United States Solid Waste and EPA530-R-99-020m
Environmental Protection Emergency Response NTIS PB99-155947
Agency (S305W) April 1998
Response to Comments
Document: Land Disposal
Restrictions-Phase IV Final
Rule Promulgating Treatment
Standards for Metal Wastes;
Mineral Processing Secondary
Materials and Bevill Exclusion
Issues; Treatment Standards
for Hazardous Soils; and
Exclusion of Recycled Wood
Preserving Wastewaters;
Volume 13: Comments Related to First
Supplemental Proposed Rule (January
25, 1996): Clarification of Bevill
Exclusion for Mining Wastes, Changes
to the Definition of Solid Waste for
Mineral Processing Wastes, Treatment
Standards for Characteristic Mineral
Processing Wastes, and Associated
Issues
Printed on paper that contains at least 30 percent postconsumer fiber
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LDR Phase IV Rulemaking, Supplemental Proposal;
January 25, 1996 (61 FR 2338)
Commenter List
Number
COMM1
COMM2
COMM3
COMM4
COMM5
COMM6
COMM7
COMM8
COV1M9
COMM10
COMM11
COMM12
COMM13
COMM14
COMM15
COMM16
COMMP
COMMI8
COM M 1 9
COMM20
COMM2I
COMM22
COMM23
COMM24
CO\tM25
COMM26
COMM27
Name(s)
National Mining Association
PTI Environmental Services
The Ferroalloys Association
Heritage Environmental Services, Inc
Marine Shale Processors, Inc
U S Department of Energy
American Electric Power
Arizona Public Service Compan>
Institute for Interconnecting and Packaging Electnc Circuits
Lead Industries Association, Inc
New York State 'Department of Environmental Conservation
Anson County ACTUS, Chapter of the Blue Ridge Environmental Defense League
Avocet Tungsten, Inc
Chemgold Inc
General Motors Corporauon
Public Service Electnc and Gas Company
Chemical Waste Management, Inc
DuPont White Pigment and Mineral Products
Westinghouse Electric Corporation
US Borax Inc
Association of Container Reconditioners
SCM Chemicals Inc
Montana Department of Environmental Quality
Homestake Mining Company
KwRONOS Inc
Jersey Central Power & Light Company
Imon Carbide Corporation
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Commenter List (continued)
Number
COMV128
COMM29
COMM30
COMM31
COMM32
COMM33
COMM34
COMM35
COMM36
COMM37
COMM3S
COMM39
COMM40
COMM41
COMM42
COMM43
COMM44
COMM45
COMM46
COMM47
COMM48
COMVI49
COMM50
COMM51
COMM52
Namc(s;
South Carolina Electric and Gas company
Sonora Mining Corporation
Chemical Waste Management
Laidlaw Environmental Services Inc
Kodak
International Precious Metals Institute
Institute of Scrap Recycling Industries Inc
Metal Industries Recycling Coalition
ASARCO
Sierra Club's Midwest Office and the Mining Impact Coalition of Wisconsin, Inc
Phelps Dodge Corporation
Solite Corporation
Kennecott Corporation
Environmental Defense Fund
Phosphorus Producers Environmental Council
Precious Metals Producers
Battie Mountain Gold Company
Bamck Gold Corporation
Echo Bay Mines
Independence Mining Company
Santa Fe Pacific Gold Corporation
Battery Council International
The Fertilizer Institute
Cyprus Amax Minerals Company
Safety-Kleen Corp
SKW Metals & Alloys, Inc
Kemira Pigments Inc
New Jersev Natural Gas Company
South Jersev Gas Company
Robert Lacht Mining Engineer and Geologist
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Commenter List (continued)
Number
iName(s)
COMM53
FNCOLTD
INCO United States, Inc
International MetaJs Reclamation Company, Inc
COMM54
RSR Corporation
COMM55
Copper & Brass Fabricators Council, Inc
COMM56
Utility Solid Waste Activities Group
Edtson Electric Institute
American Public Power Association
National Rural Electric Cooperative Association
COMM57
Newmont Gold Company
COMM58
National Mining Association
COMM59
Brush \Vellman, Inc
COMM60
Brush Wellman Inc
COMM61
Brush Wellman Inc
COMM62
Brush Wellman
COMM63
Brush Wellman, Inc
COMM64
Utah Mining Association
COMM65
Aluminum Company of Amenca
COMM66
RJO Algom Mining Corp
COMM67
BHP Copper
COMM68
Molycorp Inc
COMM69
Molycorp, Inc
COMM70
FMC
COMM7I
U S Department of Defense
COMM72
Uranium Resources, Inc
COMM73
Copper Range Company
COMM74
U S Department of Interior
COMM75
Recvclers of Copper Alloy Products Inc
COMM76
Kerr-VtcGee Corporation
COMM77
The Aluminum Association
COV1M78
Rhone-Poulenc
ui
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Commenter List (continued)
Number
COMM79
COMM80
COMMS1
COMM82
COMM83
COMM84
COMM85
COMM86
COMM87
COMM88
COMM89
LCOMM1
LCOMM2
LCOMM3
LCDMM4
LCOMM5
LCOMM6
LCOMM7
LCOMM8
Name(s)
The Colorado Mining Association
Molten Metal Technology
OxyChem
Horsehead Resource ^velopment Company, Inc
Electronics Industnes Association
Chemical Manufacturers Association
Nevada Mining Association
US Borax
Kennecott
California Mining Association
Arizona Department of Environmental Quality
American Gas Association
Environmental Technology Council
US Department of Agnculture
The Ferroalloys Association
Association of Battery Recyclers Inc
Northern Plains Resource Council
MISSING
State of Wyoming Department of Environmental Quality
IV
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Fable of Contents
1 DFFINIT1ON OF SOLID W4STF AND JURISDICTION
I 1 Whether Mineral Processing Secondary Materials Recycled Within the Industry
12
13
1.4
Should be Considered Solid Waste
1 I Support
1 2 Commtnttrs Recommend Rroaduimu the I \cluston
1 3 Commenters Recommend I uniting the Exclusion
1 4 No Change in the Definition of Solid \kaste is N'ecessirv
1 5 The Proposed Rule Would Expand RC RA Regulation
1 6 The Proposed Rule is Discriminator)
1 7 Encouragement of Fnvironmental Protection/Recycling and Reminng
1 1 8 Other General Comments
1 19 Offsite Transfer of Recyclable Materials
I 1 10 Sector-Specific Comments
Solid Waste Issues
2 I Revision of the Definition of Solid Waste
2 2 Issues of Process and Disposal
23 Element of Discard
2 4 Issues of "Mam" and "Ancillary" Operations
2 5 Land-Based Unit Issues
2 6 Definition of "Secondary Materials"
2 7 Other Solid Waste Iss jes
2 8 Sector Specific Comments
Jurisdiction
, 5 1 AMC Court Cases
1 3 2 Other Junsdicttonal Issues
133 Sector-Specific Issues
1
-3
-3
-5
6
-8
-II
-12
-12
-12
-13
-16
-17
-17
-19
.in
-20
-21
-23
-25
1-26
General Principles for Redefining Solid Waste Within the Mineral Processing
Sector 1-27
141 Spent Materials/By-products/Sludges 1-27
142 Determination by Type of Unit 1-28
2. PROPOSED REGULATORY SCHEME
2-1
2 1 Genera! Issues
2 I 1 Comments on Expanding the Scope of the Proposed Regulatory Scheme
2 1 2 Comments on the Conditional Exclusion Approach
2 I 3 Specific Changes to the Existing Regulatory Language as Raised by Commenters
2-1
2-2
2-5
2-8
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2 1 4 General K Applicable Conditions 2-1 I
2 2 Conditions Rel itmg to I egitimatt F< vilmg 2-11
2 2 \ General Issues 2-11
222 Specific Changes to Regulator* Lin^uane is R used b\ Commtnters 2-13
223 Support for the Agenc> s Vie\%s on ( ondition-. Relating to Legitimate Recycling 2-15
2 2 4 Opposition to the \gencv s Vn_\vs on C onditions Relating to Legitimate Recycling 2-16
2 3 Concentrations of Recoverable Mineral and Acid — Alternative Tes»ts 2-24
2 3 1 General Comments 2-24
212 Ore CutoH Gr«idt 2-26
233 Normal Operating Range 2-29
234 Efficiency Standard 2-3 1
235 Economic lest 2-33
236 Othe- Test Issues 2-36
24 Constraints on Nonrecoverabie Ha/ardous Constituents 2-40
2 4 I General Issues 2-40
242 Comments Regarding the Existence of Non-Indigenous Ha/ardous Constituents 2-42
243 Ratio Test 2-42
244 Frequency of Testing Mineral Processing Secondary' Materials 2-52
2 5 Speculative \ccumulation 2-52
2 5 1 General Support 2-52
252 General Opposition 2-52
253 Comments Regarding the Extension of the Twelve-Month Storage Period 2-53
254 Specific Changes to Regulatory Language as Raised by Commenters 2-54
2 6 One-Time Notification 2-55
2 6 1 Support for One Time Notification 2-55
262 Opposition to One-Time Notification 2-55
2 7 Groundwater Protection Standards 2-56
2 7 1 General Comments 2-56
272 Overlap with State Programs, Jurisdiction 2-61
273 Classification of Disposal Units 2-64
274 Rule Language 2-67
2.8 Groundwater Protection Standard — Alternative 1 2-69
2 8 1 General 2-69
282 MCLs 2-72
283 Corrective Action 2-77
2 8 4 Point of Compliance 2-81
2.9 Groundwater Protection Standard — Alternative 2 2-83
2.10 Groundwater Protection Standard — Alternative 3 2-89
11
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2 11 Unit Closim 2-95
2 12 Basu. Unit Intcgnrv 2-101
2 13 Gener.il Comnunts on I nils m«l Secondary Materials Outside the
Scope of this Proposal 2-107
2 13 1 General Comments on Waste\vater Treatment Impoundments 2-107
2132 LDR Applications to Secondary Materials 2-110
2 13 3 General Comments on Secondary Vfaten ils Generated by Outside Industries and Listed
Hazardous Wastes 2-110
2134 Support for Characterizing Secondary Materials as Hazardous Waste 2-112
3 GENERAL COMMENT S ON ALTERNATIVE APPROACHES 3-1
3 1 General Comments on Status Quo 3-1
3 2 General Comments on Applying Solid Waste Changes Onl> to Spent
Materials 3-2
3 3 General Comments on National Mining Association Approach 3-3
3 4 General Comments on the Iron and Steel Industry Approach 3-5
3 5 General Comments on Alternatives Suggested by Environmental Groups 3-6
4 BEVILL ISSUES 4-1
4 1 Addition of Mineral Processing Secondary Matenals to Units Processing Bevill Raw
Materials 4-1
4 1 1 Authority 4-1
412 Rule Language 4-3
4 1 3 Legitimate Recovery 4-4
414 50 Percent Raw Matenals 4-5
4 i 5 Significantly Affected Test 4-6
4 1 6 Alternative Methods for Determining Significant Changes to the Bevill
Waste 4-10
ill
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4 i ' ( ummuit- oitihi SutiHoll mis Rcn_i\ mi; Vlmual Pio(.ev>nu» Secondaiv
M.ileniK 4 1 1
4 2 Mixing of Mineral "locessing Ha/aidous Wastes with Bc\ill Wastes 4-1 1
I 2 1 Support ['reposed Amendments to Bevill Mixture Rule 1-1 1
\ 2 2 Oppose Proposed Rule I angu ige 1-12
4 2 $ Opposition to the "scope of the Proposed Mixture Rule 4 16
424 Opposition Based on ( ongressional Intent and Legislative History of the UeviH
4-20
425 The Rev isul Mixture Rule Provides No I luman Health or Environmental
Benefits 4-24
426 LPA's Support Dexuments Do Ne>t Suppoit Agency Ce>ne.Uisions 4-2^
427 Recommendations ind Alternatix e Approaches 4-26
4 3 Re-mining Previously Generated Mineral Processing Wastes 4-29
44 Data References 4-31
5. MINERAL PROCESSING WASTES COVERED BY THIS RULE 5-1
5.1 Clarification of the Beneficiation/Processing Distinction 5-1
5.2 Interpretation of the Uniquely Associated Principle 5-6
53 Status of the Identification Document 5-13
5.4 Specific Sector Reports 5-17
541 Alumina/Aluminum 5-17
542Berylhum 5-19
543 Boron 5-25
544 Chrome/Ferrochrome/Ferrochrome-Silieon 5-26
545 Copper 5-27
546 Elemental Phosphorus 5-49
547 Gold/Silver and Mercury 5_62
IV
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548 Lead 5-73
549 Lightweight Aggregates 5-74
5410 Molybdenum 5-75
5411 Phosphoric Acid 5-76
5412 Platinum Group Metals 5-79
5413 Rare Earths 5-79
5 4 14 Selenium 5-88
54 15 Tellurium 5-88
5 4 16 Titanium 5-88
5 4 17 Uranium 5-91
5 4 18 Zinc 5-94
5.5 General Comments on the Identification Document 5-94
5.6 Other Related Issues 5-95
5.7 Data References 5-9
<>. COMMENTS ON OTHER SUPPORTING MATERIAL 6-1
6.1 General Comments on Mining Waste Releases and Environmental Effects for the State
of California 6-1
6 1 1 Pine Creek Operation of U S Tungsten 6-2
6 1 2 U S Tungsten's Owens Lake Solid Waste Disposal Site 6-2
6 1 3 Pichacho Mine 6-3
6 1 4 Homestake Mining Company's McLaughlin Mine 6-3
6 1 5 Sonora Mining Corp , Jamestown Mine 6-4
6.2 Comments on Other Supporting Documents 6-5
6 2 1 Comments on the Human Health and Environmental Damages Document 6-5
622 Comments on Mining Waste Releases and Environmental Effects Summaries for
the State of Arizona 6-16
623 Comments on the Mining Waste Releases and Environmental Effects Summaries
for the State of New Mexico 6-17
624 Comments on the Mining Waste Releases and Environmental Effects Summaries
for the State of Nevada 6-18
625 Comments on Identification and Description of Mineral Processing Sectors and
Waste Streams Report 6-19
626 Comments on Remanded Smelting Wastes Technical background Document,
December 1995 6-20
627 Comments on Technical Resource Document Extraction and Beneficiation of Ores
and Minerals, Volume 4, Copper, August 1994 6-20
628 Comments on EPA Site Visit Reports to Mines and Mineral Processing Facilities
6-21
629 Comments on the Trip Report of Site Visit to Magma Copper and Cyprus Miami
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Copper Mines 6-22
6 2 10 Comments on Mineral Processing Facilities Placing Mixtures of Exempt and
Non-Exempt Wastes in On-Site Waste Management Units 6-23
6211 Comments on Background Document for Mineral Processing Wastes 6-23
7 APPLICABILITY OF THE TCLP TO MINERAL PROCESSING WASTES 7-1
7.1 Support for Agency Position on the Applicability of the TCLP 7-1
7.2 Opposition to the Agency Position on the Applicability of the TCLP 7-1
7 2 1 TCLP Does Not Reflect Actual Landfill Conditions 7-1
722 Specific Opposition to the TCLP 7-3
723 Dilution and Attenuation Factors 7-4
7 3 Agency Has Not Provided Sufficient Evidence to Support Rulemaking 7-5
7 3 1 The Agency Has Not Satisfied the Court Standard 7-5
732 Specific Arguments Against Evidence Cited by the Agency 7-6
7 4 Support for the SPLP 7-8
7 4 1 SPLP is a Better Predictor of Conditions Mineral Processing Wastes Will Face
7-9
742 Support for SPLP Based on Side-by-Side Comparison of SPLP and TCLP 7-9
743 Specific Reasons for SPLP Support 7-14
744 Proposed Modifications to the SPLP 7-14
7.5 Contingent Management Proposal 7-15
7.6 Miscellaneous Comments 7-16
7.7 Data References 7-17
8. OTHER REMANDS 8-1
8 1 Five Remanded Minerals Processing Wastes 8-1
8 1 1 General Support/Opposition 8-1
812 Waste-Specific Support for Listing Revocation 8-3
8.2 Lightweight Aggregate Mineral Processing Wastes 8-6
8.3 Mineral Processing Wastes From the Production of Titanium Tetrachlonde 8-7
8 3 1 Support the Agency's Proposal 8-7
832 Oppose Agency proposal 8-8
VI
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1. Definition of Solid Waste and Jurisdiction
1.1 Whether Mineral Processing Secondary Materials Recycled
Within the Industry Should be Considered Solid Wastes
1.1.1 Support
Comment: Seven (7) commenters explicitly expressed general support for the Agency's
proposal to conditionally exclude mineral processing secondary materials from the definition of solid
waste and as a consequence, from RCRA Subtitle C regulations (COMM22, COMM35, COMM40,
COMM47, COMM53, COMM70, COMM74) One commenter added that the Agency is correct in
recognizing that subjecting mineral processing secondary materials to current definition of solid waste is
not appropriate for determining when these materials are subject to RCRA Subtitle C regulations
(COMM22) Another commenter qualified its support for the exclusion with the stipulation that the
criteria for exclusion be designed to "prevent substantial discard and ensure that the units in which these
materials are managed do not become 'part of the waste disposal problem '" (COMM53)
Response: Comment noted
Comment Four (4) commenters agreed with the Agency that the proposed rule would
encourage recycling efforts and environmental protection (COMM40, COMM47, COMM53,
COMM70) Specifically, one commenter believed that the encouragement of recycling and reclamation
in this rulemaking will reduce waste and pollution from virgin materials processing, limit depletion of
natural resources, and save energy Recycling would also promote RCRA's pollution prevention goals,
enhance economic efficiency, and help reduce the U S balance of payments deficit (COMM53) One
commenter supported the Agency's incorporation of elements of the Metal Industries Recycling
Coalition (MIRC)'s recommended recycling approach (COMM35)
Response* Comment noted
1.1.2 Commenters Recommend Broadening the Exclusion
Comment: Many commenters who agreed with the general intent of the proposed rule
suggested modifications to the approach or the regulatory language Four commenters recommended
broadening the conditional exclusion for mineral processing materials to include other materials, as well
as materials that are generated outside the mineral processing industry (COMM35, COMM36,
COMM47, COMM53) One specifically suggested including all secondary materials that (1) are sent for
metals recovery at a legitimate recycling facility, and (2) are managed in accordance with conditions
designed to prevent substantial release of the contaminants to the environment (COMM53) One
commenter specified that the extension should apply to those materials that are reprocessed by the
mineral processing industry (such as fire assay materials and circuit boards) Without this expansion, the
commenter believes that valuable materials will be disposed of rather than recovered, leading to loss of
resources and environmental harm (COMM36) Another commenter suggested that the exclusion also
should apply to mineral processing materials recycled off-site or at legitimate recycling facilities in other
industries (COMM37)
Response The Agency believes that this request is beyond the scope of this rulemaking It is
more appropriately dealt with under the Agency's more comprehensive efforts to amend the definition of
solid waste The Agency in fact indicated explicitly that it would not consider these issues when
proposing the rule (see 61 FR at 2348 and 62 FR at 26051) The Agency notes further that there is no
1-1
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question that inter-industry reclamation can involve solid wastes, and that therefore there are additional
policy and legal considerations involved should an exclusion for inter-mdustry materials be considered
These issues are beyond the scope of this proceeding in any case, which deals only with the LDR
prohibition of mineral processing wastes, and the consequent issue of which mineral processing
secondary materials being reclaimed are solid and hazardous wastes
Comment: Another commenter suggested including the language "all metal-bearing recyclable
materials, regardless of whether they are characteristically hazardous, that are legitimately recycled "
This commenter also requested that the Agency clarify that the exclusion would not affect present
exemptions from the definition of solid waste for non-mineral processing industries (COMM35)
Response: Listed hazardous wastes are not eligible for the conditional exclusion from the
definition of solid waste found in today's rule By listing a secondary material as a hazardous waste, the
Agency has made a specific determination that the material is a solid waste, even when recycled The
Agency has in fact evaluated each listed waste against the criteria set out at 50 FR at 641 and 53 FR at
526-27 and determined that all of the listed wastes should still be classified as solid and hazardous
wastes when recycled by reclamation A separate 1988 background document (see rulemaking docket for
53 FR 519) likewise supports this previous determination Today's rule does not adversely affect exiting
exemptions from the definition of solid waste for non-mineral processing industries
Comment: A third commenter specifically recommended that EPA modify the proposed
exclusion to ensure consistency with the court findings cited by the Agency in interpreting the definition
of solid waste The commenter requested that the Agency explicitly state that solid wastes are only those
materials which are truly disposed of, not including materials used in normal, on-going production
processes (COMM58)
Response: The Agency appreciates the commenter's request to ensure that its interpretation of
the definition of solid waste is consistent with judicial opinions in this regard The Agency does not,
however, agree that solid wastes are only those wastes "truly disposed of" In American Mining
Congress v EPA, 824 F 2d 1177 (D C Cir 1987) (AMC1), the court found that in some respects
previous rules exceeded the statutory grant of authority because, at least with respect to the mineral
processing (and petroleum) industries, the rules asserted authority over secondary materials that were not
"discarded " 824 F .2d at 1193 (discarded being the key term in the statutory definition of solid waste,
RCRA section 1004 (27)) Subsequent judicial opinions have sharply limited the scope of AMC 1, so
that the only absolute bar on the Agency's authority to define recycled secondary materials as solid
wastes is to "materials that are 'destined for immediate reuse in another phase of the industry's ongoing
production process' and that 'have not yet become part of the waste disposal problem '" (American
Mining Congress v. EPA, 907 F 2d 1179,1186 (D C Cir 1990)) Courts have further made clear that a
material need not be literally thrown away before it can be classified as "discarded" and hence solid
waste (e g, see AMC II, 907 F 2d at 1186) In today's final rule, EPA is making clear its determination
that "immediate reuse" means remtroduction into the production process without storage, i e, that
storage of a secondary material, by definition, means that immediate reuse is not occurring The Agency
is not attempting, with this rule, to regulate those materials destined for "immediate reuse" as defined
here
1.1.3 Commenters Recommend Limiting the Exclusion
Comment: One commenter believed that the exclusion as proposed is too broad and should be
narrowed. The commenter specifically opposed exemptions that would allow primary metals facilities
to accept materials from off-site sources and remain exempt from RCRA, unless a similar exemption is
established for secondary metals facilities (COMM54)
1-2
-------
Response: In this proposal, the Agency is only addressing secondary materials from primary
mineral processing facilities Addressing non-primary metals facilities is beyond the scope of this
rulemaking
Comment: The commenter suggested that the exclusion be limited to the mineral processing
industry in order to avoid definition problems and the possibility of confusion over RCRA requirements
for secondary smelters (COMM44)
Response: In this proposal, the Agency is only addressing secondary materials from primary
mineral processing facilities Addressing non-primary metals facilities is beyond the scope of this
rulemaking
Comment: A commenter recommended that the Agency explicitly state that mineral processing
secondary materials would not be classified as solid wastes when recycled legitimately at the location at
which the secondary material was originally generated (COMM31)
Response: In today's final rule, EPA has explicitly stated that mineral processing secondary
materials are not classified as solid wastes when reclaimed legitimately on site in situations in which the
recycling and storage (if applicable) activities meet the terms of the conditional exclusion contained
therein The conditional exclusion also is not limited to on-site reclamation operations
1.1.4 No Change in the Definition of Solid Waste is Necessary
Comment: One commenter expressed satisfaction with the current regulatory definition of solid
waste and believes any changes would be unnecessary Specifically, the commenter indicated that the
precious metal industry involves limited "processing," processing residuals are routinely reprocessed to
recover minerals, and therefore are not solid wastes For these reasons, the commenter believed that the
proposed LDRs would not significantly impact this industry (COMM43)
Response: Comment noted
1.1.5 The Proposed Rule Would Expand RCRA Regulation
Comment: Six (6) commenters expressed concern that the rule may expand rather than narrow
the regulatory definition of solid waste One common concern expressed by these commenters is the
view that some beneficiation and processing wastes, as well as the units in which they are managed, will
be classified as solid wastes or solid waste units as a result of the proposed rule As a consequence, they
would be subject to Subtitle C requirements or other land disposal restrictions This contradicts EPA's
attempts to simplify regulations, as regulatory burdens and complications in the form of RCRA
hazardous waste requirements would actually increase (COMM36, COMM43, COMM46, COMM85,
COMM58, COMM67) One commenter, believing that the proposed rule will expand RCRA
requirements to production operations which are currently not subject to RCRA regulation, supported the
conclusion of the Solid Waste Definition Task Force that these materials are intermediates, co-products,
and in-process matenals, not wastes, and should not be regulated under RCRA (COMM67)
Response: This rule does not expand RCRA jurisdiction into production processes. The
Agency is asserting jurisdiction over the storage of mineral processing secondary materials prior to
reclamation Today's rule also creates a conditional exclusion from the definition of solid waste that will
encourage recycling of mineral processing waste streams, and discourage land-based storage, i e
encourage "properly conducted recycling" (RCRA section 1003(aX6)) This rule does simplify the
regulatory status of mineral processing wastes by eliminating the regulatory distinctions among mineral
1-3
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processing sludges, by-products, and spent materials Only mineral processing wastes destined for
disposal—placement in land-based non-production units (see RCRA section 3004(k))~- are subject to
the LDRs
Comment: One commenter added that the Agency "seriously underestimates" the industry's
desire to avoid RCRA requirements for smelters and land-based processing units (COMM36)
Response: The Agency understands industry's position and assumes tt will avail itself of the
opportunities afforded in this rule to avoid RCRA Subtitle C requirements by meeting criteria for
exclusion from the definition of solid waste EPA at the same time believes that the final rule addresses
the Agency's concerns that wastes from mineral processing can cause environmental damage to ground
water and surface water when placed in piles and ponds due to the corrosive and toxic characteristics of
the wastes EPA believes that this rule will encourage safe recycling of these materials while ensuring
that discarded materials are properly treated and disposed
Comment: One commenter provided an additional reason for opposing the redefinition of solid
waste the Agency should not change the definition of solid waste, pending the more general revision of
the definition of solid waste (COMM43)
Response: The Agency's approach seeks to encourage legitimate recycling while preventing
"sham" recycling and ensuring adequate protection of human health and the environment As stated m
today's final rule, secondary materials from primary mineral processing are excluded from the definition
of solid waste only if they meet the terms of the conditional exclusion (principally, reclamation without
land storage), or have received a site-specific determination from a State or EPA Region that a particular
pile of solid mineral processing secondary materials stored on an approved pad is (in essence) not part of
the waste disposal problem The Agency believes that nearly all mineral processing facilities currently
legitimately recycling secondary materials should be able to meet these requirements In response to the
commenter's statements regarding delaying further action until the redefinition of solid waste has been
completed, the Agency is promulgating these standards now in response to court-ordered deadlines, and
in conjunction with the Phase IV Land Disposal Restrictions In effect, the conditional exclusion will
reduce the cost and regulatory burden of the LDR treatment requirements on affected parties The
Agency also believes that it can make industry sector-specific revisions to the nationally applicable solid
waste definition rules, rather than wait for the national effort to conclude A similar rule was in fact
