastes), while
others are generated by processes that
are outside the scope of this rulemaking
(e.g., secondary metal production). The
most common reason, however, for
rejecting claims of Bevill status was that
the nominated materials are not high
volume wastes. These wastes and the
reason(s) that EPA is proposing to
withdraw them from the Bevill
exclusion, are presented in Table 1.
2. Wastes Meeting the Processing Waste
and High Volume Criteria for Which
Sufficient Hazard Data are Unavailable
Of the many wastes nominated for
exclusion by commenters, 33 wastes
appear to meet the processing waste
definition and the revised high volume
criterion. Because the Agency does not
have sufficient data at this time to
determine whether these wastes meet
the low hazard criterion, EPA is today
proposing to conditionally retain these
waste streams within the Bevill
exclusion until EPA can collect and
analyze the necessary data. These
materials are listed in Table 2, below.
The regulatory status of these wastes
will be addressed In a subsequent
proposed rulemaking (on or before
September 15,1989).
To obtain sufficient data to allow the
Agency to determine whether these 33
wastes are low hazard, the Agency is
planning to conduct a waste sampling
and analysis effort. The Agency also
plans to send letters to all facilities that
it believes generate one or more of these
wastes requesting information of waste
characteristics under the authority of
Section 3007 of RCRA. Further, the
Agency solicits comments and data that
could be used in helping to determine
the level of potential hazard that these
wastes pose to human health and the
environment.
3. Wastes for Which Commenters
Provided No Volume or Hazard Data
Commenters on the October 1988
proposed rule nominated several wastes
for continued exclusion without
providing supporting data. Commenters
on one waste in particular, chrome ore
roast/leach residue, implied that this
waste would meet the Agency's criteria
for Bevill exclusion, yet provided no
data. In the absence of additional
information submitted during the public
comment for today's rulemaking that
demonstrates that chrome ore roast/
leach residue is indeed a high volume
waste, EPA plans to remove it from the
Bevill exclusion when this proposal is
finalized by August 18,1989.
Another candidate Bevill waste .
identified in the October 20,1988 NPRM
was iron blast furnace APC dust/sludge.
EPA believes that the wastes generated
from wet and dry air pollution control
techniques at blast furnaces (and other
operations) should be considered
separately. Currently available data do
not, however, allow the Agency to
consider these waste streams
individually. Accordingly, EPA solicits
public comment and data regarding APC
dust and sludge generation. In the
absence of adequate data, EPA may
conclude that neither type of waste
independently meets the special waste
criteria and, accordingly, propose to
remove both from the Bevill exclusion.
Similarly, any other mineral
processing wastes for which the Agency
does not have information that
demonstrates it is a high volume waste
will be permanently removed from the
exclusion when today's rulemaking is
finalized. Therefore, any. commenters on
today's proposal who suggest additional
wastes that should be retained within
the exclusion must provide volume data
for the waste, as well as any available
information on pH (if the waste is a
liquid) and toxicity and mobility testing
results.
-------
Federal Register / Vol. 54. No. 72 / Monday, April 17, 1989 / Proposed Rules
TABLE. ^.-EXAMPLES OF WASTES PROPOSED FOR WITHDRAWAL FROM THE BEV.LL EXCLUSION ON THE BAS/S OF PO.NT OF
GENERATE OR VOLUME, AND WASTES FROM BENERC.AT.ON THAT ARE UNAFFECTED BY THfs"RULE
Sector
Aluminum
Aluminum „
Aluminum
Aluminum
Aluminum
Aluminum ;.„'„_„
Aluminum :
Aluminum.
Aluminum..., ;„
Aluminum.....
Aluminum ,
Aluminum
Bauxite
Bauxite
Bauxite
Bauxite
Bauxite „ _...,
Bauxite ;....
Beryllium
Beryllium..-.
Waste stream
Anode prsp dust....!
Baghouse bags/plant filters..!.™™'™!!.™""™'
Casthouse dust
Cryolite recovery residue !..!.!.!!!.!!!!!..!!!!!!!!
Dross . ' '
Dust ^!!!!!!!!!!!!!Z!!!!!!!!!!!!!!!!!Z!
Electrolysis waste...:.™
piant trash !!!-!!!!!!!!!!!!!!!!!!!!"""
Scrap furnace brick !."
skims .........!!!!!!!
Sludge and dredged solids !.'.!.....!!!!.!!!....!!!.!!
Sweepings !!!!!!!!!
Cooling tower blowdown
Miscellaneous solid waste
salts : !.!.!!!!!!!!!!!!!!
Spent cleaning acid „ !..!...!!!
Waste alumina.-......; ;
Water softener sludge
3eryl Plant Discard..
Studge Leaching Slurry
Chromite Chrome Contaminated Waste-
Basis for proposed
withddrawal *
Low volume
Low volume
Low volume
Low volume
Low volume
Low volume...:
Low volume .„...,
Low volume „
Low volume
Low volume
Low volume
Low volume..
Low volume
Low volume.".; !
Low volume ..._..
Low volume '.!!!!!.".!
Low volume
Copper,
Copper..,
Copper ,
Copper...,
Copper
Copper...,
Copper.,
Gold...
Iron..™
Iron
Lanthanides.......
Lanthanides
Lanthanides ,
Lead
Lead... ........
Lead .™...™.H
Lead ™.
Contact cooling water .....
™™™
Furnace Brick...... .................................... !..!!!!!!! ............ '
Slimes ........ ________ ~ ...................
Tankhouse Slimes ................ !.!!!!!!!!!!!!!!!!!!! ............ '"
Sodium Hydroxide WWI plant sludge ...............................
Roast Leach Acid Plant Residue .............. ..................
Ferromolybdenum
General
>-; Mill Tailings and Wastewaters..
Spent Ore from Leaching..
APC dust from Sintering
Coke Making Wastes
Lanthanides „.... Beneficiation Wastewater..™.
Low volume
Low volume:
——•^—.__________
Not Processing—Not Uniquely
Low volume
Low volume
Low volume .'...„ !.!."
Low volume ;
Low volume ™
Low volume "!"!
Not Processing—Prospective
Waste.
Low volume..
Information source "*
MWEPS0005
MWEP S0005...
MWEPSOOC5
MWEP S0005
MWEP S0005
MWEPS0005
MWEPS0005
MWEP S0005....
MWEPS0005
MWEP S0005...
MWEP S0005...
MWEPS0005
MWEPS0005
MWEP S0005..
MWEP S0005.™.:...
MWEP S0005..
MWEP S0005 „
MWEP00041
MWEP00041 "!!!.'."
Annual averaae
generation (mt/
yr)
2,852
9,500
831
30,000
5,749.
'1,892
6.568
2,400
3,830
879
5,150
1,100
2,100
4,350
2.200
668
6.300
950
1 37.000
1 47.000
MWEPS0005..
MWEP S0005
MWEPS0005
MWEPS0005
MWEP S0005......
MWEP00030 ,
MWEP00054
MWEP S0005, MWEP00007
MWEP00001.
