United States Solid Waste
Environmental Protection and Emergency Response EPA/530-SW-91-055
Agency (OS-305) August 1991
Office of Solid Waste
&EPA Environmental
Fact Sheet
New Treatment Standards
Finalized for K061 High Zinc
Subcategory Wastes
Background
In the First Third land disposal restrictions rule of August 17, 1988,
EPA determined that high temperature metal recovery (HTMR) was
the best demonstrated available technology for treating K061 high zinc
wastes (i.e., wastes containing at least 15% total zinc). However,
believing that it lacked the authority to regulate the slag residues from
the HTMR process as K061 wastes, EPA set a treatment standard of
"no land disposal" for these wastes.
On June 26, 1990, the District of Columbia Circuit Court of Appeals
invalidated the "no land disposal" standard and held that EPA is not
jurisdictionally barred from promulgating a treatment standard for the
slag. The Court remanded the case to EPA to determine whether to
establish a treatment standard for slag residue. The Court did not
dispute that HTMR represents the best demonstrated available
technology for these wastes.
Currently, K061 wastes are subject to an interim treatment standard
based on stabilization, which will expire on August 8, 1991. After that
date, industry would not have been able to dispose of K061 wastes in
or on the land if a new treatment standard had not been promulgated.
Action
EPA is finalizing concentration-based treatment standards for K061
nonwastewaters in the high zinc subcategory based on the analysis of
slag residues from the HTMR processes. EPA is also finalizing a
generic exclusion from the hazardous waste regulations for the slag
resulting from the HTMR process if it satisfies certain conditions. A
conditional exclusion from classification as a solid waste is also being
granted for certain material that is partly (but not fully) reclaimed.
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For More Information
To obtain further information, a copy of the Federal Register notice, or
other fact sheets on the land disposal restrictions program, please call
the RCRA Hotline Monday through Friday, 8:30 a.m. to 7:30 p.m. EST.
The national toll-free number is (800) 424-9346; for the hearing
impaired, it is (TDD) (800) 553-7672. In Washington, D.C., the number
is (703) 920-9810 or TDD 486-3323.
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 261, 268, and 271
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 K061 (electric arc furnace dust) treatability group, namely
nonwastewaters that contain equal to or greater than 15% total \
zinc (i.e., high zinc subcategory), 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 K061, 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.
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EFFECTIVE 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, 401 M Street, S.W., Washington, D.C. 20460. The
docket is open from 9:00 a.m. to 4:00 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.
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FOR FURTHER INFORMATION CONTACT: For general information,
contact the RCRA Hotline at (800) 424-9346 (toll free), (703)
920-9810 locally. For information on the final rule, contact the
Waste Treatment Branch, Office of Solid Waste (OS-322W), U.S.
Environmental Protection Agency. 401 M 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, 401 M 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, 401 M Street, S.W.,
Washington, D.C. 20460, (202) 382-4770.
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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. Treatment Standards for K061 Nonwastewaters in the High
Zinc Subcategory
C. Generic Exclusion of HTMR Nonwastewater Residues
D. Capacity Discussion
III. State Authority
A. Applicability of Rule in Authorized States
B. Effect on State Authorizations
C. State Implementation
IV. Regulatory Impact
A. Executive Order 12291
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
V. List of Subjects in 40 CFR 261, 268, and 271
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I. 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)(1)). 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 (not to
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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 ". . .such storage is
solely for the purpose of the accumulation of such quantities
of hazardous waste as are necessary to facilitate proper
recovery, treatment or disposal" (RCRA section 3004(j)).
B. Final Rule
Today's rule revises and finalizes treatment standards
for 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."
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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 II.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 waste under 40 CFR 261.4(a), for
certain materials that are partially but not fully reclaimed.
This variance applies to HTMR splash condenser dross residue
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provided it is shipped in drums (if 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
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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 containing 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
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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 shortage, 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 to be resmelting in a high temperature metal
recovery furnace. 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
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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 for K061 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
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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 commenters urged the Agency to find that K061 waste
reclaimed by HTMR processes is not a solid waste, either
through interpretation of current rules, or by reference to
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the initial opinion of the D.C. Circuit on recycling (AMC i.
824 F.2d 1177 (D.C. 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.
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EPA disagrees. We repeat that we are allowing the
Court's opinion and mandate to operate, at least for the time
being. The a tat us quo created by the Court's mandate and the
existing regulations thus continues in effect.
