10.013
Tuesday
January 23, 1990
Part ill
Protection Agency
40 CFR Parts 260, 261 and 262
Mining Waste Exclusion; Section 3010
Notification for .Mineral Processing
Facilities; Designated Facility Definition;
Standards Applicable to Generators of
Hazardous Waste; Final Rule
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2322 . Federal Register / Vol. 55. No. 15. / Tuesday. January 23, 1990 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260,261 and 262
(SWH-FHL-3399-3; EPA/OSW-FR-SO-013]
Mining Waste Exclusion; Section 3010
Notification for Mineral Processing
Facilities; Designated Facility
Definition; Standards Applicable to
Generators of Hazardous Waste
AGENCY: Environmental Protection
Agency.
ACTION: Final rule. ' .
SUMMARY: Today's final rule removes
five of 20 conditidnally retained mineral
processing wastes from the exemption
from hazardous waste regulations
provided by section 3001lb)(3)(A)(ii) of
the Resource Conservation and
Recovery Act (RCRA), often referred to
as the Bevill exclusion. The five wastes
removed from the Bevill exclusion by
today's final rule are: Furnace off-gas
solids from elemental phosphorus
production, process wastewater from
primary lead processing, air pollution
.control dust/sludge from lightweight
aggregate production, sulfate process ~
waste acids from titanium dioxide .
production, and sulfate process waste
solids from titanium dioxide production.
Wastes removed from the exclusion are
subject to hazardous waste regulations
if they are found to exhibit a hazardous
characteristic or are otherwise identified
or listed as hazardous.
Three wastes previously proposed on •
September 25,1989 (54 FR 39298), for
removal from the Bevill exclusion are
retained under the exclusion by this
final rule. Those three wastes are: (1)
Treated residue from roasting/leaching
of chrome ore; (2) process wastewater
from coal gasification; and (3) process
wastewater from hydrolfluoric acid
production.-The Bevill exclusion also is
retained for 12 of the original 13 other
conditonally retained wastes, which will.
be addressed, along with 5 other Wastes
in a Report to Congress and subsequent
Regulatory Determination by January 31,
1991.
7 Today's rule makes technical , .
corrections to the'definition of
"benefidation" that was promulgated on
September 1,1989 (54 FR 36592) and also
waives the RCRA Section 3010.
notification deadline for mineral
processing facilities that are located in
authorized states and that generate
wastes removed from the exclusion in
the September 1,1989 final rule. Because
of confusion expressed by the regulated
community in response to statements
made in the preamble of the September
1 rule,,today's rule also extends the
RCRA Section 3010 notification deadline
for mineral processing facilities that are
located in unauthorized states and that
generate wastes removed from the
exclusion by the September 1,1989 final
rule; Notification will now be required in
unauthorized states by April 23,1990.
Today's final rule also amends the ,
RCRA Subtitle C definition of
"designated facility" and the standards
applicable to generators of hazardous
waste to clarify the requirements for
completing hazardous waste shipment
manifests for transporting wastes from
one state where they are regulated as
hazardous tp another in which they are
not regulated as hazardous. . .
DATES: Effective Date: July 23,1990. Not
later than April 23,1990, all persons in
unauthorized states who generate,
transport, treat, store, or dispose of
wastes removed from temporary
exclusion by this rule or the September
1,1989 final rule and which are
characteristically hazardous under 40
CFR part 261, subpart C, must notify
EPA of these activities pursuant to
section 3010 of RCRAi
See sections V and VI of the preamble
below for additional dates and details. •
FOR FURTHER INFORMATION, CONTACT:
RCRA/Superfund Hotlne at (800) 424-
9346 or (202) 382-3000, or for technical
information contact Dan Derides or Bob
Hall, U.S. Environmental Protection
Agency, 401M Street, SW, Washington,
DC 20460, (202) 382-3608, or (202) 475-
8814, respectively. ...-••
SUPPLEMENTARY INFORMATION:
Table of Contents
L Introduction . .. • '
A, Context" .
B. Overview of Today's Rule
C Future Activities
II. Analysis of and Response to Public
Comments on Bevill Status of 20 Mineral
Processing Wastes Proposed on
September 25,1989
A. General Comments on EPA's
Application of the Final Beviil Criteria
B. Comments on the 13 Waste Streams
Proposed for Retention
C. Comments on the -Seven Wastes
Proposed for Removal
D. Relationship of the Proposed Ruie.to
Subtitle C of RCRA
•, E. Costs and Impacts of the Proposed Rule
F. Request? ror Clarifications/Technical. •
, Corrections on the September 1,1939, ;
FlnalRule
G. Concerns with Administrative Procedure
M. Revised Application of the Final Criteria '
for Defining Bevill Mineral Processing
Wastes.,... . • •
. A. Clarification of Waste Stream '
Definitions '.
B. Compliance with the High Volume
Criterion
C Compliance with the Low Hazard'
Criterion • ;'"
D. Bevill Status of Conditionally Retained
Mineral Processing Wastes.
IV. Analysis of and Response to Comments
on Clarification to the Definition of
"Designated Facility" and Modification
of. the Standards Applicable to
Generators of Hazardous Waste
A. General Comments on the Proposed
Definition
B. Relationship Between Today's
Clarification and Non-RCRA State
Hazardous Wastes
C. Who Can Qualify as a designated
Facility?
D. Which Standards Apply to Interstata
Shipments
E. Other Comments
F. Manifesting Requirements
•V. Regulatory Implementation and Effective
- Dates of the Final Ride
A. Section 3010 Notification
B. Compliance Dates for Today's Rule
VI. Effect on State Authorizations
VO. Economic Impact Screening Analysis
Pursuant to Executive Order 12291
A. Approach
B. Aggregate and Sector Compliance Costs
C. Economic Impacts -
VIE. Regulatory Flexibility Analysis
DC List of Subjects in 40 CFR 260,261 and 262
L Introduction
A. Context
. Section 3001(b)(3)(A)(ii) of the
Resource Conservation and Recovery
Act (RCRA) temporarily excludes "solid
waste from, the extraction, bensficiation,
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 temporarily interpreted this
exclusion, often referred to as the Bevill
exclusion, to enconipass "solid waste
from the exploration, mining, milling,
smelting and refining of ores and
minerals" (45 FR 76619, November 19,
" 1980),
In response to the decision of the
District of Columbia Circuit Court of
Appeals in Environmental Defense Fund
v. EPA, 852 F.2d 1318, (D.C. Cir. 1988),
cert denied, 109 S.Ct. 1120 (1989), EPA
proposed criteria by which mineral
processing wastes would be evaluated,
for continued exclusion from hazardous
waste regulation until the required
.studies and subsequent regulatory
determination was made. On September
1,1939 (see 54 FR. 36592), E?A provided
the final Bevill. exclusion criteria.
"Twenty mineral processing wastes were
conditionally retained within the scope
of the Bevill exclusion pending the .
analysis of newly collected data. The
Bevill exemption was retained for the
following five mineral processing '
wastes, which will be studied in a
Report.to Congress.
1. Slag from primary capper processing.
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Federal Register / Vol. 55, No. 1& / Tuesday. January 23, 1990 / Rules and Regulations
2323
2. Slag from primary lead processing.
3. Red and brown muds from bauxite
refining. •
4. Phosphogypsum from phosphoric acid
production. • • '•
5. Slag from elemental phosphorus '
production. - -
All of the other mineral processing
wastes that were permanently retrieved
from the Bevill exclusion by the
September 1,1989 rule are subject to
RCRA Subtitle C regulation if they are
solid wastes and exhibit one or more of
the characteristics of hazardous waste
as defined in 40 CFR part 261 or are
otherwise listed as hazardous waste.
On September 25,1989 (34 FR 39298),
EPA Devaluated the status of the 20
conditionally retained wastes. Applying
the high volume and low hazard criteria
contained in the September 1,1989 final
rule, the Agency proposed to
permanently remove seven mineral
processing wastes from the Bevill
exclusion and retain 13 other mineral
processing wastes within the exclusion
for study in a Report to Congress. The
seven mineral processing wastes
proposed for removal from the Bevill
exclusion were?
1. Roast/leach ore residue from primary
chromite production;
2. Process wastewater from coal
gasification;
3. Furnace off-gas solids from elemental •
phosphorus production;
4. Process wastewater from hydrofluoric
acid production;
5. Process wastewater from primary lead
processing;
6. Sulfate process waste acids from
titanium dioxide production; and
7. Sulfate process waste solids from
titanium dioxide .production.
the 13 mineral processing wastes
proposed for temporary retention in the
Bevill exclusion were:
1. Gasifier ash from coal gasification;
2. Calcium sulfate wastewater treatment
plant sludge from primary copper processing;
3. Slag tailings from primary copper
processing:
4. Fluorogypsum from hydrofluoric acid
production; '
5: Air pollution control dust/ sludge from
iron blast furnaces;
6. Iron blast furnace slag; •
' 7. Air pollution control dust/sludge from
lightweight aggregate production; •
8. Process wastewater from primary
magnesium production by the anhydrous
process; •
9. Process wastewater from phosphoric
acid production; ~
10. Basic oxygen furnace and open hearth
furnace air pollution control dust/sludge from
carbon steel production;
11. Basic oxygen furnace and open hearth
furnace slag from carbon steel production;. •
12. Chloride process waste solids from
titanium tetrachloride production; and''
13,: Slag1 from primary zinc processing.
The September 25,1989 notice also
proposed to modify the RCRA subtitle C
definition of "designated facility" for
purposes of clarifying the requirements
for completing hazardous waste
manifests for wastes transported from
one State where they are regulated as
hazardous to another hi which they are
not regulated as hazardous. Under the
proposed modification, if a waste is sent
to an authorized State'where the waste
is not regulated as hazardous, then the
designated facility must be a facility
allowed by the State to accept the
waste. The Agency solicited public
comments on the appropriateness of
these modifications as well as on the
data used to make the proposed Bevill
exclusion decisions.
B. Overview of Today's Rule
Today's final rule establishes the
status of 20 mineral processing wastes
which were proposed either for removal
from or retention in the Bevill exclusion
in the September 25,1989 notice of
proposed rulemaking (NPRM), In
addition, today's rule contains technical
corrections to the September 1^1989
final rule. Furthermore, today's final rule
also promulgates a clarification to the
definition Of "designated facility" that
the Agency proposed on September 25,
1989.
This final rule completes the
rulemaking regarding the Bevill status of
mineral processing wastes until the.
completion of the .required report to
Congress and Regulatory Determination.
In establishing the current status for
these 20.mineral processing wastes, the
Agency has considered information
presented in public comment on the
September 25 proposal together with
additional analysis of. previous EPA
industry survey and field data and,
where appropriate, has modified the
decisions. '
As in the September 25 proposal, the
Agency evaluated the 20 mineral
processing wastes by applying the high
volume and low hazard criteria
contained in the September 1,1989 final
rule, using a three-step process. First,
the Agency applied the high volume
criteria to the available waste
generation data. For each waste, the
Agency obtained facility-specific annual
waste generation rates for the period
1983-1988 and calculated the highest
average annual facility-level generation
rate. Mineral processing wastes
generated above the volume criteria
thresholds (an average rate of 45,000
metric-tons per facility for non-liquid
wastes, and 1,000,000 metric tons for
liquid wastes) passed .the high volume
criterion.
In the second step, the Agency
evaluated each of the 20 wastes with
respect to the low hazard criterion using
the relevant waste characteristics. EPA
considered-a waste to pose a low hazard
only if the waste passed both a toxicity
test (Method 1312) and a pH test
The third step involved consolidating .
the results from the first two steps to
determine the appropriate Bevill status
of the 20 conditionally retained mineral
processing wastes. Applying these
criteria, the Agency is today removing
the Bevill exclusion for the following
five mineral processing wastes:
.1. Furnace off-gas solids from elemental
phosphorus production.
2. Process wastewater from primary lead
processing.
3. Air pollution control dust/sludge from
lightweight aggregate production.
4. Sulfate process waste acids from
titanium dioxide production.
5. Sulfate process waste solids from
titanium dioxide production.
The following 15 mineral processing
wastes are to be retained within the
exclusion (in addition to the five already
retained in the September 1 rule),
pending preparation of a. Report to
Congress and the subsequent Regulatory
Determination:
- 1. Treated residue from roasting/leaching
of chrome ore;
2. Gasifier ash from coal gasification;
3. Process wastewater from coal
gasification;
4. Calcium sulfate wastewater treatment
plant sludge from primary copper processing;
5. Slag tailings from primary copper
processing;
6. Fluorogypsum from hydrofluoric acid
production;
• 7. Process wastewater from hydrofluoric
acid production;
8. Air pollution control dust/sludge from
iron blast furnaces;
ft Iron blast furnace slag;
10. Process wastewater from primary
magnesium production by the anhydrous
process;
11. Process wastewater from phosphoric
acid production;
12. Basic oxygen furnace and open hearth
furnace air pollution control dust/sludge from
carbon steel production;
13. Basic oxygen furnace and open hearth
furnace slag from carbon steel production;
14. Chloride process waste solids from
titanium tetrachloride production; and
15. Slag from primary zinc processing.
Today's rule also contains technical
corrections to the September 1,1989
final rule. The Agency's review of the
final rule, as well as public comments,
revealed slight differences between
portions of the regulatory language and
the corresponding discussion in the
preamble. As a result, today's rule
includes minor editorial changes to the
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2324 Federal Register / VoL 55; No, 15 / Tuesday, January 23.: 1990 / Rules and Regulations
language of September 1 final rule;
These changes are fully described to
Section.IL-
fo addition; EPA is- promulgating a-
clarification to- the definition of
"Designated Facility"' as defined in 40-
CFR 260,10, The Agencyis amending
this definition. for purposes of clarifying
thttKHjtrirenieuta fa
hazardous- waste manifests; for wastes
transported from one State where they
are regulated aa hazardous to anatherin
which they arenotregalatedas
hazardous-. Today's clarification allows
such generators to ship the waste to' a -
facility hi an authorized State in. which
the waste is not yet regulated, as
hazardous, as long as the facility
receiving the wastes is allowed by the-
State to receive the waste. This rale also .
clarifies that it is the responsibility of
the generator to assure that any- out-of-
atate transporter and designated1 facility
sign the manifest form that accompanies
the waste shipment
C. Flilura Activities
This rule establishes the boundaries-
of the temporary- exclusion from
hazardous waste regulations for mineral
processing-wastes provided by RCBA
section 3001(b)(3}(A)(ii). All 20 mineral
processing wastes- for which the. Beritt
exclusion has been retained will- he
subject to detailed atady by EPA.1 The
findings of these studies will be--
contained in a Report to Congress- that
will Be submitted by July 31. ISKW.
Six months ^ftw submission: of this
report, the Agency will publish a-.
Regulatory Determination, stating
whether or not any of the studied .
wastes-will be regulated under Subtitle
C of RCRA as hazardous wastes/, or that
such regulation is unwarranted;,
II. Analysis of and Response to- Public
Comments on BeviE Status of 20-Mlnera?
Processing Wastes Proposed on
September 25, 1989
This section summarizes- and'
discusses the comments- received1 on- the
September 25, 1989 proposal: Irr general,
this discussion is limited to the issues
germane to the September 25 th. proposal.
Comments on. other issues are not
discussed here, except in. a few
instances where- the- Agency believes.it
is important to restate its position to
avoid confusion or misunderstanding in ,
the regulated community;. The Agency .
did review all o£the comments received,
however, and comments* not discussed
here are.summarized hi a background
document in the docket
A General Comments' on EPA's
Application of the Final ffevill Criteria
1. Sources o£ Volume: and Hazard Data
a. Valame-Data. One commenter.
argued that the volume data supporting1
the proposed determinations' of whether
proposed waste streams are-high- volume
lack adequate verifiestiair. Specifically;
the commenter contended that '
tremendous discrepancies are evident
between the data provided by
commenterg- and the data reported from
the 198S-National Survey of Solid
Wastes from1 Mineral Processing
Facilities for the-following four waste
streams: Coal gas process wastewater,
elemental phosphorous furnace off-gas;
soh'ds, lead process wastewater, and
titanium- dioxide sulfate process waste
soh'ds.
EPA agrees that some of the data
reported in the- comments and' the data
from the surveys that were- used in
developing waste volume estimates for
the proposal are not in close agreement
As a result, irr developing today's rule,
the Agency has relied ateoaf
exclusively on data- collected IB the 1089
National Survey of Solid Wastes front
Mineral Processing' Facilities, which was
conducted under RCRA Section 3007
authority,under the assumption, that the
various respondents realize that
submission: of false-data is a punishable
offense The Agency believes that these
are tire moat recent: anrf accurate data
available.
Additional analysis o£ responses ta
the surveys-,, carried out in. response to
these comments, has indicated some
variability in. me way to which.
respondents interpreted, the survey
instructions. la developing the proposed
rule, EPA relied primarily on the
responses to survey question 2.11 {"How
much of the special waste did this- •
processing unit generate in 1988?"J to
derive the average facility waste:
volumes. Additional review of the
survey responses has indicated that in ,
some instances the-volume data that the
Agency expected to be reported in
response to> question 2.11 werein-fact
reported in other, sections of the
questionnaire that requested •
information related to waste treatment
plants, surface impoundments and-other
waste management units (i.e., sections 4
through 8.):*
1 These. Include- the Eva waitei. for whiri-tha
temporary excluilbn was retained in the September
1.1889 find rote «n* th» 15 wastes' for which- the
cxchnlcmUretmtaedlntoday'tnilt.
' Tnis-occurs most often-for the five wastes-that
are covered by this rulemakhi£for which data were
not specifically requested iatheaurvey. Apparently,
a number of facility operators either neglected to
read, misunderstood, or ignored the instruction-to
provide information on way waate that they
As a consequence, EPA has been
careful to select the response to the
appropriate survey question (which
sometimes is not question 2.11} in
developing today's final rule. For
example, the appropriate waste volume
data were sometimes provided in
response to question 4.18 ["What was.
the quantity of sludge/solid outflows
from this wastewater treatment plant in
1988?"!, question 5.8 ["Approximately
how much of the total amount of
accumulated sludge/sollda in this
surface impoundment on December 31*
1988 was added during 1988?"], or
question 8k4 ("What were the inflows to
this waste management unit and what
was the quantity of each inflow hi
19887"). In those cases where responses
to questions contained in sections 4
through 8 of the survey have been
selected for use by the Agency, the
responses are in much better agreement
with the data provided in comments. In
a number of cases, as discussed more
fully in. section: m, below, estimated
waste generation rates have been
revised, and in fact, in a few instances,
the Agency's evaluation of whether
particular waste streams comply with
the high volume criterion has been
reversed. Documentation addressing the
Agency's calculation of waste volumes
can be found in the docket supporting
this final rule.
The commenter also criticized the
Agency for liberally granting
Confidential Business Information (CBI}
designations to responses submitted by
industry respondents to the National
Survey. These designations, they
claimed, have impeded independent
verification of the volume data, noting
that for residue from roasting/leaching
of chrome ore and titanium dioxide
sulfate process waste acids, all of the
facilities generating these waste streams
designated their relevant survey data as
CBI. The commenter stated that if the
public is unable to scrutinize these data
because of their confidentiality, then, the
Agency should make a professional
verification of the information provided.
Under the provisions of section 3007*
of RCRA. facilities providing
information to EPA can designate
information, in whole or in part, as CBI.
EPA has not automatically granted
claims for CBI status. Rather, EPA
reviewed the CBI claims made for data
submitted by mineral processing
facilities in support of this rulemaking
and. when claims for CBI status
appeared excessive, requested, often
successfully, that the CBI claims, be
considered eligible for Bevitt status-, irrespective of
whether itwas onEPA's preliminary list.
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Federal Register / Vol. 55. No. 15 / Tuesday. January 23. 1990 / Rules and Regulations 2325
reduced or eliminated. In addition, EPA
has included aggregated CBI data in the
publicly available documentation
supporting the development of today's
rule to the extent that this could be done
without revealing company-specific CBI
information.
As discussed above, facilities that
submit either CBI or noh-CBI data
requested by EPA under RCRA 3007
authority are subject to enforcement
action if they submit false data. As a
result, the Agency believes that data
collected under Section 3007 authority
can be relied upon without additional
verification, regardless of whether it is
CBI or not In addition, as a practical
matter, the schedule required by the
Appeals Court for this rulemaking did
not provide the time needed to conduct
such verification.
One commenter stated that for some
of the wastes of interest, EPA volume
determinations are. based on a fraction
of those facilities generating the waste.
As a result, the commenter contends,
EPA lacks a sufficient basis for
determining whether proposed wastes
meet the high volume criterion. In
instances where EPA lacks data on
more than 25 percent of the facilities
generating the waste, the commenter
believes mat EPA should not make a
volume determination without
determining whether the facilities
providing the volume data are
representative of the industry; the
Agency should also attempt to obtain
data on the remaining facilities. The
commenter maintained that in the
absence of survey data, EPA should not
rely completely upon data provided in
public comments.
EPA responds that, as dicussed above
and in more detail in Section III of this
preamble, further analysis of the survey
data has shown that the survey
responses do in fact provide adequate
waste volume data for all but one of the
20 mineral processing wastes covered
, by today's rulemaking. With the
exception of this one waste, waste
volume data are available in the survey
for far more than 25 percent of the
facilities generating the waste. For the
one waste with limited data available in
the survey, basic oxygen furnace and
open hearth furnace air pollution control
dust/sludge from carbon steel"
production, data provided by the
American Iron and Steel Institute (AISI)
were used for the volume determination.
These data were verified through
comparison with the survey data that
were provided for several of the
facilities for which AISI also provided
volume data. '
b. Hazard Data. Several commenters
argued that the Agency used too few
samples, especially when results were
inconsistent, or neglected to sample -
inactive facilities for determining the
hazard of waste streams. As a result, the
commenters argued, the samples were
not representative of the entire industry.
Other commenters contended that many
inconsistencies in the waste sampling
data were overlooked in making
proposed exclusion decisions.
EPA responds that, as clearly stated
in the September 25,1989 NPRM, the
low hazard criterion was established in
the September 1,1989 final rule and is
not subject to public comment at this
time. For further discussion of the
development and application of the low
hazard criterion, refer to 54 FR 38592. In-
applying the final Bevill low hazard
criterion, EPA has not ignored any
apparent inconsistencies or widely
varying concentrations. The low hazard
criterion is applied using the lower 80
percent confidence interval that as a
practical matter, allows for one or more
samples to exhibit contaminant
concentrations above relevant
standards, without disqualifying the
waste for Bevill status. Inactive facilities
were not sampled because they are
affected by today's rulemaking only if in
the future they resume operation or
actively manage historical
accumulations of wastes for which the
Subtitle C exemption is being removed
by today's rule. The Agency believes
that it would be inappropriate and
impractical to consider these
speculative future activities in
developing today's rule. (For further
discussion see 54 FR 38595-38597.)
Another commenter disputed EPA's
use of data submitted by waste
generators for the low hazard
determinations, stating that the use of
these data contradicts the criteria set in
the September 1.1989 rule.
As explained hi the preamble to the
September 1.1989 final rule, EPA
established that low hazard
determinations are to be based on EPA
Method 1312 data unless
i. The waste is generated at five or more
facilities; and
ii. Substantial additional relevant data are
available and the preponderance of these
additional data indicate that the waste ,
should be considered low hazard, '"here:
a. Relevant data are denned as data that
result from analysis of waste extracts '- •
obtained by EPA Methods 1310,1311, and
1312, ASTM Test Method D3987-81, or
comparable procedures that Agency has
reason to believe produce reliable and
representative data; and
b. To be considered substantial the
additional data must characterize the waste
at 3 plants (other than those two plants • •'._•
where- Method 1312 results exceed 100 times
the MCLs) or at least half of the facilities that
generate the waste (other than those two
plants where Method 1312 results exceed 100
times the MCLs), whichever number of plants
is larger. (54 FR 36630)
The Agency wishes to point out that
there is no explicit or implicit
assumption in this low hazard criterion
about the source of the data that the
Agency is to use hi making low hazard
determinations. Accordingly, EPA has
used available Method 1312 data
regardless of source (e.g., EPA, industry)
. in making low hazard determinations in
today's rule (and. indeed, the September
25,1989 proposal).