Not Processing—Beneficiation...
: •
Not Processing—Benefication....' MWEP00064.
Not Processing—Beneficiaiion...f MWEP00066 00023
Not Processing ; .,.,...„! MWEP00066.. ' "
Residues...
Slag.;
Tailings :
Slag fines
Slum'ed APC dust !."
Solids in plant washdown..
Spent furnace brick.....1.
Not Processing—Beneficiation ...
Not Processing—Beneficiation...
Low volume _
Not Processing—Beneficialion :..
Low volume..
Low volume.... „
Low volume
Low volume...
MWEPL0005, MWEP00007
MWEPL0005, MWEP00007
MWEPL0005 .-.
MWEPL0005, MWEPOOOof".'"."
MWEPS0005 —
MWEPS0005...., ""
MWEP S0005......
MWEP S0005..
Molybdenum [Tailing and solution..
— ' ——.
Phosphoric acid (wet)... Runoff from inactive stacks..
Secondary Copper..
Secondary Copper..
Bleed Electrolyte..
Shale .Oil..
Process Wastewater
Retorting Wastes-
Steel..
Tantalum/Niobium
Steel (BOF) APC dust/sludge.
Processing wastes.
I Slag..
Operation.
Not Processing—Secondary
Operation.
MWEP00061.
Not Processing—Beneficiaiion... MWEPLOOOS^MWEPOOOO?
Tungsten I Ore leach sludge ...„
Tungsten | Waste treatment sludge
Uranium ;....| Tailing and solution....
zino I Filter cloths, baghouse bags, filters....
Low volume | MWEP00028.:
Low volume..
•
Low volume..
Low volume
Low volume
MWEP00043..
— •
MWEPL0002
MWEPL0002™.
MWEP S0005....
1,807
127
1,883
508
433
5,615
136
Lightweight Aggregate-
Lightweight Aggregate-
Not Processing—Beneficiation...
(Proposed Rule; 10/20/88).
MWEPL0004...
2 23,205
18,577
11,090
Molybdenum .„.
Roaster gas scrubber water
Not Processing—Beneficiation...
MWEPL0005, MWEP00007
Not Processing—Not Uniquely
Associated.
MWEP00034/MWEP00033.
Processing—Secondary
-------
15344
Federal Register / Vol. 54, No. 72 ./ Monday, April 17, 1989 / Proposed Rules
TABLE 1.—EXAMPLES OF WASTES PROPOSED FOR WITHDRAWAL FROM THE BEVILL EXCLUSION ON THE BASIS OF POINT OF
GENERATION OR VOLUME, AND WASTES FROM BENEBCIATION THAT ARE UNAFFECTED BY THIS RULE—Continued
Sector
Zinc
Zinc ,. .- -...
2nc ™ . t .
Zinc
Waste stream
Goftthite. .......... « i.. i
MQtal rMifltK*^ (sRlpaWfl) - .._....
Rsfractory brick.,.— -.. , '
Synthetic fjypsffm...— _. ;
ICA tower blowdown „„..... .. ,
Zinc-lflfln slag _, , ;
Basis for proposed
withddrawal *
Low volume .,_..,. .,..*,u, ..a,.,
'Low volume...--
'Lew volume
I^PW vH/YCf\H/\rk* o/*!r(
Steal
Sods ash
;
"ntcTP'MTt
THitfvkim .M m
TUankwn «»».»..— ..«««™..».
39nc«m». ™ «-t-r ,-,-•
TffKT
Waste stream
Barren filtrate ....... ^........ [[[ « «
Processing raffinate .... ,
Bertrandite thickener slurry ._ -.., ~ —
Process water.. ... > - •
"GasJftsf ssti „,„, , «.«, .M, >HM ,. '
Wastewater ....."«... . ...«.«..- ..„ ;...
Roast/teach ore residue...:.,; ^..«.;.-.. .-. «-.... _..-.'.. — . —
EJls'Bd etectrcfytQ , — .'..,
Proc6?? wastewatsr ^ u^ .... i.. ...i.-..-..«... ....„..,. L ...„.,,..... .«. '.,„.. .... ,,t;.-
Slag tailings ., ... ....... ..„,..,,.,,,,.,.., ....- , ---,
Catoiom sutfate from WWT ...— — -
•{addUional comments) ,. .* ; «- -
Process "wa^tHwntPT .' _.._....,,.... r,. .............
(additionnl comments)..«...».««......H.H»m.....»».t..»»«»...«...«...WH..........n..».»
(additions! "comments)— . .. „„.«_... ..„ «..*...*.... *.n
Ruorog^sum . .: .....^.. ....... !.....».,
APC dust/slurry from blast furnaces .*.....«.... uJ. .;......,.'.... i
Blast furnace frfacj-.,...' - _.-_ ,. ...._.......,
Ammonium nitrate process solution ™. — «. — .. 1 - , ..»
PTOCSSS 'wastewater «.«. H^.»««.»..«.......«...:M«.'.»:».«....i.............»..«.
Scnri>bw\vHStPwsrtflr . . * ««. .. ».«.. i •
(fltJditton^*coFfflirr^nt^)-,-jiiH^............'.M...i.nti-T.....J...i.«..^.....«.;«..^;..«...M .»..«.;
Wjftstawater treatment solids ........;.......... .....^.....^...^....^r^.-;,-.,,,...,..,.,.,. ,,...
taddUIonal comments) ^ nin.m.i.mi..l..i..uJ......jJ.i....i..i...m. „..«..,
Wastewator irora th9 arihydrous process «.«.«.«. ».»..«..... »«..»........„.«.«*«
(additional ^omnvmts)
{addition mimusnls)- •—.,.....-.-.. -. —— ^.— —..— ••.— •
Process W35t0watsr « .... .
(addittonnl comments) .._ .- - .-.
Steel (BOF) s*ao — . — — .. - «..
Wastes from trona ore processing, ....„.„ «_ ....._.„.......„.....__.._.......
Tadcfitlonal comment?) . . « , . .
tnpT^Hquor ' PLJi , , JLJ 111J1111J, ..„ , ,„.., ..„.,,.,
Sulfate processing waste acids
Sutfata processing waste solids — .......... . — . ..»
•CWoridQ processing wast^ ?wtfte-T- --f- - ••, -.,,,,„... ,--, ,.,.,,-, ,^.,,., ...<„......;
Chloride processing waste solids .- —
Acklplaril blowdown .' - -•••• »- -...„„,..,.„..........,......;
Procft^s wo^tcwatFir i »•..... «... •
Industry average
generation (rnt/
yD
1 80,000
1 530,000
1 660,000
'75,000
260,000
697,000
4,-980;000
2 > 50,000,
^ea^w
' {') 51 455
2 53,050
1 339,500
75,750
1 07 000
107,000
311, "00
C1) 250,000
311.000
567,000
2 133,208
2 408,542
• »52£00
•» 1,300,000
396,000
. W 674,500
63,318
{W.BTS
2,730,000
2,730,000:
54.-000
54,000
a >714,OOO
200,000
1 100,000
s 2 960 000
J3i600,000
1 78 000
1 1,498,400
1 86,800
13 52.933
« 67,066
* 76,450 :
8 725,500
Information source'
MWEP00041.