proposed for the petroleum sector and is due to be finalized in the first half of 1998 The Agency
believes that promulgating the treatment standards and the conditional exclusion at the same time
provides maximum clarity to the regulated community regarding waste management requirements and
metal recovery incentives
Comment: Three commenters believed that the proposed rule will adversely affect normal
industry production processes by subjecting more process materials to RCRA regulation (COMM57,
COMM36, COMM58)
Response: The Agency believes that in promulgating standards to ensure legitimate recycling
and the environmentally safe handling of secondary materials it has adopted a reasonable balance among
the objectives of resource recovery, non-interference with production processes, and protection of human
health and the environment Although industry may interpret these efforts as an expansion of the
definition of solid waste, the Agency also is establishing criteria by which secondary materials explicitly
can be excluded from the definition of solid waste In most (if not all) cases, the Agency believes that
facilities can and will meet these criteria and thus secondary materials will not be subject to Subtitle C
requirements. Further, the Agency believes that its final rule simplifies the current regulations by
clearly defining a set of reasonable and tractable storage conditions, and by eliminating the regulatory
distinctions among sludges, by-products, and spent materials generated within the primary minerals
industry. The Agency does not believe this rule will create serious disincentives to recycling
1-4
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Comment: One commenter believed the rule as currently written will create significant
disincentives for achievement of Agency goals as stated in the preamble. (COMM67)
Response: The Agency disagrees with the commenter The Agency believes that its final rule
will achieve the goals stated m the preamble, i e , to promote safe recycling of mineral processing in the
absence of obstacles currently hindering these activities The option provided by the Agency for
exclusion from the definition of solid waste will allow legitimate recycling to continue unhindered This
rule removes rather than adds disincentives to legitimate recycling by creating a conditional exclusion
from the definition of solid waste
1.1.6 The Proposed Rule is Discriminatory
Comment: Four (4) commenters opposed EPA's proposed exclusion of certain secondary
mineral processing materials from RCRA Subtitle C on the grounds that it is discriminatory in various
ways (COMM5, COMM35, COMM54, COMM2) One commenter believed that the exclusion would
establish "relatively lenient" management requirements for mineral processing wastes that are
inconsistent with EPA's pending proposal to ban the use of waste-derived products as "fill" and the
proposed HWIR exit levels The commenter requested an explanation for why "fill products are subject
to full Subtitle C regulation, while similar secondary mineral processing materials are exempt from these
regulations in this proposal " The commenter requested that EPA either justify the establishment of
disparate regulations for similar materials, withdraw the proposed exclusion for mineral processing
waste, or implement similar exclusions for all other waste-derived products (COMM5)
Response: The principal commenter on this point was Marine Shale, adjudicated to be a sham
recycler (S 81 F, 3d at 1380-84) Nonetheless, the Agency appreciates the commenter's concerns that the
proposals were potentially discriminatory The difference between the two practices is that intra-
industry recovery of secondary materials raises questions as to whether the materials are "discarded,"
given the nexus with the production process Use of hazardous waste as fill (Marine Shale's mode of
alleged recycling), on the other hand, presents no such junsdictional questions In fact, in most cases,
there is great doubt as to whether this practice is recycling at all, but instead land disposal
Comment: Two commenters opposed the establishment of separate definitions for the primary
mineral processing industry and the rest of the metals industry (COMM35, COMM54) One commenter
asserted that the Agency has not shown that either the processes or the environmental impacts of mineral
processing and secondary metal-bearing materials processing are significantly different from each other
According to one commenter, different definitions of solid waste within the metals recycling industry
would result in confusion and disruption of established recycling relationships among primary and
secondary mineral processors Therefore, the commenter encouraged the Agency to extend the
proposed exclusion to recyclable materials in other metal industry sectors The commenter believed that
addressing the entire metals recycling industry in one rule would be more efficient than issuing separate
rulemakings in the future The commenter added that the same basis for the conditional exclusion —that
secondary materials are "safely managed and legitimately recycled"-- could be applied to the rest of the
metals industry (COMM35)
Response: Addressing other metals facilities outside the primary mineral processing industry is
beyond the scope of this rulemaking, which deals only with the LDR prohibition of mineral processing
wastes, and the consequent and pertinent issue of which mineral processing secondary materials being
reclaimed are solid and hazardous wastes
Comment: Another commenter was concerned that other industries may seek similar exclusion
for other recyclable matenals, pressuring the Agency to establish additional RCRA exclusions The
commenter believed that removal of RCRA storage requirements would lead to site contamination
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problems, increased "sham recycling," and reduction of public support for materials recovery and
recycling, which would in turn hurt recycling facilities (COMM2)
Response: The Agency appreciates the commenter's concerns EPA believes that today's rule
will encourage legitimate and safe recycling of these materials, while ensuring protection from
environmental damage to ground water and surface water As stated in today's final rule, secondary
materials generated by the primary mineral processing industry are excluded from the definition of solid
waste only if they meet the terms of the Agency's conditional exclusion Wastes generated by other
industries will be evaluated during the broader revision of the definition of solid waste
Comment: A fourth commenter believed that the proposed rule discriminates against mineral
processing facilities because equivalent regulations are not in place for other industries (COMM38)
Response: The Agency disagrees Other industries are and have been subject to the full extent
of Subtitle C requirements since their inception, without benefit of the Mining Waste Exclusion or the
conditional exclusion promulgated in today's final rule The Agency also disagrees that today's final
rule attempts to regulate "process" materials Only secondary materials destined for disposal or storage
prior to reclamation are addressed by the requirements of today's final rule
1.1.7 Encouragement of Environmental Protection/Recycling and Remining
Comment: Three (3) commenters disagreed with the Agency's view that the proposed rule will
enhance environmental protection One commenter stated that for the gold industry, the proposal would
result in more disposal of gold-bearing secondary materials and increased transport to populated areas
for treatment, thereby increasing environmental risk (COMM36, COMM57, COMM85)
Response: The Agency disagrees with the commenters that the conditions for exclusion from the
definition of solid waste will result in increased disposal of potentially-hazardous secondary materials
and increased risk to human health and the environment For reasons set forth above, the Agency in fact
believes that its final rule will enhance environmental protection, by promoting further resource
recovery from primary mineral processing secondary materials through excluding mineral processing
secondary materials from RCRA Subtitle C regulation and through simplifying and clarifying the
conditions under which recovery will not be regulated under RCRA The Agency believes that nearly all
mineral processing facilities currently legitimately recycling secondary materials will be able to meet
these requirements Finally, EPA concludes that the primary gold industry should not be significantly
affected by this rule because it traditionally stores its wastes off the ground Moreover, the existing rules
for precious metals reclamation, which exempts most of the practice from Subtitle C regulation (40 CFR
Part 266 70), are unaffected by today's rule
Comment: Four (4) commenters opposed the exclusion for mineral processing wastes on
environmental grounds, expressing concern that mining wastes would be exempt from RCRA
regulations (COMM38, COMM41, COMM80, LCOMM6) The commenters believed RCRA Subtitle C
regulation is warranted because these materials may be hazardous Specifically, one commenter noted
that materials held by facilities for recycling may leak into ground water, and therefore units where these
materials are held should be classified as disposal sites (LCOMM6)
Response: The Agency agrees with the commenters that mineral processing secondary materials
stored in land-based units may pose a threat to human health and the environment, and that this mode of
land placement can be viewed as part of the waste disposal problem, as well as a discontinuous process
for purposes of assessing whether materials are being "discarded " The intent of today's final rule is not
to exempt hazardous wastes from regulation under RCRA Its purpose is to promote the safe recovery of
mineral processing secondary materials that are suitable for recycling, and ensure that such matenals do
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not become part of the waste disposal problem By both promulgating treatment standards for secondary
materials destined for disposal and prohibiting land storage of those destined for recycling (except in
approved site-specific cases), EPA has taken steps to ensure that management of these materials does not
cause environmental hazards At the same time, the Agency has excluded from the definition of solid
wastes those materials whose recovery does not raise land disposal concerns (by conditioning their
exclusion on storage in non-land based units) and can therefore be viewed as not being part of the waste
disposal problem
Comment: While another commenter supported the proposed Subtitle C exclusion, the
commenter opposed applying the exclusion to land-based units containing hazardous mineral processing
residues destined for recycling because of potential environmental harm that might result from a release
of these materials The commenter suggested that EPA consider exclusion of only those recyclable
hazardous mineral processing residues that exceed a certain annual generation level, as well as require
management standards for these large volume wastes (COMM2)
Response: The Agency agrees with the commenter that storage of secondary materials in land-
based units can (and has) posed a substantial threat to human health and the environment The Agency
believes that the rule promulgated today adequately addresses these concerns Information received by
the Agency, along with further analysis of existing data, and collection of new data since January 25,
1996, indicates that mineral processing secondary materials are generated in smaller volumes than
previously believed, so that there is no volumetric necessity for use of land-based units In
corroboration, this new information indicates that a significant number of mineral processing secondary
materials are not stored in land-based units Therefore, the Agency has developed and promulgated a
conditional exclusion from the definition of solid waste Storage in units may not be land-based, i e,
such materials must be stored in tanks, containers, or buildings that meet certain minimum integrity
criteria, or for solids, may be stored on an approved pad Thus, if a hazardous secondary material is
legitimately recycled within another beneficiation or mineral processing operation within the industry, it
is not a solid waste provided the storage that precedes the recycling does not entail land placement
Comment: Eight commenters specifically disagreed with the Agency's belief that the proposed
exclusion for mineral processing secondary materials will encourage recycling and recovery efforts
(COMM36, COMM38, COMM43, COMM57, COMM45, COMM58, COMM67, COMM85,) The
commenters believed the Agency's proposal will increase regulations for managing recyclable materials,
thus limiting the industry's ability to recycle these materials According to these commenters, the
Agency failed to distinguish solid waste from intermediates, co-products, and in-process materials used
in normal processing activities, and as a consequence, the proposed exclusion will increase compliance
costs for testing and unit modifications without a significant environmental benefit The commenters
argued that valuable recycling activities should not be subject to unnecessary RCRA regulations One
commenter added that the Agency has ignored industry recommendations for managing mineral
processing secondary materials (COMM58)
Response: The Agency disagrees with the commenters Currently, the Agency does not have a
regulatory definition of "intermediate," though it does draw regulatory distinctions between "co-product"
and "by-product" (see 261 1 (c) (3) for differences between "co-product" and "by-product") The
Agency has, however, established a clear definition of "immediate reuse" in today's final rule, defining it
as means reintroduction of a matenal into the production process without prior storage Members of
industry often use the term "in-process" to describe a material's status In the Agency's view, "in-
process" has the same definition as Agency-defined "immediate reuse "
The Agency has defined in clear terms the materials and management practices that are subject
to Subtitle C controls, and those that are not by virtue of either their intrinsic nature or their eligibility for
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the conditional exclusion established in today's rule or other available exclusions from the definition of
solid waste The conditional exclusion imposes no testing requirements and at most facilities will not
result in unit modifications Environmental benefits will accrue from the elimination of land storage
(except for on approved pads) of mineral processing secondary materials prior to reclamation
Comment: Another commenter noted that in the gold industry, where secondary materials are
recycled in non-land based units, recycling would be discouraged by the Agency's proposal (COMM57)
Response. EPA recognizes the commenter's concerns, and believes that they are fully addressed
in the form of the conditional exclusion promulgated in today's final rule Under the terms of this
exclusion, primary mineral industry secondary materials that are stored in non-land based units (except
for approved pads) are no longer regulated as solid wastes, hence, if anything, recycling of these
materials should be stimulated Moreover, the existing rules for precious metals reclamation, which
exempts most of the practice from Subtitle C regulation (40 CFR Part 266 70), are unaffected by today's
rule
Comment: Another commenter reasoned that the proposal would discourage recycling because
the proposed conditional exclusion would shift recycling efforts from mineral processing units to
beneficiation units to avoid notification requirements, even in cases where recycling may be more
effective in mineral processing units The commenter added that to prevent this disincentive and
encourage recycling, the Agency should limit its jurisdiction and the implementation of regulatory
burdens for materials that have not been discarded (COMM43)
Response. The Agency disagrees with the commenter Today's rule stipulates that mineral
processing secondary materials are excluded from the definition of solid waste provided they are
reclaimed in either mineral processing or beneficiation operations and provided no land-based storage
precedes reclamation The Agency wishes to stress that the exclusion allows reclamation in either
mineral processing or beneficiation operations and that the conditions of the exclusion remain that smae
in both instances Given that beneficiation operations are highly unlikely to obtain RCRA storage
permits, EPA sees no reason why there would be a shift of mineral processing secondary materials to
beneficiation operations except for those capable of complying with the conditions of the exclusion
Comment Two commenters believed that recycling is already occurring in the industry and
that therefore, the proposed standards are not needed (COMM5, COMM46) One commenter added that
increasing recycling is not a valid basis for exempting hazardous materials from RCRA (COMM5)
Response: The Agency notes that promoting recycling is a secondary benefit derived from its
proposal and today's final rule The Agency's primary concern is potential contamination resulting from
the storage of secondary materials in land-based units prior to legitimate recycling The Agency wants to
ensure that such storage does not contribute to the waste disposal problem As a consequence, the
Agency has developed a rule that would condition exclusion from the definition of solid waste on the
absence of land storage (except on approved pads) Based on additional information collected by the
Agency since the January 25,1996 proposal, it is apparent that storage of these materials in tanks,
containers, and buildings is much more common than storage in land-based units and that there is no
volumetric necessity for land-based storage The Agency therefore believes its approach will achieve the
desired protection of human health and the environment, while continuing to allow legitimate recycling
1.1.8 Other General Comments
Comment: Several commenters disagreed with other general elements of the proposed rule
One commenter disagreed with the Agency's opinion that the uniqueness of the secondary mineral
processing industry justifies a modification of the concept of "ongoing process " The commenter
suggested that EPA defer this issue to the rulemaking on the definition of solid waste (COMM5)
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Response: In today's final rule, the Agency is only addressing secondary materials from
primary mineral processing facilities EPA believes that issues of secondary material management in the
primary mineral processing industry are sufficiently clear to resolve them in the current rulemaktng
Hence, the Agency is today clarifying its definition of "continuous process" in this context to ensure that
these materials are returned to the process without storage
Comment: Another commenter opposed the Agency's classification of mineral processing
residues managed in land-based units as "secondary materials" instead of wastes The commenter
disagreed that EPA is compelled to propose a RCRA exclusion because its authority is limited where
residues are immediately reused in an ongoing operation, as it believed the Agency implied in the
proposed rule The commenter explained that in cases where EPA has exceeded its jurisdiction over
land-based units because of potential health threats, the Court of Appeals has supported the Agency's
actions (COMM41)
Response: The Agency agrees with the commenter that it has jurisdiction over mineral
processing secondary materials stored on the land before recovery and also generally has discretion to
determine when secondary materials being recovered can be classified as "discarded " However, EPA
also recognizes the role that recycling of these secondary materials plays in the mineral processing
industry The Agency's approach seeks to encourage legitimate recycling and ensure adequate
protection of human health and the environment As a consequence, the Agency developed standards
that condition exclusion from the definition of solid waste on the absence of land-based storage (except
on approved pads) The Agency believes these provisions will allow legitimate recycling without
regulation while at the same time ensuring protection of human health and the environment
Comment: One commenter disagreed with EPA's reasoning for the proposed exclusion, i e, a
lack of alternatives to land-based units or technical obstacles for managing many large-volume mineral
processing wastes. The commenter stated that many of the waste streams covered in the rulemakmg are
produced in amounts less than the examples provided by EPA Specifically, the commenter cites that
"106 of the 147 waste streams are generated in average quantities of 45,000 MT/year or less, the
quantity threshold EPA previously used to identify mineral processing wastes amenable to management
in Subtitle C " The commenter recommended that the Agency establish an annual generation threshold
below which the proposed exclusion does not apply The Agency should also determine a quantity
threshold for determining which mineral processing wastes can be temporarily stored in tanks or
containment buildings, following the basis for the Beviil exclusion as whether the materials can be
effectively managed for a temporary period in the structures (COMM41)
Response: The Agency agrees with many of the commenter's statements, particularly that there
is no volumetric necessity for land-based storage units and, as a consequence, has decided to condition
exclusion from the definition of solid waste on management of secondary materials in tanks, containers,
or buildings (or on approved pads) prior to the material being returned to the process The Agency
believes these requirements will sufficiently protect human health and the environment, and sees no
reason to impose any other limitations, such as generation thresholds or limits on the amounts of material
stored
Comment: One commenter opposed EPA's proposed rule because the Agency fails to provide
environmental justification for regulating secondary mineral processing materials in non-land-based
units. (COMM57)
Response: The Agency disagrees with the commenter In materials submitted in support of its
January 25,1996 proposal, the Agency included numerous documents descnbing damages associated
with these activities and materials Since 1996, the Agency has collected additional data documenting
the actual and potential threats that mineral processing secondary materials stored in land-based units can
pose to human health and the environment These matenals were placed in the docket for the second
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supplemental proposal, and include the following Damage Cases and Environmental Releases, EPA,
1997 (No S0038), Mining and Mineral Processing Sites on the NPL, EPA 1997 (S0043), and CERCLA
Imminent Hazard-Mining and Mineral Processing Facilities, EPA 1997 (S0045) These materials
provide empirical basis for concluding that land-based storage of corrosive and toxic mineral processing
secondary materials can be considered to be part of the waste disposal problem, and therefore a form of
discard of those materials Moreover, given that RCRA is a preventative statute, proving actual
environmental damage from land disposal of hazardous wastes is not a prerequisite to regulation
Comment: One commenter believed no significant environmental impacts exist as a result of
industry recycling activities (COMM85)
Response: See response immediately above
Comment: One commenter stated that the rule was ambiguous and entails expensive RCRA
requirements including ground water monitoring to determine whether the exclusion applies
(COMM38)
Response' Unlike the January proposal, today's rule does not establish ground water monitoring
requirements for non-RCRA tanks, containers, or buildings (or for that matter, approved pads) storing
mineral processing secondary materials destined for reclamation The rule does not allow land storage of
mineral processing wastes that are characteristically hazardous in the absence of a Subtitle C permit
Once the Agency determined that there was no volumetric necessity for land-based units, the alternatives
proposed in 1996 no longer appeared justifiable
Comment: One commenter stated that the lack of acceptance of the federal interpretation of the
definition of solid waste regulations in some states make it difficult to evaluate the issues in the proposed
rule (COMM22)
Response: EPA believes that the issues are straightforward, particularly given the way in which
the Agency has simplified the conditional exclusion in today's final rule In any event, RCRA
requirements are often modified (made more stringent) within state-level programs, and EPA has no
reason to believe that this practice hinders the ability of interested parties to comment meaningfully on
regulatory proposals at the federal level
Comment: One commenter requested that the Agency clarify the definition of "primary
mineral processing" in the proposed rule The Agency should clearly distinguish the scope of the
proposed exclusion, whether adopting the 1989 Bevill Amendment definition or including additional
processes, to avoid inconsistent interpretations (COMM35)
Response: It is the Agency's position that the definition of primary mineral processing has been
clearly stated at 54 FR at 36592 (September 1, 1989) Today's rule does not alter the definitions
promulgated in the 1989 rule
Comment: Two commenters believed that other regulations adequately address the problems
EPA is attempting to regulate in this rulemakmg, making further rules unnecessary (COMM58,
COMM57) One of these commenters also believed that state regulations (such as Nevada's) provide
sufficient mechanisms for dealing with possible environmental risks associated with precious metal
processing activities, including requirements for momtonng, containment, ground water quality,
corrective action, and other standards Therefore, EPA's need to regulate these non-land-based
operations is limited (COMM57) Another commenter argued that releases from units are subject to
state and federal regulations, such as the Clean Water Act and state groundwater protection programs,
making additional RCRA Subtitle C regulation unnecessary (COMMS8)
Response: The Agency disagrees While some State requirements may be adequate to address
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these hazards, the Agency believes that a minimum national standard is necessary to adequately protect
human health and the environment Surface impoundments, in particular, are inherently prone to leaking
and can realistically be viewed as a type of disposal unit (see AMCII, 907 F.2d at 1186-87) The
Agency is, however, allowing for site-specific determinations that pads stonng solid mineral processing
secondary materials meet the conditions for storage of today's exclusion from the definition of solid
waste EPA believes that the conditional exclusion being promulgated today both establishes this
standard for waste disposal practices and provides additional incentives for legitimate recycling of
mineral processing secondary materials
1.1.9 Offsite Transfer of Recyclable Materials
Comment* One commenter supported the Agency's view that secondary materials transferred
for recovery or recycling within the industry are not solid wastes (COMM40)
Response: Today's rule allows for the transfer of mineral processing secondary materials from
one company to another as long as all of the conditions to the exclusion from the definition of solid
waste are met The simple transfer of wastes from one facility to another does not constitute legitimate
recycling
