Monday
August 19, 1931
Part li
Environmental
Protection Agency
40 CFR Parts 261, 263, and 271
Land Disposal Restrictions for Electric
Arc Furnace Dust; Final Rule
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., Fedpr^l Rggister./"Vol. 56, No. 160 / Monday, August 19, 1991 / R<4e|gand
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 261,268, and 271
[FRL-3973-8]
RIN2050-AD20
Land Disposal Restrictions for Electric
Arc Furnace Dust (K061)
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: The Environmental Protection
Agency (EPA) is today finalizing
treatment standards under the land
disposal restrictions (LDR) program for
a subcategory of the hazardous waste
K001 (electric arc furnace dust)
treatability group, namely
nonwastewaters that contain equal to or
greater than 15% total zinc (i.e., high zinc
aubcotegory), determined at the point of
initial generation. These treatment
standards are based on the performance
of high temperature metals recovery
(HTMR) processes; specifically, the
standards are based on analysis of slags
from these processes. The Agency is
also finalizing a generic exclusion from
the derived-from rule for HTMR
nonwastewater slag residues generated
from processing K091, provided that
these slag residues meet designated
concentration levels, are disposed of in
subtitle D units, and exhibit no
characteristics of hazardous waste.
Furthermore, today's rule finalizes a
conditional exclusion from classification
'as a solid waste for K061 HTMR splash
condenser dross residue.
IFFECTIVE DATE This final rule is
effective on August 8,1991. ,
ADDRESSES: The official record for this
rulemaking is identified as docket F-91-
K61P-FFFF, and is located in the EPA
RCRA Docket, room 2427,401M Street
SW,, Washington, DC 20460. The docket
is open from 9 a.m. to 4 p.m., Monday
through Friday, except on federal
holidays. An appointment must be made
to examine the docket by calling (202)
475-9327. Up to 100 pages of a regulatory
document may be copied at no cost;
beyond 100 pages the cost is 15 cents per
page.
FOR FURTHER INFORMATION CONTACT:
For general information, contact the
RCRA Hotline at (800) 424-3346 (toll
free), (703) 920-8810 locally. For
information on the final rule, contact the
Waste Treatment Branch, Office of Solid
Waste (OS-322W), U.S. Environmental
Protection Agency, 401M Street SW.,
Washington, DC 20460, (703) 308-8434.
For information on the BOAT treatment
standard, contact Laura Lopez, Office of
Solid Waste (OS-322W), U.S.
Environmental Protection Agency, 401M
Street SW., Washington DC 20460, (703)
308-8457. For information on the generic
exclusion, contact Bob Kayser, Office of
Solid Waste (OS-333), U.S.
Environmental Protection Agency, 401M
Street SW., Washington, DC 20460, (202)
382-4770. ' "• • •
SUPPLEMENTARY INFORMATION:
Outline ,
I. Background •
A. Summary of the Hazardous and Solid
Waste Amendments of 1984 and the
Land Disposal Restrictions Framework
B. Final Rule
II. Detailed Discussion of Final Rule
A. History of K061 Treatment Standards
B. Development of Concentration-based
Treatment Standards Based on Recovery
for K061 High Zinc
C. Generic Exclusion of HTMR
Nonwastewater Residues
D. Capacity Discussion
m. State Authority
A. Applicability of Rule in Authorized
States
B. Effect on State Authorizations
IV. Regulatory Impact
A. Executive Order 12291
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
V. List of Subjects in 40 CFR parts 261,268,
and 271
L Background
A. Summary of the Hazardous and Solid
Waste Amendments of 1984 and the
Land Disposal Restrictions Framework
The Hazardous and Solid Waste
Amendments (HSWA) to the Resource
Conservation and Recovery Act
(RCRA), enacted on November 8,1984,
generally prohibit the land disposal of
untreated hazardous wastes. HSWA
requires the Agency to set "* * * levels
or methods of treatment, if any, which
substantially diminish the toxicity of the
waste or substantially reduce the
likelihood of migration of hazardous
constituents from the waste so that
short-term and long-term threats to
human health and the environment are
minimized" (RCRA section 3004(m)(l)).
Wastes that meet the treatment
standards established by EPA may be
land disposed. For the purposes of the
restrictions, HSWA defines land
disposal to include any placement of
hazardous waste, in a landfill, surface
impoundment, waste pile, injection well,
land treatment facility, salt dome
formation, salt bed formation, or
underground mine or cave (RCRA
section 3004(k)).
The land disposal restrictions are
effective when promulgated, unless the
Administrator grants a national capacity
variance from the otherwise applicable
statutory prohibition date and
establishes a different date (hot to
exceed two years) based on "* * * the
earliest date on which adequate
alternative treatment, recovery, or
disposal capacity which protects human
health and the environment will be
available" (RCRA section 3004(h)(2)).
The Administrator may also grant a
case-by-case extension of the effective .
date for up to one year, renewable once
for up to one additional year, when an
applicant successfully makes certain
demonstrations (RCRA section
3004(h)(3)), (See 55 FR 22526 for a more
detailed discussion on national capacity
variances and .case-by-case .extensions.)
In addition to prohibiting the land
disposal of hazardous wastes, Congress
prohibited storage of any waste which is
prohibited from land disposal unless
H* «. * sucjj 8torage }8 solely for the
purpose of the accumulation of such
quantities of hazardous waste as are
necessary tp facilitate proper recoveryv
treatment or disposal" (RCRA section
3004(j)).
B. Final Rule
Today's rule revises .and finalizes
treatment standards tor K061
nonwastewaters in the high zinc ,,
subcategory (i.e., containing equal to or
greater than 15% total zinc, determined
at the point of initial generation), K061
wastes are defined in 40 CFR 261.32 as
"Emission control dust/sludge from the
primary production of steel in electric
furnaces." Concentration-based
treatment standards for K061 high zinc
nonwastewaters are based on the
analysis of nonwastewater slag residues
from HTMR processes. (Although these
residues have been commonly referred
to as "slag," there is some question
whether all of the HTMR processes
technically generate slags. Slag is
generally considered a residue from a
thermal process in which metals have
been in a molten mixture. Since this
does not necessarily occur in all HTMR
processes, the nonwastewater residues
from some of these processes
technically would not be slags. In
addition, HTMR processes generate
residues other than slag. Section H.C.6.
below discusses the regulatory status of
certain non-slag HTMR residues.)
Today's rule also finalizes a generic
exclusion for K061 nonwastewater
residues if: (1) They are generated from
the HTMR process; (2) they meet the
generic exclusion levels for all
constituents; (3) they are disposed of in
a Subtitle D unit; and (4) they exhibit no
hazardous-waste characteristics. •
Furthermore, today's" rule finalizes an
exclusion from classification as a solid
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A1!15-'*
Federal
fifol.*
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'ilonday/CAugust i9.~199l'V Rules an4 Regulations
41165
waste under 40 CjFR 261.4(a), For certain
materials that are partially but not fully
reclaimed. This variance applies to
HTMR splash condenser dross residue
provided it is shipped in drums (i£
processed off-site) and provided that it
is not land disposed at any point before
recovery occurs.
II. Detailed Discussion of Final Rule
A. History of K061 Treatment Standards
EPA first promulgated treatment
standards for nonwastewater forms of
K061 in the First Third final rule on
August 8,1988 (53 FR 31162-31164). The
Agency established two subcategories
for nonwastewater forms of K061: The
low zinc subcategory (less than .15%
total zinc) and the high zinc subcategory
(equal to or greater than 15% total zinc).
EPA determined that zinc could be
recovered on a routine basis from K061
wastes containing equal to or greater
than 15% total zinc utilizing HTMR.
Although HTMR technologies can
recover zinc from some K061 qpntaining
less than 15% total zinc, EPA determined
that the 15% level represented a
reasonable cutoff for distinguishing
between the two subcategories for K061
wastes. The treatment standard for the
low zinc subcategory was based on the
performance of stabilization. For the
high zinc subcategory, the final standard
was expressed as "no land disposal"
based on the determination that HTMR
represents BOAT (53 FR 31221). Due to a
shortage in HTMR capacity, an interim .
numerical standard based on the
performance of stabilization was
established until August 1990.
In the proposed Third Third rule (54
FR 48456-48457), the Agency requested
comments on*extending the existing
interim standard of stabilization for
• another year. Because of the -capacity
storage, the Agency decided to extend
the interim standard for one additional
year. •
The Agency also proposed in the
Third Third to amend the existing
treatment standard for the high zinc
subcategory K061 wastes tq be
resmelting in a high temperature metal
recovery furna'ce. However, EPA,
decided not to amend the existing
standard in the final rule, as the metals
recovery standard was under review by
a panel of the District of Columbia
Circuit Court of Appeals (55 FR 22599).
In a June 26,1990'decision, the court ;
remanded the issue to EPA for further
consideration [API v. EPA, 906 F;2d 726
(D.C. Cir. 1990)).
Although EPA determined in the First
Third rulemaking that HTMR was BOAT
for treating high zinc K061 hazardous
wastes, the Agency concluded that it
probably lacked the authority to
establish any treatment standards under
the K061 waste code for the residues
resulting from the metals reclamation
process. In particular, the Agency
indicated that a jurisdictional bar could
exist on regulating K061 dust as a "solid
waste" within the meaning of RCRA
Subtitle C once it entered a reclamation
furnace where it functioned as, and was
similar to, ordinary raw materials
customarily processed in the industrial
furnace. Therefore, residues derived
from the reclamation process would not
be derived from treating a hazardous
waste. For purposes of the land disposal
restrictions program, therefore, the
residues would not be covered by the
prohibition forK061 waste. The
treatment standard of "no land ':"' '
disposal" reflected EPA's belief that slag
residues from HTMR no longer carried
the K061 waste code, so that no K061
waste was being disposed.
In its June 1990 decision, the court
found it equally plausible that the K061
remained discarded throughout the
waste treatment process and that
residues from the process could still be
classified as K061 (906 F.2d at 740-741).
According to the court, the delivery of
K061 waste to a metals reclamation
facility is part of a mandatory waste
treatment plan specified by EPA, and
EPA can still consider it a solid waste
under RCRA. Id. Therefore, the court
held that EPA must reconsider its basis
for declining to establish a treatment
standard for K061 residues and
remanded EPA's determination that
HTMR slag residues are not covered by
the K061 prohibition. In doing so, the
court created a situation where a hard
hammer (an absolute prohibition on
waste disposal except in a no migration
unit) could.apply to these residues. This
is because the existing interim treatment
standard, based on the performance of
stabilization technology, will lapse on
August 8,1991.
In this proceeding, the Agency is
acting primarily to keep this absolute
prohibition from occurring. We are not
making any definitive determination on
some of the broader issues raised by the
court's opinion regarding which
materials are and are not solid wastes
when destined'for recycling. In our view,
the court's remand reinstituted existing
Agency rules without any jurisdictional
override imposed by the indigenous
principle. Under these rules, K061
destined for metals.reclamation is a
solid waste. 40 CFR 261.2(c)(3). Non-
product residues from the metals
reclamation process remain hazardous
wastes under the K061 waste code by
virtue of the derived-from rule in 40 CFR
261.3(c)(2). The court noted the legal
validity of these rules in the course of its
opinion. 906 F.2d at 740-42.