MWEP00041.
MWEP00041.
MWEPL0005.
MWE030.
MWEP L0016
MWEP L0016.
^Proposed Rute; Oct 20, 1588).
-------
V. Regulatory Impacts of This Proposal
When this rule is promulgated in final
torm, mineral processing wastes that
nave been temporarily excluded from
regulation under Subtitle C of RCRA
since 1980, except the 39 "special
wastes" described above, may now be
subject to Subtitle C requirements
beginning, at the latest, on or about
February 23,1990 (i.e., six months after
publication of the final rule)
(approximately August 23,1989) in those
fatates that do not have authorization to
administer their own hazardous waste
program in lieu of EPA (facilities in
authorized States will be subject to
RCRA requirements only after the State
revises its program to adopt equivalent
requirements and EPA authorizes the
revision). These requirements include
determining whether the solid waste(s)
exhibit hazardous characteristics (40
.CFR 262.11) and, if so, obtaining an EPA
identification number (40 CFR 262.34)
complying with recordkeeping and
reporting requirements (40 CFR 262.40-
262.43),-and submitting an application
for a treatment, storage, or disposal
permit (RCRA Sec. 3005 "Part A" permit)
for interim status if the waste is
managed on-site..
,:fci order to qualify for interim status,
owners and operators of existing
facilities would have to notify.EPA of
their hazardous waste management
- •• -activities by November 23,1989 (Le 90
days after publication of the final rule)
ano; submit a Part A permit application
• by February 23,1990 (i.e., 6 months after
the publication date of the final rule)
Facilities that do not obtain interim
. status would be required to .cease all
hazardous waste treatment, storage, and
disposal activities requiring a permit
and transport all of theirhazardous
wastes to a permitted facility.
All interim status hazardous waste
treatment, storage, and disposal (TSD)
facilities (including those that may fail
to qualify for interim status),would have
to comply with the interim status
standards set forth at 40 CFR Part 265
Subsequently, qualifying interim status
facilities would have to submit a Part B
application for a final RCRA permit if a
date for doing so is established by the •
Regional Administrator. In any event
however, a Part B permit application
and a certification of groundwater
monitoring and finanical responsibility
requirements must be filed by land
disposal facilities within 18 months of
publication of the final rule for such
facilities to retain interim status (40 CFR
270.73(d]}. Completion of final permit
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 permit
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 plans
to 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
Se^A°T^afed Ajailable Technology
(BOAT) before the wastes can be
disposed on the land. Thus, one future
imp icahon 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 disposin*
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. . , :
VI. Public Participation
Requests to speak at the public
hearing should be submitted in writing
to the Public Hearings Officer, Office of
Solid Waste (WH-562), US
Sl5^nTaJ P^.tection Agency, 401M
btreet,SW., Washington, DC 20460. The
public hearing will be at the Washington
Plaza Hotel, 10 Thomas Circle, NW
Washington, DC. The hearing will begin
at 9:00 a.m., with registration beginning
at 8:30 a.m. The hearing will end at 5:00
p.m. unless concluded earlier. Oral and
written staements may be submitted at
toe 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.
States, since the requirements will not
be imposed pursuant to the Hazardous
and Solid Waste Amendments of 1984
Tnus, this ^interpretation will be
immediately applicable only in those
few-States that do not have final
authorization to operate their own
hazardous waste programs in lieu of the
federal program. In authorized States
the remterpretation and the regulation of i
non-excluded processing wastes will not
be applicable until the State revises its
program to adopt equivalent
requirements under State law.
States.that have final authorization
are required (40 CFR 271.21(e)) to revise
their programs to adopt equivalent
standards by July i, 1990 if oniy
regulatory changes are necessary, or by
July 1,1991 if statutory changes are
necessary. These deadlines can be
extended by up to six months (i.e., until
January 1,1991 and January 1 1992 '
respectively) in exceptional cases' (40
CFR 271.21(eK3)). Once EPA approves
the revision, the State requirements
become RCRA Subtitle C RCRA
requirements in that State. States are
not authorized to carry out any
regulations providing coverage similar
to today s proposed rule as RCRA
requirements until such regulations (or
modifications to regulations) are
submitted to EPA and approved Of •
course, states with existing standards
may continue to administer and enforce
tnem as a matter of state law.
,States,that submit an official
Application for.final authorization less
tha.n.12 months after the effective date
,of fee remterpretation may be approved
without including an equivalent
.provision (i.e., to: address "special"
mineral processing wastes) in the
apphcation. However, once authorized,'
a State must revise its program to
include an equivalent provision
according to the requirements and
deadlines provided at 40 CFR 271.21(e).
Compliance With Executive Order
VII. Effect on State Authorizations
This proposal, if promulgated, will not
be automatically effective in authorized
Sections 2 and 3 of Executive Ordpr
12291.(46 FR13193) require thai a
regulatory agency determine whether a
new regulation will be "major" and, if .
so. tfiat a Regulatory Impact Analysis be
conducted. A major rule is defined as a
regulation which is likely to result in:
$£? anmial effect on the economy
or a>ioo million'or more;
(2) A major increase in costs or prices
for consumers, individuals, industries,
-------
153-16
Federal Register / Vol. 54. No. 72 / Monday, April 17, 1909 / Proposed Rules
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 12291
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 section
2 and 3 takes many months. Therefore.
compliance with these requirements is
not possible within the schedule
specified by the Court for this
rulemaking.
Today's proposed rule would remove
the Bevill exclusion from all smaller
volume (less than 50,000 metric ton per
year) waste streams at ore and mineral
processing facilities, and it would also
remove the exclusion from die three
high volume wastes thus far determined
by the Agency to not be low hazard
wastes. Therefore, the impacts of
today's proposal would fall within the
three metal commodity sectors
producing the three high volume wastes
and any other metal or non-metal ore
processing sectors producing smaller
volume waste streams that fail the
standard EPA characteristic tests for
hazardous wastes under Subtitle C of
RCRA.
The Agency does "not have
comprehensive waste quantity or waste
characteristics data with which to
characterize most of the individual
waste streams or sectors potentially
affected by today's rule. However, past
sampling of facilities in many metal
product sectors indicates that some
smaller volume waste streams from.
these sectors contain toxic constituents
such as arsenic, lead, cadmium, and
other heavy metals -at concentrations
that would cause them to be considered
hazardous wastes under the
characteristics testing definition [see
reference to Appendix I). There is
considerable variability in these data. •
however, such that certain waste types
that test hazardous atone site would not
be found hazardous at another.
Furthermore, some metallic ore
commodity sectors apparently do not
currently produce any wastes that
would be RCRA hazardous wastes,
either because of the nature of the raw
materials or processes involved, or
because of the waste management
practices (e.g., recycling) employed.