Comment: Five (5) commenters opposed EPA's proposal to permit primary mineral processing
facilities to accept recyclable materials from offsite facilities within the industry (COMM5, COMM31,
COMM54, LCOMM3, LCOMM5) According to one commenter, inclusion of the entire industry sector
would deviate from the AMC I court's holding regarding "on-going process," and undermine the intent
of RCRA The commenter also believed that the proposal would lead to confusion and potential abuse of
the RCRA system, such as mischaractenzation of materials processed by secondary industry as
processed in the primary industry (COMM5)
Response: The Agency agrees with the commenter that the conditional exclusion is not
compelled by statutory language In other words, intra-industry which are conditionally excluded under
today's final rule are potentially within the Agency's jurisdiction under Subtitle C (see the discussion of
the Agency's junsdictional continuum in the preamble to today's final rule) However, the Agency
retains discretion to classify these secondary materials as non-wastes, based upon environmentally sound
intra-mdustry reclamation practices Today's rule allow for the transfer of mineral processing secondary
materials from one company to another within the industry sector (and to beneficiation operations) as
long as all of the conditions to the exclusion from the definition of solid waste are met If these
conditions are met, then legitimate recycling will occur and materials will be stored in an
environmentally sound manner In establishing this rule, the Agency has noted that as a legal matter, the
processing of wastes generated by a separate industry is a different situation than the "continuous, on-
going" processing of secondary materials within the same industry, lacking the element of continuity of
production inherent in the continual multi-step processing of virgin ores into a variety of end products
(seeAPIv. EPA, 906 F 2d at 741-42)
Comment: Another commenter believed that EPA should not allow the primary minerals
processing industry to accept secondary materials generated in industries other than the mining and
primary mineral processing industry unless a similar exclusion is established for secondary smelters that
receive materials from off-site sources within the secondary metals industry The commenter also
contended that the proposal for "extra-industrial" materials, which excludes certain secondary materials
used in primary mineral processing activities from-RCRA Subtitle C regulation would give primary
metal producers an unfair advantage over secondary lead production facilities which are fully subject to
RCRA regulation To remedy this inequity, EPA should either narrow its exclusion or promulgate
equivalent exclusions for the secondary metals industry (COMM54)
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Response: In this final rule, the Agency is only addressing secondary materials from primary
mineral processing facilities. Addressing other metal-bearing wastes is beyond the scope of this
rulemakmg The Agency also notes that the issue the commenter raises was litigated and that the court
held that spent lead acid batteries recycled in secondary metal recovery practices are properly classified
as solid and hazardous waste (see the decision in United States v Ilco, Inc, 996 F 2d, 1126 (11th Cir
1993))
*
1.1.10 Sector-Specific Comments
Comment: One commenter from the gold-mining sector indicated that special circumstances
associated with recycling in that sector as a result of the high commodity value of gold make regulation
of these activities unnecessary First, gold producers take care to minimize loss of minerals during
reprocessing, and second, the industry does not place or process secondary materials in land-based units
The commenter cited exclusions from current Subtitle C and Boiler and Industrial Furnace regulations
derived from the careful handling of gold-bearing materials during processing and recycling as
justification for excluding non-land based precious metal recycling activities from regulation
(COMM57)
Response: The Agency disagrees with the commenter that regulation of recycling activities in
the gold sector is unnecessary However, EPA also recognizes the role that recycling of these secondary
materials plays in the mineral processing industry The Agency's approach seeks to encourage
legitimate recycling and ensuring adequate protection of human health and the environment Moreover,
the existing rules for precious metals reclamation, which exempts most of the practice from Subtitle C
regulation (40 C! R Part 266 70), are unaffected by today's rule
1.2 Solid Waste Issues
1.2.1 Revision of the Definition of Solid Waste
Comment: Two commenters suggested that EPA should further revise the definition of solid
waste (COMM32, COMM58) One commenter specified that the Agency develop a more generic
definition of solid waste that would provide a broader exclusion for other secondary materials recycled in
the manufacturing process The commenter also stated that this effort should be accompanied by a clear
definition of "manufacturing process" to assist in determining which recycling activities fall under
RCRA jurisdiction The commenter believed that these changes would remove many of the current
exclusions, simplifying RCRA regulations and ending disincentives to recycling (COMM32)
Response: The Agency believes that this request is beyond the scope of this rulemakmg It is
more appropriately dealt with under the Agency's comprehensive efforts to amend the definition of solid
waste In addition, after devoting a great deal of attention to the issue, the Agency finds it is not clear
that any single definition of "manufacturing process" is possible, particularly if the concept is to extend
beyond the confines of a single facility. In this rule, for example, the Agency has defined
"manufacturing process" quite broadly to encompass the entire mineral processing industry sector, which
includes a a diverse range of industries recovering a broad spectrum of different metals Whether such a
broad definition is appropnate within the contexts of other industries is uncertain without further
examination.
Comment: One commenter expressed dissatisfaction with EPA's response to its efforts to aid
the Agency in modifying a definition of solid waste, particularly through its participation in the
Roundtable on Recycling and the Definition of Solid Waste and meetings with Agency representatives
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(COMM58)
Response: EPA appreciates the commenter's efforts with respect to participation in the
Roundtable on Recycling and the Definition of Solid Waste Task Force The Agency notes, however,
that the Solid Waste Definition Task Force did not complete its work The recommendations of the Task
Force are therefore no more than that and certainly are not binding in any way They also do not
represent a statement of Agency policy, or even of Agency opinion The commenter is also referred to a
seperate memo to the administrative record on this point
Comment One commenter recommended developing a modified version of the proposals
through cooperation among EPA, the NMA, and its member companies to establish an appropriate
definition of solid waste for the unique characteristics of the mineral processing industry that will avoid
additional regulatory burdens The commenter also recommended that revisions of the current
definition of solid waste be postponed while the EPA and industry take this action (COMM 58)
Response: The Agency recognizes the role that recycling of secondary materials plays in the
mineral processing industry In today's rule, the Agency seeks to encourage legitimate recycling and
ensure adequate protection of human health and the environment The rule contains several significant
provisions (e g , the conditional exclusion, elimination of the distinction among sludges, by-products,
and spent materials for the mineral processing industry in which it lacked an environmental basis) that
reduce regulatory burdens In response to the commenter's statements regarding delaying further action
until the redefinition of solid waste has been completed, the Agency is promulgating these standards now
because EPA has postponed any near-term action on changing the definition of solid waste and there is in
this case a particular need to know whether the LDR prohibitions apply to land based storage units
holding hazardous secondary materials generated withing this industry sector
1.2.2 Issues of Process and Disposal
Comment: Four (4) commenters addressed issues associated with the classification of process
and disposal units Several commenters stated that EPA contradicts the decision of the AMC I court in
the proposed rule by classifying any material that is placed in a land-based unit as "discarded " They
argued that placing secondary materials in land-based units is common throughout the industry, and that
many economically valuable secondary materials necessary to produce final products and co-products
are placed in land-based units prior to future use, without any intent of discard (COMM36, COMM38,
COMM39, COMM67)
Response: The Agency does not agree with the commenters that its proposal contradicts
previous decisions regarding the Agency's jurisdiction over process materials The Agency considers
that in American Mining Congress v EPA (AMC I), the court found in some respects previous rules
exceeded the statutory grant of authority because, at least with respect to the mineral processing
industries, the rules asserted authority over secondary materials that were not discarded Subsequent
judicial opinions, however, have sharply limited the scope of AMC 1, so that the only absolute bar on the
Agency's authority to define recycled secondary materials as solid wastes is to "materials that are
'destined for immediate reuse in another phase of the industry's ongoing production process' and that
'have not yet become part of the waste disposal problem '" (American Mining Congress v EPA, 907
F.2d 1179,1186 (D C Cir 1990)) The Agency believes its final rule is consistent with the findings of
AMC II American Mining Congress v EPA, 907 F 2d 1179, 1186 (D C Cir 1990) Further, the Agency
does not agree that land-based storage continues to be a widespread industry practice Information
received by the Agency, along with further analysis of existing data, and collection of new data since
January 25/1996, indicate that mineral processing secondary materials are generated in smaller volumes
than previously believed (see the technical background document Characterization of Mineral
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Processing Wastes and Materials in today's final rulemaktng docket) This new information also
indicates the vast volumetric bulk of secondary mineral processing materials are not stored in land-based
units As a consequence of this and of evidence of threats to human health and the environment from
land-based storage, the Agency has conditioned the exclusion from the definition of solid waste on
storage in units that are not land-based (except for approved pads) Thus, if a hazardous secondary
material is legitimately recycled within another mineral processing operation, it is not a solid waste
provided that the storage that precedes the recycling does not entail land placement The Agency would
make an exception for solids stored on pads, based upon site-specific determinations by EPA or a State
The Agency further disagrees with the comment that land-based storage units preceding recovery
cannot be considered to be a type of discarding The operations the Agency would control are not
continuous industrial processes, because the storage breaks any continuous processing chain A
continuous process involves continuous processing of an intial raw material in various mining circuits to
extract various metals without intervening storage The use of land-based units, which are inherently
prone to release of the hazardous constituents, can be regarded as a type of discard and an example of the
type of waste disposal problem to be controlled under RCRA (see AMC II, 907 F 2d at 1186) The
Agency has differentiated site-specific approved piles of solid mineral processing wastes stored on pads
from other types of land-based units m today's conditional exclusion in an effort to provide flexibility in
determining which units are or are not part of the waste disposal problem The Agency has made no
such provision in today's final rule for surface impoundments, however, because of those units' inherent
propensity to leak (see AMC II, 907 F 2d at 1186) Finally, the Agency notes that under the broad
definition of "primary mineral processing industry sector" adopted in this rule, many mineral processing
secondary materials can move from one facility's operations to another e g, lead filter cake generated at
a copper smelter being sent to a lead smelter Such operations, in and of themselves (i e , even without
consideration of discard in land-based storage units) can be viewed as discard by the initial generator
(see API v EPA, 906 F 2d at 741-42) The Agency has exercised its discretion to interpret the term
"discarded" to exclude such materials, the exclusion being limited to recovery operations which will not
be part of the waste disposal problem because land-based storage units will not be utilized However, the
point here is that the Agency is doing so as a discretionary act, not because such an interpretation is
mandated The Agency therefore disagrees with the comment that EPA must view any secondayr
material generated and recovered within the primary mineral processing industry sector as not being a
solid waste because it is not "discarded "
Comment: One commenter further specified that the criteria to meet the exclusion from the
solid waste definition should not be management of materials in "process units" as the rules states, but
that facilities should be required to manage secondary materials in a "manner comparable to the way
feedstock, raw material, or chemical products for which the secondary matenals are substituted are
managed " (which, according to the commenter, may include placement in a land-based unit prior to
further processing or beneficiation) The commenter also believed that EPA's distinction between
process units and land-based units is arbitrary, and requests that the Agency specify that the term
"process units" in the proposed rule refers to those units used to store or manage secondary materials
pnor to processing, not actual product processing or beneficiation units The commenter stated that
because many "process units" involve extraction and beneficiation activities that would otherwise be
excluded under the Bevill Amendment, EPA should clarity that such units are not subject to RCRA
requirements (COMM38)
Response: Today's rule clarifies the distinction between process units and storage units The
Agency believes, and the courts have agreed (American Mining Congress v EPA, 907 F 2d 1179,1186
(D C Cir 1990)) mat materials stored m land-based units can be viewed "as part of the waste disposal
problem," and thus can be considered to be "discarded " To address this issue, today's rule specifically
defines when discard is occurring Storage of mineral processing secondary materials,destined for
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recycling is allowed as long as it occurs in non-RCRA tanks, containers, or buildings, or on approved
pads (for solids only) The Agency believes the impact of its approach on the use of secondary materials
can be expected to be small because most storage of this industry's secondary materials is already taking
place in tanks, containers, and buildings
The Agency disagrees with the commenter's suggestion that secondary materials stored in the
same manner as virgin feedstock should not be considered discarded, and hence not solid wastes First,
such a principal could not be implemented on a national basis, since an individual facility's particular
storage practices would set the standard for each facility Second, such a principle would create an
incentive to store raw materials in a less secure manner (i e in piles and impoundments, rather than in
tanks and other more secure units) m order to store hazardous secondary materials in an equally insecure
manner Given that the Agency has authority to define land-based storage of hazardous secondary
materials as a type of discard (see the response above and the preamble to today's final rule), and
because of the potential adverse consequences, the Agency declines to follow the commenter's
suggestion
Comment: One commenter stated that categorizing land-based units as either process or waste
disposal units is overly complicated and would provide operators of these units with an escape from
existing RCRA regulations, posing potential threats to the environment Waste piles and surface
impoundments would need only meet minimal standards to be termed process units, while tanks,
containment buildings, and containers would automatically be exempt from hazardous waste regulation
(COMM37)
Response: This comment refers to the earlier proposal which would have allowed land-based
units to be considered "process units" if they met certain types of conditions designed to prevent large-
scale releases of hazardous constituents The Agency proposed this course under the impression that use
of land-based storage was compelled because of the large volumes of mineral processing secondary
materials involved or, m some cases, other properties of the materials (see 61 FR 2338) requires
secondary materials to be managed in tanks, containers, or buildings (or approved pads) in order to be
exempt from the definition of solid waste The Agency agrees with the commenters concerns about the
risks posed by land-based storage units Furthermore, information received by the Agency, along with
further analysis of existing data and collection of new data since January 25, 1996 indicate that mineral
processing secondary materials are generated in smaller volumes than previously believed Furthermore,
this new information indicates a significant number of secondary mineral processing materials are not
stored in land-based units As a consequence, the Agency has promulgated a new option that requires
secondary materials to be managed in tanks, containers, or buildings (or on site-specific approved pads)
m order to be exempt from the definition of solid waste Thus, if a hazardous secondary material is
legitimately recycled within another mineral beneficiation or processing operation, it is not a solid waste
provided the storage that precedes the recycling does not entail land placement
Comment: One commenter opposed the regulation (as a waste) of a production unit from which
there has been a release The commenter emphasized that a release from a production unit that accepts
secondary material does not change its status from a production unit to a waste management unit subject
to RCRA regulation Many of the materials managed m such units are actually in-process materials
unless they are actually discarded Until this point, therefore, releases of these materials should be
treated as releases of in-process materials (COMM67)
Response: The comment refers to an aspect of the proposed rule wherein land-based units are
designated conditionally as "process units" (even though they are engaged in storing, not processing) but
could lose that status if the rate of release was too great The Agency is not going forward with that
proposed option in today's final rule Based upon extensive public comment and analysis, the agency
has determined that the absence of storage determines what materials constitute "in-process" materials
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Accordingly, as stated in the preamble to today's final rule, "in-process" materials are limited to those
materials that are transferred from the point of generation to a processing operation without intervening
storage The Agency views these as the "m-process" materials discussed in AMC1 which cannot be
considered to be "discarded " As shown in the technical background documents prepared in support of
the January 1996 and May 1997 proposals (e g, Damage Cases and Environmental Releases, EPA, 1997
(No S0038), Mining and Mineral Processing Sites on the NPL, EPA 1997 (S0043), and CERCLA
Imminent Hazard-Mining and Mineral Processing Facilities, EPA 1997 (S0045), storage of mineral
processing secondary materials in land-based units can lead to environmental contamination and
damages Hence, this practice clearly can be part of the "waste disposal problem "
Comment: Two (2) commenters opposed provisions in the proposed rule which would allow
secondary materials to be regulated as solid wastes, potentially imposing Subtitle C regulations on
legitimate production facilities These commenters believe that the rule would expand the scope of
materials considered solid wastes to materials used in the production process, thus requiring the units in
which these materials are managed to meet RCRA requirements (COMM36, COMM67)
Response: The Agency disagrees with the commenters The Agency considers that in American
Mining Congress v EPA (AMC I), the court found in some respects the rules exceeded the statutory grant
of authority because, at least with respect to the mineral processing industries, the rules asserted
authority over secondary materials that were not discarded Subsequent judicial opinions, however, have
sharply limited the scope of AMC 1, so that the only absolute bar on the Agency's authority to define
recycled secondary materials as solid wastes is to "materials that are 'destined for immediate reuse in
another phase of the industry's ongoing production process' and that 'have not yet become part of the
waste disposal problem '" (American Mining Congress v EPA, 907 F 2d 1179,1186 (D C Cir 1990))
Because the Agency's approach imposes additional requirements only on materials not returned
immediately to the process, and which are part of the waste disposal problem because they are stored in
disposal units (see RCRA section 3004(k)), the Agency believes its final rule is consistent with the
holdings and rationale of AMC II (American Mining Congress v EPA, 907 F 2d 1179, 1186 (D C Cir
1990))
Comment: Two (2) commenters stated their belief that the distinction between processing
activities and waste generation proposed by the Agency is a means of expanding the scope of solid
wastes that may be regulated by RCRA (COMM46, COMM58)
Response: The Agency disagrees with the commenter that its distinction between process units
and land-based units is purely a means of expanding the scope of RCRA The Agency believes, and the
courts have agreed (American Mining Congress v EPA, 907 F 2d 1179,1186 (D C Cir 1990)), that
materials stored in land-based units can be viewed "as part of the waste disposal problem," and thus can
be considered to be "discarded " Indeed, EPA believes that it has an affirmative obligation to identify
and control land management of secondary materials that are part of the waste disposal problem
Mineral processing hazardous secondary materials stored in land-based units are very clearly within this
category
1.2.3 Element of Discard
Comment: Two commenters stated their opposition to EPA's view that an "element of discard"
exists in some secondary material management practices The commenters argued that some cross-
sector transfers are legitimate recovery operations that conserve resources (COMM57, COMM67)
Response: In its May 12, 1997 proposal the Agency described its position with respect to the
element of discard as it relates to storage in land-based units The Agency believes that land-based
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storage practices can result in (and, in fact, have resulted in) the types of environmental damage that
RCRA was designed to prevent Further, such materials can be viewed as "part of the disposal problem"
because of the nexus with land disposal, and hence "discarded " The Agency continues to hold this
position, and today has promulgated controls over land management of mineral processing hazardous
secondary materials To promote additional "properly conducted" resource recovery (a permissable
objective, see RCRA section 1003 (a)(6)), the rule also incorporates a conditional exclusion from RCRA
jurisdiction for those secondary materials that are managed in a way that is not part of the waste disposal
problem
1.2.4 Issues of "Main" and "Ancillary" Operations
Comment: 1 hree commenters disagreed with EPA's distinction in the proposed rule between
mam and ancillary processes (COMM38, COMM46, COMM58) These commenters believed it is an
artificial means of expanding the category of secondary materials regulated under Subtitle C, as well as
contradicting Congressional and Agency goals of promoting recycling Two of the commenters added
that even with some materials stored on land for a brief period, reprocessing is an inherent, legitimate,
and essential part of the industry's processing operations The commenters believed that the Agency is
wrong in classifying some secondary materials as "less essential" in the production process, and should
eliminate such a distinction that would threaten the economic stability of the industry (COMM46,
COMM58) One commenter referred to the Agency's Site Visit Report and the Definition of Solid Waste
Report as accurate interpretations of the issue, contrary to the position presented in the proposed rule
(COMM46)
Response: The Agency has reassessed its information related to wastes generated by main and
ancillary operations EPA now agrees with the commenters that there does not appear to be support for a
sweeping generalization that secondary material reprocessing is always a type of ancillary, adjunct
activity (although the statement could apply in certain situations, e g cryolite recovery by primary
aluminum plants from spent pothners See 50 FR at 641) Accordingly, today's rule is not based on an
undeviating principle that reclamation of hazardous secondary materials is invariably an ancillary type of
activity and does not incorporate proposed language related to ancillary operations generating less
valuable material or utilizing less valuable material The discussion in the preamble to today's rule of
the continuum of recovery practices within the industry sector and of degrees of discardedness associated
with points along the continuum, better reflects possible means of differentiating among secondary
material recovery activities within the mineral processing industry As noted earlier, EPA's conclusions
noted in the Definition of Solid Waste Task Force Report or in site visit reports are not binding
regulatory determinations and represent staff opinions, not any type of Agency opinion See seperate
memo to the administrative record on the Definition of Solid Waste Task Force Report as well
1.2.5 Land-Based Unit Issues
Comment: Two (2) commenters questioned the Agency's position regarding the use of land-
based units These commenters disagreed with the Agency's view that secondary materials are stored in
land-based units because these materials have less value m the industry They also disagreed with EPA's
assertion that these units contribute to significant contamination The commenters argued that many
secondary materials are a valuable resource, sometimes containing higher concentrations of metals than
the virgin ore The commenter also argued that the use of land-based units may not be a function of the
material's value, but a result of other factors such as large volume or certain characteristics of the
material (COMM46, COMM58)
Response: Information collected by the Agency since its January 25,1996 proposal indicates
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that mineral processing secondary materials stored m land-based units pose actual and potential threats to
