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


        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.


        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.

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.


40 CFR Parts 261, 268, and 271


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.

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.
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.



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

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


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."

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


     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

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
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

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


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

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


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.
     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

on status as solid waste with environmental consequences of
recycling activities.  The Afi and AMC II  (90?!p.2d 1179

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


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


     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


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


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


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


     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


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

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


     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


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


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


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


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.

     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


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


     While the Agency had previously promulgated a treatment

standard of "No Land Disposal" based on the use of HTMR,

interim standards based on stabilization were established"

until HTMR capacity could come on-line.  These standards

regulated only four metals in K061 wastes based on the


available treatment data and were considered interim until

the Agency could better examine performance data from HTMR

units.  At the time of the establishment of these interim

standards, the Agency was unaware of the wide variety in

metals composition 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



     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


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


     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


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.


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


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.


     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


 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


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
process variabilities due to different system configurations

and feed variabilities caused by on-site recovery systems

with sole-source feeds versus commercial recovery systems

that blend many different K061 wastes.

     The Agency has decided to develop treatment standards

that reflect the performance of all of the various well-


operated HTMR technologies.  This results in limits higher

than those proposed.  However, given that all of these

technologies are capable of achieving substantial

immobilization of hazardous constituents  (though not

identical levels of performance), EPA believes this result is

appropriate.  EPA notes further that certain apparent

differences in performance result from different reported

detection limits.  Thus, for many of the metals, all of the

reported data shows non-detectable levels of metals in the

HTMR slag, but different limits of detection due to different

slag matrices (or perhaps due to differing levels of

performance by analytic laboratories).  In these cases, EPA

used the highest analytic detection limits in order to

accommodate performance of as many of the well-operated HTMR

technologies as possible.  (EPA believes 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


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&&
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


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:

            [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


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

achieve a different level of treatment performance than the

HTMR processes that are based primarily on the recovery of

zinc from K061.  EPA believed this was due to the differences

in metal concentrations of the feed materials (in particular,

with respect to zinc,  nickel, and chromium) and the inherent

differences in design and operation of the respective HTMR

processes.  Consequently, EPA proposed to divide the K061

high zinc subcategory into those wastes containing less than

or equal to 1.5% nickel/chromium combination and those wastes

containing greater than  1.5% nickel/chromium combination.

     For the high zinc K061 wastes containing greater than

1.5% nickel/chromium combination, the Agency proposed to

reserve the standards for nickel and chromium based  on the

assumption that the treatment performance would be different

for these wastes and the lack of data demonstrating  actual


performance.  The decision to divide high zinc K061 based on

the chromium/nickel content has been reevaluated and the

Agency has determined, based on data submitted during the

comment period, that the chromium/nickel HTMR recovery

process achieves a similar level of performance as the HTMR

processes designed and operated to recover only volatile

metals such as zinc, lead, and cadmium.  In addition, as

discussed earlier, EPA has adopted a nickel standard

reflecting treatment performance of a high nickel/chromium

waste by HTMR.  For these reasons, the Agency does not        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,


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


 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


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.


                                     Maximum for any
                             Single Composite Sample
                                  TCLP  (mg/1)
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


 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:


                                       Maximum  for any
                                      Single Composite Sample
                                            TCLP  (mg/1)
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


ranges from .003 ppm (mercury) to .3 ppm (chromium)).   Given

that the Agency is excluding these wastes generically,  rather

than after a more individualized examination as part of a

facility-specific delisting, EPA believes that it is prudent

to use the slightly lower value for this exclusion.   We note

that today's action is consistent with the Agency's  position

in the Third Third rule, where it maintained that land

disposal prohibitions can apply to wastes that are hazardous

when they are generated, even if they are not hazardous when
disposed of (see 55 FR 22652-22653).  However, EPA is not

invoking that principle to justify its decision here,  given

that the exclusion is generic and the values practically

equivalent in any case.

     We thus do not view the final rule as presenting the

issue raised in comments of exclusion levels being based on

technology-based levels.  As just discussed, the final

exclusion levels are either generated directly from a health-

based model, or are so close to those levels as to be

warranted for a generic exclusion.

     EPA received numerous comments related to the general

proposal of establishing generic waste exclusions. One

commenter recommended that the Agency establish generic

exclusion levels for all listed hazardous wastes, not  just


the 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


provide TCLP data in lieu of EP toxicity testing when

submitting new petitions.  However,  any decision to require

TCLP testing for existing exclusions based on EP data will be

addressed in a separate Federal Register notice.