Many commentors urged the Agency
to find that K061 waste reclaimed by
HTMR process is not a solid waste,
either through interpretation of currer t
rules, or by reference to the initial
opinion of the DC Circuit on recycling
(AMCI, 824 F.2d 1177 (DC Cir. 1987)).
They also maintained that by deferring
comment, on the issue, the Agency was
in fact deciding that these materials
must be solid wastes.
EPA disagrees. We repeat that we are
allowing the Court's opinion and
mandate to operate, at least for the time
being. The status quo created by the
Court's mandate and the existing
regulations thus continues in effect. We
tepeat that this means that K061 waste
destined for reclamation via HTMR is a
solid waste under existing rules because
it is a listed waste being reclaimed (40
CFR 261.2(c)) and because at present
there is no indigenous principle
operating to cut off application of the
derived-from rule. 906 F.2d at 740-41.
Nevertheless, the Agency is presently
engaged hi a comprehensive
reevajuation of its rules on recycling,
and may ultimately articulate new
principles which bear on the issue of the
status of K081 and the slag and other
residues resulting from the HTMR
process. Before thai reevahiation is
completed, however, EPA is acting
pursuant,to the current regulatory '
regime as described above.
The Agency notes in response to.
comment that it is reexamining its
approach in making waste/non-waste
determinations. The Agency is
considering Unking decisions on status
as solid waste with environmental
consequences of recycling activities.
The API and AMCII (907 F.2d 1179 (DC
Cir. 1990)) opinions invite a pragmatic,
environmentally-based approach with
their focus on whether a particular
material destined for recycling is part of
a waste disposal problem. Thus, the
Agency would anticipate in future
rulemakings on these issues that it
would propose to examine not only that
recycling is occurring but also the way
these materials are managed before,
during, and after recycling;
To the extent it is deemed necessary
for EPA to address the policy
implications of preserving the regulatory
status quo (i.e., continuing to regulate
K061 going to HTMR as a solid and
hazardous waste and applying the
derived-from rule to non-product
residues), the Agency notes that this
result is consistent with RCRA's cradle-
to-grave mandate in that thel-e will be
strict supervision of toxic constituents
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41166 Federal Register /'Vol. 56;-No. 160 / Monday, August 19, 1991 /'Rules and Regulations
from K001 throughout all phases of its
management, including partitioning into
non-product residues of the HTMR
process. The fact that the residue output
of the IITMR process can be used in a
manner constituting disposal shows that
the continued management of residues is
potentially part of the waste disposal
problem (906 F.2d at 740). and thus that
assertion of jurisdiction is warranted to
further RCRA's traditional safety
objectives. The Agency notes further,
however, that it may be possible to
advance these objectives, as well as
RCRA's resource conservation and
recovery purposes, by means other than
full-scale regulatory controls. The
Agency's disposition of the status of the
splash condenser dross residue (see
section II.C.8 below) illustrates how
accommodation of both of these goals
can be possible. Thus, we reiterate that
today's action is not intended to
forestall further Agency rulemaking
dealing with questions of solid waste
status and developing a regulatory
scheme that may further both of the dual
statutory purposes.
B. Development of Concentration-Based
Treatment Standards Based on
Recovery for K061 High Zinc
1. Summary of Treatment Performance
Data
For the First Third rule in August
1908. EPA had two sets of TGLP
(referring to the Toxicity Characteristic
Leaching Procedure according to
§ 261,24) data on the nonwastewater
residues resulting from two different
'HTMR processes that were recovering
zinc from KOS1 wastes in the high zinc
subcalegory. One of these HTMR
processes consists of a series of Waelz
kilns (a Waelz kiln is a type of rotary
kiln), while the other was the SKF
plasma arc furnace. At that time,
however, EPA chose not to establish
concentration-based treatment
standards.
In September. 1990, additional TCLP *
data on residues from the recovery of
zinc from K061 wastes in the high zinc
subcalegory (low in nickel and
chrom(um) were submitted to the
Agency by Horsehead Resource
Development Company (HRD). This
system uses a series of Waelz kilns,
generating a crude zinc oxide and an
iron-rich residue (referred to as "slag" in
some FR notices, and in the API opinion)
from the first kiln. The crude zinc oxide
is typically sent to a second kiln for
further separation after which it is
normally suitable for smelting, while the
iron-rich residue has been typically used
as road aggregate. Based on the TCLP
data for the iron-rich residue and the
two sets of TCLP data submitted for the
First Third-rule, the Agency developed
concentration-based treatment
standards for 14 metals that were
presented in the proposal.
During and after the close of the
public comment period, the Agency
received additional treatment
performance data for other HMTR
processes for K061 wastes. Treatment
performance data representing properly
designed and operated systems were
received, in particular, from
International Mills Service (IMS) and
International Metals Reclamation
Company, Incorporated (Inmetco).
Data submitted by IMS demonstrate
recovery of zinc, lead, and cadmium
from K061 high zinc wastes utilizing a
plasma furnace with an Imperial,.
Smelting Process (ISP) zinc splash
condenser. The splash condenser can
produce prime western grade zinc (i.e.,
98 percent zinc, less than 1.4 pergent
lead and 0.5 percent cadmium) and
metallic lead as products (i.e., materials
put to direct use without smelting. IMS
submitted a total of IB TCLP results for
14 metals from the slag residual
generated in the primary furnace.
Inmetco submitted three sets of TCLP
results for the slag residual generated
during the recovery of nickel, chromium,
and iron from K061 high zinc
subcategory. Inmetco1 s HTMR system
consists of a rotary hearth furnace with
a wet scrubber followed by an electric
furnace with a baghouse. Zinc-rich
materials containing lead and cadmium
are also recovered as baghouse dusts
and scrubber sludges and sent (as K061
hazardous waste) for further recovery of
zinc.
Other data submitted on residues
from HTMR processes were determined
by EPA to be insufficient to represent
full scale operations or were determined
not to be representative of a properly
operated system. Data and rationale for
these determinations are provided in the
background document for this
rulemaking.
In a July 2,1991letter to all
commenters on the proposed rule, EPA
provided notice of additional data from
HRD (collected during the First Third),
and data submitted during the comment
period by IMS and Inmetco. EPA also
noticed for comment revised treatment
standards derived from data used to
develop the proposed standards and
these new data.
2. Response to'Major Comments on
BOAT
EPA's responses to all comments are
found in the Response to Comment
Background Document. The following
discussion summarizes the Agency's
responses to 'the major .comments on the
- development of BOAT treatment
standards.
a. Use of HTMR Data from Recovery
of Metals from Low Zinc K061..
Commenters remarked that zinc is
recovered from wastes containing less
than 15 percent zinc; therefore, EPA
should establish standards based on
HTMR for all K061 wastes regardless of
the zinc content At the very least,
commenters said that the Agency should
use data that indicate the treatment
performance of HTMR for wastes
containing less than 15 percent zinc in
the treatment standard calculation for
K081 wastes in the high zinc
subcategory. Commenters emphasized
that it is common practice, especially for
commercial recovery facilities, to blend
these subcategories to achieve
appropriate feed compositions for
recovery (some of which are only
slightly below the 15 percent cutoff);
hence, commenters argued that EPA
must consider recovery performance for
low zinc wastes since the high zinc
standards would be most stringent and
take precedence over the K061 tow zinc
standards based on stabilization. The
high zinc/low zinc dilemma also affects
facilities utilizing site-specific HTMR
units since the zinc content of K061 can
vary depending on the grade of steel
produced (i.e., most facilities produce
many different types depending on
demand) and the amount of galvanized
steel scrap fed to the electric furnace
(i.e., zinc concentration in.KOBl
increases as the amount of galvanized
steel scrap feed increases).
The Agency agrees with the
commenters and has used data
demonstrating the HTMR performance
of K061 Wastes containing a mixture of
high and low zinc subcategories but
having an overall zinc content less than
15 percent to develop final treatment
standards. The treatment standards
adopted today, however, only apply to
the high zinc subcategory. Commenters
may be correct that the continued
subcategorization of K081 (i.e., into high
zinc and low zinc subcategories) is
unwarranted given that HTMR
treatment (and probably other forms of
treatment as well) are equally effective
for each subcategory. Given the short
time frame of this rulemaking, the
Agency is not prepared to make a final
decision on the issue at this time but
may initiate further rulemaking in the
near future. The Agency notes in
addition, however, that mixtures of high
and low zinc K061. This is because EPA
regards this standard as more stringent
than the low zinc K061 standard (the
high zinc standard applies to more
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Federal Register 7 Vol. 56. No. 160 / Monday, August 19, 1991 / Rules and Regulations 41167
constituents), and because the HTMR
process is the BDAT technology due to
its resource recovery and waste
minimization potential (plus effective
metal immobilization). The Agency is
adding language to 40 CFR 268.41(b) to
clarify that mixtures of low and high
zinc K061 are subject to the high zinc
treatment standard.
b. Use of Stabilization Data. Several
commenters submitted data for
stabilization of K061 wastes. The data
did not, however, include concentration
data for zinc, nickel, or chromium in the
untreated K061 wastes, leachate
analyses for all 14 metals in the
stabilized residual, design and operating
conditions, binder-to-waste ratios,
water-to-waste ratios and/or waste-to-
waste ratios. In the First Third final rule,
EPA determined that HTMR represented
BDAT for K081 wastes. These additional
data did not cause the Agency to change
it's decision. However, stabilization
technologies may be used to achieve the
treatment standards in today's rule
(provided the standards are achieved
through bonafide treatment rather than
impermissible dilution).
c. Regulation of 14 Metals. Based on
the new data discussed above, EPA is,
today, promulgating treatment standards
for all 14 of the metals that were
proposed for regulation in K061
nonwastewaters in the high zinc
subcategory. Except for vanadium,
numerical standards for metals in TCLP
leachates have been established. (As
discussed below, the treatment standard
for vanadium is promulgated as
"reserved".)
In general, the Agency has decided to
regulate all 14 metals for several
reasons; First, information suggests that
all 14 metals have a reasonably high
potential for being present in any given
K081 waste due to the nature of the steel
manufacturing process from which the
K061 is generated. Data on the
composition of KOG1 indicate that these
14 metals are present at varying
concentrations in K061 wastes from
different generating facilities. This
appears to be related to the types of
scrap materials smelted in the electric
furnace, the metals added to make
certain types of steel alloys, and/or the
grade of steel produced. Additional
information on the potential for K061
wastes to contain all 14 metals is
provided in the BDAT background
document for today's rule.
Second, since all 14 metals have the
potential to be present in K061, they all,
consequently, have the potential to be in
the HTMR residues depending upon
where the metals partition in the
recovery process. Improper operation of
the HTMR process could result in shifts
in partitioning of certain metala to
products (e.g., metal alloys),
intermediates requiring further smelting,
slag, or other nonwastewater residues.