human health and the environment Specifically, EPA has found cases where land storage of hazardous
mineral processing wastes increase the potential for groundwater contamination, contaminated runoff,
windblown dust, and soil contamination and increase the cost of cleanup (See Damage Cases and
Environmental Releases, EPA, 1997) While the Agency agrees that reprocessing of secondary materials
is an essential part of the mineral processing industry's operations, the Agency has concerns about risks
posed by these materials when stored in land-based units In addition, EPA has shown that land storage
of mineral processing secondary materials currently is not a prevalent management practice Agency
investigation since the earlier proposal on January 25, 1996 into the nature of mineral processing waste
and material streams indicates there is no volumetric or other property-based necessity to store these
streams in land-based units (see the technical background document Characterization of Mineral
Processing Wastes and Materials included in today's final rulemaking docket)
As a consequence, the Agency has promulgated a prohibition on land storage of these materials
At the same time, however, the Agency has incorporated a conditional exclusion to promote greater
resource recovery provided the materials are managed in a manner preventing them from becoming part
of the waste disposal problem, thereby addressing the commenters' concerns in this regard
Comment: One commenter stated that EPA should establish a definition of a "land-based unit"
The commenter believes that the Agency intends to classify all "processing units" built on grade as land
based units, regardless of the type of unit (e g , tank, impoundment, pile) (COMM52)
Response: The Agency does not believe that developing a definition of a land-based unit is
necessary RCRA section 3004(k), the provision setting out the scope of the land disposal prohibitions,
already defines "land disposal" to include essentially all units where hazardous waste is placed on the
land Tanks, containers, and containment buildings are therefore not land disposal unnits The rules also
include definitions of piles and impoundments With the promulgation of the land storage prohibition
and accompanying definitions of tanks, containers, and buildings (as well as approved pads) contained in
today's final rule, this issue is moot
Comment: Although tank systems are used extensively, the quantity of materials involved
make land-based impoundments necessary for maintaining control of the production process, including
water balance, and process liquids These impoundments are so essential to the production process that
production would cease without them The impoundment system is designed with integrity to contain
the materials it manages and a groundwater monitoring system, operated since 1980, has shown no
adverse impact to area groundwater quality (COMM65)
Response: The Agency disagrees Information collected by the Agency since its January 25,
1996 proposal indicates that mineral processing secondary materials stored m land-based units pose
actual and potential threats to human health and the environment Specifically, EPA has found cases in
which land storage of hazardous secondary mineral processing materials awaiting recycling increases the
potential for groundwater contamination, contaminated runoff, windblown dust, and soil contamination
and increases the cost of cleanup (See Damage Cases and Environmental Releases, EPA, 1997) While
the Agency agrees that reprocessing of secondary materials can be an essential part of the mineral
processing industry's operations, the Agency has concerns about risks posed by these materials when
stored in land-based units The Agency also has found that tank storage of liquids is quite common and
that the use of impoundments is not necessary and believes that there is no evidence that any mineral
processing hazardous secondary material is compelled to be stored on the land. Consequently, EPA has
promulgated a restriction on land placement of secondary materials and has established a conditional
exclusion from the definition of solid waste that requires storage in units that are not land-based (except
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for approved pads) At the same time, however, EPA has incorporated a conditional exclusion to
promote greater resource recovery provided the hazardous secondary materials are managed in a manner
preventing them from becoming part of the waste disposal problem, thereby adressing the commenter's
concerns in this regard Thus, if a hazardous secondary material is legitimately recycled within another
mineral processing or beneficiation operation, it is not a solid waste provided the storage that precedes
the recycling does not entail land placement
1.2.6 Definition of "Secondary Materials"
Comment: Four (4) commenters stated that the proposed rule lacks a clear definition of
"secondary materials " (COMM36, COMM38, COMM40, COMM58) The commenters believe that the
term may be interpreted as applying to a large range of materials, including non-waste materials that are
not intended for discard However, because the AMC I court concluded that EPA's RCRA authority
may not extend to this broad category of materials, the commenters argued that the Agency should
narrow the definition of "secondary materials" to apply only to those wastes over which it has
jurisdiction This would not include co-products, intermediates, or in-process materials that are beyond
Subtitle C jurisdiction, but only materials discarded and not reused in processing As written in the
proposal, the Agency's definition of "secondary materials" would result in confusion for the industry as
to which secondary material would be affected by the rule.
Response The Agency has established a clear definition of "mineral processing secondary
materials " These are spent materials, sludges, and by-products, terms defined in 40 CFR 261 1 As
explained earlier, the Agency does not agree completely with the commenters' assessment of what is
"discarded", although there are many points of agreement hazardous secondary materials generated and
reclaimed within the industry would not be solid wastes if they meet the conditions of today's exclusion,
process units, even if land-based, would not be waste management units, and materials moving from one
circuit to another without intervening storage could not be defined as solid wastes The Agency
disagrees that all of these results are compelled by statutory language and AMC I However, the Agency
has permissable discretion to define the ambiguous term "discarded" to reach these conclusions, as
discussed in the preamble The Agency would also like to point out, however, that as discussed in the
preamble to today's rule and in other responses to comment, the Agency believes that use of land-based
storage units for hazardous secondary materials awaiting intra-industry recovery can be a type of discard
and has used this principle as the main condition for today's regulatory conditional exclusion
1.2.7 Other Solid Waste Issues
Comment: Two (2) commenters suggested that EPA define the "point of generation" using the
"battery limits approach where the point of generation is defined as the wastewater discharge pomt(s) for
the process area (commonly termed 'battery limits') " The commenters believed this issue is significant
in that this determines whether a material is hazardous or a waste, and when LDR standards must be
applied (COMM70, COMM84) One commenter also argued that this definition could exclude some
waste streams from Subtitle C regulation This change would directly affect this proposed rule and the
HWIR rule. The commenter recommended that this definition be issued before these rules are finalized.
(COMM84)
Response: The Agency defined the point of generation for mineral processing wastes in the final
rule published on September 1,1989 (54 ŁE 36592)
Comment: The commenter requested that the Agency maintain the present exclusion for metal
bearing by-products from the definition of solid waste, but move the provision from Section 261 2 to
Section 261 4 (exclusions) The commenter believed that the broad categorization of metal-bearing
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secondary materials with other-by-products fails to distinguish the beneficial "commodity-like
characteristics" of these materials, such as high recycling rate and low environmental risk The proposed
section should therefore read as follows
261 4 Exclusions (a) * * * (\1) Metal-bearing by-products from secondary materials processes that
are being recycled (COMM34)
Response: Following analysis of this comment and the available data, EPA has decided that the
recommended exclusion is overly broad for this rulemaking, and has instead crafted an exclusion from
the definition of solid waste that is limited in scope to secondary materials generated within the primary
minerals industry The preamble to today's final rule and other responses to comment, indicate why
allowing today's conditional exclusion to apply to listed wastes and to wastes generated from outside the
mineral processing industry, present additional conceptual, policy and legal issues and are not being
considered in this rulemaking
Comment: One commenter requested that EPA clarify that co-products and intermediates
generated as a part of ongoing production processes, as well as beneficiated ores and minerals are not
solid waste and are not subject to any aspect of the proposed "conditional exclusion " requirements or
Subtitle C regulations (COMM46)
Response: Raw ores stored at beneficiation facilities are not solid wastes Ore concentrate
stored at beneficiation facilities is an intermediate or final product and also is not a solid waste Ore
concentrate spilled during transport is a solid (and potentially, a hazardous) waste if not retrieved for
processing (see, e g, 40 CFR 261 33) Today's rule does not affect the regulatory status of co-products,
but instead applies to the secondary materials designated in 40 CFR 261 2. spent materials, sludges and
by-products
Comment: One commenter requested that the Agency clarify that recirculated process water
that is not discarded, but is "destined for immediate beneficial reuse in a continuous process," is not a
solid waste subject to RCRA (COMM42)
Response: The Agency agrees with the commenter to the extent that "reuse in a continuous
process" of the process waste waters is immediate If hazardous wastewater is stored prior to reuse,
storage must occur in a tank or container for the process water to be eligible for the newly promulgated
exclusion from the definition of solid waste However, today's rulemaking does not affect current
Agency regulations regarding reuse of a waste stream under 261 2(e)
1.2.8 Sector Specific Comments
Comment: Some commenters raised sector specific issues related to solid waste One
commenter from the fertilizer industry emphasized that the Agency's recognition of the unique function
of land-based units in the mineral processing production process due to the large volumes of materials
should be applied to phosphoric acid production facilities (COMM45)
Response: The Agency has examined in depth the material management issues endemic to the
phosphoric acid production industry, and has maintained the special waste status of two high volume
mineral processing wastes generated by this industry (phosphogypsum and process wastewater) EPA
does not agree that land storage of other materials is necessary Non-exempt hazardous wastes must be
managed in accordance with Subtitle C standards, though the conditional exclusion promulgated in
today's rule is available for materials reclaimed to the production process in the absence of land storage
(except for storage on approved pads) v
Comment: One commenter disagreed that the use of LAKD in baghouse dust is subject to
Section 266 20(b) requirements "because incorporation of block mix into lightweight concrete masoning
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units is not a use constituting disposal " The comment argued that the Agency should modify the Section
261 4 exclusion to provide that mineral processing secondary materials are not solid wastes, even if
subject to the derived from rule, provided they do not possess hazardous characteristics and are
legitimately used in concrete or asphalt products (COMM35)
Response: The Agency believes that the commenter's request is beyond the scope of today's
rulemaking and is more appropriately addressed in the CKD rulemaking For this reason, the Agency
isnot acting on issues relating to the regulatory status of lightweight aggregate kiln dust and such dust
accordingly retains Bevill exempt status at this time
Comment: The commenter requests similar clarification that the proposed new section
261 4(a)(15) exclusion for mineral processing secondary materials would be applicable to lightweight
aggregate APC dusts/sludges, whether or not generated by facilities using hazardous wastes as fuel
(COMM39)
Response: As stated in the preamble to today's final rule, EPA will resolve the Bevill status of
lightweight aggregate kiln APC dust/sludge (as well as that of cement kiln dust) in future regulatory
action For the present, this material will retain its Bevill status
1.3 Jurisdiction
Comment: One commenter agreed that the Agency possesses the authority to implement
conditional exclusions from RCRA for secondary mineral processing materials to ensure that these
materials do not become "part of the waste disposal problem " (COMM40)
Response: Comment noted
Comment: Eight (8) commenters stated that the proposed regulations exceed EPA's jurisdiction
under RCRA (COMM36, COMM38, COMM40, COMM46, COMM57, COMM58, COMM67,
COMM85) The commenters provided a variety of reasons for this argument Four commenters argued
that in-process and intermediate materials are outside of EPA's jurisdiction (COMM36, COMM57,
COMM58, COMM67) One added that these materials are beyond the Agency's authority regardless of
whether they are placed on land (COMM58) Two commenters also reasoned that EPA does not have
authority over secondary materials simply by virtue of their being stored on the ground prior to
processing (COMM36, COMM67)
Response: The Agency disagrees with the commenters' statements and believes that it has
jurisdiction to regulate these materials In American Mining Congress v EPA (AMC I), the court did
find that m some respects rules exceeded the statutory grant of authority because, at least with respect to
the mineral processing industries, the rules asserted authority over secondary materials that were not
discarded Subsequent judicial opinions (American Mining Congress v EPA, 907 F 2d 1179, 1186 (D C
Cir 1990)) have sharply limited the scope of AMC 1, so that the only absolute bar on the Agency's
authority to define recycled secondary materials as solid wastes is to "materials that are 'destined for
immediate reuse in another phase of the industry's ongoing production process' and that 'have not yet
become part of the waste disposal problem '" The Agency has determined not to impose additional
requirements on materials immediately remtroduced to the process The Agency believes it is well
within its jurisdiction to impose requirements on materials stored on land, a practice which the Agency
has determined includes "an element of discard "
The Agency further disagrees with the comment that land-based storage units used for storing
secondary materials prior to their recovery cannot be considered a type of discard As discussed in the
preamble to today's rule, by definition, the Agency is not asserting authority over the processing of
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hazardous secondary materials. This is because the rule only affects storage of mineral processing
secondary materials prior to their legitimate reclamation
By the same token, the operations the Agency would control are not continuous industrial
processes, because the storage breaks any continuous processing chain A continuous process involves
continuous processing of an intial raw material in various mining circuits to extract various metals
without intervening storage The use of land-based units, which are inherently prone to release of the
hazardous constituents, can be regarded as a type of discard and an example of the type of waste disposal
problem to be controlled under RCRA (see AMC II, 907 F 2d at 1186) The Agency has differentiated
site-specific approved piles of solid mineral processing wastes stored on pads from other types of land-
based units in today's conditional exclusion in an effort to provide flexibility in determining which units
are or are not part of the waste disposal problem The Agency has made no such provision in today's
final rule for surface impoundments, however, because of those units' inherent propensity to leak (see
AMC II, 907 F 2d at 1186) Finally, the Agency notes that under the broad definition of "primary
mineral processing industry sector" adopted in this rule, many mineral processing secondary materials
can move from one facility's operations to another e g , lead filter cake generated at a copper smelter
being sent to a lead smelter Such operations, in and of themselves (i e, even withput consideration of
discard in land-based storage units) can be viewed as discard by the initial generator (see API v EPA,
906 F 2d at 741-42)
Comment: A third argument presented by the commenters suggested that EPA's RCRA
authority cannot be based on the threat of a release from a land-based unit (COMM36, COMM67)
Response* The Agency contends that as a result of the ruling in AMC II (American Mining
Congress v EPA, 907 F 2d 1179, 1186 (D C Cir 1990)), it has ample jurisdiction to regulate these
materials to ensure that they do not become part of the disposal problem In its May 12, 1997 proposal
the Agency also describes its position with respect to the element of discard as it relates to storage in
land-based units The Agency believes that land-based storage of mineral processing hazardous
secondary materials can result in (and has resulted in) the types of environmental damage that RCRA
was designed to prevent Further, such materials can be viewed as "part of the disposal problem", and
hence "discarded " The Agency reiterates its concern that these materials, when stored in land-based
units, can result in releases or potential releases to the environment and pose a risk to human health The
Agency has ample evidence that such releases occur In materials submitted in support of its January
25, 1996 proposal, the Agency included numerous documents describing damages associated with these
activities and materials Since 1996, the Agency has collected additional data documenting the actual
and potential threats that mineral processing secondary materials stored in land-based units can pose to
human health and the environment (See Damage Cases and Environmental Releases, EPA, 1997)
Comment: Three commenters stated that EPA has no jurisdiction over "process units" as the
Agency has suggested in the rule, thus these units cannot be subject to RCRA (COMM38, COMM58,
COMM67)
Response: The Agency has withdrawn the proposed "process unit" approach and now uses that
term in the lay sense in the final rule The rule does not apply to mineral processing and beneficiation
units which actually recover mineral values from intra-mdustry hazardous secondary materials
However, land based storage units holding such materials can be waste management units The Agency
disagrees with the commenter's assertion that EPA does not have jurisdiction over these land-based
storage units The Agency believes, and the courts have agreed (American Mining Congress v EPA,
907 F 2d 1179, 1186 (D C Cir 1990)) that materials stored m land-based units can be viewed "as part of
the hazardous waste disposal problem," and thus can be considered to be "discarded." To address this
issue, the Agency developed an option that would specifically define when discard is occurring, and is
today finalizing tins definition Moreover, EPA's data suggest that land-based "processing" is a rare
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practice, being limited to heap leaching and dump leaching in the primary copper and gold industries,
respectively Because leaching is a beneficiation operation, such units are unaffected by today's rule,
and, as true processing units, would not be affected m any case, unless the units were also used to
dispose of hazardous waste Storage of secondary materials on the land (except for approved pads) is
otherwise considered a disposal activity
Comment: One commenter held that land placement and recovery of a material determines that
is it is not discarded and not a solid waste, thus the Agency would have no RCRA jurisdiction over these
materiaSs However, the commenter stated that if land placement were accompanied by "significant
discard," justification for RCRA authority would exist Land placement alone does not imply discard, as
it is part of the normal production process (as recognized by the EPA Solid Waste Task Force)
(COMM40) Another commenter specified that if discard or disposal does not occur, the material is not a
solid waste, not subject to Subtitle C, and beyond EPA authority if reprocessed, reused, or recycled
(COMM58)
Response: See response immediately above The Agency finds that land storage (except for on
approved pads) constitutes a type of discard because of the evident nexus with disposal, borne out by
actual as well as potential damage
1.3.1 AMC Court Cases
Comment: Six (6) commenters cited specific holdings of the court cases discussed by EPA in
the proposed rule, which they believe limit EPA'sjunsdiction in the proposed regulations (COMM36,
COMM38, COMM40, COMM43, COMM57, COMM58) These commenters argued that the proposed
regulations go beyond EPA's authority as established in AMC I Specifically, the commenters presented
the following arguments, based on the AMC I decision, that the Agency had exceeded its RCRA
authority (1) The holding limits the Agency's RCRA authority to materials that are "discarded" —
meaning "disposed of, abandoned, or thrown away " (AMC I, 824 F 2d at 1193) This reading of the
opinion was expressly rejected by the D C Circuit court in API v EPA (906 F 2d at 741-42) and AMC
II (907 F 2d at 1186-87) These cases further hold that "discarded" is an ambiguous term, and so within
the Agency's Chevron II discretion to interpret in accord with overall statutory goals and principles , (2)
spent materials that are recycled or reused in an ongoing manufacturing or industrial process are destined
for beneficial use and not subject to Subtitle C, thus the commenters conclude that secondary materials
used in production are also not solid wastes subject to RCRA regulations, the Agency is not asserting
authority over continuous porcessing of secondary materials or in-process materials However, once
secondary materials are removed from a process for intervening land-based storage, no continuous
processing is occuring (3) EPA did not have jurisdiction over the materials managed in process units
that were destined for beneficial reuse or recycling, as noted earlier, the Agency is not asserting authority
over actual process units, even if they are land based Storage units, however, are not process units
because they are not the locus where the material recovery (i e creation of product metal, or metal
suitable for refining) occurs (4) controls on processing operations, including "conditional exclusions,"
are beyond EPA's Congressional or statutory authority, and (5) the Agency does not have the authority
to interfere with industry's normal, ongoing production processes Again, the Agency is specifically
disclaiming authority over actual production units The condition relates to storage, not to processing
(this response assumes that a processing unit, if land-based, is also not being used to dispose of
hazardous waste, e g, non-recovered sludge left in a process impoundment, assuming that a process
impoundment exists) One commenter concludes that EPA contradicts the court's decision by assuming
that any material placed in a land-based unit is "part of the waste disposal problem" and is therefore
discarded, the commenter argues that placement m this manner for future processing or reuse is not
discard (COMM36)
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Response: The Agency disagrees with the commenter's statement and believes that it has
jurisdiction to regulate the storage of these materials pnor to recycling and that the courts have upheld
this jurisdiction In American Mining Congress v EPA (AMC I), the court did find m some respects
previous rules exceeded the statutory grant of authority because, at least with respect to the mineral
processing industries, the rules asserted authority over secondary materials that were not discarded
Subsequent judicial opinions, however, have sharply limited the scope of AMC 1, so that the only
absolute bar on the Agency's authority to define recycled secondary materials as solid wastes is to
"materials that are 'destined for immediate reuse in another phase of the industry's ongoing production
process' and that 'have not yet become part of the waste disposal problem '" Accordingly, the Agency is
well within its authority to establish (through an examination of data) which materials and practices
contribute to this problem, and to promulgate requirements and conditions that address it
Comment: Two commenters disputed EPA's claim that subsequent court decisions limit the
basic holding of AMC I The commenters assert that the later courts upheld the AMC I finding that
materials destined for beneficial reuse or recycling by the industry are not discarded and therefore are not
solid wastes The AMC I decision continues to limit EPA's jurisdiction over in-process materials and
secondary materials which are part of normal processing operations (COMM58, COMM70)
Response See previous response
Comment: Three commenters also argued that holdings of the AMC II court on the issue of
disposal limits EPA'sjunsdiction to promulgate proposed regulations In AMC II, "discarded" materials
under EPA's jurisdiction were defined as materials that "have become part of the waste disposal
problem" and which "are not part of ongoing industrial processes " (AMC II F 2d at 1186) EPA's
authority over certain materials, such as in-process materials, is therefore limited The commenters
believed that most of the materials EPA proposes to regulate in the proposed rule are destined for
immediate reuse and are not part of the waste disposal problem (COMM36, COMM43, COMM58)
Response In today's final rule, EPA has made clear that immediately reused materials are
outside the scope of RCRA controls, but that land storage of mineral processing secondary materials is
considered a "part of the waste disposal problem " To the extent that these materials are managed in a
way that suggests that they are indeed "immediately reused," they are excluded from RCRA controls, in
accordance with the commenter's suggestion
The Agency believes the principle established in the AMC II court opinion applies to all
imopundments because an impoundment's inherent propensity to teak is not related to whether or not it
holds wastewater, but stands regardless of the type of liquid contained within it Consequently, the reach
of the opinion encompasses all such units as being permissably classified as part of the waste disposal
problem and hence units holding discarded materials
Comment: One commenter argued that EPA's use of AMC II to justify its proposed rule is
unjustified because this case involved a listed waste, not in-process secondary materials that exhibited
hazardous characteristics, and a waste that was placed in a waste management unit, not a process unit