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))
We repeat
and because at
present there is no indigenous principle operating to cut off
application of the derived-from rule. 906 F.2<1 at 740-41.
Nevertheless, the Agency is presently engaged in a
comprehensive reevaluation of its rules on recycling, and may
ultimately articulate new principles which bear on the issue
of the status of K061 and the slag and other residues
resulting from the HTMR process. Before that revaluation is
completed, however, EPA is acting pursuant to i:he 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 linking decisions
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on status as solid waste with environmental consequences of
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recycling activities. The Afi and AMC II (90?!p.2d 1179
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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.6. 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, 1988, EPA had two
sets of TCLP (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 K061 wastes in the
high zinc subcategory. One of these HTMR processes consists
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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
subcategory (low in nickel and chromium) 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 HTMR processes for K061 wastes. Treatment performance
data representing properly designed and operated systems were
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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% zinc, less than 1.4% lead and 0.5%
cadmium) and metallic lead as products (i.e., materials put
to direct use without smelting). IMS submitted a total of 16
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 K0'61 high zinc subcategory. Inmetco'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
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properly operated system. Data and rationale for these
determinations are provided in the background document for
this rulemaking.
In a July 2, 1991 letter 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% 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
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than 15% zinc in the treatment standard calculation for K061
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% 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 low zinc standards based on
stabilization. The high zinc/low zinc dilemma also affects
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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 K061
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% to develop final treatment
standards. The treatment standards adopted today, however,
only apply to the high zinc subcategory. Commenters may be
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correct that the continued subcategorization of K061 (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 are to come under the
treatment standard for high 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
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 268.4Kb) 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
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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 BOAT for K061 wastes. These
additional data did not cause the Agency to change its'
decision. However, stabilization technologies may be used to
achieve the treatment standards in today's rule (provided the
standards are achieved through bona fide 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 K061 waste due to the nature of the
steel manufacturing process from which the K061 is generated.
Data on the composition of K061 indicate that these 14 metals
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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 BOAT 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 metals 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
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metallurgical interdependency 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 leachability 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, whtm used to treat K061 wastes, are well-designed
and well-operated (i.e., truly BOAT) with due consideration
of all feed materials.
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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 leachability 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
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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: I) 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 BOAT); 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
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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 of 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.
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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 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
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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 the 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 not TC toxic (i.e., D004-
D011) prior to disposal. In addition, five more are
currently regulated to verify that the waste can be delisted.
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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 in 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 BOAT 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
26
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of hazardous constituents that is not optimum. For example,
the Agency has data demonstrating that when zinc is
concentrated and leaches at higher levels in 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 VIII
hazardous constituents are immobilized. See NRDC v. EPA. 907
F.2d 1146, 1171-72 (D.C. 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.
27
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With respect to vanadium, the Agency continues to believe
that it is important to monitor vanadium concentrations in
the TCLP leachate of K061 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 K061 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 K061 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
28
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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
II.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
29
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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 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 cases 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
i
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-
30
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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 this 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 BOAT 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
31
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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 b&&
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wastes codes (notably the K048-K052 wastes) where the Agency
based treatment standards on treatment technologies may not
achieve complete destruction or removal, but nevertheless
achieve substantial reductions of toxics. 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 Third
rulemaking)), whereas the standard in today's rule reflects
treatment of a high nickel K061 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
33
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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 s
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 K061 High Zinc Nonwastewaters
The specific treatment standards are as follows:
34
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BDAT TREATMENT STANDARDS FOR K061
[Nonwastewaters - High zinc Subcategory]
Maximum for any
Single Composite Sample
Regulated TCLP
Constituent (mg/1)
Antimony 2.1
Arsenic 0.055
Barium 7.6
Beryllium 0.014
Cadmium 0.19
Chromium (Total) 0.33
Lead 0.37
Mercury 0.009
Nickel 5.0
Selenium 0 .16
Silver 0.30
Thallium 0.078
Vanadium reserved
Zinc 5.3
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
35
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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 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 K06X wastes may
r
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
36
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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 v
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 K061 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,
37
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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 HTMR Nonwastewater Residues
1. Conditions for Exclusion
Residues from HTMR of KQ61 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
38
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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 261 on a waste-specific basis
(by facility). The decision to generically 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
K061 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
39
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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 Vv
[Nonwastewaters]
Maximum for any
Single Composite Sample
TCLP (mg/1)
Constituent
Antimony 0 . 063
Arsenic 0.32
Barium 6.3
Beryllium 0 .0063
Cadmium 0 .032
Chromium (Total) 0.63
Lead 0.095
Mercury 0.013
Nickel 0.63
Selenium 0 .32
Silver 0.32
Thallium 0.013
Vanadium 1.26
EPA notes that the BOAT standards and VHS-based levels
40
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are not identical, since each set was calculated for a
different purpose: the BOAT 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]
Maximum for any
Single Composite Sample
TCLP (mg/1)
Constituent
Antimony 0.063
Arsenic 0.055
Barium 6.3
Beryllium 0.0063
Cadmium 0.032
Chromium (total) 0.33
Lead 0 .095
Mercury 0 .009
Nickel 0.63
Selenium 0.16
Silver 0.30
Thallium 0.013
Vanadium 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
41
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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
42
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the nonwastewater 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
BOAT 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 v
"derived-from" rule 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
43
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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.