     One commenter urged EPA to abolish the  concept of a

generic exclusion under 40 CFR 261.3 for nonwastewater HTMR

K061 waste as EPA did not evaluate all of the factors

involved in its own delisting protocols as part of the

considerations for the exclusion.  The commenter believed

that EPA should separate the actions related to a generic

exclusion from this land disposal restrictions rule.  As

discussed previously, today's action is not a "delisting," as

the procedural requirements for delisting apply to persons

seeking exclusion of a waste at a particular generating

facility.  However, in response to the commenter's concern

about the Agency's assessment of the potential hazard of

these wastes, the Agency believes that it has sufficiently

assessed those hazards using the VHS landfill model.

Furthermore, the Agency  is establishing exclusion  levels  for

all constituents that might make the waste hazardous.  The

Agency also believes that it has sufficient data

demonstrating that nonwastewater HTMR  K061 residues  are  not

hazardous if they meet the specified conditions.


     The Agency received comments stating that the VHS model

 greatly exaggerates potential ground water contamination.

 One  commenter  felt that the assumptions used  in the model are

 all  conservative 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


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.


 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


     The commenters are correct in stating that delisting

 evaluations have used MCLs to derive acceptable delisting

 levels.  However, in the absence of formal MCLs, the Agency

 has also used other appropriate health-based levels to

 establish delisting levels.  In the absence of a new MCL for

 lead,  the Agency believes that prudence requires that the

exclusion level be established using the more conservative

action level of 0.015 mg/1.  EPA established the new

treatment standard for lead instead of a MCL because, as EPA

concluded in the preamble to the final rule, there is no


apparent threshold for various health effects associated with

lead.  Given that the Agency's goal is to minimize lead

exposure among sensitive populations,  however,  the treatment

standard with an action level was established.   While the

action level is not a formal MCL, EPA stated in the preamble

to che lead rule that the level of 0.015 mg/1 is "associated

with substantial public health protection."   (See 56 FR


     While the commenters are also correct in stating that  the

existing lead MCL of 0.05 mg/1 will remain in effect until

November 9, 1992, the Agency believes the use of this level

in setting the 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,


 the majority of these slags are not landfilled, but rather

 are used in a manner constituting disposal as road base

 material, or  (less often) as an anti-skid material (56 FR

 15024) .  EPA solicited comment on methods to evaluate

 exposures from road base and anti-skid uses. Several

 commenters believed that the reliance on the VHS model for

 analyzing HTMR residues is inappropriate and unprotective

 when the material is used as an anti-skid or road bed

 material, since not all potential exposure pathways are

 evaluated.  On the other hand, one commenter believed that

 the use of the VHS model greatly exaggerates the degree of

 ground water contamination that could result from use of HTMR

 residues as a road base material.

     Although EPA received comments concerning possible risks

 from road uses (in particular, inhalation due to improper

 handling during transportation, and exposure to lead

 accumulation in dust and surface soils), no data, methods, or

models were submitted.  The Agency has decided that its

regulatory tools for evaluating road base and anti-skid uses

are too uncertain for the Agency to make a final decision at

this time—particularly given the very short time-frame of

this rulemaking—as to whether residue used as road base or

anti-skid material should be excluded.  The VHS model


evaluates possible risks posed by landfill disposal.   it may

also be suitable for evaluating residue used as a road base

material, since this situation may be viewed as similar to

(or more protective than) a capped landfill.  The Agency has

not had time to make a full technical assessment of this

point.  The VHS model alone may not be fully suitable for

evaluating the safety of slag used as an anti-skid material,

because this apparently uncontrolled use may present exposure

pathways (i.e., airborne inhalation and surface runoff) that

the model does not consider. Thus, the exclusion levels apply

only for those modes of management that EPA currently feels

confident in evaluating with the VHS model, namely disposal

in a land disposal unit.

     This case differs from other delistings in that EPA has

never before evaluated a situation where the waste would be

used in a manner constituting disposal, raising the concern

that the VHS  (or other groundwater model) no longer simulates

a worst-case scenario.   (EPA notes in addition that it has  -

considered air blown dust exposure pathways in other

delistings, but views the situation presented in today's

action as different.  Previous situations  involved possible

exposures from air-born  losses in transit whereas today's

action potentially involves continual deposit of waste over a


wide expanse of road systems.)  Thus, EPA does not view

today's action as calling into question determinations made

in earlier, site-specific delistings.

     Under current regulations,  if a hazardous waste is used

in a manner constituting disposal, it is exempt from further

regulation, provided it undergoes a chemical reaction so as

to be inseparable by physical means, and provided it meets

the land disposal restrictions treatment standards for each

hazardous constituent that it contains  (40 CFR 266.20).
Thus, under today's rule, such practices as use of the HTMR

residue as road base or anti-skid material are not

immediately prohibited  (provided the residue meets the

treatment standard).  EPA intends shortly to propose

amendments to 40 CFR 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


(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.


 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


     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


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


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-


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


 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.