B. Comments on the 13 Waste Streams
Proposed for Retention
This section discusses comments
received on each of the 13 mineral
processing wastes for which EPA
proposed to retain the Bevill exemption.
The comments received on each of the
wastes generally are presented under
one of three subheadings: Processing
Criterion/Waste Definition, Volume, or
Hazard. These subheadings appear only
when they are relevant to comments
identified for the waste being discussed,
so for many of the 13 wastes, one or
more of the subheadings are not
• included.
1. Gasifier Ash From Coal Gasification
One commenter supported EPA's
proposed retention of gasifier ash from
coal gasification within the Bevill
exclusion.
2. Calcium Sulfate Wastewater
Treatment Plant Sludge From Primary
Copper Processing
One commenter agreed with EPA's
proposed determination that calcium
sulfate wastewater treatment plant
sludges from primary copper processing
are high volume, low hazard materials
and, thus, qualify for the Bevill
exclusion and further study.
a. Processing Criterion/Waste
Definition. One commenter asserted that
no rational basis exists for
distinguishing between calcium sulfate
and sodium hydroxide sludges, arguing
that both are generated hi identical
treatment plants, and both are
reprocessed hi the primary copper
processing operation to recover
additional copper. The commenter
indicated that the only difference
between the two sludges is the type of
reagent used (lime or sodium hydroxide)
to neutralize acidic aqueous streams
that enter the treatment plants. The
commenter reasoned that the only
explanation for this disaggregation is the
amount of sludge resulting from use of
the different neutralizing reagents.
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'2326- ^Federal. Register,;/ Vol. 55* .No. 15 / Tuesday, January 23, 1990"/ .Rules and Regulations
The Agency has considered the
comment and finds these arguments
unconvincing. EPA believes that the
.type of reagent used is an important
factor in determining the chemical
nature and quantity of the sludge
generated* As explained in the preamble
to the April, 1989 proposed rule (54 FR
15316), EPA believes that there are
significant differences between these
materials, and accordingly, has retained
. this distinction in today's final rule.
b. Volume. Three commenters
addressed the volume data for this
waste. One commenter agreed with
EPA's, determination that calcium
aulfate wastewater treatment plant
sludge meets the high volume criterion.
Another commenter contended that all
wastewater treatment plant sludge from
primary copper processing should be
studied under the Bevill Amendment. If
the generation rates for calcium sulfate
and sodium hydroxide.sludges are.
added, they noted, the resulting average
is above the 45,000 metric ton-per year
cutoff. The third commenter claimed
that public comment data submitted by
waste generators and survey data for
those same wastes are not consistent
The third commenter noted that, in
, public comments, industry submitted an
average annual generation rate for ,
calcium sulfate wastewater treatment
plant sludge from primary copper
processing of 75,750 MT/yr (comments
of Kennecott Utah Copper on October
20.1988 NPRM), while according to. ,
EPA's survey data, the average .
generation rate for this waste stream •
was 1,179,341 MT/yr. Because these
data are not in agreement, the third
commenter concluded that all of the
volume data are suspect, especially
, when EPA had previously estimated an
annual generation rate of 38,033 MT/yr,
a volume that would not have supported
a high volume determination.
The Agency agrees that the volume
data cited by the commenter appear to
be inconsistent. The Agency has
reviewed the survey, data and found that
these apparent inconsistencies arise
from the fact that appropriate waste .
volume data sometimes were reported in
sections 3 through 6 of the- '...-'
questionnaire, rather than section 2,.
which v is used to develop average
volume data for the proposed rule. As a
result, these differences have-since been
resolved and are explained in Section
HI, below, and a background document
in the docket, which present the
Agency's revised waste generation
estimates. Finally, EPA's previous
vojlume estimate of approximately 33,000
MT/yr average per facility was based
on an aggregation of calcium sulfate and
sodium hydroxide sludge,-which the
Agency has concluded is .
inappropriate. * .
c. Hazard^ Two commenters.
addressed the hazard level of calcium
sulfate wastewater treatment plant
sludge from primary copper, processing.
One agreed with EPA's proposed . .
determination that the waste meets
EPA's low hazard criterion. However,
another commenter asserted that EPA's
sampling data demonstrated that
calcium sulfate wastewater treatment
sludge from primary copper processing
exhibits the hazardous waste
characteristic of EP-toxicity for arsenic,
cadmium, and selenium, and questioned
why it was not proposed for removal
from the Bevill exclusion on that basis
alone.
EPA finalized the low hazard criterion
in the September 1,1989 rule, and is not
entertaining comments oh it. The
Agency's rationale for the low hazard
criterion is outlined in 54 FR 36592. As
discussed hi the September 25,1939
proposal, the-waste does not exhibit
levels of toxic constituents above those
established by the September 1,1989
; final rule. :
3. Slag-Tailings From Primary Copper
Processing
Two commenters supported EPA's
proposed.retention of slag tailings from
primary copper processing for farther. "
study, asserting that EPA properly
determined the waste to be high volume
and low hazard.
a.-Processing Criterion/ Waste
Definition. One commenter stated that'
3t it) facility, slag tailings are produced
when the ore input to the mill is
supplemented with slag from the
facility's primary copper smelting
operations. Because the slag tailings
caiu-ot be differentiated from the ore
tailings, the commenter argues that the
Bevill exemption, as either a processing.
waste or a faeneficiation; waste, should
be retained for the slag tailings.
While EPA plans to study copper slag
tailings in a report to Congress, EPA
disagrees with the commenter's
contention that the fact that the waste is-
generated in-combination with a
becsficiation waste is relevant to the'
decision that inclusion in the report to
Congress is appropriate; The Agency
has decided to include this waste in the
report to Congress because'it is a
1 Available data indicate that sludge resulting
from treatment of wastewaters from primary copper
processing using sodium hydroxide is generated in
much smaller volumes than calcium sulfate sludges '
resulting from treatment with time. An a result, an
average annual sludge volume that includes both
types of siddges is significantly lower than one that
Is based only- on calcium sulfate sludge. _ ~.
mineral processing waste that is both
high volume and low hazard according
to the criteria previously established.
The Agency will, however, examine the
. current practices that involve co-
management of a beneficiation waste
and a mineral processing waste in the
report to Congress.
b. Volume. Three commenters
concurred that slag tailings from
primary copper processing meet EPA's
high volume criterion. One commenter
submitted complete volume data for this
waste stream in the Survey, stating that
it generates more than a million metric
tons per year of the waste stream.
Another commenter claimed that about
3,700,000 short tons of tailings, of which
approximately 22,000 short tons ware
slag tailings, were generated by its
facility.
4. Air Pollution Control Dust/Sludge
From Iron Blast Furnaces
One commenter asserted that the
Agency's proposal for retention of iron
and steel industry wastes within the.
Bevill exclusion is fully supported by the
data. These wastes are mineral
processing wastes, and they, meet the
criteria as high volume, low hazard
wastes.
5. Iron Blast Furnace Slag
One commenter asserted that the
Agency's proposal for retention of iron
and steel industry wastes within the
Bevill exclusion is fully supported by the
data. These wastes are mineral
processing wastes, and they meet the
criteria as high volume, low hazard
wastes.
6. Basic Oxygen Furnace and Open
Hearth Furnace Air Pollution Control
Dust/Sludge From Carbon Steel
Production
One commenter asserted that the
Agency's proposal for temporary
retention of iron and steel industry
wastes within the Bevill exclusion is
fully supported by the data. These
wastes are mineral processing wastes,
and they meet the criteria as high
volume, low hazard wastes.
One commenter argued, however, tnai
EPA's volume data is incomplete,
because for some,wastes, the volume
determinations are. based on only a
fraction of the facilities generating .the
waste. In the case of basic oxygen and
open hearth furnace APC dust/sludge
from carbon steel production, the
commenter maintained that EPA based
its volume determination on data from
only four of 27 facilities. The commenter
argued that the Agency made no effort
to determine if these few facilities were
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Federal Register / Vol. 55. No. 15 / Tuesday, January 23. 1590 /Rules and Regulations 2327
representative of the industry in general,
or if the facilities-were unusually large
or small and would skew the data.
In response to this comment, EPA ha*
carefully reviewed all data available ..
from the industry survey and from other
sources. The Agency's revised waste
generation estimate (presented in
Section III, below), is based upon data
obtained from the vast majority -of
active carbon steel facilities. These data
show that this is a high volume waste, :
7. Basic Oxygen Furnace and Open
Hearth Furnace Slag From Carbon Steel
Production
One commenter asserted that the
Agency's proposal for temporary
retention of iron and steel industry
wastes'within the Bevill exclusion is .
fully supported by the data. These
wastes are mineral processing wastes,
and they meet the criteria as high •
volume, low hazard wastes.
8. Fluorogypsum From Hydrofluoric '
Acid Production . .
a. Volume, One commenter agreed
with EPA's proposed determination that
fluorogypsum from hydrofluoric acid
production meets the high volume
criterion.
b. Hazard, One commenter agreed
with EPA's proposed •determination that
fluorogypsum meets the low hazard
criterion.
9. Air Pollution Control Dust/Sludge
From Lightweight Aggregate Production
a. Volume. One commenter argued
that EPA's volume data are incomplete,
because for this waste, the volume
determination was based on only a
fraction of the facilities generating the
waste. The commenter maintained that
EPA based its volume determination for
lightweight aggregate APC dust/sludge
on data from only six of the 28 facilities
it believes to generate the waste. The
commenter argued that the Agency
made no effort to determine if these few
facilities were representative-of the
industry. ' '
In response to this comment, EPA has
carefully reviewed all data available
from the industry survey and from other
sources. The Agency's revised waste
generation estimate (presented in
Section HI, below], is based upon data
obtained from the majority of active
lightweight aggregate production
facilities. These, data show that this is
not a high volume waste.
10. Process Wastewater From Primary
Magnesium Production by the
Anhydrous Method
a. Hazard. One commenter questioned
EPA's decision not to propose for
removal from the Bevill exclusion-
process wastewater from primary
magnesium processing by the anhydrous
method even though EPA's sampling
demonstrated that the waste exhibits
the hazardous waste characteristic of
corrosivity (pH level of 1.22). EPA
should, they contended, furtherconsider
this data in preparing its Report to
Congress.
•The Agency generally agrees with the
commenter that relevant hazard data
should be considered in the study of the
waste stream when preparing the Report
to Congress. However, EPA finalized the
low hazard criterion in the September 1,
1989 rule, and is not currently
entertaining comments on it The
Agency's rationale for the low hazard
criterion is outlined hi 54.FR 36592. As
discussed in the 9/25/89 proposal, the
waste does not exhibit a pH below the
Bevill hazard criterion value of i.
11. Process Waatewater From
Phosphoric Acid Production
Four commenters stated that EPA
correctly proposed that process
wastewater from phosphoric acid
production be retained within the scope
of the Bevill Amendment-and that EPA .
should retain this waste within the
Bevill exclusion in the final rule.
a. Processing Criterion/Waste
Definition. One commenter argued that
process water rerirculated in the
phosphate complex, including the
gypsum stacking system, is not
discarded. Process water's nutrient
value, which is extracted for fertilizer
products, and its utilization as a coolant
and transport medium, are not activities
that should cause it to be classified as a
solid waste as defined by the Resource
Conservation and Recovery Act
EPA responds that the definition of
solid waste is an issue that is not open
for comment in connection with today's
rulemaking. EPA wishes to point out
however, that the issue of when cooling
water is a solid waste has been
discussed in previous rulemakings.
Specifically, in the preamble to die
January 4,1985 (50 FR 614) final rule that
established the current definition of
solid waste, the Agency indicated that
cooling water managed entirely in a
closed-loop system was n«t considered
to be reclaimed and, thus, would be
eligible for the closed-loop exclusion.
The Agency also indicated, however,
that secondary materials managed in
impoundments would not be eligible for ;
the closed-loop exclusion. In addition,
the surface impoundments collecting
cooling water off of gypsum stacks are
waste treatment units; further indication
that the contents are solid-wastes. •
(i) Comments on phosphogypsum
transport water. One commenter
supported EPA'a inclusion of the water
used to transport phosphogypsum within
the definition of process wastewater
from phosphoric acid production.
(ii) Comments oh stack runoff. Three
commenters argued that "stack runoff
should be included in the definition of
process wastewater from phosphoric
acid production. One commenter
maintained that stack runoff is
comprised of "phosphogypsum
transport" water, which is specifically
included in the definition of process
wastewater from phosphoric acid
production. The commenter further
stated that the definition of process
wastewater from phosphoric acid
production, which includes "several
points in the wet process," is intended to
include all process wastewater
generated at all points within that
process. A second commenter reasoned
that just as process wastewater
managed hi. a pond that receives
precipitation continues to be process
wastewater, gypsum transport water
that is temporarily trapped within a
gypsum stack and receives precipitation
continues to be gypsum transport water.
The commenter also indicated that
because runoff from dry stacks is not
hazardous, and as runoff from wet
stacks contains transport water which
has been retained, stack runoff should
also be retained within .the Bevill
Amendment
One commenter noted that comments
from previous rulemakings and other
documents may have led to the incorrect
impression that phosphogypsum stack
runoff standing alone exhibits
characteristics of hazardous waste. The
commenter also indicated that they
believe the Agency has resolved this
issue satisfactorily, however, by
including water used for
phosphogypsum transport, in the
description of phosphoric acid process
wastewater included in the proposed
rule. The commenter further concluded
that because only the phosphogypsum
transport water entrained in
precipitation runoff from
phosphogypsum stacks ever exhibits
characteristics of hazardous waste,
EPA's proposal to include
phosphogypsum transport water within
the scope of the Bevill Amendment
resolves the issue of the status of
precipitation runoff.
(iii) Comments on uranium recovery
wastewater. Gommenters noted that the
uranium recovery step of phosphoric
acid production follows the reaction of
phosphate rock and sulfuric acid and
precedes the concentration and ..
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2328 .Federal Register / Vol. 55. No. 15- / Tuesday, January 23.. 1990 / Rules and Regulations
purification steps required to produce
commercial grade, also known as
merchant grade, phosphoric acid. Two
commenters argued that the process
wastewater generated from the uranium
recovery step of phosphoric acid
production must be considered a '
component of "process wastewater from
phosphoric acid production" and, thus,
proposed it for retention within the
Bevill Amendment
(iv) Comments on process wastewater
from animal feed production. Two
commenters maintained that process
wastewater from animal feed production
should be included in the definition of
process wastewater from phosphoric
"acid production and thus-retained in the.
Bevill exclusion. One commenter
claimed animal feed process
wastewater, standing alone, meets the .
Agency's high volume and low hazard
criteria. This commenter further argued
that the production of animal feed
constitutes mineral processing, citing the
following reasons: (1) Three key animal
feed ingredients (dicalcium phosphate,*
mono- and dicalcium phosphate, and
defluorinated phosphate rock) are
produced from beneficiation of either
phosphate rock or limestone; (2)
processing removes and/or enhances
the characteristics of either beneficiated
phosphate rock or limestone; (3) none of
the materials used is a scrap material;
(4) the processes produce final mineral
• products; and (5) no combination with
non-mineral products is involved. ' •
Therefore, the commenter argued,
process wastewater from such
production should be retained within the
scope of the Bevill Amendment
The commenter also addressed
several aspects of the production •
process. The commenter argued that the
defluorination step in animal feed
production should not prevent process
wastewater from animal feed production
from remaining within the Bevill
exclusion. The production of
defluorinated phosphoric acid involves
essentially the same process as the
production of undefluorinated
commercial grade phosphoric acid.
Defluorination is only an additional step
in acid production in which fluorides are
removed from the acid by heat and the
addition of a silicon mineral to facilitate
removal of fluorine. No meaningful
distinction can or should be made
* regarding defluorinated phosphoric acid
simply because defluorination.pccurs
before or after concentration to
commercial grade strength.
The commenter further argued that
the production of monoammonium
phosphate, an animal feed product
constitutes mineral processing, even .
though the process makes use of
ammonia, a non-mineral ingredient The
commenter indicated that ammonia is
added to defluorinated commercial
grade phosphoric acid in a granulation
process, involving approximately 7,000
gallons per minute of phosphoric acid
production process water for particulate
scrubbing. The commenter maintained
that this amount of water is
"infinitesimal" compared to the mineral
processing process wastewater
generated on a daily basis, and thus this
small granulation process.should be '
considered co-management and
monoammonium phosphate process
wastewater-should be included within
the Bevill exclusion of phosphoric acid
process wastewater.
The commenter maintained that, if
EPA determined that returning to its
source the 7,000 gallons per minute of
phosphoric acid process wastewater
used during feed grade monoammonium
production would result in the removal
of the entire phosphoric acid process
wastewater system from the Bevill •
Amendment the production of feed
grade monoammonium phosphate would
be ceased and the product removed
from the market .
(v) Comments on superphosphate
wastewater. One commenter contended
that process wastewater from
superphosphate production should be
retained within the scope of the Bevill
Amendment The commenter argued
that data submitted by industry in the
' mineral processing survey demonstrates
that this waste from superphosphate
production meets the high volume and
low hazard criteria. In addition, the
commenter claimed that superphosphate
production meets the relevant aspects of
the EPA mineral processing definition,
stating that the production of
superphosphate rock involves the direct.
reaction of phosphate rock with dilute,
not merchant grade, phosphoric acid.
(vi) Comments on ammoniated
fertilizer wastewater. Two commenters
argued that process wastewater
generated in the production of
ammoniated phosphate fertilizers (APF)
should be retained within the 'scope of
the Bevill Amendment The inclusion of
phosphoric acid process wastewater
wjthm the scope of the Bevill -
Amendment should, they contended,
resolve the issue of whether APF ..
process wastewater is included. The
influent water, to the ammoniated
phosphate fertilizer process is the
process wastewater from phosphoric
acid production, which remains under
the Bevill exclusion/ The commenter
claimed that if APF process wastewater
exhibits hazardous characteristics, it ia
solely because process wastewater from
phosphoric acid production is used in
APF production; The commenter further
argued that the entire APF production
process should not be removed from the
Bevill exclusion, when the cause of the
hazardous characteristic is phosphoric
acid wastewater, which is covered
, under .the Bevill exclusion.
• (vii) Comments on sulfuric acid
wastewater. One commenter contended
that captive sulfuric acid production
involves mineral processing and is
absolutely essential to the production cf
phosphoric acid by the wet process. The
commenter urged EPA to either clarify
.that sulfuric acid.wastewater produced
as a result of sulfuric acid production is
part of phosphoric acid process
wastewater or revise its interpretation
of the mixture rule so that such process
wastewater can continue to be managed
in the sound and cost-effective manner
practiced today.
.. (viii) Response to Comments. In the
proposal, EPA noted that process
wastewaters are generated at several
points in the wet process, included
phosp'hogypsum transport, phosphoric
acid concentration, and phosphoric acid
. temperature control and cooling. (See 34
FR 39303.) As stated previously, the
Agency did not intend to imply that
these were the only sources of process
. wastewater from phosphoric acid
operations.
The Agency has carefully, considered
the comments and, based on the
information available, agrees, for the
reasons described in the comments, that
phosphogypsum stack runoff, process
wastewater generated from the,uranium
recovery step of phosphoric acid
production, process wastewater from
animal feed production (including
defluorination but excluding
ammoniated animal feed production),
and process wastewater from
superphosphate production are also the
result of mineral processing operations
and should be considered part of .
process wastewater from phosphoric
acid production.
As discussed on September 1 (see 54
FR 36621), the Agency does not consider
the-production of ammoniated
phosphate fertilizer from phosphoric
acid and ammonia to be a mineral.
processing operation. For the same
reasons, the Agency does not consider
the production of ammoniated animal
feed from phosphoric acid to be a
mineral processing operation. As also
discussed on September i (see 54 FR
36623), the Agency does not consider
wastes from sulfuric acid production to
be part phosphoric acid process
wastewater. • •-.-.• . ..'• •'• , •:'.'.'
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Federal Register / Vol. 55, No. 15 / Tuesday, January 23, 1990 / Rules and Regulations 2329
b* Volume. A commenter stated that
the data collected by the Agency at its
facility .and similar facilities indicate- <
that the process wastewater meets
EPA's high volume criterion.
c. Hazard. Two commenters
addressed the hazard level of this
waste. One supported EPA's proposed
determination that process wastewater
from phosphoric acid production meets
the low hazard criterion. However, one
commenter questioned why the waste
stream was not proposed for removal
from the Bevill exclusion because EPA's
sampling data showed that process
wastewater from phosphoric acid
production exhibits the hazardous waste
characteristic of corrosivity (pH values
of 2.0,2.1,1.8. and 1.5). EPA should, they
maintained, further consider this data in
preparing its Report to Congress.
The Agency generally agrees with the
commenter that relevant hazard data
should be considered in the study of the
waste stream when preparing the Report
to Congress. However, EPA finalized the
low hazard criterion in the September 1,
1989 rule, and is not entertaining-
comments on it The Agency's rationale
for the low hazard criterion is outlined
in 54 FR 36592. The waste passes the pH
criterion described in that rule.
12. Chloride Process Waste Solids From
Titanium Tetrachloride Production
One commenter agreed with EPA's
proposal to retain chloride process
waste solids from titanium tetrachloride .
production within the Bevill exclusion.
a. Processing Criterion/Waste
Definition. One commenter claimed that
EPA, in its description of the "chloride
* process waste solids from titanium
tetrachloride production" in the
proposal, described only the "chloride"
process for manufacturing titanium
dioxide and not the "chloride-ilmenite"
process. The Agency stated mat "the
chloride process involves fluidized
. roasting and chlorination of rutite,
synthetic rutile, slag or beneficiated
ilmenites." This statement, according to
the commenter, essentially describes the
"chloride" process that uses "high-
grade" ores or beneficiated ores as
feedstocks; the chloride-ilmenite
process, in contrast, uses "low-grade"
.ores as the principal feedstock for its
process.
In addition, the commenter contended,
the Agency incorrectly stated that the ~
product formed is "titanium
tetrachloride." This may be true of the
"chloride" process that uses "high-
grade" ores or previously beneficiated
material, but is only partially true of the
chloride-ilmenite process. In the • ••'
"chloride-ilmenite" process, the- •
commenter continued, gaseous iron
chlorides are generated first and are
subsequently condensed into iron
chloride-"waste-acids". This is the
"beneficiation" process. After this, the
titanium in the ores is converted at a
much slower rate into .titanium
tetrachloride. Both of these processes,
however, occur in a continuous, "one-'
step" operation. The titanium
tetrachloride generated by the chloride-
ilmenite process is then used as the .
feedstock for the ultimate production of
titanium dioxide. The commenter
expressed concern that EPA appears to
incorrectly consider the "chloride-
ilmenite" process to be covered within
the "chloride process," for which the
"mining waste exclusion" was
eliminated for "chloride processing
waste acids" hi the September 1,1989
final rule. The commenter objected to
this conclusion because the chloride-
ilmenite process should not be "lumped"
with a process that is clearly and
substantially different, noting that the
distinction between the two processes
has been recognized since at least 1970.
The commenter claimed that its titanium
dioxide plants could be materially and
adversely affected by EPA's
determinations regarding whether or not
"chloride-ilmenite" plants are
considered "beneficiation" versus
"processing" facilities. The commenter
also claimed its "chloride-ilminte"
process is not covered by either of the
Agency's rulemakings (Sept 1 and Sept
25,1989), and thus would be covered by
an upcoming "special study" for
beneficiation wastes. The commenter
urged EPA to make a determination that
the "chloride-ilmenite" process is one. of
beneficiation of low grade ilmenite ore
and "chlorination" and should be made
subject to the upcoming RCRA 8002(p)
special studies to determine the
appropriate waste management
requirements.
In response to these comments., EPA
reviewed the court opinions and related
EPA effluent limitation guidelines cited
by the commenter for precedents for
considering the chloride-ilmenite
process to be significantly different from
the conventional chloride process. The
Agency also referred to written
comments submitted by the same
commenter hi response to previous
proposed rulemakings addressing the
scope of the Mining Waste Exclusion.