44
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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 and that, although some of the assumptions
may not represent absolute worst-case conditions when
considered individually, in total the model represents an
extreme worst case. As a result, the commenter believed that
exclusion levels calculated through the application 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 K061 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 D disposal setting,
such as the VHS model. In applying the model, the Agency
makes a variety of assumptions to account for a reasonable
worst-case disposal scenario. The VHS model assumes that the
45
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waste is disposed in an unlined landfill (a normal Subtitle D
situation). The model mathematically simulates the 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 this 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 it is used as an evaluation tool to
identify wastes to be excluded from regulation as hazardous,
the Agency believes that 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 0.015
mg/1 contained in an Office of Drinking Water regulation (56
FR 26460) which was promulgated after the proposed K061 rule.
46
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Several commenters believe that it is inappropriate to base
the maximum allowable exclusion level on the new action level
for lead, instead of the MCL. The commenters 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 not 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 for 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
47
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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 che lead rule that the level of 0.015 mg/1 is "associated
with substantial public health protection." (See 56 FR
26477.)
While the commenters are also correct in stating that the
M
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 exclusion 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 does 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 health.
2. Product uses of residues from K061 treatment
The generic exclusion of K061 residues in this rule
applies only to residues which are disposed of in Subtitle D
units (i.e., landfills or piles). As EPA noted at proposal,
48
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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
49
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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
\y
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
50
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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 266.20 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 meec,
the exclusion levels (in Part 261) and treatment standards
51
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(in Part 268), and that do not exhibit any hazardous
characteristics, is limited, as already discussed, to such
waste that is disposed 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
v v
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. The Agency solicited comment
on whether more detailed testing requirements are necessary.
52
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Some commenters argued that quarterly testing of composite
samples of nonwastewater residues resulting from HTMR
processing of K061 should be sufficient to 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
in 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
53
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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 or v
stabilization. The Agency has insufficient data to fully
evaluate the residues from hydrometallurgical processes;
however, the limited available information indicates a high
leachability. 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
for this generic exclusion at this time.
There are several reasons for not excluding stabilized
residues generically. The HTMR residues demonstrate
consistent leaching behavior whereas stabilized matrices are
54
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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 v
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-
55
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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 exclusion levels are not applicable to stabilized
K061 residues. The Agency believes that more individualized
consideration of stabilization is warranted before residues
from the process are delisted.
6. Regulatory Status of Certain K061 Nonwastewater Residues
from HTMR
A number of commenters raised the issue of the regulatory
56
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status of nonwastewater residues from HTMR processes.
Commenters suggested that the Agency approach the issue as an
interpretation of the existing federal rules regarding
recycling. We have 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 off-site for zinc recovery or re-processed on-site in
the HTMR process, not be classified as a solid waste.
Under the federal regulations, 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 FR at 633, 634, 655. The line the
Agency has traditionally drawn between partially and fully
reclaimed material when thermal metal recovery is involved is
that secondary materials remain wastes until smelting is
completed. Id. at 634 (recovered metals only needing to be
refined [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.
57
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The rules also provide for a variance from solid waste
classification for 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 initially-reclaimed material is
handled to minimize loss. 40 CFR 260.31(c).