     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


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


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 §



     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


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


1.   Waste Generation

     In  the proposed  rule, EPA estimated that approximately

500,000  tons of high  zinc  K061 are  generated annually.   EPA


contacted Horsehead Resource Development Company  (HRD) and

the American Iron and Steel Institute  (AISI) to obtain

estimates of the annual generation of high zinc K061.  HRD is

the primary commercial facility that is currently recovering

zinc from K061 wastes in HTMR units.  HRD's most recent

estimate is that the national generation of high zinc K061

will be approximately 415,000 tons in 1991.  AISI, a trade

association representing a substantial portion of the

generators of all 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


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


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


4.   Capacity Implications

     Based on the information presented above, sufficient HTMR

capacity exists to handle the 1991 demand for zinc recovery

from K061 wastes, and excess stabilization and extractive

metallurgy capacity is also available.  Therefore, the Agency

has determined that there is sufficient capacity to handle

the volumes of high zinc K061 requiring treatment.  However,

if substantial portions of HTMR capacity become unavailable,

the situation would differ.  This point is relevant in

determining whether the exclusions in today's rule are

promulgated pursuant to HSWA authority.

III. State Authority

A.   Applicability  of  Rule in Authorized States

     Under  section  3006  of RCRA,  EPA may authorize qualified

States to administer and enforce the RCRA program within the

State.  Following authorization,  EPA retains enforcement


authority under sections 3008,  3013,  and 7003 of RCRA,

although authorized States have primary enforcement

responsibility.  The standards and requirements for

authorization are found in 40 CFR Part 271.

     Prior to HSWA,  a State with final authorization

administered its hazardous waste program in lieu of EPA

administering the Federal program in that State.  The Federal

requirements no longer applied in the authorized State, and

EPA could not issue permits for any facilities that the State

was authorized to permit.  When new,  more stringent Federal

requirements were promulgated or enacted, the State was

obliged to enact equivalent authority within specified time

frames.  New Federal requirements did not take effect in an

authorized State until the State adopted the requirements as

State law.

     In contrast,  under RCRA section 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


authorization, HSWA applies in authorized States in the


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)).


     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.


     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


     Authorized States are only required to modify their

 programs when EPA promulgates Federal regulations that are

 more stringent or broader  in scope than the existing Federal

 regulations.  For those Federal program changes that are less

 stringent or reduce the scope of the Federal  program, States

 are not required to modify their programs.  This is a result

 of section 3009 of RCRA, which  allows States  to impose

 regulations in addition to those in the Federal program.  EPA

 has determined that the generic exclusion and the conditional

 exclusion for splash  condenser  dross residue  are less

 stringent or reduce the scope of the Federal  program.

 Therefore, authorized States  are not required to modify their

 programs to adopt regulations that are equivalent or


substantially equivalent.

     States with authorized RCRA programs may already have

requirements similar to those 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


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


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


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


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


     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.
     . AUG 0 8 1991


For the reasons set out in the preamble, Title 40, Chapter I,
of the Code of Federal Regulations is amended as follows:
     1.   The authority citation for Part 261 continues to read
as follows:
     Authority:  42 U.S.C.  6905,  6912(a),  6921,  6922,  and
     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

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


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
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.

     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


5 268.41  Treatment standards expressed as concentrations in

waste extract.

     (a)      *      *      *

Waste Chemical
Code Name See Also
K061 Electric Arc Table
High Zinc Furnace Oust CCW in
Subcategory 268.43

KCQUl 8 iCu

Chromium (Total)
(mg/l) Motes

(mg/l) Notes



      (b)  When wastes with differing treatment standards  for a

 constituent  of  concern  are  combined for purposes of

 treatment, the  treatment  residue must  meet  the lowest

 treatment standard for  the  constituent of concern,  except

 that  mixtures of  high and low zinc  nonwastewater K061 are

-subject  to the  treatment  standard for  high  zinc  K061.
   *  *• * X- #                                   rtrvUA/j^/,
  ^4.   In § 268.42, Table 2 is amended by 4a]prijiiy the

 entry for K061.



      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.


     (j)    *          *          *

Table 1.-Regulations  Implementing the  Hazardous  and Solid
         Waste Amendments  of  1984.
   Title  of
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
 [Insert Federal  Aug.8,1991
 Register page
Table 2.-Self  Implementing  Provisions  of  the Hazardous  and
          Solid Waste Amendments of  1984
ing provision
Aug. 8, 1991
 Prohibition on
 land disposal

of K061 high                       of publica-
zinc nonwastewaters                tion] 56 FR

                         WASHINGTON, D.C. 20460
                           AUG -9 1991
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE

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.


cc:  Waste Management Branch Chiefs
     Community Relations Coordinators
                                                         Printed on Recycled Paper