Based upon this review, EPA agrees
with the commenter that the chloride-
ilmenite process is different than the .
conventional chloride process in that •
ilmenite ore used as the feed stock to '
the process contains much larger
quantities of iron, which must be:
removed, than the feed stocks irsed by
other chloride processes. In addition,
EPA agrees that, hi part, the chloride-
ilmenite process involves beneficiation
of ores or minerals. Nevertheless, the
Agency continues to believe that it is
reasonable to consider the chloride-
ilmenite process to be a part of the
general "chloride process" category for
purposes of this rulemaking because the
process destroys the identity of the
mineral, produces titanium tetrachloride
gas (a saleable mineral product), and
generates wastes which are functionally
identical to, although larger hi volume
than, the wastes generated by other
chloride process facilities. Moreover,
because the "beneficiation" wastes and
the "processing" wastes generated by
the chloride-ilmenite process are
inseparable, according to EPA effluent
guidelines development documents and
as argued by the~commenter, the Agency
concludes that the "chloride-ilmenite"
process must be considered a mineral
processing operation for purposes of this
rulemaking.-
The Agency also notes that the
commenter's contention that the
"chloride-ilmenite" process is not
covered by the description of the
chloride process provided in the
September 1,1989 final or the September
25,1989 proposal is incorrect While the
description of the chloride process
provided hi these rules does not
describe the "chloride-ilmenite" process
hi detail due to Confidential Business
Information claims made by the
commenter, the Agency has clearly
considered this process to be one of the
several chloride processes covered by
these previous rulemakings and,
therefore, this rulemaking as well/This
fact is clearly demonstrated by the
inclusion of the commenter's facilities in
the background documentation for these
rulemakings. Accordingly, all solid
wastes generated by this process are
subject to EPA's reinterpretation of the
Mining Waste Exclusion, including this
rulemaking. .
b. Volume. One commenter agreed
with EPA's determination that chloride
process waste solids satisfy the high-
volume criterion. Another commente'r
submitted volume data, claiming that
the waste streams from the "chloride-
ilmenite" process are generated at over
1,400,000 and 600,000 tons annually in
. two facilities.
c; Hazard. One commenter agreed
with EPA's determination mat chloride
process waste solids satisfy the low-
hazard criterion.
13. Slag From Primary Zinc Processing
One commenter asserted that EPA
properly applied the high volume/low
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Federal Register / Vol. 55, No-. 15 / Tuesday,, fanuary- 23; 199Q / Rules and Regulations
hazard criteria to> sfag from primary zine
processing in- the September 25 proposal.
o. Hazard. One commenter. questioned
EPA'a decision not to propose to remove
slag from primary zinc processing from
the Bevill exclusion because the
sampling data demonstrated that the
waste exhibits the hazardous waste.
characteristic ofEP-toxicity for lead:
They stated thatEPA should farther
consider these data in preparing its
Report to Congress.
The: Agency generally agrees wriifa the
commented that all relevant hazard data
shouldbe- considered in.the study of the
waste stream when- preparing the-Report
to Congress. However. EPA finalized the
low hazard criterion in the September: 1.
1989- rule, andia not currently
entertaining, comments on iL The-
Agency's, rationale for the low hazard
criterion, is outlined in, 54 FR 36592. As,
discussed in the September 25.1989,.
proposal, the, waste passes, the toxicity
criterion described in that rule- •
C, Comments oaths Seven Wastes.
Proposed for Removed
This section discusses comments-
received oaeaeh of the-seven mineral
processing-wastes fbrwhfch- EPA
proposed to remove from the BevilT
exemption. The comments receivedon- .
each of the wastes generally are
presented under one of three
subheadings: Processing Criterion/1
Waste Definition, Volume, OF Hazard.
These subheadings appear only when
they are relevant to comments identified
for the waste being discussed, so- for
many of the seven wastes, one or more
of the subheadings, are notinchtded.
1. Roast/Leach. Ore Residue From
Primary Chromite Processing
a. Processing Criterion/Waste-
jDe/in/tfofl..Twacommanters remarked
on the designation of-the waste stream.
One commenter contended that the
original designation of roast/leach ore
residue from primary processing of
chrome ore referred to the ore residua
solids in the form, currently being
disposed (alter treatment], not the form,
in which the waste, is generated. The
commenter stated that itis the waste, as,
disposed that has the potential to. enter
- the environment, and! that this waste is
low hazard and high volume and should
be retained. Another commenter argued
that because the ore used in production
"of chromium chemicals contains mat
only chrome but also other compounds
[e.g., magnesium silicate), the term.
"chrome ore" or "chromium ore" would
be more appropriate for. use by the
Agency.
EPA agrees with both of these
comments. In today's final rule, the
Agency bases.its-evaluationof this
waste's compliance, with the Bevill
criteria on treated'residue from.
roasting/leaching; of chrome ore.
b. Hazard* Three commenters
addressed the apparent failure of this
waste stream- to- meet the low Hazard
criterion. One commenter agreed with
EPA's proposed determination, and
provided data that indicated that treated
waste from chronrite ore processing is
occasionally EP- toxicv. based on data it
received from American- Chrome and
Chemical,
One commenter acknowledged that
residue from the roasting/leaching of
chrome ore is hazardous at the point of
generation. The eommenter asserts,
however that through- treatment at the
waste water treatment plant in-
compliance with the facility's NPDES
permit, the waste stream ceases to
exhibit the hazardous waste
characteristic for chrominmr both the
liquid and non-liquid1 fractions of the
stream are rendered noa-hazardousi. The
commenter states that this treatment
practice Has been demonstrated to, and
accepted'by, theState of North - _
Carolina.
Another commenter maintained that,
in making its hazard determination for
this waste, EPA relied on samples taken.
from an inappropriate stage of the waste
management process. The commenter
claimed that the materials from the post-
treatment stage, and in particular the '
solids, are non-hazardous and qualify
for the exclusion. In addition, they
contended, this treatment does not
affect the volume of the waste.
The Agency has reviewed the
available data and agrees with the -
commenters that these data indicate
that the treated residue from roasting/
leaching of chome ore is low hazard.
The Agency notes, however; that waste
management activities associated with.
the untreated wastes, including the
treatment operation itself," are not
exempted from Subtitle C requirements
by the Bevill amendment because prior
to treatment the waste is not low hazard
[although any tanks involved in the
treatment process may qualify for the
wastewater treatment until exemption
under 40 CFR 264.1(gJ{6)).
2. Process Wastewater From. Coal
Gasification.
a. Processing- Criterion/Waste:
Definition. One comenterdescribed.the-
production process for coal gasification.'
The production of coal gas (and thus
process wastewater) involves, first,, the
controlled combustion of lignite. This
produces a raw gas stream sent first to-
the Raw Gas Cooling and Shift
Conversion units and then to the
Rectisol unit. The Rectisol unit removes
acid gases, CO2. FfcS, CSi. and CQSJ and
produces synthetic, fuel gases. These
gases undergo methanation and gas
compression and then are delivered to a
pipeline as. synthetic natural gas A
copraduct, naphtha,, is also, produced.
"Gas liquor" is also produced by the-
cooling and refining of the. raw gas.
stream.
The commenter added that the
Gasification, the Raw Gas Cooling Shift
Conversion, and the Rectisol units all
produce gas: liquor streams which are
routed to the Gas. Liquor Separation!
unit. During the gas liquor separating'
process, another coproduet, tar oil, is
recovered. Afterwards, the gas liquor is
sent to the Phenosolvan unit where
crude phenol is recovered. Ammonia is
then recovered' in the Phosam unit,
which discharges a "stripped gas
liquor." The stripped gas liquor is sent to
the Cooling Tower for use as a make-up-
watep. Other liquids used as make-up
water includer small quantities of
filtered Dissolved Air Flotation water
from the oiry water sewer system,
softened water from the potable water
treatment plant, a small stream from the
Rectisol unit; and smalt volumes of
distillate water from the Multiple Effect
Evaporators. The comenter also notes;
that: (1} Stripped gas liquor comprises
over 70 percent of the make-up water, in.
the Cooling Tower, (2} the Cooling
Tower is operated with a blowdownt
rate of approximately 350 to 500 gaHons
per "minute or 650,000 to 995,056 metric
ton* per year, and (S) the Cooling Tower
blowdown is directed to the Multiple
Effect Evaporators..
The commenter argued that because
the stripped gas liquor is continuously
used, andia not discharged by the
facility, it cannatiogically be regarded
as a "waste." The commenter added,
however, that if EPA does consider
stripped gas liquor to- be a waste, then it
is the "process-wastewater" generated
by the facility.
EPA has reviewed the information-
provided in these comments and the
National Survey response provided by
the commenter and concluded that the •
available information indicates that
stripped gas liquor is a solid waste thai
does not appear to be eligible for the
closed-loop exemption because it
sometimes is stored'in an impounded
prior to use. (See above discussion
regarding phosphoric acid process
wastewater and January 4,1985 notice
(50 FR 614.J However, EPA also,
concludes that stripped gas liquor is the.
principal aqueous waste generated by
the gasification process and thus is
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Federal Register / Vol. 55. No. 15 / Tuesday. January 23, 1990 / Rules and Regulations 233Z
process wastewater and remains a
Bevill waste.
bi Volume. Two commenters urged
EPA to-reconsider its proposed
determination that process wastewater
from coal gasification fails the high
volume criterion. They contended that-
the data cited by EPA in-the September
25,1989 Federal Register were not
accurate. Both commenters stated that
process wastewaters are actually
generated at a rate that far exceeds one
million metric tons per year. One
commenter claimed that rather than
being generated at a rate of 598,030
metric tons per year, this waste is
produced at a rate of approximately
5,000,000 metric tons per year. The
commenter believed that this error was
based on the Agency's
misunderstanding of the gasification
process and on its own response to the
mineral processing waste questionnaire.
The commenter identified the process
wastewater as "cooling water" because,
as discussed above, they do not
consider it a'waste.The commenter
submitted the following volume data:
1988—4,910,000 metric tons;
1987—5,020,000 metric tons;
1988—4,830,000 metric tons, and
1989—5,05
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2332 Federal Register / VoL 55. No. 15 •/ Tuesday. January. 23, 199ff / Rules and Regulations
the two waste streams are such that at
the CalvertCity, Kentucky hydrofluoric
add plant, the two are co-mingled at the
point of generation. The commenter
claimed that the proposed regulation
would impose different regulatory . '
requirements on two similar wastes
(because fluorogypsum would remain
excluded, but process wastewater
would not), which from a practical
perspective, is unreasonable since the
requirements applicable to one will
affect the management of the other. EPA
should allow process wastewater from
hydrofluoric acid production to retain its
status under the Bevill exclusion, and
should not evaluate fluorogypsum and
process wastewater separately, because
the two streams are essentially
identical
EPA disagrees. The two waste
streams are identi&ably distinct (one is
a solid and the other a liquid) and are
generated by different parts of the
production process. The fact that they
are currently co-managed does not .
imply that they should or must be co-
managed.
b. Volume. Two commenters
disagreed with EPA's proposed
determination that process wastewater
from hydrofluoric acid production failed
to meet the high volume criterion. One
commenter questioned the basis for
EPA's decision, given the lack of data.
The commenter argued that the waste^
was not included in the 1989 National
• Survey of Solid Wastes from Mineral
Processing Facilities. Therefore, in the
September 25,1989 NPRM, the average
rate of generation of process
wastewater from hydrofluoric acid was
listed as "n/a". Yet EPA determined that
this liquid waste stream was not
generated in quantities over 1,000,000
metric tons per year through •
calculations or interpretations of survey
results, which were not provided in the
background documents. The second
commenter argued that EPA may have
overlooked or misunderstood the Survey
data. In fact, they stated, process
wastewater from hydrofluoric acid
production is generated at an average
rate per facility far in excess of 1 million
metric tons per year. The commenter
resubmlttedits Survey, which includes a
process flow diagram of the hydrofluoric
add process. Information is also
provided on the volume of process'
wastewater generated and managed in
sections 5 and 6 of the Survey.
One commenter supported EPA's
application of the high volume criterion
to the reported process wastewater
inflows to surface impoundments. The
commenter maintained that the flow
rate to surface impoundments can be
used to estimate process wastewater
flow rates. According to the commenter,
data available through plant NPDES
records, the commenter claimed,
indicate that the flow rate does exceed
the 1,000,000 metric tona per year Bevill
criterion. Specifically, the most recent
water balance, submitted as part of the
NPDES renewal application, indicated .
that the inflow to surface impoundments
from the hydrofluoric acid production
process was 2,079,400 gallons per day,
which is equivalent to 2,900,000 metric
tons per year, according to the
commenter.
The Agency has carefully reviewed
these comments and the revised survey
submitted by the commenter and agrees
that process wastewater from
hydrofluoric add production satisfies
the high volume criterion, as discussed
below in section fiL
c. Hazard. Two commenters
• addressed the hazard level of process
wastewater from hydrofluoric acid
production. One.commenter agreed with
EPA's proposed determination that the
waste is low hazard. Another
commenter claimed, however, that
EPA's sampling data demonstrated that
process wastewater from hydrofluoric
add production exhibits the hazardous
waste characteristic of-corrosivity (pH
values of 1.4 and 1.88), and questioned
EPA's failure to remove the waste from
the Bevill exclusion. The commenter
also urged EPA to consider this data in
preparing its Report to Congress. '
The Agency generally agrees with the
commenter that all relevant hazard data
should be considered hi the study of the
waste stream when preparing the Report
to Congress. However, EPA finalized the
low hazard criterion hi the September 1,
1989 rule and is not currently
entertaining comments on it The
Agency's rationale for the low hazard
criterion is outlined in 54 FR 36592.
EPA's sampling data indicate that this
waste does not exhibit a pH of less than
1, and therefore, complies with the low
hazard criterion.
5. Process Wastewater From Primary
Lead Processing
a. Processing Criterion/Waste
Definition. One commenter claimed that
EPA must study all process wastewaters
from primary lead production,
contending that once EPA completes its
study, it will realize that these are not
wastes, because process wastewaters
from primary lead production are reused
within the primary lead production
circuit. RCRA hazardous waste
requirements, therefore, are not
appropriate.
In response to this comment, EPA
notes .that the extent to which this waste
stream is managed through "closed
loop" recycling, and hence, is not
subject to RCRA requirements, would be
addressed in the Report to Congress, if
this material were found to meet the
Bevill special waste criteria. The waste
does not meet these criteria, however,
and thus will not be included in the
Report to Congress. Nevertheless, if the
waste is managed in such a way that it
does not meet the definition of a solid
waste, then RCRA hazardous waste
requirements would not apply. •
One commenter urged EPA to clarify
its definition of process wastewater
from primary lead production so that all
waters that are collected from
processing operations are specifically
included in that definition. The
commenter states that the only reason -
for EPA's including contact cooling
water hi the definition of process
wastewater and not including acid plant
blowdown is the arbitrary elimination of
one relatively large volume process
water stream from the volume amount.
In addition, defining this waste as
"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" is confusing.
Do the waters need to be removed from
the system, or do the contaminants need
to be removed from the waters?
EPA res'ponds that the reasons for
distinguishing between different
aqueous waste streams generated in the
mineral processing industry have been
discussed at length hi previous
rulemaking notices (54 FR 15316, April
17,1989; and 54 FR 36592, September 1,
• 1989.) Briefly, EPA believes the
distinctions it has made are appropriate
based on the available information
concerning the waste characteristics
and points of generation hi the process.
As explained hi the preamble to the
. September 1,1989 final rule, EPA has
considered acid plant blowdown and
other wastewaters from primary lead
processing to be two distinct wastes
because.these wastes have substantially
different characteristics. EPA believes
that the definition of wastewater clearly
indicates that it is the wastewater that
needs to be removed from the system
because it is the wastewater and not the
contaminants to which the definition
refers.
b. Volume. One commenter stated that
the volume EPA used as a basis for
proposing to eliminate process
wastewater from .primary lead
production was less than the actual
amount generated at its plants. The
commenter argued that this incorrect
determination was a result of artificial
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Federal Register / Vol. 55. No. 15 / Tuesday. January 23. 1990 / Rules and Regulations 2323
limitations on the actual amount of
water that could be reported as "process
wastewater" in the National Survey of
Solid Wastes from Mineral Processing
Facilities, where EPA only solicited
information on- processing units
associated with the generation of
process waters. According to the
commenter, EPA inappropriately
reduced the number of streams counted
toward the volume cutoff by focusing oa
, only a few process water streams. The
commenter maintained that its internal
data indicate that the volumes of
process wastewater-from primary lead
production generated by its plants
exceed the 1,000,000 metric ton
threshold. Another commenter was
dismayed by EPA's conclusion that
process wastewater from primary lead
processing was low volume, because
there is no way to verify the numerical
data used to arrive at the average of
785,562 metric tons per year.
EPA responds that the National
Survey requested data on the quantity of
wastewater generated by all mineral
• processing operations at each, facility
surveyed, and that the responses
provided indicate that process
wastewater is not a large volume waste.
EPA is limited in the amount of
information it can present on the waste
generation calculations used to develop
the September 25 proposal because one
of the commenters has requested
Confidential Business Information status
for their information. -
•_ c. Hazard. One commenter objected to
EPA's on-site sampling methods. If. in
the survey, the Agency requests
information on process wastewaters.
other waste streams, such as process
water from sintering, should not be
sampled for the hazard determination.
Because of the scheduling constraints
imposed by the Court of Appeals. EPA's
waste sampling effort had to be
conducted before the final contours of
the beneficiatibn/processing boundary
had been established. Thus, EPA
sampled wastes that are, in hindsight,
outside the scope of the current
rulemaking. The analytical results for
wastes that are outside the scope of this
rulemaking (i.e.. process water from
sintering] have not been used in
evaluating compliance with the low
hazard criterion. Instead, EPA has used
results from samples of wastes that are
the subject of this rulemaking (Le.. slag
granulation water) in" determining that
this is not a low hazard waste.
6. Sulfate Process Waste Acids From
Titanium Dioxide Production
a. Hazard. One'commenter stated that
sulfate process waste adds from its
facility-meet EPA's low hazard criterion
and should therefore be retained in the
BeviH exclusion. The commenter
disputed the selenium concentrations
published in the proposed rule, stating
that if EPA asserts that the sample
exceeding the criterion comes from the
commenter's facility, then the Agency is
mistaken. The commenter notes that the
sulfate process waste acid sample was
essentially analyzed three times: once
as is, once using the SPLP, and once for
EP toxicity. In the leaching procedures
(SPLP and EP Toxicity) the sample is
filtered and the filtrate analyzed. The
solids (if any) are leached and the
leachate is analyzed. Since there were
no solids, the three analyses should
have agreed. In actuality, the
concentration for selenium was below
the detectable limit for two of the
samples, while selenium showed up on
the SPLP sample at a level of 6.3 mg/1.
The commenter retained a portion of the
sample that was collected for EPA and
had it analyzed for EP Toxicity.
Selenium concentrations were below
detectable limits. The commenter also
claimed to have made facility
improvements which have caused '
sulfate process waste acids to become
less acidic. The overall average pH from
1984 through 1988 was 1.02. :
EPA agrees that the jeported SPLP, '
selenium concentration that is
questioned by the commenter does
appear to be anomalous, but believes
that the other data, including the pH
data, collected during EPA's sampling
visits are accurate and provide a
sufficient basis for applying the low
hazard criterion to this waste stream.
The average pH data provided by the
commenter are not relevant to this
rulemaking because average pH values
do not have meaning and are not
consistent with the data requirements
specified in the low hazard criterion for
the pH test
7. Sulfaf e Process Waste Solids From
Titanium Dioxide Production
a. Volume. Two commenters urged
EPA to reconsider its preliminary
conclusion that sulfate process waste
solids fail to meet the high volume
criterion. One commenter indicated that
sulfate process waste solids are
generated, in the form of a slurry, at a
rate of 86,800 short tons (78,728 metric
tons) per year as indicated in the
November 21,1988 comments and the
response to EPA's National Survey of
Solid Wastes from Mineral Processing.
Another industry commenter claimed
that EPA miscalculated theivolume of
sulfate process waste solids generated
annually. The commenter stated that a
total of 49,900 metric~tons are handled.
The values used for suspended solids
were from the commenter's quarterly
samples, which have been taken since
1984. According to the commenter, these
volumes confirm those given, in
comments-provided in response to the
October 10,1988 proposal of 85,000
tons/year, which included chloride
wastes. The commenter further
indicated that these wastes, together
with the treatment residuals, will bring
the total solids handled to well over
500,000 tons per year.
It is EPA's position that the waste of
interest is the dewatered waste solids
taken from the drum filter at one facility,
rather than the slurry from the clarifier,
as suggested by the commenter. because
the available information indicates that
the primary purpose of the dewatering
operation performed by the drum filter is
to return product solution to the
production process and, thus, it
resembles a processing operation more
closely than it does a waste treatment
operation. Accordingly, EPA has used
the reported quantity of drum filter cake
rather than the quantity of slurry sent to
the dram filter in evaluating the
compliance of this waste stream with
the high volume criteria. After further
analysis, the Agency has concluded that
the revised waste generation rates
reported by the second commenter are
reasonable, though the underlying data
are not readily apparent in the
commenter's response to the National
Survey. Revised (and final} waste
generation estimates, which indicate
that this is not a high volume waste, are
presented in section m, below.
D. Relationship of the Proposed Rule to
Subtitle CofRGRA
1. The Mixture Rule
a. General,comments. In their
comments on the September 25
proposal, a number of commenters
objected to the Agency's interpretation
of the mixture rule in the September 1.
1989 final rule and questioned what the
impact of the mixture rule would be
upon the Bevill determinations
contained in the September 25 proposal.
Commenters requested that EPA
reconsider its interpretation of the
mixture rule as it applies to Bevill
excluded wastes that are mixed with
relatively small volumes of non-
excluded wastes. Commenfers noted
that a mixture of a Bevill excluded :
waste and a characteristically
hazardous waste would be considered a
non-excluded hazardous waste.
Particularly in the phosphate industry,
• commenters objected to this
classification, arguing that if the non-
excluded waste in a mixture shares the
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2334 Federal Regiater / Vol. 55..flo..l5 / Tuesday, January 23, 1990 / Rules and Regulations
same hazardous characteristic as the
Bevill excluded waste, the Bevill status
of the resulting mixture should not be
withdrawn.
Commenters also requested 'that the
Agency clarify the mixture rule in a
number of ways. First, they suggested
that EPA clarify whether mineral
processing wastes that are temporarily
excluded from RCRA Subtitle C
requirements may be used [e.g., as air
pollution control scrubber water) in
production units that do not generate
Bevill wastes, and similarly whether
non-Bevill excluded wastes may be used
in production units that generate Bevill
excluded wastes. In particular,
commenters requested clarification of
the status of a Bevill-excluded waste
that is used in a non-Bevill production
unit when the waste exhibits a
characteristic or hazardous waste after
uae in the non-Bevill operation only
because the Bevill waste that is an input
to the non-Bevill process exhibits the
hazardous characteristic.
In addition, commenters argued that.
the October 26,1989 supplement to the
proposed regulations for burning of
hazardous waste in boilers and
industrial furnaces (54 FR 43718)
conflicts with the interpretation of the
mixture rule established in the
September 1,1989 final rule. The
proposed rule on burning states that
residues would remain within the Bevill
exclusion if the character of the residual
is determined by the Bevill material. In
contrast, the September 1 final rule
states that any material burned with a
low volume, non-Bevill waste would be '
regarded as hazardous even if the
characteristic exhibited is the same as-
the characteristic of the Bevill waste.
Commenters requested that the-Agency
reconcile these conflicting
interpretations of the mixture rule by
adopting the approach in the proposed
rule on burning. •- • •
b. Comments related to phosphoric
add production. Commenters from the
phosphoric add industry requested that
the Agency provide a supplementary
explanation of its mixture rule position
as it relates to phosphoric acid process
wastewaters, and allow for public
• comment. The ammoniated phosphate
fertilizer (APF) process utilizes process
wastewater as an influent and men
returns it to the originating phosphate
complex pond. One commenter
contended that APF process wastewater
does not exhibit hazardous
characteristics when generated ' :
"separately from, a facility that produces
phosphoric acid. Therefore, the • .
commenter argued, APF wastewater
must not contribute the hazardous
characteristic found in phosphoric acid
process wastewater, and thus it should
not trigger the removal of phosphoric
acid process wastewater from the Bevill
exclusion. Phosphate industry
commenters urged the Agency to reject
any interpretation of the mixture rule
that would remove phosphate complex
pond water from the Bevill exemption
because it contained process
wastewater used in the APF process.