Applying these rules to the dross from HTMR splash
condensers, EPA has decided to amend its rules by excluding
from Subtitle C jurisdiction the splash condenser dross
residue (hereafter referred to as SCDR) generated by certain
HTMR processes. This material is specifically generated as
the non-product skimming from the splash condenser, along
with recovered zinc and lead meeting Western grade zinc metal
specifications (i.e., 98% pure metals), which are products
under the rules (see § 261.3(c)(2) final sentence). The.
dross is presently a solid waste because it is partially but
not fully reclaimed (i.e., it still requires smelting or
other recovery before a usable metal is extracted), and thus
58
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would remain a K061 waste unless it is excluded from the
rules. See 40 CFR 261.2(a)(l) and 56 FR at 7144. Based on
public comment and corroborating information contained in the
record for today's rule, the SCDR is collected directly from
the splash condenser and drummed. It is then stored for
short periods (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 50-60% 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 airborne
migration). The material is then processed for recovery 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 the K061 do not partition
to the SCDR: approximately 90% partition to zinc and lead
products or to baghouse dusts. Those toxic metals remaining
in the SCDR have reduced mobility from the original K061.
The SCDR does not exhibit a characteristic of
hazardous waste. SCDR is also changed in physical form from
the original K061. It is no longer a dust, but rather is a
59
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solidified matrix.
The 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 CFR 260.31(c)). Although these criteria were established
for a variance determination, EPA believes that they are
relevant in determining whether this material should be
considered to be "discarded" within the meaning of §
261.2(a)(l). The Agency has received adequate information in
\ v
this case to exclude the material by rule. In particular,
the Agency finds that the SCDR results from substantial
processing (as 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)(1)); 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 those 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)).
60
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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.
American 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 § 268.7(a)(6), 56 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 K061 ended in August 1990. See RCRA section
61
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3004(h)(2). Nevertheless, the information on capacity should
be useful to the regulated community and has a bearing on
whether portions 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.
Commenters 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 BDAT for high zinc K061, today's rule does not preclude
the use of other treatment technologies that can meet the
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
62
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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 K061 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 that most high
zinc K061 (about 90 percent) that is treated currently goes
through HTMR. The volume of high zinc K061 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
63
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land dispose of hazardous wastes. Thus, the generators of
high zinc K061 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. 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
64
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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
65
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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 3006(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
66
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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 271.1 (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)).
67
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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 true 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.
68
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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(e). These deadlines can be extended in certain
.cases (see 40 CFR 271.21(e)(3)). Once 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
69
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substantially equivalent.
States with authorized RCRA programs may already have
requirements similar to those in today's rule. These State
regulations have not been assessed against the Federal
regulations being finalized today to determine whether they
meet the tests for authorization. Thus, a State is not
authorized to implement these requirements in lieu of EPA
until the State program modification is approved. Of course,
States 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 States in their
efforts to implement their programs rather than 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). States that submit official
applications for final authorization 12 months after the
effective date of these regulations must include standards
70
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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 271.3.
IV. Regulatory Impact
A. Executive Order 12291
Executive Order 12291 requires that the regulatory impact
of potential Agency actions be evaluated as part of the
process of developing regulations. In addition, Executive
Order 12291 requires that regulatory agencies prepare a
Regulatory Impact Analysis in connection with major rules
(Section 3). Major rules are defined in section l(b) as
those which are likely to result in an annual effect on the
economy of $100 million or more, a major increase in costs or
prices for consumers or individual industries, or significant
adverse effects on competition, employment, investment,
productivity, innovation, or international trade.
Today's rule establishes treatment standards for a waste
originally regulated in the First Third land disposal
restrictions rule (53 FR 31162). The Regulatory Impact
Analysis (RIA) for the First Third rule costed the K061 high
zinc wastes based on HTMR. The post-regulatory cost for a
volume of K061 high zinc waste of approximately 172,000 tons
71
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was estimated to be $58 million per year (1987 dollars).
Today's rule establishes numerical treatment standards
based on HTMR. Currently, due to construction of additional
recovery process capacity, the Agency has 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, in the worst case 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
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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 to
use 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
73
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and approved by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et. sea..
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, 401 M St., S.W.,
Washington, D.C. 20460; and to the Office of Information and
Regulatory Affairs, Office of Management and Budget,
Washington, D.C. 20503, marked "Attention: Desk Officer for
EPA. "
V. List of Subjects in 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:
. AUG 0 8 1991
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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. In § 261.3 paragraph "(c) (2)(ii)(C) is added to read
as follows:
S 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, in 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
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hazardous waste. Testing requirements must be incorporated
in a facility's waste 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:
"(mg/1) Maximum for any single
Constituent composite sample
Antimony 0.063
Arsenic 0.055
Barium 6.3
Beryllium 0.0063
Cadmium 0.032
Chromium (total) 0.33
Lead 0.095
Mercury 0.009
Nickel 0.63
Selenium 0.16
Silver 0.30
Thallium 0.013
Vanadium 1.26
For each shipment of K061 HTMR 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 the
appropriate EPA Regional Administrator (or delegated
representative) or State authorized to implement Part 268
requirements. The notification must include the following
77
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information: (1_) 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; (3J 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."