Thus, EPA expects that any future
Subtitle C compliance costs would be
quite site- and sector-specific.
Although the Agency cannot conduct
a complete economic impact analysis
within the period of time allowed by the
Court the Agency's economic impact
analyses conducted in support.of
previous Agency rulemaking and Report
to Congress activities suggest that
today's proposal may well not meet the
criteria for a "major" rule.
As noted in the preamble to the
Agency's October 20,1988, proposed
rulemaking on this same topic (53 FR
41297-99), annual costs of Subtitle C
compliance for the major metals
industries were previously estimated in
the SlO to $20 million range. These costs
did not include estimates for land
disposed restrictions or corrective action
requirements, nor did they address
many smaller metallic ore sectors. They
did, however, include several of the
large volume wastes added to the
tentative list of special wastes discussed
in today's proposed rule; and they did
conservatively include many "waste
streams as hazardous by analogy
without specific test data confirmation.
Review of public comments on the
cost estimates for the metals sectors
presented in the October proposal did
not reveal substantial new information
regarding small volume metallic ore
sector waste streams or the likelihood of
their being hazardous under Subtitle C
characteristics tests. The Agency also
specifically sought comment and data
for non-metallic ore and mineral
processing sectors, but received no data
indicating that tiiese sectors contain
small volume waste streams with
hazardous characteristics that would be
affected by either last October's or
today's proposed rules. In the absence
of such data, the Agency cannot conduct
further substantive evaluations of
compliance costs or impacts.
The Agency recognizes that its
knowledge of the wastes generated by
many metallic and non-metallic ore
processing sectors is incomplete. To the
extent that these sectors generate low
volume wastes that would fail
hazardous waste characteristics tests,
and hence be subject to Subtitle C
requirements after the effective date of
this rule, EPA may, therefore, have
underestimated impacts in its previous
analyses. The Agency does not,
however, have information at hand to
suggest that there are large numbers of
such wastes or that their management
would impose substantial costs or
impacts/The Agency again requests
comment and data pertinent to small
volume wastes that may be hazardous
under Subtitle C.
Although the Agency does not intend
to conduct a Regulatory Impact
Assessment (RIA) relating to this rule.
an additional economic impact review
may be warranted at the time of
promulgation. The extent and nature of
such a review will depend on specific
industry data received in public
comments regarding small volume
wastes generated by metallic and non-
metallic mineral commodity sectors, and
on the final array of high volume wastes
removed from the Bevill exclusion due
to application of the low hazard
criterion.
Since the Agency has not in the past
determined this to be a major rule, it has
not previously conducted a benefits
analysis under E.0.12291. In general,
the Agency's waste testing results for
metallic ore processing wastes affected
by this rule have indicated that some
smaller volume wastes would test
hazardous under EPA's current
characteristics tests. Such wastes would
thus pose risks to human health or the
environment under plausible
mismanagement scenarios typical of
those which the Subtitle C regulations
are designed to protect against
Therefore, management of such wastes
under Subtitle C would yield benefits in
terms of human health and
environmental protection to the extent
that they are currently mismanaged.
This proposal was submitted -to the
Office of Management and Budget
(OMB) for review as required by section
6 of Executive Order 12291. Any
comments from OMB to EPA and any
response to those comments are
available for viewing at the RCRA
Docket
IX. Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA)
of 1980 (Pub. L. 96-354), which amends .
the Aministrative Procedures Act
requires Federal regulatory agencies to
consider "small entities" throughout the
regulatory process. The RFA requires, in
section 603, an initial screening analysis
to be performed to determine whether a
substantial number of small entities will
be significantly affected by a regulation.
If so, regulatory alternatives that
eliminate or mitigate the impacts must
be considered.
Section'608 of the Act allows an
Agency head to waive or delay
completion of the screening analysis in
response to an emergency that makes
compliance with the requirements of
Section 603 on a timely basis
impracticable. In this instance, the
court-imposed deadline for publication
of this proposed rule prevents EPA from
conducting a complete analysis of
-------
.Federal Register / Vol. .54, No. 72 / Monday, April 17, 1989 / Proposed Rules
15347
potential impacts of tiie xule on
entities in time to support this proposed
rule, especially .given the large number
of industry sectors that nominated .new
waste streams that appear to meet the
volume criterion. The Agency did,
however, conduct a detailed screeriing-
analysis lor a'll nonferrous smelting and
refining and ferroalloy-producing
facilities as part of:the 1985 proposal to
" -reinterpret -fee •mining waste exclusion.
leased -on that -analysis, the Agency
determined that small 'business
-ownership .(as -defined -by the -Small
Business 'Administration) was rar.e in
.metals processing, and further, that in
those few sectors ^ferroalloys, gold and
•sil-verrefining;) -in which facilities -were
not all owned by large businesses or
conglomerates, the small enterprises
were generally of a type that would be
either unaffected or not significantly
affected by the proposed
reinterpretetion (50 FR 40300).
EPA has not studied enterprise
ownership patterns or the potential cost
impacts of today's rule for the non-
metallic ore and mineral processing
sectors. Nevertheless, based on general
knowledge of the raw material
processing industries and information
submittedin public comment on the
October 20, 198fl.NP.RM and on the 1985
proposed xeinlerpreiatian, the Agency
believes that the general conclusions
reached for the metals sectors shrould
apply alsato the non-metals sectors -and
that today's proposed rule would not
impose adverse impacts on a substantial
number of small business enterprises
sufficient .to warrant additional
•application .of the Regulatory Flexibility
Act. The Agency will, however, present
limited additional analysis regarding
ownership patterns in and potential
effects of the proposed rule on the
mineral processing industry when the
Bevill special mineral processing waste
criteria are finalized (by August 18,
1989).
The Agency solicits -comment and
further specific information relating to
small businesses that may produce ore
or mineral .processing wastes, that
would, by virtue of the hazardous
characteristics of such wastes, be
subject to adverse impacts by today's
proposed rule.
List of Subjects in 40 CFR Part 261
Hazardous waste, Waste treatment
and disposal, Recycling, Reporting and
recbrdkeeping requirements.
- Dated: April 7.1989.
William K. Reilly,
Administrator.
Appendix I
EXHIBIT 1.—RED AND BROWN MUDS FROM BAUXITE PROCESSING
I
Plant
A
B
Source
(D
Radian _
Radian ..
Page
No.
B-2
B-1
• i
Sample
I.D. (2)
.ND
NO '
Waste type (3)
Bauxite .
Residue.
Bauxite
Residue.
EP/H20
(4)
t
H2Q
H20
Avg./Reg.
Level.
Avg./Reg.
Level.
Constituents, concentrations, regulatory levels and rations(5)
•Per-
cent
solids
ND
ND
PH
<1l>t3.5
•NA
NA
[
As 5
•0.11
0.02
1.4
°i3,
Ba'fOO
0.011
0.0001
0.009
0.0001
cat ;
type provided in the. sourca-document. .