HTMR processes are highly dependent,
at least in part, upon parameters such as
the operating temperature of the heat
zones, composition of metals and other
elements in the feed, zone residence
times, flow rates, oxidation/reduction
conditions, and mixing. (See also the
BDAT background document for an
explanation of how the 14 metals
typically partition in an HTMR unit and
the principles behind the partitioning.)
There is also an inherent metallurgical
interdepe'ndency between certain
metals, based on their atomic structure.
Such factors have led the Agency to the
conclusion that all metal-bearing
materials placed into the HTMR
processes could affect the ultimate
composition and teachability of metals
from HTMR nonwastewater residues.
The Agency believes, therefore, that
regulation of all of the metals will
provide a means of ensuring that the
HTMR processes, when used to treat
K061 wastes, are well-designed and
well-operated (i.e., truly BDAT) with due
consideration of all feed materials.
Third, since all 14 metals are
potentially present in the treatment
residues and are either hazardous to
human health or the environment, EPA
has developed treatment standards that
will ensure the control of the
teachability of all 14 metals. (See also
the discussion of the regulation of zinc
and vanadium, below.)
In general, commenters did not
provide technical support or evidence to
dispute that the fourteen metals should
not be regulated. Rather, the
commenters raised four major areas of
concern regarding the regulation of all
14 metals: (1) Only the four previous .
regulated metals should be regulated
because not all 14 metals are present
and that EPA regulated only four as
interim standards; (2) the four metals
currently regulated in K061 wastes will
control the leachability of the other
metals; (3) HTMR does not treat all 14
metals; and (4) regulation of 14 metals
will create an unnecessary analytical
cost burden. The Agency disagrees with
the commenters for the following
reasons:
i. Previous Regulation of Four
Metals.—The Agency is not restricting
the treatment standards to just the four
previously regulated metals for the
following reasons: (1) Waste ,
characterization data for untreated K061
wastes indicates the presence of all 14
metals in various concentrations; (2)
additional information on how K061
wastes are generated indicate that all 14
metals also have a reasonably high
potential for being present in any given
untreated K061 waste; (3) the previous
standards for the four metals were
based on preliminary stabilization data
rather than data from HTMR (which
was determined to be BDAT); and (4)
the previous standards for high zinc
K061 wastes were only interim.
While the agency had previously
promulgated a treatment standard of
"No Land Disposal" based on the use of
HTMR, interim standards based on
stabilization were established until
HTMR capacity could come on-line.
These standards regulated only four
metals in K061 wastes based on the
available treatment data and were
considered interim until the Agency
•could better examine performance data
from HTMR units. At the time of the
establishment of these interim
standards, the Agency was unaware of
the wide variety in metals composition
K061 wastes and did not, at that time,
establish stabilization standards for all
14 metals.
ii. Control of Leachability.—Based on
the principles of the pyrometallurgical
processes and the potential presence of .
all 14 metals in HTMR residues, the
agency does not believe regulation of
only the four previously regulated
metals will control the leachability of all
14 metals from these residues. Different
metals partition to different HTMR
residues (or products) at different
concentrations depending on the design
and operating conditions of the HTMR
process. (There are, however, some
chemical and physical properties of the
metals that allow prediction and control
of partitioning.) As a result, regulation of
all 14 metals is necessary in order to
account for the variability in potential
differences in partitioning. In addition,
data does not support that the
leachability of any one particular metal
(or group of metals) can be used to
monitor the leachability of all of the
other metals.
In fact, differences in the treatability
, of metals have also been demonstrated
by conventional stabilization processes.
Arsenic, selenium, barium, mercury, and
hexavalent chromium have been
demonstrated, for example, to be
particularly difficult to stabilize using
simple cementitious reagents. In
addition, many wastes require special
recipes of stabilization reagents in order
to. achieve optimum stabilization.
(HTMR does, however, appear to be less
sensitive than stabilization to variations
in concentrations and less dependent on
the chemical composition of the wastes.)
iii. HTMR as Treatment for Other
Metals—HTMR provides treatment of
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41168 Federal Register / Vol. 56. No. 160 / Monday, August 19, 1991 / Rules and Regulations
all 14 metals through a combination of
thermal recovery of metals (into
products) and thermo-chemical
stabilization (of residues). Treatment of
the 14 metals is directly related to
partitioning of the metals (based on the
melting and boiling'points of the metals
and their compounds) as the waste is
exposed to the high temperatures of the
primary furnace. In general, HTMR
provides treatment of the low-boiling
point metals present in K061 by
volatilization and subsequent recovery,
while high-boiling point metals are
thermo-chemically stabilized in HTMR
residues such as slags. This thermo-
chemical stabilization of the non-
volatile metals occurs due to the high
temperatures present, the relatively
efficient mixing conditions, the
oxidation-reduction conditions in the
primary furnace, and the presence of
other inorganic constituents that act, in
effect, as stabilization reagents. In fact,
many of the same conventional
cementitious stabilization reagents such
as calcium, silica, and alumina are also
used as additives in some HTMR
processes to achieve desirable HTMR
operating conditions as well as to
enhance desirable slag properties.
In confirmation, since most of the
leachability data for all 14 metals from
HTMR residues show very low, non-
detectable levels in TCLP leachates, the
Agency concludes that the HTMR
process does indeed treat all of the toxic
metals.
iv. Potential Analytical Burden of 14
Metals—Several commenters said that
(he Agency should regulate only those
metals for which K061 is listed, because
requiring analysis of the additional
metals will be burdensome. EPA
disagrees. First, eight of the metals are
included in the determination that the
material is notTC toxic (i.e., D004-D011)
prior to disposal. In addition, five more
are currently regulated to verify that the
waste can be delisted. Moreover, it is
the initial sample preparation that
generally impacts the cost of metals
analysis, rather than the instrumental
analysis. In fact, most metals are
analyzed using the same analytical
instrument and the analysis for all 14
metals is performed simultaneously. As
such, the addition of the other metals is
not considered unduly burdensome.
d. Regulation of Zinc and Vanadium.
Some commenters particularly stressed
that zinc and vanadium should not be
regulated. The Agency proposed to
regulate zinc as an indicator of proper
HTMR performance (i.e., indicating
effective treatment). The Agency
continues to believe that zinc is a good
indicator of how effectively the system
is'recovering zinc. Poor zinc recovery
seems to be related to poor maintenance
of proper operating temperatures which
can lead to less recovered material.
This, in turn, will lead to more metals hi
the slag causing greater slag .volumes
and the potential for more metals to
leach into the environment This is
significant because part of the reason
EPA has selected HTMR as the BDAT
technology is its resource recovery and
volume reduction potential. The
treatment standard for zinc helps ensure
that these expected environmental
benefits of using HTMR will occur.
Improper removal of zinc can be,
likewise, related to immobilization of
hazardous constituents that is not
optimum. For example, the Agency has
data demonstrating that when zinc is
concentrated and leaches at higher
levels hi the slag, other constituents,
such as lead, are also concentrated and
leach at higher levels.
In addition, zinc has been shown to be
an aquatic toxin. Since surface runoff of
treated K061 wastes could potentially
enter waterways, the Agency is
concerned that improper recovery of
zinc could lead to unacceptable zinc
leachate levels entering aquatic
ecosystems. Disposal of such a waste
might still be unprotective of human
health and the environment under the
second prong of the land disposal
prohibition test, notwithstanding that
Appendix VIH hazardous constituents
are immobilized. See NRDC v. EPA, 907
F.2d 1148,1171-72 (DC Cir. 1990)
(dissenting opinion). EPA is also
considering adding zinc to 40 CFR part
261 Appendix VIII, but is not doing so at
this time. (It is also currently regulated
under section 304 of the Clean Water
Act as an aquatic toxin.)
Hence, EPA is finalizing a treatment
standard for zinc as a means of ensuring
that HTMR is operated optimally and
thus achieves the statutory goals of
immobilization of hazardous
constituents, resource recovery and
waste minimization.
With respect to vanadium, the Agency
continues to believe that it is important
to monitor vanadium concentrations in
the TCLP leachate of K081 HTMR
residues because there purportedly exist
generators of K061 wastes containing
high vanadium concentrations and
certain vanadium compounds appear to
be toxic. (Two vanadium compounds are
specifically listed in Appendix VIII.) The
Agency calculated a numerical standard
for vanadium in KO&l wastes based on a
limited amount of detection limit data
for vanadium; however, the Agency is
promulgating the standard for vanadium
as "reserved" for the following reasons:
(1) Vanadium, when present in K061
wastes, will partition in an HTMR unit
to the slag residues (thus, eventual
regulation is appropriate); (2) the form of
the vanadium as it leaches from the
slags or other HTMR residues is
unknown; however, it is expected to be
toxic (again, eventual regulation is
appropriate); (3) EPA currently has no
leachate data for KO&l wastes,
containing high levels of vanadium, but
such wastes probably exist (thus, EPA's
current data may not be representative
of those wastes); (4) several commenters
indicated that vanadium leaches at
levels higher than those proposed by the
Agency, but submitted no data to
demonstrate this phenomena; and (5)
commenters also indicated potential
problems in detecting vanadium at the
levels proposed. As a result of all of the
above, the Agency has chosen to reserve
the standard For vanadium until
sufficient data and information become
available. EPA also plans to resolve the
issue of vanadium as a hazardous
constituent in a later proceeding.
EPA notes further, however, that it is .
including a standard for vanadium as
part of the generic exclusion from the
derived-from rule for treated K061 dusts.
See section 1I.C below. Since vanadium
is a constituent of K061 that can make
the waste hazardous, the Agency.
believes it appropriate (particularly
because there is a verified health-based
level for vanadium) to include this
constituent within the exclusion. See
RCRA section 3001(f). The Agency's
present inability to establish a reliable
treatment standard for this constituent
in all treated K061 wastes is likewise no
bar to including vanadium within the
exclusion.
3. Development of Final Concentration-
based Standards
a. Data Used as the Basis of'the
Standards. EPA has determined that it is
appropriate to develop treatment
standards for K061 based on the
performance of all properly designed
and operated HTMR processes that ',
have been demonstrated to recover
metals from high zinc K061 wastes or
mixtures containing high zinc K061
wastes. Data that meet these
requirements include: (1) Three TCLP
leachate .analyses for all 14 metals and
nine TCLP leachate analyses for the
eight TC metals in the slag (i.e., IRM)
generated by the HRD Waelz kiln
process; (2) 16 TCLP leachate analyses
for all 14 metals in the slag generated by
the IMS plasma furnace process; (3) one
TCLP leachate analysis for 10 metals in
the slag generated by the SKF plasma
furnace process; and (4) three TCLP
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Federal Register / Vol. 58«_No. 160 / Monday, August 19. 1991 /Rules and Regulations^
leachate analyses for all 14 metals in the
slag generated by the Inmetco electric
furnace process.
b. Calculation of the Standards. These
HTMR processes typically result in
nonwastewater residues (e.g., slags) that
leach relatively low levels [and in most
pases nondetectable levels) of metals in
a TCLP leachate. Commenters were
concerned with the potential detection
limit problems based on analytical
equipment variability and TCLP
digestion problems for the slag matrix.