(COMM58)
Response: EPA believes that the general principle involved ("the waste disposal problem") is
more important to the issue of jurisdiction than the specific circumstances litigated in AMC II The
Agency believes the principle established in the AMC II court opinion applies to all imopundments
because an impoundment's inherent propensity to leak is not related to whether or not it holds
wastewater, but stands regardless of the type of liquid contained within it Consequently, the reach of
the opinion encompasses all such units as being permissably classified as part of the waste disposal
problem and hence units holding discarded materials
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1.3.2 Other Jurisdictional Issues
Comment: One commenter asserted that the Agency misinterpreted the court's ruling in AMC
v EPA when it concluded that the case provides the Agency with broad discretion to apply the term
"discard" (COMM58)
Response: As stated above, the Agency disagrees "Discarded" is an ambiguous term which
EPA has substantial interpretive discretion to interpret so long as "materials that are 'destined for
immediate reuse in another phase of the industry's ongoing production process' and that have not yet
become part of the waste disposal problem" are not classified as solid wastes (AMC II, 907 F 2d at
1186) As explained above, EPA has established the conditional exclusion tn the final rule in accord
with these principles
Comment* Two commenters disagreed with the Agency's use of several court cases to support
its proposed rule They argue that the environmental damage cases involving discard from land-based
units are not appropriate and do not give EPA "unlimited authority" to determine what contributes to the
waste disposal problem The commenters further argue that the Agency failed to provide evidence that
such units are "ultimate repositories of unused material " (COMM58, COMM40) One commenter adds
that this distinction should be made on a site-specific basis (COMM40) Furthermore, the commenters
believe that industry already takes steps to protect the environment
Response: While EPA recognizes that the operators of many mineral production facilities take
steps to protect the environment, the Agency disagrees with the other points advanced by the
commenters EPA does not assert unlimited authority over material management, but believes, as
discussed at length above, that the courts have directed the Agency to reduce the magnitude of the "waste
disposal problem " Moreover, EPA has provided ample evidence in the public record of damages
associated with the "storage" of mineral industry secondary materials
Comment: One commenter stated that the Agency's references to API v EPA and AMC II are
"irrelevant to the AMC I decision because the circumstances of the cases were very different"
Specifically, API and AMC II involved identified wastes, while AMC I involved in-process secondary
materials (COMM58)
Response: EPA believes that the distinction drawn by the commenter is incorrect AMC II
involved sludges which were destined for recovery in the very proces which generated them The court
nonetheless held that the process was not the type of continuous industrial process discussed in AMC I
and further held that the sludges were a discarded material In both cases, this was the result because the
sludges were stored in a land-based unit, a surface impoundment (907 F 2d at 1186-1187) The Agency
believes that the conditional exclusion in the final rule, which is directed against such discard, is
supported by the case law Such practices are part of the waste disposal problem and therefore a type of
discarding
Comment: The commenter also disagreed with the Agency's reference to the Ilco case as
limiting the holding of the AMC I court The commenter believes this case does not apply to the
proposed rule because the matenals at issue in this case were not in-process materials recycled or reused
by the primary mineral processing industry, rather, materials actually were discarded
Response: Because EPA is using such a broad definition of primary mineral processing industry
sector in this rule, the principles of United States v Ilco. Inc, 996 F 2d, 1126 (11th Cir 1993),
American Petroleum Inst v EPA, 906 F 2d, 726 (D C Cir 1990), and Owen Electric Steel Co v
Browner, 37 F 3d (4th Cir 1994) have some applicability The Agency agrees, however, that Ilco and
the other cases involving transfer of secondary material from one industry to another does not speak to
situations involving points further in on the recovery continuum, such as recovery of copper from a
secondary material generated by another or the same copper smelter
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Comment: The commenter also believed that the Owen Electric Case cited in the proposed rule
did not alter the AMCI decision The slag at issue in this case was sold, not recycled or reused
(COMM58)
Response: Because EPA is using such a broad definition of primary mineral processing industry
sector in this rule, the principles of United States v Ilco, Inc, 996 F 2d (5th Ctr 1993), American
Petroleum Inst v EPA, 906 F 2d (DC Cir 1990), and Owen Electric Steel Co v Browner, 37 F 3d
(4th Cir 1994) have some applicability The Agency agrees, however, that Ilco and the other cases
involving transfer of secondary material from one industry to another does not speak to situations
involving points further in on the recovery continuum, such as recovery of copper from a secondary
material generated by another or the same copper smelter
Comment: One commenter stated that classifying all recycled materials in production processes
as "secondary materials," then applying a "conditional exclusion" from the definition of solid waste
ignores the fact that these materials are not "discarded" in the first place (COMM38)
Response: EPA has ample jurisdiction to regulate these materials to ensure that they do not
become part of the disposal problem (see AMC II (American Mining Congress v EPA, 907 F 2d 1179,
1186 (D C Cir 1990)) In its May 12, 1997 proposal and again in today's final rule the Agency
describes its position with respect to the element of discard as it relates to storage of hazardous
secondary materials m land-based units The Agency believes that land-based storage practices, in
general, can result in the types of environmental damage that RCRA was designed to prevent Further,
such materials can be viewed as "part of the disposal problem", and hence "discarded" when stored in
land-based units In support of the proposed rules being finalized today, EPA has collected and
presented numerous cases of environmental releases and subsequent damages, from the "storage" of
hazardous mineral processing secondary materials before reclamation
Comment: One commenter presented an alternative to clarify the junsdictional question The
commenter suggested modifying the rule to ensure that valuable secondary materials are kept outside
RCRA regulations by establishing a clear list of such materials, based on the manner in which they are
recycled This option would promote the use of secondary materials In the production process, the
commenter claims (COMM36)
Response. The Agency appreciates the commenter's suggestion, but believes that development
of such a list would not be practicable, because every process has individual characteristics that make it
different than others Further, the Agency believes that creation of such a list might not adequately
ensure protection of human health and the environment because materials might be excluded from the
list that ultimately could cause damage This is because the potential for damage comes from the land-
based units, not from the specific material stored in the units That is, these units, because they are
disposal units, have an inherent potential to release their contents via air, surface and groundwater
exposure pathways The Agency has thus determined that a more feasible and protective approach would
focus on how such materials are stored Therefore, the Agency has decided to focus on the type of unit
in which these materials are stored Under the Agency's final approach, secondary material generated by
and recovered within the primary mineral processing industry sector is excluded from the definition of
solid waste if it is managed in tanks, containers, or buildings, or in the case of solids stored in piles on
site-specific approved pads, if a site-specific waiver is obtained from a state or EPA regional regulatory
agency
1.3.3 Sector-Specific Issues
Comment: One commenter stated that the uranium industry is already subject to regulations by
EPA and the NRC, including Subtitle C All beneficiation processes are currently managed under federal
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regulations, making additional regulations redundant and unnecessary (COMM66)
Response: The Agency contends that certain wastes generated by in situ uranium mining may be
subject to both NRC and EPA (RCRA) jurisdiction This rulemakmg, however, is not directly concerned
with this issue
1.4 General Principles for Redefining Solid Waste Within the Mineral
Processing Sector
1.4.1 Spent Materials, By-products, and Sludges
Comment: Two (2) commenters expressed support for the Agency's proposal to eliminate the
regulatory distinctions among mineral processing spent materials, by-products, and sludges, stating that
such distinctions are artificial and unnecessary, and discourage recycling efforts The commenters,
however, raised other issues regarding this distinction One commenter questioned why characteristic
by-products and sludges are excluded from the definition of solid waste while characteristic spent
materials destined for recycling are not excluded The commenters argued that the Agency's intent to
eliminate this distinction is not actually implemented in the proposed regulatory language, the
commenters believe that the Agency should not include this language until the exclusion is revised to
ensure that it will not create more barriers to recycling than the current requirements (COMM40,
COMM80)
Response. Today's final rule does not make any distinctions among by-products, sludges, and
spent materials generated by primary mineral processing operations The rule first eliminates the
regulatory distinctions among these three categories, then creates a conditional exclusion from the
definition of solid waste to encourage the "properly conducted recycling" (RCRA section 1003(a)(6)) of
mineral processing hazardous secondary materials—spent materials, byproducts, and sludges The
Agency is quite confident that use of the conditional exclusion should stimulate, not retard, recycling of
these metal-bearing streams
Comment: One commenter opposed the proposed elimination of the distinctions, believing that
the regulatory distinction among spent materials, by-products, and sludges is appropriate as currently
written Distinguishing by-products and sludges from spent materials in the mineral processing industry
is necessary because of their different values and rates of generation By-products and sludges are
regularly generated and contain large concentrations of recoverable metals, making them an "integral
part of the production process," according to the commenter Spent materials, on the other hand, are not
regularly generated, making them more easily managed as wastes The commenter added that the
industry has learned how to follow the current regulatory distinctions in mineral processing secondary
materials If the rule were promulgated as proposed, mining companies would still be subject to the
regulatory distinctions for other wastes that are not uniquely associated with mining As a result, they
would then be required to follow two different regulatory schemes, actually increasing regulatory
complexity (COMM85)
Response: The Agency disagrees with the commenter's description of the differences between
spent materials, sludges, and by-products The Agency prefers that is distinctions are to be drawn among
secondary materials, the distinctions should have an environmental basis, i e some are more likely to be
part of the waste disposal problem than others Here the potential to be part of the waste disposal
problem arises from use of disposal units, i e land-based storage units, not from the type of hazardous
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secondary material stored in such units Thus, the Agency is not retaining the distinctions among these
three types of secondary materials. As a consequence, the Agency's May, 1997 proposal and today's
final rule exempt secondary materials generated within the primary mineral processing industry from
which minerals, acids, cyanide, water, or other values are recovered and are stored in tanks, containers,
or buildings (or on approved pads), irrespective of their form or value This should greatly simplify
compliance Rather than debating the sometimes difficult distinctions as to whether a material is a spent
material, byproduct or sludge, the matter will be an evident one of whether the materials are being placed
in piles or impoundments Non-umquely associated wastes must be managed in the same way as other
industrial wastes, regardless of whether EPA eliminates or continues the distinction between uniquely
associated spent materials and by-products/sludges Accordingly, EPA believes that on balance, today's
rule makes regulatory compliance simpler, not more complicated
1.4.2 Determination by Type of Unit
Comment: Three (3) commenters expressed support for EPA's approach to redefining solid
waste through focusing on the type of unit (process or disposal) used to manage a secondary material
rather than the type of materials being recovered (COMM47, COMM54, COMM70) One of these
commenters believes that the unit is more important in protecting the environment that the contaminants
present in the recovered waste stream (COMM47) Another commenter specifically stated its approval
for the Agency's focus on land-based units that are of greatest concern, by "addressing the potential
element of'discard' in the activities and materials at issue", as well as for the "generally applicable
conditions the Agency has proposed for these units " (COMM54)
Response: Comment noted
Comment: One commenter suggested that the criteria for distinguishing surface impoundments
that are "process units" from those that are "disposal units" should be revised The criteria set forth in
the proposed rule, requiring process units to meet certain unit design standards or a ground water
protection standard that focuses on whether the impoundment has significantly affected the adjacent
ground water, would incorrectly classify impoundments that are part of the industrial process as
"disposal units " The commenter believed that these criteria should be changed to avoid this problem,
including clarifying that the three tests for categorizing surface impoundments are alternatives, not three
required tests In addition, the commenter proposed changes in the appropriate criteria for meeting the
third alternative of site-specific determinations (COMM70)
Response EPA has effectively eliminated the distinction implied by the commenter In today's
final rule, EPA requires that mineral processing secondary materials be stored in tanks, containers, or
buildings (or on approved pads) The Agency, in effect, is prohibiting surface impoundment
management prior to reclamation unless Subtitle C standards are satisfied Surface impoundments may
be used, but only for waste management activities, some of which require RCRA permits
Comment One commenter opposed the Agency's focus on the "unit," suggesting instead that
the exclusion should be based on whether the material is legitimately reused in the production process
(COMM67)
Response: The Agency believes that focus on the unit storing materials is appropriate, given
the Agency's primary concern that secondary materials are being stored on land, and therefore may
become part of the waste disposal problem Today's rule also focuses on legitimate recycling by making
legitimacy a condition of the exclusion from the definition of solid waste, a requirement also when any
special status based on "recycling" is at issue (see US v Marine Shale Processors, 81 F 3d at 1365)
Comment: One commenter further suggested that the final Phase IV Supplemental rule provide
a simple notification process for transferring the regulatory status of surface impoundments (TSD units)
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that formerly were subject to RCRA permit requirements but which meet "process unit" criteria and
therefore qualify for RCRA exclusion Changing this designation could be achieved through providing
an appropriate written notice to EPA, including a modified Part A permit application, formal RCRA
closure or modification of an existing RCRA Part B permit should be avoided The commenter added
that, "if the transfer to 'process units' removes all remaining units from the Part B permit, thereby
eliminating the need for the RCRA permit, then the notice could also serve as a formal notification to
EPA of the TSD's intent to withdraw the RCRA Part B permit The facility would then follow the 30
day public notice provisions without the approval of EPA necessary to complete the withdrawal If the
transfer to "process units" removes only some of the remaining units from the Part B permit, requiring
the facility to maintain the permit, the permit should not have to be modified. Instead, it would be
assumed that all sections or references in the Part B permit or application to the process unit(s) have been
deleted The facility would formally delete these references during the next scheduled permit renewal"
(COMM70)
Response: Today's final rule is not intended to exempt currently permitted facilities from
RCRA Subtitle C requirements, nor will it result in conditional exclusions for surface impoundment
management of secondary materials under any circumstances
Comment: One commenter noted that EPA is inconsistent in proposing to apply this rule to all
metal-bearing "secondary materials," whether or not they are managed in a land-based unit, while also
stating that the focus for determinations will be on the "unit" The commenter believed that using the
type of unit as a determination contradicts the AMC I decision, which establishes that the decision
should be based on whether the material is destined for "beneficial reuse or recycling in a continuous
process by the generating industry " (AMC I at 1186) (COMM58)
Response The Agency disagrees with the commenter's statement Today's final rule
appropriately focuses on all secondary materials that are stored on the land Under its provisions, intra-
industry primary mineral processing hazardous secondary materials that are legitimately reclaimed
within the mineral processing or beneficiation industry sectors and are stored in tanks, containers, or
buildings (or on site-specific approved pads) are excluded from RCRA controls This exclusion is fully
consistent with the court's directives in AMC 1 and subsequent court cases, and also provides new
incentives for properly conducted resource recovery
Comment: One commenter believed the proposed rule is biased against "low value" materials,
which may in fact be suitable feedstocks for beneficiation or processing units The commenter
presented the possibility that if the concentration of metal m the secondary material is too low to be
exempt from the solid waste definition, a company could be forced to discard the material, thus facing
additional transportation and disposal costs Instead, the commenter requested that industry be allowed
to recover this metal (particularly copper) (COMM67)
Response: The Agency agrees that the legitimacy tests outlined in the January 25,1996 proposal
are not workable, and has instead decided to rely upon the existing qualitative legitimacy test in today's
final rule
Comment: One commenter objected to the Agency's limitation of "on-going" production
processes only to initial material, and the related view that the mineral processing industry functions only
"to extract mineral values from an initial raw material " The commenter added that the industry attempts
to extract as much metal from its feedstock as technologically and economically feasible (COMM67)
Response: The Agency acknowledges that mineral processors often attempt to recover metals or
other values from m-process or waste materials Today's rule would not adversely affect the recycling of
any mineral processing waste, as long as this activity complied with all of the conditions of the
exclusion
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Comment: One commenter disagreed with the Agency's statement that "it is addressing a
borderline classification situation*' of "quasi in-process materials utilization " The commenter
contended that no "borderline" situation exists in reprocessing materials for metal recovery, all
production processes are necessary to overall production and have the same goal of achieving maximum
metal recovery from feedstock (COMM67)
Response: The Agency disagrees with the commenter Rational metals recovery occurs to the
point at which marginal benefit equals marginal cost Due to frequent fluctuations in the price of most
metal commodities, recovery of metals from the same secondary material may be economically sound
one month and unsound the next As the Agency has shown, this may lead to constituent releases to the
environment from materials that may have been placed on the ground for months or years prior to being
reinserted into the production process Today's conditional exclusion require that mineral processing
secondary materials stored prior to legitimate recycling satisfy the conditions of no speculative
accumulation EPA's final rule addresses this situation by requiring storage of mineral processing
secondary materials in tanks, containers, or buildings (or on approved pads), and has provided a
significant incentive to the operator by excluding materials stored and recycled in this way from the
definition of solid waste
Comment: One commenter disagreed with the Agency's use of the potential for subsequent
releases as a criterion for determining if a material is solid waste, stating that the classification of
materials which have been released from a unit as solid waste cannot be applied to materials in the unit
which have never been released Instead, the commenter suggested, the Agency should focus on
whether the secondary materials are legitimate feedstocks or reagents, and whether they are legitimately
used for production The materials meeting these criteria would not be solid wastes In the event of a
release, EPA could consider implementing RCRA regulation if the release is determined to be
hazardous (COMM67)
Response: The Agency believes that its concerns over releases from the storage of mineral
processing wastes is well justified Information collected by the Agency since its January 25,1996
proposal indicates that mineral processing secondary materials stored in land-based units pose actual and
potential threats to human health and the environment Specifically, EPA has found cases where land
storage of hazardous secondary mineral processing materials awaiting recycling increase the potential for
groundwater contamination, contaminated runoff, windblown dust, and soil contamination and increase
the cost of cleanup (See Damage Cases and Environmental Releases, EPA, 1997) Further, the Agency
believes, and the courts have agreed (American Mining Congress v EPA, 907 F 2d 1179, 1186 (D C Cir
1990)) that materials stored in land-based units are part of the hazardous waste disposal problem, and
thus can be considered to be discarded
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2. Proposed Regulatory Scheme
2.1 General Issues
Comment: One comraenter agreed that the proposed rule represents a reasonable approach to
the RCRA classification of solid waste, which acknowledges that matenals should not be classified as a
solid waste if they contain valuable reusable and/or recyclable matenals, such as precious metal, their
constituents can be containerized during storage and shipment prior to recovery, and they are destined
for materials recovery (COMM9)
Response: Comment noted
Comment* The commenter added that it has concluded that the proposed Phase IV LDR rules
do not apply to their uranium in-situ mining business for the following reasons
" 1 Except for water producing during the restoration phase, which is required under state UIC
regulations, all liquids produced during in situ mining is "byproduct material" as specified under
Section 11 3 (2) of the Atomic Energy Act, and therefore, are not subject to RCRA regulations
Minewater drainage produced during restoration is clearly not Mineral Processing waste
ese wastes may be disposed of under the provisions of 40 CFR 440 30 "(COMM9)
Response: The Agency generally agrees with the commenter's assertion that the Phase IV LDR
rules do not apply to their uranium in-situ mining business as long as the operations conducted at that
site are limited to extraction and beneficiation activities Some in situ uranium operations related to the
processing of yellow cake may be subject to RCRA jurisdiction
Comment: Another commenter indicated that EDF's comments on the existence of other
pathways for the escape of hazardous components from waste units should be addressed The
commenter asserted that contamination from process units can spread via numerous pathways Rules for
prevention of surface run-off and airborne dispersal of pollutants should be developed (COMM6)
Response The Agency agrees that releases of contaminants from units storing mineral
processing secondary matenals prior to reinsertion into a mineral processing or beneficiation process
may occur via pathways other than groundwater (e g, air and surface water) This is borne out by the
background documents which present damage incidents involving mismanagement of wastes (including
secondary materials) in this industry sector The Agency also believes that today's rule, which limits
storage of secondary materials to tanks, containers, and buildings (and approved pads in limited cases),
will substantially reduce the likelihood of contaminant release via any pathway, including surface water
run-off and airborne dispersal Acceptable storage under today's rule may occur only in engineered units
made of non-earthen materials that provide structural support An acceptable tank or container must be
free standing and not be,a surface impoundment, and must be manufactured of a material suitable for
storage of its contents An acceptable building must be a man-made structure with a foundation
constructed of non-earthen matenals, walls (which may be removable), and a roof suitable for diverting
rainwater away from the foundation Storage of some solids on pads may be allowed in limited cases
The Agency believes, however, that sufficient protection against releases via other pathways will be
provided in today's rule Under today's final rule, facilities wishing to store solids on pads must obtain a
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site-specific determination from the applicable EPA Regional Administrator or State Director that its
placement of solids on a pad will not serve as a mode of discard. Acceptable pads must be designed of
non-earthen material compatible with the chemical nature of the material being stored, be capable of
withstanding physical stresses associated with placement and removal, have run-on/run-off controls, be
operated in a manner that controls fugitive dust, and have integrity assurance through inspection and
maintenance programs Site-specific determinations must take into account the potential for releases into
the environment via all pathways
Comment: Two commenters requested that EPA should clarify that wastes listed in 261 4(bX?)