Indicates-whether the data provided are for analysis of the sampls -according toEP toxicity test procedures (40 CFR 261.24) or an analogous procedure in whicf-
deionizsd water was used as the extraction medium rather i.than.acatic acid. .For samples .that-contain less -than.0.5% solids, .the methods are-equivalent because nc
extraction of the sample was performed.
.(5) Regulatory .levels,(in-mg/1)-shown are those rfor.theihazard criterion presented in this proposal. Highlighted ratios indicate-exceedances-ol-the hazard criterion
The. regulatory levels (except pH) are taken-from 40 CFR 261.24(b) and are 100x the MCLs. Constituent concentrations are in units of mg/l. '"<" .indicates that the
concentration was below rthe detection limit; in these instances, the detection limit was used to compute ithe average concentration.
•NA=Net;applteab!e. . •
ND=No data available.
-------
15348
Federal Register / Vol. 54. No. 72 / Monday, April 17, 1989 / Proposed Rules
EXHIBIT 2.—ACID PLANT AND SCRUBBER SLOWDOWN FROM PRIMARY COPPER PROCESSING
Plant
A
A
B
8
C
C
Source
(D
PEDCo..
PEDCo..
PEDCo..
PEDCo-
PEDCo..
PEDCo..
Page
No.
5-19
5-19
5-10
5-10
5-10
5-10
Sample
I.D. [2)
DQ828
DQ829
DQ839
'DQ841
DR714
DR715
Waste Type
(3)
Acid plant,
blowdown.
Add plant .
blowdown.
Acid plant
blowdown.
Acid plant
blowdown.
Add plant
blowdown.
Acid plant
blowdown.
EP/H2O
(4)
H2O
H2O
EP
EP
EP
EP
Avg „
Avg./Reg.
level.
Avg
Avg./Reg.
level.
Avg
Avg./Reg.
level
Constituents, concentrations, regulatory levels and ratios (5)
Per-
cent
solids
ND
• ND
•••
<0.01
<0.01
0.01
0.01
PH
<1,>13.5
ND
ND
2.71
ND
2.71
2.38
2.4
2.38
As 5
15.3
16
15.7
3.1
21.6
14.1
17.9
3.6
0.19
0.18
0.185
0.04
Ba 1.00
2.2
2.7
2.5
0.02
0.3
<0.4
0.4
0.004
0.8
<0.8
0.8
0.008
Cd 1
0.032
0.023
0.03
0.03
0.31
0.16
• 0.2
0.2
1.46
1.49
1.475
1.475
Cr5
0.003
<0.002
0.003
0.001
0.029
0.024
0.03
0.005
0.005
0.005
0.005
0.001
Pb5
0.005
0.006
0.006
0.001
2.55
1.74
2.1
0.4
2.49
2.89
2.7
0.5
HgO.2
0.12
0.09
0.1
0.5
<0.0006
<0.0006
<0.0006
<0.003
0.0013
0.0013
0.0013
0.007
Se1
0.13
0.13
0.1
0.1
0.028
0.068
0.05
0.05
0.16
0.16
0.16
0.16
Ag5
<0.03
<0.03
<0.03
<0.006
<0.04
<0.03
< 0.035
<0.007
<0.03
<0.03
<0.03
< 0.006
, Mana9ement and Cnernical Characteristics in the Primary Copper Smelting and Refining Industry, PEDCo Environmental,
(2) Sample number provided in the source document
(3) Description of wasta type provided in tha source document ' .
(4)i Indicates whether the data provided are for analysis of the sample according to EP toxicity test procedures (40 CFR 261.24) or an analoobus procedure In
wwcn detonized water was used as the' extraction medium rather than acetic acid. For samples that contain less than 0.5% solids, the methocis are eouivalent
Because no extraction of the sample was performed. • ••...
Tha^i^'^il^Jli/^i'^P^ a'efrthosfnf(?™eolS2a!;l?ritelon pr!Slnt1d '? 5.is Pr°P°sal- Highlighted ratios indicate exceedances of the hazard criterion.
S^SSbSKJSn&(ex^5tJiV) fe taHn,fr<3m 40,CfR 261-24(b) and are 100x the MCLs. Constituent concentrations are in units of mg/l. "<'Vindicates that the
conccntratton was below the detection limit; in these instances, the detection limit was used to compute the average concentration
NA"«Not applicable. , , . t ., ;. • . • •,. ,
ND-No data available. • . ' . • ..-:••' r • • ' . • •
EXHIBIT 3.—SLAG FROM PRIMARY COPPER PROCESSING
Plant
A
A
A
.
Soorca
W
PEDCo..
PEDCo-
PEDCo-
Page
No.
App.
B
App.
. B
App.
B
Sample
I.D. (2)
DQ824
DQ826
DQ825
,
Waste Type
• (3) '
Reverberatory
Furnace
Slag.
Furnace Flash
Stag.
New Converter
Slag.
EP/HaO
(4)
, H,0
HiO
HjO
Avg. :...„.„„.„....
Avg./Reg.
Level.
Constituents, Concentrations, Regulatory Levels and Ratios (5)
Per-
cent
Solids
ND
ND
ND
PH
<1,>13.5
- NA
NA
NA
.....
As 5
0.004
0.008
0.01
0007
0.001
BalOO
<0.8
<0.8
<0.8
<08
<0.008
Cdl
0.011
0.029
<0.001
001
0.01
Cr6
<0.002
<0.002
<0.002
<0 002
< 0.0004
PbS
<0.004
0.018
0.004
n nfi
. 0.01
HgO^
0.0015
0.001
0.0015
n nm
0.007
Se1
<0.004
<0.004
<0.004
<0.004
AgS
<0.03
<0.03
<0.03
<0.006
-------
federal .Register / Vol. 54. Mo. 72 ./ Monday. April 17, 1989 / Proposed Rules
15349
EXHIBIT 3;—SLAG ;FROM -PRIMARY CORP.EH PROCESSINO—Continued
Plan
B
B
•B
'C
13.5
NA
NA
.NA
..«»....»......
. NA
NA
NA
NA
NA
NA
NA
NA
NA
As 5
• 0.016
0.008
< 0.006
0.01
•0.002
0.086
1.t8
1.t3
08
•0.2
<0.004
<0.004
<0.004
-------
15350
Federal Register / Vol. 54, No. 72 / Monday, April 17," 1989 / Proposed Rules
EXHIBIT 4.—ACID PLANT SLOWDOWN FROM PRIMARY LEAD PROCESSING
Plant
A
D
Source
(1)
PEI... .
pa, „
Page
No.
5-15
5-15
Sample
I.D. (2>
DR083
DQ238
Waste Type
(3) '
Neut scid
plant
blowdown.
Neut acid
plant
blowdown. '
EP/H20
(4)
EP
EP
Avg./Reg.
Level.
Avg./Reg.
Level.