In addition, several commenters
mentioned concerns about process
variabilities due to different system
configurations and feed variabilities
caused by on-site recovery systems with
sole-source feeds versus commercial
recovery systems that blend many
different K061 wastes.
The Agency has decided to develop
treatment standards that reflect the
performance of all of the various well-
operated HTMR technologies. This
results in limits higher than those
proposed. However, given that all of
these technologies are capable of
achieving substantial immobilization of
hazardous constituents (though not
identical levels of performance), EPA
believes this result is appropriate. EPA
notes further that certain apparent
differences in performance result from
different reported detection limits. Thus,
for many of the metals, all of the
reported data shows non-detectable
levels of metals in the HTMR slag, but
different limits of detection due to
different slag matrices (or perhaps due
to differing levels of performance by
analytic laboratories). In these cases,
-EPA used the highest analytic detection
limits in order to accommodate
performance of as many of the well-
operated HTMR technologies as
possible. (EPA believes that is
appropriate for this rulemaking, but
would not necessarily adopt the same
approach for other treatment standards,
since it might not always reflect best
treatment performance.)
As a result, the final standards have
been calculated using the following
BDAT methodology. First, treatment
standards were determined for each
process individually. Then, the four sets
of standards were compared to each
other. Based on this comparison, the
Agency selected the highest standard for
each metal from each of the five
processes to allow for process
variability and detection limit
difficulties. This approach derives limits
achievable by all of the major HTMR
technologies (and probably achievable
by stabilization as Well) since, properly
operated, these technologies all appear
capable of substantially reducing the
mobility of metals in HTMR slags.
By establishing standards that are not
based on a single optimized type 'of
HTMR technology, the Agency
recognizes that metal mobility in K061
residues may not be minimized to the
maximum extent. However, EPA
believes that the treatment standards
developed today are appropriate. First,
as noted above, these standards
represent significant reduction in metal
mobility. See section 3004(m) and-55 FR
6640,641 n. 1 ("minimize" standard in
section 3004(m) does not require the
elimination of every conceivable threat
posed by disposal of a hazardous
waste). Second, a more stringent
standard, based on a particular HTMR
technology, would be a type of
technology-forcing standard that
Congress did not appear to have in mind
in promulgating section 3004(m). 130
Cong. Rec. S 9178 (daily ed. July 25,
1984} (statement of Sen. Chafee); 58 FR
at 12354. Third, the Agency notes that
today's action is similar to standards •
developed for other wastes codes
(notably the K048-K052 wastes) where
the Agency based treatment standards
on treatment technologies may not
achieve complete destruction or
removaLbut nevertheless achieve
substantial reductions of toxins. 55 FR at
22596.
EPA notes that some of the treatment
standards have increased slightly over
the existing interim standards based
upon performance of stabilization. Thus,
the standards for both lead and
cadmium are slightly higher in today's
rule. The Agency does not regard the
small difference (hundredths of parts per
million] as of significance, particularly
because the actual reported HTMR'
values in most cases are non-detectable
in any event. In addition, the value for
nickel based on HTMR performance is
considerably higher (over an order of
magnitude) than the existing interim
standard. However, the standard based
on stabilization was transferred from
another waste (because the only K061
wastes for which EPA had data
contained levels of nickel too low to be
treated (see K061 Background Document
for the First Thud rulemaking)), whereas
the standard in today's rule reflects
treatment of a high nickel KQ61 waste.
EPA thus believes that the higher nickel
level adopted today more accurately
reflects treatment performance. In
addition, EPA would probably have to
create a further subcategory (high
nickel/chromium K061) to accommodate
treatment of high nickel/chromium
wastes, which would result in a further
and unnecessary complication of the
rules, in the Agency's view. Thus, EPA
does not believe that the higher nickel
standards (or slightly higher lead and
cadmium standards) promulgated today
calls into question whether HTMR is the
appropriate technology on which to base
treatment standards.
To create an incentive for use of the
more optimized HTMR technologies,
however, the Agency is going forward
with the proposed generic exclusion
from the derived-from rule for residues
meeting health-based standards (which
for most of the metals are lower than the
treatment standards). Based on the
treatability data provided the Agency,
slag residues from many of the newer .
processes should achieve these levels.
The older processes, if properly
operated (or possibly modified) also
'may be able to achieve these levels.
c. Standards for K081 High Zinc
Nonwastewaters. The specific treatment
standards are as follows:
BDAT TREATMENT STANDARDS FOR K061
[Nonwastewaters—High Zinc Subcategory]
Regulated constituent
Antimony » »...«.» «
Arsenic - ..«„««....«.
Barium -
Cadmium ............................ «.«.......».»
Lead ..-.
Nickel . .
Selenium «».....l........
Silver .'_ ..„
Thallium
Zinc
Maximum
for any
single
composite '
sample,
TCLP (mg/l)
2.1
0.055
7.6
0.014
0.19
0.33
0.37
0.009
5.0
0.16
0.30
0.078
P)
5.3
1 Reserved.
d. Decision not to Adopt the Proposed
High Chromium/High Zinc Subcategory.
In the proposal, EPA developed
concentration-based treatment
standards for K061 nonwastewaters in
the high zinc subcategory based on
HTMR as BDAT; however, EPA
proposed to establish different
treatment standards for these wastes
based on their chromium/nickel content.
While most of the high zinc subcategory
K061 wastes are generated from the
manufacturing of carbon steel and
contain low concentrations of chromium
and nickel, certain K061 wastes
generated from stainless and specialty
steel manufacturing, besides having a •
high zinc content, may also contain
recoverable levels of chromium and
nickel (i.e., containing equal to or
greater than 1.5% total nickel and
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'41170 'Fedetal foegisUtf '/ VoL.% No. 160 / Monday,' August l&,r 19bl! /Rules'aiid?Regufetions
chromium in combination). These
wastes can be used to produce a remelt
alloy containing nickel, chromium, and
iron that can be used as a feedstock for
stainless steel production.
In the proposal, the Agency stated
that the HTMR process for recovering
chromium/nickel from these K061
wastes may achieve a different level of
treatment performance than the HTMR
processes that are based primarily on
the recovery of zinc from K061. EPA
believed this was due to the differences
in metal concentrations of the feed
materials (in particular, with respect to
zinc, nickel, and chromium) and the
Inherent differences in design and
operation of the respective HTMR
processes. Consequently, EPA proposed
to divide the K061 high zinc subcategory
into those wastes containing less than or
equal to 1.5% nickel/chromium
combination and those wastes
containing greater than 1.5% nickel/
chromium combination.
For the high zinc K061 wastes
containing greater than 1.5% nickel/
chromium combination, the Agency
proposed to reserve the standards for
nickel and chromium based on the
assumption that the treatment
performance would be different for
these wastes and the lack of data
demonstrating actual performance. The
decision to divide high zinc K061 based
on the chromium/nickel content has
been reevaluated and the Agency has
determined, based on data submitted
during the comment period, that the
chromium/nickel HTMR recovery
process achieves a similar level of
: performance as the HTMR processes
designed and operated to recover only
volatile metals such as zinc, lead, and
cadmium. In addition, as discussed
earlier, EPA has adopted a nickel
standard reflecting treatment
performance of a high nickel/chromium .
waste by HTMR. For these reasons, the
Agency does not believe it necessary to
promulgate a further regulatory
subcategory for K061, nor to reserve
treatment standards for nickel and
chromium. Thus, the final rule
establishes standards for chromium and
nickel applicable to residues from the
treating of all high zinc KOB1
nonwastewaters.
4. Use of Other Technologies
The Agency received several
comments indicating that other non-
HTMR recovery processes exist that can
be used to recover metals from K061
nonwastewaters in both the low zinc
and high zinc subcategories. These
processes use a series of primarily
hydrometallurgical technologies,
including chemical precipitation, ion
exchange, and electrowinning. These
non-HTMR recovery processes, along
with stabilization processes, are not
precluded from use by today's rule,
provided the residues comply with the
concentration-based standards prior to
land disposal (assuming that land
disposal occurs) and provided that these
levels have not been achieved through
the use of impermissible dilution.
C. Generic Exclusion of PTTMR
Nonwastewater Residues
1. Conditions for Exclusion
Residues from HTMR of K061 wastes
in units identified as rotary kilns, flame
reactors, electric furnaces, plasma arc
furnaces, slag reactors, and rotary
hearth furnace/electric furnace
combinations or industrial furnaces (as
defined in 40 CFR 260.10(6), (7), and (12))
are excluded from the hazardous waste
regulations when disposed of in a
Subtitle D unit, provided the residues
meet the generic exclusion levels for all
constituents, and provided the residues
do not exhibit one or more of the
hazardous waste characteristics. The
reasons for specifying HTMR for the
exclusion are provided in the section
below called "Applicability to Other
Types of Treated K061." In addition, the
residues will be subject to the testing
and tracking requirements described
below*
The generic-exclusion finalized today
is the same action that was proposed;
however, it was referred to as a "generic
delisting" in the proposed rule. Today's
action is more accurately termed a
generic exclusion from the derived-from
rule under § 261.3(c)(2). The term
"delisting" is commonly used to
describe the rulemaking process
established under 40 CFR 260.20 and
260.22 to amend part 251 on a waste-
specific basis (by facility). The decision
to genetically exclude nonwastewater
HTMR K061 residues was based on the
fact that the treatment process is well-
defined and thus does not require an in-
depth evaluation of each facility's
process. The Agency is determining that
the "derived-from" rule's presumption of
hazardousness no longer should apply to
HTMR K081 residues with toxic metals
treated to specified levels. The Agency
has made this determination after
considering the factors in RCRA section
3001(f) and after satisfying the
underlying philosophy of the delisting
provisions.
The generic exclusion levels include
all of the toxic metals that might
reasonably be expected to be present in
the nonwastewater residues from
processing K061 wastes by HTMR. (This
is consistent with RCRA section 3001(f)
requiring EPA to evaluate whether
constituents in addition to those for
which a waste is listed could make a
waste hazardous.) The Agency has
evaluated the treatment standard levels
using its vertical and horizontal spread
(VHS) landfill model, which predicts the
potential for groundwater contamination
from wastes that are landfilled. See 50
FR 7882, 50 FR 48896, and the RCRA
public docket for this notice for a
detailed description of the VHS model
and its parameters. Using the maximum
contaminant levels (MCLs) or action
levels and a waste volume of greater
than 8,000 cubic yards per facility (a
worst case estimate for purposes of the
VHS model), EPA determined the
following "generic" concentration levels
which it considers safe to human health
and the environment.
CONCENTRATION LEVELS OF K061 HTMR
RESIDUALS FROM VHS MODELING
[Nonwastewaters]
Constituent
Antimony ...»
Barium.... ...; ...........:.
Beryllium :
Chromium (total) -
Lead ...
Mercury , , ,
Nickel
Selenium
Silver.. ;
Thallium ;
Vanadium « »....«
Maximum
for any
single
composite
sample,
TCLP (mg/l)
0.063
0.32
6.3
0.0063
0.032
0.63
0095
0.013
0.63
0.32
0.32
0.013
1.26
EPA notes that the BDAT standards
and VHS-based levels are not identical,
since each set was calculated for a
different purpose: The BDAT standards
are technology-based levels, while the
VHS results derive from health-based
modeling. In order to be eligible for the
generic exclusion, the residues must
meet the following concentration levels:
GENERIC EXCLUSION LEVELS OF K061
HTMR RESIDUES
[Nonwastewaters]
Constituent
Arsenic ..........