are still covered by the Bevill Exclusion (COMM70, COMM81)
Response: The Agency has listed the wastes that are still covered by the Bevill Exclusion in the
Second Supplemental Proposal, (May 12,1997, 62 FR 26071)
Comment: A fifth commenter argued that the conditions that EPA has proposed to apply to
secondary materials are convoluted, and serve to increase the complexity of the regulatory scheme and
make the regulatory definition extremely difficult to interpret or understand (COMM58)
Response The Agency agrees that its January 1996 proposal included provisions too complex
to be feasibly implemented at this time (e g , quantitative legitimacy tests) As a consequence, in May
1997, the Agency proposed a simpler alternative that it believed would adequately protect human health
and the environment by preventing releases from units storing mineral processing secondary materials
prior to recycling This proposal conditioned exclusion from the definition of solid waste for these
materials on non-land-based storage (except storage on approved pads in limited cases) Based on
comments received on its May 1997 proposal, which indicated that volumes of secondary materials are
sufficiently small that land storage is not necessary (t e that other modes of storage that are not land-
based are feasible), the Agency is today finalizing requirements that mandate storage of mineral
processing secondary materials that are not returned immediately to the process in tanks, containers, or
buildings (or in limited cases for solids where a site-specific determination has been received, on pads)
prior to recycling The Agency believes that conditioning exclusion from the definition of solid waste on
non-land storage will significantly reduce the complexity of compliance with the rule, while at the same
time ensuring adequate protection of human health and the environment
2.1.1 Comments on Expanding the Scope of the Proposed Regulatory
Scheme
Comment: One commenter argued that EPA should expand the scope of the proposed exclusion
to include the entire metals recycling industry, not simply the mineral processing industry, and should
eliminate formalistic, artificial regulatory distinctions among different forms of recycling activities Due
to the lack of relevant distinction between listed and characteristic waste, EPA should also make listed
wastes eligible for the proposed exclusion (COMM82)
Response The commenter's request to include the entire metals recycling industry is beyond
the scope of this rulemakmg The Agency is amending the solid waste definition specifically for the
mineral processing industry at this time in order to most accurately set out the scope of the land disposal
prohibition and treatment standard for mineral processing wastes Since non-mineral processing
materials are not subject to these LDR standards, the Agency sees no need to consider the issue at this
time The Agency also is declining to expand the scope of the exclusion to include materials specifically
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listed as hazardous The Agency disagrees with the commenter that there is no meaningful distinction
between characteristic and listed hazardous wastes As it stated m the preamble to its January 1996
proposal, the process of listing a secondary material as a hazardous waste includes an evaluation of the
manner in which the material is managed and the potential for the material to cause harm to human
health and the environment When a secondary material is found typically to be managed through
recycling, the Agency evaluates whether such processing constitutes continuous on-going manufacturing
or waste management and done so for the listed wastes from the mineral processing sector
Therefore, when the Agency lists a secondary material as hazardous waste, the Agency has made an
affirmative determination that the material is a solid waste, even when it is recycled Furthermore, the
Agency has evaluated each listed waste against the criteria set out at 50 FR 641 and 53 FR 526 and
determined that ail of the listed wastes should continue at this time to be classified as solid and
hazardous wastes when recycled
Comment: Another commenter suggested that due to the uncertainty created by the broad scope
of secondary materials covered by the conditional exclusion, EPA should modify the proposed rule to be
consistent with the mandate in AMCI to "specifically exclude co-products and in process and
intermediate materials from the definition of solid waste " (COMM36)
Response In today's rule, the Agency is promulgating conditions for exempting mineral
processing secondary materials from the definition of solid waste that clarify any uncertainty concerning
those materials that the Agency considers to be "in-process" and are consistent with court rulings in
AMC I as modified by subsequent rulings in AMC II regarding the Agency's jurisdiction over these
materials Under today's rule, exclusion of mineral processing secondary materials is conditioned upon
storage of the secondary materials (sludges, byproducts and spent materials) in units that are not land
based (i e , m tanks, containers, and buildings (or on approved pads in limited cases)) Materials returned
immediately to the process (i e, no storage is involved) are not regulated In-process materials, materials
which have never left the process, such as reverts (spills of molten metal which are collected and
returned to the process) thus are not solid wastes In AMC II, the court ruled that the only absolute bar to
the Agency's authority to define recycled secondary materials as solid wastes is to "materials that are
'destined for immediate reuse in another phase of the industry's ongoing production process' and that
'have not yet become part of the waste disposal problem '" (American Mining Congress v EPA, 907
F 2d 1179, 1186 (D C Cir 1990)) Because the Agency's approach imposes additional requirements
only on materials not returned immediately to the process and limits land storage, which necessarily
involves materials which have left the process, in order to prevent stored secondary materials from
becoming part of the "waste disposal problem," the Agency believes that its final rule is consistent with
the findings of AMC II
Expanding the Scope of the Proposed Rulemaking to Include Process Water
Four commenters specifically recommended that the regulatory scheme should be expanded to
include process waters generated from mineral processing operations as legitimate recycling activities
(COMM36, COMM40, COMM42, COMM70)
Comment: One commenter noted that "process water from mineral processing operations is
often returned to the production process for equipment cooling purposes or for use as makeup water in
actual processes," and that in many cases, especially in the Western United States, recycling and reuse of
process water is necessary to effectively conduct processing operations As a rationale for exempting
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process water, the commenter stated that process water is frequently stored in land-based units Based on
the proposed rule, if the water exhibits a hazardous characteristic, then the land-based unit in which the
process water was contained could potentially be regarded as a waste management unit under RCRA
The commenter believed that this would effectively reduce secondary material recovery in the mineral
processing industry (COMM36)
Response: As stated in its January 1996 and May 1997 proposals (61 FR 2338 and 62 FR
26041), the Agency believes that both acidic solutions and process water can be legitimately recovered
for the value of the acid or water Under today's rule, mineral processing secondary materials that are
returned to the process immediately may be recycled with no further restrictions The exclusion from the
definition of solid waste for these secondary materials, including process water, if stored prior to
recycling is conditioned upon management in non-land-based units (i e tanks, containers, or buildings or
on approved pads in limited cases) meeting minimum technical standards The Agency notes that spent
wastewater can create significant potential for harm if mismanaged, i e, be part of the waste disposal
problem This is borne out not only by the many damage incidents involving releases of spent process
wasters from impoundments, but also by the risk modeling documented in the RIA for today's rule
All units storing secondary mineral processing materials, including process water also would be
required to meet generally applicable qualitative conditions related to legitimate recycling and could not
be accumulated for more than one year Process water may not, therefore, be stored in land-based units
(e g, surface impoundments) prior to recycling without becoming subject to RCRA regulation The
Agency believes that its approach will not, as suggested by the commenter, reduce secondary material
recovery, because the Agency has learned, based on further research and on comments received on this
approach, that mineral processing secondary materials are generated in volumes that make non-land
storage feasible Today's approach will therefore ensure that secondary materials are managed safely,
that legitimate recycling can occur, and that mineral processing secondary materials do not become part
of the "waste disposal problem "
Comment: Another commenter asserted that as a result of the findings of AMC I and AMC II.
"recirculated process waters are outside the universe of regulated solid waste " The commenter
contended that recirculated process water is destined for immediate reuse in an ongoing production
process, and is not wastewater being treated prior to discharge The commenter acknowledged the fact
that some process water streams may serve to remove and manage waste materials from the process, but,
likening these process waters to conveyor belts, while the materials that are entrained by the process
waters are solid wastes, the process waters are not because they serve to transport the material
throughout the recycle system The process waters are recycled in such a manner that they are not
speculatively accumulated, because they serve as an alternative feedstock for virgin (fresh) water
Additionally, in many cases, process water serves a much more integral role in the manufacturing
process than simply as a medium for transporting waste from the production The commenter presented
the following examples in support of its argument
* Condensing of elemental phosphorous from the furnace off-gas stream,
• Water seals on pressure relief devices,
• Conveying and storage operations, and
• Phosphorous dock loading and unloading water. (COMM42)
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. Response The Agency agrees with the commenter that immediately recirculated process waters
are outside the universe of regulated solid waste If the water is not removed from the process for
storage, it remains in process A secondary material, including recirculated process water, that is
immediately put back into production is thus outside of RCRA jurisdiction However, if it is removed
from the process for storage, the reuse is no longer immediate, and, if storage is in an impoundment, the
element of discard to the use of a land-based unit, is palpable The many damage incidents involving
impoundments in this industry sector make clear that storage can be, and has been, part of the waste
disposal problem The Agency has determined that phosphorus condenser water is, however, a mineral
processing waste
Comment: A third commenter also recommended that process water used in the mineral
processing industry should be classified as a recyclable secondary material In addition to the rationale
provided by the above commenters, this commenter stated that two factors need to be taken into account
• Whether water from another source (such as a well) would have to be used if recycling
were disallowed, and
• Whether classifying the water as a recyclable secondary material conserves a valuable
natural resource
The commenter indicated that process water serves a "legitimate function" in its and others'
manufacturing processes, and that the process water stored in surface impoundments does not contribute
to the waste disposal problem The commenter's process water surface impoundments are specifically
designed to prevent releases, and are not the final resting place (with the exception of one impoundment)
for the process water (COMM70)
Response See response to COMM36 above Given the Agency's approach as finalized today,
that Agency believes that additional considerations proposed by the commenter are unnecessary
2.1.2 Comments on the Conditional Exclusion Approach
Two commenters suggested that the conditional exclusion approach is unlawful (COMM46,
COMM58)
Comment: One commenter argued that under a "conditional exclusion," mineral processing
secondary materials and units managing mineral processing secondary materials will have to meet
stringent conditions or be regulated under RCRA Subtitle C The commenter opposed EPA's conditional
exclusion approach because it is based on an incorrect understanding of current recycling practices, and
would inhibit or prevent full recovery of metals from the nation's limited mineral resources Maximizing
recovery of all metals is a critical function of the commenter's production processes. The commenter
recommended that to the extent that EPA proceeds with changes to the definition of solid waste, EPA
should maintain the current definition of solid waste until an alternative regulatory system can be
•developed that 1) truly encourages recycling, 2) recognizes that recovery of metal and acid values are
critical (and not-tangential) elements of mineral industry production processes, 3) avoids imposition of
additional and unnecessary regulatory obstacles to normal and environmentally sound metal production
systems, and 4) is founded on a fair evaluation of actual risk, if any, posed by the current handling and
jecycling of mineral processing materials as they are managed m the real world
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The commenter felt that EPA's decision to adopt a conditional exemption based on the factual
background outlined in 61 FR 2340 is incorrect, due to the fact that the factual background incorrectly
characterizes the mining and mineral processing industry (COMM46)
Response Under today's rule, exclusion of mineral processing secondary materials is
conditioned upon storage of the materials in units that are not land based (i e, in tanks, containers, and
buildings (or on approved pads in limited cases)) Materials returned immediately to the process are not
regulated The Agency proposed this approach in May 1997 after additional research into mineral
processing practices revealed that mineral processing secondary materials were generated in volumes
that made them amenable to management in non-land-based units and that, in fact, the industry was
moving away from use of land storage The Agency's prohibition on land placement is justified by the
potential and actual threats posed by mineral processing secondary materials when stored on the ground
These threats are amply documented in the Agency's document, "Damages Cases and Environmental
Releases" (EPA, 1997) and other background documents supporting today's rulemaking, a number of
which summarize additional damage incidents Comments received on the May 1997 proposal
confirmed the Agency's thinking and provided data suggesting that even in the limited cases where the
Agency believed high volume generation of mineral processing secondary materials might still be
occurring, generation rates were lower than previously thought The option that the Agency is finalizing
today is simpler in terms of compliance than the options proposed in January 1996, will not impede
recycling m the primary mineral processing industry, and will allow industry to maximize mineral
recovery while at the same time adequately protecting human health and the environment In addition,
under today's rule, legitimate recycling includes the recycling of metal, water and acid values as
requested by the commenter Consequently, the Agency believes that the rule being promulgated today
meets all of the commenter's criteria for an alternative system to those options proposed in January 1996
Comment. Another commenter also believed that the conditional exclusion approach is
unlawful, based on findings that are untrue, and will discourage recycling The commenter noted that the
conditional exclusion is unnecessarily cumbersome, complex, and driven to address sham recycling The
commenter also believed that the proposal has neglected the federal and state regulatory systems that
already address the issue of sham recycling Additionally, the commenter argued that as a result of the
conditional exclusion, many primary mineral processing facilities may find it necessary to reduce costs
by shipping materials off-site for land disposal (COMM58)
Response See response to COMM46 above
Comment: Two commenters believed that the conditional exclusion approach should be
expanded to accommodate other materials and industries (COMM58, COMM82)
Response A request to include other materials and industries is beyond the scope of this
rulemaking, and the Agency specifically did not propose such an expansion The Agency is, however,
unending the solid waste definition specifically for the mineral processing industry at this time in order
o most accurately set out the scope of the land disposal prohibition and treatment standards for mineral
processing wastes Since non-mineral processing materials would not be subject to these LDR standards,
iJie Agency sees no need to consider the issue at this time
Comment: One commenter believed that the conditional exclusion approach does not simplify
the existing regulatory definition of solid waste, nor provide the relief to the primary mineral processing
industry mandated by AMC J The commenter agreed that the present regulatory system is overly
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complex and discourages legitimate recycling and recovery efforts by the primary mineral processing
industry Both commenters asserted that appropriate revisions should be made to the existing regulatory
scheme, rather than promulgating the new approach outlined in the proposed rule The commenter
indicated that the existing regulatory scheme could be easily revised to accommodate their concerns and
meet the AMCI mandate (COMM58)
Response: See response to COMM46 above Further, the Agency believes that the provisions
of today's rule are consistent with court rulings in AMC I as explained by subsequent rulings in AMC II
and other cases regarding the Agency's jurisdiction over these materials Under today's rule, exclusion
of mineral processing secondary materials is conditioned upon storage of the materials in units that are
not land based (i e , in tanks, containers, and buildings (or on approved pads in limited cases)) Materials
returned immediately to the process are not regulated In AMC II, the court ruled that the only absolute
bar to the Agency's authority to define recycled secondary materials as solid wastes is to "materials that
are 'destined for immediate reuse in another phase of the industry's ongoing production process' and that
'have not yet become part of the waste disposal problem '" {American Mining Congress v EPA, 907
F 2d 1179, 1186 (D C Cir 1990)) Because the Agency's approach imposes additional requirements
only on materials not returned immediately to the process and limits land storage in order to prevent
stored secondary materials from becoming part of the "waste disposal problem," the Agency believes
that its final rule is consistent with the holding of AMC II The principal restriction placed on secondary
materials is that they not be stored on land (except for storage on approved pads in limited cases)
Comment: One commenter noted that under EPA's existing regulations, secondary materials
are regulated differently depending upon whether they are characterized as by-products, sludges, or spent
materials Since EPA is proposing to eliminate the distinctions, the commenter felt that several issues
must be addressed
First, the Agency should clarify that the current 40 CFR 261 2(c) exemption from the definition
of solid waste for characteristic by-products and sludges that are either generated and reclaimed
by outside industries or sent to and reclaimed within the mineral processing industry would
remain in effect Although EPA states in the preamble that the current exemption would
continue to be applicable, the language of proposed sections 261 2(c) and 261 4(a)(15) is unclear
on this point The commenter added that failure to clarify this point will result in substantial
reductions in resource recovery across many metals industries The commenter believed that the
result of the current proposed rule without clarification on this point will be predictable and
' negative economic and environmental consequences
Second, the Agency should clarify that the current 40 CFR 261 2(c) exemption would continue
to be applicable to characteristic by-products, sludges, and spent materials generated by mineral
processors located in the United States and sent to mineral processing facilities outside of the
United States Pursuant to the proposed language of section 261 4(a)( 15), secondary materials
would only be conditionally excluded if certain enumerated conditions are met EPA should not
attempt to assert jurisdiction over foreign entities by requiring that they comply with EPA's
proposed management standards EPA should also make it clear that the proposed exemption
would be applicable provided that the generator complies with the relevant conditions of the
proposed conditional exclusion for as long as the material remains within the United States
Third, the conditional exclusion should be expanded to include characteristic spent materials that
are reclaimed regardless of where they are generated or reclaimed In direct contrast to its
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decision to eliminate distinctions, the commenter noted that EPA proposes not to extend the
conditional exclusion to characteristic sludges, by-products, and spent material generated by
outside industries and recycled within the mineral processing industry This limitation is
inconsistent with EPA's conclusions that "distinctions among secondary materials are not
especially meaningful" and the "critical factor that may involve discarding does not relate to the
type of metal-bearing materials being recovered but to the type of unit involved in the recycling
activity "
The commenter added that EPA did not make an attempt to explain why the conditional
exclusion does not apply to facilities generating or recycling mineral processing spent materials outside
of the primary mineral processing industry The commenter contended that if reasonable management
practices are observed, transfers of secondary materials from outside industries to the mineral processing
industry would pose no more of an environmental risk than mtra-sector transfers The commenter also
noted that the proposed "legitimacy tests" for sham recycling would be well suited for, and would still
apply, if the conditional exclusion was expanded to include spent materials generated outside of the
mineral processing industry (COMM35)
Response Today's rule eliminates the regulatory distinction among by-products, sludges and
spent materials for mineral processing intra-mdustry recovery After reviewing the generation, handling,
and recycling of these materials, EPA determined that distinctions among them did not relate to risks that
the materials might pose By eliminating the regulatory distinctions today among characteristic by-
products, sludges and spent materials in the primary mineral processing industry, the Agency hopes to
create a simpler regulatory scheme that will encourage recycling The Agency notes that this change
applies only to the primary mineral processing industry, the current 40 CFR 261 2(c) exemption for
characteristic by-products and sludges generated and reclaimed by outside industries or sent from outside
industries to, and reclaimed by, the mineral processing industry would remain in effect Mineral
processing secondary materials generated by mineral processing in the United States but shipped to a
facility outside the U S would need to be stored in compliance with the terms of today's conditional
exclusion prior to transport, since domestic federal law certainly applies to domestic activities Finally,
the Agency has decided not to extend the exclusion promulgated today to metal-bearing materials outside
the primary mineral processing industry because it has not had the opportunity to fully evaluate if wastes
generated outside of the primary mineral processing industry should be eligible for an exclusion from the
•definition of solid waste Among other things, there is no junsdictional question that these materials can
3e solid and hazardous wastes APIv EPA, 906 F2d at 740-41 Thus, the policy issues of whether an
exemption or exclusion is warranted may be different than those from today's rulemaking Finally, the
\gency notes that other metal-bearing wastes can still be recycled, and that the Agency's existing
icgulations regarding the use of effective substitutes (40 CFR 261 2(e)(n)) allow for such recycling.