Constituents, Concentrations, Regulatory Levels and Ratios (5)
Per-
cent
solids
0.01
0.01
pH
<1,>13.5
6.9
11.2
AsS
24.4
4.9
0.005
0.001
BalCO
<0.8
<0.008
0.9
0.009
Cd 1
2.61
2.61
0.014
0.014
Cr5
<0.002
<0.0004
0.007
0.001
Pb5
1.45
0.3
22
4.4
HgO.2
0.0038
0.02
<0.0002
<0.001
Se1
0.089
0.09
0.004
0.004
Ag 5
<0.03
< 0.006
<0.03
<0.006
(1) Ovarviaw of Solid Waste Generation, Management and Chemical Characteristics, Primary Lead Smelting and Refining Industry, PEI Associates, Inc., Cincinnati,
Ohio, November, 1984.
12) Sample number provided in the source document
i SJOoscnption of wasta type provided in the source document
(4) Indicates whether the data provided are for analysis of the sample according to EP toxicity test procedures (40 CFR 261.24) or an analogous procedure in
whfen dckmized water was used as the extraction medium rather than acetic acid. For samples that contain less than 0.5% solids, the methods are equivalent
because no extraction of the sample was performed.
(5) Regulatory levels (in mg/l) shown are those for the hazard criterion presented in this proposal. Highlightsd ratios indicate exceedances of the hazard criterion.
Tha regulatory levels, (except pH) are taken from 40 CFR 261.24 (b) and are 100x the MCLs. Constituent concentrations are in units of mg/1. "<" indicates that the
concentration was below the detection limit; in these instances, the detection timit was used to compute the average concentration.
EXHIBIT 5.—SLAG FROM PRIMARY LEAD SECTOR
Plant
A
A
A
B
' B
Source
(D
PH.™....
PEI..—....
PEI— ...
PEI...—
PEI...__.
Page
No.
"5-19
5-19
5-19
5-19
5-19
Sample
I.D. (2)
DQ230W
,
DQ231W
DQ232W
DQ233VV
DQ234W
Waste type (3)
Granulated
furnace
slag — Active
piles.
Granulated
furnace
slag-
Inactive piles.
Granulated
furnace
slag — Active
piles.
' Granulated
furnace
slag-
Inactive piles.
Granulated
furnace
slag — Active
piles.
EP/H20
(4)
H20
H20
' H20
H20
H20
Avg ...................
Avg./Reg.
Level.
Avg « «...
Avg./Reg.
Level.
Constituents, concentrations, regulatory levels, and ratios (5)
Per-
cent
solids
ND
ND
ND
.«WH...
ND
'ND
pH •
< .> •
NA
NA
,
NA
»«..«..».»...
.NA
NA
AsS
<0.004
<0.004
<0.004
<0.004
<0.0008
<0.004
<0.004
<0.004
<0.0008
BalOO
<0.3
<0.3
<0.3
<0.3
<0.003
<0.3
<0.3
<0.3
<0.003
Cdi
0.024
0.77
0.24
0.4
0.4
0.14
0.059
0.1
0.1
Cr5
<0.002
<0.002
<0.002
<0.002
<0.0004
<0.002
0.005
0.004
0.0007
Pb5
0.115
3.02
0.318
1.2
0.2
0.14
0.027
0.08
0.02
HgO.2
<0.0007
<0.0002
0.0003
0.0004
0.002
<0.0002
<0.0002
<0.0002
<0.001
Se1
<0.002
<0.002
<0.002
<0.002
<0.002
<0.002
<0.002
<0.002
<0.002
Ag5
•<0.03
<0,03
<0.03
<0.03
<0.006
0.03
<0.03
0.03
0.006
-------
Federal Register / Vol. 54, No. 72 / Monday. April 17, 1989 / Proposed Rules
15351
EXHIBIT 5.—SLAG FROM PRIMARY LEAD SECTOR—Continued
Plant
C
C
C
D
D
D
E
' E
F
F
F
F
Source
(D
PEI
PEI
PEI
PEI
PE!
PEI-
PEI _.
PEI
PEL...
PEI
PEL...
PEL.....;..
Page
No.
5-19
5-19
5-19
5-20
5-22
5-22
5-20
5-20
5-20
5-20
5-22
5-22
Sample
I.D. (2)
DQ715W
DQ716W
DQ717W
DR076
DR077
DH078
DR706
DR707
DR949
DR950
DR951
DR952
Waste type (3)
Granulated
furnace
slag — Active
piles.
Granulated
furnace
slag — Active
piles.
Granulated
furnace
slag—
" Inactive piles.
Hot dumped
' blast furnace
slag.
Dezinced slag ...
Dezinced'slag ...
Hot dumped
blast furnace
•' slag.
Hot dumped
blast furnace
slag.
Hot dumped
blast furnace
slag.
Hot dumped
blast furnace
slag.
Dezinced slag ...
Dezinced slag ...
EP/H20
(4)
H20
H20
H20
H20
H20
. H20
H20
H20
H20
H20
H20
H20
^
Avg
Avg./Reg.
Level.
Avg
Avg./Reg.
Level.
Avg
Avg./Reg.
Level.
Avg. .,'.
Avg./Reg.
Level.
Constituents, concentrations, regulatory levels, and ratios (5) i
Per-
cent
solids
ND
NO
ND
ND
ND
ND
ND
ND
ND
ND
ND
ND
nH
r"
<1,>13.5
NA
NA
NA
NA
NA
NA
NA
NA
.NA
NA
NA
NA
As 5
<0.002
<0.002
<0.002
<0.002
<0.0004
0.28
0.31
0.026
0.2
0.04
1.18
1.13
1.16
0.23
<0.004
<0.004
<0.004
<0.004
<0.004
<0.0008
BalOO
0.8
0.3
0.2
o.<
o!4
<0.8
<0.8
<0.8
rf-'fl ft
V.U.O
<0.008
<0.8
<0.8
**f) fl
*^v.o
0.008
<0.4
0.5
<0.4
<0.4
0.425
.00425
Cd1
5.02
2.32
0.17
2e
.t
2.5
0.12
0.025
0.053
n n^
u.u/
0.07
0.032
0.005
n mo
V.V I 3
0.019
0.15
0.061
0.006
<0.001
0.05
0.05
CrS
0.005
< 0.002
<0.002
n npo
U.vUv
0.0006
< 0.002
0.005
<0.002
n oni
U.UUtJ
0.0006
0.01
0.002
n nrtfi
v.UUO
0.001
<0.002
<0.002
<0.002
<0.002
<0.002
<0.0004
Pb5
2.2
1.83
0.083
1 i
l.£
0.3
0.12
0.16
0.15
01
.•I
0.03
0.23
0.17
Of
.£.
0.04
0.12
„
0.071
0.011
0.008
0.05
0.01
HgO.2
<0.00~07
0.0009
0.0039
n nnc
u.uu^
0.01
0.0007
.0.0013
='" «
(2) Sample number provided in the source document '
(3).Description of waste type provided in the source document.' ' ' •
W lndi°ate.s whether the data provided are for analysis of the sample according to EP toxicity test procedures (40 CFR 26
rathet tha"acetic
NA = Not applicable.
ND- = No 'data available.