Commenters urged the Agency to •
adopt an interpretation of the mixture
rule consistent with the position
advocated in the October 26,-1989
proposal (54 FR 43718) on burning, and
allow small amounts of sulfuric acid
process wastewater to be combined in
the general process wastewater system
without the removal of the entire system
from the Bevill exclusion. Phosphate '
industry commenters objected to the
mixture rule interpretation contained in
the September 1,1989 final rule in which
the addition of sulfuric acid process
wastewater to a phosphoric acid
complex's water recirculation system
would result in the entire system being
removed from the Bevill exclusion.
, According to one commenter, although
sulfuric acid process wastewater
displays the same characteristic of
corrosiyity as phosphoric acid process
wastewater, the addition of sulfuric acid
process wastewater may constitute less
than one percent of the daily
wastewater generated at an average
facility, and thus should not affect the
Bevill status of the entire waste stream.
c. Comments related to hydrofluoric ,
acid production. One commenter
requested clarification on the use of
hydrofluoric acid process wastewater in
an aluminum fluoride plant, and asked'
the Agency to address the use of Bevill,
excluded characteristic wastes as a .
source of influent to other processes.
The cpmmenter argued that hazardous
characteristics displayed by water
existing the aluminum fluoride facility
are solely from hydrofluoric acid (HF)
process wastewater. Thus, the
commenter asserted, the Agency's
interpretation of the mixture rule should
have no bearing on whether HF process
wastewater remains within the Bevill
exclusion. The commenter requested
that if the Agency interprets the mixture '
rule such that the use of process
wastewater in the aluminum fluoride
plant results in all water in the pond; .•
where that water is finally disposed
being removed from the Bevill exclusion,
. EPA should supplement the proposed
rule with its rationale for such a L
decision, and allow for additional public
comment . " .• - ;
d. Comments related to coal
gasification. One commenter objected to
the Agency's possible determination,
based upon the mixture rule, that
process wastewater from coal
gasification is hazardous. The
commenter asserted that if process
wastewater was disposed of
immediately rather man used in a
cooling tower, the waste stream would
not demonstrate hazardous
characteristics; however, important
water conservation and disposal
practices could not then be practiced.
Thus, the commenter concluded, the
Agency should not withdraw the Bevill
exclusion for.coal gasification process
wastewaters based upon hazardous
characteristics when those
characteristics result from appropriate
water conservation and disposal
practices.
e. Response to comments. In response
to these questions and issues raised by
commenters regarding the mixture rule,
EPA makes the following observations.
First like the criteria established for
identifying wastes eligible for the Bevill
' exemption, the Agency's position on the
mixture rule was finalized on September
1,1989 and is not open for comment as
part of this rulemaking. Second, the
Agency plans to add comments to the
docket for the October 28th notice
regarding the alleged contradiction
between the October 26,1989 (54 FR
43718) supplement to the proposed
regulations for burning of hazardous
waste in boilers and industrial furnaces
and the mixture rule in the September 1,
1989 final rule. Third, wastes from
operations that are not mineral
processing operations based on the
definition of mineral processing
contained in the September 1 final rule
are not mineral processing wastes
regardless of the nature of any inputs
(including Bevill wastes) to that process.
Finally, the mixture rule is not a factor
In today's decision to retain the Bevill
exemption for process wastewater
because Bevill wastes are being
evaluated, not mixtures.
2. Land Disposal Restrictions
Two commenters expressed concern"
about the impact of Land Disposal
Restrictions (LDRs) on wastes newly
removed from the Bevill exclusion. One
commenter stated that the Agency
cannot accurately estimate the
economic impact of the proposed rule
• until the "Third Third" rule is
promulgated.
The second commenter requested :that
the Agency consider mineral processing
'wastes removed from the Bevill
exclusion, "newly identified" wastes
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Federal Register / Vol. 55. No. 15 / Tuesday, January 23, 1990 / Rules and Regulations 2335
under the LDRs. Since "chloride-
. ilmenite" wastes from titanium
production were not considered RCRA
hazardous wastes on November 9,1984,
the date of HSWA enactment, the
commenter asserted that they must be
considered newly identified wastes. The
commenter argued that without terming
these wastes newly identified, the
.facility would unfairly have to meet the
hammer date of August 8,1990. for
California List wastes. Facilities that
generated a waste subject to California
List restrictions on underground
injection were granted a two year
national capacity variance during which
they could either plan, new capacity or
submit a "no-migration" petition. The
commenter maintained that equal
opportunity must be granted to mineral
processing facilities to develop new
capacity or submit no-migration
petitions.
'In addition, the commenter asked that
the Agency delay the applicability of the
LDRs to chloride-ilmenite wastes by
determining that such wastes are
beneficial wastes and subject to further
study by. EPA. This would allow the
Agency, according to the commenter,
additional time to evaluate the
protectivehess of underground injection
for chloride-ilmenite wastes.
, .EPA responds that, as explained in
the September 1,1989 final rale and in
the proposed land disposal restrictions
(LDRs) for the third third schedule
wastes (54 FR 48372,48378; November
22,1989); the Agency believes the -
wastes that are brought under Subtitle C
regulation by today's final rule to We
"newly identified" wastes for purposes
of establishing LDR standards under
section 3004(g)(4) of RCRA, (54 FR 1
36624). Accordingly, EPA has proposed
that newly identified mineral processing
wastes not be subject to the BDAT
standards that the Agency proposed on
November 22,1989 (54 FR 48372) for
characteristic hazardous wastes. As
required by RCRA section 3004{g)(4)(C),
EPA plans to study the mineral
processing wastes removed from the
temporary exemption to determine
BDAT for ones that exhibit one or more
characteristics of a hazardous waste.
(See 54 FR 48493.) The Agency has taken
comment on this issue in connection
with the LDR proposal and will address
the issue, including the costs, if any, of
requirements when it promulgates lhat
rule. Finally, the reader should refer to
the discussion on individual waste
streams and process definitions for
clarification of the status of chloride-
ilmenite wastes.
3. Retroactive Application of Subtitle C
Requirements
One commenter expressed concern -
over the retroactive application of
Subtitle C to chromium-contaminated
fill, and criticized the Agency for not
specifically considering chromium-
contaminated fill in redefining the scope
of the Bevill exclusion, the economic
impact screening, or the sampling effort.
The commenter asserted that EPA
• should make a separate Bevill
determination regarding the status of
chromium-contaminated fill. The
commenter wished to confirm that
chromium-contaminated.fill already in a
lined containment facility would not be
affected by the loss of Bevill exempt
status. In addition, the commenter
stated that if fill excavated after the
effective date of the rule was subject to
RCRA Subtitle C regulation, it could
impose a severe economic burden upon
the commenter.
The commenter argued that samples
gathered by the Agency in the summer
of 1989 from operating plants are not
representative of the chromium
contaminated fill in question at the
commenter's facility. The commenter
maintained that the conditions at the
facility demonstrate that the waste
streanvsatisfiea the low hazard
criterion. Due to its mixture with soils
. and other non-hazardous materials, long
in-situ residence time, and weathering,
the chromium fill material may be of a
different physical and chemical nature
than the wastes from chrome ore •
processing generated at operating
plants, according to the commenter.
Although soil samples from the initial
excavation of this waste stream exceed
the EP toxicity levels for chromium,
more recent samples and ground-water
samples have not been EP toxic. The
commenter concluded that retaining
chromium contaminated fill within the
Bevill exclusion would allow for hazard
testing of the material and adequate
time to develop treatment options.
Based on the available information,
EPA believes that chromium-
contaminated fill is not a separate,
discrete mineral processing waste
because it may be, and likely is, as
noted by the commenter, comprised of a
mixture of mineral processing waste,
non-mineral processing waste, and non-
waste (e.g., soil) materials. In addition,
EPA observes that the untreated residue
from roasting/leaching of chrome ore is
not low hazard and, thus, is not eligible
for the Bevill exemption. As a result, the
comments on the status of chromium-
contaminated fill are only germane if the
fill contains-treated residue from
roasting/leaching of chrome ore similar
to that which is currently being
generated, which will need to be
determined on a case-by-case basis.
Because the composition of the fill and,
therefore, the relevance of any data on
the chemical composition of the fill is
unclear, the Agency believes inclusion
of such data in reaching a conclusion en
the status of treated residue from
. roasting/leaching of chrome ore would
be both inappropriate and impractical.
E; Costs and Impacts of the Proposed
Rule
1. Technical Feasibility
Two commenters claimed that it
would be technologically infeasifale to
manage their wastes according to
subtitle C requirements. One commenter
argued that it would be technologically
infeasible to manage fluorogypsum or
process, wastewater from hydrofluoric
acid production according to the
minimum technology requirements or
the LDRs. Another commenter
maintained that insufficient land is
available to retrofit existing waste
management systems in order to manage
phosphate rock processing wastes under
subtitle C and the LDRs.
Because, both of these wastes are
retained within the Bevill 'exclusion by
either the September 1 final rule, or
today's rule, they will be studied in the
Report to Congress which will address,
among other issues, the technical
feasibility of managing Bevill waslss
under subtitls C of RCRA. %
2. Compliance Cost Estimates
A commenter disapproved of EPA's
analysis of economic impacts,
contending that the Agency should
include the costs due to corrective
action requirements and land disposal
restrictions (LDRs), because by ignoring
these costs, EPA has underestimated the
total costs of compliance. The difficulty
of estimating these costs is, the
commenter claimed, no justification for
assuming zero costs for these
requirements. Two of the wastes
proposed for withdrawal from the Bevill
exclusion are high-volume, and for those
materials, LDR treatment is likely to be
very costly. In addition, corrective
action may impose high costs at some
facilities.
EPA did not estimate the costs
associated with land disposal
restrictions because it is not possible,
nor is it Agency policy, to estimate the
effects of imposing regulations that do
not yet exist These economic impacts, if
any, will be addressed by the Agency
when it promulgates land disposal
restriction treatment standards;
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2336 Federal Register / Vol. 55, No. 15 / Tuesday. January 23, 1990 / Rules and Regulations
Nonetheless, EPA has, in both the
September 25 proposed and today's final
rule, estimated the costs associated with
stabilizing residues from liquid -waste ,
treatment so as to make them
amendable to land-disposal. Therefore,
while it,is not possible,-at present, to
define BDAT (and: thus,,LDR.impacts)
for any wastes removed from the Bevill
exclusion, EPA has attempted to -capture
some of the likely Beasts associated, with
future waste disposal activities.
Prospective corrective action costs are
by nature site-specific and difficult to
estimate. Currently available
information does not allow EPA to
estimate these costs-with confidence. To
the extent, therefore,, that any additional
facilities are brought into' the subtitle C
on-site waste management-system;by
this rule, EPA may have underestimated
cost and economic impacts. The reader
is referred'to .section VII below for
additional discussion of the specific
features of the methodology employed.
A commenter*also indicated .that the
Agency .also should recognize that
commodity producers cannot pass
compliance costs onio product
consumers.
EPA responds that,.in the Economic
Impact Analysis provided in the
September 25 NPRM, the Agency
considered, on a commodity .specific
basis, the extent to which potential
compliance costs-could.ba passed
through, to consumers. As indicated in
this.analysis (and restated in Section
Vfl, below) EPA believes that the
commenter'a suggestion that all mineral
processors in all commodity sectors-are
"price takers," having no ability to pass
through cost increases and therefore
having, to absorb them internally, is
demonstrably untrue.
One commenter maintained that hi
order to accurately .estimate the
economic and regulatory impacts of the
propoaedTule, EPA must first resolve
the issues tjf the "mixture role,"
retroactivity and regenerated wastes. In
particular, one commenter charged that
EPA has not considered, as required by
Executive Order 12231, the •economic
impact of excluding chromium
contaminated fill from Bevill-status.
Also, to truly identify the economic-and
regulatory impacts of the proposed rule,
the Agency should obtain information.
from all inactive facilities. .
EPA responds -that .these issues were.
addressed in the September!, 1989 final
rule and are not relevant .to'this
rulemaking. To briefly restate .the'
positions outlined in that final rule,
iowBYCT, JPAmaintains that Subtitle C
regulation*; will not be-imposed
retroactive ty.Howev.eivactive , , •
management of an historical
accumulaiionof waste will.subject a ,
faculty to Subtitle C regulations if the
material exhibits .one .or more
characteristics of a hazardous, waste.
3. Compliance-Cost,' Market; and
Economic Impact Estimates '
a. Treated residue from roasting/
leaching of chrome ore. According to
one commenter, if the Agency, imposes
subtitle .C requirements for chrome ore
processing waste used as Jill,-on-site
treatment of the fill will .become
burdensome and expensive. Also, if
future excavated fill must be managed
as a hazardous waste, depending on the
amounts.of hazardous waste involved, a
severe economic burden may result
without any commensurate .gain in
health or environmental benefits. In
addition, loss of Bevill status for the
chromium-contaminated fill at a City of
Baltimore wastewater treatment plant in
Patapsco, Maryland, may prematurely
interrupt the process of developing
treatment-alternatives.
The Agency does not view this issue
as relevant to the status of the.20 waste
streams addressed in today's rule
becauseftis not clear .Chat the fill
material is one/of the mineral processing
wastes covered by-today's Tide.
Commenters .contended that the cost
of compliance-with-RCRA subtitle C for
inactive facilities should be addressed
by EPA. A commenter-maintained that
the docket should include information
on existing inactive -waste sites as well
as the number of chrome ore "fill" sites
that win be affected by the proposed
-rule.
EPA responds that inactive facilities
were not sampled because they are not
pertinent to this rulemaking.
Several commenters disagreed with
the compliance cost estimate for residue
from roasting/leaching of chrome.ore.
One commenter argued that the waste
should be -retained in the Bevill
exemption because of the significant
costs that corrective action-requirements
could impose. According .to the
commenter, disposal and treatment
costs will be at least an additional $2
million over the Agency's estimate of
compliance costs. Another commenter,
however, claimed that because its waste
stream is treated on-site under the
facility's NPDES permit-and the treated
waste is-non-hazardous, there is no need
forits facility to modify an -say way
current treatment or'disposal practices,
and'-thus-there is no cost for compliance
if the waste stream is removed .from the
Bevill exclusion. ... . .....
One commenter contended that the.:
.impactof the.removal of residue from ,
. roasting/leaching of-chrome .ore from
theiBevill'exchision was incorrectly
estimated because EPA did not fully
evaluate all of the information provided
in the National Survey of Mineral
Processors. .In .-addition, not all of the .
samples taken from the facility by EPA
were .analyzed.•
EPA responds that it used available
Method 1312 data to evaluate
compliance with the low hazard
criterion. Because of time constraints,
the Agency analyzed the samples
collected on an "as generated" basis
prior to-analyzing those collected on an
"as managed".basis; the former are
directiypertinent to and.necessary for
the Bevill rulemaking process while the
latter are primarily of use hi preparing
the -Report to Congress. Since
publication of the September 25
proposal, however, the Agency has had
an opportunity to analyze additional
samples. Based upon these nexv
analyses and analyses performed in
support of die September 25 proposal,
the Agency agrees that the treated
residue from roasting/leaching of
chrome ore does not exhibit hazardous
characteristics and hence, would not be
subject to new regulatory requirements
and associated costs if .removed from
the Bevill exclusion. The treated waste
is, however, being retained under the
Bevill exemption because it is both low
hazard and high volume.
b. Process wastewater from coal
gasification. EPA received several
comments arguing that removing
process wasto/ater from coal
gasification fram the Bevill .exemption
-would impose severe economic impacts
and would not in any way enhance the
environment The commenters
maintained that the additional $1 million
in annual compliance costs
(commenter's estimate] are
unreasonable and would accomplish
nothing except for increasing
compliance costs, in light of the reuse of
the fluids in the same industrial process.
EPA should not, they stated* impose
economic burdens upon the industry.
Also, one commenter asserted that
North Dakota will lose substantial
amounts of tax revenues and
employment opportunities if RCRA
subtitle C regulation makes it
economically infeasible to continue
operating the Great Plains facility.
Commenters representing the electric
. utility industry claimed that additional
regulatory controls under -RCRA -over
wastewater discharges from coal
gasification are unnecessary and
burdensome to the -electric utility
industry because the wastewater
discharges are subject to NPDES permits
.under the Clean Water Act. .
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Federal Register /Vol. 55. No. 15 / Tuesday. January 23, 1990 / Rules and Regulations 23S7
As discussed in section lit below,
based upon further data in the form of a
revised survey response provided by the
facility in question, EPA now concludes
that the waste stream does satisfy the
high volume criterion and so ivill be
retained for further study; Discussion of
the prospective economic impacts of
removing the waste from the Bevill
exclusion as part of this rulemaking is,
therefore, moot.
c. Furnace off-gas solids.from
elemental phosphorus production* One :
commenter agreed that due to the low
cost of compliance with subtitle C
regulations, treatment of furnace off-gas
solids from elemental phosphorus
production as hazardous wastes is •
reasonable and practicable. One
elemental phosphorus industry
commentef asserted that this company's
waste stream is not hazardous, and
therefore, no compliance costs will be
incurred. EPA was unable to confirm
this for the particular facility in
question, and the commenter-suppiied
data was insufficient to confirm that the
facility's waste will not exhibit a
hazardous characteristic. The Agency
has/accordingly, maintained its
conservative approach to estimating
potential cost and economic impacts
associated with this rule by assuming
that the waste is hazardous and that the
facility will be affected by the rule even
though this may not turn out to be the
case. - -
d. Process 'wastewaterfrom
hydrofluoric acid production. One
commenter reported that becaue of the
co-mingling'of fluorogypsum and •
process.wastewater at the Calvert City,
Kentucky plant, the annual estimated;
flow would be 2,900,000 metric tons per
year, and not 103,526 metric tons per ;
year as assumed in. the Technical
Background Document "Development of
the Cost and Economic Impacts of '..
Implementing the Bevill Mineral
Processing Waste Criteria/' Because
these volumes differ by an order of
magnitude, the effect on EPA's
estimation of compliance oosts for
•hydrofluoric acid waste streams subject •
to. subtitle C at a Calvert City plant *
would be significant As discussed
below in section III, based upon further
data in the form of a revised survey
provided by one of the facilities in
.. question and detailed written comments
from the other, it appears that the waste
stream meets the high volume criterion .
and the compliance costs that
commenter claimed xvould be significant
will in fact not be incurred.
' a Sulfate process waste-solids from •
titanium dioxide production./One '
» commenter questioned EPA's conclusion
that the proposed rule would have no
economic impact on .the commenter's
facility. The commenter understands
that under EPA's policy, non-excluded
wastes which are disposed prior to the
effective data of the rule which would
make them subject to Subtitle C
requirements would not be subject to
direct Subtitle C controls such as
closure and post-closure care
requirements. In the commenter's case,
solid wastes from the sulfate and
chloride processes were accumulated in
surface impoundments until October of
1988. Since that time^however, only
non-hazardous wastes have bsen added.
The commenter assumes that consistent
with EPA's policy, these impoundments
will not be subject to closure and post-
closure requirements.
EPA responds that the commenter is
correct in his assumption as long as the
wastes previously placed in the surface
impoundments are not actively managed
after the effective data of today's rule.
As discussed in the September 1,1989
final rule, EPA will not be applying
Subtitle C requirements retroactively.
For further discussion of this issue see
54 FR 36592.
/ Wastes from phosphoric acid
production, Commenters from the
phosphate Tbck processing industry
contended that the industry could not
competitively withstand the costs of
complying with Subtitle Cor the LDR
requirements. They contended that it is
infeasible, if not impossible, to manage
process wastewaster from phosphoric
acid production in compliance with.
subtitle C requirements, especially in
view of the upcoming land disposal
restrictions on characteristic wastes. It
is essential that the Agency retain
process wastewater from phosphoric
acid in the Bevill Amendment exclusion.
As discussed below, EPA believes
that process wastewater from
phosphoric acid production'complies
with the high volume and low hazard
criteria and therefore the waste steam is
today retained within the Bevill
exclusion. The need for and technical
and economic feasibility of subjecting
this material to Subtitle C requirements
will be addressed in the Report to -
Congress.
F. Requests for Clarifications/Technical
Corrections on the September 1, W8L
Final Rule
One commenter brought to the
Agency's attention a difference between
the preamble and rule language hi the
September 1,1989 final rulemaking. In
the preamble to the final rule, the
Agency states that "roasting and
autoclaving are considered beneficiation
operations if they are used to remove
sulfur and/or other impurities in
preparing an ore or mineral, or
beneficiated ore or mineral, for
leaching." (54 FR 36618) In addition, the
commenter indicated that tha Agency
states that
chlorination is sometimes used prior to gold
leeching operations in a procedure
functionally identical to roasting and
autoclaving (i.e., to change a sulfide ore to a
chemical form more amenable to leaching}.
EPA recognizes that this type of pretreatment
operation may be an integral part of leaching
operations, and accordingly, considers non-
destructive chlorination of ores, minerals, or
beneficiated ores or minerals when used as a
pretreatment step for leaching, to be a
beneficiation operation. (54 FR 36613}
The commenter noted, however, thai
the language of the rule differs slightly
and refers specifically only to "roasting
in preparation for leaching." Ths
commenter requested that EPA clarify
the language of the September I final
rule so that pretreatment autoclaving
and chlorination, as well as roasting, are
clearly considered beneficiation
operations.
The Agency has reviewed the
language of the September 1,1989 final
rule and agrees with the commenter that
the rule could be read so that
pretreatment autoclaving and
chlorination might not be considered
beneficiation activities. As discussed in
the preamble, this was not the Agency's
intention. Thus, the languge of
S 261.4(b]{7) has been revised in today's
rule to read
"For purposes of this paragraph.
beneficiation of ores and minerals is
restricted to the following activities: * * '
roasting, autoclaving, and/or chlorination in
preparation for leaching (except where tb.s
roasting (and/or autociaving and/or
chlorination}/leaching * * *"
G. Concerns With Administrative
Procedures •
Commenters on the proposed rule '•.
made a number of requests to the
Agency regarding the procedures EPA ;
has followed for administering the '•
mineral processing rulemakings. One ' ]
commenter requested that EPA defer •
final action on the proposed rule
pending: (1) Judicial review of the ]
September 1,1989 final rule; (2) . '.
clarification of the applicability of the
rules to inactive processing facilities;
and (3) a review of the mixture rule.
Another commenter requested that the
Agency publish its rationale and allow
for public comment if EPA decides that
process wastewater from the production
of animal feed, ammoniated phosphate
fertilizer, and phosphate complex ponds
are not within the scope of the Bevill
exclusion. The same commenter asked
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2338 Federal Register / Vol. 55. No. 15 / Tuesday. January 23, 1990 / Rules and Regulations
that all documents .used for previous
rulemakinga be included in, the current
docket (MW2P). One commenter asked
EPA to assess the analytical-results of
the hazard sampling data and carefully
compare them with the commenter's
own split samples. Finally, one
commenter sought additional time for
publicjreview and comment on the
background documents for the high
volume criterion. The-commenter
claimed that the documents were not
.available for^omment before the
September 25th proposed'rule, yet
support the criterion made final in the
Septemberlst rule.
Because of court-imposed deadlines,
the Agency is compelled to promulgate
today's final rule on an accelerated
schedule (signature, by January IS, 1990).
In order to ensure that all information
compiled for previous rulemakingsla
fully available to the public, the Agency
has incorporated by reference .previous
mineral processing waste dockets,
except for the final-rule relisting six
smelter-wastes £53 FR 35412, September
13,1988), into the current docket. EPA
believes that the public has been ' .
provided an adequate opportunity to
comment on this rulemaking and,
therefore, an additional comment period
is not required. In-addition. EPA
believes clarification of the applicability
of the-rulea to inactive facilities and
review of the mixture rule are not
required or appropriate in the context of
this rulemaking because EPA's position
on these issues was established in the
September 1,1989 final rule.
m. Revised Application of the Final
Criteria for Defining Bevill Mineral
Processing Wastes
This section of the preamble-presents
clarifications to the waste stream
definitions used in the proposal, revised
waste volume data and additional
discussion of.selected data .used in
evaluating compUanise with the low •
hazard criterion. Only thosa waste
streams lor which noteworthy .changes
have been made to the proposal are
discussed in detail. A summary oT the
Bevill status of the 20 mineral
processing wastes is also presented.