2.1.3 Specific Changes to the Existing Regulatory Language as
Raised by Commenters
Comment: One commenter recommended that EPA should adopt several definitions used in
c onjunction with the proposed rulemaking The commenter noted that in previous rulemakmgs, as well
i\s various court cases, undefined terms have led to major disagreements between EPA and the regulated
c ommunity usually resulting in continued litigation Accordingly, the commenter recommended that the
following definitions be added to 40 CFR 260 10
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A product is any material that is not a discarded material Products include raw matenals,
feedstocks, intermediates, end-use industrial matenals, ingredients, consumer goods, and any
other material that is not a discarded material
An intermediate is any material resulting from a manufacturing process whose design intends
further processing of the material by the original manufacturer or a toll processor to produce a
product or another intermediate
A discarded material is a material that is disposed of, abandoned, or thrown away
A toll processor is a person who performs a manufacturing process for another person who owns
the work in progress
A secondary material is any material which itself has been discarded material and is now being
recycled to make a product Secondary materials recycled to make a product are presumed not to
be discarded materials, unless one of the following conditions applies
(1) The secondary material is used or stored on or in the ground, or used to make a product
that is used on or in the ground, unless that is the material's or product's normal use or
storage
(2) The secondary material is burned for energy recovery, used to produce a fuel, or
contained in fuels This provision will not apply where
(a) That is the secondary material's normal use,
(b) The primary purpose of the activity is matenals recovery and there is only
incidental energy recover, or incidental fuels production,
(c) The secondary material is used in manufacturing process whose primary purpose
is to produce commercial fuels from crude oil and intermediate petroleum
streams, or
(d) The secondary material is a "clean fuel,"
(3) The secondary material is speculatively accumulated,
(4) The secondary material or activity has been deemed inherently waste-like, or
(5) The process is not secondary matenals recycling
Secondary Materials Recycling is 1) the use of a secondary material to make another material,
or 2) reclamation of a secondary material to either a) recover another material, or b) to regenerate the
original material, and 3) all associated ancillary operations, provided the following criteria are satisfied
i) The person recycling the secondary material must have the appropriate equipment and
technical expertise to produce the intended products or intermediates,
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n) The secondary material must meet commercial, manufacturing, or product
specifications,
ni) The secondary material must be handled in a manner designed to minimize losses,
iv) Contracts and/or records must be established related to the receipt of the material, the
use of materials in the process, and the use or sale of products, intermediates, or
feedstocks produced, and
v) The process must produce at least one product, intermediate, or feedstock meeting
commercial specifications
The commenter requested that EPA should correct the proposed regulatory language at 40 CFR
261 4 (b)(7) to ensure the exemption of processing wastes (COMM70)
Response. The Agency sees no reason to include the definitions recommended by the
commenter The commenter would have it that a material must be literally be thrown away at one time
to be a secondary material, and hence, potentially, a solid waste EPA believes this is an unnecessarily
restrictive condition It is not compelled by law SeeAPI,9Q6f 2dat 740-4\,AMCII, 907 F 2d at
1186-87 ('discarded" is an ambiguous term, and does not refer just to materials which have been thrown
away)' Given the numbers of damage incidents posed by land-based storage m this industry of materials
that would not be secondary materials under the commenter's scheme, EPA does not regard it as sound
policy either The Agency believes that the provisions of today's rule adequately address the issues of
terminology, specifically the provisions which condition exclusion from the definition of solid waste on
the manner in which materials are stored, not the materials themselves Thus, if a material is
immediately recycled into the process, it is excluded from the definition of hazardous waste Similarly,
materials stored in tanks, containers, and buildings meeting minimum standards or solids stored on pads
receiving a site-specific determinations also are excluded
Comment. The commenter also requested that the following changes dealing with the
classification of process water be made to the regulatory language
261 4 Exclusions
(a)
(15) Secondary materials (other than hazardous wastes listed in Subpart D of this Part)
generated within the primary mineral processing industry from which mineral values are recovered that
are reused by a primary mineral processing industry production process, provided that
'Incidentally, the Agency notes further that the secondary materials at issue in AMC II
were to be, and historically had been, recycled at a rate of 100 % at the plant which generated
them (50 FR at 40292,40296) Petitioners' briefs to the D C Circuit court likewise stressed this
fact (see citations in the preamble of today's rule) The case therefore does not involve
speculative accumulation.
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(I) The material contains recoverable amounts of minerals that are recovered by a primary
mineral industry production process, or consists of a water that serves a legitimate
function in such a process
(11) The materials cannot be accumulated speculatively (as defined in 261 1 (c)(8)),
(in) The owner or operator provides a notice to the Regional Administrator or State Director,
identifying the following information the types of materials to be recycled and the
location of the recycling process, and the annual quantities expected to be placed in land-
based units (COMM70)
Response: The Agency disagrees with the commenter's recommended changes, but notes that
the rule language has been significantly rewritten for other reasons and that EPA is not adopting
quantified tests of legitimacy
2.1.4 Generally Applicable Conditions
Comment: One commenter questioned whether or not EPA has jurisdiction over recycling
within the mineral processing industry when there is no land-placement of materials The commenter
raised this point in response to proposed conditions "that would apply whether or not the mineral-bearing
residue is managed in a land-based unit" (COMM40)
Response: The minimal conditions for the exclusion for non land-based storage are all narrowly
designed to prevent storage serving as a means of disposal Thus, in essence tanks, containers and
buildings have to be able to retain their contents without indiscriminate releases, i e, if a
tank/contamer/buildmg functions essentially as a sieve, its contents are discarded materials These
conditions relate to the 'part of the waste disposal problem' prong of the junsdictional test, and so are
within the Agency's authority
2.2 Conditions Relating to Legitimate Recycling
2.2.1 General Issues
Four commenters (COMM41, COMM43, COMM47, COMM80) commented on general issues
regarding conditions relating to legitimate recycling
Comment: One commenter asserted that the proposed rutemakmg provides a unique
opportunity for EPA to apply legitimacy criteria to a set of activities in a manner that provides for
administrative certainty and enforcement currently lacking in the RCRA program The commenter
believes that neither the regulated community or the environment is served by vague eligibility criteria,
and EPA should adopt quantitative legitimacy eligibility criteria whenever possible (COMM41)
Response Based on comments received on its January 1996 proposal, the Agency determined
that the proposed quantitative legitimacy tests as proposed generally were infeasible and
counterproductive Such tests would have required significant testing of materials (along with resultant
costs) Furthermore, due to uncertainty in evaluating test results, companies might decide not to recycle
any materials to protect the Bevill status of the resultant wastes Specifically, the Agency determined
that application of the ore cut-off grade test could restrict the gold industry's ability to recover gold
Page 2-11
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values from secondary materials that contain gold at levels below those found in ore, even though such
recovery could be cost effective Further, application of a normal operating range test could be difficult
to implement since operating parameters at large mineral processing facilities change frequently related
to differences in feed The Agency also determined that the proposed efficiency test might be
unworkable because facilities may be recovering a specific metal at one recovery rate while they are
recovering other metals at different rates As a consequence, the Agency proposed, and is finalizing
today, a new option that conditions exclusion from the definition of solid waste upon management of
mineral processing secondary materials in non-land-based units (i e tanks, containers, or buildings)
Storage of solids on pads also will be permitted in limited cases where the facility operator receives a
site-specific determination from the EPA Regional Administrator or State Director that the pad is not
serving as a means of discard All units storing materials prior to recycling will be required to meet
generally applicable qualitative conditions related to legitimate recycling, and materials also could not be
accumulated for more than one year Based on comment received on its two proposals and on additional
research concerning volumes of secondary materials generated and trends in industry management of
secondary materials, the Agency believes that today's rule takes into account industry practice, provides
specificity that will facilitate compliance, ensures that secondary materials are managed safely, that
legitimate recycling can occur, and that mineral processing secondary materials do not become part of
the "waste disposal problem "
Comment* Another commenter welcomed the Agency's attempt in the proposed rulemaking to
establish a framework for the criteria that should be used in any recycling assessment The commenter
argued that an assessment of the legitimacy of recycling is "a matter of both law and policy "
(COMM80)
Response The Agency appreciates the commenter's support, but notes that based on comments
received on its January 1996 proposal, the Agency determined that the proposed quantitative legitimacy
tests generally were mfeasible As a consequence, the Agency proposed, and is finalizing today, an
option that conditions exclusion from the definition of solid waste upon management of mineral
processing secondary materials in non-land-based units (i e tanks, containers, or buildings (or on
approved pads in limited cases)) Units storing mineral processing secondary materials will be required
to meet the qualitative conditions for legitimate recycling
Comment: A third commenter asserted that legitimacy tests must be crafted to allow legitimate
recycling to proceed unhindered The commenter believed that any precautions against sham recycling
should be designed to allow and encourage legitimate recycling (COMM47)
Response The Agency has decided to continue to use its existing qualitative criteria to
determine legitimate recycling These criteria have been in use for many years and are well-understood
by industry Their use should therefore not hinder recycling
Comment: A fourth commenter suggested that EPA should look at the history of the mineral
processing industry before finalizing the proposed rule The commenter stated that the purpose of
mining, milling, and processing facilities is to extract as much metal as possible A "maximum recovery
2thic" has been established in the industry for a long time, and serves the purpose that EPA is trying to
ichieve in this rulemaking EPA should take care when evaluating reuse and recycling at mineral
processing facilities, or the end result could be hindering the "maximum recovery ethic" that exists in the
industry today (COMM43)
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Response: The Agency reiterates that tts goal in today's rulemakmg is to protect human health
and the environment, while at the same time regulating storage of mineral processing secondary
materials in a manner that encourages within-mdustry materials recovery and does not interfere with
metal recovery operations within this industry sector The Agency believes that today's rule is in
keeping with its goal of balancing environmental protection while at the same time preventing "sham"
recycling and ensuring that secondary mineral processing materials do not become part of the "waste
disposal problem " Thus, notwithstanding that the mineral processing industry does indeed seek to
recover the metal values remaining in secondary materials, the final rule seeks to have this done in a way
that does not become part of the waste disposal problem (See response to COMM41)
2.2.2 Specific Changes to Regulatory Language as Raised by
Commenters
Two commenters requested several changes be made to the current regulatory language
(COMM49, COMM65) The requested changes and a summary of their rationale for the changes follow
Comment: One commenter requested the following change to
Include recovery of other chemicals or properties in §261 4(a)(l 5)(I)
§261 4 Exclusions
(a)***
(15)***
(I) The material contains recoverable amounts of minerals or other chemicals or properties
required by the production process
The commenter generally supported EPA's proposal modifying 40 CFR 261 4 to include a solid
waste exemption specifically for the mineral processing industry However, the commenter argued that
the exemption as proposed does not consider that certain secondary materials have value other than
recoverable mineral content This omission, because of the extremely important role caustic plays in the
Bayer process, would prevent recycling of certain secondary materials in bauxite refining In the Bayer
process, liquid streams containing some mineral value are brought back into the process primarily
because of their caustic value The exclusion, as proposed, could result in the commenter's facility
having to neutralize a high pH liquid stream thus diminishing or eliminating its caustic value This would
result m an economic loss of caustic, a necessary resource, with no environmental gam Therefore, 40
CFR §261 4(a)(15)(I) should recognize that mineral processing secondary materials, in addition to or
instead of mineral value, often have processing value in terms of other components or properties
(COMM65)
The commenter suggested that the Agency editorially modify §261 4(a)(15)(iv) so that
§261 4(aX15X«v) has parallel construction to the sentence in 40 CFR §261 4(a)(15) The commenter
suggests the following language
§261 4 Exclusions
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(a)***
(15)***
(iv) The material must be stored or otherwise managed in process units (COMM65)
Response: The Agency sees no reason to include the changes to the regulatory language
recommended by the commenter The Agency believes that the provisions of the rule being promulgated
today adequately address any language issues related to exclusion from the definition of solid waste and
make these suggested changes unnecessary The Agency further notes that provisions of today's rule
explicitly allow recycling of acids, cyanide, water, and "other values" in addition to mineral values (see
§261(a)(15))
Comment: Eliminate §261 4(a)(15)(iv)(B) as a disqualifier for process units
The commenter was concerned that §261 4(a)(l 5)(iv)(B) will prevent some land-based units
from definition as "process unit" that otherwise would meet all necessary conditions for being more
closely connected to production than waste management Disallowing units from being defined as
process units because they are subject to Clean Water Act regulation is counter-productive to the overall
intent of this proposal Being subject to regulation under the Clean Water Act is not definitive proof that
a unit is a waste management facility and not part of a production process Production areas and
equipment will often produce a wastewater that is subject to Clean Water Act regulation The other
conditions that are proposed within §261 4(a)(15) and revised as recommended by these comments
establish a sufficient test to determine whether a unit is acting more as a waste management facility than
as part of the process The commenter believes that §261 4(a)(15)(iv)(B) sets up an unnecessary hurdle
to the intent of the overall proposal and should be deleted from the rule (COMM65)
Response Wastewater treatment impoundments are by their very nature waste management
units Wastewater managed in impoundments is therefore not eligible for the conditional exclusion from
the definition of solid waste that is being promulgated today at §261 4(a)(15) Since no impoundments
are, however, the issue is largely academic at this time
Comment: Another commenter requested the following language be added to Section
§261 4(a)
(17) Wastestreams that exhibit a characteristic of hazardous waste (other than hazardous wastes
listed in Subpart D of this part) generated within the primary mineral processing industry which
are rendered nonhazardous in a totally enclosed treatment unit, an elementary neutralization unit
or wastewater treatment unit, as defined in §260 10
The commenter believed that the new paragraph (17) suggested above meets the intent of RCRA
and of the proposed rule by promoting legitimate recycling activity, through the use of elementary
neutralization or similar treatment units Further, it would encourage industry to render hazardous
wastes nonhazardous on-site in a beneficial manner that uses no landfill capacity and has no negative
impact on the environment If EPA does not agree to include this language, however, the commenter
alternatively requested that EPA revise the parenthetical proposed at §268 32(t) to clarify that it would
not apply to the type of activity described here, as follows (including underlying hazardous constituents
in characteristic wastes that have been diluted for the sole purpose of removing the characteristic) The
commenter requested that at a minimum, clarification be made on this point (COMM49)
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Response: The Agency notes that totally enclosed treatment units and elementary neutralization
units already are exempt from permitting requirements (see 40 CFR §264 l(gX5) and (6), and that wastes
that are decharactenzed in such units are no longer hazardous wastes However, the Agency also
disagrees with the commenter's alternative suggestion to modify 40 CFR §268 32(e), as such a change
would constitute a fundamental shift in Agency policy, which currently prohibits dilution as a treatment
option for complying with land disposal prohibition treatment standards However, if wastewaters which
are decharactenzed are discharged pursuant to CWA requirements, LDR requirements probably would
not apply See RCRA section 3004 (g) (7)
2.2.3 Support for the Agency's Views on Conditions Relating to
Legitimate Recycling
Three commenters expressed general support for the Agency's views on conditions relating to
legitimate recycling (COMM3, COMM6, COMM43)
Comment: One commenter supported EPA's proposal to allow recycling in beneficiation units,
and the regulatory language as currently proposed The commenter added that including one of the
alternative tests as a regulatory "safe harbor" would preserve flexibility and allow case-by-case
determinations, as well as creating certainty where it might be necessary to promote recycling that might
not otherwise occur The commenter noted, however, that EPA must remember the unique aspects of the
mining and mineral processing industry when finalizing the rule Processing residues recycled in
processing or beneficiation units come from a process and are returned to it, and the metals that they
contain are indigenous to the material being processed or beneficiated (COMM43)
Response* Mineral processing secondary materials may be placed into beneficiation units
provided that 1) legitimate recycling is occurring, and 2) the beneficiation unit is processing at least fifty
percent virgin feedstock
Comment: Another commenter indicated that it agrees with the requirements that are intended
to ensure that
1 Recycling is actually occurring,
2 The material serves a legitimate function in the process,
3 No waste disposal is involved,
4 The material is not being stored speculatively,
5 One-time notification, and
6 Storage and treatment are being done only in process units as opposed to land-based
facilities which would still be allowed under certain conditions (COMM3)
Response: Today's rule incorporates provisions that are consistent with the commenter's
criteria 1 through 5 Today's rule does not allow land-based storage of mineral processing secondary
materials except in limited cases on approved pads
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Comment: A third commenter indicated that it supports EPA's proposal to quantify the criteria
for determining whether recycling of mineral processing secondary materials is legitimate The
commenter agreed that the conditions should not pose an undue burden on persons recycling secondary
mineral processing materials The commenter added that "defining an ore cutoff grade and the normal
operating range of the mineral processing industry are standards that are already in place " As a result,
these tests would not likely impose any burden as well The commenter also encouraged EPA to
consider establishing more quantified criteria for defining legitimate recycling for the regulated
community as a whole (COMM6)
Response: The Agency appreciates the commenter's support for its proposed quantitative
legitimately tests, but based on comments received, the Agency has determined that the quantitative
legitimacy tests, as previously proposed, are generally infeasible Instead, the Agency developed and is
finalizing today a rule that-would condition exclusion from the definition of solid waste on storage of
mineral processing secondary materials in non-land-based units (i e tanks, containers, or buildings (or in
limited cases, on approved pads)) Mineral processing secondary materials immediately returned to the
process would not be regulated All units storing mineral processing secondary materials would be
required to legitimately recycle the materials, and the materials could not be accumulated for more than
one year prior to being reinserted into the process The Agency believes that this new approach will
ensure that secondary materials are managed safely, that legitimate recycling can occur, and that mineral
processing secondary materials do not become part of the "waste disposal problem "
Comment: Another commenter expressed support for EPA's proposal to require that materials
being recycled include recoverable amounts of minerals (COMM22)
Response Today's rule requires that mineral processing secondary materials must have
recoverable amounts of minerals, acids, cyanide, water, or other values to be eligible for the conditional
exclusion from the definition of solid waste
2.2.4 Opposition to the Agency's Views on Conditions Relating to
Legitimate Recycling
General Opposition
Eight commenters expressed general opposition to the Agency's views on the conditions relating
to legitimate recycling (COMM23, COMM36, COMM42, COMM57, COMM58, COMM67, COMM80)
Comment: One commenter argued that the proposal fails to recognize that many mineral
processing secondary materials that do not have recoverable amounts of minerals are reused for other
Beneficial purposes For example, secondary materials are often used to control charge composition, or
For their flux value (COMM36)
Response: The Agency must ensure that legitimate recycling of mineral processing secondary
materials takes place as opposed to disposal wherever recycling is claimed to be taking place The
\gency is therefore requiring that recoverable amounts of minerals, acids, cyanide, water, or other values
must be present in order for a mineral processing secondary material to be eligible for the conditional
exclusion from the definition of solid waste that is being promulgated today Today's rule does not
preclude companies from using wastes under the effective substitutes provisions of 40 CFR §261 2
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Comment: Four commenters indicated on a general basis that adoption of quantitative criteria
would be objectionable to the mineral processing industry (COMM36, COMM42, COMM67,
COMM80) One commenter mentioned that the reuse of leach circuit reagents (acidic solutions such as
acid plant blowdown, refinery bleed, and scrubber blowdown) could be affected by the proposed criteria,
even though there is no discussion in the proposed rule as to whether they might be or not The
commenter also noted that its secondary material recycling operations would be significantly affected if
the current proposed quantitative criteria were to take effect (COMM67) Another commenter stated
that through an endeavor with the Commonwealth of Massachusetts, a consultant determined that there
were too many variables to construct a truly objective test for legitimate recycling (COMM80) A third
commenter indicated that EPA's quantitative test will incorrectly apply to secondary materials not
intended for discard, which is outside of EPA's RCRA jurisdiction (COMM36) Finally, a fourth
commenter argued that the criteria do not lend themselves to broadly applicable standards, and should be
evaluated on a site-specific basis If the proposed quantitative standards are promulgated, both
regulatory .effort and regulatory uncertainty will be increased (COMM42)
Response: See above response to COMM36 Today's rule does not adopt quantitative criteria