-------
15352
Federal Register / Vol. 54, No. 72 / Monday, April 17,1989 / Proposed Rules •
EXHIBIT 6.—FURNACE SCRUBBER SLOWDOWN FROM ELEMENTAL PHOSPHORUS PRODUCTION
Plant
1
2
Source.
13.5
2.6
5.98
AS
(5)
0.016
0.003
0.501
0.1
Ba 100
0.71
0.007
0.26
0.003
Cd
(D
3
3
< 0.002
<0.002
Cr
(5)
1.6
0.3
<0.001
<0.0002
Pb
(5)
0.037
0.007
0.004
0.0008
HgO.2
< 0.0004
<0.002
<0.0003
<0.002
Se
d)
0.045
0.045
<0.005
<0.005
Ag
(5)
< 0.002
< 0.0004
<0.002
< 0.0004
(1) Evaluation of Waste Management for Phosphate Processing, PEI Associates, Inc., Cincinnati, Ohio, August, 1986.
(2) Simple number provided in the source document
(3) Description of waste type provided in the source document
(4) Indicates whether the data provided are for analysts of the sample according to EP toxicity test procedures (40 CFR 261.24) or an analogous procedure in
:h dcwnaad water was used as the extraction medium rather than acetic acid. For samples that contain less than 0.5% solids, the methods are equivalent
because no extraction of the sample was performed.
, (5) Regulatory levels (in mg/1) shown are those for the hazard criterion presented in this proposal. Highlighted ratios indicate exceedances of the hazard
Cfrtarion. The regulatory levels, (except pH) are taken from 40 CFR 261.24(b) and are 100x the MCLs. Constituent concentrations are in units of mg/1. "<" inaicates
that tn« concentration was below the detection limit; in these instances, the detection limit was used to compute the average concentration.
NO—No data available - .
EXHIBIT 7—SLAG FROM ELEMENTAL PHOSPHORUS PRODUCTION
Plant
1
1
2
3
Sourco
(1)
PEI.
P£l___
PEI.
PEI.1
Page
No.
126
127
129
130
Sample
1.0. (2)
SS-11
SS-61
SS-11
SS-11
Waste type (3)
Slag soBds
Slag solWs ..._•....
Slag solids
Slag solids..
EP/H2O
(4)
EP
'EP
EP
' EP
•Avg. _..„...... ....
Avg./Reg.
Level.
Avg./Reg.
Level.
Avg./Reg.
Level.
Constituents, concentrations, regulatory levels and ratios (5)
Per-
cent
Solids
ND
ND
ND
ND
pH
<1,>13.5
NA
NA
.. NA
NA
As 5
0.0033
0.012
0.008
0.002
0.0069
0.007
0.001
0.0033
0.0007
BalOO
2.2
2.1
2.15
0.0215
- 0.201
0.2
0.002
0.3
0.003
Cd1
<0.02
0.035
0.028
0.028
<0.02
<0.02
<0.02
<0.02
<0,02
CrS,
<0.01
<0.01
<0.01
<0.002
0.51
0.5
0.1
0.06
0.01
Pb5
<0.84
<0.84
<0.84
<0.17
<0.84
<0.84
0.2
<0.84
<0.2
HgO.2
<0.0004
<0.0004
<0.0004
<0.002
<0.0003
<0.0003
<0.002
< 0.0003
<0.002
Se1
<0.004
< 0.004
<0.004
<0.004
<0.005
<0.005
<0.005
<0.005
<0.005
Ag5
<0.02
<0.02
<0.02
<0.004
<0.02
<0.02
<0.004
<0.02
<0.004
I
which
Evaluation of Waste Management for Phosphate Processing, PEI Associates, Inc., Cincinnati. Onto, August, 1986.
Sample number provided in the source document • . •
Description of waste type provided in the source document
Indicates whether the data provided.are for analysis of.the sample according to EP toxicity test procedures (40 CFR 261.24) or an analogous procedure in
described water was used as the extraction medium rather than acetks acid. For samples that contain less than 0.5% solids, the methocJs are equivalent
Docauso no extraction of the sample was performed.
(5) Regulatory levels (in mg/1) shown are those for the hazard criterion presented in this proposal. Highlighted ratios indicate exceedances of the hazard
ctftonon. Th« regu atory levels (except pH) are taken from 40 CFR 261.24
-------
Federal Register / Vol. 54, No. 72 / Monday, April 17,1989 / Proposed Rules
15353
EXHIBIT 8—PHOSPHOGYPSUM FROM PHOSPHORIC ACID PRODUCTION
Plan
<
i
8
8
9
10
10
11
11
12
12
12
H\
(1)
PEI
PEI
PEI
PEI
PEI
PEI.
PEL.
PEI
PEI
PEI
PEI
PEI
PEI
PEI.........
-
PEI
PEI
'El....
Page
No.
13
13
13
13
'13
13
134
135
135
136
137
137
138
138
139
139
139
Sample
I.D. (2)
GS-11
GS-61
GS-11
GS-11
GS-61
GS-81
GS-11
GS-11
GS-12
GS-11
GS-11
GS-12
GS-11
GS-31
: -
GS-11
GS-12
GS-31
Waste type (3)
Gypsum Solids
Gypsum Solids
Gypsum Solids
Gypsum Solids
Gypsum Solids
Gypsum.Solids
Gypsum Solids
Gypsum Solids
Gypsum Solids
Gypsum Solids.
Gypsum Solids-
Gypsum Solids..
Gypsum Solids-
Gypsum Solids..
••
3ypsum Solids..
3ypsum Solids-
Gypsum Solids..
EP/H20
(4)
E
E
EP
EP
EP
EP
EP
EP
EP
EP
EP
EP
EP
EP
EP
EP
. EP
Avg
Avg./Reg.
Level.
Avg./Reg.
Level.
Avg
Avg./Reg. •
Level.
Avg./Reg.
Level.
Avg.
Avg./Reg.
Level.
Avg./Reg. '
Level.
Avg.
Avg./Reg.
Level.
Avg
Avg./Reg.
Level.
Avg
Avg./Reg.
Level.
Constituents, concentrations, regulatory levels and ratios (5)
Per-
cent
Solid
NC
• NC
ND
ND
ND
ND
ND
ND
ND
ND
ND
ND
ND
,ND
ND
ND
ND
r>H
NA
NA
NA
NA
• NA
. NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
As 5
0.003
. 0.004
0.00
0.000
0.008
0.002
0.002
<0.006
0.011
0 006
0.001
0.01
0.002
<0.006
0.0083
0.007
0.001
0.0039
0.0008
. 0.0063
0.0042
0005
0.001
0.012
0.0071
0.01
0.002
0.014
0.0086
0.011
0.01
0.002
Ba 100
0.05
0.0
0.0
0.000
0.0
0.0008
0.04
0.067
0.067
0 06
0.0006
0.085
•0.0000
0.053
0.06
0.06
0.0006
0.095
0.001
0.072
0.054
0 06
0.0006
0.63
0.55
0.6
0.006
0.47
0.3
0.86
0.5
0.005
Cd1
0.02
0.0
0.0
0.0
0.01
0.02
0.02
0.05
0.063
0.05
0.036
0.04
0.05
0.036
0.04
0.04
0.086
0.09
0.032
0.012
n f\o
0.02
0.15
0.14
0.145
0.145
0.045
0.099
0.048
0.06
0.06
CrS
0.05
0.05
0.0
0.0
0.0
0.0
0.09
0.039
0.036
0.01
0.036
0.007
0.087
0.054
0.07
• 0.01
0.71
0.1
0.031
0.01
0.004
6.18
0.178
. 0.2
0.04
1.4
0.13
1.5
1
. . 0.2
Pb5
<0.08
<0.08
<0.08
<0.0
0.08
0.0
<0.08
0.