*****
3. In § 261.4 paragraph (a) (11) is added to read as
follows:
S 261.4 Exclusions.
(a) * * * *
(11) Nonwastewater splash condenser dross residue from
the treatment of K061 in high temperature metals recovery
units, provided it is shipped in drums (if shipped) and not
land disposed before recovery.
PART 2 68 -LAND DISPOSAL RESTRICTIONS
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1. The authority citation for Part 268 continues to read
as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.
2. In § 268.41, Table CCWE is amended by revising the
entry for K061 (High Zinc Subcategory-greater than or equal
to 15% Total Zinc-Effective until August 7th 1991) and by
adding an entry for K061 (High Zinc Subcategory)^to read as
follows:
5 268.41 Treatment standards expressed as concentrations in
waste extract.
(a) * * *
79
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Commercial
Waste Chemical
Code Name See Also
*****
K061 Electric Arc Table
High Zinc Furnace Oust CCW in
Subcategory 268.43
KCQUl 8 iCu
Hazardous
Constituent
Antimony
Arsenic
Barium
Beryllium
Cadmium
Chromium (Total)
Lead
Mercury
Nickel
Selenium
Silver
Thallium
Vanadium
Zinc
Wasteuaters
Concentration
(mg/l) Motes
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA
Nonuasteuaters
Concentration
(mg/l) Notes
2.1
0.055
7.6
O.OU
0.19
0.33
0.37
0.009
5
0.16
0.3
0.078
reserved
5.3
-------
follOWDi—$
(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.
* *• * X- # rtrvUA/j^/,
^4. In § 268.42, Table 2 is amended by 4a]prijiiy 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 6926.
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:
S 271*1 Purpose and scope.
81
-------
(j) * * *
Table 1.-Regulations Implementing the Hazardous and Solid
Waste Amendments of 1984.
Promulgation
date
Title of
regulation
Federal Register Effective
reference date
[Insert date
of publica-
tion of
final rule
in the Fed-
eral Register]
Land disposal
restrictions &
generic exclu-
sion for K061
nonwastewaters &
conditional exclu-
sion for K061 HTMR
splash condenser dross
residue
[Insert Federal Aug.8,1991
Register page
numbers]
Table 2.-Self Implementing Provisions of the Hazardous and
Solid Waste Amendments of 1984
Effective
date
Self-implement-
ing provision
RCRA
citation
Federal
Register
reference
Aug. 8, 1991
Prohibition on
land disposal
3004(g)(6)(A)
[Insert
date
82
-------
of K061 high of publica-
zinc nonwastewaters tion] 56 FR
[Federal
Register
page
numbers]
83
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
AUG -9 1991
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Final Treatment Standards J.or K061 High Zinc
Subcategory Wastes
FROM: Sylvia K. Lowrance, Director
Office of Solid Waste
TO: Waste Management Division Directors
Regions I-X
The Administrator recently signed the final rule on the
treatment standards for K061 nonwastewaters (electric arc furnace
dust). I have attached a copy of the rule and its Environmental
Fact Sneet.
The rule finalizes concentration-based treatment standards
for K061 nonwastewaters in the high zinc subcategory (i.e.,
containing at least 15 percent total zinc). These standards are
based on the analysis of nonwastewater residues from High
Temperature Metals Recovery (HTMR) processes. The rule also
finalizes a generic exclusion from the hazardous waste
regulations for HTMR residues if they satisfy certain conditions.
Finally, a conditional exclusion from classification as a solid
waste is being granted for certain material that is partly (but
not fully) reclaimed.
If you need more specific information or assistance, please
have your staff contact Sue Slotnick at FTS 398-8462. If you or
your staff want additional copies of the rule or the Fact Sheet,
please call Kathy Bruneske in the RCRA Docket at FTS 475-7231.
The general public can obtain copies by calling the toll-free
RCRA Hotline at (800) 424-9346.
Attachments
cc: Waste Management Branch Chiefs
Community Relations Coordinators
Printed on Recycled Paper
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