for determining the legitimacy of recycling because the Agency found that the tests as proposed might
discourage, rather than encourage, recycling The Agency also was concerned about the potential costs
of materials testing that would have been required under the proposed quantitative tests Specifically, the
Agency determined that application of the ore cut-off grade test could restrict the gold industry's ability
to recover gold values from secondary materials that contain gold at levels below those found in ore,
even though such recovery could be cost effective Further, application of a normal operating range test
could be difficult to implement since operating parameters at large mineral processing facilities change
frequently related to differences in feed The Agency also determined that the proposed efficiency test
might be unworkable because facilities may be recovering a specific metal at one recovery rate while
they are recovering other metals at different rates
Comment: One commenter believed that the need for a quantitative legitimacy test is minimal,
due to the fact that it applies only to materials being recycled within the mineral processing sector The
commenter stated that its main concern is that hazardous constituents are not released into the
environment, and setting quantitative limits according to the commenter is not a factor in environmental
protection As long as some level of mineral recovery occurs, the concentration of recoverable minerals
and acids should be of minimal environmental concern (COMM23)
Response* See above response to COMM36 above
Comment: Another commenter pointed out that current law already provides authority for
regulation of legitimate recycling activities, at least in the gold sector of the mineral processing industry
The commenter contended that the current RCRA Subtitle C regulations "provide that unlisted
byproducts and sludges "reclaimed" for their metal values are not solid wastes and therefore not subject
to regulation (40 CFR 261 2(c)(3)) The commenter also cited 40 CFR 266 70 and 40 CFR 261 2(e)(n)
as proof of a regulatory framework for regulation of legitimate recycling The commenter asserted that if
the current proposal is adopted, it will hinder, not encourage, the recycling of gold sector mineral
processing secondary materials Similarly, the commenter suggested that the imposition of a
'significantly affected" test could burden the recovery of metals-nch secondary materials ~ even where
khe secondary materials have a recoverable metals content orders of magnitude greater than virgin ore,
and have never been placed or processed in a land based unit The commenter stated that "EPA should
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make it clear that no requirements — including the notification requirement and the toxics ratio and
significantly affected tests — apply to such recycling activities " (COMMS7)
Response The Agency disagrees with the commenter that current recycling standards are
adequate to prevent mineral processing secondary materials from becoming part of the "waste disposal
problem" if these materials are stored on land for significant periods of time At the same time, the
Agency did not want to establish requirements that would unreasonably hinder recycling Based on
comments received, the Agency has determined that the quantitative legitimacy tests, as proposed,
generally are infeasible As a consequence, today the Agency is promulgating a rule that would
condition exclusion from the definition of solid waste on management of secondary materials in non-land
based units (except in limited cases on approved pads) The Agency has determined that storage in
tanks, containers, and buildings is becoming more prevalent, and that these materials are generated in
volumes lower than previously thought The Agency therefore believes its new approach will not pose a
significant burden to industry Today's rule does establish a notification requirement The Agency
relieves that the public and the regulatory agencies must be informed of a facility's use of the
conditional exclusion in order to assess the facility's compliance with it Also, see above response to
COMM36 and see Section 4 0 below for a complete discussion of the Agency's position on the
"significantly affected" test
Comments Addressing the Legal Basis of the Proposed Legitimacy Test
Three commenters consider the legitimate recycling criteria to be unreasonable and unlawful
(COMM5, COMM46, COMM58) Two of the commenters provided specific rationale
Comment. One commenter argued that the proposed tests for determining the legitimacy of
lecychng secondary materials are unnecessary and unwarranted, and should not be adopted The
commenter added that the proposal is arbitrary and capricious, because it is inconsistent with EPA's prior
solid waste determination for other industries The commenter cited three cases as its rationale for this
statement
• Coke by-products,
• Splash condenser dross residue, and
• Recovered oil in the petroleum industry
The commenter stated that when these three secondary materials are managed in tanks or
containers prior to being recycled, they are not solid wastes However, these three secondary materials
are not subject to any quantitative sham recycling test or notification requirements As a result of these
precedents, the commenter feels that EPA's proposal to apply a quantitative test for legitimate recycling
in the mineral processing industry cannot be sustained Additionally, since secondary materials
generated in the mineral processing industry are not "discarded," they are beyond EPA's RCRA
regulatory jurisdiction (COMM46)
Response: Based on comments received, the Agency determined that the quantitative
legitimacy tests, as previously proposed, are generally infeasible As a consequence, the Agency
developed today's rule, which would condition exclusion of mineral processing secondary materials
fi om the definition of solid waste on storage of those materials in non-land based units (i e tanks,
cDntamers, or buildings (or in limited cases, on approved pads)) meeting minimum technical standards
Materials recycled under the conditional exclusion also would be required to meet generally applicable
qualitative conditions related to legitimate recycling Today's rule also would prohibit accumulation of
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secondary materials for more than one year Because the commenter already manages secondary
materials in tanks and containers, today's rule should have minimal impact on his operations For
detailed discussion of the Agency's jurisdiction over mineral processing secondary materials, please see
Section 1 0, above
Comment. Another commenter argued that EPA should abandon the proposed "sham
recycling" criteria for mineral processing materials because they are arbitrary, unreasonable and unduly
burdensome The commenter noted that in August 1991, EPA proposed a set of criteria very similar to
those in the current proposed rule
• The hazardous waste had to have properties and specifications that were similar to those
of the replaced "raw" material,
• The hazardous constituents in the waste had to "legitimately" contribute to the
production process,
• The concentration of hazardous constituents in the recycled products had to be at levels
that were comparable to the levels found in similar products made with "virgin"
materials, and
• The sale of the product had to generate a substantial portion of the firm's total revenues
The commenter added that OMB rejected these criteria for the following reasons
The approach would inevitably evaluate recycling activity inconsistently, and stifle
recycling innovation,
The nature and sources of the revenues derived from an activity were irrelevant in
determining the legitimacy of an activity within an economic system,
• Throughout this rule, the EPA Administrator and Regional administrators retain
substantial discretion in weighing these several "legitimacy" criteria (that is, the
hazardous waste concentration of a product, the financial structure, etc ) in determining
whether an activity constitutes recycling Decisions on individual applications may be
governed more by the specific circumstances and relationships with individual recyclers,
than by any concern with protecting human health and the environment
The commenter added that OMB concluded that the entire proposed rule was "unwieldy,
artificial, and counterproductive", and returned it to EPA for reconsideration As a result of this, the
1991 criteria were never promulgated The commenter suggested that like the 1991 criteria, the
proposed 'sham recycling' criteria would provide EPA with undue and arbitrary discretion in
determining which facilities were engaged in 'legitimate' recovery operations, and would stifle
beneficial recycling practices (COMM5)
Response. Based on comments received, the Agency determined that the quantitative
legitimacy tests, as previously proposed, are generally infeasible As a consequence, the Agency
developed, and is finalizing today, a rule that would condition exclusion for mineral processing
secondary materials from the definition of solid waste upon management of those materials in non-land
based units (i e tanks, containers, or buildings (or in limited cases, on approved pads) These units also
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are required to meet generally applicable qualitative conditions related to legitimate recycling, and
facility operators must provide a one-time notification to EPA or the authorized State describing the
materials being recycled and the processes used to recycle them Today's rule also would prohibit
accumulation of secondary materials for more than one year The Agency believes that the requirements
that it is promulgating today are significantly less burdensome than those cited by the commenter, and
that the provisions will ensure mat secondary materials are managed safely, while allowing legitimate
recycling to continue Further, the Agency does not believe its approach today is arbitrary The Agency
is adopting the use of existing qualitative criteria to determine whether legitimate recycling is occurring
These existing criteria have been in use by the Agency for many years
Comments Regarding the Existence of Sham Recycling Within the Mineral Processing
Industry
Comment: Six commenters asserted that sham recycling does not necessarily exist, and
therefore, quantitative legitimacy criteria are not necessary or applicable to the mineral processing
industry The commenters argued that due to the nature of the industry where metals are extracted to the
maximum extent possible, only legitimate recycling can exist They contended that it would not make
sense for someone to operate under the guise of recycling and expend the costs associated with further
treatment and processing of a material with no recoverable constituent (therefore no economic value)
simply to avoid regulation associated with disposal (COMM37, COMM40, COMM46, COMM58,
COMM67, COMM70)
Response: The Agency does not agree with commenters that "sham" recycling does not exist
Further, the Agency is concerned with the potential threat posed by mineral processing secondary
materials when they are managed in a waste-like manner prior to legitimate reinsertion into the process
For example, if a mineral processing secondary material with uneconomic amounts of recoverable matal
and high concentrations of unrecoverable toxic metals were 'recovered' in a beneficiation unit, there
could be sham recycling occurring, particularly because of the incentive to shield the hazardous waste
from true disposal costs by disposing of the residue in such a way as to have it be classified as Bevill
exempt This type of operation would be viewed as mixing a subtitle C hazardous waste with Bevill-
exempt wastes, the result being that Bevill units could lose their exempt status
Comment: The commenter noted that metal and mineral products are produced to meet
stringent world-wide industry specifications These specifications dictate that metal and mineral
commodities be of a certain purity or "grade," thereby eliminating any concern that the product will
:ontam excess levels of unwanted constituents Mineral processing companies have a powerful
economic incentive to design and operate their facilities in a manner that ensures that undesirable or
unwanted constituents do not affect their product or their production operations One way in which this
is done is to monitor and control stringently the quality of feed materials, including recycled secondaries,
hat enter the production process The commenter argued that because market incentives already exist to
-insure that any recycling of secondary materials is "legitimate" in the mineral processing industry,
^CRA regulatory controls are not needed The application of such controls would create yet another
ayer of unnecessary regulatory, bureaucratic control that would interfere with mineral processing
industry production (COMM46)
Response: See responses to COMM37,COMM40,COMM46, COMM58,COMM67, and
COMM70 above. The Agency acknowledges that companies must produce their metal products to meet
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market standards This does not eliminate the possibility of sham recycling in all cases However, it is
one reason EPA is not adopting quantified legitimacy tests in this rule
Alternative Criteria for Determining Legitimate Recycling as Proposed by Commenters
Eight commenters suggested or discussed alternative criteria for determining legitimate
recycling as a forum for opposition to the Agency's proposed quantitative criteria (COMM35,
COMM36, COMM42, COMM49, COMM53, COMM58, COMM80, COMM82)
Comment: One commenter stated that it believed that the only viable option for determining
legitimate recycling is case-by-case consideration of recycling operations The commenter, through the
use of previous EPA guidance on legitimate recycling, has come up with the following list of six indicia
of legitimate recycling activities
1) Materials are handled in a manner consistent with their use as a valuable feedstock This
is comparable to, though not entirely the same as, the criterion in the proposal "No
speculative accumulation "
2) Materials are not received indiscriminately, nor are they used in amounts in excess of the
amount necessary to make a product. Rafter feed materials are selected and used based
on their ability to produce high quality products This is comparable to the criterion
"Concentrations of Recoverable Mineral and Acid" in the proposal However, the
commenter feels that none of the quantitative tests suggested to implement this criterion
(e g , ore cutoff grade, normal operating standard, efficiency standard, economic test)
can provide the necessary flexibility
3) The products of the process are legitimate, valuable products that have demonstrated-
markets
4) The products of the process meet established specifications and contain no "toxics along
for the nde " This is comparable to the criterion "Constraints on Nonrecoverable
Hazardous Constituents" in the proposal
5) The economic justification for the process is not solely the revenue received from
charging generators for managing their wastes This criterion is not a bright-line
economic test, but rather further helps distinguish treatment activities - which derive all
revenue or economic benefit from tolling or disposal fees - from recycling and
manufacturing activities which derive at least some benefit from sale or recovery of
products or raw materials
6) The process is environmentally sound
The commenter noted that the last criteria, the process is environmentally sound, is especially
important The commenter believed that there is a broad consensus that only environmentally-sound
recycling of secondary materials should receive regulatory preferences The commenter noted that none
of the criteria are, by themselves, determinative for legitimate recycling or manufacturing activities The
commenter urged the Agency to use this and other rulemaking, guidance, and policy documents as a
method for disseminating the appropriate criteria for legitimate recycling (COMM80)
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Response: Based on comments received, the Agency has determined that the quantitative
legitimacy tests as proposed generally are infeasible The Agency does believe that case-by-case
determinations are feasible, however, using existing qualitative legitimacy criteria, most of which are
identical to those suggested by the commenter The specific catena that the Agency uses are discussed
m 50 F_R 638,53 FR 522, and 56 EE 7145 and 7185 The Fifth Circuit upheld use of these criteria in the
Marine Shale litigation
Comment: Two commenters recommended similar proposals with the objective of developing a
legitimate recycling test which would be simple and self-implementing (COMM35,53) To demonstrate
legitimacy, the commenters propose that a facility would be required to maintain proof that it meets the
following requirements
• The facility must produce a material suitable for return to commerce or for use by the
recycler, either as an ultimate product or as a feed material for an industrial process,
• The material to be recycled must meet specifications, established by the recycler,
relating to the recycling process or to one or more of the products of the recycling
process,
• The recyclable material must be handled in a manner to minimize loss of that material,
• The recycler must maintain adequate records relating to the receipt and processing of the
recyclable material and for sale or use of the recycled product or feedstock, and
The product manufactured from the recyclable material must meet specifications
established for its use as a process feedstock or in commerce as a product (COMM35)
The commenter felt that incorporating its proposal into the final rule would ensure that wastes
that are simply being treated or disposed of under the guise of recycling will not qualify for the
exclusion (COMM53) A third commenter stated that it endorsed the above proposal (COMM82)
Response: See response to COMM80 above These are essentially the legitimacy criteria that
EPA has said are relevant in determining if an activity is sham recycling
Comment Another commenter noted that much of EPA's proposal to determine legitimate
recycling was directed at ensuring that mineral processing facilities do not engage in commercial
hazardous waste management The commenter felt that this objective would be more clearly attained if
it were addressed directly Therefore, the commenter presented the following proposal
EPA should consider reproposing this portion of the rule and develop criteria based upon the
following (1) the "legitimate mineral production test" (i e does the plant feedstock include
more than fifty percent ore, beneficiated ore, processed ore or materials streams generated by
such beneficiation or processing7), (2) the "traditional product test" (does the facility or
processing involve activities or operations which antedate RCRA (i e, November 19, 1980), and
therefore can demonstrate a utility independent of RCRA avoidance''), or (3) the "indigenous
material test" (i e, do the hazardous constituents of concern originate from material "indigenous"
to the mineral processing (i e, ore, beneficiated ore or traditional process ingredients [e g,
fluxes, reductants, or catalysts])
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The commenter indicated that the above definitions could be developed in the same way that the
definition of "beneficiation" was developed — by enumerating the universe of excluded operations
and/or materials produced (COMM42)
Response: Today's rule retains the Agency's current qualitative approach to determining if
legitimate recycling is occurring The Agency believes that the use of these criteria will assure that
illegal disposal will not occur The commenter's recommended approach is appreciated, but in light of
the Agency's final decision regarding this rule, not necessary
Comment: A commenter argued that due to the fact that EPA's proposal has no basis in fact or
law, EPA should adopt recommendations presented by the commenter in a previous proposal to EPA
Specifically, EPA should contemplate an alternative approach in which the materials would be required
to contain a metal content that is comparable to or above the normal range of virgin ores or feedstocks,
contain levels of minerals or metals recoverable by the technology being employed, or contain materials
necessary to be an effective substitute for commercial products This alternative would simply
encourage facilities to recover or recycle, in a cost-effective and environmentally sound manner,
concentrations of minerals comparable to what they would have otherwise obtained through mining and
processing (COMM58)
Response: The Agency disagrees with the commenter's assertion that EPA's proposal has no
basis in fact or law The Agency has ample legal jurisdiction to impose conditions on mineral processing
secondary materials (see Section I 0 above) The Agency is not adopting any quantitative criteria for
legitimacy, therefore the commenter's concerns are no longer valid See also response to COMM80
above
Comment: Another commenter recommended that EPA consider the comparison of metal
concentrations in secondary materials to the metal concentrations in slag residues as an alternative
determinant of legitimate recycling For example, lead blast furnace slags contain 1 to 2 percent lead
Therefore, metals recovery could be considered to be occurring if the lead concentration in the secondary
materials being recycled exceeds 2 percent The purpose of this comparison is to ensure that the metals
(oncentration in the secondary materials exceeds that of the material coming out of the blast furnace
(COMM36)
Response: See response to COMM80 above The Agency is not adopting any quantitative
criteria for legitimate recycling
Comment: A sixth commenter presented a proposal that it believed would suitably define
I sgitimate recycling for low-level acid waste streams The commenter routes weak acid wastewater from
i s sulfate process manufacturing area to an elementary neutralization unit (ENU) The weak acid
wastestream is transported by totally-enclosed above ground pipe to the ENU, where the pH of the
wastewater is increased so that the material does not exhibit any RCRA characteristic The resultant
wastewater is discharged to water pursuant to the terms of a NPDES permit The inert noncharactenstic
sahds that precipitate out of the neutralization process are then sold as product (principally for use in the
manufacture of gypsum wallboard) Because the demand for this material far exceeds the supply, the
material is not speculatively accumulated In short, this recycling method has satisfied all of EPA's
e numerated conditions to prevent sham recycling The commenter asserted that the management of its
weak acid waste stream is exempt from RCRA regulation, but the wastestream itself is still classified as
a solid and hazardous waste The commenter argued that EPA should establish an exemption from the
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definition of solid waste for this type of management The commenter noted that although weak acid
wastestreams are essentially devoid of recoverable minerals, the manner in which they are recycled
meets the goals of RCRA (COMM49)
Response: As noted by the commenter, totally enclosed treatment units and elementary
neutralization units already are exempt from RCRA regulation as permitted waste units (see 40 CFR
264 l(g)(5) and (6)) The Agency therefore sees no reason to extend today's exclusion from the
definition of solid waste to this type of management
2.3 Concentrations of Recoverable Mineral and Acid — Alternative
Tests
2.3.1 General Comments
Five commenters made general comments regarding the proposed alternative tests (COMM22,
COMM36 COMM47, COMM52, COMM58)
Comment: One commenter stated that in order to maximize the flexibility of the regulatory
scheme and encourage recycling, that a facility meeting a normal range of ore grade test, an alternative
economic test, or receiving a site-specific variance should be considered to have met the proposed
"concentrations of recoverable minerals and acids" condition (COMM58)
Response: Based on comments received, the Agency has determined that quantitative
legitimacy tests, as previously proposed, are generally infeasible
Comment. Another commenter suggested that for off-site recyclers of secondary materials,
facility management standards would be an appropriate test for determining legitimate recycling The
commenter stated that general facility standards should include requirements for site security, general
inspections, personnel training, contingency plan and appropriate response equipment, financial
assurance and liability insurance, and recordkeeping and reporting requirements (COMM47)
Response See response to COMM58 above Furthermore, the requirements proposed by the
commenter are not "quantitative" m nature The Agency believes that the qualitative standards proposed
m today's rule are sufficient In addition, the Agency notes that its requirements for recycling secondary
materials apply only to primary mineral processing facilities and would not apply to off-site recyclers
unless they are primary mineral processing facilities processing materials from within their industry
sector
Comment: A commenter argued that the imposition of legitimacy tests demonstrates a
misunderstanding of the mining and mineral processing industry and underestimates the inconvenience
to the industry posed by the proposal The commenter contended that there would be unwarranted costs
also associated with the legitimacy tests, and believes that EPA does not have the authority to impose
such requirements on non-regulated processes (COMM36)
Response: Based on comments received, the Agency has determined that the quantitative
legitimacy tests, as previously proposed, are generally mfeasible Although the Agency has therefore
decided in today's rule not to adopt any quantitative test for legitimacy, the Agency believes it has the
authority to impose quantitative tests to ensure that sham recycling does not occur. Rather, the Agency
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