0.088
0.02
0.087
0.02
0.104
<0.08
0.1
0.02
<0.084
<0.02
0.084
<0.084
0.02
<0.84
<0.84
<0.84
<0.2
•<0.84
1.5
<0.84
.1
0.2
HgO.2
<0.000
0.000
0.000
0.00
<0.000
<0.00
-------
15354
Federal Register / Vol. 54, No. 72 /• Monday, April 17, 1989 / Proposed Rules
EXHIBIT 9.—AIR POLLUTION CONTROL SCRUBBER SLOWDOWN FROM PRIMARY TIN PROCESSING
PJairt
A
A
Source
(D
PE1™_
pa „_
P«S«
NoY
5-5
5-7
Sample
I.D. (2)
DR 092
OR 091
Waste type (3)
Scrubber Pond
Water.
Scrubber
SoKds.
EP/H20
(4)
EP
H2O
Avg
AvtL/Reg.
Level.
Constituents, Concentrations, Regulatory Levels and Ratios (5)
Per-
cent
Solids
<0.01
ND
PH
<1,>13.5
7.79
ND
As 5
22.9
8.21
15.5
3.1
Ba 100
6.8
2.2
4.5
0.05
Cd 1
0.002
0.004
0.003
0.003
CrS
<0.002
<0.002
<0.002
<0.0004
Pb5
0.01
0.004
0.007
0.001
Kg 0.2
0.0039
0.0006
0.002
0.01
Se 1
0.053
0.05
0.05
0.05
Ags
<0.03
<0.03
<0.03
<0.006
. j . Ov££'|e.w of Solid Waste Generation, Management, and" Chemical Characteristics, Primary Antimony, Magnesium, Tin and Titanium Smelting and Refining
Industries, PEI Associates, Inc., Cincinnati, Onto, December, 1984.
JD Sample number provided In the source document
n Description of waste type provided in the source document
I)i Indicatas whether the data provided are for analysis of the .sample-according to EP toxicity test procedures (40 CFR 261.24) or an analogous procedure :n
dfltomzed water was. used as the extraction medium rather than acetic acid. For samples that contain less than 0.5% solids, the methods are equivalent
because no txtracticn of the sample was performed. •
(5) Regulatory levels (in mg/l) shown are those for the hazard criterion presented int this proposal Highlighed ratios indicate exceedances of the hazard criterion
The regulatory levels (except pH). are taken from 40 CFR 261.24(b) and are 100x the MCLs. Constituent concentrations are in units of mg/l. "<" indicates that the
conc«ntratton was below Uia detection limit; in these instances, the detection limit was used to compute the average concentration.
* NA-Not applicable.
NO-No data available.
• For the reasons set out in the
preamble, it is proposed to amend Title
40 of the Code of Federal Regulations as
follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTES
1. The authority citation for Part 261
continues to read as follows:
Authority: Sections 1006,2002[a), 3001, and
3002 of the Solid Waste Disposal Act. as
amended by the Resource Conservation and
Recovery Act of 1976, as amended (43 U.S.C.
6903, B312(aJ 6921, and 6922).
2. Section 261.4, paragraph (b)(7), is
revised to read as follows:
Exclusions.
§261.4
37 *****
(fa)***
(7) Solid waste from the extraction,
beneficiation, and processing of-ores '
and minerals (including coal), including
phosphate rock and overburden from the
mining of uranium ore. For purposes of
Ihis paragraph, beneficiation of ores and
minerals is restricted to the following
activities: crushing, grinding, washing,
sorting, sizing, drying, agglomerating,
flotation, and heap, dump, tank, vat,' and
ia-situ leaching.
(i) The following solid wastes from the
processing of ores and minerals are
retained within this exclusion:
(A) Slag from primary copper
smelting;
(B) Slag from primary lead smelting;
(C) Red and brown muds from bauxite
refining;
(D) Phosphogypsum from phosphoric
acid production;
(E) Slag from elemental phosphorus '
I production;
(F) furnace scrubber blowdown from
elemental phosphorus production.
(ii) The following solid wastes from
the procesing of ores and minerals are
conditionally retained within this
exclusion, pending collection and
evaluation of additional data:
(A), Barren filtrate from primary
beryllium processing;
(B) Raffinate from primary beryllium
processing;
(C) Bertrandite thickener sludge from
primary beryllium processing;
(D) Process wastewater from primary
cerium processing;
(E) Ammonium nitrate process
solution from primary lanthanide
processing;
(F) Roast/leach ore residue from
primary chrome ore processing;
(G) Gasifier ash from coal
gasification;
(H) Cooling tower blowdown from
•coal gasification;
(I) Process wastewater from coal
gasification;
(J) Bleed electrolyte from primary
copper refining;
(K) Process wastewater from primary
copper smelting/refining;
(L) Slag tailing from primary copper
smelting;
(M) Calcium sulfate wastewater
treatment plant sludge from primary
copper smelting/refining;
" (N) Furnace off-gas solids from
elemental phosphorus production;
(O) Process wastewater from
elemental phosphorus production;
(P).FIuorogypsum from hydrofluoric
acid production;
(Q) Air pollution control dust/sludge
from iron blast furnaces;
(R) Iron blast furncace slag;
(S) Process wastewater from primary
lead smelting/refining;
(T) Air pollution control scrubber
'wastewater from light weight aggregate
production;
(U) Wastewater treatment sludge/
solids 'from light weight aggregate
production;
(V) Process wastewater from primary
magnesium processing by the anhydrous
process;
(W) Process wastewater from primary
selenium processing;
. (X) Process wastewater from
phosphoric acid production;
(Y) Wastes from trona ore processing:
(Z) Basic oxygen furnace slag from
carbon steel production;
(AA) Leach liquor from primary
titanium processing;
(BB) Sulfate" processing waste acids
from titanium dioxide production;
(CC) Sulfate processing waste solids
from titanium dioxide production;
(DD) Chloride processing waste acids
from titanium and titanium dioxide
production;
(EE) Chloride processing waste solids
from titanium and titanium dioxide
production;
(FF) Blowdown from acid plants at
primary zinc smelters; and
(GG) Process wastewater from
primary zinc smelting/refining.
[FR Doc. 89-9125 Filed 4-14-89; 8:45 am]
BILLING CODE 6560-50-M
------- |