Barium..... .._....:
Beryllium „ «
Cadmium ; „
Maximum
for any
single
composite
sample,
TCLP (mg/l)
0.063
0.055
63
0.0063
0.032
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, JEederal ^Register ?/
No. -
GENERIC EXCLUSION LEVELS OF K061-
HTMR RESiDUES-^Continued
' [Nonwastewaters]
Constituent
Chromium (total} ......... _..—.
Lead— ._^__J. ™_~:..~.. ~~
Nickel ._, _^_.__— „— .
Selenium .nii-iiiiiLULnin ii.iii.iiiiniriiiiiinrirnr-
Silver.. „.._ .™_™
Thallium .«.....— „_............,.
V?inaCBlffft-l-J----L---lJ-ll-ll-LlllirililllllTlll-rlrl in 1
Maximum
forany
single
'composite
sampte,
TCLP(mg/t)
" 6.33
0.095
0.009
0.63
.0.16
0.30
0.0t3
1.26
For five of these constituents .(arsenic,
chromium, mercury, selenium, and
silver), the technology-based treatment
standards are slightly lower than the
exclusion levels based on VHS
modeling. EPA does not regard these
values as significantly different,
however (the difference ranges from .003
ppm (mercury) to .3 ppm (chromium)).
Given that the Agency is excluding
these wastes generically, rather than
after a more individualized examination
as part of a facility-specific delisting,
EPA believes that it is prudent to use the
slightly lower .value for this exclusion.
We note that today's action is consistent
with the Agency's position in the Third
Third rule, where it maintained that land
disposal prohibitions can apply to '
wastes that are hazardous when they
are generated, even if they are not
hazardous when disposed of (see 55 FR
22652-22653). However, EPA is not .
invoking that principle to justify its •
decision here, given that the exclusion is
generic and the values practically
equivalent in any case. ,
We thus do not view the final rule as
presenting the issue raised in comments
of exclusion levels being based on
technology-based levels. As just
discussed, the final exclusion levels are
either generated directly from a health-
based model, or are so close to those
levels as to be warranted for a generic
exclusion.
EPA received numerous comments
related to the general proposal of
establishing generic waste exclusions.
One commenter recommended that the
Agency establish generic exclusion
levels for all listed hazardous wastes,
not just the nonwafstewater HTMR K061
residues. The Agency notes that it has
. modified, the definition of solid and
hazardous wastes in the past, and, in
particular, has modified the "derived-?
from" rule of 40, CFR 261.3. During the
development of the BDAT standards for
nonwastewater HTMR K061 residues.
the Agency recognized that these wastes.
do not always contain significant levels
of leachable inorganic constituents. As a
result, the Agency decided to couple the
generic exclusion concept with the part •
268 provisions. .The Agency may
investigate other candidate waste types
and modify the "derived-from" role in
the future, on a waste-specific .basis, for
wastes which warrant exclusion.
Another issue involved the decision to
use Toxicity Characteristic Leaching •
Procedure (TCLP) rather than Extraction
Procedure (EP) leach test values for the
exclusion. One commenter questioned
whether EPA was contemplating • • -. •
revisiting the existing exclusions, not
only for K061 but for other metal-bearing
wastes, to require TCLP testing to
ensure regulatory and environmental
consistency. The Agency is currently
considering revisiting facility-specific
exclusions where petitioners are .-
required to test waste prior to disposal
as nonhazardous. In addition, the.
Agency notes that it currently requires
that petitioners provide TCLP data in
lieu of EP toxicity testing when
submitting new petitions. However, any
decision to require TCLP testing for
existing exclusions based on EP data
will be addressed in a separate Federal
Register notice.
One commenter urged EPA to abolish
the concept of a generic exclusion under
40 CFR 261.3 for nonwastewater HTMR
K061 waste as EPA did not evaluate all
of the factors involved in its own
delisting protocols as part of the
considerations for the exclusion. The
commenter believed that EPA should
separate the actions related to a generic
exclusion from .this land disposal
restrictions rule. As discussed
previously, today's action is not a
"delisting," as the procedural
requirements for delisting apply to
persons seeking exclusion of a waste at
a particular generating facility.
However, in response to the
commenter's concern about the .,
Agency's assessment of the potential
hazard of these wastes, the Agency
believes that it has sufficiently assessed
those hazards using the VHS landfill
model. Furthermore, the Agency is
establishing exclusion levels for all
constituents that might make the waste
hazardous. The Agency'also believes
that it has sufficient data demonstrating
that nonwastewater HTMR K061
residues are not hazardous if they meet
the specified conditions. -. ...
The Agency received comments ;.
stating that the VHS, model greatly
exaggerates potential ground water
contamination. One commenter felt that
the assumptions used in the model are
all conservative sad that, although somp
of the. assumptions: may not represent
absolute worst-case conditions when
considered individuallyi, in total the
model represents an extreme -worst •
case. As a result, the commenter
believed that exclusion levels calculated
through the appb'cation of the VHS
model's minimum dilution factor will be
. unduly conservative. Another , . . .
commenter believed that delisting the
K061 residue using solely the VHS
model does not fully acknowledge the
persistence and bioaccumulation
potential of toxic metals (from the K06X
residue) in the environment ~
The Agency disagrees with these •
commenters. As modified, the generic
exclusion requires facilities managing
nonhazardous HTMR residues to * ;
dispose of the material in a Subtitle D .
disposal unit As such, the Agency •
believes that it is appropriate to . '
estimate the transport of contaminants
using a ground water model that '
evaluates disposal conditions that could
be encountered in a Subtitle B "disposal
setting, such as the VHS model. In; '
applying the model, the Agency makes a
variety of assumptions to account JFdra
reasonable worst-case disposal
scenario. The VHS model asSrnraes fliat
the waste is disposed in an onlined
landfill (a normal Subtitle D situation;).
The model mathematically simulates i&e
migration of toxicant-bearing leachate
from the waste into the uppermost •
aquifer, and the subsequent dilution of
the toxicants due to dispersion within'
the aquifer. The Agency uses mis model
to predict the maximum concentration of
the diluted toxicants at a hypothetical
receptor well (or compliance point)
located 500 feet from the disposal site.
These are all situations that could arise
in Subtitle D disposal settings The VHS
model was developed to be ,
conservative, and because'ifcis used as
an evaluation tool to identify wastes to
be excluded from regulation as
hazardous, the Agency believes .feat its
use is justified here. / . :
Six commenters believed that the,
dilution and attenuation factor (DAF)
employed by the Agency is
inappropriately conservative. For the
reasons just stated, the Agency believes
a DAF of 6.3 is justified and necessary
to ensure that wastes meet.the Agency's
levels of concern prior to being disposed
of as nonhazardous. .-. ' • . .
The Agency notes that the generic
exclusion levels for lead were lowered
to reflect the new action level of QJBfiS
mg/1 contained in an Office of Drinking
Water regulation (58 FR 26460} which
was promulgated after the proposed .
KQ81 rule. Several commenters believe
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/wVol. $6* No. £60 /,.MqndayirAMgusttl9, 1991n/ flutes, and Regulations;
that itUi inappropriate to base the .
maximum allowable exclusion level on
the new action level for lead, instead of
the MCL, The commehters noted that .
the recent lead rule did not immediately
revoke the existing MCL, and allows the
MCL to remain effective until November
9,1992, Furthermore, they argue that the
lead action level of 0.015 mg/1 is hot an'
enforceable, health-based standard,
citing EPA's preamble language to the
rule that states that the action level is
not equivalent to an MCL. Commenters
also noted that past delisting, ,
evaluations have used existing MCLs as
the bases fop delisting decisions, and
that the current MCL of 0.05 mg/1
should be used in today's rulemaking.
The commenters are correct in stating
that delisting evaluations have used-
MCLs to derive acceptable delisting
levels. However, in the absence of
formal MCLs, the Agency has also used
other appropriate health-based levels to'
establish delisting levels. In the absence
of a new MCL for lead, the Agency
believes that prudence requires that the
exclusion level be established using the
more conservative action level of 0.015
mg/1. EPA established the new •
treatment standard for lead instead of a
MCL because, as EPA concluded in the
preamble to the final rule there is no
apparent threshold for various health
effects associated with lead. Given that
the Agency's goal is to minimize lead
exposure among sensitive populations,
however, the treatment standard with
an action level was established. 'While
the action level is not a formal MCL,
EPA stated in the preamble to the lead
rule that the level of 0.015 mg/1 is
"associated with substantial public
health protection." (Sea1 S8 FR 29477.)
While the commenters are also
correct in stating that the existing lead
MCL of 0.05 mg/1 will remain in effect
until November 9,1992, the Agency
believes the use of this level in setting
the excluslpn level would be
inappropriate, The effective date for the
action level and accompanying
treatment standard for lead were
delayed in order to allow public
drinking water systems sufficient time to
comply with this new rule. The Agency
doe« not believe that to'establish
exclusion levels using an old MCL that
will soon be superseded by a more
stringent standard is sufficiently
protective of public he'aljh.
2. Product Uses of Residues From K061
Treatment ' !
The generic exclusion of K061
residues In this rule applies only to
residues which are disppsed of in
Subtitle D units (i.e., landfills or piles). ,
As EPA noted at proposal, the majority
of these slags are not landfilled, but
rather are used in a manner constituting
disposal as road base material, or (less
often) as an anti-skid material (56 FR
15024). EPA solicited comment on
methods to evaluate exposures from.:
road base and anti-skid uses. Several ,. ,
commenters believed that the reliance
on the VHS model for analyzing HTMR
residues is inappropriate and .
unprotective when the material is used
as an anti-skid or road, bed material,
since not all potential exposure
pathways are evaluated. On the other
hand, one commenter believed that the
use of the VHS model greatly,
exaggerates the degree of ground water
contamination that could result from use
of HTMR residues as a road base
material.
Although EPA received comments
concerning possible risks from road uses
(in'particular, inhalation due to improper
handling during transportation, and
exposure to lead accumulation in dust
and surface soils), no data, methods, or
models were submitted. The Agency has
decided that its regulatory tools for
evaluating road base and anti-skid uses
are too uncertain for the Agency to .
make a final decision at this time—
particularly given the. very short time-
frame of this rulemaking—as to whether
residue used as road base or anti-skid
material should be excluded. The VHS
model evaluates possible risks posed by
landfill disposal. It may also be suitable
for evaluating residue used as a road
base material, since this situation may
be viewed as similar to (or more
protective than) a capped landfill. The'
Agency has. not had time to make a full
technical assessment of this point. The
VHS model alone may not be fully '
suitable for evaluating the safety of slag
used as an anti-skid material, because
this apparently uncontrolled use may
present exposure pathways (i.e.,
airborne inhalation and surface runoff)
that the model does not consider. Thus,
the exclusion levels apply only for .those
modes of management that EPA
currently feels confident in evaluating
with the VHS model, namely disposal in
a land disposal unit. . •
This case differs from other delistings
in that EPA has never before evaluated
a situation where the waste would be
used in a manner constituting disposal,
raising the concern that the VHS (or
other groundwater model) no longer
simulates a worst-case scenario. (EPA
notes in addition that it has considered
air blown dust exposure pathways in •
other delistings, but views the situation
presented in today's action as different
Previous situations involved possible
exposures from air-born losses in transit
whereas today's action potentially -
involves continual deposit of waste over
a wide expanse of road systems.) Thus,
EPA does not view today's action as .....
calling into question determinations
made in earlier, site-specific delistings.