A. Clarification of Waste Stream
Definitions
Based on careful-re view of .public
.comments, and additional analysis of
•previous EPA studies and company
.responses to the 1939 National Survey of
Solid Wastes-from MineraLErocessing
Jr-acilities, tin Agency has made.tha
following decisions concerning Ihe
definition of candidate Bevill waste
streams, xeliited process descriptions,
and-the numbers offacilities generating
each waste.
1. TreatedHesidue From Roasting/
Leaching of Chrome Ore
The residue from roasting/leaching of
chrome ore of concern in this rule is the
settled residue following treatment of
the s'hirried leaching waste. Both
facilities that reported generating
residue from roasting/leaching of
chrome ore .pump their untreated waste
directly .to an onsite treatment unit. In
contrast to the September 25 NPRM.. this
•final rule temporarily.retains the
exclusion from hazardous waste
regulations for only those treated solids
which are entrained in the slurry as it
leaves the treatment facility and which
settle out in disposal impoundments.
Available data indicate that this mineral
processing waste is both low hazard and
high volume. As indicated in the
proposal, the untreated waste is not low
hazard.
2. Process'WaatewateriFrom Coal
Gasification
The definition of process waslawater
from the coal gasification operation has
been revised,to clarify that process
wastewater from coal gasification is the
"stripped gas liquor" generated during
the gasification of'the coal. This process
wastewater may be run through several
• subsequent storage, treatment, and
reuse operations. This stripped gas
liquor was originally not nominated by
the facility because of a
misunderstanding about its status as a
solid waste. In comments provided on
the-September 25 proposal, however, the
company has requested that the entire
stripped gas liquor stream be considered
"process wastewater" rather than just
the portion reported previously. EPA
believes that .the stripped gas liquor is a
solid waste at the one facility that
generates the .waste, and has evaluated
the .extent to which the material
complies with .the final Bevill criteria
accordingly. Because the facility's
response to the 1989.National Survey
indicates ihat the process .stream, in
part-is .stored in surface impoundments,
EPA does not consider its .management
system to be closed-loop recycling,
meaning that for present purposes, the
Agency believes .this material is not
eligible for the closed-loop exemption.-
However, this does not affect the Bevill
status of the waste.
3. -Slag Tailings TronVPrimary Copper
Processing
ERA has identified, as a result of
' public .comments, an additional facility
thai processes .slag from primary copper
processing and .thereby -generates .slag
tailings. This increases the number of
facilities known .by EPA to generate .slag
tailings to three.
4. Furnace Off-Gas Solids From
Elemental Phosphorus Production
This waste .stream will continue to be
defined, depending on the facility in
question, as either the solid or semi-
solid material generated from the
phosphorus furnaces or.as the entrained
solids contained within.scrubber waters
generated from cleaning furnace off-
gases. In.no instance is .the scrubber
' water itself .considered to be the
.candidate Bevill waste because it is not
a high volume waste.
5. Process Wastewater From Phosphoric
Acid Production
This waste-stream, for purposes of
determining Bevill status, includes the
following process streams resulting from
phosphoric acid plant operations: water
from phosphoric acid production
operations through .concentration to
•merchant grade acid; phosphogypsum
transport'water; phosphogypsum,stack
runoff; process wastewater generated
from the uranium recovery step of
phosphoric acid'production; process
wastewater from.animal feed productiora
operations that qualify as mineral
processing .operations based on the
definition -of mineral processing that the
Agency finalized on September 1; and
process wastewater from
superphosphate production. As
proposed .on September 25, phosphoric
acid process wastewater is high volume
. and low hazard waste and is, therefore,
retained hi the exemption, although the
data used to arrive at this conclusion
have been modified in response to
public comments.
8. Chloride Process Waste Solids From
Titanium Tetrachloride Production
The "chloride-ilmenite" process
reportedly employed by three titanium
tetrachloride production faculties, for
purposes .of this rule, continues to be
considered a processing operation. The
primary reason for .this determination is
the understanding that during this "two-
stage" process, the operation destroys
the identity of .the mineral, produces
titanium tetrachloride gas (a mineral
product), and gawjsates wastes which
are functionally identical to the wastes
generated by the chloride process at the
other six titanium tetrachloride
facilities. The .fact that the ore being
.utilized is of a different .type and grade
is not justification for classifying the
operation as beneficiation. In addition,
by the .company'.s .own.admission,
wastes from, each .part of the "tworsiep
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Federal Rfegisfer / Vol'. SSI No. IS / Tuesday, fanuary 23, 199P / Rules and Regulations
2339
beneficiatfon-chlorination," process- are
not separable. Accordingly, the wastes
generated by tfaia chlorination process.
are subject to EPA's refaterpretation; of
the Mining Waste Exclusion: that was
finalized on September land Uriff
rulemakfag.. Assessments of volume andi
hazard performed both: for the
September 1 final rule and the
September 25-proposal included
"chloride-ilmenite" facilities as well as
other chloride process facilities. These
.previous assessments, as welt as
updates made in. support of this final.
rule, indicate that chloride process
waste solids from, titanium, tetrachloride
production are high volume and low
hazard and, therefore, are retained in
the exemption. Other wastes generated
by the chloride process (i.e.. wastes.
other than the chloride waste solids]
were classified as non-Bevill mineral
processing-wastes by the Septemberl
rule.
A Compliance with the High Volume
Criterion
Revised waste generation rate
estimates for the 20 conditionally
retained waste* are presented m Table
1». Many of these estimates have been
revised since publication- of the
September 25-proposal, primarily
because of three factors-. First;, revised
definitions or clarifications of what
constitutes1 the individual waste streams
have led the Agency to in. some cases'
include, remove, or otherwise revise
data related, to-volume estimates for
particular waste streams.
Second, EPA has revised, estimates in
a limited number of cases- hi direct
response to new data or other;
information (e.g., clarification, of survey
responses) contained fa public
comments-on the proposal.
Finally, EPA hasi for this final rule,
revised one average annual per-facility
waste volume presented in. Table. 1, not
because of new information, but
because the Agency ha* included'
confidential business information (CBI).
fa the calculation, after determining that
the data could be aggregated and used
without disclosing proprietary
information. The Agency notes that this
estimate is essentially the same as that.
used to make the high volume
determination for the proposed nilei the
average annual per-facility waste.
volume presented fa Table 1 of the —
proposal did not however, include data
from the CBI facilities. In cases where.
proprietary information would be-
revealed by presenting fa Table l.the
actual average based on, CBI data; the
Agency has either completely withheld
the data from the table (Le., where the
only two facilities fa the sector both-
requested confidentiality, e:g., chrome
ore; and titanium' dioxide sulfate'
process), has presented the sole non-CBI
facility volume (i.e., where only one of
several facilities is non-CBI, e.g., copper
calcium sulfate- sludge and lead process-
wastewater) or has published an
average based on the non-CBF data: (lie.,
where only one of several facilities fa
CBt e.gi, steel wastes J,
The Agency wishes to reiterate that
the fundamental source of data for
evaluating compliance with the high
volume criterion has been, and
continues to be, the 1989" National
Survey, fa- order to account for market
fluctuations; EPA allowed .facilities to
submit information fa public comment
on- the September 25 proposal
explaining, as necessary, that the
reported generation rates for 1988 did
not accurately reflect typical' waste
generation rates at the facility, fa
response, a small number of facilities
chose to revise their survey responses,
as noted above, but none claimed mat
relying upon 1988 data perse would
produce an inaccurate result
Accordingly, EPA has, for this final rule,
relied exclusively; witftone exception
described below, on its own in-depth
analysis of writteniresponses to the
National Survey to evaluate waste-by-
waste compliance with the high volume
criterion.
1. Treated Residue From Roasting/
Leaching of Chrome Ore
With the clarification, that the waste
fa question is- ife treated residue and
not the waste as it leaves the leach
operation, EPA has reviewed the CBI
data reported for the treated waste and
confirmed that the waste stream as
defined is, indeed, a high volume'waste
solid. Both facilities generate the non-
Liquid Bevill waste at rates fa excess of
45,00 mt per year.
2. Process Wastewater From Coal
Gasification
With the determination that process
wastewater. from, coal gasification, is •
stripped gas liquor, EPA has reviewed
the quantities of the total process water
generated at the facility and'confirmed
that the waste stream as redefined is,.
indeed, a high, volume liquid waste..
31 Calcium Sulfate Wastewater
TreatmentPlantSludgeFrom. Primary
Copper Processing
The Agency has reviewed its analysis.
of the volume data provided for this
waste stream fa the National Survey;
EPA has determined that the waste
volume presented fa the proposed rule
for the non-CBI facility is not
representative of the calcium sulfate
sludge, but of the sludge and the
combined transport liquid. The waste
volume used to evaluate, the status of
the waste* therefore, has been revised to
reflect the quantity of actual sludge
generated. These revised numbers are
consistent with ft) the estimates made
for previous proposed and final rules
regarding the refaterpretation of the'
Bevill exclusion and (2) volume'
estimates presented fa the faculty's
comments regarding those proposals.
EPAnotea>that a.review of the data from,
the CBJ facility leaves some doubt as to
the point fa the process at which the.
residual waste stream is the Bevill
waste, and therefore which waste
volume should be used- The Agency,
however, has confirmed that even a
conservative calculation using the
smallest, volume reported still yields an.
average which exceeds the 45,000 metric
ton threshold for the high volume
criterion. EPA concludes, therefore, that
the waste stream meets the high volume
criterion.
4. Slag Tailings'From Primary Copper
Processing
With. the. addition of. the third facility
to the group of facilities generating this
waste, the Agency reviewed the
available survey data and revised the
industry average generation rate-for slag
tailings to take into account for all three
facilities that generate the waste. After
revision of the quantity estimates, the
waste stream continues to pass, the high
volume criterion.,
5. Furnace Off-Gas Solids From
Elemental Phosphorus Production
Confidential Business Information for
three elemental phosphorus facilities
was included fa the recalculation of the
average waste volume presented fa
Table 1 of today's rule, and this value
was used to evaluate compliance with
the high volume criterion. These CBI
data were also- used to evaluate
compliance with the high volume
criterion for the September'25 proposal,
but were not presented fa the NPRM in
an- effort which upon closer
examination proves unnecessary^ to
protect the confidentiality of the data.
The average waste volume in Table 1
represents the actual solids generated
from cleaning the furnace off-gas; fa
some cases, these solids may have been
entrained fa scrubber water.* For EPA's
calculations, however, the quantities of
solids contained fa these scrubber
waters as reported fa the surveys (either.
as percent solids fa the'scrubber water
*Tfie available data indicate that the scrubber
water i» not a high volume waste.
-------
2340
Federal Register / Vol. 55. No. 15 / Tuesday. January 23. 1990 / Rules and Regulations
or quantity of sludge generated from
scrubber water settling) were the
volumes ascribed to those, facilities for
purposes of developing the sector-wide
annual waste generation rate. The
average per-facility volume of this waste
continues to be below the high volume
criterion.
6. Process Wastewater From .
Hydrofluoric Acid Production '
The Agency proposed to withdraw
this waste stream as a low volume
waste due to the failure of the facilities
to provide waste generation data in the
comments in which the waste streams
were originally nominated or in their
responses to the National Survey. Both
facilities reportedly producing Bevill
waste from hydrofluoric acid production
have subsequently presented the
Agency with volume data hi comments
and (in one case) a revised facility
survey. The Agency has reviewed these
industry comments and the-additional
survey data and has concluded that
process wastewater from hydrofluoric
acid production satisfies the high
volume criterion for liquids. As the
waste stream has been determined to be
low-hazard, the process wastewater is
retained in the Bevill exclusion.
7. Process Wastewater from Primary
Lead Production
The Agency has reevaluated its
methodology for volume estimation of
this waste stream, and has subsequently
removed from the analysis one facility!^
which was not operated on a consistent^
basis (37 days in 1988). The Agency's
analysis indicates, however, that
although removal of this facility from
the analysis increases the average
annual per-facility waste-volume, the
process wastewater is not generated on
a sector-wide basis in quantities
sufficient to meet the high volume
criterion. The waste stream, therefore,
has been withdrawn from the Bevill
exclusion. The value reported in Table 1
is the volume of process wastewater
from the remaining non-CBI facility; this
is not the actual sector facility average
used to make the high volume
determination.
8. Air pollution control dust/sludge from
lightweight aggregate-production
EPA has revised its estimate of the
volume of this waste stream based on
additional analysis of information
included in the surveys submitted by the
majority of the lightweight aggregate
facilities. Waste management data
submitted in the survey were analyzed
to determine more accurately the actual
generation of solids, in lieu of basing the
estimates on solids entrained in
wastewaters. These revised estimates,
confirmed by data submitted by
commente'ra addressing the earlier
proposed reinterpretations, were used to
calculate a new sector average for the
waste stream. The Agency
acknowledges that the facilities that use
air pollution controls other than wet
scrubbers, a minority in the sector, have
not been represented in the analysis
because data are not available on the
quantities of APC dust that these
facilities may generate. Data collected in
the National Survey for the irop and
steel industry, however, indicates that
APC dust resulting from dry collection
methods is typically of lower volume
'than sludges generated from wet
scrubbers. As a result, EPA believes that
inclusion of APC dust volume data in
the analysis would not increase the
facility average, much less double the
average as would be needed to meet the
high volume criterion. Based on EPA's
revised estimate, air pollution control
dust/sludge from lightweight aggregate
production does not pass the high
volume criterion and is hereby
withdrawn from the Bevill exclusion.
9. Sulfate Process Waste Solids from
Titanium Dioxide Production
Waste solids from the production of
titanium dioxide using the sulfate
process are removed from the
processing operations and managed in
multiple ways at the two facilities that
employ the sulfate process. In its
original response to the 1989 National
Survey, one. facility reported an
aggregated volume of waste solids from
chloride and sulfate processing
' operations. Because EPA was unable to
disaggregate the volume of wastes from
chloride v. sulfate processing operations
at this facility, EPA used data provided
by the other sulfate process facility as
the basis for the average annual per
facility waste generation rate in the
proposal. In comments on the proposed
rule, the facility that had previously
reported aggregated volume data
provided separate volume data for
choride and sulfate process waste
solids. As a result, for today's proposal,
EPA-has developed a revised per-facility
average annual waste generation rate
that is based on data from both
facilities. However, as in the proposal,
the waste is not high volume. The wastt;
stream, therefore, has been withdrawn.
from the Bevill exclusion.
TABLE 1.—RESULTS OF APPLYING THE HIGH VOLUME CHITERION TO TWENTY CONDITIONALLY RETAINED PROCESSING WASTES*
Commodity sector
Hydrofluoric arki . n .
UtM^mRttArt* *e*M
tmn
(fftfi
ttfml
Dtvt**%hsirtt *s4H
CfjuU !
Slut)
Titanium dtoxkto '. —
Conditionally retained waste
Gasifer ash..M».w»M.».« - ..........
Process wastowater n ,nIT
Calcium sulfate wastewater treatment plant
sludge.
Stag tailings.,..,.., -....*,.......«"
Furnace off-gas solids ..-.— •— •- — •
FIurjroQvpsum.. '. • ...nt. n
Process wastewater •»..._ -.«...,»...»... ....'.:.....,
Air pollution control dust/sludge.............. .,.,„.„
Blast furnace slag....-—™.-.— ..—•——— —
Process wastewater i ->». ..'.,1............
Air pollution control dust/sludge ,„,„.,. ..,„„
Anhydrous process wastewater .......,.....,«.«
Process wastewater «. ..,.,...;.„.««.-
Treated residue from roasting/leaching of
chrome ore.
Basic oxygen furnace and open hearth fur-
nace air pollution control dust/sludge.
Basic oxygen furnace and open hearth fur-
nace slag.
Sulfata proces* waste acids
Solid or liquid
Solid .......
(Jquid...H.«..««.»..
Solid
Solid —
QQJifj ,„
Solid
Liquid. . ..
Solid .,..
Solfd..—™™™—
Liquid «-~~~~~_-
Solid
Liquid..,.,.... ..,
Liquid
Solid —
Solid „„,..,........
Solid.
Liquid
Average per
facility
generation
(mt/yr)
240,000
4,830,000
78,000
503,915
1J.044
266,780
4,300,000
51,662
724,506
856,000
15,813
2,465,000
67.402,600
W/H
60,892
553,844
W/H
Notes
B
C
A.B.D
C
A.C
C
C
B, C
B
A.C.O
B.C
B
A.B.C
A.B
A.C.E
A.B
A.B
No. of
facilities
reporting
1
1
2
3
5
2
2
24
26
5
17
1
18
2
25
28
2
Passes high
volume
criterion
Yes.
Yes.
Yes.
Yes.
No.
Yes.
Yes.
Yss.
Yes.
No.
No.
Yes.
Yes.,
Ve*. ,.
Yes. -
Ye*.
Ye*.
-------
Federal Register f Vol. 55. No. 15 f Tuesday. January 23, 199O / Rules and' Regulations- 2341
TABLE t.-—RESULTS OF APPLYING THE HIGH VOLUME CRITERION-TO-TWENTY CONDITIONALLY RETAINED- PROCESSING WASTES"—
Continued1
' Commodity sector
Titanium-dioxide™™™... _.__„. _.
Titanium tetrnehlnriria.,,,..
Zinc........™™™™.™™.....™™.™™...,™....;....
Total numb* of wastes, meeting high volume-
Total number of wastes, failing high volume erf
• . CbnditkmaJly retained waste
Sulfate process waste solids "
Slag ..........._......„.........„
sriterion.. _ . .
' Solid' orllquicr
: SnKrt-
SOIW.."" »1_..
Soli*. ;
Average per
facility
generation
(mt/yfl
W/H
891349
157,000
Notes
A.C
A.B
B
. No. trf
' facilities-
reporting
2-
9
T
:erion ..., ,.,
Passes high
volume
criterion
No.
Yes.
Yes:
Iff
«
Data ar» from. 1989' National Survey ot Solid Wastes from Mineral Processing, Facilities* except a» noted.
W/H—withheld to avoid disclosing confidential business information (CSI).
A. Trw data, for- one. or mora.oitne generating facilaea- are- CBK
B. Generatioa data are, obtained, directly, from tha survey.
C. Calculated or interpreted by EPA based on information provided in me survey and: public comments;
including CBr%c!i!tie?doe^not crT ^"g11 ITtatus!110'8 °* ttl° aeneratln9 facilitie8 are csl- Reported number was not used to make Bevill determination; average
E. Generationdata was obtained from the survey for 12 facilities; data for 13 facilties was reported by. AISI.
C. Compliance? with theLowHazard;
Criterion
Consistent with the low hazard
criterion established on September 1,
1989, the Agency has used only waste
analysis data derived using EPA Method
1312 because there was no compelling
evidence that any of the 20 mineral
processing, wastes "is generated at five
ojr more facilities; and substantial
additional relevant data are available
and the preponderance of these
additional data indicate that the waste
should.be considered law hazard.'* (See
54 FR 38630:} The majority of the
Method 13121 data used are the result of
EPA sampling at selected facilities, but
some results are for split samples or
other sample analysis results provided
by operating facilities.
In addition, for today's, final rule, the .
Agency has utilized newly available
data from EPA'ff 1989 waste sampling
effort to make low hazard determination
for certain waste .streams- or components
of waste streams that may have been
included by redefinition.or clarification
of the waste stream or the operation's
process in today's final rule. Final
results of EPA's application of the low
hazard criterion are presented in Table
2.
1. Treated Residue from Roasting/
Leaching of Chrome Ore
With the clarification that the waste
in question is the treated residue from
roasting/leaching of chrome ore and not
the- waste as it leaves- the leaching
operation. EPA has reviewed its-waste
sampling data of the treated residue*.
and has confirmed that the treated
residue passes' the- low hazard criterion.
2. Process wastewater from coaf
gasification
With the determination that process
wastewater from coal gasification, ia
"stripped gas-liquor," EPA.has reviewed
the sampling, data for the stripped gas.
liquor generated at the facility, and
established that the waste stream as
redefined ia a low hazard, liquid waste.
3. Process- wastewater from- primary
lead production
The Agency ha» responded to
concerns from one commenter that a
composite wastewater sample taken, at
one facility was not a sample of their
process wastewater, but included
additional process waste streams. In
response, EPA analyzed- non-composited'
samples of slag granulation water,
which reportedly accounts, for more than
SO percent of the process wastewater af
this facility. This sample was found to
exceed the low hazard criterion.
Because the process wastewater also
exceeded the criterion at a second
facility, EPA concludes that this waste
stream is not low hazard.
TABLE 2.—RESULTS OP APPLYING THE Low HAZARD CRITERION TO TWENTY CONDITIONALLY RETAINED MINERAL PROCESSING
WASTES.
Commodity sector
Coal gas .. • _.„
Coal gas. :
Coppar ,„,.... ,._
Copper. . •_
Elemental phosphorus.. . __.
Hydrofluoric- acid ;_._. „
Hydrofluoric: acidi.,,,,..,.. _„..„, •.,.„•„,,
lron_ ;lu _, ; ni „
Iron ,..-.. ......\.....
Lead_ ......:_....
Lightweight aggregate™ ; „
Magnesium., ,; : . • •
Phosphoric arirt ' , L
Sodium chramBta/hiehrQfnatif ,..._._ _.,_.._..,
[ Conditionally retained waste
Gasifier ash
Process wastewater
. sludge.
: kg tailings
' Furnace off-gas solids.... „„„.,... u,,,..,,
: Procasg wastewator '
• Blast fumflc*? sfag r ~
Process wsstewafef v. • - ,
Air pollution control dust/sludge.^.™... _..
PfQC9$$ wastflwater '
chrome ore. . *"" ^
No. of fac.
1 beHevedta
generate1
waste-
» 9-
5'
*
flfV
26
9A
, Naoffefc
. sampled- by
• EPA
2
2
4
|
. : 1
, No. of fac.
submitting"
method
13-12 data
Q
0
0
: Passes lour
: hazard
• criterion
Yegrk.««.««.««.
Yen
Yes...™........
y^ ""
'•®^~-~ *
Reason for
failure'
N/A
M/A
N/A
As, Cd, Pb
N/A
N/A;
N/A. <
-------
2342 Federal Register./ Vol. 55, No. 15 / Tuesday. January-23. 1990 / Rules, and Regulations
TABLE 2.—RESULTS OF APPLYING THE Low HAZARD CRITERION TO TWENTY CONDITIONALLY RETAINED MINERAL PROCESSING
WASTES—Continued
Commodity sector
ShMrt .,.,
«5tinrt „„, „ '., ,„„ , ,„,„•„,
Titanium dtoodo
Titanium doxkto — - — —
Trtankirn tfltrflchforide . m,,,, n-
2Jnc :
Total number of wastes meeting low hazard c
Total number of wastes failing low hazard art
Conditionally retained waste •
Basic oxygen furnace and open hearth fur-
nace air pollution control dust/sludge.
Basic oxygen furnace and open hearth fur-
• naceslag.
Sulfata process waste acids.
Sutfate process waste solids — _.„__,.—.
Chloride process waste solids-. .„—....
Slaq — - - —
No. of fac.
believed to
generate
waste
27
27
2
9
1
No. of fac.
sampled by'
EPA
3
3
2
2
3
1
No. of fac.
submitting
method
1312 data
o o oooo
Passes low
hazard '
criterion
Yes..-.—. ..-.
Yes........—-.
No ...——..
Yes
Yes _...
Yes -..
Reason foe
failure
N/A
N/A
pH, Cr
N/A
N/A
N/A
18
2
D. Bevill Status of Conditionally
Retained Mineral Processing Wastes
The Bevill status of the 20
conditionally retained mineral
processing wastes is presented in Table
3. Fifteen of the 20 wastes have been
retained and .will be studied in the
Report to Congress and addressed by
the subsequent Regulatory
Determination. The other five wastes,
will, as of the effective date of this rule,
become subject to regulation as
hazardous wastes under subtitle C of
RCRA if they exhibit hazardous
characteristics.