Under current regulations,-if a
hazardous waste is used in a manner
constituting disposal, it is exempt from
further regulation, provided.it undergoes
a chemical reaction so as to be •
inseparable by physical means, and .
provided it meets the land disposal
restrictions treatment standards for
each hazardous constituent that it
contains (40 CFR 266.20). Thus, under
today's rule, such practices as use of the
HTMR residue as road base or anti-skid
material are not immediately prohibited
(provided-the residue meets the
treatment standard). EPA intends
shortly to propose amendments to 40
CFR 268.20 that may, if ultimately
finalized, require further controls on all
hazardous waste-derived products used
in a manner constituting disposal,
including a demonstration by the '
producer of such materials that the
materials are used legitimately and
safely. EPA intends to further evaluate
the uses of K061 HTMR residue as part
of that proceeding.
3. Tracking Requirements .
• The generic exclusion for K061 HTMR
residues that meet the exclusion levels
(in part 2.61) and treatment standards (in
part 268), and that do not exhibit any
hazardous characteristics, is limited, as
already discussed, to such waste that is
disppsed of in Subtitle D units. Because
K061 HTMR residues are hazardous at
the point of initial generation, EPA '
believes that tracking and certification
are needed to ensure proper handling. A
modified tracking system for the waste,
like that promulgated in the Third Third
rule for characteristic wastes that have'
met the treatment standards and exhibit
no hazardous characteristics (55 FR
22662-22664), will apply. Under this
tracking system, a notification and
certification must be sent to the
appropriate EPA Regional Administrator
or State authorized to implement the
part 268 requirements for each shipment
sent to a Subtitle D unit
4. Testing Requirements ,
The land disposal restriction program
imposes site-specific testing .
requirements in order to verify that
regulatory requirements have been
satisfied. The Agency proposed that, for .
the purpose of determining eligibility for .
the generic exclusion, testing of residues
from HTMR of K061 be required at a
frequency specified in the waste
-------
analysis plans of treatment facilities.
Th^ Agency solicited comment on
whether more detailed testing
requirements are necessary. Some '
comm'ehters argued that quarterly
testing of composite samples' of
nonwastewater residues resulting from
HTMR processing of K061 should be ;
sufficient ta demonstrate compliance
with the exclusion criteria; other - , :
commenters indicated that a more •„•
frequent and detailed testing regime
than occurs under waste analysis plans
was necessary. Various commenters
recommended monthly, weekly, or daily
testing. • •
The Agency has decided to require
that treatment facilities which wish to
meet the exclusion requirements must
test treated wastes at a frequency
specified in their waste analysis plan in
order to determine whether they have
met the exclusion levels. See 40 CFR
268.7(b) and 55 FR 22669. In the case
where treatment is performed at the
generator's site is a. way not requiring a
permit, testing is required at a frequency.
specified in the self-implementing waste
analysis plan required by 40 CFR
268.7(a)(4). However.^at a minimum, a
facility's waste analysis plan (or a
generator's self-implementing waste :,
analysis, plan) must specify that
composite samples of the K061 HTMR
slag residues be collected and analyzed
quarterly and/or when the process or
operation changes (see 40 CFR .
264.13(a)(3) and 265.13{a)(3}). The
Agency believes that it is appropriate to
allow the frequency of testing beyond
the quarterly minimum to be determined
in the waste, analysis plan, taking into
account facility-specific factors such as
waste types, waste variability, quantity,
batch size, and type of treatment unit.
The Agency believes that permit writers
will, consider these factors when
establishing testing conditions in the
waste analysis plans.
5. Applicability to Other Types of
Treated K061
The exclusion discussed above
applies only to those nonwastewater
residues generated by HTMR processes,
and not to others such as
hydrometallurgical processes x>r
stabilization. The Agency has
insufficient data to fully evaluate the
residues from hydrometallurgical
processes; however, the limited
available information indicates a high
teachability. Moreover, given the
Agency's current paucity of information,
EPA'has no idea what an appropriate
testing regime for residues from ;
hydrometallurgical processes would be,
even assuming that these residues could
meet the exclusion levels. EPA thus
believes it unwarranted to make , ,
residues from hydrometallurgical - . .
recovery processes eligible fprihis ,1^^ ,, _.t
genericexclusioh It'tmstime^* d;';~-'-"'*•
There are several reasons for not :''
excluding stabilized residues , . , :
generically. The HTMR residues : ;
demonstrate consistent leaching
behavior whereas stabilized matrices
are quite variable. The chemical
bonding that occurs in the high . .
temperature and oxidation/reduction
conditions within the HTMR units is
inherently different than the bonding
that forms the basis of cementitious and
pozzolanic stabilization. In addition, the
kinetics of the reaction forming the ;
bonds in these HTMR processes are,
superior to the kinetics of bond; - ;
formation in cementitious reactions.
(Cement is not typically considered set
until at a minimum of 72 hours and often
not considered fully cured until after 28
days.) Stabilization has also been
documented as a process that is highly '
matrix-dependent and prone to chemical
interferences. (Data in support of this
conclusion is located in the background
documents to the First, Second, and
Third Third rules.) Most commercial
stabilization facilities have to develop
special mixes for each waste type by
selecting additives that will enhance
' curing time and/or product integrity"
(often measured by comprehensive
strength). , ' .
Another reason for not allowing
stabilized residues to be generically
excluded is the possibility of ' ';'•
impermissible dilution, which must be
considered on a case-by-case basis with
stabilization, but not with HTMR."
Hence, facility-specific delistings are ; -
preferred for stabilized wastes so that
the Agency can evaluate waste-to- .
binder and waste-to-waste ratios and
make a determination about treatment
versus dilution. Finally, the Agency
believes that HTMR is a preferred •
technique for managing the K061 waste
over stabilization technologies, in light
of its resource recovery potential, and in
light of the differences in volumes of
treated wastes. Stabilization generally
increases volumes, while HTMR • .'•
generally decreases volume. Thus, the
Agency does not believe it warranted to
develop a-somewhat technically sketchy
generic exclusion for stabilization. , ; ,
EPA notes that it is not precluding .the
use of stabilization by today's rule, and.
that facility-specific delisting remains an
option for stabilized K061 wastes.
However, due to the inherent ' '''••''
differences between HTMR and!
stabilization stated above; and'the fact
that insufficient data currently, exists to
propose a' generic exclusion for
stabilized K061 wastes, the Agency has,
determined that the generic exclufcipnjf. •
,, levels are not Applicable; to .stabilized; i",
GK06i'residues. The Agency believes flial,;
more individualized consideration of,'' <
stabiUzatipnjs!warrahte!dbefpr0 ',. ,,:,
residues from the process are.del^ted],;
6. Regulatory Status of Certain K061-'- ,. • '
NpnwasteWater Residues From HTMR I
A number of commenters raised the : .
issue of the regulatory status of .
nonwastewater residues frpmHTMR ,. ...
processes. Commenters suggested that ,
the Agency approach the issue as an; ;..,
interpretation of the existing federal •,-.'• ; j
rules regarding recycling. We haye, •-•;
responded to this point above. Other ' ; •.
commenters questioned the regulatory ;
status of other side streams, and urged : .
that One side stream in particular, a " , „ .
dross from the splash condenser in an :
HTMR process which is sent oJEf-site for
1 zinc recovery or re-processed pn-site irk.:.
the HTMR prpcess.-npt.be classified,as
a solid waste. -•...'!• • - { .- •, :...
Under the federal regulations, ;i ...
hazardous wastes destined for . •
reclamation remain classified as solid- •
and hazardous wastes until reclamation :
is completed. Reclamation is normally^ ;
• incomplete until the end-product of the ;
process is fully recovered. 50. ER at833,
634,655; The line the Agency has; : ,
; traditionally drawn between partially >••
arid fjiHy reclaimed material when ••:: :
thermal metal recovery is inv01ved-is-< !;•
that secondary materials remain wastel;)
until smelting is completed. 7d: at :634 -t •
(recovered metals orfiy needing to be • '••-.
refmed (the processing step following
smelting) are products, not wastes), This
interpretation is consistent with RCRA's :
cradle-to-grave mandate by retaining -.
authority until a usable metal is '••• -•.•'• ••'•
recovered. Cf. API v. EPA, 906 F.2d at
' -741.' : ' : ,'- - ;- ; •-.•:":.•'. •'
The rules also provide for a varptnce,
from solid waste classification forp - '
materials that have been partially but ';•: •.
'. not fully reclaimed. 40 CFR 261.30(c). '
Criteria for granting a variance include
the degree of ^processing that the
material .has undergone and the degree .'.
of further processing required, the value
of the material after it has been •'• ,' : ;.'
reclaimed, the degree to which the ; ; :. ;
initially-reclaimed material is like an ; •'
analogous raw material, the extent-to ''.
which an end market for the material is.
guaranteed, and (perhaps most : . •
importantly), the extent to which the -.' .
initialiy-reclaimed material is handled. .-
to minimize loss. 40 CFR 260.3l(c), '' '
Applying these rules to the dross from
: HTMR splash condensers, EPA has
decided to amend its rule; by excluding
from Subtitle C jurisdiction the splash
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Federal Register / Vol. 56, No. 160 / Monday, August 19. 1991 / Rules and Regulations
condenser dros& residue (hereafter
teferred to-o SCDRJ'gsnerated by
certatoBPMR processes. This material
is specifically generated as the non-
prodnct skimming from the splash
condenser,, along with recovered zinc
ancPtead" meeting Western grade zinc
metal »pedflcationa (Le., 9&95 pure ,
mctal9],,w&ich are products under the
rales (see 5 2dl.3(c)(2) final sentence).
The dross is presently a solid waste
because it is partially but not fully
reclaimed (fceH It still requires smelting
or other recovery before a usable metal
is extracted}, and thus would remain a
K001 waste unless it is- excluded from
tho rule* See $0 CFR 281.2{a)(l) and 58
FR at 7144. Based on public comment
and'corroborating information contained
in flia record for today's rule, the SCDR
is collected directly from the splash
condenser and drummed. It is then
stored fitf short period* (not exceeding
two weeks) and sold to a thermal zinc
processing facility where it is-used as a
source of zinc, or reused on-site in the
HTMR process, or reprocessed by
HTMR on-site, (The SCDR normally
contains SO-60X zinc.) At the thermal
processing facility (where SCDR is
shipped off-site), the drums are stored
Indoors in a secure manner (on concrete
flooring, and with controls against
nirborno migration). The material is then
processedforrecovery by crushing, and.
in combination with other feedstocks,
grinding; and by thermal recovery of
zinc.
The SCDR stream is small in volume.
(In addition, most of the toxic metals that
originate in theKDBl do not partition to-
the SCDR: Approximately 90% partition
to zinc and lead products or to baghouse
dusts. Those toxic metals remaining in
tho SCDR have reduced mobility from
tho original K061. The SCDR does not
exhibit ja characteristic of hazardous
waste. SCDR ia also changed in physical
form from the original K061. It is no
longer a duet; but rather is a solidified
matrix.
Hie Agency evaluated'the material
against the criteria for determining
whether a waste that is partially but not
fully reclaimed should still be classified
as a solid waste (40 CFK 260.31(c}).
Although these criteria were established
for * variance determination, EPA
believe* that they arerelevant in-
determining' whether this material
should be considered- toDe "discarded"
within the-mearrihg of f 261.2(aKl). The
Agency Has received adequate
information fa this case to exclude the
material by rule, fa'particularr the
Agency finds, that tho SCDR results from
substantial processing Cas shown by the
volume reduction, partitioning: of toxic
metals to other outputs of the process,
change in physical form, and reduction
in mobility of toxic metals) (see
§ 260.31(c)(l)); that the material is sold
for value (or reprocessed'on-site to
recover high concentrations of zinc) (see
§ 260.31(c)(2)); that the material contains
zinc concentrations comparable to tfiose
of other non-waste secondary sources of
zinc (and more zinc than natural ores)
(see § 260.31(c)(3)); that an end market
for the material appears assured (see
§ 260.31(c)(4}}; and that it is handled
safely up to the point of final
reclamation (see § 260.31(c)(5)),
Based on these factors, the Agency
has decided to exclude the SCDR from
RCRA jurisdiction when it is utilized as
a source of zinc in zinc recovery
operations, provided it is shipped in
drums (if it is sent off-site) and that
there is no land disposal of the material
before it is recycled. Thus, for example,
the material remains a solid waste if it is
stored in piles on the land. In such a
case, it would be "part of the waste
disposal problem," and hence discarded.
Americfin Mining Congress v. EPA, 907
F.2d at 1186. In addition, in order for this
exclusion to be implementable and to
serve as a check against mishandling,
EPA is interpreting current rules to
require that the HTMR facility maintain
a one-time notice in its operating record
or other files stating that the SCDR is
generated, then excluded, and what its
disposition is. See 1268.7(a)(6), 58 FR
3878.
•D, Capacity Discussion
In the proposed rule to establish
treatment standards under the land
disposal restrictions for high zinc K061
wastes, EPA determined that sufficient
capacity exists to treat these wastes and
requested comments on its capacity
analysis. EPA notes that the inquiry is in
some ways academic, given that the
time for granting national capacity
variances for K081 ended in August
1990. See RCRA section 3004(h)(2J.
Nevertheless, the information on
capacity should be useful to the
regulated community and has a bearing
on whetherportions of today's rule are
adopted pursuant to HSWA; therefore.
we are presenting it here. It also has
some bearing on whether there is any
need to perpetuate the existing
standards based on stabilization.
Cbinmenters to the proposed rule
focused on HTMR capacity. The Agency
received comments suggesting that there
may not be sufficient HTMR capacity to
treat the volumes of high zinc K061 that
are generated. Other commenters
submitted information to EPA suggesting
that other treatment technologies in
addition to HTMR (stabilization and
extractive metallurgy) can meet the
treatment standards for high zinc K061.
While the Agency has determined that
HTMR is BOAT for high zinc K061,
today's rule does not preclude the use of
other treatment technologies that can
meet thl treatment standards
established for this waste. For today's
rule, the Agency has confirmed the
generation volume of high zinc K061 and
the available treatment capacity for
these wastes, ;
1. Waste Generation
In the proposed rule, EPA estimated
that approximately 500,000 tons of high
zinc K061 are generated annually. EPA
contacted Horsehead Resource
Development Company (HRD) and the
American Iron and Steel Institute (AISI)
to obtain estimates of the annual
generation of high zinc K061. HRD is the
primary commercial facility that is
currently, recovering zinc from K061
wastes in HTMR units. HRD's most
recent estimate is that the national
generation of high zinc K061 will be
approximately 415,000 tons in 1991.
AISI, a trade association representing a
substantial portion of the generators of
all K081 wastes, provides a different
estimate of K061 generation. Based on
steel production in 1989,'AISI estimates
that approximately 285,000 tons of high
zinc K061 were generated in 1989, which
is consistent with data from the TSDR
Survey. In this capacity analysis, EPA is
using the higher and more recent
estimate of 415,000 tons of annual
generation of high zinc K061.
2. Current Management Practices
The Agency has received data
indicating mat most high zinc K081
(about 90 percent) that, is treated
currently goes through HTMR. The
volume of high zinc KO&l being
stabilized and subsequently land
disposed is thus quite low. The Agency
believes that this may be due to the
existing incentives to recycle high zinc
K061. Stabilization and landfilling costs
are high, and some states have provided
tax incentives not to land dispose of
hazardous wastes. Thus, the generators
of high zinc K081 that are treating their
wastes are doing so primarily by
recycling their wastes through HTMR.
3. Available Capacity
In the proposed rule, EPA estimated
that the total available HTMR capacity
(both commercial and non-commercial)
was 553,000 tons per year. The Agency
received comments indicating that some
of this capacity may not be available
and that a substantial portion of HTMR
capacity is used to treat low zinc K061.
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Federal Register / Vol. 56, No. 160 / Monday, August 19, 1991 / Rules arid Regulations ' 41175
The Agency has confirmed that
approximately 550,000 tons of HTMR
capacity are currently available to
recover zinc through HTMR. However,
the bulk of this capacity comes from
older processes that may not be capable
of achieving the better levels of
performance characteristic of more
recent HTMR.
Michigan Disposal, Inc. submitted a
comment to EPA claiming that chemical
fixation and stabilization techniques can
meet the K061 treatment standards.
Michigan Disposal's current
stabilization capacity for high zinc K061
is approximately 100,000 tons per year.
In addition to HTMR and stabilization,-
extractive metallurgy technologies are
available to recover zinc from K061
wastes. Encycle submitted a comment to
the Agency showing that their metal
recovery process can successfully
recover zinc from K061 wastes.
Encycle's current extractive metallurgy
treatment capacity is approximately
30,000 tons per year. No commenter
submitted data to challenge the claim
that technologies other than HTMR can
meet the treatment standards for high
zinc K061.
4. Capacity Implications
Based on the information presented
above, sufficient HTMR capacity exists
to handle the 1991 demand for zinc
recovery from K061 wastes, and excess
stabilization and extractive metallurgy
capacity is also available. Therefore, the
Agency has determined that there is
sufficient capacity to handle the
volumes of high zinc K061 requiring
treatment. However, if substantial
portions of HTMR capacity become
unavailable, the situation would differ.
This point is relevant in determining
whether the exclusions in today's rule
are promulgated pursuant to HSWA
authority.
III. State Authority
A. Applicability of Rule in Authorized
States
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. Following
authorization, EPA retains enforcement
authority under sections 3008,3013, and
7003 of RCRA, although authorized
States have primary enforcement
responsibility. The standards and
requirements for authorization are found
in 40 CFR part 271.
Prior to HSWA, a State with final
authorization administered its
hazardous waste program in lieu of EPA
administering the Federal program in
that State. The Federal requirements no
longer applied in the authorized State,
and EPA could not issue permits for any
facilities that the State was authorized
to permit. When new, more stringent
Federal requirements were promulgated
or enacted, the State was obliged to
enact equivalent authority within
specified time frames. New Federal
requirements did not take effect in an
authorized State until the State adopted
the requirements as State law.
In contrast, under RCRA. section
3008(g], new requirements and
prohibitions imposed by HSWA take
effect in authorized States at the same
time that they take effect in.
nonauthorized States. EPA is 'directed to
carry out these requirements and ;
prohibitions in authorized States,
including the issuance of permits, until
the State is granted authorization to do
so. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, HSWA
applies in authorized States in the
interim.
B. Effect on State Authorizations
Today's final rule for treatment
standards is finalized pursuant to
section 3004(d) through (k) and (m) of
RCRA. Therefore, it will be added to
Table 1 in 40 CFR 271;l(j), which
identifies the Federal program
requirements that are promulgated
pursuant to HSWA and take effect in all
States, regardless of their authorization
status. As noted above, EPA will
implement today's rule in authorized
States until their programs are modified
to adopt these rules and the
modification is approved by EPA.
Because the rule is finalized pursuant to
HSWA, a State submitting a program
modification may apply to receive either
'interim or final authorization-under
RCRA section 3006(g)(2) or 3006(b),
respectively, on the basis of
requirements that are substantially
equivalent or equivalent to EPA's. The
procedures and schedule for State
program modifications for either interim
or final authorization are described in 40
CFR 271.21. The deadline by which the
States must modify their programs to
adopt today's rule is July 1,1993. It
should be noted that HSWA interim ;
authorization will expire on January 1, '
1993 (see 40 CFR 271.24(c)J.
An issue arises as to whether the
generic exclusion from the derived-from
rule and the conditional exclusion from
being a solid waste for splash condenser
dross-residue in the rule are adopted
pursuant to HSWA. EPA views this
entire rule, including the exclusions, as a
HSWA regulation because it is a
necessary part of the process of setting
prohibitions and treatment standards for
K061 wastes. The Agency has •
determined that the HTMR process is -
BOAT for K061 wastes. Comments have
indicated persuasively that without
relief from the derived-from rule and
solid waste status a number of HTMR
processes will not be commercially
viable. This is particularly trtie of the !
newer, optimized HTMR processes that
are capable of generating residues
below the generic exclusion levels. See,
e.g., Comments of international Mill
Service, Inc., pp. 49-57. The Agency
believes it 'important to assure existence
of the truly best available technology, "
namely the newer, optimized HTMR;
operations', to process K061 wastes.'The *
generic exclusion from the derived-from'
rule and conditional exclusion from
being a solid waste is a necessary step
in assuring existence of this optimized
capacity, and so is an integral part of
the whole prohibition/treatment
standard process. Consequently, the -
Agency views these exclusions to be
adopted pursuant to HSWA.
Section 40 CFR 271.21(e)(2) requires
States that have final authorization to
modify their programs to reflect Federal
program changes and to submit the
. modification to EPA for approval. The •
deadline by which the State must
modify its program to adopt this . , ,
regulation will be determined by the ', ...
promulgation of the final rule in
accordance with 40 CFR 271.21(eJ. These
deadlines can be extended in certain-,.
cases (see 40 CFR 271.21(e)(3)}. Once r
EPA approves the modification, the
State requirements become Subtitle C
RCRA requirements.
Authorized States are only required to
modify their programs when EPA
promulgates Federal regulations that are
more stringent or broader in scope than
the existing Federal regulations. For
those Federal program changes that are'
less stringent or reduce the scope of the
Federal program, States are not required
to modify their programs. This is a result
of section 3009 of RCRA, which allows
States to impose regulations in addition
to those in the Federal program. EPA
has determined that the generic
exclusion and the conditional exclusion
for splash condenser dross residue are • •
less stringent or reduce the scope of the .