TABLE 3.—RESULTS OF APPLYING BOTH BEVILL CRITERIA TO TWENTY CONDITIONALLY RETAINED MINERAL PROCESSING WASTES
Coromodtty soctof
Copper :
Copper _:
Elemental Phosphorus
Hydrofluoric Acid ...
Hydrofluoric Add -,
Iron -
Iron
i gfrf • ' ,
Ugntwelght Aggregate —
Mujnw&im „.
Cff^J
Steel
Titanium Dioxide !
Titanium DtoxkJ*
THanlom T«trachtorid« .
Total number of waste* retained within Bevill exdusioi
Total number of wastes withdrawn from Bevill exdusio
' Conditionally retained waste
Gasiflar ash , „..,....„...„„-,-,--,
Calcium sulfate wastewater treatment plant singe..,.™.
Slag tailings . : --r
Furnace off-gas solids. .
Ruorogypsum —- _.„—.._
Process wastewater „-..-.- — ™.™ —
Air pollution control dust/sludge
Blast fumance slag
Process wastewater -.._.-.—— — ~— ~...~- .
Air pollution control dust/sludge » —
Anhydrous process wastewater..—.—-—.™-.-—..
Process wastewater —.—...—————
Treated residue from roasting/leaching of chrome
ore.
Basic oxygen fumance and open hearth furnace air
pollution control dust/sludgo.
Basle oxygen furnace and opon hearth furnace slag...
Sulfate process waste acids .. '
Sulfate process waste solids , : . —
Chloride process waste solids '.
No. of
fac.
believed
to
generate
waste
1 Yes
1
2
a
s
3
30
30
S
28
1
28
2 Yes
- 27
27
2
9
1
Passes high
volume
criterion
Yes~l_
Vao
Y« „„,,
No
Yes__
Yes '
Yes
No.— — .-.
No ___.—.-
Yes
Yes,,,,.....
Yes— ._— .
Yes..— .
Ye» ...., , -----
Yes—
Yes- ~—
Passes low
hazard
criterion
Yes.— ....—.
y^
Yes
Y^s
Yes .- .
Yes
Yes
Yes - .
Yes '
No . ..
Yes..— _-- ...
Yes. ~.
Yes
Yes - -..
|«|q ,„,.,
Yes
Yes..
•
Retained
within Bevill
exclusion
Yes. •
Yes.
Yes.
No.
Yes.
Yes.
Yes.
Yes.
No.
No.
Yes.
Yes.
Yes.
Yes.
No.
No.
Yes.
Yes.
15
5
IV. Analysis of and Response to
Comments on Clarification to the
Definition of "Designated Facility" and
Modification of the Standards
Applicable to Generators of Hazardous
Waats • ... • -v.-..
In the 'proposed rule of September 25..
1989, EPA proposed a clarification tp^the
definition of designated facility.,, , '. ..;
regarding waste shipments from a'stqite
•where a waste is subject to the
hazardous waste regulations to a state
where tjke wa.ste is not yet regulated as
hazardous. This circumstance can arise
when EPA lists or identifies a new
waste as hazardous under its pre-
HSWA authority. In such c case, the '
waste is subject to RGRA hazardous
waste regulations only in those states';,
.that do riot hdve interim or final"
authorization to operate the RCRA :'] "'.
program. In a state authorized by.EPA.
operate' a hazardous waste program in..
lieu of the federal program (under the
authority of section 3006 of RCRA},.the
waste would not be subject to RCRA
requirements until the state revises its
program to classify the waste as
hazardous and receives EPA
authorization for these requirements.
This set of circumstances results from
the fact that RCRA allows states a /
specified time to adopt new regulations
in'order .to .minimize .disruptions to the
implementation of authorized state
programs. In contrast, that situation
dcies not occur, when the wastes are
mewly listed or identified pursuant to
the HSWA authorities since Congress
-------
Federal Register / Vol. 55, No. 15 / Tuesday, January 23, 1990 / Rules and Regulations 2343
specified that HSWA provisions are to
be implemented by EPA in all states
until such time as states are authorized
to implement the new regulations.
EPA's generator-regulations require a
generator of hazardous waste to
"designate on the manifest one facility
which is permitted to handle the waste
described on the manifest.' (See 40 CFR
262.20), The regulations clearly state
that the facility designated on the
manifest is the "designated facility" as
. defined in § 260.10 (See the direct
reference in the definition of
"designated faculty" to the manifest
requirement hi § 262.20). A designated
facility as currently defined in 40 CFR
260.10 must either (1) have an EPA
permit (or interim status) in accordance
with parts 270 and 124, (2) have a permit
from a state authorized in accordance
with part 271. or (3) be a recycling
facility that is regulated under
§ 261.6fc)(2) or subpart F of part 266, and
must also be designated on the manifest
by the generator pursuant to § 262.20.
It has become apparent that when
promulgated La 1980, the definition of
"designated facility" did not
contemplate the above situation which
has potentially broad impacts on the
RCRA program. EPA's current
interpretation of the statute is that the
manifest requirement and the definition
do not apply to materials that are not
- officially identified as RCRA hazardous
wastes in the state that is receiving the
wastes. Today's clarification amends
the definition of "designated facility"
and the standards applicable to
generators of hazardous waste in 40
CFR 262.23, hi order to make this
interpretation clear to the public and the
regulated community.
A. General Comments on the Proposed
Definition
A number of commenters supported '
EPA's effort to clarify the existing
regulations so that the parties affected
by non-HSWA waste identifications and
listings know the status of these wastes
and the management standards that
apply to them when they are shipped
across state borders. These commenters
indicated that the proposed revision to
the definition of "designated facility" in
§ 260.10 offers additional clarity and an
appropriate level of flexibility to assist
both the regulatory agencies and the
regulated community. Several
commenters also supported the
proposed change to § 262.23 by adding
paragraph (e) to clarify the requirement
that the generator must ensure that the
designated facility returns the manifest
to the generator to complete the waste
tracking procedures as required by
RCRA regulations.
Two commenters argued that the
statute prohibits EPA from making this
change to the definition of designated
facility. These commenters pointed out
that RCRA Section 3002 (a)(5), which
sets out standards applying to
hazardous waste generators, requires
use of a manifest system
* * * to assure that all such hazardous waste
is designated for treatment storage or
disposal in-and arrives at treatment storage,
or disposal facilities (other than facilities on
the premises, where the waste is generated)
for which a permit has been issued as
provided in the subtitle * * '(emphasis
added}.
Section 3003(a)(4), pertaining to
transporters, contains substantially
similar language.
The commenter argues that these
provisions require materials that
officially have the status of RCRA
hazardous waste to go to facilities
holding Subtitle C permits. EPA '
generally agrees with this view. EPA,
however, notes that the mining wastes
that become hazardous wastes as a
result of this federal rule will not have
official status as RCRA Subtitle C
wastes in all states at the same time.
Nexv RCRA rules—including new waste
identification rules—that are
promulgated using statutory authorities
hi effect before the 1984 HSWA
amendments take effect only in states
that are.not yet authorized to implement
the pre-1984 RCRA hazardous waste
program. Currently, only 7 states lack
authorization for the pre-1984 program.
Consequently, today's rule will take ,
effect only hi those states. In all othe?
states, Subtitle C regulation of these "
wastes must wait for the states to
promulgate parallel regulations or
statutory changes, and obtain EPA
approval to implement these new
additions to their Subtitle C programs.
This process can take many months. See
generally 50 FR 28729-28730 Quly 15, -
1985), describing RCRA Section 3008.:
See also the state authorization section
to today's notice.
Consequently, EPA believes that the
"permitted facility" requirements of •
sections 3002(a){5) and 3003(a)(4) apply
only within the boundaries of those
states where the relevant mining wastes
have officially attained the status of
RCRA-regulated subtitle C "hazardous
wastes." Status as a "hazardous waste"
is, indeed, the basic prerequisite for the
exercise of any subtitle C jurisdiction. If
a material is not yet a hazardous waste
in the state to which it is sent for
treatment storage, or disposal, no
subtitle C regulations apply. A manifest
is not legally required, and the facility
that accepts the waste need not have a
subtitle C permit. EPA, hi fact, would be
unable to enforce manifest and
permitting requirements in a state where
a material is not yet a subtitle C
hazardous waste.
Since at least two interpretations of
the statute are possible, EPA may
exercise its discretion to choose the
view that best promotes the overall
policy goals of RCRA. EPA believes that
there are sound policy considerations
favoring the "jurisdictional" view, which
considers the materials RCRA
hazardous waste status to be a
jurisdictional prerequisite.
The commenters' interpretation of
RCRA sections 3002(a)(5) and 3003(a){4)
would force newly regulated wastes that
are generated in unauthorized states to
be managed hi those states. Essentially,
these wastes would be "trapped" hi
these unauthorized states, and they
could only be managed hi avoidance
with the treatment, storage, and disposal
alternatives that are available hi those
states (which could be limited). This is
primarily because TSD facilities hi
authorized states would not be able to
obtain the necessary permit
modification or change hi interim status.
Since the wastes are not yet hazardous
hi these states. One problem which can
arise from this situation is that the
facilities best suited to the management
of wastes which are newly listed or
identified may not be located hi the
states where the rulemaking is in effect
The Agency believes that such facilities
should not be precluded from accepting
wastes from states where the rale is in
effect while the state hi which they are
located is seeking authorization for the
waste stream.
One example of particular interstate
concern involves a mixed waste stream
(i.e., a waste stream that contains both
hazardous waste and radioactive waste]
called scintillation cocktails.
Scintillation cocktails are commonly
generated by approximately 10,000
hospitals and universities across the
country. This waste stream became
regulated pursuant to non-HSWA
authority as described hi the July 3,
1986, Federal Register notice, and
• therefore were initially regulated under
the RCRA program only in the
unauthorized states. Approximately 80 •
percent of the national capacity for
treatment of these particular wastes
resides with one facility. The Agency
understands that this facility is hi
compliance with state standards that
are equivalent to the federal RCRA
requirements. However, the facility is
located in a state that has not yet
received mixed waste authorization, and
therefore the facility does not have a
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2344 Federal .Register./ Vol. 55. No. 15 / Tuesday. January .23. .-1990 /'Rules .and-Regulations
•RCRAjpermit or interim-status.:If all
these scintiUation.cacktails were
•required to go to RCRA permitted
faciUtiesiaa suggested.by these
commenters, a significant number of
waste shipments from.thousands of
generators wouldrbe.disrupted^Infact,
in thisicase-the.Agency believes that
such ajcestriction would-generally result
liniless.protective waste-management
sinceitis."doubtful.that the wastes
,w.ouldlbe!treated:and.recoversdto.the
same 'degree aa-ia;presently.Dccurring.at
this large.lacility.
the Agency.would-also like,to:point
out:thatiWithoutthB'flexibility,provided
,by • to day!s.rule,-there-would-likely be-a
significant disincentive for, states to
adoptnew waste listings unless they
wereicorifidenti that adequate treatment
storage.tor.disposal capacity exists.for
wastes .within.the state. This is because
generators in thafirstfew states to
adopt.the.waste.listing wouldnotbe
able to .send their wastes to facilities in
other authorized states (which-are^the
vast majority.of states),thathave-not
adopted the-liating because the TSD
facilities in these^tates-wouldnot be .
ableitaobtain thanecessary-RCRA
permitmadifications-or.changes.in
Interim:atatus.1EPA.believes that this
disincentiveiwould not be.desirable.
.The name-two- commented, in arguing
that.EPA'a.proposal.should be
withdrawn, contended-that thereas no
firm-evidence that the-problem
hypothetically sfacing theregulated
community, actually-exists. .The
commantera stated that-the problem.-is
miniscule,.if:nat completely iUusory. Jhe
commenters:indicated-that the:problem
that EPA attempts to address in-the
rulemaking could only arise-if.EPA lists
or,identifies.a waste as-hazardous
pursuant to-.non-HSWA.authorities: the
^generator needs.to-send .the .waste off-
'site and the only available'dfivsite-waste
facilities, capable, of' managing the;waste
are located unauthorized states. The
commenters'indica ted. this scenario
would.occurin.only a. very'limited
number.bfcircumstances,.and therefore
does nor.warrant any.chan'gelto-the
definition.of. designatedfacility.'.The
commenters.go.on-.to'say thatEPAican ,
only identify three.noniHSWA
rulemakings,resulting.in. newly listed-.or
identiOed.wastes.
EPAatrongly.disagrees-w.ith'the
statement.that'thisiisanallusory . , ..
problem for.the following zeasons. In the
September ^proposal. EPA identified :
three.recentmonTHSWArmleSiOnly-as:...
illustrative examples-ofBituations where
interstate shipments, could be a-problem.
iHo\vever,-• ,
.It should;be recognized that the:three
and-.arhalf year period;is the. maximum
allowediby the state-authorization
regulations.-.Generally,.statesl-are .
required'to ;aclopt federal program
changes'within;twoiyears,{ar three years
if;therstate:needs.to amend.its statute).
Some-extensions.-of'.these.deadlines are
available.Bo.wever^EPA:recognizes
that while some statesihave^been-able to
meet therauthorization.1 deadlines, others
have'notoiue:to:the.number and
complexirycof;the-.changes;to RCRA
regulations.in:the pastfew-years. The
Agency mtends- to place increased
emphasis-.on prompt state adoption>of
new waste.1 listings!to ensure.uniform,
national coverage of newly listed or
identified-wastes. It should also be
.noted that'there is-a lag time between
state'adoptibn of a.requurement and:the
officiarEPA action to authorize that
state to implement the regulation under
RCRA-authority. Therefore, in many
cases states are regulating these new
activities in a manner equivalent to the
RCRA program well before they have
received authorization.
B^Relationship-Between Today's
Clarification and Non-RCRA State
Hazardous Wastes
'One-.commenterwas concerned.about
the-situation-where a waste is generated
hi a'state-which,:as-a-matter.of state law
only.-regulates-the waste as-hazardous,
but-is transported.to a receiving state
that does-not m-this case, the receiving
state-is-uncler.no'federal compulsion.to
amend its regulations to add that waste
to its'list of hazardous wastes,.since.the
listing ofcme non-RCRA,waste is a
matter of state: law.' EPA has no
jurisdiction over this situation. Thus,
this-clarification of the definition of
designated facility does not apply to
state listednonJ-lCRA hazardous waste.
A second commenter shared-the
above concern but also stated that
fEPA's.-prpposed clarification does not
distinguish between state>and federally
classifiedfhazardaus -waste. The
commenter contended that the>Agency
should stipulate that this clarification
only-applies to federally-regulated
wastes, that.the Agency did net intend
tojpreclude the .receiving state .from
designating-the type of facility which
canimanagesuch-state^classified
hazardous-waste* and-that federal
authorization, is irrelevant to the , .
uiterstatejteansportatidri: of; state-
classified wastes.' .'!.''
.The: AgencyTecognizes;the: issue •
presented bjr the: commenter! however,;
EPAibeliiBvesJtnat:thi8iis'.notacommeht
on the.elarificationito-:the'definitian''of
the term "designated facility".-as
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Federal Register / Vol. 55, No. 15 /Tuesday, January 23, 1990 / Rules and Regulations 2345
proposed on September 25,1989. Rather,
the issue raised by this commenter
concerns the requirements of the current
definition. Indeed, the current definition
does not apply to non-RCRA hazardous
wastes since it only applies to the
hazardous wastes that the Federal
government has authority to regulate
(i.e., federally listed or identified
hazardous wastes). If a state chooses to
be more stringent and regulate
additional wastes not regulated under
RCRA, that state must adapt it's RCRA
regulations with regard to the definition
of designated facility to accommodate
these new wastes. Each state must
determine, therefore, how it will reguJate
the out-of-state shipment of state-listed
wastes. Furthermore, the Agency does
not, under the original definition or this
subsequent clarification, intend to
specify to authorized states the types of
facilities that can manage state-
classified hazardous wastes. Finally,
EPA also does not, with this clarification
or the original rule, seek to regulate the
interstate transportation of state-
classified wastes. Neither the original
federal definition, nor today's.
clarification has any impact on the state
regulation of state-classified hazardous
wastes or the out-of-state shipment of
these wastes.
C. Who Can Qualify as a Designated
Facility?
One commenter argued that EPA's
proposed clarification raised
ambiguities by suggesting that some
kind of approval is needed in a state
receiving a waste, even if none is
required by state law. The concept of a
state having to provide an "allowance"
to a facility in order for it to accept
wastes that are not regulated in the first
place appeared to be burdensome and
unnecessary. One commenter stated
that EPA should acknowledge that a
waste that is not regulated in a receiving
state can be sent to any facility in that
state so long as nothing under state law
disqualifies it from receiving such waste.
EPA would like to clarify that under
today's rule, the laws of the receiving
state determine which facilities may
accept and manage the waste streams.
The receiving state also determines
what prior approvals, licenses, permits.
etc., if any, are necessary. Today's
clarification adds no additional
approval requirements on facilities
managing non-hazardous wastes from
other states. The requirements placed on
these facilities are a matter of stated
law.
D. Which Standard?-Apply to Interstate
Shipments?
Another commenter argued that the
standards of the state where the
generator is located should apply to the
treatment, storage, or disposal of
hazardous waste, rather than the
standards of the receiving state because
it would be extremely burdensome for
the generator of a hazardous waste to
keep track of the continuously evolving
hazardous waste regulations of ail fifty
states.
The Agency disagrees with this
commenter. A state can onlylpply its
laws and regulations to facilities over
which they have jurisdiction (Le.,
facilities within the stated boundaries).
Therefore, if a generator is sending
wastes to a facility out-of-state, the
treatment, storage, or disposal
standards that apply are those of the
state where the TSD facility is located.
It is incumbent on the generator to know
the requirements of the states where the
wastes will be managed. However,
much of the responsibility for complying
with the receiving state's regulations
falls on the TSD facility. In most cases,
the generator simply has to ask a
potential receiving TSD facility if it is
allowed to manage the generator's
wastes by its state government. The
Agency does not believe that this is
particularly burdensome to the
generator. . -
E. Other Comments
A minor technical correction is also
included in the rule language of
"designated facility" to clarify that an-
interim status facility in an authorized
state may be a designated facility. EPA
• believes that it is universally understood
that these interim status facilities can
accept hazardous waste shipments, and
this was the original intent of the
provision. Therefore, in the first
sentence of the rule a parenthetical
clause is added with the words "or
interim status".
. The Agency has noted and corrected
the typographical error that appeared in
the proposed rule as follows: Under
proposed § 260.10(4}, the generator is
designated on the manifest pursuant to ,
§262^0, not §.260.20.
F. Manifesting requirements, , '
Today's clarification will not alter the
requirement that a generator offer his
waste only to transporters who have
EPA identification numbers. (See 40 CFR
262.12(c)). Thus, if a newly listed waste
is transfered between transporters in a
state where the wa'ste is not yet
hazardous, both transporters should be
identified on the manifest. The initial-
transporter is still required to keep the
copy of the manifest on file.
In order to ensure that the waste
reaches the designated facility, EPA is
requiring the generator to arrange thai
the designated facility owner or •
operator sign and return the manifest ft?
the generator, and that out-of-state
transporters sign and forward the
• manifest to the designated facility. The
return of the manifest to the generator
will "close the loop" on the disposition
of the generated waste arid allow the
generator to attempt to resolve any
discrepancies in the manifest, as
required by 40 CFR 262.42. This new
requirement parallels the requirements
in 40 CFR 264.71 and 265.71. However.
as opposed to those sections, which.
require the receiving facility to return
the manifest, § 262.23(e) puts the burden
on the generator to ensure the return of
.the manifest when the waste is sent to &
facility in a state not yet authorized to
treat the waste as hazardous. EPA
believes that this approach is
appropriate, since the facility receiving
the waste and any out-otstate
transporters may not be subject to
subtitle G regulation, if they do .not
otherwise handle any RCRA hazardous
wastes. It should be noted that with this
approach the designated facility and
out-of-state transporters are not
required to obtain EPA identification
numbers since the waste is not
hazardous in their state. (Of course,
once the state becomes authorized to
regulate the particular waste as
... hazardous, the facility would need a
RCRA Subtitle C permit (or interim
^status) to continue managing the waste
. and ail transporters would need EPA
identification numbers.)
V. Regulatory Implementation and
Effective Dates of the Final Rule
. EPA is finalizing this rule in ,
accordance with the March 14,1989
order of the U.S. Court of Appeals for
the D.C. Circuit (see Environmental
Defense Fund v. EPA, 852 F.2d 1316
(D.C. Cir. 1988) cert, denied, 109 S.Ct.
1120 (1989)). As of the effective date oi
-this final rule (i.e., six months after
today or July 23,1990, the five mineral
processing wastes for which the
. temporary exemption from subtitle C
regulations (previously provided by
RCRA section 3001(b)(3)(A)(ii)) is being
removed by today's rulemaking may be
subject to subtitle C requirements in
those states that do not have
authorization to administer their own
hazardous waste programs in lieu of - .
EPA. Generators,-transporters, and .-
treatment, storage, and disposal (TSD)
facilities thai manage any of these five
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'2346
.-Federal Register./ -Vol. 55, .'No. 15 •/ Tuesday. January ;23, :1990 '/ Rules 'and Regulations
wastes, ia authorizedistates-willbe
subject to RCRAfrequirementsiimposed
as a resulbof-this final rule only afterthe
state revises-itsiprogram to adopt
equivalent requirements-and-EPA
authorizen-the revision.
The requirements-imposed as.asresult
of removing.the.temporary..exemption
include::Determining whether the solid
waste(s): exhibit hazardous
characteristics. (40.CFJR.26241) and^for
those.wastes^thatare-hazardaus,
obtataing'an!EPA.identification.number
for managing'hazardous wastes (40.CFR
262.34):, complying.with recordkeeping
andreporting requirements (40 CER
282.40r-2S2.43); and, obtaining: interim
status and seeking a permit (or
modifying interim, status* including
penniLaRplications.or modifying a
permit, as appropriate) (40 CFRPart
270).
A. Section 3O10 Notification
When-EPA,publlshed;its September 1,
1989 final rule (54 FR 36592),'the Agency
removed thertemporary exemption from
subtitle C regulations foraU'but twenty-
five mineral.processing-wastes. In that
rulemaking,-the Agency indicated.that
all persons generating,'transporting,
treating/storing,'or disposing of one-qr
more-of those wastes-were' to notify
eitherEPA or an-authorized-state'within
90 days-(i.e., by=November30,1989) of
such-activities, pursuantto^section 3010
of RGRA,-iflthose-wastes are
characteristicdlly hazardous under 40
CFR part 261, mibpart-"C.r(see-54 FR
36832.) Following the publication of the
Septemberrule,-however,- a-number of
facilities' expressed- confusion1 regarding
the notification requirement'because
section VII of-the preamble'to-'the
September 1,1989 final-rule also states
that 'UhefmaLrule.is-not-effective in
authorizedatates'because its
requirements are not'being imposed
pursuant to the Hazardous andSdlid
Waste'Amendments.dfl984.":(See:54,FR
38B33).'ThiB.statemerit was correcfcin
regard to'the.requlrenientjtoifile a.partA
permit-application and ,TSB; standards.
It wasuiofccorrecbiniregard to section
3010 notification, wHichwasiintended'to
applyjtoiall persons-generating,
transporting.itreating, -storing; or
disposing o£hazardous .wastes'identified
by.charabteristics rega. lless of whether
in an-authorized statejjr-nat,Because
thedSepteidber;i,'ia89:final'rule removed
artemporary.exemption; andsthus
identifiedas'.characteristically
hazardous some-wastes,tsection 3010
required!notificationr.withm:9O,days.