Federal program. Therefore, authorized-
States are not required to modify their
programs to adopt regulations that are
equivalent or substantially equivalent.
States with authorized RCRA
programs may already have ''-.."'•
requirements similar to those hi today's
rule. These State regulations have hot
been assessed against the Federal
regulations being finalized today to
determine whether they meet the tests .
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4EM7I5 Federal Register / Vofc 56, No. 160 / Monday, August 19, 1991 / Rules and Regulations
for authorizations Thus, a State is not
authorized to implement these
requirement* in lieu of EPA until the
State program modification is approved.
Of course,, Slates with, existing
standards may continue to administer
and enforce*their standards as a matter
of State law. In implementing the
Federal program, EPA will work with
States under agreements to minimize
duplication of efforts. In-many cases,
EPA will be able to defer to the Statea in
their efforts to implement their programs
raUierthan take separate actions under
Federal authority.
States that submit official applications
for final authorization less than 12
months after the effective date of these
regulations are not required to include
standards equivalent to these
regulations in their application.
However, the State must modify its
program by the deadline set forth in 40
CFR 271.21(e). Statea that submit official
application* for final authorization 12
months after the effective-date of these
regulations must Include standards
equivalent to these regulations in their
application. The requirements a State
must meet when submitting its final
authorization application are set forth in
40 CFR 271^.
IV. Regulatory Impact
A. Executive Older12291
Executive Order 12291 requires that
the regulatory impact of potential
Agency actions be evaluated as part of
the process of developing regulations. la
addition, Executive Order 12291 requires
that regulatory agencies prepare a
Regulatory Impact Analysis in
connection, with major ruler (Section 3).
Major rule* are defined in section l(b)
a* those which are likely to result hi an
annualeffect on the economy of $100
million, or more, a major increase in
coats ox prices for consumers or
individual industries, or significant
advene, affects on competition,
employment, investment, productivity,
innovation, or international trade.
• Today's, rule establishes treatment
standards fora waste originally
regulated in thaPirat Third land
disposal reatrictionjs rule (53 ER 31182).
The Rsgulatory Impact Analysis (RIA)
foirtfao First Third rule costed the K081
high zinc wastes based on HTMR. The
poskregulntjory cost for a volume of
K061 high zinc waste of approximately
172,000 tons was estimated to be $58
million per year (1867 dollars).
Today's.rule establishes, numerical
treatment standard* baaed on HTMR.
Currently, due to construction of
additional recovery process capacity,
the Agencyhas determined that there is .
adequate HTMR capacity for K061 high
zinc wastes. The Agency estimates that
415,000 tons of K061 high zinc are
generated each year. Of this volume, the
Agency estimates approximately 90% to
be undergoing treatment by use of .
HTMR, with the remaining 10% going to
stabilization.
Therefore, hi the worst ease
assumption, only 10% of high zinc K061
would be affected by today's rule. If the
10% annual generation portion of high
zinc K061 which is now being treated by
stabilization was to be treated by
HTMR, the incremental cost of this
change is estimated to be $1 million per
year. This alteration in management
practices represents the most severe
cost scenario which could be incurred as
a result of this rule. However, generic
exclusion of the residue from the HTMR
process will spare the industry Subtitle
C disposal costs; this savings has not
been reflected in the annual incremental
cost estimate provided above, and
would make the cost lower than the $1
million estimated. Therefore, it is •
estimated that this rule will not impose
a large cost upon industry, and is
estimated to be a minor rule according
to Executive Order 12291.
This rule was submitted to the Office
of Management and Budget (OMB) for
review as required by Executive Order
12291.
B. Regulatory Flexibility Act
Pursuant to. the Regulatory Flexibility
. Act, 5 U.S.C, 601 et seq., whenever an
agency is required to issue a general
notice of rulemaking for any final rule, it
must prepare and make available for
public comment a Regulatory Flexibility
Analysis which describes the impact of
the rule on small entities (i.e., small
business, small organizations, and small
government jurisdictions). The
Administrator may certify, however,
that the rule will not have a significant
economic impact on a substantial
number of small entities. Since the rule
allows the regulated community to
continue tause existing management
practices, and in the worst case scenario
only affects 10% of high zinc K061 waste,
the Administrator certifies that this
regulation will not have a significant
economic impact on a substantial
number of small entities, and therefore,
does not require a Regulatory Flexibility
Analysis.
C. -Paperwork Reduction Act
The information collection
requirements in this rule were
promulgated in previous land disposal
restriction rulemakings and approved by
the Office of Management and Budget
(OMB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., and have
been assigned OMB control number
2050-0085. No; new information
collection requirements are being
promulgated today.
Send comments regarding any aspect
of this collection of information to Chief,
Information Policy Branch, PM-223Y,
U.S. Environmental Protection Agency,
401M St., SW, Washington, DC 20460;
and to the Office of Information and
Regulatory Affairs, Office of
Management and Budget, Washington,
DC 20503, marked "Attention: Desk
Officer for EPA."
V. List of Subjects hi 40 CFR Parts 261,
268, and 271
Administrative practice and
procedure, Designated facility,
Environmental protection, Hazardous
materials, Hazardous materials
transportation, Hazardous waste,
Intergovernmental relations, Labeling,
Packaging and containers, Penalties,
Recycling, Reporting and recordkeeping
requirements, Waste treatment and
disposal
Dated: August 8,1991.
F. Henry Habicht,
Acting Administrator.
For the reasons set out in the
preamble, title 40, chapter I, of the Code
of Federal Regulations is amended as
follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,
6922, and 6938.
2. Ill § 261.3 paragraph (c)(2)(ii)(C) is
added to read as follows:
§ 261.3 Definition of hazardous waste.
*****
(c) * * *
(2) • * *
(ii) '* •* *
(C) Nonwastewater residues, such as
slag, resulting from high temperature
metals recovery (HTMR) processing of
- K061 waste, hi units identified as; rotary
kilns, flame reactors, electric furnaces,
plasma arc furnaces, slag reactors, .
rotary hearth furnace/electric furnace
combinations or industrial furnaces (as
defined in 40 CFR 260.10 (6), (7). and
(12)), that are disposed in subtitle D
units, provided that these residues meet
the generic exclusion levels identified
below for all constituents, and exhibit
no characteristics of hazardous waste.
Testing requirements must be
incorporated in a facility's waste
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Federal Register / Vol. 56, No. 160 / Monday, August 19. 1991 / Rules aad Regulations 41177
analysis plan or a generator's self-
implementing waste analysis plan; at a
minimum, composite samples of ,
residues must be collected and analyzed
quarterly and/or when the process or
operation generating the waste changes.
The generic exclusion levels are:
• Constituent
Antimony
Arsenic __™_ ..
Barium.... . .
Beryllium _....„ .
Cadmium. -.—.
Chromium (total)
lead ........
Mercury —;.
Nickel
Selenium «—
Silver.—.—™..-...—,™....
Thallium-
Vanadium.......—.............
••
....
Maximum for any
single composite
sample (mg/l)
0.063
0.055
63
OO063
0.032
0.33
0.095
0.009
.' 0.63
0.16
0.30
0.013
1 26
For each shipment of K061HTMR
residues sent to a subtitle D unit that
meets the generic exclusion levels for all
constituents, and does not exhibit any
characteristic, a notification and
certification-must be sent to th'e'« -," fil*!
appropriate EPA Regional Administrator
(or delegated representative) or State
authorized to implement part 268
requirements. The notification must
include the following information: {I)
The name and address of the Subtitle D
unit receiving the waste shipment; (2)
the EPA hazardous waste number and
treatability group at the initial point of
generation; (3} the treatment standards
applicable to the waste at the initial
point of generation. The certification
must be signed by an authorized
representative and must state as
Follows: "I certify under penalty of law
that the generic exclusion levels for all
constituents have been met without
impermissible dilution and that no
characteristic of hazardous waste is
exhibited. I am aware that there are .
significant penalties for submitting a
false certification, including the
possibility of fine and imprisonment." •.
* * * * *
. In § 261.4 paragraph {a)[ll} is added
to read as follows:
Exchislona,
* ''. - "
§2614
(a)
(11) Nonwastewater splash condenser
dross residue from the treatment of K051
in high temperature metals recovery
units, provided it is shipped in drum* (if
shipped} and not land disposed before
recovery. '
PART 268—LAND DISPOSAL
RESTRICTIONS
1. The authority citation for part 268
continues to read as follows: '
Authority: 42 U.S.C. 6905,6912(a). 3921, and
6924. • ' '..-. •
2. In S 268.41, Table CGWE is
amended by revising the entry lor KOS1
• [High Zinc Subcategory—greater than or
equal to 15% Total ZincM3ffectiv<3 until
August 7th 1991) and by.revising '••>•.'-.'.
paragraph (b) to read as follows:
§ 268.41 Treatment standards expressed
as concentrations In waste extract ,
fal* * *: ''.- •- • '•.- ', ••l.':V;V- '•--'•'
v™J - • -.- --. -t ''•:,-> > >
»
• Nonwastewaters
, Concentration
' (mg/L)
0;055
7.6
0.014
•••'. ..°-<9.
0^37-
0.009
5
0.16
0.3
0.078
'•• -Reserved
5.3
Notes
(b) When wastes with differing
treatment standards for a constituent of
concern are combined for purposes of
treatment, the treatment residue must
meet the lowest treatment standard for
the constituent of concern, except that
mixtures of high and low zinc
nonwastewater K061 are subject to the
treatment standard for high zinc K061...
§268.42 [Amended]
3.-4. In § 268.42, Table 2 is amended
by removing the entry for K061.
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
1. The authority citation for part 271 -
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), and«926.
Subpart A—Requirements for Final
Authorization - •
2. Section 271.1(j) is amended by
adding the following entry to Table 1 in
chronological order by date .of'.', .,
promulgation in the Federal Register,
and by adding the date of publication •
and the Federal Register page numbers.
to the following entry in Table 2:
§ 271.1 purpose and scope. •
* ,.*,.*.''*. * .....
0)* * * •
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41178 Federal Register / Vol. 58, No. 160 / Monday, August 19, 1991 / Rules and Regulations
TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1964
Promulg*aon data
TiHa of regulation
Federal Register reference
Effective date
AUQUS* 19,1891 _—™ Land disposal restrictions & generic exclusion for [Insert Federal Register page numbers]..
K061 nonwastowatefs & conditional exclusion for
K061 HTMR splash condenser dross residue. . *
Augusts, 1991.
TABLE 2.—SELF IMPLEMENTING PROVISIONS OF THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984
Etfaetfva dtta
Self-implementing provision
RCRA citation
Federal Register
reference
AUflUrtS.1981....
Prohibition on tend disposal of K061 high zinc non- 3004(g)(6)(A).
wastewa'.ors.
August 19,1991. 56 FR
. [Federal Register
page numbers].
[FR Doc. 91-19347 Filed 8-1&-91; 8:45 am]
wuma CODE KW-SO-M
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