BecausetsomepatentiallyiaffejSted
facilities may;haYefbeen.confused by;the
September;l:premable'.and:because!the
Agencyhasinotyet.-published'a
clarification, -EPA; is> today eUminating
the notification requirement'established
by the September-1 final rule for
facilities unauthorized states. For
facilities.in,unauthorized.states, the
deadline, for .compliance-with the
notification requirement established by
the, September.iTule, is being extended
until 90-daysf fallowing taday!s
publication:(i.e.,'April 23,.1990).-EPA has
concluded-thatdfcis'appropriate to1 waive
the notificationrrequirementin
authorized states because (1) the
universe-ofcnewly.regulated. activities
will! be identified when state regulations
areTevised, as-theymust-be forthe
states to retain authorization;.and' (2)
RCRA identification numbers-provided
to notifiers in authorized states are
obtained'by the-state'"from-EPA, so in
this way EPA.is-uiformed of the
notiScations-that authorized states
receive.
,Accordingly,nx)t later. than."90 days
'following .today;s.public3tion:(i.e., April
.23,1990),-all persons in unauthorized
states who .generatei-transport, treat,
store, or dispose,ofwastes-thati(l). are
removed from'the Bevill.exemption.by
this final.rule,Land(2)'are
characteristiQal|y:hazaKdous urider-.40
CFR; part 261, siibpart>C,;mustnotify
EPA= of such activitiesipursuant to
Section 3010-of .RCRA, Notification
instructions are set forth in 45/FR12746.
Persons who previously have-notified
EPA or an authorized state of their
activities pursuant'to^section 3010 of
RCRA, (i.e,, persons whci previously
havetnotifiedTSPA oivan'authorized state
that:they(generate,ltransport,.treat, store
-or dispose ofchazardous waster and have
received, an-identification number—see
40"CFR'262.12,•263.11 and'265,1) need not
re-notify^'iPersons without EPA
identification numbers* are prohibited
from transporting, .offering-for transport.
treating,.storing, .or.disprising of
hazardous wastes.
,Forithe-;sameTeasons iiscussed
sabove,:facilities managiog-.wastes
remove dJramcthe.exclugion:in
authorized.states:need not notify;EEA:or
an authorized:state-witJiin:90.days of
• today's rule. Section-SOio.Notification
will be required.of.sueh.facilities after
the state receives authorization or
• Otherwise'amends-its-program to
regiilate-these-orTequire such
, .notification.
£..Compliance-Dates.for Today's Rule
1. Interim Status and Permit
Modifications-in Unauthorized States
Faeilities.in.unauthorized states that
currently treat, store, .or dispose of
wastes that have been removed from
temporary Bevill exclusion: and are
characteristically-hazardous under-40
CFR Part 281, Subpart C, but have not
received a-permit pursuant.to Section
30Q5.of.RCRA andare.not operating
pursuant' to» interim status,.may-be
eh'gible.for.interim status (see Section
3005(e)(l)(A)(ii) of RCRA, as amended).
In order to operate pursuant to interim
status, such facilities must submit a
Section 3010/notice pursuant to 4.7 CFR
270.70(a) within 90 days of today's final
rule-(i.e., by April 23,19SO, " and must
submit a.part A permit application
within six months of today's final rule
(i;e.,'by'July 23,1990). Under section
3005(e)(3), land disposal facilities
qualifying-for interim status under
-section 300S(e)(l)(A)(ii) must also
submit a-part B application and certify
that the'facility'is in compliance with all
app'licable-'ground-water monitoring and
financial responsibilityrequirements
-.withm!18.-months'of:today'sifi.nal rule.
(i.e.,-by'July:23, -199I).-K-the:facility fails
to-do =80, interim^ status will terminate on
that date.
Completion of JKnal permit application
will 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;mvolved); manifest systems,
recordkeeping, and .reporting;, closure
and..if appropriate.ipost-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
restrictions (LBR) standards. As
explained'in the September 1,1989 final
•nile and hvthe proposed IDRs for third
scheduled-wastes (54 FR 48372,48492:
November 22,1989) EPA considers
wastes;that-are'brought under Subtitle C
regulation'by"today's final rule to be
"newly identified" wastes for purposes
of< establishing. LDR standards^under
section 3004(g)(4) of-RCRA.;(54FR
36624). Accordingly, :EPA.has-,proposed
that newly?identified mineral processing
'.Under the Solid Waste-Disposal Amendments of
1980. (Pub.' L. 96-J62}.EPA was given the /option-of
waivuig thenoUfioattonTequirementnndersection
SOIOoPRCRAJ'foHoiOing raviiion okth&tecliort 30O1
regiilatioM.'at Iherdl.scration of the-Aidministrator.
•-•Except peraona who pieviously.havanottfied
EPA or an •authorized atate that they generate,
transport treat, store or dispose of hazardous waste
and have received an identification number.
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Federal Register / Vol. 55. No. 15 / Tuesday, January 23. 1990 / Rules and Regulations 2347
wastes not be subject to the BOAT
standards that the Agency proposed on
November 22,1989 for characteristic
hazardous wastes. As required by
RCRA section 3004(g)(4)(C). EPA plans
to study the mineral processing wastes
removed from the temporary exemption
to determine BDAT for ones that exhibit
one or more characteristic of a
hazardous waste.
All existing hazardous waste
management facilities (as defined in 40
CFR 270.2) that treat, store, or dispose of
hazardous wastes covered by today's
final rule, and that are currently
operating pursuant to interim status
under Section 3005(e] of RCRA, must file
with EPA an amended Part A permit
application within six months of today's
publication (i.e., by July 23,1990), in
accordance with § 270.72(a).
Under current regulations, a
hazardous waste management facility
that has received a permit pursuant to
Section 3005 may not treat, store, or
dispose of the wastes.removed from the
temporary exclusion by today's final
rule, if those wastes are
characteristically-hazardous under 40
CFR Part 261, Subpart C, when the final
rule becomes effective (i.e., July 23,1990)
unless and until a permit modification
allowing such activity has occurred in
accordance with § 270.42. Consequently,
owners and operators of such facilities
will Want to file .any necessary
modification applications with EPA
before-the effective date of today's final
rule. EPA has recently amended its
permit modification procedures for
newly listed or identified wastes. (See
40 CFR 270.42(g).).Fbr more details on
the permit modification procedures, see
53 FR 37912, September 28,1988.
2. Interim Status and Permit
Modifications in Authorized States
Until the state is .authorized to
regulate the wastes that are being
removed from temporary exclusion by
today's final rule and that are hazardous
under 40 CFR part 261, subpart C, no
permit requirements apply. Facilities
lacking a permit, therefore, need not
seek interim status until state
authorization is granted. Any facility
treating, storing, or disposing of these
wastes on the effective date of state
authorization may qualify .for interim
status under applicable state law. Note
that in order to be no less stringent than
the Federal program, the state "in
existence" date for determining interim
status eligibility may not be later than
the effective date of EPA's authorization
of the state to regulate these wastes.
These facilities must provide the state's
equivalent of a part A permit
application as required by authorized
state law.
Finally, RCRA section 3005(e) (interim
status) or any authorized state analog
apply to waste management facilities
qualifying for .state interim .status. For
those facilities managing wastes under
an existing state RCRA permit state
permit modification procedures apply.
VI. Effect on State Authorizations
Because the requirements in today's
final rule are not being imposed
pursuant to the Hazardous-and Solid
Waste Amendments of 1984, they will
not be effective in RCRA authorized
states until the state program
amendments are efffective. Thus, the
removal of the temporary exclusion will
be applicable six months after today's
publication (i.e., on July 23,1990) 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 reinterpretation of the.regulation of
non-excluded processing wastes will not
be applicable until the state revises its
program to adopt equivalent
requirements understate law and
receives authorization for these new
requirements. (Of course, the
requirements will be applicable as state
law if the state law is effective prior to
authorization).
Based on the scope of today's final
rule, states mat have final authorization
(4aCFR 271.21(e)J must revise their
programs to adopt equivalent standards
regulating non-Bevill mineral processing
wastes that exhibit hazardous
characteristics as hazardous by July 1,
1991 if regulatory changes only are
necessary, or by July 1,1992 if statutory
changes are necessary. These deadlines
can be extended by up to six months
(i.e., until January 1,1992 and January 1,
1993, respectively) in exceptional cases .
(40 CFR 271.21(e)(3)). Once EPA
approves the revision, the state ,
requirements become RCRA Subtitle C
requirements in that state. States are not
authorized to regulate any wastes
subject, to today's final rule until EPA
approves .their regulations. Of course,
states with existing standards that
' address these wastes may continue to
administer and enforce their regulations
as a matter of ftate law.
Currently unauthorized states that
submit an official application for .final
authorization less than 12 months after
the effective date of today's final:rule
(i.e., before January 23,1991) may be
approved without including an
equivalent provision (Le.. to address
non-Bevill mineral processing wastes) in
the application. 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).
VII. Economic Impact Screening
Analysis Pursuant to Executive Order
12291
Sections 2 and 3 of Executive Order
12291 (46 FR 13193) require that a
regulatory agency determine whether a
new regulation will be "major" and, if
so, that a Regulatory Impact Analysis
(RIA) be conducted. A major rule is
defined as a regulation that is likely to
result in one or more of the following
impacts:
(l),An annual effect on the economy
of $100 million or more;
(2) A major increase in costs or prices
for consumers, individuals, industries.
Federal, State, and local government
agencies, or geographic regions; or
(3) Significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign-
based enterprises in domestic or export
markets.
Today's final rule completes the
Agency's revised interpretation of the
Bevill Mining Waste Exclusion for
mineral processing wastes. The first part
of this reinterpretation, dealing with the
vast majority of individual mineral
* processing waste streams, was made
final on September 1,1989. The
preamble to,the September 1 rule
presented the results of the Agency's
economic impact screening analysis,
covering scores of small volume mineral
processing wastes, and examining cost
impacts associated with 39 potentially
hazardous low volume wastes in detail.
This analysis indicated a total annual
compliance cost for subtitle C waste
management of about $54 million. As
indicated in section III of this preamble.
today's final rule removes five
additional processing wastes from the
Bevill exclusion and subjects them to
regulation under subtitle C of RCRA if
they exhibit hazardous characteristics.
Consistent with Executive Order
12291, the Agency has completed a
revised economic impact screening
analysis for the five mineral processing
wastes removed from the Bevill
exclusion by today's rule. These
revisions account for changes in the
Bevill status of certain wastes since the
September 25,1989, NPRM and
comments received on the original
analysis. Results of this revised analysis
suggest that three of the five waste
streams are likely to exhibit hazardous
characteristics at some or all of the
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2348 Federal Register / Vol. 55, No. 15 / Tuesday, January 23, 1990 / Rules and Regulations
facilities that generate them. One
additional waste stream (air pollution
control solids from lightweight aggregate
production] may be regulated at some
facilities under the subtitle C "derived-
from." rule. As a consequence, as many
as eleven mineral processing facilities in
four different commodity sectors may
incur compliance costs due to this rule.
The Agency estimates that total annual
compliance costs are not likely to
exceed $18.5 million and therefore
concludes that today's final rule is not a
"major rule" according to the first
criterion of E.0.12291.7
With respect to the other E.0.12291
criteria, the Agency does not predict a
substantial increase in costs or prices
for consumers or a significant effect on
international trade or employment in
connection with today's final rule. Some
individual mineral processing facilities
in the lightweight aggregate and
titanium dioxide sectors may experience
significant compliance costs which
would affect their ability to compete in
their respective commodity sectors. On
balance, however, the Agency concludes
that today's rule does not constitute a
major rule as defined by E.0.12291.
The following paragraphs of this
section briefly restate the Agency's
economic impact screening approach
and assumptions, and provide revised
results.
A, Approach
1. Methodology and Assumptions
The revised screening analysis
prepared for today's final rule used
essentially the same methodology
employed for and described hi the
September 25,1989, NPRM (54 FR 39312-
16] and accompanying background
documents, to which the reader is
referred for details.
Substantial differences between the
scope and results of the analysis
described in the proposed rule and those
reported here primarily reflect a shift in
the Beyill status of several key waste
streams based on new information on
waste generation rates and chemical
characteristics, as described above in
section 111. Specifically, the final rule
restores the Bevill status for two wastes
for which the Agency has previously
* estimated compliance cost impacts in
the September 25 NPRM (roast leach ore
• residue from chromite processing and
process wastewater from hydrofluoric
TThe Preamble to the September 25,1989,
proposed rule presented an annual compliance coat
estimate of $5.2 million for 9 affected facilities in 5
commodity sectors. The net increase to $18.5 million
£1 attributable entirely to the addition of lightweight
aggregate APC scrubber lolida to the list of affected
wastes.
acid production], thus obviating the
predicted impacts for these two sectors.
On the other hand, APC dust/sludge
from lightweight aggregate production
(proposed for retention within the
exclusion based upon preliminary
review of EPA survey data) has now
been removed from the Bevill exclusion
following a closer examination of the
data, which indicates that average
scrubber solid volumes are well below
the high volume criterion..
Because EPA waste sampling data
and information submitted both in
response to the Agency's RCRA section
3007 letter and in public comment
indicate that APC solids from
lightweight aggregate are unlikely to
exhibit hazardous waste characteristics,
the Agency believes that removing this
material from the Bevill exclusion will
not impose any cost or economic
impacts on most of the 30 or so facilities
that generate it Nonetheless, it is well
known that several lightweight
aggregate production facilities currently
burn listed hazardous wastes as a
primary fuel and would hence
experience subtitle C regulatory
compliance costs as a consequence of
the "derived-from" rule (see 40 CFR
261.3(bJ(2)(i)).
EPA has not substantially modified its
estimates of the distribution and
magnitude of the costs or impacts for the
remaining four affected waste streams
whose status remained unchanged from
the September 25 NPRM (elemental
phosphorus off-gas solids, primary lead
process wastewater, titanium dioxide
sulfate process waste acids, and
titaniumdioxide sulfate process waste
solids).
Of die five waste streams reviewed
for potential hazard characteristics, the
preliminary screening assessment
suggests that two—lightweight
aggregate APC scrubber solids and
. sulfate process waste solids from
titanium dioxide production—are not
likely to exhibit hazardous:
characteristics under current RCRA •
hazardous waste test procedures.
Therefore, EPA has assumed in its
economic impact screening analysis that
facilities generating these wastes will
experience no compliance cost impacts
associated with potential subtitle C
regulation of these wastes. The primary
exception relates to five (out of 30)
lightweight aggregate producers that
currently burn listed hazardous wastes
as fuel. EPA's information indicates that
five facilities operated by the Solite
Corporation and one facility operated
by the Norlite Corporation burn ,.
hazardous waste as fuel; one of the
Solite facilities apparently does not
generate any solid wastes. With few
specific exceptions (based on waste
sampling data), the remaining three
waste streams were considered
hazardous at all facilities, for the
characteristics specified, as follows:
e Elemental phosphorus off-gas solids
(from wet collection]—EP toxic for cadmium
• Primary lead process waatewater—EP
toxic for arsenic, cadmium, and lead,
corrosive
« Titanium dioxide sulfate process waste
acids—EP toxic for chromium,- corrosive
Fourteen facilities in these four
affected commodity sectors, were then
further analyzed on a site-specific basis
in terms of current (baseline)
management practices in order to
determine consistency with current
subtitle C management requirements
and to select reasonable site-specific
compliance options as a basis for
estimating costs.
EPA determined that one of the 14
facilities analyzed on the basis of
company-provided data is currently
managing hazardous wastes in
compliance with current subtitle C
requirements, and thus.may not incuz
additional costs when today's rule
becomes effective. The data supporting
this findirig were obtained from
responses to EPA's 1987-83 National
Survey of Hazardous Waste TreatmenJ,
Storage, Disposal, and Recycling
Facilities (TSDR Survey).8 For some
other individual facilities, Data from the
National Survey of Solid Wastes from
Mineral Processing Facilities document
that current practice for several of the
wastes (particularly the wastewaters)
removed by today's rule includes
treatment in a wastewater treatment
plant, direct discharge via NPDES
permit provisions, and/or recycling to
the process generating the waste in
question. EPA has reviewed this
information, and used it to develop
baseline and subtitle C compliance
scenarios for this analysis. As a result,
estimated compliance costs at several of
the facilities affected by today's final
rule are zero. That is, removal of the
waste from Bevill will impose no
operational or economic impacts
because these facilities already appear ,
to employ management practices
consistent with subtitle C requirements.
2. Costing Assumptions for Lightweight
Aggregate APC Scrubber Solids
As discussed above, five facilities
producing lightweight aggregate air
• USEPA. 1989. Development of the High-Volume
Criterion for MineraJ Processing Wastes. Spedal
Wastes Branch, Office of Solid Waste. August 18,
1989.
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Federal Register / Vol. 55, No. 15 / Tuesday, January 23, 199D /'Rules and Regulations 2349
pollution control (AFC) scrubber-solids
will face economic impacts due to the
removal of this waste stream from the
Bevill exclusion by today's final rule,
because they burn listed hazardous ..:
waste as fueLBecause this sector was
not evaluated in the original screening
analysis for the.NPRM, the following
paragraphs present the Agency's costing
approach and engineering design
assumptions for evaluating compliance
options and estimating costs.
In general, there are a multitude of
possible compliance options available to
lightweight aggregate producers, varying
from conversion to fossil fuels to various
possible waste reduction methods to
possible delisting petition options.
Because of lack of data necessary to
perfornrquantitative cost estimates for
most of these alternatives (as well as
time constraints on this final court-
. ordered rule), the Agency's screening
analysis has been forced to focus only
on the extremely high-cost option of
managing the APC scrubber solids
(generated as wet sludges] .as Subtitle C
hazardous wastes. The Agency's .cost
estimates are thus based on the
difference in disposal costs between -
managing the reported sludge volumes
in unlbied impoundments or waste piles
versus disposal in a permitted subtitle C
landfill. For these and other reasons
outlined below, the Agency's cost
estimates for .this sector should be
regarded as upper-bound estimates.
The waste quantities potentially
subject to subtitle C landfill disposal
have been estimated using responses to
the industry survey and, in one case,
written public comments. Methods for
developing these estimates are
described in a supplemental technical
background document that may be
found in the docket for today's rule.9
The Agency has assumed that the waste
quantities reported by the facilities
represent relatively dry material, and
that dewatering would not be feasible as
a volume reduction method prior to land
disposal. If dewatering would be
possible, then the quantity of waste for
subtitle C landfill disposal has been
overestimated and, to. this extent, EPA
has, accordingly overestimated
compliance costs, which are directly
related to the mass of waste that must
be disposed.
The, Agency.has also, conservatively
assumed.that, all lightweight .aggregate
kilns at each affected facility (most
• Addendum to the Technical'Backsround
Document: Development of the Cost and Economic
Impacts, of Implementing the Bevill Mineral
Processing Wastes Criteria. Economic Analyst*.... ,
Staff, Office of .Solid Waste, USEPA. January 12, ,.
1990. .
facilities .operate three to five kilns) do
and will .continue to bom listed
hazardous wastes as fuel. Consequently,
in this analysis the entire scrubber. ..
solids stream for all facilities is assumed
to be affected by the. derived-from rule
and therefore subject to subtitle C. To
the extent that some or all facilities do
not burn listed-hazardous wastes in all
of .their kilns and/or do (or could)
segregate listed .and non-listed
.(characteristic) hazardous wastes prior
to their use as fuel, EPA has further
overestimated costs and impacts.
In addition, the Agency has some
concerns about the waste volume data
reported by one of the two affected
firms, the Solite Corporation. Solite's
facilities report waste generation rates
that are substantially higher than any
other lightweight aggregate producer,
even when corrected for differences in
plant size and production rate. The
waste-to-product ratio calculated by
EPA for Solite's facilities ranges from 15
percent to more than 25 percent This is
from two and one half to 250 times the
ratio calculated for the other reporting
facilities generating the same waste.
Nonetheless, the data reported in the •
National Survey and used in this
' analysis are consistent with information
previously submitted to EPA by the
company. This may or may not be
related to .the issue of moisture content
discussed above. It should be noted,
however, that these very high reported
waste generation rates .lead directly to
significant compliance cost .estimates. If
actual waste generation rates are lower,
actual compliance costs and associated
impacts will be less than those predicted
here.
Another conservative assumption .that
the Agency baa made in conducting this
analysis is that affected firms would
continue using current air pollution
control methods and, therefore, continue
to generate wet APC scrubber solids.
Nearly one half of the lightweight
aggregate industry currenty uses dry
collection methods, including one of the
facilities operated by Solite that burns
hazardous waste fuel. Waste generation
rates using dry collection methods are
generally significantly lower than those
using wet collection methods. In
addition, information submitted to EPA
indicates that at some facilities, the APC
dust is recycled into the lightweight .
aggregate kilns from which it is . •
generated,, such, that the: process does
not generate any. substantial quantity of
solid.was.tes. To the .extent that the
facilities,examined in this analysis could
install dry dust collection systems and-
recycle the solids rather than continue
to use wet collection systems, costs and
related impacts could be reduced even if
the: facilities continued to utilize listed
hazardous -wastes as fuel supplements.
Finally, the affected firms, Solite and
Norlite, could potentially avoid subtitle
C regulation altogether by either (1)
converting entirely to other fuels and
discontinuing use of listed hazardous
wastes as fuel, or (2) having their waste
. streams de-listed on a site-specific
basis. EPA notes here that Solite has
indicated in its public comments on the
September 25, 1989, and previous
proposed rules that it would not
continue to accept and burn hazardous
waste fuels if the Bevill exemption were
to be removed from its wastes. While
the Agency recognizes that this course
of action is a distinct possibility and
perhaps the least cost compliance
alternative, the Agency was not able in
the present screening analysis to
evaluate the available fuel conversion
option due to a lack of factual
information about such factors as
retrofitting costs, thermal value of
currently used hazardous waste fuels,
and the revenues accruing to the two
firms for accepting the hazardous
wastes from individual generators. For
the. same reasons, i.k, insufficient data,
it has also not been possible to predict
the outcome of any attempt by the firms
to have the APC scrubber wastes in
question officially delisted (withdrawn
from subtitle C regulation) by the
Agency.
Similarly, while EPA .acknowledges
that intermediate alternatives may be
available, such as burning only
characteristic rather than listed
hazardous wastes in at least some kilns,
currently available information is
insufficient to assess the feasibility or
cost implications of this type of
operational change.
Consequently, EPA's compliance cost
analysis has been conducted using the
best currently available information to
develop what are essentially worst-case
compliance cost estimates for the
lightweight aggregate commodity sector.
To the extant that the affected facilities
can (1) avoid subtitle C regulation by
fuel changes and/or equipment
modifications or successful delisting
petitions, or (2) .employ waste-reduction
techniques to generate lesser quantit?- s
of APC scrubber solids subject lo the
derived-from rule, the costs and impacts
reported here may represent- a
substantial overestimate.
B. Aggregate and Sector Compliance
''" '
' The impact screening analysis '"
projects that eleven facilities in four
different mineral processing commodity
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2350 Federal-Register / Vol. 55, No. 15 / Tuesday, January 23, 1990 / Rules and Regulations
sectors will be affected directly by •
today's final rule. Thirty-five facilities in
these four sectors are expected to be
unaffected by today's rule because they
either (1) do not generate the processing
waste in question, (2) routinely recycle
the material as a process input, or (3)
produce a waste that apparently does
not fail standard EPA hazardous waste
test criteria. Another three facilities, one
in the titanium dioxide sector, and two
in the lead sector, are believed to be
unaffected by virtue of already
incorporating subtitle C (or equivalent
NPDES wastewater treatment} practices
in their current waste management
systems. In aggregate, the total impact of
today's rule is estimated to be about
$18.5 million per year. EPA cost
estimates for individual commodity
sectors and facilities are presented in
Table 4.
For the reasons discussed above, the
major part of the total estimated
compliance costs (86 percent) falls upon
tho five lightweight aggregate facilities
currently burning listed hazardous
wastes as fuel. Cost impacts range from
$2.5 million annually for the Norlite and
Florida Solite faculties to almost $4.6
million annually for Solite's Arvonia,
Virginia, facility. The reasons for the
large magnitude of these compliance
cost estimates are the host of
conservative analytical assumptions •
articulated above, together with the
relatively large quantities of scrubber
wastes reported by the Solite company.
One other sector, titanium dioxide, is
expected to experience aggregate sector
impacts of about $1.8 million annually.
Within this sector, all of the cost
impacts are predicted to fall on one of
the two facilities, with the other
producer's waste management costs
being unaffected by removal from the
BeviU exclusion. Three of five primary
lead facilities are projected to incur
costs. Two primary lead producers,
Asarco and Doe Run, are expected to ••
experience annual compliance costs of
$41,000 and $235,000, respectively, with
estimated costs for their individual
primary lead facilities ranging from zero
to $201,000 annually, depending on
current management practices and
plant-specific waste characteristics.
The two (of five) elemental
phosphorus plants that are expected to
experience impacts have total estimated
incremental costs of $179,000 annually,
with the vast majority ($173,000)
imposed on the facility owned by
Occidental Chemical Corporation.
In response to public comments on the
analysis presented in the September 25
proposal, EPA wishes to clarify certain
aspects of these cost estimates as they
relate to land disposal restrictions and
corrective action. The Agency did not
explicitly address the potential impact
of prospective land disposal restrictions
in the present economic impact
screening analysis. The Agency did,
however, develop its compliance cost
estimates based on environmentally
sound management practices for subtitle
C waste disposal For example, for EP
toxic liquid waste streams, the Agency
included a solidification and
stabilization step in the waste treatment
sequence, which would allow any
treatment residual (e.g., EP toxic sludge)
to be disposed in a sub tide C landfill.
While this engineering compliance
construct does not necessarily represent
a precise BDAT under the LDRs for the
wastes in question (because LDRs for
characteristic wastes have not been
promulgated, nor has BDAT been
defined), EPA believes that it is a
reasonable and realistic means of
characterizing environmentally
protective waste management under
subtitle C, and captures the essence of
what would be required of facility
operators when LDRs for these wastes
go into effect
" With respect to corrective action, EPA
did not consider the effect of corrective
action requirements on potential costs'
and impacts associated with today's
rule. Many of the facilities potentially
affected by today's are likely to avoid
being drawn into the subtitle C system
as a treatment, storage, or disposal
(TSD) facility and hence avoid becoming
subject to corrective action
requirements. To the extent that a
facility must become permitted, facility-
wide corrective action would apply. In
the case of the one facility that is
already a permitted TSD, today's rule
has no incremental impact, because it is
already subject to corrective action
requirements. Therefore, the. Agency
believes that the practical consequences
of not addressing corrective action
requirements in the present screening
analysis may not be substantial.
TABLE 4.—SUMMARY OF PRODUCTION, VALUE OF SHIPMENTS, AND COMPLIANCE COSTS
Commodity sector »
Etotnantal Phosphorus
. Ei«r^ $*&# , ,„,'„„„,
FucWw Evaluated... „„,-
p«j(r— PocflWo 10,, -„ -., -..,
Occidental-Columbia TN.~ u_»
Laei
Entfro ?>9ctor,,,,,,,. ............. .,-„—..
F«riGKnf F?v»!ii*f«f.m „,,,-,„„,
Astrco — East Hcl'jM MT4
" A««rw>— GtowBr MO «
Alurm — Drfijih* NP *,„.., ...I,.,,..,.,..,.,.,.,,
pO* P"r>— 8"ick MO..,.,...., ,,--,,-11 i-n-
Dam Rim--J-lRmilanmim MO,,,,,,,i.. ...,..,
Ughtweignt Aggregate
gnMfa S^or1,,,,
FacSfies Evaluated. _
Carolina Solito— Norwood NC •
Florida SoKta— -Green Cova FL *..,,......,
Kentucky Solite— 3rock3 KY «.
• Virginia So«a— Arvonia VA T
Nnrtila— Cotvjft* NY •
Tilanksn Dloxkte
Pn*« S^rfcjf „,.„.,„.„ ,
Faril»H« PuahutflH
Kftmira Oy— Savannah GA *
; • 'SCM— Baltimore MD « :..:.
Number of
. .plants
producing
commodity
5
2
5
• S
• 30
S
a
2
Production * (MT/
YR)
341,950
174,150
122,449
" ' . 51,701
374,633
374,633
52,189
52.169
52.189
. 92.762
125,304
4,140,642
91-1,458
220,454
112,491
175,088
221,988
181,437
893,878
114,286
! ' 54.422
59.864
Unit value*
($/MT)
1683
. ' 1688
1688
1683
724
724
724
724
724
724
724
27.5
27.5
27.5
27.5
27.5
27.5
27.5
1831
1891
1391
1891
Value of
shipments ($/YR)
577,266,155
• 293,992,312
206,713,345
87,278,968
271,162,781
271,162,781
37,775,033
37.775,038
37,775,036
67,141,706
90,695,969
113.973,910
25.088,493
6,068,143
3,036,390
4,319,414
6,110,373
4,994.174
. 1,690,482,634
• 216,134,766
102,921,317
113.213.449
Compliance costs
(S/YR)
179,000
179,000
6,000
173,000
276,000
276,000
41,000
0
0
34,000
201,000
16,206,000
16,206,000
3,610,000
2,518,000
2.997,000
4,553,000
2,528,000
1,817,000
1,817,000
0
1.817.000
Costs per
metric ton
of product*
(S/MT)
0.5
1.0
<0.1
3.3
0.7
0.7.
0.8
0.0
0.0
0.4
1.0
3.9
17.8
16.4
22.4
17.1
20.5
13.9
2.0
15.9
0.0
30.4
Costs/value
of
shipments '
(percent)
<0.1
0.1
<0.1
0.2
0.1
0.1
0.1
0.0
0.0
0.1
0.2
14.2
64.6
59.5
81.3
62.2
74.5
50.6
0.1
0.8
- 0.0
1.8
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Federal Register / Vol. 55, No. 15 / Tuesday, January 23, 1990 / Rules and Regulations 2551
TABLE 4.—SUMMARY OF PRODUCTION, VALUE OF SHIPMENTS, AND COMPLIANCE CosTS:-Continueti
• ' Commodity sector *
Combined total— all four sectors
All Facilities. .'.„......„.........„„„_..„._..„..._..
, Affected Facilities Only •
Number of
plants ,
producing
commodity
49
11
Production « (MT/
YR)
5.751,103
1.415,728
Unit value *
(S/MT)
461
444
Value of
shipments (S/YR)
2,652,885,431
627,906,964
Compliance costs
. (S/YR)
18,478,000
18,478,000
Costs per
metric ton
of product *
($/MT)
3.2
13.1
Costs/value
- of
shipments *
(percent)
0.7
2.9
1 Facilities evaluated are those believed to generate wastes that may exhibit hazardous characteristics or be hazardous by virtue of the derived-from rule.
* 100 percept capacity utilization is assumed, except as noted.
* Totals tor unit value, costs per metric ton of product, and costs/value of shipments are calculated and not the sum of the individual facility, values.
* Capacity and production values apportioned equally among tha three Asarco facilities.
1 Production figure source: Minerals Yearbook. 1987. p. 258.
• Production figure as reported by the facility in response to the 1989 National Survey of Solid Wastes from Mineral Processing.
1 Production figure calculated front firm-wide waste-to-product ratio and reported waste generation rate provided in 11/88 public comments.
* Sultate process only.
'Affected facilities are the facilities evaluated having non-zero compliance costs.
C. Economic Impacts
EPA's screening-level analysis of
economic impact compared the
magnitude of annual compliance costs
for each affected facility to the
estimated value of shipments. This ratio
provides a first approximation of the
extent to which the profitability of firms,
or, alternatively, commodity prices, or
other measures of national impact may
be adversely affected by the imposition
of regulatory compliance costs.
Sectors or facilities with ratios above
one percent were considered vulnerable
to moderate to significant financial
impacts and were evaluated in more
detail in terms of market and industry
factors that might affect the ultimate
incidence and impact of the costs.
As seen hi Table 4, despite the fact
that only a small percentage of facilities
in the lightweight aggregate sector
would be affected (five of thirty), the
magnitude of the estimated incremental:
waste management cost is sufficient to
indicate potentially significant sector-
wide impacts; particularly at the . , •
regional level. Upper bound compliance
cost ratios at the level of the individual
affected facilities are extreme, ranging
from 51 percent to 81 percent of value of
shipments.
For the other sectors, only one facility
(in the titanium dioxide (sulfate) sector)
is predicted to experience impacts
somewhat one percent level, at about 1.5
percent This level of impact is regarded
.as moderate. The two elemental
phosphorus (FMC and Occidental), and
primary lead (Asarco and Doe Run)
producers examined in this study are •
expected to experience relatively minor-
'long-term!economic impacts,. Obviously...
. firms and facilities already in ; '..
• compliance and with compliance costs ..
of zero (i.k, Kemira and Asarco) will not
experience any negative economic • .
impacts associated with this rule.
1. Facility and Sector Impacts
To further explore the economic
impact of today's final rule, EPA has
examined some of the factors that
influence the ability of affected firms to
pass through prospective compliance
costs to product consumers in the form
of higher prices. These factors include
absolute price levels, major end uses of
the mineral commodity, competition
from imports and substitute's, secondary
production, and flexibility in other
production cost factors.
a. Lightweight Aggregate. Lightweight
aggregate has three major uses, which
generally reflect its superior
performance capabilities as a
construction material. The three main
applications are in concrete block (81
percent of total consumption), highway
resurfacing (19 percent), and structural
concrete (18 percent).10 A fourth, though
small use (about 2 percent), involves
. new applications in recreational and . -
horticultural materials.11
Most lightweight aggregate produced
in the U.S. is used in manufacturing
concrete block. Lightweight aggregate is
valued as a high-strength aggregate'for
concrete forms, because it allows a
significant weight savings over heavier
aggregates. The weight savings permit
structures to be designed at an overall
lower cost12 Concrete block fabricated
from lightweight aggregate also has
better insulating properties than block
using denser substitutes.
. Lightweight aggregate's second major
use is in road surfacing, where it is used
as a*, ingredient in asphalt surfaces. It
offers superior skid-resistance compared
to other bulk fillers.13 Lightweight ;
, ,»» Bureau «jf Mines. Minerals yearbook 1987.'' '
"Clays." Paga 254. . , • f "
."•"Ibid. | .'.'.' ; . ' r." '.
" TheBuUding Estimator's Reference Book, t.R.
.Walker Publishers. Lisle, III 1989. Page 3.158. : •'•
• • u Ampian, Sarkia G. "Clays." in Mineral Facts -
and Problems. U.S. Bureau of Mines. 1987. Page 165.
aggregate's third major application is as
a component of structural concrete, such
as in bridge surfaces and floors in high-
rise buildings, where its low weight and
high strength are useful.14
Lightweight aggregate is valued in its
main applications because of its weight
savings and performance features (skid
resistance, insulating abilities, and
strength), though substitutes can
compete in cases where users do not
have stringent requirements for these
qualities-and are willing to use one of
the available substitutes. Competition
within lightweight aggregate's primary
applications comes from other building
materials, with the main substitute being
heavy-weight stone (aggregate). Other
substitutes include light natural
aggregates (pumice or cinders) and
foam.15
Markets for lightweight aggregate are
basically regional or local rather than
national. The widespread availability of
domestic clays suitable for lightweight
aggregate production, the high cost of
transportation for aggregates, and the
relatively low market value (price) of
this commodity limit the size of market
areas. As a result firms hi the industry,
which are widely scattered across the
U.S., are limited in their ability to
expand their sales into competitors'
territories without actually constructing
new plants.
International trade in the lightweight
aggregate sector is extremely limited. As
shown in Table 5, the United States is a
significant net exporter of clays as a
general category. Trade data for finished
lightweight aggregate are not available,
though a trade source indicates that
imports have not affected lightweight
aggregate's market to a large degree,
other than some recent imports- of '
pumice from the Mediterranean area.ls
l*Ibid. page 165. . .....
15 J.IRies, Expanded Clay and Shale Institute.
Personal communication. December 29,1989.
. "Ibid.- • • ' •• .
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2352 FeJoral Register f VoL 55> No\ 15 / Tuesday, January 23V ISS^ / Rules and Regulations
Energy coats are an important
component of production costs for the
lightweight aggregate industry. Kilns are
reported la require ZO to 8.1 million
BIUs of fuel per MT of lightweight
aggregate produced." Residual oil (the
fuel used in most kilns) costs
approximately $2.39 per million BTUs iir
1988.*• Assuming, this fuel cost the cost
of fuel p er MT lightweight aggregate- is
at least $4.80, and could possibly be as
high as $14.60 (though the higher fuel
consumption rate might apply at plants
configured to use less expensive fuels}*
It is therefore apparent that energy
costs account for a substantial portion
of the margin between the raw material
cost of clay ($10 per MT). and the price
of finished lightweight aggregate (as law
as $24 per MJE]. Consequently^ facilities.
that can. achieve fuel cost savings by
using hazardous wastes aa fuel
supplements are likely to have a
p»bqt«mffaf current cost advantage over
facilities relying, solely, upon other fuels.
such aa oil or coal, especially since they
can generally charge a disposal fee to,
waste, generators. Compliance costs.
associated with today'a rule would
reduce this cost advantage, though if a
facility elected to continue using listed
hazardous wastes, its. total production;
costs- would rise above industry norms-
only to the-extent that the incremental
compliance; coats exceeded the fuel cost
savings that it currently enjoys.
Alternatively, if the facility elected,ta
stop using the listed hazardous wastes.
it would (after any necessary
- retrofitting} have fuel costs, comparable
to the maiority of other facilities in the
industry,
la summary and for several reasons,.
EPA believes, that the. lightweight
' aggregate producers affected by today* s<
rule will not suffer the calamitous
economicimpacts that might be
»» Cbhen. SAt «ndT.R. tawalL "FMiBedMakei
Lighter Product,'* Rock Products-, Jufy-1989; page**.
>• U.S. Department oFBiergyv Energy Information!
Admfnittrmtion. MontMyEnarsf flwAmiBecambte
1988, Tab!* ff-10.
suggest erf by the Agency's incremental
cost estimates, even if one assumes that
these upper limit cost impacts will
setuaEy be incurred. First, facilities that
currently b"m hazardous- waste as fuel
. enjoy a potentially significant cost
advantage with respect to their
competitors. This advantage may
mitigate-, perhaps- to- a considerable-
extent, the cost impacts of'today's: rule.
In addition, because of the special
physical charaeterictics' offered1 by
lightweight aggregate in comparison
with conventional aggregates-, affected!
producers may have some ability to-
pass through compliance costs to-local
industrial and public sector markets, in
the form of higher prices, though to an
uncertain extent Finally,, high
transportation costs and a widely
dispersed domestic industry suggest that
""moderate, price increases, could be
sustained, at least for lightweight
aggregate application? that require the
low density and high .strength offered' by
this-material.
| b. Titanium. Dioxide* Titanium, dioxide
is. used in'pigmenta for paints-and
surface, coatings,, paper- manufacturing^
and plastics. Half of titanium dioxide.
production is consumed in pigments,
where its competitive-position is. strong..
Demand for high-quality paper also
favors titanium dioxide.
The domestic industry supplies-moat
of the titanium, dioxide used in the US.,,
with imports, exceeding exports, by only
a moderate degree. As. a result,, titanium-.
dioxide is in. a relatively strong; domestic.
market position- Producers- using the
sulfate process, however, are ma
minority and account for only one. eighth
of domestic production. It is. not likely
that the one affected producer could .
establish a premium for its product and
would therefore be limited in the extent
to which it could recover cost increases.
, 2. Effects- on Consumer Prices
For several reasons; EPA believes that
this rule will not create any appreciable
changes in consumer prices. The first
and principal reason is. the generally low _
overall percentage of compliance costs
to- product value-, which does- not exceed
one percent for any affected commodity
except lightweight aggregate. Combined
with this- is- the fact that not all
producers, in. these sectors- are affected
equally (many domestic: competitors are
not affected' at all]: and that other
domestic or foreign competitor» could
fUI production shortfalls,, either withi
identical or siibstitutable products.
Finally, since all the affected
commodities are primary intermediate
raw material inputs to the production o£
other finished products, their relative.
contribution to final consumer goods-
prices is, many case; typically quite
small.
3L Foreign. Trade Impacts'
Trade is substantial in many of the
mineral commodities, covered by today's
rule. but. is probably only likely tcr be ai
factor with respect, to titanium; dioxide.
Basic import, and export data, for the
sectors that generate potentially
hazardous, wastes are- presented in.
Table- 5» Import and export figures for
lightweight aggregate- (expanded shale}-
are not available* although international
trade is not thought ta be a significant
factor for this sector. Because imports of
titanium, dioxide are significant,-the
ability of the affected domestic producer
to raise prices td. recover compliance-
costs,, is, as. discussed above, further
limited,, and there may be a modest
stimulus, towards import expansion.
In- view of the above; it is- unlikely that
the overall trade balance in the
domestic-minerals industry will be-
significantly affected by today's' rule,
though- in one1 sector regulatory cost
impacts may increase-already positive
net imports to a small degree.
TABLE 5.—IMPORTS AND EXPORTS OF MINERALS* 1937
ContfnoGfQr
Meter-
Bsmontal
Pnospnocus.
t.*H
Lightweight
Aggwgafe.
Titanium Djoxkto.
Commodity rormsCsJ
Piai am* bar* (cwitwrtl *
'Ctflyn(fllltyt>fl!)L», ,
'Titanium Dioxide Pigments (con-
tent).
Domestic production
Quantity (MT)
34.1,950
37^.633
* 4,140.642
\ 893,878
. Valua.($OGO>
| 5Z7>,266.
•• Z7T,t63<
•' ":»'t13.974
; 1J690.483
Imports
• Quantity (MT)
; 4,463,
• • • mere
•• ' ••' 34..191.
.-. ,.\ ... . .
.... ..,..';-i04Jt3»
••!-.,-•
Value ($000][
. 5,609
t23,T-57
9,392
236,945
Exports.
, Quantity (MT).
20,302:
. W.TW
'•• • 3,023:593;
99,73*
< Value- ($000):
; 30,795.
; TT,94S
I 512:964=
1
j 181,/!07>
!<•-..-
'Sourc* Bureau, of Mines. Minerals Yearbook 1987. pp. 6T, 64_ 22X 223,: 258, 2617,. 262; 377; 684,88%, 893, and 8941
» Exports Indode cathodes: and- sheets.
* Import/export data: for Bgrrtwergftt aggregate ant unavailable.
•Data reflect lightweight aggregate production only.
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<• ' • '
Federal Register / Vol. 55, No. 15 / Tuesday, January 23. 1990 / Rules and Regulations 2353
Vm. Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA)
of 1980 (Pub. L. 96-354), which amends
the Administrative 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 fay a regulation.
If so, regulatory alternatives thai
eliminate or mitigate the impacts must
be considered.
In the preamble to the September 25
proposed rule, the Agency presented
documentation of and the rules from .a
screening analysis to determine the
potential for significant small business
impacts imposed by the proposed
reinterpretation of the Mining Waste
Exclusion (see 54 FR 39316-7). At that
time it was determined that no small
business enterprises would be. adversely
affected by the rule, as proposed.
The changes that have occurred in
today's final rule, as distinct from the
September 25,1989, proposal, have
served to reduce the number of
potentially affected sectors while
increasing slightly the number of
potentially-affected facilities. Based
upon the revised cost and economic
impact analysis presented above, and
further data collection and analysis by
the Agency, EPA has concluded that
only one small business enterprise,
Norlite Corporation, with approximately
75 employees,19 might be adversely
affected by today's final rule. Therefore,
EPA concludes that, just as in the
September 25 proposal, there will not be
a significant adverse impact on a
substantial number of small mineral
processing companies, because among
the affected sectors there is only one
small business that is expected to
experience impacts from today's final
rule. ' •
IX. List of Subjects in 40 CFR 260,261
and 262
Designated'facility, Hazardous waste,
Waste treatment and disposal.
Recycling, Reporting and recordkeeping
requirements. Manifests.
Dated: January 12,1990.
William K. Reilly,
Administrator.
. For the reasons set out in the
preamble, parts 260,261 and 262 of title
" Source: Duns Market Identifiers, Dialog,
Information Services, Irio. 1SS9.
40 of the Code of Federal Regulations is
amended as follows:
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for Part 260
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6927, 6930, 6934.6935, 6937, 6938, 6939, and
6974.
2. Section 260.10 is amended by
revising the definition "designated
facility" to read as follows:
§260.10 Definitions.
* " * * * *
"Designated facility" means a
hazardous waste treatment, storage, or
disposal facility which (1) has received
a permit (or interim status) in
accordance with the requirements of
parts 270 and 124 of this chapter, (2) has
received a permit (or interim status)
from a State authorized in accordance
with part 271 of this chapter, or (3) is
regulated under § 261.6(c)(2) or subpart
F of part 266 of this chapter, and (4) that
has been designated on the manifest by
the generator pursuant to § 260.20. If a
waste is destined to a.facility in an
authorized State which has not yet
obtained authorization to regulate that
particular waste as hazardous, then the
designated facility must be a facility
allowed by the receiving State to accept
such waste.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTES
3. The authority citation for Part 261
continues to read as follows:
Authority: 42 U.S.C. 6095, 6912(a], 6921, and
6922.
4. Section 261.4 is amended by
revising paragraph (b)(7), to read as
follows:
§261.4 Exclusions.
* * » * «
-(b)
(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
§ 261.4(b)(7), beneficiation of ores and
minerals is restricted to the following
activities: Crushing; grinding; washing;
dissolution; crystallization; filtration;
sorting; sizing; drying; sintering;
palletizing; briquetting; calcining to
remove water and/or carbon dioxide;
roasting, autoclaving, and/or
chlorination in preparation for leaching
(except where the roasting (and/or
autoclaving and/or chlorination)/
leaching sequence produces a final or
intermediate product that does not
undergo further beneficiation or
processing); gravity concentration;
magnetic separation; electrostatic .
separation; flotation; ion exchange;
solvent extraction;, electrowinning;
precipitation; amalgamation; and heap,
dump, vat, tank, and in situ leaching. For
•the purposes-of § 261.4(b)(7), solid waste
from the processing of ores and minerals
will include only the following wastes,
until EPA completes a report to
Congress and a regulatory
determination on their ultimate
regulatory status:
(i) Slag from primary copper
processing;
(ii) Slag from primary lead processing;
(iii) Red and brown muds from
bauxite refining;
(iv) Phosphogypsum from phosphoric
acid production;
(v) Slag from elemental phosphorus
production;
(vi) Gasifier ash from coal
gasification;
(vii) Process wastewater from coal
gasification;
(viii) Calcium'sulfate wastewater
treatment plant sludge from primary
copper processing;
(ix) Slag tailings from primary copper
processing;
(x) Fluorogypsum from hydrofluoric
acid production; .
(xi) Process wastewater from
hydrofluoric acid production;
(xii) Air pollution control dust/sludge
from iron blast furnaces;
(xiii) Iron blast furnace slag;
' (xiv) Treated residue from roasting/
leaching of chrome ore;
(xv) Process wastewater from primary
magnesium processing by the anhydrous
process;
(xvi) Process wastewater from
phosphoric acid production;
(xvii) Basic oxygen furnace and open
hearth furnace air pollution control
dust/sludge from carbon steel
production;
(xviii) Basic oxygen furnace and open
hearth furnace slag froir carbon steel
production;
(xix) Chloride process waste solids
from titanium tetrachloride production;
(xx) Slag from primary zinc
processing.
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2354 Federal Register / Vol 55,, No. 15 / Tuesday. January 23, ISSa / Rules and: Regulations
PART 252—STAND ARDS APPLICABLE & Section. 26223. is amended by/
TO GENERATORSOF HAZARDOUS adding paragraph (e) to readi a* follow*;
WASTE
5. The authority citation: for Part 262
continues to read as follows.
Authority: 42. U&C. 8906. 6S12, 6922. 6929.
6924, C925. and-6837.
Us* of th» manifest.
(el For shipments of hazardous waste
to a designated facility in an. authorized.
State which has not yet obtained
authorization- to regulate- that particular
waste as hazardous* the generator-must
assure that the designated facility
agrees- to sign and' return the manifest to
the generator, and that any out-of-state
transporter'signs and forwards the
maniiest to-the designated; facility.
[PR Dae. 90-1402 Filed1-22-90; 8!45 am],'
BILLING COD? £560-50
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